8-K/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K/A

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported)    November 18, 2016 (November 14, 2016)

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

(Exact name of registrant as specified in its charter)

Delaware	001-32421	58-2342021
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

420 Lexington Avenue, Suite 1718 New York, NY	10170
(Address of principal executive offices)	(Zip Code)

Registrant's telephone number, including area code: (212) 201-2400

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨          Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨          Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨          Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨          Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 2.01 Completion of Acquisition or Disposition of Assets.

On November 14, 2016, Fusion NBS Acquisition Corp. (the “Buyer” or “FNAC”), a subsidiary of Fusion Telecommunications International, Inc. (“Fusion”), and Fusion (solely for limited enumerated purposes) entered into a Stock Purchase and Sale Agreement (the “Apptix Purchase Agreement”) with Apptix, ASA (the “Seller”), pursuant to which FNAC acquired all of the issued and outstanding capital stock of Apptix, Inc., a wholly-owned subsidiary of the Seller (“Apptix”). Apptix provides managed and hosted business communication, collaboration, compliance and security, and infrastructure solutions to mid-market and enterprise customers and blue-chip channel partners.

The purchase price paid by FNAC for Apptix was $28.0 million, subject to adjustments for closing date cash on hand, unpaid indebtedness and unpaid transaction costs. The purchase price was paid (i) $22,963,484.32 in cash, and (ii) the balance in 2,997,926 shares of Fusion’s common stock (the “Seller Shares”), based upon a $1.68 per share volume weighted average price of Fusion’s common stock over the 180-day period preceding the closing. The cash portion of the purchase price was funded through a new senior secured facility entered into simultaneous with the Apptix acquisition (see Item 2.03 below).

Fusion has agreed, on or prior to August 14, 2017, at its expense (i) to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”) to register resale of the Seller Shares on behalf of the Seller (and, if applicable, distribution of the Seller Shares to the shareholders of the Seller), (ii) to cause the registration statement to become effective no more than 90 days following the date it is filed (120 days under certain circumstances), and (iii) to maintain the effectiveness of the registration statement for up to two years. Notwithstanding the foregoing, the Seller has agreed to use its reasonable efforts to obtain an agreement from certain of its shareholders, not to sell any such Seller Shares, including under the registration statement, prior to November 14, 2017.

The foregoing description of the Apptix Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the Apptix Purchase Agreement which is attached hereto as Exhibit 10.3.1 and is incorporated by reference herein. The Apptix Purchase Agreement has been included as an exhibit hereto solely to provide investors and security holders with information regarding its terms. It is not intended to be a source of financial, business or operational information about Fusion, FNAC or any other subsidiary of Fusion. The representations, warranties and covenants contained in the Apptix Purchase Agreement are made only for purposes of the specific agreement and are made as of specific dates; are solely for the benefit of the parties to that agreement; may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of the Apptix Purchase Agreement, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties rather than establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors or security holders. Investors and security holders should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of Fusion or any subsidiary of Fusion. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the agreement, which subsequent information may or may not be fully reflected in public disclosures.

2

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

On November 14, 2016 (i) FNAC entered into a Credit Agreement (the “East West Credit Agreement”) with East West Bank, as Administrative Agent, Swingline Lender, an Issuing Bank and a Lender (“East West Bank”) and other lenders (collectively with East West Bank, the “East West Lenders”) and (ii) FNAC, Fusion and Fusion’s subsidiaries other than FNAC (the “Subsidiaries” and together with Fusion and FNAC, the “Company”) entered into the Fifth Amended and Restated Securities Purchase Agreement (the “Restated Purchase Agreement”) with Praesidian Capital Opportunity Fund III, L.P., Praesidian Capital Opportunity Fund III-A, LP and United Insurance Company of America (collectively, the “Praesidian Lenders”). The Restated Purchase Agreement amends and restates the terms of the Fourth Amended and Restated Securities Purchase Agreement and Security Agreement, dated December 8, 2015 (the “Fourth Amendment”), pursuant to which FNAC previously sold its Series A, Series B, Series C, Series D, Series E and Series F senior notes in an aggregate principal amount of $33.6 million (the “SPA Notes”).

Under both the East West Credit Agreement and the Restated Purchase Agreement:

· The Company is subject to a number of affirmative and negative covenants, including but not limited to, restrictions on paying indebtedness subordinate to its obligations to the lenders, incurring additional indebtedness, making capital expenditures, dividend payments and cash distributions by subsidiaries.

· The Company is required to comply with various financial covenants, including leverage ratio, fixed charge coverage ratio and minimum levels of earnings before interest, taxes, depreciation and amortization; and its failure to comply with any of the restrictive or financial covenants could result in an event of default and accelerated demand for repayment of its indebtedness.

· The Company granted the lenders security interests on all of its, as well as the capital stock of FNAC and each of the Subsidiaries.

· Fusion and the Subsidiaries (and future subsidiaries of both) have guaranteed FNAC’s obligations, including FNAC’s repayment obligations thereunder.

The foregoing and following descriptions of the East West Credit Agreement and the Restated Purchase Agreement do not purport to be complete and are qualified in their entirety by reference to the East West Credit Agreement, which is attached hereto as Exhibit 10.1.1, and the Restated Purchase Agreement, which is attached hereto as Exhibit 10.2, each of which is incorporated by reference herein. The East West Credit Agreement and the Restated Purchase Agreement have been included as exhibits hereto solely to provide investors and security holders with information regarding their respective terms. They are not intended to be a source of financial, business or operational information about Fusion, FNAC or any other subsidiary of Fusion. The representations, warranties and covenants contained in the East West Credit Agreement and the Restated Purchase Agreement are made only for purposes of the specific agreement and are made as of specific dates; are solely for the benefit of the parties; may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of each such agreement, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties rather than establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors or security holders. Investors and security holders should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of Fusion, FNAC or any other subsidiary of Fusion. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the respective agreement, which subsequent information may or may not be fully reflected in public disclosures.

3

East West Credit Facility

Contemporaneously with the completion of the Apptix transaction, FNAC entered into, and consummated the transactions contemplated by, the East West Credit Agreement. Under the East West Credit Agreement, the East West Lenders extended the Company (i) a $65 million term loan and (ii) a $5 million revolving credit facility (which includes up to $4,000,000 in “swingline” loans that may be accessed on a short-term basis). The proceeds of the term loan were used, in part, to retire FNAC’s obligations under a $40 million credit Facility with Opus Bank and, in part, to fund FNAC’s acquisition of Apptix (see Item 2.01 above).

Borrowings under the East West Credit Agreement are evidenced by promissory notes bearing interest at rates to be computed based upon either the then current “prime” rate of interest or “LIBOR” rate of interest, as selected by FNAC at the time of its borrowings. Interest on borrowings that FNAC designates as “base rate” loans bear interest at the greater of the prime rate published by the Wall Street Journal or 3.25% per annum, in each case plus 2% per annum. Interest on borrowings that FNAC designates as “LIBOR rate” loans bear interest at the LIBOR rate of interest published by the Wall Street Journal, plus 5% per annum.

The Company is required to repay the term loan in equal monthly payments of $270,833.33 commencing January 1, 2017 and continuing until January 1, 2018, when monthly payments increase to $541,666.67 until the maturity date of the term loan on November 12, 2021. Borrowings under the revolving credit facility are also payable on the November 12, 2021 maturity date of the facility.

In conjunction with the execution of the East West Credit Agreement, the Company and the East West Lenders also entered into (i) an IP Security Agreement under which the Company has pledged intellectual property to the East West Lenders to secure payment of the East West Credit Agreement, (ii) Subordination Agreements under which certain creditors of the Company and the East West Lenders have established priorities among them and reached certain agreements as to enforcing their respective rights against the Company, and (iii) a Pledge and Security Agreement under which Fusion and FNAC have each pledged its equity interest in its subsidiaries to the East West Lenders.

Restated Purchase Agreement

The Restated Purchase Agreement amends the Fourth Amendment by (i) providing the Praesidian Lenders’ consent to the acquisition of Apptix, (ii) joining Apptix as a guarantor and credit party under the Restated Purchase Agreement, (iii) modifying certain financial covenants contained in the Fourth Amendment, and (iv) extending the maturity date of the SPA Notes to May 12, 2022. The Praesidian Lenders have also entered into a Subordination Agreement with the East West Lenders pursuant to which the Praesidian Lenders have subordinated their right to payment under the Restated Purchase Agreement to repayment of the Company’s obligations under the East West Credit Agreement.

Except as described in the preceding paragraph, the Restated Purchase Agreement contains substantially the same terms and conditions as the Fourth Amendment. Those terms are described in Fusion’s Current Report on Form 8-K which, along with a copy of the Fourth Amendment, was filed with the Securities and Exchange Commission on December 14, 2015.

Item 3.02 Unregistered Sales of Equity Securities.

(a)         As discussed under Item 2.01, above, on November 16, 2016, Fusion issued an aggregate of 2,997,926 Seller Shares to the Seller, an accredited investor, under the Apptix Purchase Agreement, in connection with FNAC’s acquisition of Apptix. The information provided under Item 2.01, above, is incorporated in this section by this reference. The investor is a “non-US person” and the certificates evidencing the Seller Shares bear a legend restricting their transferability absent registration under the Securities Act or the availability of an applicable exemption therefrom. The issuance of the Seller Shares is exempt from the registration requirements of the Securities Act by reason of Regulation S thereunder.

4

(b)         On November 16, 2016, Fusion sold an aggregate of 2,431,091 shares of its common stock (the “SPA Shares”) for an aggregate purchase price of $2,795,754, or $1.15 per share. The SPA Shares were sold pursuant to the terms of a Common Stock Purchase Agreement (the “Stock Purchase Agreement”), dated November 14, 2016, with 22 several investors, each of whom is an accredited investor as such term is defined in Rule 501(a) of Regulation D under the Securities Act.

Fusion has agreed that, not later than December 29, 2016 it will file a registration statement under the Securities Act to register resale of the SPA Shares on behalf of the registered owners. The Stock Purchase Agreement requires Fusion to pay liquidated damages to the registered owners, in an amount not to exceed 12% of the purchase price of the SPA Shares, in the event the registration statement is not timely filed, or if it is not declared effective by the Securities and Exchange Commission within the prescribed time, or if Fusion fails to maintain the effectiveness of the registration statement during the prescribed period, or if there ceases to be “current public information” about Fusion, within the meaning of Rule 144 under the Securities Act, during the prescribed time provided. Fusion has also agreed to certain limitations on issuing shares of its common stock, or securities convertible or exchangeable into common stock, during the period from the date of the Stock Purchase Agreement until 45 days following the effective date of the registration statement.

Fusion paid a placement agent fee equal to 7% of the proceeds from the sale of the SPA Shares to Craig-Hallum Capital Group LLC, a licensed broker-dealer. Each of the purchasers represented that it was an accredited investor, purchasing the SPA Shares for its own account, for investment purposes and not with a view towards distribution; and the certificates evidencing the SPA Shares bear a legend restricting their transferability absent registration under the Securities Act or the availability of an applicable exemption therefrom. The issuance of the SPA Shares is exempt from the registration requirements of the Securities Act by reason of Section 4(2) of the Securities Act and Regulation D thereunder.

The foregoing description of the Stock Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the Stock Purchase Agreement which is attached hereto as Exhibit 10.4 and is incorporated by reference herein. The Stock Purchase Agreement has been included as an exhibit hereto solely to provide investors and security holders with information regarding its terms. It is not intended to be a source of financial, business or operational information about Fusion or any subsidiary of Fusion. The representations, warranties and covenants contained in the Stock Purchase Agreement are made only for purposes of the specific agreement and are made as of specific dates; are solely for the benefit of the parties thereto; may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of each such agreement, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties rather than establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors or security holders. Investors and security holders should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of Fusion or any subsidiary of Fusion. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the respective agreement, which subsequent information may or may not be fully reflected in public disclosures.

5

Item 1.01 Entry into a Material Definitive Agreement

As discussed under Items 2.01 and 3.02(a), above, on November 14, 2016 FNAC and Fusion entered into the Apptix Purchase Agreement. The information provided under Items 2.01 and 3.02(a) above, is incorporated in this section by this reference.

As discussed under Item 2.03 above, on November 14, 2016 FNAC entered into (i) the East West Credit Agreement and (ii) the Restated Purchase Agreement. The information provided under Item 2.03 above, is incorporated in this section by this reference.

As discussed under Item 3.02(b) above, on November 14, 2016, Fusion entered into the Stock Purchase Agreement. The information provided under Item 3.02(b), above, is incorporated in this section by this reference.

Item 9.01 Financial Statements and Exhibits.

(a) Financial Statements of Business Acquired.

The financial statements of the business acquired required by Item 9.01(a)(1) of Form 8-K and Rule 8-04(b) of Regulation S-X will be filed within the time specified in 9.01(a)(4) of Form 8-K.

(b) Pro Forma Financial Information.

The pro-forma financial information required by Item 9.01(b)(1) of Form 8-K and Rule 8-05 of Regulation S-X will be filed within the time specified in 9.01(b)(2) of Form 8-K.

(c) Shell Company Transactions.

Not Applicable.

(d) Exhibits.

Exhibit No.	Description of Exhibit
10.1.1	Credit Agreement, dated November 14, 2016, by and among Fusion NBS Acquisition Corp., East West Bank and the Other Lender from time to time party thereto
10.1.2	Form of Revolving Loan Note under Credit Agreement dated November 14, 2016
10.1.3	Form of Term Loan Note under Credit Agreement dated November 14, 2016
10.1.4	Form of Swingline Loan Note under Credit Agreement dated November 14, 2016
10.1.5	Subordination Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC, Apptix, Inc., Praesidian Capital Opportunity Fund III, LP, as agent, and East West Bank, as administrative agent
10.1.6	InterCreditor and Subordination Agreement, dated as of November 14, 2016, by and among Marvin Rosen, Fusion Telecommunications International, Inc. and East West Bank, as administrative agent
10.1.7	Pledge and Security Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC, Apptix, Inc. and East West Bank, as administrative agent
10.1.8	Guaranty, dated as of November 14, 2016, by Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC and Apptix, Inc. to East West Bank, as administrative agent
10.1.9	Intellectual Property Security Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC, Apptix, Inc. and East West Bank, as administrative agent
10.2	Fifth Amended and Restated Securities Purchase Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC, Apptix, Inc., Praesidian Capital Opportunity Fund III, L.P., Praesidian Capital Opportunity Fund III-A, LP and United Insurance Company of America
10.3.1	Stock Purchase and Sale Agreement, dated as of November 14, 2016, by and among Fusion Telecommunications International, Inc., Fusion NBS Acquisition Corp. and Apptix, ASA
10.3.2	Registration Rights Agreement, dated as of November 14, 2016, by and among Fusion Telecommunications International, Inc., Fusion NBS Acquisition Corp. and Apptix, ASA
10.4	Common Stock Purchase Agreement, dated as of November 16, 2016, by and among Fusion Telecommunications International, Inc. and the several purchasers of its common stock.

6

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report on Form 8-K to be signed on its behalf by the undersigned thereunto duly authorized. 

	FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
	By: /s/ Gordon Hutchins, Jr.
	Gordon Hutchins, Jr.
November 23, 2016	President and Chief Operating Officer

7

EXHIBIT INDEX

Exhibit No.	Description of Exhibit
10.1.1	Credit Agreement, dated November 14, 2016, by and among Fusion NBS Acquisition Corp., East West Bank and the other Lender from time to time party thereto
10.1.2	Form of Revolving Loan Note under Credit Agreement, dated November 14, 2016
10.1.3	Form of Term Loan Note under Credit Agreement, dated November 14, 2016
10.1.4	Form of Swingline Loan Note under Credit Agreement, dated November 14, 2016
10.1.5	Subordination Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC, Apptix, Inc., Praesidian Capital Opportunity Fund III, LP, as agent, and East West Bank, as administrative agent
10.1.6	InterCreditor and Subordination Agreement, dated as of November 14, 2016, by and among Marvin Rosen, Fusion Telecommunications International, Inc. and East West Bank, as administrative agent
10.1.7	Pledge and Security Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC, Apptix, Inc. and East West Bank, as administrative agent
10.1.8	Guaranty, dated as of November 14, 2016, by Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc. Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC and Apptix, Inc. to East West Bank, as administrative agent
10.1.9	Intellectual Property Security Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC, Apptix, Inc. and East West Bank, as administrative agent
10.2	Fifth Amended and Restated Securities Purchase Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., PingTone Communications Inc., Fusion BVX LLC, Fidelity Telecom, LLC, Fidelity Access Network, Inc., Fidelity Access Networks, LLC, Fidelity Connect, LLC, Fidelity Voice Services, LLC, Apptix, Inc., Praesidian Capital Opportunity Fund III, L.P., Praesidian Capital Opportunity Fund III-A, LP and United Insurance Company of America
10.3.1	Stock Purchase and Sale Agreement, dated as of November 14, 2016, by and among Fusion Telecommunications International, Inc., Fusion NBS Acquisition Corp. and Apptix, ASA
10.3.2	Registration Rights Agreement, dated as of November 14, 2016, by and among Fusion Telecommunications International, Inc., Fusion NBS Acquisition Corp. and Apptix, ASA
10.4	Common Stock Purchase Agreement, dated as of November 16, 2016, by and among Fusion Telecommunications International, Inc. and the several purchasers of its common stock

8

EX-10.1.1

Exhibit 10.1.1

Execution Version

CREDIT AGREEMENT

dated as of November 14, 2016

by and among

FUSION NBS ACQUISITION CORP.,

as Borrower

EAST WEST BANK,

as Administrative Agent, Swingline Lender, an Issuing Bank,

and a Lender

and

THE OTHER LENDERS FROM TIME TO TIME PARTY HERETO

$70,000,000 Senior Secured Credit Facilities

TABLE OF CONTENTS

		Page
SECTION 1	DEFINITIONS AND ACCOUNTING TERMS	1
1.01	Defined Terms	1
1.02	Certain Matters of Construction	39
1.03	Accounting Terms; Financial Statements	39
1.04	Rounding	39
1.05	Articles, Sections, Exhibits and Schedules	40
1.06	References to Agreements and Laws	40
1.07	Letter of Credit Amounts	40
SECTION 2	EXTENSIONS OF CREDIT	40
2.01	Term Loans	40
2.02	Revolving Loans	41
2.03	Letters of Credit	42
2.04	Swingline Facility	51
2.05	Pro Rata Shares	55
2.06	Use of Proceeds	55
2.07	Evidence of Debt; Register; Lenders’ Books and Records	55
2.08	Interest on Loans	55
2.09	Conversion/Continuation	57
2.10	Default Interest	57
2.11	Fees	58
2.12	Scheduled Payments	58
2.13	Voluntary Prepayments	59
2.14	Mandatory Prepayments	59
2.15	Application of Prepayments	61
2.16	General Provisions Regarding Payments	63
2.17	Ratable Sharing	65
2.18	Defaulting Lenders	65
2.19	Cash Collateral	68
2.20	Termination and Reduction of Revolving Loan Commitment	69
SECTION 3	TAXES, YIELD PROTECTION AND ILLEGALITY	69
3.01	Taxes	69
3.02	Increased Costs; Capital Requirements	72
3.03	Mitigation of Obligations; Replacement of Lenders	74
3.04	Making or Maintaining LIBOR Rate Loans	75
3.05	Matters Applicable to all Requests for Compensation	77
3.06	Survival	77
SECTION 4	CONDITIONS PRECEDENT	77
4.01	Conditions of Effectiveness	77
4.02	Conditions to Each Loan	80

i 

TABLE OF CONTENTS

(continued)

Page

SECTION 5	REPRESENTATIONS AND WARRANTIES	81
5.01	Existence and Power	81
5.02	Authorization; No Contravention	81
5.03	Governmental Authorization; Third Party Consents	81
5.04	Binding Effect	81
5.05	Litigation	82
5.06	Compliance with Laws	82
5.07	No Default or Breach	82
5.08	Title to Properties	82
5.09	Use of Real Property	83
5.10	Taxes	83
5.11	Financial Statements and Projections	84
5.12	Disclosure	85
5.13	Absence of Certain Changes or Events	85
5.14	Environmental Compliance	85
5.15	Investment Company/Government Regulations	86
5.16	Subsidiaries	86
5.17	Capitalization	86
5.18	Broker’s, Finder’s or Similar Fees	87
5.19	Labor Relations	87
5.20	Employee Benefit Plans	87
5.21	Patents, Trademarks, Etc	88
5.22	Potential Conflicts of Interest	88
5.23	Trade Relations	88
5.24	Indebtedness	89
5.25	Material Contracts	89
5.26	Insurance	89
5.27	Communications Matters	90
5.28	Reserved	90
5.29	Perfection Certificate	90
5.30	Reserved	91
5.31	Certain Payments	91
5.32	Margin Requirements	91
5.33	Anti-Terrorism Laws; Anti-Corruption Laws; Sanctions	91
5.34	Target Transaction	92
5.35	Swap Contract	93
5.36	Separateness Requirements	93
5.37	AHYDO Payment	93

ii 

TABLE OF CONTENTS

(continued)

		Page
SECTION 6	AFFIRMATIVE COVENANTS	93
6.01	Financial Statements and Other Information	93
6.02	Deliveries	96
6.03	Preservation of Existence	98
6.04	Payment of Obligations	99
6.05	Compliance with Laws	99
6.06	Contractual Obligations	99
6.07	Inspection; Lender Meeting	100
6.08	Maintenance of Properties	100
6.09	Insurance	100
6.10	Reserved	101
6.11	Compliance with ERISA	101
6.12	Use of Proceeds	101
6.13	Customer Contracts	101
6.14	New Real Property	101
6.15	Control Agreements; Cash Management Systems	102
6.16	Collateral Access Agreements	102
6.17	Key-Man Life Insurance	102
6.18	Subsidiaries	102
6.19	Post Closing Covenants	103
6.20	Separateness Requirements	103
6.21	Board Observer	104
SECTION 7	NEGATIVE COVENANTS	104
7.01	Fundamental Changes; Consolidation; Mergers and Acquisitions; Dispositions	104
7.02	Liens	104
7.03	Guarantees	105
7.04	Investments	105
7.05	Loans	105
7.06	Restricted Payments	105
7.07	Indebtedness	106
7.08	Nature of Business	107
7.09	Transactions with Affiliates	107
7.10	Leases	107
7.11	Subsidiaries; Partnerships; Joint Ventures	107
7.12	Fiscal Year and Accounting Changes	107
7.13	Amendment of Organizational Documents	107
7.14	Limitation on Modifications of Indebtedness; Modifications of Certain Other Agreements; Etc	108
7.15	Financial Covenants	108
7.16	ERISA	110
7.17	Prepayment of Indebtedness	110
7.18	Burdensome Agreements	111
7.19	Separateness Requirements	111
7.20	Deposit Accounts; Securities Account	111
7.21	Hedging Transactions	111
SECTION 8	EVENTS OF DEFAULT AND REMEDIES	111
8.01	Events of Default	111
8.02	Remedies Upon Event of Default	114

iii 

TABLE OF CONTENTS

(continued)

		Page
SECTION 9	ADMINISTRATIVE AGENT	118
9.01	Appointment and Authorization of Administrative Agent	118
9.02	Rights as a Lender	118
9.03	Exculpatory Provisions	119
9.04	Reliance by Administrative Agent	120
9.05	Delegation of Duties	120
9.06	Right to Indemnity	120
9.07	Non-Reliance on Administrative Agent and Other Lenders	121
9.08	Successor Administrative Agent; Resignation of Issuing Bank or Swingline Lender	121
9.09	Administrative Agent May File Proofs of Claim	123
9.10	Lenders’ Representations, Warranties and Acknowledgment	123
9.11	Collateral and Guaranty Matters	124
9.12	Treasury Management Banks and Hedging Banks	124
SECTION 10	MISCELLANEOUS	125
10.01	Notices	125
10.02	Expenses; Indemnity; Damage Waiver	127
10.03	Amendments and Waivers	129
10.04	Successors and Assigns; Participations	132
10.05	Independence of Covenants	136
10.06	Survival of Representations, Warranties and Agreements	136
10.07	No Waiver; Remedies Cumulative	136
10.08	Marshalling; Payments Set Aside	136
10.09	Severability	137
10.10	Obligations Several; Actions in Concert	137
10.11	Headings	137
10.12	APPLICABLE LAW	137
10.13	CONSENT TO JURISDICTION	137
10.14	WAIVER OF JURY TRIAL	138
10.15	Confidentiality	139
10.16	Usury Savings Clause	140
10.17	Counterparts; Integration	140
10.18	Effectiveness; Electronic Execution for Assignments	140
10.19	USA Patriot Act	141
10.20	Acknowledgment and Consent to Bail-In of EEA Financial Institutions	141
10.21	Set-off	141
10.22	Sharing of Payments	142
10.23	Nonliability of Lender	142
10.24	Further Assurances	143
10.25	Entire Agreement	143

iv 

TABLE OF CONTENTS

(continued)

EXHIBITS

A-1 Form of Notice of Borrowing

A-2 Form of Continuation/Conversion Notice

B Form of Compliance Certificate

C Form of Prepayment Notice

D-l Form of Term Loan Note

D-2 Form of Revolving Loan Note

D-3 Form of Swingline Loan Note

E-l Form of Praesidian Subordination Agreement

E-2 Form of Rosen Subordination Agreement

F-1 Form of Perfection Certificate for Closing Date

F-2 Form of Perfection Certificate for Section 6.01(j)

G Form of Pledge and Security Agreement

H Form of Guaranty

I Form of Joinder Agreement

J Form of Intellectual Property Security Agreement

APPENDICES

A Commitments of Lenders

B Address for Service of Process

SCHEDULES

5.01 Subsidiaries

5.05 Litigation

5.08(a) Owned Real Property

5.08(b) Real Property Leases

5.09 Uses of Owned and Leased Real Property

5.10 Taxes

5.11 Cash Flow Projection

5.13 Certain Changes, Events

5.16 Subsidiaries

5.17 Capitalization

5.18 Brokers Fees

5.19 Labor Relations

5.20 Employee Benefits

5.22 Conflicts of Interest

5.24 Existing Indebtedness

5.25 Material Contracts

5.27 Licenses

5.31 Certain Payments

6.19 Post-Closing Covenants

7.02 Permitted Liens

7.04 Investments

7.07 Indebtedness

7.15 Scheduled Adjusted EBITDA

7.18 Burdensome Agreements

10.01 Addresses for Notices

v 

Credit Agreement

This Credit Agreement (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, this “Agreement”) is entered into as of November 14, 2016, by and among Fusion NBS Acquisition Corp., a Delaware corporation (“Borrower”), East West Bank (“EWB”), as Administrative Agent, Swingline Lender, an Issuing Bank, and a Lender and each other lender from time to time a party hereto (individually, a “Lender” and collectively, “Lenders”).

Recitals

Borrower is party to an Amended and Restated Credit Agreement, dated as of December 8, 2015 (the “Opus Credit Agreement”), pursuant to which Opus Bank and certain other lenders therein named extended a senior secured credit facility to Borrower in the original principal amount of $40,000,000.

Administrative Agent and the Lenders have agreed to make certain advances to Borrower pursuant the terms of this Agreement to, inter alia, repay the amounts outstanding under the Opus Credit Agreement and for other purposes set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties covenant and agree as follows:

SECTION 1

DEFINITIONS AND ACCOUNTING TERMS

1.01         Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

“Accountant” means EisnerAmper LLP or another independent certified public accountant selected by Borrower and reasonably acceptable to Administrative Agent.

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any line of business or any division of a Person, (b) the acquisition of in excess of fifty percent (50%) of the Equity Securities of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary).

“Adjusted EBITDA” means for any period, the sum of (a) Earnings Before Interest and Taxes of any Person on a Consolidated Basis for such period, plus to the extent deducted in the determination of net income (or loss) for such period (b) depreciation expenses of such Person on a Consolidated Basis for such period plus (c) amortization expenses of such Person on a Consolidated Basis for such period, plus (d) cash charges relating to the Target Transactions in an amount not to exceed $1,600,000 in the aggregate and incurred prior to May 15, 2017.

1

“Administrative Agent” means EWB, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent appointed pursuant to this Agreement.

“Administrative Agent-Related Persons” means Administrative Agent (including any successor agent), together with its Related Parties.

“Administrative Questionnaire” means an administrative questionnaire in a form supplied by Administrative Agent.

“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Parent or any of its Subsidiaries) at Law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Borrower, threatened against or affecting Parent or any of its Subsidiaries or any property of Parent or any of its Subsidiaries.

“Affected Lender” has the meaning specified in Section 3.04(b).

“Affected Loans” has the meaning specified in Section 3.04(b).

“Affiliate” means, with respect to any Person, any other Person (a) directly or indirectly controlling, controlled by, or under common control with, such Person, (b) directly or indirectly owning or holding five percent (5%) or more of any Equity Security in such Person, or (c) five percent (5%) or more of whose voting stock or other Equity Security is directly or indirectly owned or held by such Person. For purposes of this definition, “control” (including with correlative meanings, the terms “controlling,” “controlled by” and under “common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Agent Parties” has the meaning specified in Section 10.01(c).

“Aggregate Amounts Due” has the meaning specified in Section 2.17.

“Agreement” has the meaning specified in the introductory paragraph hereto.

“Anti-Corruption Laws” means all Laws of any Governmental Authority applicable to any Loan Party, any of its Subsidiaries, Administrative Agent or any Lender, Issuing Bank or Participant concerning or relating to bribery or corruption; provided that, in the case of any non-U.S. Participant, any Governmental Authority applicable solely to one or more Participants shall only be included within the scope of the definition of “Anti-Corruption Laws” if Borrower has received written notice from Administrative Agent, any Lender or any Participant of such Governmental Authority being applicable to a Participant.

2

“Anti-Terrorism Laws” means all Laws of any Governmental Authority applicable to any Loan Party, any of its Subsidiaries, Administrative Agent or any Lender, Issuing Bank or Participant concerning or relating to bribery or corruption concerning or relating to anti-terrorism, terrorism financing, money laundering or “know your customer”; provided that, in the case of any non-U.S. Participant, any Governmental Authority applicable solely to one or more Participants shall only be included within the scope of the definition of “Anti-Terrorism Laws” if Borrower has received written notice from Administrative Agent, any Lender or any Participant of such Governmental Authority being applicable to a Participant.

“Approved Fund” means (a) any fund, trust or similar entity that invests (or will invest) in commercial loans, bonds and similar extensions of credit in the ordinary course of business and is advised or managed by (i) a Lender, (ii) an Affiliate of a Lender, (iii) the same investment advisor that manages a Lender or (iv) an Affiliate of an investment advisor that manages a Lender or (b) any finance company, insurance company or other financial institution which temporarily warehouses (or will warehouse) loan, bonds and similar extensions of credit for any Lender or any Person described in clause (a) above.

“Asset Sale” means any Disposition to or with, any Person, in one transaction or a series of transactions, of all or any part of any Loan Party’s or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, including, without limitation, the Equity Securities of any Subsidiary, other than (a) Ordinary Course Dispositions and (b) sales or other Dispositions of other assets not otherwise excluded by clause (a) of this definition for aggregate consideration of less than $500,000 with respect to any transaction or series of related transactions and less than $1,000,000 in the aggregate during any fiscal year; provided that the term “Asset Sale” shall not include Dispositions pursuant to a loss covered by a casualty insurance policy or pursuant to a taking or sale to a purchaser threatening taking pursuant to powers of eminent domain, condemnation or otherwise.

“Asset Sale Reinvestment Amounts” has the meaning specified in Section 2.14(a).

“Assignment and Assumption Agreement” means an Assignment and Assumption Agreement, entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.04), and accepted by Administrative Agent, which Assignment and Assumption Agreement shall be in form and content acceptable to Administrative Agent in its reasonable discretion.

“Attorney Costs” means and includes all reasonable, out-of-pocket attorneys’ and other fees and disbursements of any law firm or other external counsel and, with respect to Section 10.02, the allocated costs of internal legal services and all disbursements of internal counsel.

“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).

“Bail-In Action” means, the exercise of any Write Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organization for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule.

3

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”.

“Base Rate” means, for any day a fluctuating rate per annum equal to the higher of (a) the Prime Rate or (b) 3.25%.

“Beneficiary” means, collectively, each of the Secured Parties; and “Beneficiaries” means the Secured Parties.

“Board of Directors” means the board of directors of any corporation, board of managers of any limited liability company or other similar governing body of any other Person.

“Board of Governors” means the Board of Governors the United States Federal Reserve System.

“Borrower” has the meaning specified in the introductory paragraph hereto.

“Borrower Materials” means any materials and/or information provided by or on behalf of the Loan Parties and their Affiliates to Administrative Agent under the Loan Documents and made available to the Lenders and Issuing Bank by posting of such materials and/or information on any Platform.

“Borrowing” and “Borrow” each mean, as of the date of determination (a) with respect to LIBOR Rate Loans outstanding as of such date, a borrowing consisting of Loans of the same Class and having the same Interest Period or (b) with respect to Base Rate Loans, all Base Rate Loans as of such date, a borrowing consisting of Base Rate Loans of any applicable Class, regardless of the Class of Base Rate Loans outstanding as of such date.

“Business” means the businesses engaged in by the Loan Parties and their Subsidiaries as of the Closing Date, including providing integrated cloud solutions, cloud voice, cloud connectivity, cloud infrastructure, cloud computing, and managed cloud-based applications to businesses of all sizes; voice over IP based voice services to carriers; provided that, concurrent with the consummation of the Acquisition of the Target Company and thereafter, the definition of “Business” shall be deemed to include the businesses engaged in by the Target Company as of the Closing Date.

“Business Day” means (a) any day excluding Saturday, Sunday and any day which is a legal holiday under the Laws of the State of New York or the State of California or is a day on which banking institutions located in either state are authorized or required by Law or other governmental action to close and (b) with respect to all notices, determinations, fundings and payments in connection with the LIBOR Rate or any LIBOR Rate Loans, the term “Business Day” means any day that is a Business Day described in clause (a) of this definition and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.

“CALEA” means the Communications Assistance for Law Enforcement Act, codified at 47 U.S.C. §1001, et. seq., as amended.

4

“Capital Expenditures” means expenditures made or liabilities incurred for the acquisition of any fixed assets or improvements, replacements, substitutions or additions thereto which have a useful life of more than one (1) year, including the total principal portion of Capital Lease Obligations, which, in accordance with GAAP, would be classified as capital expenditures and all other expenditures made or liabilities incurred for intangible assets, which are capitalized.

“Capital Lease Obligations” means any Indebtedness of the Loan Parties represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

“Capital Leases” means any and all leases under which certain obligations are required to be capitalized on the books of a lessee in accordance with GAAP.

“Cash Collateral” and “Cash Collateralize” means, as applicable, the Collateral consisting of, or to pledge and deposit with or deliver to Administrative Agent, for the benefit of Issuing Bank or Lenders, as Collateral for Letter of Credit Obligations or obligations of Lenders to fund participations in respect of Letter of Credit Obligations, cash or deposit account balances or, if Administrative Agent and Issuing Bank shall agree in their sole discretion, other credit support, in each case, pursuant to documentation in form and substance reasonably satisfactory to Administrative Agent and Issuing Bank (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings.

“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition thereof; (b) commercial paper maturing no more than two hundred seventy (270) days from the date issued and, at the time of acquisition, having a rating of at least A-1 from S&P, or at least P-1 from Moody’s; (c) certificates of deposit or bankers’ acceptances maturing within one (1) year from the date of issuance thereof issued by, or overnight reverse repurchase agreements from, any commercial bank organized under the Laws of the United States of America or any state thereof or the District of Columbia having combined capital and surplus of not less than $500,000,000; (d) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks having membership in the Federal Deposit Insurance Corporation in amounts not exceeding the lesser of $100,000 or the maximum amount of insurance applicable to the aggregate amount of the Loan Parties’ and their respective Subsidiaries’ deposits at such institution; and (e) deposits or investments in mutual or similar funds offered or sponsored by brokerage or other companies having membership in the Securities Investor Protection Corporation in amounts not exceeding the lesser of $100,000 or the maximum amount of insurance applicable to the aggregate amount of the Loan Parties’ and their respective Subsidiaries’ deposits at such institution. Notwithstanding the foregoing, unless otherwise consented to in writing by Administrative Agent, Cash Equivalents will not include and each Loan Party will be prohibited from purchasing, purchasing participations in, entering into any type of swap or other equivalent derivative transaction, or otherwise holding or engaging in any ownership interest in any type of debt instrument, including any corporate or municipal bond with a long-term nominal maturity for which the interest rate is reset through a Dutch auction and more commonly referred to as an auction rate security.

“CFC” means a “controlled foreign corporation” (as that term is defined in the Code).

5

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law; (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means (a) Parent ceasing to (i) own, directly or indirectly, one hundred percent (100%) of the issued and outstanding Equity Securities of Borrower, or (ii) control, by contract, ownership or otherwise, that percentage of the outstanding voting Equity Securities of Borrower necessary at all times to elect a majority of the Board of Directors of Borrower and to direct the management policies and decisions of Borrower, (b) any merger, consolidation or sale of all or substantially all of the property or assets of any Loan Party or Subsidiary of any Loan Party, other than as permitted by Section 7.01(a), (c) the occurrence of any “Change of Control” (or similar term) under (and as defined in) (i) any Subordinated Debt Document or (ii) any Contractual Obligation regarding Indebtedness which has not been subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative Agent, (d) both (i) Matthew Rosen ceasing to be the Chief Executive Officer of Parent for any reason unless a successor, reasonably acceptable to Administrative Agent, is appointed within four (4) months thereof, and (ii) Marvin Rosen ceasing to be the Chairman of the Board of Directors of Parent for any reason unless a successor, reasonably acceptable to Administrative Agent, is appointed within four (4) months thereof, or (e) the direct or indirect acquisition after the Closing Date by any person (as such term is used in Section 13(d) and Section 14(d)(2) of the Exchange Act, but excluding any employee benefit plan of Parent or its Subsidiaries, or any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) or related persons constituting a group (as such term is used in Rule 13d-5 under the Exchange Act), of (i) beneficial ownership of the issued and outstanding shares of voting stock or similar equity interest of Parent, the result of which acquisition is that such Person or group possesses in excess of 50% of the combined voting power of all then-issued and outstanding voting stock of Parent, or (ii) the power to elect, appoint, or cause the election or appointment of at least a majority of the members of the Board of Parent.  For purposes of this definition “control” means the power to direct or cause the direction of management and policies of a Person, whether by contract or otherwise.

“Class” means (a) with respect to Lenders, each of the following classes of Lenders: (i) Lenders having Term Loan Exposure and (ii) Lenders having Revolving Loan Exposure; (b) with respect to any Loans, each of the following classes of Loans: Term Loans and Revolving Loans; and (c) with respect to Secured Parties, each of the following classes of Secured Parties: (i) Secured Parties having Term Loan Exposure and (ii) Secured Parties having Revolving Loan Exposure.

“Closing Date” means November 14, 2016.

6

“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto.

“Collateral” means all assets of Borrower and the Guarantors in which a Lien has been granted to Administrative Agent, for the benefit of the Secured Parties, pursuant to the Security Documents to secure the payment and performance of the Obligations.

“Collateral Access Agreement” means an agreement reasonably satisfactory to Administrative Agent, which is executed in favor of Administrative Agent by a Person who owns or occupies the premises at which any Collateral may be located from time to time and by which such Person shall waive any Lien that such Person may ever have with respect to any of the Collateral and shall authorize Administrative Agent from time to time to enter upon the premises to inspect or remove the Collateral from such premises or to use such premises to store or dispose of such Collateral.

“Commitment” means, as to a Lender, the aggregate of its Revolving Loan Commitment or Term Loan Commitment, as applicable, and “Commitments” means the aggregate of the Revolving Loan Commitments and Term Loan Commitments of all Lenders.

“Commitment Letter” means that certain Amended and Restated Engagement and Commitment Letter, dated as of November 13, 2016, by and among Borrower, Parent and EWB.

“Commodities Account” has the meaning specified in the Pledge and Security Agreement.

“Commodity Exchange Act” means the United States Commodity Exchange Act (7 U.S.C. §1 et seq.), as amended and in effect from time to time, and any successor statute.

“Commodity Futures Trading Commission” means the U.S. Commodity Futures Trading Commission, established by the Commodity Futures Trading Commission Act of 1974 (88 Stat. 1389, 7 U.S.C. §1-22), as amended and in effect from time to time, and any successor statute.

“Communications Law” means (a) the Communications Act of 1934, as amended, and any similar or successor federal statute, (b) the rules and regulations of the FCC promulgated under Title 47 of the U.S. Code of Federal Regulations, as may be amended or supplemented from time to time and decisions, policies, reports and orders issued pursuant to the adoption of such rules and regulations, (c) CALEA, (d) such other Laws of the United States codified or otherwise included in Title 47 of the U.S. Code as may be applicable to the conduct of the Business of the Loan Parties, (e) any other Law of any Governmental Authority with jurisdiction over telecommunications-related matters as may be applicable to the conduct of the Business of the Loan Parties or their Subsidiaries, including all Laws administered by any PUC with jurisdiction of any Loan Party or any of its Subsidiaries and (f) the terms and conditions of any License granted or issued to any Loan Party or any of its Subsidiaries.

“Compliance Certificate” means a certificate substantially in the form of Exhibit B, properly completed and signed by a Senior Officer of Borrower.

7

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consents” means all filings with and all Licenses, consents, approvals, authorizations, qualifications, waivers and orders of Governmental Authorities and other third parties, domestic or foreign, necessary to carry on each Loan Party’s or Subsidiary’s business or necessary (including to avoid a conflict or breach under any agreement, instrument, other document, license, permit or other authorization) for the execution, delivery or performance of this Agreement, any of the other Loan Documents or any of the Target Acquisition Documents, including any Consents required under all applicable federal, state or other applicable Law.

“Consolidated Basis” means, with respect to the financial statements or other financial information of a Person, the accounts and other items of such Person and its Subsidiaries on a consolidated basis in accordance with GAAP applied on a basis consistent with prior practices.

“Consolidating Basis” means, with respect to the financial statements or other financial information of a Person, the accounts and other items of such Person and its Subsidiaries on a consolidating basis in accordance with GAAP applied on a basis consistent with prior practices.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument or arrangement (whether in writing or otherwise) to which such Person is a party or by which it or any of such Person’s property is bound.

“Control Agreement” means a four-party deposit account, securities account or commodities account control agreement by and among the applicable Loan Party, Administrative Agent, Subordinated Praesidian Agent and the depository, securities intermediary or commodities intermediary, each in form and substance reasonably satisfactory in all respects to Administrative Agent and, in any event, providing to Administrative Agent “control” of such deposit account, securities or commodities account within the meaning of Articles 8 and 9 of the UCC, as applicable.

“Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.

“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.

“Corporate Allocation Payments” means intercompany payments made to Parent for allocation of expenses actually incurred related to management support, professional services incurred, rent or utilities as set forth in the projections provided to the Lenders in accordance with Section 6.01(g) and pursuant to rates which are available to any Lender upon request and are reasonable and customary.

“Credit Facility” means either the Term Loan Facility or the Revolving Loan Facility, as the context requires, and “Credit Facilities” means, collectively, each of the Term Loan Facility and the Revolving Loan Facility.

8

“Debt Payments” means and includes for any period, (a) the aggregate of scheduled principal payments of all Senior Indebtedness and Subordinated Debt made or to be made by the Borrower and its Subsidiaries during such period (or reductions in commitments on lines of credit to the extent such reductions caused the repayment of principal amounts then outstanding under such lines of credit), plus (b) all interest expense actually paid on the Senior Indebtedness and Subordinated Debt during such period, plus (c) all fees, commissions and charges with respect to the Senior Indebtedness and Subordinated Debt paid during such period.

“Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States of America or other applicable jurisdictions from time to time in effect affecting the rights of creditors generally.

“Default” means a condition, act or event that, after notice or lapse of time or both, would constitute an Event of Default if that condition, act or event were not cured or removed within any applicable grace or cure period.

“Default Rate” means, with respect to (a) a LIBOR Rate Loan, the LIBOR Rate, plus ten percent (10.0%) per annum, (b) with respect to a Base Rate Loan, the Base Rate, plus seven percent (7.0%) per annum and (c) with respect to all other Obligations, the Base Rate, plus seven percent (7.0%) per annum; in each case, to the fullest extent permitted by applicable Laws.

“Defaulting Lender” means, subject to Section 2.18, any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one (1) or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, Issuing Bank, Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified Borrower, Administrative Agent, Swingline Lender or Issuing Bank in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that on or after the Closing Date, (x) is the subject of a proceeding under any Debtor Relief Law, (y) has appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority or other Governmental Authority acting in such a or similar capacity, or (z) is the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Security in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and, subject to any cure rights expressly provided above, such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18) upon delivery of written notice of such determination to Borrower, Issuing Bank and each Lender.

9

“Deposit Account” has the meaning specified in the Pledge and Security Agreement.

“Designated Deposit Account” means, collectively, (i) a Deposit Account maintained by Parent with EWB designated as such in writing by Parent and Administrative Agent, (ii) a Deposit Account maintained by Borrower with EWB designated as such in writing by Parent and Administrative Agent, and (iii) a Deposit Account maintained by NBS with EWB designated as such in writing by Parent and Administrative Agent.

“Disposition” or “Dispose” means the conveyance, sale, transfer, lease or sub-lease (as lessor or sub-lessor), exchange or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal with or without recourse of any notes or accounts receivable or any rights and claims associated therewith.

“Dollar” and “$” means lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary of Borrower or any other Loan Party that is organized under the Laws of the United States of America, any state or territory thereof, or the District of Columbia and is not a direct or indirect Subsidiary of a Foreign Subsidiary.

“Earnings Before Interest and Taxes” means for any period the sum of (a) net income (or loss) of any Person on a Consolidated Basis for such period, plus (b) to the extent deducted in the determination of net income (or loss) for such period, (i) all interest expense of such Person on a Consolidated Basis for such period, including interest expense resulting from original issue discount and other amortization of debt discount as determined in accordance with GAAP, plus (ii) all charges against income of such Person on a Consolidated Basis for such period for federal, state and local income taxes, plus (iii) any non-cash expense of such Person on a Consolidated Basis associated with ASC Topic 350, ASC Topic 360, ASC Topic 480 or ASC Topic 815, plus (iv) any non-cash expenses of such Person on a Consolidated Basis associated with stock options, warrants or stock grants of such Person and its Subsidiaries, plus (v) any non-cash expenses incurred in connection with the early extinguishment of Indebtedness of the such Person or its Subsidiaries, plus (vi) any other unusual or one-time items which are mutually agreed upon by the Administrative Agent and Borrower. In addition, the calculation of Earnings Before Interest and Taxes for any period shall be adjusted to exclude (1) any aggregate net gain or loss arising from any permitted sale, conversion, exchange or other disposition of capital assets made during such period, including (A) all non-current assets, and (B) without duplication, the following assets, whether or not current: fixed assets, whether tangible or intangible, inventory sold in connection with the disposition of fixed assets and all Equity Securities and other securities, (2) any net gain from the collection during such period of any proceeds of life insurance policies, (3) any gain or loss (or other impact to the financial statements) arising from the repurchase during such period of Equity Securities and (4) any non-cash income or expense realized during such period relating to any Swap Contract.

10

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member County that is subject to the supervision of an EEA Resolution Authority; (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition; or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clause (a) or clause (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any member states of the European Union, United Kingdom, Iceland, Liechtenstein and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.04(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.04(b)(iii)).

“Environment” means the natural and man-made environment including all or any of the following media, namely air, water and land (including air within buildings and other natural or man-made structures above or below the ground) and any living organisms (including man) or systems supported by those media.

“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), whether pending or threatened in writing, by any Governmental Authority or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the Environment.

“Environmental Laws” means all Laws and Consents relating to public health and safety and protection of the Environment, threatened or endangered species, preservation or reclamation of natural resources, Releases or to health and safety matters

“Equity Security” or “Equity Securities” of any Person means (a) all common stock or shares, preferred stock or shares, participations in the stock or shares of such Person, partnership interests, membership interests or other ownership or equity interests in such Person (regardless of how designated and whether voting or nonvoting) and (b) all warrants, options and other rights to acquire any of the foregoing.

11

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, or any successor federal statute.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Borrower such that such trade or business, together with Borrower, is treated as a single employer within the meaning of Section 414 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in critical status (as defined in ERISA Section 305(b)(2)) or is in endangered status (as defined in ERISA Section 305(b)(1)); (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC under Section 4042 of ERISA to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) an event or condition that results or could reasonably be expected to result in the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, to Borrower or any ERISA Affiliate; (g) with respect to any Pension Plan, the failure to satisfy the minimum funding standards under Section 412 and Sections 430 through 432 of the Code and Section 302 and Sections 303 through 305 of ERISA (whether or not waived); (h) with respect to any Pension Plan, the occurrence of any event that would result in the imposition of any limitation under Section 436 of the Code or Section 206(g) of ERISA; or (i) a prohibited transaction with respect to a Plan (other than a Multiemployer Plan) that could subject Borrower or any ERISA Affiliate to any material liability under Section 4975 of the Code or Section 406 of ERISA.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislative Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

“Event of Default” means any of the events specified in Section 8.01.

“EWB” has the meaning specified in the introductory paragraph hereof.

“Excess Cash Flow” means, with respect to any fiscal period, for Borrower on a Consolidated Basis, an amount equal to (a) Adjusted EBITDA of Borrower on a Consolidated Basis thereof, plus (b) interest income, plus (c) any net gain from the collection during such period of any proceeds of life insurance policies, minus (d)(i) Fixed Charges actually paid during such period, (ii) voluntary repayment of the outstanding principal of the amount of the Term Loan, (iii) any non-cash compensation expenses added back to Adjusted EBITDA of Borrower on a Consolidated Basis and (iv) permitted Capital Expenditures of Borrower on a Consolidated Basis during such period which are not funded by borrowed money (but excluding from “borrowed money” proceeds of Revolving Loans), in each case, calculated for the then most recently completed four (4) fiscal quarters.

12

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor federal statute.

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest or Lien to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to Section 6(e) of the Guaranty and any and all Guaranties of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.

“Excluded Taxes” has the meaning specified in Section 3.01(a).

“Exposure Fees” has the meaning specified in Section 2.03(i).

“FATCA” means collectively, Section 1471 through Section 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any law implementing an intergovernmental agreement with respect to the foregoing entered into between a Governmental Authority of the United States of America and a Governmental Authority of the jurisdiction in which the applicable Recipient is resident.

“FCC” means the Federal Communications Commission and any successor or substitute Governmental Authority performing functions similar to those performed by the Federal Communications Commission on the date hereof.

“FCC License” means any License granted or issued by the FCC.

“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day; and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to EWB or any Lender which is a commercial bank organized under the Laws of the United States of America or any state thereof selected by Administrative Agent on such day on such transactions as determined by Administrative Agent.

13

“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, such Lien is prior to all other Liens on such Collateral, subject to any Permitted Lien which is prior as a matter of Law.

“First Tier Foreign Subsidiary” means, at any date of determination, each foreign Subsidiary in which Borrower or any of its Domestic Subsidiaries owns directly more than fifty percent (50%), in the aggregate, of the Equity Securities of such Subsidiary.

“Fixed Charge Coverage Ratio” means, with respect to any fiscal period, for the Borrower on a Consolidated Basis, the ratio of (a) Adjusted EBITDA of Borrower on a Consolidated Basis for such period, less Capital Expenditures of the Borrower on a Consolidated Basis during such period which are not funded by borrowed money (but excluding from “borrowed money” proceeds of Revolving Loans), less all taxes (whether federal, local, state, income or otherwise) actually paid by the Borrower on a Consolidated Basis during such period to (b) Fixed Charges; provided that for the four fiscal quarter period ending December 31, 2016, the Fixed Charges will be the Fixed Charges for such fiscal quarter multiplied by four (4), for the four (4) fiscal quarter period ending March 31, 2017, the Fixed Charges will be the Fixed Charges for the two (2) fiscal quarter period ending on such date multiplied by two (2), for the four (4) fiscal quarter period ending June 30, 2017, the Fixed Charges will be the Fixed Charges for the three (3) fiscal quarter period ending on such date multiplied by one and one third (1.3).

“Fixed Charges” means the sum of (a) Debt Payments and (b) all payments made pursuant to, or in respect of, the Seller Specified Obligations, in each case made or scheduled to be made by the Borrower on a Consolidated Basis during such period, plus (c) payments made by the Borrower on a Consolidated Basis during such fiscal period on account of Capital Lease Obligations.

“Foreign Subsidiary” means any (a) Subsidiary that is (i) treated as a corporation for U.S. federal income tax purposes and (ii) is not a United States persons for U.S. federal income tax purposes; and (b) Foreign Subsidiary HoldCo.

“Foreign Subsidiary HoldCo” means any Domestic Subsidiary all or substantially all of whose assets consist of Equity Securities in or indebtedness of one or more Subsidiaries that (a) is treated as a corporation for U.S. federal income tax purposes and (b) is not United States persons for U.S. federal income tax purposes.

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to Issuing Bank, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Obligation as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swingline Lender, such Defaulting Lender’s Pro Rata Share of the Swingline Commitment and, without duplication, the aggregate of all Unpaid Swingline Amounts other than as to which such Defaulting Lender’s Pro Rata Share or participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

14

“Fronting Fees” has the meaning specified in Section 2.03(i).

“Funding Date” means the date of the making of a Borrowing or Letter of Credit Extension.

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession, that are applicable to the circumstances as of the date of determination, consistently applied.

“Governmental Authority” means (a) any international, foreign, federal, state, provincial, territorial, municipal, local, national or other government, governmental or quasi-governmental department, commission, board, bureau, court, agency, taxing authority, regulatory body or authority (including a national securities exchange), central bank, public body or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to any government, court, regulation or compliance, in each case whether associated with a state or territory of the United States, the United States or any other foreign entity or government and (b) any corporation or other entity owned or controlled, through stock or capital ownership or otherwise by any of the foregoing.

“Governmental Authorizations” means any permit, license, certificate, authorization, plan, directive, consent, consent order or consent decree of or from any Governmental Authority, including the Licenses.

“Guarantor” means Parent and each Domestic Subsidiary of Parent in existence on the date hereof and designated as a Guarantor on Schedule 5.01 and each other Subsidiary that may from time to time deliver a Guaranty hereafter pursuant to the terms of Section 6.18.

“Guaranty” means that certain Guaranty, substantially in the form of Exhibit H, from each Guarantor in favor of Administrative Agent and each Secured Party, together with any other Guaranty executed pursuant to the terms of Section 6.18, as the same may from time to time be amended, modified or supplemented.

“Guaranty Obligation” means, as to any Person, any (a) guaranty by such Person of Indebtedness of, or other obligation payable or performable by, any other Person; or (b) assurance, agreement, letter of responsibility, letter of awareness, undertaking or arrangement given by such Person to an obligee of any other Person with respect to the payment or performance of an obligation by, or the financial condition of, such other Person, whether direct, indirect or contingent, including any purchase or repurchase agreement covering such obligation or any collateral security therefor, any agreement to provide funds (by means of loans, capital contributions or otherwise) to such other Person, any agreement to support the solvency or level of any balance sheet item of such other Person or any “keep-well” or other arrangement of whatever nature, in each such case, given for the purpose of assuring or holding harmless such obligee against loss with respect to any obligation of such other Person; provided, however, that the term “Guaranty Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, covered by such Guaranty Obligation or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the Person in good faith.

15

“Hazardous Materials” means any chemical, pollutant, contaminant, pesticide, petroleum or petroleum product or byproduct, radioactive substance, solid waste (hazardous or extremely hazardous), special, dangerous or toxic waste, hazardous or toxic substance, chemical or material regulated, listed, referred to, limited or prohibited under any Environmental Law, including without limitation those which could pose a hazard to the Environment, or the health or safety of any Person or materially impair the use or value of any portion of any real property owned or leased by any of the Loan Parties or any of their Subsidiaries.

“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.

“Hedging Bank” means any Person that at the time it enters into a Hedging Transaction is and remains a Lender or Administrative Agent or an Affiliate of a Lender (who at the time such Affiliate entered into such Hedging Transaction was a Lender and remains a Lender) or Administrative Agent (who at the time such Affiliate entered into such Hedging Transaction was Administrative Agent or a Lender and remains Administrative Agent or a Lender).

“Hedging Obligations” of any Person means any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (a) any and all Hedging Transactions, (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Hedging Transactions and (c) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions.

“Hedging Transaction” of any Person means (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into by such Person that is a Swap Contract, spot transaction, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether or not any such transaction is governed by or subject to any Master Agreement (as defined below) and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of Master Agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

16

“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the Law applicable to any Lender which are presently in effect or, to the extent allowed by Law, under such applicable Laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable Laws now allow.

“Honor Date” has the meaning specified in Section 2.03(c)(i).

“Indebtedness” means, as to any Person at any date of determination, the following items:

(a)          all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

(b)          any direct or contingent obligations of such Person arising under letters of credit (including standby and commercial letter of credit), banker’s acceptances, bank guaranties, surety bonds and similar instruments;

(c)          whether or not so included as liabilities in accordance with GAAP but excluding any portion thereof which would be accounted for as interest under GAAP, net obligations under any Swap Contract in an amount equal to (i) if such Swap Contract has been closed out, the termination value thereof, or (ii) if such Swap Contract has not been closed out, the mark-to- market value thereof determined on the basis of readily available quotations provided by any recognized dealer in such Swap Contract;

(d)          whether or not so included as liabilities in accordance with GAAP and whether with or without recourse, all obligations of such Person to pay the deferred purchase price of property or services, and all indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements); provided that, this clause (d) shall not include the Seller Specified Obligations;

(e)          the aggregate amount of all Capital Lease Obligations of such Person;

(f)          the principal component or liquidation preference of all Equity Securities of such Person and which by the terms thereof could at any time prior to the Maturity Date (at the request of the holders thereof or otherwise) be subject to mandatory sinking fund payments, mandatory redemption or other acceleration;

(g)          all Guaranty Obligations of such Person in respect of any of the foregoing obligations of any other Person; and

(h)          all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar obligations;

17

provided that for all purposes of this Agreement, Indebtedness shall exclude (i) trade and other accounts payable incurred in the ordinary course of business in accordance with customary trade terms and which are not overdue for a period of more than ninety (90) days (unless contested in good faith by Borrower or any Subsidiary), (ii) deferred Taxes, and (iii) accrued interest and expenses, except to the extent capitalized.

For all purposes of this Agreement, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (to the extent the joint venture is a legal entity where the venture members have pass-through liability for all of the debts of the joint venture) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person (subject to customary recourse exceptions acceptable to Administrative Agent).

“Indemnified Taxes” has the meaning specified in Section 3.01(a).

“Indemnitee Agent Party” has the meaning specified in Section 9.06.

“Indemnitees” has the meaning specified in Section 10.02(b).

“Information” means all information received from the Loan Parties relating to the Loan Parties or their Subsidiaries or the Business, other than any such information that is available to Administrative Agent, any Lender or Issuing Bank on a non-confidential basis prior to disclosure by a Loan Party other than as a result of a breach of Section 10.15; provided that, in the case of information received from a Loan Party after September 14, 2016, such information is clearly identified at the time of delivery as confidential.

“Installment” has the meaning specified in Section 2.12.

“Intellectual Property” means (a) all inventions and discoveries (whether patentable or not patentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications and patent disclosures, industrial designs, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (b) all trademarks, service marks, domain names, trade dress, logos, trade names and corporate names, together with all translations, adaptations, derivations and combinations thereof and including all goodwill associated therewith; (c) all copyrightable works, all copyrights and all applications, registrations and renewals in connection therewith; (d) all broadcast rights; (e) all mask works, designs, industrial designs, and all applications, registrations and renewals in connection therewith; (f) all know-how, trade secrets and confidential business information, whether patentable or unpatentable and whether or not reduced to practice (including ideas, research and development, know-how, formulas, compositions and manufacturing and production process and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals); (g) all computer software (including data and related documentation); (h) all other proprietary rights; (i) all copies and tangible embodiments thereof (in whatever form or medium); and (j) any rights or licenses to or from a third party in connection therewith.

18

“Intellectual Property Security Agreement” means that certain Intellectual Property Security Agreement, dated as of the Closing Date, in substantially the form of Exhibit J, entered into by Borrower (and, as the case may be, each Guarantor), as Debtor(s), and Administrative Agent (for the benefit of the Secured Parties), as Secured Party, securing the Obligations of Borrower (and, as the case may be, the obligations of each Guarantor), as the same may from time to time be amended, modified or supplemented.

“Interest Payment Date” means, with respect to (a) a Base Rate Loan (i) the last Business Day of each month, commencing on the first such date to occur in the month immediately after the Closing Date and (ii) the Maturity Date; and (b) any LIBOR Rate Loan (i) the last day of each Interest Period applicable to the Class for such Loan and (ii) the Maturity Date; provided, however, that if any Interest Period for a LIBOR Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates.

“Interest Period” means, in connection with a LIBOR Rate Loan, an interest period of one (1), two (2), three (3) or six (6) months, as selected by Borrower in the applicable Notice of Borrowing or Conversion/Continuation Notice, (a) initially, commencing on the Closing Date or Conversion/Continuation Date thereof, as the case may be; and (b) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (i) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) of this definition, end on the last Business Day of a calendar month; and (iii) no Interest Period with respect to any portion of any applicable Class of Loans shall extend beyond the Maturity Date.

“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.

“Investment” means, as to any Person, any investment by such Person, whether by means of the purchase or other acquisition of the Equity Securities of any other Person or by means of a loan, creating a debt, capital contribution, guaranty or other debt or equity participation or interest in any other Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later versions thereof as may be in effect at the time of issuance).

“IRS” means the United States Internal Revenue Service.

“Issuer” has the meaning specified in Section 8.01(o).

“Issuer Documents” means, with respect to each Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by Issuing Bank and Borrower (or any other Loan Party) or in favor of Issuing Bank and relating to such Letter of Credit.

19

“Issuing Bank” means, collectively (unless otherwise expressly indicated or unless the context otherwise requires), EWB, in its capacity as an issuer of Letters of Credit hereunder, any additional Issuing Bank that agrees to be an issuer of Letters of Credit hereunder as mutually agreed to by Borrower and Administrative Agent and any successor issuer of Letters of Credit hereunder.

“Joinder Agreement” means that certain Joinder Agreement, in substantially the form of Exhibit I, entered into by Borrower, the existing Guarantors, each other Subsidiary of a Loan Party that may from time to time be required to deliver a Guaranty hereafter pursuant to Section 6.18, and Administrative Agent (for the benefit of the Secured Parties).

“Law” or “Laws” means all international, foreign, federal, state, provincial, territorial, municipal, local, national or other governmental or quasi-governmental statutes, treaties, rules, guidelines, regulations, ordinances, codes, orders, injunctions, writs, decrees, bonds, judgments, administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations, approvals and permits of, and settlements and other agreements with, any Governmental Authority, in each case whether or not having the force of Law.

“Lender” and “Lenders” means each person identified as a “Lender” on the signature pages hereto, together with their respective successors and assigns as permitted by this Agreement. Unless otherwise expressly indicated or unless the context otherwise requires, the term “Lender” shall include Issuing Bank and the Swingline Lender.

“Letter of Credit” means any standby letter of credit or commercial letter of credit issued hereunder.

“Letter of Credit Advance” means, with respect to each Revolving Loan Lender, such Lender’s funding of its participation in any Letter of Credit Borrowing in accordance with its Revolving Loan Exposure.

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by Issuing Bank.

“Letter of Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Loan Borrowing.

“Letter of Credit Expiration Date” means the day that is thirty (30) days prior to the Maturity Date then in effect for the Revolving Loans (or if such day is not a Business Day, the next succeeding Business Day).

“Letter of Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase in the amount thereof.

“Letter of Credit Fee” has the meaning specified in Section 2.03(i).

20

“Letter of Credit Obligations” means, as of any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all Letter of Credit Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined by Section 1.07. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“Letter of Credit Sublimit” means an aggregate amount equal to $1,000,000. The Letter of Credit Sublimit is a part of, and not in addition to, the Revolving Loan Facility.

“LIBOR Rate” means for any LIBOR Rate Loan for the then current Interest Period relating thereto, the interest rate per annum determined by the Administrative Agent by dividing (a) the rate published each Business Day as The Wall Street Journal (Eastern Edition) “LIBOR”, and quoted in the “Money Rates” column of The Wall Street Journal (Eastern Edition) (or, if The Wall Street Journal (Eastern Edition) ceases to publish such rate or an equivalent on a regular basis, Administrative Agent shall notify Borrower and Administrative Agent and Borrower will agree upon a substitute regularly published LIBOR to be used to determine the “LIBOR Rate”) two (2) Business Day prior to the commencement of such Interest Period, as the London interbank offered rate for a one-month, three-month, or six-month period, as applicable to such Interest Period, by (b) a number equal to (i) if any Lender is subject to the LIBOR Reserve Requirements, 1.00 minus the LIBOR Reserve Requirements and (ii) if no Lender is subject to the LIBOR Reserve Requirements, 1.00. Notwithstanding the foregoing, the “LIBOR Rate” shall not be less than 0% per annum.

“LIBOR Rate Loan” means a Loan bearing interest at a rate determined by reference to the LIBOR Rate.

“LIBOR Reserve Requirements” means, for any day as applied to a LIBOR Rate Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under any regulations of the Board of Governors or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for LIBOR funding (currently referred to as “Eurocurrency liabilities” in Regulation D) maintained by a member bank of the United States Federal Reserve System.

“License” means license, permit, consent, certificate, franchise, approval, waiver, registration or authorization related to the Business granted or issued by the FCC, any applicable PUC or other Governmental Authority with jurisdiction over telecommunications related matters.

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement (including in the nature of, cash collateral accounts or security interests), encumbrance, lien (statutory or other), claim, fixed or floating charge, or other security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable Laws of any jurisdiction), including the interest of a purchaser of a material portion of a seller’s accounts receivable.

21

“Liquidity” means, as of the date of determination, the result of (a) aggregate available Revolving Loan Commitments, provided that, as of such date of determination, each of the conditions precedent set forth in Section 4.02 are satisfied plus (b) the unrestricted cash and Cash Equivalents on deposit in or held in all Deposit Accounts and Securities Accounts of any Loan Party on such date of determination.

“Loan(s)” means an extension of credit by a Lender to Borrower under Section 2 hereof in the form of a Revolving Loan, a Swingline Loan or a Term Loan.

“Loan Documents” means this Agreement, each Notice of Borrowing, each Conversion/Continuation Notice, each Note, each Guaranty, each Security Document, each Subordination Agreement, any Joinder Agreement, each Collateral Access Agreement, the Perfection Certificate, and each certificate, fee letter, and other instrument, document or agreement from time to time executed by Borrower or any of its Subsidiaries or any Senior Officer and delivered in connection with this Agreement (but specifically excluding any Secured Treasury Management Agreement or other document or agreement evidencing any Secured Hedging Obligation).

“Loan Party” means any of the Borrower, Parent and each other Guarantor and “Loan Parties” means, collectively, Borrower, Parent and each other Guarantor.

“Master Agreement” has the meaning specified in the definition of “Hedging Transaction”.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the assets, properties, operations, business, condition (financial or otherwise), or prospects of the Business, any Loan Party or any of its Subsidiaries, or (b) a material impairment of the ability of any Loan Party to perform its Obligations under any Loan Document to which it is a party, or (c) a material adverse effect upon the legality, validity, binding effect, or enforceability against each Loan Party of any Loan Document to which it is a party.

“Material Contract” means each contract, agreement, commitment and other Contractual Obligations of any Loan Party or any of their Subsidiaries, whether written or oral, other than (a) the Loan Documents, (b) purchase orders in the ordinary course of business, and (c) any other contract, agreement, commitment and other Contractual Obligation of any Loan Party or any of Subsidiary that (i) does not extend beyond one (1) year, (ii) does not involve the receipt or payment of not more than $500,000 and (iii) the loss of which could not reasonably be expected to have a Material Adverse Effect.

“Maturity Date” means (a) with respect to the Revolving Loan, November 12, 2021 and (b) with respect to the Term Loan, November 12, 2021, or, in each case, such earlier date upon which the Commitments may be terminated and/or the Obligations may be accelerated in accordance with the terms of this Agreement; provided that, notwithstanding anything to the contrary set forth herein, the Maturity Date shall be at least one hundred eighty-one (181) days prior the earliest Maturity Date (or similar term) of any Subordinated Debt.

22

“McCrosson Agreement” means the Agreement, to be dated on or about November 18, 2016, among NBS, Solutions Express Ltd. and Technology Opportunities Group Ltd. in form and substance consistent with the draft of the Agreement delivered by Borrower to Administrative Agent on November 1, 2016 with only such modifications as could not reasonably be expected to be adverse to the interests of the Lenders in any material respect.

“Minimum Collateral Amount” means, at any time, with respect to Cash Collateral, (a) an amount equal to one hundred three percent (103%) of the Fronting Exposure of Issuing Bank with respect to any Letter of Credit issued and outstanding at such time, (b) an amount equal to one hundred three percent (103%) of the Fronting Exposure of the Swingline Lender and (c) otherwise, an amount determined by Administrative Agent, Swingline Lender and Issuing Bank in their sole discretion.

“Moody’s” means Moody’s Investor Services, Inc.

“Multiemployer Plan” means any Plan of the type described in Section 4001(a)(3) of ERISA.

“NBS” means Network Billing Systems, L.L.C., a New Jersey limited liability company.

“Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (a) cash payments (including any cash or Cash Equivalents received by way of a deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by any Loan Party or any of its Subsidiaries from such Asset Sale, minus (b) any direct costs incurred in connection with such Asset Sale, including (i) income, gains or transfer Taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale (it being agreed that until such Taxes are actually paid, for purposes of this clause (i) a reasonable, good faith estimate of the amount of such Taxes will suffice); (ii) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the Equity Securities or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale; (iii) a reasonable reserve for any purchase price adjustments, indemnification or similar payments (fixed or contingent) attributable to seller’s obligations, indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by such Loan Party or such Subsidiary in connection with such Asset Sale; and (iv) Attorney Costs and other reasonable fees and expenses of accountants, investment bankers, financial advisors, brokers and other professionals.

“Net Insurance/Condemnation Proceeds” means an amount equal to: (a) any cash (or Cash Equivalents) payments or proceeds received by any Loan Party or any of its Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder or (ii) as a result of the taking of any assets of any Loan Party or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) (i) any costs incurred by such Loan Party or such Subsidiary in connection with the adjustment or settlement of any claims of such Loan Party or such Subsidiary in respect thereof, and (ii) any costs incurred in connection with any sale of such assets as referred to in clause (a)(ii) of this definition, including income, gains or transfer Taxes payable as a result of any gain recognized in connection therewith (it being agreed that until such Taxes are actually paid, for purposes of this clause (b)(ii) a reasonable, good faith estimate of the amount of such Taxes will suffice).

23

“New Mortgage” has the meaning specified in Section 6.14.

“Non-Consenting Lender” means (a) at any time that there are three or more Lenders, any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.03 and (ii) has been approved by the Requisite Lenders; and (b) at any time that there are fewer than three Lenders, any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of Requisite Lenders, all Lenders or all affected Lenders in accordance with the terms of Section 10.03 and (ii) has been approved by one or more Lenders having in the aggregate Loans and Commitments representing more than 50% of the Loans and Commitments of all Lenders; provided that, the Loans and Commitments of all Lenders shall be calculated without giving effect to the Loans and Commitments of any Defaulting Lender.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).

“Non U.S. Lender” has the meaning specified in Section 3.01(f).

“Note” means a promissory note made by Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit D-l, Exhibit D-2, or Exhibit D-3 as applicable (collectively, the “Notes”).

“Notice of Borrowing” has the meaning specified in Section 4.02(a).

“Obligations” means, with respect to each Loan Party, (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Borrowing or Letter of Credit, (b) all obligations of any Loan Party owing to a Treasury Management Bank or a Hedging Bank in respect of Secured Treasury Management Agreements or Secured Hedging Obligations, in the case of each of clauses (a) and (b), whether direct or indirect (including those acquired by assumption), absolute or contingent, joint or several, due or to become due, now existing or hereafter arising, including under any amendments, extensions, renewals or increases and all obligations of any Loan Party to the Secured Parties to perform acts or refrain from taking any action, and including interest and fees that accrue after maturity or after the commencement of any proceeding under any Debtor Relief Laws by or against any Loan Party regardless of whether such interest or fees are allowed claims in such proceeding; provided however, that the “Obligations” of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.

“Opus Credit Agreement” has the meaning specified in the first recital to this Agreement.

24

“Ordinary Course Dispositions” means:

(a)          Dispositions of inventory in the ordinary course of business;

(b)          Dispositions of damaged, obsolete, surplus or worn out property in the ordinary course of business;

(c)          Dispositions among the Loan Parties (other than the Parent); and

(d)          Dispositions of real property interests in the form of subleases in the ordinary course of business.

“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate or articles of organization or formation and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership or joint venture agreement and any other agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the jurisdiction of its formation, in each case as amended from time to time.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” has the meaning specified in Section 3.01(b).

“Parent” means Fusion Telecommunications International, Inc., a Delaware corporation.

“Participant” has the meaning specified in Section 10.04(d).

“Participant Register” has the meaning specified in Section 10.04(d).

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto established under ERISA.

“Pension Plan” means any Plan (other than a Multiemployer Plan) that is subject to Title IV of ERISA or the minimum funding requirements under Section 412 of the Code, and that Borrower or any ERISA Affiliate sponsors, maintains, contributes or has an obligation to contribute to or has sponsored, maintained, contributed or had an obligation to contribute to within the last five (5) years, or with respect to which Borrower or any ERISA Affiliate has any obligation or liability.

“Perfection Certificate” means that certain Perfection and Diligence Certificate, dated as of the Closing Date, executed by the Loan Parties, and in substantially the form of Exhibit F-1 or that certain annual Perfection and Diligence Certificate delivered from time to time pursuant to Section 6.01(j) in substantially the form of Exhibit F-2.

25

“Permitted Liens” means:

(a)          Liens in favor of Administrative Agent, for the benefit of itself and the other Secured Parties, pursuant to any Loan Document;

(b)          Liens for Taxes, assessments or other governmental charges not delinquent or being Properly Contested;

(c)          deposits or pledges to secure obligations under worker’s compensation, social security or similar Laws, or under unemployment insurance;

(d)          deposits or pledges to secure bids, tenders, contracts (other than contracts for borrowed money), leases, statutory obligations, surety, litigation and appeal bonds and other obligations of like nature arising in the ordinary course of business;

(e)          Liens arising by virtue of the rendition, entry or issuance against any Loan Party or any of its Subsidiaries, or any property of any such Person, of any judgment, writ, order or decree, provided that such Liens are in existence for less than twenty (20) consecutive days after they first arise or are being Properly Contested;

(f)          carriers’, warehousemen’s, repairmen’s, landlord’s, mechanics’, workers’, materialmen’s or other like Liens arising in the ordinary course of business with respect to obligations which are not due or which are being Properly Contested;

(g)          Liens placed upon equipment or real property hereafter acquired or leased to secure a portion of the purchase price or lease thereof, provided that (i) any such Lien shall not encumber any other property of the Loan Parties or their Subsidiaries and (ii) the aggregate amount of Indebtedness incurred as a result of such purchases, during any fiscal year, shall not exceed the amount provided for in Section 7.07(c);

(h)          Liens disclosed on Schedule 7.02;

(i)          non-exclusive licenses of Intellectual Property and leases or sub-leases of equipment or Real Property, in each case granted to third Persons in the ordinary course of business and which do not interfere in any material respect with the operations of the business of the Loan Parties or their Subsidiaries;

(j)          subject to the provisions of the Subordination Agreements, Liens in favor of the holders of the Subordinated Debt pursuant to the Praesidian Facility;

(k)          Liens on cash and Cash Equivalents securing obligations in respect of Hedging Transactions permitted under Section 7.21;

(l)          easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of any Person;

26

(m)        attachment, judgment or other similar Liens arising in connection with litigation or other legal proceedings (and not otherwise constituting an Event of Default hereunder) in the ordinary course of business, being Properly Contested and no item or portion of property of any Loan Party or any Subsidiary of any Loan Party is in jeopardy of being seized, levied upon or forfeited as a result thereof;

(n)          Liens arising from sub-leasehold interests; the rights of licensors of real property interests under licenses under which Borrower or a Subsidiary is the licensee, and licenses granted in the ordinary course of business and not interfering in any material respect with the business of the licensor;

(o)          Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties and in connection with the importation of goods in the ordinary course of Borrower’s and its Subsidiaries’ businesses that are promptly paid on or before the date they become due;

(p)          Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by such Loan Party in excess of those set forth by regulations promulgated by its Board, and (ii) such deposit account is not intended by any Loan Party or any Subsidiary of any Loan Party to provide collateral to the depository institution; and

(q)          purported Liens evidenced by the filing of UCC precautionary financing statements relating to operating leases entered into in the ordinary course of business, not otherwise prohibited under this Agreement and applying only to assets of the purported secured party being leased by the purported debtor.

“Person” means any individual, trustee, corporation, general partnership, limited partnership, limited liability company, joint stock company, trust, unincorporated organization, bank, business association, firm, joint venture, or Governmental Authority or other entity of any kind and shall include any successor (by merger or otherwise) of such entity.

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including any Pension Plan or any Multiemployer Plan) that any Borrower or ERISA Affiliate sponsors, maintains, contributes or has an obligation to contribute to or with respect to which Borrower or any ERISA Affiliate otherwise has any obligation or liability.

“Platform” has the meaning specified in Section 10.01(c).

“Pledge and Security Agreement” means the Pledge and Security Agreement, substantially in the form of Exhibit G, by and among the Loan Parties party thereto from time to time, as Grantors(s), and Administrative Agent (for the benefit of the Secured Parties), as Secured Party, securing the Obligations, as the same may from time to time be amended, modified or supplemented.

27

“Praesidian Facility” means that certain Fifth Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of the Closing Date, by and among Borrower, Parent, certain Subsidiaries of Borrower party thereto, Subordinated Praesidian Agent, Praesidian Capital Opportunity Fund III-A, LP, and United Insurance Company of America.

“Praesidian Subordination Agreement” means that certain Subordination Agreement, substantially in the form of Exhibit E-l, dated as of the Closing Date, by and among Administrative Agent, Loan Parties and the Subordinated Praesidian Agent.

“Prepayment Notice” has the meaning specified in Section 2.13(b).

“Prime Rate” means an independent index, as published each Business Day as The Wall Street Journal (Eastern Edition) “Prime Rate”, and quoted in the “Money Rates” column of The Wall Street Journal (Eastern Edition) or, if The Wall Street Journal (Eastern Edition) ceases to publish such rate or an equivalent on a regular basis, Administrative Agent shall notify Borrower and Administrative Agent and Borrower will agree upon a substitute regularly published average prime rate to be used to determine the “Prime Rate”. Notwithstanding the foregoing, the “Prime Rate” shall not be less than 0% per annum.

“Pro Rata Share” means (a) with respect to all payments, computations and other matters relating to the Term Loan Commitment or Term Loans of any Lender, the percentage obtained by dividing (i) the Term Loan Exposure of that Lender, by (ii) the aggregate Term Loan Exposure of all Lenders; and (b) with respect to all payments, computations and other matters relating to the Revolving Loan Commitment or Revolving Loans of any Lender, the percentage obtained by dividing (i) the Revolving Loan Exposure of that Lender, by (ii) the aggregate Revolving Loan Exposure of all Lenders; provided that in each case, for matters relating to voting, approval, consent, amendment, modification, termination, or waiver rights hereunder. “Pro Rata Share” shall be calculated without giving effect to any Defaulting Lender or any Affiliate of Parent or its Subsidiaries. For all other purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (1) an amount equal to the sum of the Term Loan Exposure and the Revolving Loan Exposure by (2) an amount equal to the sum of the aggregate Term Loan Exposure, and the aggregate Revolving Loan Exposure.

“Proceeding Party” has the meaning specified in Section 10.21.

“Properly Contested” means contested in good faith by appropriate proceedings diligently conducted which stay the enforcement of any Lien and for which adequate reserves in accordance with GAAP are being maintained by the Loan Parties and their Subsidiaries; provided, that no such Lien shall have any effect on the priority of the Liens in favor of Administrative Agent for its benefit and for the ratable benefit of Secured Parties or the value of the assets on which Administrative Agent has such a Lien and a stay of enforcement of any such Lien shall be in effect.

“PUC” means any state or other local public utility commission, franchising authority, or similar regulatory agency or body that has jurisdiction over telecommunications related matters.

28

“PUC License” means any License granted or issued by any PUC.

“Purchase Money Indebtedness” means and includes (a) Indebtedness (other than Indebtedness under this Agreement or any other Loan Document) of any Loan Party for the payment of all or any part of the purchase price of any equipment, (b) any Indebtedness (other under this Agreement or any other Loan Document) of any Loan Party incurred at the time of or within thirty (30) days prior to or one hundred twenty (120) days after the acquisition of any equipment for the purpose of financing all or any part of the purchase price thereof (whether by means of a loan agreement, Capital Lease or otherwise), and (c) any renewals, extensions or refinancings (but not any increases in the principal amounts) thereof outstanding at the time.

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time any guaranty or grant of security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell, support or other agreement under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Recipient” means (a) Administrative Agent, (b) any Lender and (c) Issuing Bank, as applicable.

“Register” has the meaning specified in Section 10.04(c).

“Regulatory Assessment” means any payment, fee, charge, assessment or other amount required to be paid to or enforced by a U.S. federal, state or local Governmental Authority or any non-U.S. Governmental Authority to finance regulatory funding mechanisms that support such Governmental Authorities (for example, FCC regulatory fees including but limited to international bearer circuit and interstate telephone service provider fees), United States state or federal universal service funds, telecommunications relay service, local number portability, administration of the North American Numbering Plan, and emergency calling services.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor Environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater, whether intentional or unintentional.

“Removal Effective Date” has the meaning specified in Section 9.08(b).

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, for which the reporting requirement has not been waived.

29

“Requisite Lenders” (a) at any time that there are fewer than three Lenders, Lenders (other than Defaulting Lenders) having Loans and Commitments representing 100% of the Loans and Commitments of all Lenders and (b) at any time that there are three or more Lenders, (i) if EWB and its Affiliates hold in the aggregate more than sixty-six percent (66%) of the Loans and Commitments of all Lenders and there are five or fewer Lenders (including EWB and its Affiliates), Lenders (other than Defaulting Lenders) having Loans and Commitments representing 100% of the Loans and Commitments of all Lenders, (ii) if EWB and its Affiliates do not hold in the aggregate more sixty-six percent (66%) of the Loans and Commitments of all Lenders but hold more than fifty percent (50%) of the Loans and Commitments of all Lenders or if EWB and its Affiliates hold in the aggregate more than sixty-six percent (66%) of the Loans and Commitments of all Lenders and there are more than five Lenders, Lenders (other than Defaulting Lenders) having Loans and Commitments representing more than fifty percent (50%) of the Loans and Commitments of all Lenders and of all Lenders other than the Loans and Commitments held by EWB and its Affiliates, and (iii) at all other times, Lenders (other than Defaulting Lenders) having Loans and Commitments representing more than fifty percent (50%) of the Loans and Commitments of all Lenders; provided that, the Loans and Commitments of all Lenders shall be calculated without giving effect to the Loans and Commitments of any Defaulting Lender.

“Resignation Effective Date” has the meaning specified in Section 9.08(a).

“Restricted Payment” means:

(a) any dividend or other distribution, direct or indirect (whether in cash or property), on account of any Equity Securities of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, except a dividend payable solely in shares of that class of Equity Securities to the holders of that class;

(b) any payment or prepayment of principal of, premium, if any, or interest on, or any redemption, conversion, exchange, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Securities of any Loan Party or any of its Subsidiaries now or hereafter outstanding, or the issuance of a notice of an intention to do any of the foregoing (or setting aside any funds for any of the foregoing purposes);

(c) any payment or prepayment of interest on, principal of, premium, if any, redemption, conversion, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Indebtedness subordinated to the Indebtedness existing pursuant to this Agreement or the other Loan Documents, other than, as expressly permitted under the terms of the applicable Subordination Agreement or other subordination agreement to which Administrative Agent and/or Lenders are a party;

(d) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any Equity Securities of any Loan Party or any of its Subsidiaries now or hereafter outstanding;

30

(e) any director fee paid to any member of the Board of Directors of any Loan Party who is also an employee of any Loan Party;

(f) any payments to Parent; and

(g) any payments to the sellers of the Target Company, except pursuant to the terms and conditions of the Target Acquisition Agreement, as in effect on the Closing Date.

“Revolving Loan” means, separately, and “Revolving Loans” means, collectively all Revolving Loans or any Revolving Loan made by or Revolving Loan Exposure of the Lenders or one of the Lenders to Borrower pursuant to Section 2.02(a) and includes Letters of Credit and the Letter of Credit Sublimit and Swingline Loans and the Swingline Commitment.

“Revolving Loan Commitment” means, the commitment of certain of the Lenders to make Revolving Loans and “Revolving Loan Commitments” means such commitments of all such Lenders in the aggregate. The amount of each Lender’s Revolving Loan Commitment, if any, is set forth on Appendix A or in the applicable Assignment and Assumption Agreement. The aggregate amount of the Revolving Loan Commitments as of the Closing Date is $5,000,000.

“Revolving Loan Commitment Fee Rate” means 0.50% per annum.

“Revolving Loan Exposure” means, as to any Revolving Loan Lender at any time, the aggregate principal amount at such time of (i) its outstanding Revolving Loans (ii) such Revolving Loan Lender’s participation in Letter of Credit Obligations and (iii) such Revolving Loan Lender’s participation in Swingline Obligations.

“Revolving Loan Facility” means the Revolving Loan facility established pursuant to Section 2.02(a) and includes the Letter of Credit Sublimit and the Swingline Commitment.

“Revolving Loan Facility Unused Commitment Fee” has the meaning specified in Section 2.11(a).

“Revolving Loan Lender” means each Lender having a Revolving Loan Commitment or Revolving Loan Exposure, or who has funded or purchased all or a portion of a Revolving Loan in accordance with the terms of this Agreement.

“Revolving Loan Note” means a promissory note substantially in the form of Exhibit D-2 evidencing the Revolving Loans.

“Rosen Shareholder Note” means the Second Amended and Restated Unsecured Promissory Note in the original principal amount of $928,081.18, dated as of the Closing Date, made by Parent in favor of Marvin Rosen, which note is subject to the Rosen Subordination Agreement.

“Rosen Subordination Agreement” means that certain Intercreditor and Subordination Agreement, in substantially the form of Exhibit E-2, dated as of the Closing Date by and among Administrative Agent, Loan Parties and Marvin Rosen.

31

“S&P” means Standard & Poor’s Financial Services LLC, a division of The McGraw Hill Companies, Inc., and any successor thereto.

“Sanctioned Country” means, at any time, a country, territory or sector that is, or whose government is, the subject or target of Sanctions or that is, or whose government is, the subject of any list-based or territorial or sectorial Sanctions.

“Sanctioned Person” means, at any time (a) a Person that is listed on any Sanctions-related list of designated Persons maintained by any Governmental Authority; (b) any Person operating, organized or resident in a Sanctioned Country; (c) any Person that is otherwise the subject of any Sanctions; or (d) any Person, directly or indirectly, fifty percent (50%) or more in the aggregate owned by, otherwise controlled by, or acting for the benefit or on behalf of, any Person or Persons described in clause (a), (b) or (c) of this definition.

“Sanctions” means any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time, in each case, by any Governmental Authority applicable to any Loan Party, any of its Subsidiaries, Administrative Agent, or any Lender, Issuing Bank or Participant; provided that, in the case of any non-U.S. Participant, any Governmental Authority applicable solely to one (1) or more Participants shall only be included within the scope of the definition of “Sanctions” if Borrower has received written notice from Administrative Agent, any Lender or any Participant of such Governmental Authority being applicable to a Participant.

“Secured Hedging Obligation” means any Hedging Obligation permitted under Section 7.21 between Borrower and any Hedging Bank; provided, that for any of the foregoing to be included as a “Secured Hedging Obligation” on any date of determination by Administrative Agent, the applicable Hedging Bank (other than Administrative Agent or an Affiliate of Administrative Agent) must have delivered a Secured Party Designation Notice to Administrative Agent prior to such date of determination.

“Secured Parties” means any of Administrative Agent, the Lenders, Issuing Bank, the Hedging Banks, and/or the Treasury Management Banks, as the context may require.

“Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender to Administrative Agent in form and content reasonably acceptable to Administrative Agent.

“Secured Treasury Management Agreement” means any Treasury Management Agreement between any Loan Party and any Treasury Management Bank; provided, that for any of the foregoing to be included as a “Secured Treasury Management Agreement” on any date of determination by Administrative Agent, the applicable Treasury Management Bank (other than Administrative Agent or an Affiliate of Administrative Agent) must have delivered a Secured Party Designation Notice to Administrative Agent prior to such date of determination.

“Securities Account” has the meaning specified in the Pledge and Securities Agreement.

32

“Security Documents” means the Intellectual Property Security Agreement, the Pledge and Security Agreement, the Control Agreements and each other security agreement executed in connection with this Agreement which recite that they secure all or a portion of the Obligations.

“Seller Specified Obligations” means, collectively, (a) that certain Asset Purchase Agreement, dated September 30, 2015, by and between NBS and RootAxcess, LLC, (b) that certain Asset Purchase Agreement, dated as of March 25, 2016, by and between NBS and Technology for Business Corporation, and (c) that certain McCrosson Agreement.

“Senior Indebtedness” means, at any time, the aggregate Indebtedness of Borrower on a Consolidated Basis at such time, other than Subordinated Debt or Indebtedness described in clause (c) of the definition thereof.

“Senior Leverage Ratio” means, with respect to each measuring period, the ratio of (a) Senior Indebtedness on such date to (b) Adjusted EBITDA of the Borrower on a Consolidated Basis for such measuring period, where “measuring period” means each period of four (4) consecutive fiscal quarters of the Borrower on a Consolidated Basis.

“Senior Officer” means, with respect to any Loan Party, any chief executive officer, the chief financial officer, the vice president, accounting and finance, the principal accounting officer, the chief operating officer or the treasurer of such Loan Party and any other Person reasonably designated in writing as a “Senior Officer” by a Loan Party.

“Separateness Requirements” means each of the following representations, warrants and covenants:

(a)          Except as expressly permitted by this Agreement, neither any Loan Party nor any of its Subsidiaries shall take any action, or conduct its affairs in a manner, which is likely to result in the corporate existence of such Loan Party or any of its Subsidiaries being ignored, or in the property and liabilities of such Loan Party or any of its Subsidiaries being substantively consolidated with those of any other such Person in a bankruptcy, reorganization or other insolvency proceeding.

(b)          Borrower on the one hand, and Parent on the other, will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.

(c)          Neither Borrower, Parent nor or any of their respective Subsidiaries will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.

(d)          Borrower will not commingle the funds and other assets of Borrower with those of any Affiliate or any other Person, and will hold all of its assets in its own name. Parent will not commingle the funds and other assets of Parent with those of any Affiliate or any other Person, and will hold all of its assets in its own name.

(e)          Borrower has and will maintain its assets in such manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. Parent shall not cause any business opportunities of Borrower to be directed to Parent or to any Loan Party other than Borrower, or take any other action which advantages Parent or any other Loan Party, to the disadvantage of Borrower.

33

(f)          Borrower will not permit any Affiliate independent access to its bank accounts. Parent will not permit any Affiliate independent access to its bank accounts. No Loan Party will permit (i) any accounts receivable from, or any proceeds or payments related to or arising from, Borrower’s Business Services division, as Borrower and its Subsidiaries is conducting as of the date of this Agreement, to be billed by or paid to, or otherwise received or held by, Parent, or (ii) Parent to bill or receive payment (or possess any proceeds thereof) for any services other than for Parent’s Carrier Services division, which Parent is providing on the date of this Agreement.

(g)          Each of Borrower and Parent will pay the salaries of its own employees (if any) from its own funds and maintain a sufficient number of employees (if any) in light of its contemplated business operations.

(h)          Each of Borrower and Parent will compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred.

(i)          The Organization Documents of each Loan Party (other than Parent) shall set forth the foregoing the Separateness Requirements and such other customary requirements relating to the separate nature, existence and operation of each Loan Party (other than Parent), as Administrative Agent may reasonably request from time to time.

The foregoing provisions are not intended to restrict Loan Parties from having a consolidated payroll function or a combined accounting and finance department or from using one another’s employees provided in any event that each of the Loan Parties shall maintain separate books and records with appropriate entries to account for such transactions, including an appropriate allocation of the direct cost of any employee used by more than one Loan Party.

“Solvent” means, as to any Person at any time, that (a) the fair value of the assets of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its assets and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital.

34

“Subordinated Debt” means Indebtedness subordinated to Administrative Agent and the Lenders in a manner, and pursuant to an agreement satisfactory to Administrative Agent in its sole discretion, which shall include, without limitation, all Indebtedness subject to any of the Subordination Agreements.

“Subordinated Debt Documents” means any Contractual Obligation regarding any Subordinated Debt.

“Subordinated Debt Payment” means and includes all cash actually expended by any Loan Party or any of its Subsidiaries to make payments of principal or interest on any Subordinated Debt and of any fees, commissions or charges with respect to any Subordinated Debt.

“Subordinated Praesidian Agent” means Praesidian Capital Opportunity Fund III, LP as administrative agent for the holders of the Subordinated Debt under the Praesidian Facility and its permitted successors and assigns.

“Subordination Agreements” means the Praesidian Subordination Agreement and the Rosen Subordination Agreement.

“Subordination Provisions” has the meaning specified in Section 8.01(l).

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Equity Securities having ordinary voting power for the election of directors or other governing body (other than Equity Securities having such power only by reason of the happening of a contingency) are at the time beneficially owned or controlled, directly, or indirectly through one or more intermediaries, or both, by such Person; excluding however any such entity for so long as it conducts no business, owns or leases no Licenses, owns or holds no Equity Securities of any Loan Party, has assets of less than $10,000 and has assets of less than $50,000 when aggregated with all other entities excluded from the definition of “Subsidiary” pursuant to this proviso. For purposes of this definition, “controlled by” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting Equity Securities, by contract or otherwise. Unless otherwise specified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of a Loan Party.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross currency rate swap transactions, currency options, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., or any other Master Agreement.

35

“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

“Swingline Advance” means, with respect to each Lender, such Lender’s funding of its participation in any Swingline Repayment Borrowing in accordance with its Pro Rata Share.

“Swingline Commitment” means an amount equal to the lesser of (a) the aggregate available Revolving Loan Commitments and (b) $4,000,000. The Swingline Commitment is part of, and not in addition to, the Revolving Loan Commitments.

“Swingline Lender” means EWB or any other Lender as a successor Swingline Lender pursuant to the terms hereof.

“Swingline Loan Note” means a promissory note substantially in the form of Exhibit D-3.

“Swingline Loans” means an advance or advances under the Swingline Commitment.

“Swingline Obligations” means, as at any date of determination, the aggregate principal amount of all outstanding Swingline Loans plus the aggregate of all Unpaid Swingline Amounts, including all Swingline Repayment Borrowings.

“Swingline Payment Date” means the 7^th Business Day after the Funding Date of the applicable Swingline Loan.

“Swingline Repayment Borrowing” means an extension of credit resulting from any Swingline Loan which has not been repaid by the applicable Swingline Payment Date or refinanced as a Borrowing of Revolving Loans.

“Target Acquisition Agreement” means the Stock Purchase and Sale Agreement dated as of the date hereof, by and between Borrower and Apptix ASA.

“Target Acquisition Documents” means the Target Acquisition Agreement and all other agreements, documents and instruments delivered in connection therewith to which a Loan Party is a party thereunder, including all exhibits and schedules thereto.

“Target Company” means Apptix, Inc., a Florida corporation.

“Target Quality of Earnings Report” means that certain Apptix Inc. Due Diligence Report, dated August 5, 2016, by Citrin Cooperman.

“Target Transaction” means the acquisition by Borrower of all of the outstanding Equity Securities of the Target Company.

36

“Tax Return” means any return, declaration, report, claim for refund, or information return or statement return relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Taxes” has the meaning specified in Section 3.01(a).

“Term Loan” means all term loans made by such Term Loan Lenders in accordance with their respective Term Loan Commitments pursuant to Section 2.01.

“Term Loan Commitment” means the commitments of certain of the Lenders to make Term Loans on the Closing Date and “Term Loan Commitments” means such commitments of all such Lenders in the aggregate. The amount of each Lender’s Term Loan Commitment, if any, is set forth on Appendix A or in the applicable Assignment and Assumption Agreement. The aggregate principal amount of the Term Loan Commitments as of the Closing Date is $65,000,000.

“Term Loan Exposure” means, with respect to any Term Loan Lender, as of any date of determination, the outstanding principal amount of the Term Loans of such Term Loan Lender.

“Term Loan Facility” means the Term Loan facility established pursuant to Section 2.01.

“Term Loan Lender” means each Lender having a Term Loan Commitment, Term Loan Exposure or who has funded or purchased all or a portion of a Term Loan in accordance with the terms hereof.

“Term Loan Note” means a promissory note substantially in the form of Exhibit D-1.

“Threshold Amount” means $1,000,000.

“to the knowledge of” or “Knowledge” means, when modifying a representation, warranty or other statement of any Person, that the fact or situation described therein is known by such Person (or, (a) in the case of Borrower, known by any officer of Borrower or any other Loan Party; or, (b) in the case of any other Person other than a natural Person, known by any Senior Officer of such Person) making the representation, warranty or other statement, or with the exercise of reasonable due diligence under the circumstances (in accordance with the standard of what a reasonable Person in similar circumstances would have done) would have been known by such Person (or, (i) in the case of Borrower, would have been known by any officer of Borrower or any other Loan Party; or, (ii) in the case of any other Person other than a natural Person, would have been known by any Senior Officer of such Person).

“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Loan Exposure and outstanding principal amount of all Term Loans of such Lender at such time.

“Total Leverage Ratio” means, with respect to each measuring period, the ratio of (a) the aggregate Indebtedness of Borrower on a Consolidated Basis (other than Indebtedness described in clause (c) of the definition thereof) on such date to (b) Adjusted EBITDA of Borrower on a Consolidated Basis for such measuring period, where “measuring period” means each period of four (4) consecutive fiscal quarters of Borrower on a Consolidated Basis.

37

“Treasury Management Agreement” means any agreement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

“Treasury Management Bank” means any Person that at the time it enters into a Treasury Management Agreement is and remains a Lender or an Administrative Agent or an Affiliate of a Lender (who at the time such Affiliate entered into such Treasury Management Agreement was a Lender and remains a Lender) or an Administrative Agent (who at the time such Affiliate entered into such Treasury Management Agreement was an Administrative Agent or a Lender and remains an Administrative Agent or a Lender).

“Type” means, with respect to a Loan, either a Base Rate Loan or a LIBOR Rate Loan.

“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of such Pension Plan’s assets, determined in accordance with the assumptions used for funding such Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

“Uniform Commercial Code” or “UCC” has the meaning specified in the Pledge and Security Agreement.

“Unpaid Swingline Amount” has the meaning specified in Section 2.04(b)(i).

“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).

“USA PATRIOT Act” means United States Public Law 107-56, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001), as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“U.S. Person” has the meaning specified in Section 3.01(f).

“Write Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

38

1.02         Certain Matters of Construction. All terms defined in this Agreement shall have the same defined meanings when used in any certificate or other document made or delivered pursuant hereto or thereto, unless otherwise defined therein. The terms “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. Wherever appropriate in the context, terms used herein in the singular also include the plural and vice versa. All references herein to the time of day means the time in Pacific Time. Whenever the words “including” or “include” shall be used, such words shall be understood to mean “including, without limitation” or “include, without limitation”. A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the Requisite Lenders. Any Lien referred to in this Agreement or any of the other Loan Documents as having been created in favor of Administrative Agent, any agreement entered into by Administrative Agent pursuant to this Agreement or any of the Loan Documents, any payment made by or to or funds received by Administrative Agent pursuant to or as contemplated by this Agreement or any of the Loan Documents, or any act taken or omitted to be taken by Administrative Agent, shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of Administrative Agent and the other Secured Parties. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.

1.03         Accounting Terms; Financial Statements. All accounting terms used herein and not expressly defined in this Agreement shall have the respective meanings given to them in conformance with GAAP, as consistently applied to the applicable Person. Financial statements and other information furnished after the Closing Date pursuant to this Agreement or the other Loan Documents shall be prepared in accordance with GAAP as in effect at the time of such preparation, provided, however, (a) no effect will be given to any election under Statement of Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial Liabilities, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Indebtedness of any Loan Party or any Subsidiary at “fair value”, as defined therein and (b) that if at any time any change in GAAP would affect the computation of any financial ratio or financial requirement set forth in any Loan Document, and Borrower or Administrative Agent shall so request, Administrative Agent, the Requisite Lenders and the Loan Parties shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Loan Parties shall provide to the Lenders financial statements and other documents required under this Agreement which include a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

1.04         Rounding. Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed in this Agreement and rounding the result up or down to the nearest number (with a round-up if there is no nearest number) to the number of places by which such ratio is expressed in this Agreement.

39

1.05         Articles, Sections, Exhibits and Schedules. All references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement.

1.06         References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to agreements (including this Agreement and the other Loan Documents) and other contractual instruments shall include all exhibits and schedules attached thereto and all amendments, restatements, extensions, supplements and other modifications thereto (unless prohibited by any Loan Document), and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, extending, renewing, replacing, succeeding, supplementing or interpreting such Law.

1.07         Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a Letter of Credit or any other letter of credit, banker’s acceptance, bank guaranties, surety bonds or similar instruments at any time shall be deemed to mean the maximum face amount of such instrument after giving effect to all increases thereof contemplated by such instrument or the application or similar documentation therefor (at the time specified therefor in such applicable instrument or application or similar documentation and as such amount may be reduced by (a) any permanent reduction of such instrument or (b) any amount which is drawn, reimbursed and no longer available under such instrument).

SECTION 2

EXTENSIONS OF CREDIT

2.01         Term Loans.

(a)          Term Loan Commitment. Subject to the terms and conditions hereof, and relying on the representations and warranties of the Loan Parties set forth herein and in the other Loan Documents, each Term Loan Lender severally agrees to make Term Loans to Borrower on the Closing Date in an aggregate amount not to exceed such Term Loan Lender’s Term Loan Commitment; provided that, after giving effect to the making of any Term Loan, (A) in no event shall the aggregate principal amount of all Term Loans extended and pending extension prior to such date exceed the Term Loan Commitments of all Lenders and (B) in no event shall the aggregate principal amount of all Term Loans extended and pending extension by such Term Loan Lender prior to such date exceed such Term Loan Lender’s Term Loan Commitment. Any amounts borrowed under this Section 2.01(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Section 2.13 and Section 2.14, all amounts owed hereunder with respect to the Term Loans shall be paid in full no later than the Maturity Date. Each Term Loan Lender’s Term Loan Commitment shall (i) automatically and permanently be reduced by the amount of each Term Loan made hereunder by such Term Loan Lender, and (ii) terminate immediately and without further action concurrent with the initial extension of credit under this Agreement on the Closing Date.

40

(b)          Borrowing Mechanics for Term Loans.

(i)          Borrower may request one Borrowing under the Term Loan Commitment on the Closing Date in accordance with the use of proceeds of such Term Loans as described in Section 2.06 hereof.

(ii)         Borrower may irrevocably request a Borrowing under the Term Loan Commitment by delivering a Notice of Borrowing no later than 10:00 a.m. (Pacific time) at least one (1) Business Day prior to the proposed Funding Date with respect to a Base Rate Loan. Promptly upon receipt by Administrative Agent of such Notice of Borrowing, Administrative Agent shall notify each Term Loan Lender of the proposed Borrowing.

(iii)        Each Term Loan Lender shall make its Term Loan available to Administrative Agent no later than 10:00 a.m. (Pacific time) on the Closing Date, by wire transfer of same day funds in Dollars. Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of the Term Loan available to Borrower not later than 1:00 p.m. (Pacific time), on the Closing Date by causing the amount of same day funds in Dollars equal to the proceeds of such Term Loan received by Administrative Agent from the Lenders to be credited to the account of Borrower as identified in the Notice of Borrowing or as otherwise designated in writing to Administrative Agent by Borrower.

2.02         Revolving Loans.

(a)          Subject to the terms and conditions hereof and relying upon the representations and warranties of the Loan Parties set forth herein and in the other Loan Documents, each Revolving Loan Lender severally agrees to make Revolving Loans to Borrower at any time and from time to time after, but not including, the Closing Date to, but not including, the Maturity Date or, if earlier, the termination of the Revolving Loan Commitment pursuant to Section 2.20, with respect to the Revolving Loan Facility; provided, that after giving effect to each such Revolving Loan (i) the aggregate principal amount of such Revolving Loan Lender’s Revolving Loans shall not exceed its Revolving Loan Commitment and (ii) the Revolving Loan Exposure shall not exceed the Revolving Loan Commitments. Each request by Borrower for a Revolving Loan shall be deemed to be a representation by Borrower that it shall be in compliance with Section 4 after giving effect to the requested Revolving Loan. Within such limits of time and amount and subject to the other provisions of this Agreement, Borrower may borrow, repay and reborrow pursuant to this Section 2.02. Subject to Section 2.13 and Section 2.14, all amounts owed hereunder with respect to the Revolving Loans shall be paid in full no later than the Maturity Date.

(b)          Borrowing Mechanics for Revolving Loans.

(i)          Borrower may irrevocably request from the Revolving Loan Lenders a Borrowing under the Revolving Loan Commitment by delivering a Notice of Borrowing no later than 10:00 a.m. (Pacific time) (1) at least three (3) Business Days in advance of the proposed Funding Date with respect to a LIBOR Rate Loan and (2) at least one (1) Business Day prior to the proposed Funding Date with respect to a Base Rate Loan. Promptly upon receipt by Administrative Agent of such Notice of Borrowing, Administrative Agent shall notify each Lender of the proposed Borrowing.

41

(ii)         Each Revolving Loan Lender shall make its Revolving Loan available to Administrative Agent no later than 10:00 a.m. (Pacific time) on the applicable Funding Date, by wire transfer of same day funds in Dollars. Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of all such Revolving Loans available to Borrower not later than 1:00 p.m. (Pacific time) on the applicable Funding Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by Administrative Agent from the Revolving Loan Lenders to be credited to the account of Borrower as identified in the Notice of Borrowing or as otherwise designated in writing to Administrative Agent by Borrower.

(c)          Administrative Agent is authorized to make Borrowings under this Agreement, based upon instructions received from a Senior Officer of Borrower or without instructions if in Administrative Agent’s discretion such Borrowings are necessary to meet Obligations which have become due and remain unpaid. Administrative Agent shall be entitled to rely on any telephonic notice given by a person who Administrative Agent reasonably believes to be a Senior Officer of Borrower, and Borrower shall indemnify and hold Administrative Agent harmless for any damages or loss suffered by Administrative Agent as a result of such reliance.

2.03         Letters of Credit.

(a)          Letters of Credit Sublimit.

(i)          Subject to the terms and conditions hereof and relying upon the representations and warranties of the Loan Parties set forth herein and in the other Loan Documents, (1) Issuing Bank agrees, in reliance on the agreements of the Revolving Loan Lenders set forth in this Section 2.03, (A) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of Borrower or the other Loan Parties, and to amend or extend Letters of Credit previously issued by Issuing Bank, in accordance with Section 2.03(b); and (B) to honor drawings under the Letters of Credit; and (2) the Revolving Loan Lenders severally agree to participate in Letters of Credit issued for the account of Borrower or the other Loan Parties and any drawings thereunder; provided that, after giving effect to any Letter of Credit Extension with respect to any Letter of Credit, (x) the Revolving Loan Exposure shall not exceed the Revolving Loan Commitment, (y) the Revolving Loan Exposure of any Lender shall not exceed such Lender’s Revolving Loan Commitment, and (z) the outstanding amount of the Letter of Credit Obligations shall not exceed the Letter of Credit Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the Letter of Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s and the other Loan Parties’ ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower and such other Loan Parties may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

42

(ii)          Issuing Bank shall not issue any Letter of Credit if:

(1)         subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Requisite Lenders have approved such expiry date; or

(2)         the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Loan Lenders have approved such expiry date.

(iii)         Issuing Bank shall not be under any obligation to issue any Letter of Credit if:

(1)         any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain Issuing Bank from issuing such Letter of Credit, or any Law applicable to Issuing Bank or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over Issuing Bank shall prohibit, or request that Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which Issuing Bank in good faith deems material to it;

(2)         the issuance of such Letter of Credit would violate one (1) or more policies of Issuing Bank applicable to letters of credit generally;

(3)         except as otherwise agreed by Administrative Agent and Issuing Bank, such Letter of Credit is in an initial stated amount less than $5,000;

(4)         such Letter of Credit is to be denominated in a currency other than Dollars;

(5)         such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or

(6)         a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless Issuing Bank has entered into satisfactory arrangements with Borrower or such Lender to eliminate Issuing Bank’s risk or, in the case of a Defaulting Lender, its Fronting Exposure with respect to such Lender.

43

(iv)        Issuing Bank shall not amend any Letter of Credit if Issuing Bank would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

(v)         Issuing Bank shall not be under any obligation to amend any Letter of Credit if (1) Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (2) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(vi)        Issuing Bank shall act on behalf of the Revolving Loan Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and Issuing Bank shall have all of the benefits and immunities (1) provided to Administrative Agent in Section 9 with respect to any acts taken or omissions suffered by Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 9 included Issuing Bank with respect to such acts or omissions, and (2) as additionally provided herein with respect to Issuing Bank.

(b)          Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.

(i)          Each Letter of Credit shall be issued or amended, as the case may be, upon the request of Borrower delivered to Issuing Bank (with a copy to Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Senior Officer of Borrower. Such Letter of Credit Application must be received by Issuing Bank and Administrative Agent not later than 10:00 a.m. (Pacific time) at least two (2) Business Days (or such later date and time as Administrative Agent and Issuing Bank may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to Issuing Bank: (1) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (2) the amount thereof; (3) the expiry date thereof; (4) the name and address of the beneficiary thereof; (5) the documents to be presented by such beneficiary in case of any drawing thereunder; (6) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (7) the purpose and nature of the requested Letter of Credit; and (8) such other matters as Issuing Bank may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to Issuing Bank (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as Issuing Bank may reasonably require. Additionally, Borrower shall furnish to Issuing Bank and Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as Issuing Bank or Administrative Agent may reasonably require.

44

(ii)         Promptly after receipt of any Letter of Credit Application, the Issuing Bank will confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has received a copy of such Letter of Credit Application from Borrower and, if not, Issuing Bank will provide Administrative Agent with a copy thereof. Unless Issuing Bank has received written notice from any Revolving Loan Lender, Administrative Agent or any Loan Party, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 4 shall not then be satisfied, then, subject to the terms and conditions hereof, Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of Borrower (or the applicable Loan Party) or enter into the applicable amendment, as the case may be, in each case in accordance with Issuing Bank’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Loan Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Issuing Bank a risk participation in such Letter of Credit in an amount equal to such Revolving Loan Lender’s Pro Rata Share of such Letter of Credit.

(iii)        If Borrower so requests in any applicable Letter of Credit Application, Issuing Bank may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by Issuing Bank, Borrower shall not be required to make a specific request to Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Loan Lenders shall be deemed to have authorized (but may not require) Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that Issuing Bank shall not permit any such extension if (1) Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (2) it has received notice (which may be by telephone or in writing) on or before the day that is thirty (30) days before the Non-Extension Notice Date (1) from Administrative Agent that the Requisite Lenders have elected not to permit such extension or (2) from Administrative Agent, any Revolving Loan Lender or Borrower that one (1) or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing Issuing Bank not to permit such extension, or (3) from Borrower directing it, for any reason, not to permit such extension.

(iv)        Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, Issuing Bank will also deliver to Borrower and Administrative Agent a true and complete copy of such Letter of Credit or amendment.

45

(c)          Drawings and Reimbursements; Funding of Participations.

(i)          Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, Issuing Bank shall notify Borrower and Administrative Agent thereof. Not later than 10:00 a.m. (Pacific time) on the date of any payment by Issuing Bank under a Letter of Credit (each such date, an “Honor Date”), Borrower shall reimburse Issuing Bank through Administrative Agent in an amount equal to the amount of such drawing. If Borrower fails to so reimburse Issuing Bank by such time, Administrative Agent shall promptly notify each Revolving Loan Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Loan Lender’s Pro Rata Share of the amount of such Letter of Credit. In such event, Borrower shall be deemed to have requested a Revolving Loan Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, subject to the amount of the unutilized portion of the Revolving Loan Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Notice of Borrowing). Any notice given by Issuing Bank or Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(ii)         Each Revolving Loan Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to Administrative Agent for the account of the Issuing Bank in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. (Pacific time) on the Business Day specified in such notice by Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Loan Lender that so makes funds available shall be deemed to have made a Base Rate Loan to Borrower in such amount. Administrative Agent shall remit the funds so received to Issuing Bank.

(iii)        With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Loan Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, Borrower shall be deemed to have incurred from Issuing Bank a Letter of Credit Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Loan Lender’s payment to Administrative Agent for the account of Issuing Bank pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a Letter of Credit Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.

(iv)        Until each Revolving Loan Lender funds its Revolving Loan or Letter of Credit pursuant to this Section 2.03(c) to reimburse Issuing Bank for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of Issuing Bank.

46

(v)         Each Revolving Loan Lender’s obligation to make Revolving Loans or Letter of Credit Advances to reimburse Issuing Bank for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (1) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Issuing Bank, Borrower or any other Person for any reason whatsoever; (2) the occurrence or continuance of a Default, or (3) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Loan Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by Borrower of a Notice of Borrowing). No such making of a Letter of Credit Advance shall relieve or otherwise impair the obligation of Borrower to reimburse Issuing Bank for the amount of any payment made by Issuing Bank under any Letter of Credit, together with interest as provided herein.

(vi)        If any Revolving Loan Lender fails to make available to Administrative Agent for the account of Issuing Bank any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), Issuing Bank shall be entitled to recover from such Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by Issuing Bank in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Issuing Bank in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or Letter of Credit Advance in respect of the relevant Letter of Credit Borrowing, as the case may be. A certificate of Issuing Bank submitted to any Revolving Loan Lender (through Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.

(d)          Repayment of Participations.

(i)          At any time after Issuing Bank has made a payment under any Letter of Credit and has received from any Revolving Loan Lender such Lender’s Letter of Credit Advance in respect of such payment in accordance with Section 2.03(c), if Administrative Agent receives for the account of Issuing Bank any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from Borrower or otherwise, including proceeds of Cash Collateral applied thereto by Administrative Agent), Administrative Agent will distribute to such Lender its Pro Rata Share thereof in the same funds as those received by Administrative Agent.

47

(ii)         If any payment received by Administrative Agent for the account of Issuing Bank pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.08 (including pursuant to any settlement entered into by Issuing Bank in its discretion), each Revolving Loan Lender shall pay to Administrative Agent for the account of Issuing Bank its Pro Rata Share thereof on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(e)          Obligations Absolute. The obligation of Borrower to reimburse Issuing Bank for each drawing under each Letter of Credit and to repay each Letter of Credit Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i)          any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

(ii)         the existence of any claim, counterclaim, set-off, defense or other right that Borrower or any Loan Party may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii)        any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv)        any payment by Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Laws; or

(v)         any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, Borrower or any other Loan Party.

Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with Borrower’s instructions or other irregularity, Borrower will immediately notify Issuing Bank. Borrower shall be conclusively deemed to have waived any such claim against Issuing Bank and its correspondents unless such notice is given as aforesaid.

48

(f)          Role of Issuing Bank. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Issuing Bank shall not have any responsibility to obtain any document (other than any draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Issuing Bank, Administrative Agent, any Administrative Agent-Related Persons nor any correspondent, participant or assignee of Issuing Bank shall be liable to any Lender, in the absence of gross negligence or willful misconduct, for (i) any action taken or omitted in connection herewith at the request or with the approval of Revolving Loan Lenders or Requisite Lenders, as applicable; or (ii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at Law or under any other agreement. None of Issuing Bank, Administrative Agent, any Administrative Agent-Related Persons nor any correspondent, participant or assignee of Issuing Bank shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Issuing Bank, and Issuing Bank may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Issuing Bank’s willful misconduct or gross negligence or Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to Issuing Bank by the beneficiary of a draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Issuing Bank shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

(g)          Cash Collateral.

(i)          Upon the request of Administrative Agent, (1) if Issuing Bank has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in a Letter of Credit Borrowing, or if, as of the Maturity Date, any Letter of Credit Obligation for any reason remains outstanding, Borrower shall immediately Cash Collateralize the then outstanding amount of all Letter of Credit Obligations; and (2) if there shall exist any Defaulting Lender that is a Revolving Loan Lender, Borrower shall immediately Cash Collateralize Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.18(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount. Section 2.15 and Section 8.02 set forth certain additional requirements to deliver Cash Collateral hereunder.

49

(ii)         Borrower, and to the extent provided by any Defaulting Lender that is a Revolving Loan Lender, such Defaulting Lender, hereby grants to Administrative Agent, for the benefit of Issuing Bank and the Lenders, a security interest in all such cash, Deposit Accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at EWB. If at any time Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than Administrative Agent or that the total amount of such funds is less than the aggregate outstanding amount of all Letter of Credit Obligations (or in the case of the above clause (i)(2), the Minimum Collateral Amount), Borrower will, forthwith upon demand by Administrative Agent, pay to Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (1) such aggregate outstanding amount (or in the case of the above clause (i)(2), the Minimum Collateral Amount) over (2) the total amount of funds, if any, then held as Cash Collateral that Administrative Agent determines to be free and clear of any such right and claim.

(iii)        Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral pursuant to the above clause (i)(1), such funds shall be applied, to the extent permitted under applicable Laws, to reimburse Issuing Bank. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral pursuant to the above clause (i)(2), such funds shall be applied, to the extent permitted under applicable Laws, to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of the Letter of Credit Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(iv)        Cash Collateral (or the appropriate portion thereof) provided to reduce Issuing Bank’s Fronting Exposure pursuant to the above clause (i)(2) shall no longer be required to be held as Cash Collateral pursuant to this Section 2.03(g) following (1) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (2) the determination by Administrative Agent and Issuing Bank that there exists excess Cash Collateral; provided that, subject to Section 2.18, the Person providing Cash Collateral and Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations, and provided further that, to the extent that such Cash Collateral was provided by Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

(h)          Applicability of ISP and UCP. Unless otherwise expressly agreed by the Issuing Bank and Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.

50

(i)          Letter of Credit Fees. Borrower shall pay (i) to Administrative Agent for the sole account of the Issuing Bank, a fronting fee calculated at the rate equal to the greater of (1) 0.15% per annum of the daily amount available to be drawn under each applicable Letter of Credit issued, extended, renewed, or increased by each applicable Issuing Bank, and (2) $500 per annum for each applicable Letter of Credit issued by each applicable Issuing Bank (“Fronting Fees”), and (ii) to Administrative Agent for the account of each Revolving Loan Lender in accordance with its Pro Rata Share for each Letter of Credit, an amount calculated at 5.00% per annum for the daily amount available to be drawn under such Letter of Credit (“Exposure Fees” and together with Fronting Fees, “Letter of Credit Fees”). For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. Letter of Credit Fees shall be (A) due and payable in arrears on the last day of each fiscal quarter (or, if such day is not a Business Day, the next succeeding Business Day), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (B) computed on the basis of a 360-day year for the actual number of days elapsed. Notwithstanding anything to the contrary contained herein, upon the request of the Requisite Lenders, while any Event of Default exists, all outstanding Letter of Credit Fees shall accrue at the Default Rate.

(j)          Documentary and Processing Charges Payable to Issuing Bank. Borrower shall pay directly to Issuing Bank for its own account the customary documentation, presentation, amendment and other processing fees, and other standard costs and charges, of Issuing Bank relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(k)          Conflict with Issuer Documents. In the event of any conflict between the terms hereof or any other Loan Document and the terms of Issuer Document, the terms hereof or of such other Loan Document shall control.

(l)          Letters of Credit Issued for Loan Parties. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, another Loan Party, Borrower shall be obligated to reimburse Issuing Bank hereunder for any and all drawings under such Letter of Credit. Borrower hereby acknowledges that the issuance of Letters of Credit for the account of the Loan Parties inures to the benefit of Borrower, and that Borrower’s business derives substantial benefits from the businesses of such Loan Parties.

(m)          Illegality. If, at any time, it becomes unlawful for Issuing Bank to comply with any of its obligations under any Letter of Credit (including, without limitation, as a result of any Sanctions), the obligations of Issuing Bank with respect to such Letter of Credit shall be suspended (and all corresponding rights shall cease to accrue) until such time as it may again become lawful for Issuing Bank to comply with its obligations under such Letter of Credit, and Issuing Bank shall not be liable for any losses that Borrower, any other Loan Party may incur as a result.

2.04         Swingline Facility.

(a)          Making of Swingline Loans. Subject to the terms and conditions hereof, and relying on the representations and warranties of the Loan Parties set forth herein and in the other Loan Documents, Swingline Lender agrees to make Swingline Loans to Borrower at any time and from time to time after the Closing Date to, but not including, the Maturity Date or, if earlier, the termination of the Revolving Loan Commitment pursuant to Section 2.20, in an aggregate principal amount not to exceed the Swingline Commitment; provided, however, unless Borrower has complied with Section 2.19 with respect to the Swingline Lender’s Fronting Exposure, if at any time any Lender is a Defaulting Lender, the making of Swingline Loans shall be at the sole discretion of the Swingline Lender. On the terms and subject to the conditions hereof, Borrower may from time to time borrow, prepay and reborrow Swingline Loans. After giving effect to each Swingline Loan, (i) the Revolving Loan Exposure shall not exceed the Revolving Loan Commitments, (ii) the aggregate principal amount of such Revolving Loan Lender’s Revolving Loan Exposure shall not exceed such Revolving Loan Lender’s Revolving Loan Commitment and (iii) the outstanding amount of all Swingline Loans shall not exceed the Swingline Commitment. If at any time the aggregate principal balance of the Swingline Loans then outstanding exceeds the Swingline Commitment, Borrower shall be deemed to have requested a Revolving Loan Borrowing in the amount of the difference in the manner and pursuant to the terms of Section 2.04(b).

51

(b)          Demands and Repayments; Funding of Participations.

(i)          Any outstanding Swingline Loan shall be payable by Borrower not later than 10:00 a.m. (Pacific time) on the Swingline Payment Date applicable to such Swingline Loan in an amount equal to the outstanding principal balance and accrued but unpaid interest on such Swingline Loan. If Borrower fails to so repay the Swingline Lender, no Default shall exist hereunder as a result of such failure and the Swingline Lender shall promptly notify Administrative Agent who shall in turn promptly notify each Revolving Loan Lender of such failure to repay, the amount of the outstanding principal balance and accrued but unpaid interest (the “Unpaid Swingline Amount”), and the amount of such Revolving Loan Lender’s Pro Rata Share thereof. In such event, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Swingline Payment Date in an amount equal to the Unpaid Swingline Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the conditions set forth in Section 4.02 (other than the delivery of a Notice of Borrowing) and provided that, after giving effect to such Borrowing, the Revolving Loan Exposure shall not exceed the Revolving Loan Commitments. Any notice given by the Swingline Lender or Administrative Agent pursuant to this Section 2.04(b)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(ii)         Each Revolving Loan Lender shall upon any notice pursuant to Section 2.04(b)(i) make funds available (and Administrative Agent may apply Cash Collateral provided for this purpose) to Administrative Agent for the account of the Swingline Lender in an amount equal to its Pro Rata Share of the Unpaid Swingline Amount not later than 10:00 a.m. (Pacific time) on the Business Day specified in such notice by Administrative Agent, whereupon, subject to the provisions of Section 2.04(b)(iii), each Revolving Loan Lender that so makes funds available shall be deemed to have made a Base Rate Loan to Borrower in such amount. Administrative Agent shall remit the funds so received to the Swingline Lender.

52

(iii)        With respect to any Unpaid Swingline Amount that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied (other than the delivery of a Notice of Borrowing) or for any other reason, a Default shall be existing hereunder as a result of such failure and Borrower shall be deemed to have incurred from the Swingline Lender a Swingline Repayment Borrowing in the amount of the Unpaid Swingline Amount that is not so refinanced, which Swingline Repayment Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Loan Lender’s payment to Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(b)(ii) shall be deemed payment in respect of its participation in such Swingline Repayment Borrowing and shall constitute a Swingline Advance from such Revolving Loan Lender in satisfaction of its participation obligation under this Section 2.04.

(iv)        Until each Revolving Loan Lender funds its Revolving Loan or Swingline Advance pursuant to this Section 2.04(b) to reimburse the Swingline Lender for any Unpaid Swingline Amount, interest in respect of such Revolving Loan Lender’s Pro Rata Share of such amount shall be solely for the account of the Swingline Lender.

(v)         Each Revolving Loan Lender’s obligation to make Revolving Loans or Swingline Advances to reimburse the Swingline Lender for any Unpaid Swingline Amount, as contemplated by this Section 2.04(b), shall be absolute and unconditional and shall not be affected by any circumstance, including (1) any set-off, counterclaim, recoupment, defense or other right which such Revolving Loan Lender may have against the Swingline Lender, Borrower or any other Person for any reason whatsoever; (2) the occurrence or continuance of a Default; or (3) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Loan Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(b) is subject to the conditions set forth in Section 4.02 (other than delivery by Borrower of a Notice of Borrowing). No such making of a Swingline Advance shall relieve or otherwise impair the obligation of Borrower to repay the Swingline Lender for the outstanding principal balance of the Swingline Loan subject to the demand, together with interest as provided herein.

(vi)        If any Revolving Loan Lender fails to make available to Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Loan Lender pursuant to the foregoing provisions of this Section 2.04(b) by the time specified in Section 2.04(b)(ii), then, without limiting the other provisions of this Agreement, the Swingline Lender shall be entitled to recover from such Revolving Loan Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation. A certificate of the Swingline Lender submitted to any Lender (through Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

53

(vii)       At any time after the Swingline Lender has made a demand which has not been paid and has received from any Revolving Loan Lender such Revolving Loan Lender’s Swingline Advance in respect of such payment in accordance with this Section 2.04(b), if Administrative Agent receives for the account of the Swingline Lender any payment in respect of the related Unpaid Swingline Amount or interest thereon (whether directly from Borrower or otherwise, including proceeds of Cash Collateral applied thereto by Administrative Agent), Administrative Agent will distribute to such Revolving Loan Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Swingline Advance was outstanding) in the same funds as those received by Administrative Agent.

(viii)      If any payment received by Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(b)(vii) is required to be returned under any of the circumstances described in Section 10.08, each Revolving Loan Lender shall pay to Administrative Agent for the account of the Swingline Lender its Pro Rata Share thereof on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Revolving Loan Lender, at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Revolving Loan Lenders under this clause (viii) shall survive the payment in full of the Obligations and the termination of this Agreement.

(c)          Interest on Swingline Loans. All Swingline Loans shall accrue interest from the date made as a Base Rate Loan, at the Base Rate. Notwithstanding any other provision of this Agreement, prior to the Maturity Date, Borrower shall make all payments of principal and interest in respect of Swingline Loans directly to the Swingline Lender by such method and to such account or place as the Swingline Lender may from time to time designate in writing and the Swingline Lender shall make the funds of the Swingline Loans directly available to Borrower by such method and to such account or place as Borrower may from time to time designate in writing. To the extent that the Swingline Lender is not Administrative Agent, the Swingline Lender shall promptly provide to Administrative Agent such information as it shall reasonably request with respect to the Swingline Loans.

(d)          Borrowing Procedures. Each Borrowing of a Swingline Loan shall be made upon irrevocable notice by Borrower to Administrative Agent, which may be given by telephone. Each such notice must be received by Administrative Agent not later than 10:00 a.m. (Pacific time) on the requested date of the proposed Borrowing. Each telephonic notice by Borrower pursuant to this Section 2.04(d) must be confirmed promptly by delivery to Administrative Agent of a Notice of Borrowing, appropriately completed and signed by a Senior Officer of Borrower. All Swingline Loans shall be made in a minimum amount of $50,000 and an integral multiple of $10,000 or, if less, in the unused amount of the Swingline Commitment. The proceeds of all Swingline Loans shall be used solely for the purposes described in Section 2.06 for Revolving Loans; provided that, no Swingline Loan shall be used to refinance any outstanding Swingline Loan.

54

2.05         Pro Rata Shares. Each Class of Loans shall be made, and all participations purchased, by Lenders of that Class simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender in such Class shall be responsible for any default by any other Lender in that Class in such other Lender’s obligation to make a Loan of that Class requested hereunder or purchase a participation required hereby nor shall any Loan Commitment of any Lender of a particular Class be increased or decreased as a result of a default by any other Lender in that Class in such other Lender’s obligation to make a Loan of that Class requested hereunder or purchase a participation required hereby.

2.06         Use of Proceeds.

(a)          The proceeds of the Term Loans shall be used by Borrower to (i) repay amounts outstanding under the Opus Credit Agreement, (ii) pay fees and expenses associated with (x) this Agreement and (y) the repayment of the Opus Credit Agreement and, (iii) pay fees and expenses associated with the amendments to the Praesidian Facility being entered into on the Closing Date, (iv) partially fund the Acquisition of the Target Company, (v) pay fees and expenses associated with the Acquisition of the Target Company and (vi) pay fees and expenses associated with the equity issuance of Parent to the seller of the Target Company pursuant to the Target Acquisition Agreement.

(b)          The proceeds of the Revolving Loans and the Revolving Loan Facility shall be used by Borrower for general corporate purposes; provided however, such proceeds shall not be used in connection with any of the uses identified in clauses (a) or (b) of this Section 2.06.

2.07         Evidence of Debt; Register; Lenders’ Books and Records.

(a)          Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Indebtedness of Borrower to such Lender, including the amounts of the Class of Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be prima facie evidence of the matters set forth therein, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect Borrower’s Obligations in respect of any applicable Loan; and provided further, that in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

(b)          Notes. The obligation of Borrower to repay the aggregate unpaid principal amount of the Revolving Loans, Term Loans, and Swingline Loans made to Borrower by each Lender, together with interest thereon, shall, at the request of the applicable Lender, be evidenced by a Revolving Loan Note, a Term Loan Note, and a Swingline Loan Note, as the case may be, dated the Closing Date, the effective date, or the date of such request, as applicable, payable to the order of such Lender in a face amount equal to the Revolving Loan Commitment, Term Loan Commitment, and the Swingline Commitment, as applicable, of such Lender. Borrower hereby unconditionally promises to pay, to the order of each of the Lenders, Administrative Agent and Issuing Bank, as applicable, the Loans and other Obligations as provided in this Agreement and the other Loan Documents.

2.08         Interest on Loans.

(a)          Except as otherwise set forth herein, each Class of Loans shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:

55

(i)          if a Base Rate Loan, at the Base Rate plus two percent (2.00%) per annum;

or

(ii)         if a LIBOR Rate Loan, at the LIBOR Rate plus five percent (5.00%) per annum.

(b)          The basis for determining the rate of interest with respect to any Class of Loans, and the Interest Period with respect to any LIBOR Rate Loan, shall be selected by Borrower for the Term Loan or Revolving Loans, and, in each case, notified to Administrative Agent and the applicable Class of Lenders pursuant to the applicable Notice of Borrowing or Conversion/Continuation Notice, as the case may be. If on any day a Loan of a particular Class is outstanding with respect to which a Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then such Loan shall be a Base Rate Loan until such date that a Conversion/Continuation Notice is delivered by Borrower pursuant to and in accordance with Section 2.09.

(c)          In connection with LIBOR Rate Loans there shall be no more than six (6) Interest Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan or a LIBOR Rate Loan in the applicable Notice of Borrowing or Conversion/Continuation Notice, such Loan (if outstanding as a LIBOR Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the event Borrower fails to specify an Interest Period for any LIBOR Rate Loan in the applicable Notice of Borrowing or Conversion/Continuation Notice, Borrower shall be deemed to have selected an Interest Period of one (1) month. As soon as practicable after 10:00 a.m. (Pacific time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the LIBOR Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrower and the applicable Class of Lenders.

(d)          Interest payable pursuant to Section 2.08(a)(i) shall be computed on the basis of a 365-day year (or 366- day year, as the case may be), and interest payable pursuant to Section 2.08(a)(ii) shall be computed on the basis of a 360 day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan of a particular Class, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBOR Rate Loan, the date of conversion of such LIBOR Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Rate Loan, the date of conversion of such Base Rate Loan to such LIBOR Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Loan.

56

(e)          Except as otherwise set forth herein, interest on each Loan of a particular Class shall be payable in arrears on and to (i) each Interest Payment Date applicable to that Class; (ii) upon any prepayment of the Loans of that Class, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) at maturity, including final maturity.

2.09         Conversion/Continuation.

(a)          Subject to Section 3.04 and so long as no Default or Event of Default shall have occurred and then be continuing, Borrower shall have the option:

(i)          to convert at any time all or any part of any Loan of the applicable Class equal to $500,000 and integral multiples of $50,000 in excess of that amount from one Type of Loan to another Type of Loan; provided, that a LIBOR Rate Loan may only be converted on the expiration of the Interest Period applicable to such LIBOR Rate Loan unless Borrower shall pay all amounts due under Section 3.04 in connection with any such conversion; or

(ii)         upon the expiration of any Interest Period applicable to any LIBOR Rate Loan, to continue all or any portion of such Loan of such Class equal to $500,000 and integral multiples of $50,000 in excess of that amount as a LIBOR Rate Loan.

(b)          Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 10:00 a.m. (Pacific time) at least one (1) Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three (3) Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a LIBOR Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any LIBOR Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to effect a conversion or continuation in accordance therewith.

2.10         Default Interest. Upon the occurrence and during the continuance of an Event of Default, the principal amount of all Classes of Loans outstanding and, to the extent permitted by applicable Law, any interest payments on all Classes of Loans and any fees or other amounts owed hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the applicable Bankruptcy Code or other applicable Debtor Relief Laws) payable on demand at the Default Rate; provided, any LIBOR Rate Loans shall be converted to Base Rate Loans at the election of Administrative Agent at any time after the occurrence of such Event of Default (irrespective of whether the Interest Period in effect at the time of such conversion has expired) and thereupon shall become Base Rate Loans and shall thereafter bear interest payable upon demand at the Default Rate. Payment or acceptance of the increased rates of interest provided for in this Section 2.10 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent, any Lender, Swingline Lender or Issuing Bank.

57

2.11         Fees.

(a)          Unused Commitment Fees. Borrower agrees to pay to Administrative Agent:

(i)          accruing from the Closing Date until the Maturity Date, for the account of each Revolving Loan Lender according to its Pro Rata Share, a nonrefundable unused Revolving Loan Commitment fee (each a “Revolving Loan Facility Unused Commitment Fee”) at a rate per annum equal to the Revolving Loan Commitment Fee Rate (computed on the basis of a year of 360 days and actual days elapsed) multiplied by the average daily result during the relevant fiscal quarter of (1) the aggregate Revolving Loan Commitments minus (2) the aggregate Revolving Loan Exposure; provided, however, that any Revolving Loan Facility Unused Commitment Fee accrued with respect to the Revolving Loan Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Revolving Loan Facility Unused Commitment Fee shall otherwise have been due and payable by Borrower prior to such time; and provided further that no Revolving Loan Facility Unused Commitment Fee shall accrue with respect to the Revolving Loan Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Subject to the provisos in the directly preceding sentence, all Revolving Loan Facility Unused Commitment Fees shall be payable quarterly in arrears on the last Business Day of each fiscal quarter and on the Maturity Date.

(ii)         [Reserved].

(b)          Other Fees. Borrower agrees to pay to Administrative Agent such fees in the amounts and at the times separately agreed upon in the Fee Schedule provided in the Commitment Letter.

2.12         Scheduled Payments.

(a)          Commencing with the calendar month ending January 31, 2017, and continuing on the last Business Day of each calendar month thereafter through the Maturity Date, the Term Loans shall be repaid by Borrower in consecutive monthly installments (each, an “Installment”), (i), during the calendar year ending December 31, 2017, of $270,833.33 and (ii), during the calendar year ending December 31, 2018 and thereafter, of $541,666.67.

Notwithstanding the foregoing, (1) such Installment shall be reduced in connection with any voluntary or mandatory prepayments of the Term Loans in accordance with Section 2.13 and Section 2.14, as applicable; and (2) the Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Maturity Date.

(b)          The Revolving Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Maturity Date.

58

2.13         Voluntary Prepayments.

(a)          Any time and from time to time without premium or penalty (but subject to Section 3.04(c)):

(i)          with respect to Base Rate Loans, Borrower may prepay any Loans of the applicable Class on any Business Day in whole or in part, in an aggregate minimum amount of $250,000 and integral multiples of $50,000 in excess of that amount (or such lesser amount as may be the aggregate outstanding amount of such Term Loans); and

(ii)         with respect to LIBOR Rate Loans, Borrower may prepay any Loans of the applicable Class on any Business Day in whole or in part (together with any amounts due pursuant to Section 3.04(c)) in an aggregate minimum amount of $250,000 and integral multiples of $50,000 in excess of that amount (or such lesser amount as may be the aggregate outstanding amount of such Loans).

(b)          All such prepayments shall be made upon not less than one (1) Business Day prior written or telephonic notice, in the case of Base Rate Loans, and three (3) Business Days’ prior written or telephonic notice, in the case of LIBOR Rate Loans, in each case pursuant to a prepayment notice (the “Prepayment Notice”), substantially in the form of Exhibit C hereto, and given by Borrower to Administrative Agent by 10:00 a.m. (Pacific time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or original notice for Loans by facsimile or telephone to each Lender). Upon the giving of any such notice, the principal amount of the Loans of the applicable Class specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as Borrower may elect; provided that, (i) if Borrower elects to apply any voluntary prepayment to the Term Loans, the same shall be applied in accordance with the first and second item of Section 2.15(a), (ii) if Borrower fails to make an election regarding the application of such voluntary prepayment, the same shall be applied as specified in Section 2.15 and (iii) all prepayments shall be accompanied by (1) any amounts due pursuant to Section 3.04(c) and (2) any accrued and unpaid interest upon the principal amount of such prepayment (provided that, Administrative Agent may elect in its sole discretion to cause such amounts and interest payments to be due and payable on the earlier of (A) the Interest Payment Date immediately following such prepayment and (B) upon five (5) Business Days’ written notice from the Administrative Agent).

2.14         Mandatory Prepayments.

(a)          Asset Sales. Promptly, but no later than five (5) Business Days following the date of receipt by any Loan Party or any of its Subsidiaries of any Net Asset Sale Proceeds (or on the 361^st day if the first proviso hereto applies), Borrower shall prepay (and/or cash collateralize) the Obligations as set forth in Section 2.15 in an aggregate amount equal to such Net Asset Sales Proceeds; provided that, so long as no Default or Event of Default has occurred and is continuing, the Loan Parties shall have the option, directly or through one or more of their Subsidiaries, to invest any Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in assets used or useful in the business of the Loan Parties (other than Parent), if such assets are purchased or constructed within three hundred sixty (360) days following receipt of such Net Asset Sale Proceed; provided, further, pending any such investment, all such Net Asset Sale Proceeds shall be invested in Cash or Cash Equivalents and deposited in an account at EWB and held therein until such time as such Net Asset Sales Proceeds are applied in payment of such investment. In the event that the Asset Sale Reinvestment Amounts are not reinvested by the Loan Parties, prior to the earlier of (i) the last day of such three hundred sixty (360) day period and (ii) the date of the occurrence of a Default or an Event of Default, Administrative Agent shall apply such Asset Sale Reinvestment Amounts to the Obligations as set forth in Section 2.15.

59

(b)          Insurance/Condemnation Proceeds. Promptly, but no later than five (5) Business Days following the date of receipt by any Loan Party or any of its Subsidiaries, or Administrative Agent as loss payee or lenders loss payee, of any Net Insurance/Condemnation Proceeds (or on the 181^st day if the first proviso hereto applies) in excess of (A) $250,000 in the aggregate received in any fiscal year through the applicable date of determination with respect to any loss covered by a casualty insurance policy and (B) $500,000 with respect to any transaction or series of related transactions and less than $1,000,000 in the aggregate during any fiscal year with respect to any sales or other Dispositions as a result of the taking of any assets of any Loan Party or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, Borrower shall prepay (and/or cash collateralize) the Obligations as set forth in Section 2.15 in an aggregate amount equal to such excess; provided that so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, Borrower shall have the option, directly or through one (1) or more of their Subsidiaries to invest such Net Insurance/Condemnation Proceeds within one hundred eighty (180) days of receipt thereof in assets used or useful in the business of the Loan Parties (other than Parent), which investment may include the repair, restoration or replacement of the applicable assets thereof; provided, further, pending any such investment, all such Net Insurance/Condemnation Proceeds shall be invested in Cash or Cash Equivalents and deposited in an account at EWB and held therein until such time as such Net Insurance/Condemnation Proceeds are applied in payment of such investment. In the event that any Net Insurance/Condemnation Proceeds are not reinvested by the Loan Parties prior to the earlier of (i) the last day of such one hundred eighty (180) day period, and (ii) the date of the occurrence of a Default or an Event of Default, Administrative Agent shall apply such Net Insurance/Condemnation Proceeds to the Obligations as set forth in Section 2.15.

(c)          Issuance of Debt. On the date of receipt by any Loan Party or any of its Subsidiaries of any cash proceeds from the incurrence of any Indebtedness of any Loan Party or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 7.07), Borrower shall prepay (and/or cash collateralize) the Obligations as set forth in Section 2.15 in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including Attorney Costs.

60

(d)          Issuance of Equity Securities. On the date of receipt by any Loan Party or any of its Subsidiaries of any cash proceeds from the issuance of any Equity Security by any Loan Party or any of its Subsidiaries, Borrower shall prepay (and/or cash collateralize) the Obligations as set forth in Section 2.15 in an aggregate amount equal to 100% of such proceeds, net of commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including Attorney Costs; provided that, so long as no Default or Event of Default shall have occurred and be continuing, such prepayment shall not apply to cash proceeds of any issuance of Equity Securities by Parent during the fiscal year ending on December 31, 2016 and shall apply only to cash proceeds in excess of $4,000,000 in any fiscal year during the fiscal year ending December 31, 2017 and thereafter.

(e)          Excess Cash Flow. In the event that there shall be Excess Cash Flow for any fiscal year of Borrower (commencing with the fiscal year of Borrower ended December 31, 2017), Borrower shall, no later than the earlier of (i) one hundred (100) days after the end of such fiscal year and (ii) the date of delivery by Borrower of the financial statements described in Section 6.01(a), prepay (and/or cash collateralize) the Obligations as set forth in Section 2.15 in an aggregate amount equal to (1) seventy-five percent (75%) of such Excess Cash Flow for such fiscal year if the Total Leverage Ratio, measured for such fiscal year before giving effect to such payment of Excess Cash Flow, is greater than 4.00:1.00 or (2) fifty percent (50%) of such Excess Cash Flow for such fiscal year if the Total Leverage Ratio, measured for such fiscal year before giving effect to such payment of Excess Cash Flow, is less than or equal to 4.00:1.00.

(f)          Prepayment Certificate. Concurrently with any prepayment of the applicable Class of Loans pursuant to Section 2.14(a) through Section 2.14(e) and Section 2.14(g), Borrower shall deliver to Administrative Agent a certificate of an authorized officer of Borrower demonstrating the calculation of the amount of Net Asset Sales Proceeds, Net Insurance/Condemnation Proceeds, Excess Cash Flow, damages, refund, other payment and compensation or gross equity proceeds owing to the applicable Class of Lenders under, if any. In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the applicable Class of Loans in an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of a Senior Officer of Borrower demonstrating the derivation of such excess.

(g)          Overadvance. If the Revolving Loan Exposure at any time exceeds the Revolving Loan Commitments, Borrower shall prepay the Revolving Loans (or Cash Collateralize Letter of Credit Obligations, if prepayment in full of the Revolving Loans is not sufficient) in such amounts as shall be necessary so that Revolving Loan Exposure does not exceed the Revolving Loan Commitment.

2.15         Application of Prepayments.

(a)          Prepayments. So long as no Event of Default has occurred and is continuing, each mandatory prepayment pursuant to Section 2.14 shall be applied as follows:

first, to the payment of any Obligations due pursuant to Section 3.04(c) and to the payment of all accrued and unpaid interest upon the principal amount of each such mandatory prepayment on a pro rata basis (provided that, Administrative Agent may elect in its sole discretion to not apply such mandatory prepayment to the payments described in this item first in which case such payments will be due and payable on the earlier of (i) the Interest Payment Date immediately following the application of such mandatory prepayment pursuant to this Section 2.15 and (ii) upon five (5) Business Days’ written notice from Administrative Agent);

61

second, except with respect to prepayments made pursuant to Section 2.14(g), to the prepayment of the outstanding principal amount of all Term Loans on a pro rata basis (with the amount of such prepayment of Term Loans being applied to the remaining Installments in inverse order of maturity), subject to the application of Section 2.15(b);

third, to the prepayment of all outstanding Swingline Loans (with no permanent reduction in Revolving Loan Commitments) on a pro rata basis, subject to the application of Section 2.15(b);

fourth, to the prepayment of all outstanding Revolving Loans (with no permanent reduction in Revolving Loan Commitments) on a pro rata basis, subject to the application of Section 2.15(b);

fifth, to Cash Collateralize the Letter of Credit Obligations;

sixth, to cash collateralize Secured Hedging Obligations entered into by Borrower with respect to any Class of Loans on a pro rata basis, pursuant to an arrangement satisfactory to Administrative Agent and the applicable Secured Parties;

seventh, to cash collateralize Secured Hedging Obligations not described in item fifth above, on a pro rata basis, pursuant to an arrangement satisfactory to Administrative Agent and the applicable Secured Parties;

eight, to cash collateralize Obligations pursuant to a Secured Treasury Management Agreement, on a pro rata basis, pursuant to an arrangement satisfactory to Administrative Agent and the applicable Secured Parties;

ninth, to any other Obligation that is due and payable; and

tenth, any amount remaining may be retained by Borrower.

(b)          Application of Prepayments of Loans to Base Rate Loans and LIBOR Rate Loans; Accompanying Amounts and Interest. Considering each Class of Loans being prepaid separately, any prepayment of the Swingline Loans, Revolving Loans or Term Loans shall be applied first to Base Rate Loans to the full extent thereof before application to LIBOR Rate Loans, in each case in a manner which minimizes the amount of any payments required to be made by Borrower pursuant to Section 3.04(c). All prepayments shall be accompanied by (i) any amounts owed pursuant to Section 3.04(c) and (ii) any accrued and unpaid interest upon the principal amount of such prepayment (provided that, Administrative Agent may elect in its sole discretion to cause such amounts and interest payments to be due and payable on the earlier of (1) the Interest Payment Date immediately following such prepayment and (2) demand by Administrative Agent).

62

2.16         General Provisions Regarding Payments.

(a)          All payments by Borrower of principal, interest, fees and other Obligations of the applicable Class shall be made in Dollars in immediately available funds, without defense, recoupment, set-off or counterclaim, free of any restriction or condition, and delivered to Administrative Agent, for the account of the applicable Class of Lenders, not later than 12:00 p.m. (Pacific time) on the date due via wire transfer of immediately available funds to such account as Administrative Agent may designate from time to time; funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Borrower on the next Business Day.

(b)          All payments in respect of the principal amount of any Loan of a particular Class shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid.

(c)          Administrative Agent shall promptly distribute to each Lender of the applicable Class at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due with respect thereto, including all fees payable with respect thereto, to the extent received by Administrative Agent.

(d)          Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any LIBOR Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.

(e)          Subject to the provisos set forth in the definition of “Interest Period,” whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder.

(f)          Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is not made in same day funds prior to 2:00 p.m. (Pacific time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds and (ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic notice to Borrower for payments and each Lender of the applicable Class (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.01(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the Default Rate determined pursuant to Section 2.10 from the date such amount was due and payable until the date such amount is paid in full.

63

(g)          Unless Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to Administrative Agent such Lender’s share of such Borrowing, Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.01(b), Section 2.02(b) and Section 2.04(b), as applicable, and may, in reliance upon such assumption, make available to Borrower a corresponding amount on such date. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to Administrative Agent, then the applicable Lender and Borrower severally agree to pay to Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to Borrower to but excluding the date of payment to Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of a payment to be made by Borrower, the interest rate applicable to LIBOR Rate Loans. If Borrower and such Lender shall pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent shall promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to Administrative Agent.

(h)          Unless Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to Administrative Agent for the account of the Lenders or Issuing Bank hereunder that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or Issuing Bank, as the case may be, the amount due. In such event, if Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation.

64

2.17         Ratable Sharing. Lenders hereby agree among themselves that, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans of a particular Class made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the applicable Bankruptcy Code or other Debtor Relief Laws, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents for any Class of Loans (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender holding the same Class of Loans in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender holding the same Class of Loans of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders holding the same Class of Loans so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders holding the same Class of Loans in proportion to the Aggregate Amounts Due to them; provided, (i) if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest; and (ii) the provisions of this Section 2.17 shall not be construed to apply to (1) any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (2) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or its participations to any assignee or participant. Each Loan Party expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise against each Loan Party any and all rights of banker’s lien, set-off or counterclaim with respect to any and all monies owing by any Loan Party to that holder with respect thereto as fully as if that holder were a direct creditor of each Loan Party in the amount of the participation held by that holder.

2.18         Defaulting Lenders.

(a)          Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i)          Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Requisite Lenders.

65

(ii)         Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 10.21 shall be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to Issuing Bank or the Swingline Lender hereunder; third, to Cash Collateralize Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.19; fourth, to Cash Collateralize the Swingline Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.19; fifth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; sixth, if so determined by Administrative Agent and Borrower, to be held in a Deposit Account and released pro rata in order to (1) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (2) Cash Collateralize Issuing Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.19; seventh, to the payment of any amounts owing to the Lenders, Issuing Bank or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; eighth, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and ninth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans, Letter of Credit Advances or Swingline Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (B) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, or Letter of Credit Advances or Swingline Loans owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Advances or Swingline Loans owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swingline Obligations are held by the Lenders pro rata in accordance with the Commitments under the applicable Credit Facility without giving effect to Section 2.18(a)(iv) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.18(a) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)        Certain Fees.

(1)         No Defaulting Lender shall be entitled to receive any Revolving Loan Facility Unused Commitment Fee for any period during which that Lender is a Defaulting Lender (and Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(2)         Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.19.

(3)         With respect to any Revolving Loan Facility Unused Commitment Fee or Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (1) or (2) above, Borrower shall (A) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (B) pay to Issuing Bank the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to Issuing Bank’s Fronting Exposure to such Defaulting Lender, and (C) not be required to pay the remaining amount of any such fee.

66

(iv)        Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Letter of Credit Obligations and Swingline Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (1) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless Borrower shall have otherwise notified Administrative Agent at such time, Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (2) such reallocation does not cause any Non-Defaulting Lender’s Pro Rata Share of the Revolving Loan Exposure to exceed such Non-Defaulting Lender’s Revolving Loan Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v)         Cash Collateral; Repayment of Swingline Loans. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (1) first, prepay the Swingline Obligations, (2) second, Cash Collateralize the Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 2.19, and (3) third, Cash Collateralize the Swingline Lender’s Fronting Exposure in accordance with the procedures set forth in Section 2.19.

(vi)        Defaulting Lender Cure. If Borrower, Administrative Agent, Issuing Bank and Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.18(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(vii)       New Swingline Loans/ Letters of Credit. So long as any Lender is a Defaulting Lender (1) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (2) Issuing Bank shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

67

2.19         Cash Collateral. At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of Administrative Agent or Issuing Bank (with a copy to Administrative Agent), Borrower shall Cash Collateralize Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.18(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.

(a)          Grant of Security Interest. Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to Administrative Agent, for the benefit of the Issuing Bank, and agrees to maintain, a First Priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letter of Credit Obligations, to be applied pursuant to clause (b) below. If at any time Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than Administrative Agent and Issuing Bank as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, Borrower will, promptly upon demand by Administrative Agent, pay or provide to Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

(b)          Application. Notwithstanding anything to the contrary contained in this Agreement, (i) Cash Collateral provided under this Section 2.19 or Section 2.18 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letter of Credit Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein and (ii) Cash Collateral provided under this Section 2.19 or Section 2.18 in respect of Swingline Obligations or the Swingline Lender’s Fronting Exposure shall be held and applied in satisfaction of the Swingline Obligations, obligations to fund participations therein (including as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(c)          Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.19 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by Administrative Agent and Issuing Bank and/or Swingline Lender, as the case may be, that there exists excess Cash Collateral; provided that, subject to Section 2.18, (1) any such release shall be without prejudice to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (2) the Person providing Cash Collateral and Issuing Bank and Swingline Lender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided, further, that to the extent that such Cash Collateral was provided by Borrower, such Cash Collateral remains subject to the security interests granted pursuant to the Loan Documents.

68

2.20         Termination and Reduction of Revolving Loan Commitment.

Borrower may, upon irrevocable notice to Administrative Agent, terminate the Revolving Loan Commitments or from time to time permanently reduce the Revolving Loan Commitments; provided that (a) any such notice shall be received by Administrative Agent not later than 2:00 p.m. (Pacific time) three (3) Business Days prior to the date of termination or reduction, (b) any such partial reduction shall be in an aggregate amount of $250,000 or any whole multiple of $50,000 in excess thereof, (c) Borrower shall not terminate or reduce the Revolving Loan Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the outstanding amount of all Revolving Loans would exceed the Revolving Loan Commitments, and (d) if, after giving effect to any reduction or termination of the Revolving Loan Commitments, the Letter of Credit Sublimit exceeds the amount of the Revolving Loan Commitments, such Letter of Credit Sublimit shall be automatically reduced by the amount of such excess. Administrative Agent will promptly notify the Revolving Loan Lenders of any such notice of termination or reduction of the Revolving Loan Commitments. Any reduction of the Revolving Loan Commitments shall be applied to the Revolving Loan Commitment of each Revolving Loan Lender, in each case, according to its Pro Rata Share. All fees accrued until the effective date of any termination of the Revolving Loan Commitments shall be paid on the effective date of such termination.

SECTION 3

TAXES, YIELD PROTECTION AND ILLEGALITY

3.01         Taxes.

(a)          Any and all payments by Borrower to or for the account of Administrative Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and all interest, additions to tax, penalties or other liabilities with respect thereto (“Taxes”), excluding the following (collectively, “Excluded Taxes”): (i) franchise Taxes and Taxes imposed or measured by Administrative Agent’s or Lender’s (as the case may be) overall net income, that are imposed on it by the jurisdiction (or any political subdivision thereof) (1) under the Laws of which Administrative Agent or Lender (as the case may be) is organized or maintains a lending office, or (2) with which Administrative Agent or such Lender otherwise has a present or former connection (other than any such connection arising solely from Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document); (ii) any branch profits Tax imposed by the United States or any similar Tax imposed by another jurisdiction in which Borrower is located; (iii) any Taxes that are attributable to Administrative Agent’s or such Lender’s failure or inability to comply with Section 3.01(f) below; (iv) United States withholding Taxes required to be imposed on amounts payable to Administrative Agent or any Lender pursuant to the Laws in force at the time Administrative Agent or such Lender becomes a party to this Agreement, except, if Lender designates a new lending office or becomes a party to this Agreement pursuant to an assignment, withholding Taxes shall not be Excluded Taxes to the extent that such Taxes were not Excluded Taxes with respect to Lender or its assignor, as the case may be, immediately before such designation of a new lending office or assignment; and (v) United States withholding Taxes imposed by FATCA. If Borrower is required by any Law to deduct any Taxes other than Excluded Taxes (“Indemnified Taxes”) from or in respect of any sum payable under any Loan Document to Lender, (1) the sum payable shall be increased as necessary so that after making all required deductions of Indemnified Taxes (including deductions applicable to additional sums payable under this Section), Lender receives an amount equal to the sum it would have received had no such deductions been made, (2) Borrower shall make such deductions, (3) Borrower shall timely pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (4) as soon as possible, but in any event within thirty (30) days after the date of such payment, Borrower shall furnish to Administrative Agent or such Lender the original or a certified copy of a receipt issued by such taxation or other authority evidencing payment thereof.

69

(b)          In addition, Borrower agrees to pay any and all present or future stamp, excise, court, or documentary Taxes, charges or similar levies, which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document, other than Taxes that are imposed with respect to an assignment and that are imposed as a result of a pre-existing connection between Administrative Agent or Lender and the jurisdiction imposing the Tax (other than any such pre-existing relationship arising solely from the Opus Credit Agreement) (such Taxes that Borrower agrees to pay hereinafter referred to as “Other Taxes”).

(c)          If Borrower shall be required by the Laws of any jurisdiction outside the United States to deduct any Indemnified Taxes from or in respect of any sum payable under any Loan Document to Lender, Borrower shall also pay to Administrative Agent (for payment to the applicable Lender), at the time interest is paid, such additional amount that such Lender specifies as necessary to preserve the after-tax yield (after factoring in United States (federal and state) Taxes imposed on or measured by net income, and taking into account any foreign tax credits available under Sections 901 through 903 of the Code or similar credit or exemption under a similar state law attributable to Borrower’s payment of such Indemnified Taxes) such Lender would have received if such deductions (including deductions applicable to additional sums payable under this Section) had not been made. A certificate that such Lender delivers to Borrower as to any such additional amount shall be conclusive absent manifest error.

(d)          Without duplication of any amounts payable under clauses (a), (b) or (c) above, Borrower agrees to indemnify, defend and hold Administrative Agent and each Lender harmless for (i) the full amount of Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section) payable or paid by Administrative Agent and/or such Lender; and (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Borrower shall make payment under this subsection (d) as soon as practicable after the date Administrative Agent or Lender makes a demand therefor.

70

(e)          Each Lender shall severally indemnify Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that Borrower has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.04 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this subsection (e).

(f)          Each Lender, on or prior to the date on which such Lender becomes a Lender under this Agreement, and from time to time thereafter if reasonably requested in writing by Borrower, shall provide Borrower with (i) if such Lender is not a “United States Person” as that term is defined in Section 7701(a)(30) of the Code (“U.S. Person”) (a “Non- U.S. Lender”), a complete and properly executed IRS Form W-8BEN, W-8BEN-E, W-8ECI or W-8IMY (including all required accompanying information), as appropriate, or any successor form prescribed by the IRS (including a United States taxpayer identification number), certifying that such Non-U.S. Lender is entitled to benefits under an income Tax treaty to which the United States is a party that reduces the rate of withholding Tax on payments of interest, certifying that such Non-U.S. Lender is eligible for the “portfolio interest exemption” or certifying that the income receivable pursuant to this Agreement is effectively connected with the conduct of a trade or business in the United States or (ii) if Lender is a U.S. Person, an IRS Form W-9 or any successor form prescribed by the IRS. If a payment made by Borrower to Lender or Administrative Agent would be subject to U.S. federal withholding Tax imposed by FATCA if such person were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such person shall deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender or Administrative Agent has complied with such Lender’s or Administrative Agent’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. In addition, each Lender will (1) take all actions reasonably requested in good faith by Borrower in writing that are consistent with applicable legal and regulatory restrictions to claim any available reductions or exemptions from Indemnified Taxes or Other Taxes and (2) otherwise cooperate with Borrower to minimize any amounts payable by Borrower under this Section 3.01; provided that, in each case, any out-of-pocket cost relating directly to such action or cooperation requested by Borrower shall be borne solely by Borrower, and no Lender shall be required to take any action that it determines in its sole good faith discretion may be adverse in any non de minimis respect to it and not indemnified to its satisfaction.

71

(g)          If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

3.02        Increased Costs; Capital Requirements.

(a)          Compensation For Increased Costs. If any Change in Law shall:

(i)          impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the LIBOR Rate) or Issuing Bank or Swingline Lender;

(ii)         subject any Recipient to any Taxes (other than (1) Indemnified Taxes, (2) Taxes described in clauses (ii) through (v) of the definition of “Excluded Taxes” and (3) Connection Income Taxes) on its loans, loan principal, commitments, letters of credit or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)        impose on any Lender, Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or the Class of Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan of that Class, or to increase the cost to such Lender, Issuing Bank or such other Recipient of participating in, issuing, entering or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue or enter into any Letter of Credit) or of maintaining its obligation to make any such Loan in such Class, or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, Issuing Bank or such other Recipient, Borrower will pay to such Lender, Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

72

(b)          Capital Requirements; Certificates for Reimbursement; Delay in Requests.

(i)          Capital Requirements. If any Lender or Issuing Bank determines that any Change in Law affecting such Lender, Issuing Bank or any lending office of such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Class of Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.

(ii)         Certificates for Reimbursement. A certificate of a Lender or Issuing Bank (A) setting forth in reasonable detail the additional amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in this Section 3 and delivered to Borrower shall be conclusive absent manifest error and (B) certifying that Lender or Issuing Bank, as the case may be, is generally taking comparable action with respect to its other borrowers in similar circumstances. Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.

(iii)        Delay in Requests. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to Section 3.02(a) or Section 3.02(b)(i) shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to Section 3.02(a) or Section 3.02(b)(i) for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or Issuing Bank, as the case may be, notifies Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s or Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to include the period of retroactive effect thereof).

73

3.03         Mitigation of Obligations; Replacement of Lenders.

(a)          Designation of a Different Lending Office. If any Lender requests compensation under Section 3.02(a) or Section 3.02(b), or requires Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, then such Lender shall (at the request of Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.02(a), Section 3.02(b) or Section 3.01, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)          Replacement of Lenders. If any Lender requests compensation under Section 3.02(a) or Section 3.02(b), or if Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.03(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrower may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.04), all of its interests, rights (other than its existing rights to payments pursuant to Section 3.02(a), Section 3.02(b) or Section 3.01) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if any other Lender accepts such assignment); provided that:

(i)          Borrower or such Eligible Assignee shall have paid to Administrative Agent the assignment fee specified in Section 10.04;

(ii)         such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, participations in Letter of Credit Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.04(c)) from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts);

(iii)        in the case of any assignment resulting from a claim for compensation under Section 3.02(a) or Section 3.02(b) or payments required to be made pursuant to Section 3.03, such assignment will result in a reduction in such compensation or payments thereof;

(iv)        such assignment does not conflict with applicable Law; and

74

(v)         in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Eligible Assignee shall have consented to the applicable amendment, waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.

3.04         Making or Maintaining LIBOR Rate Loans.

(a)          Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties absent manifest error), on any Interest Rate Determination Date with respect to any LIBOR Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such LIBOR Rate Loans on the basis provided for in the definition of “LIBOR Rate”, Administrative Agent shall on such date give notice (by facsimile or by telephone confirmed in writing) to Borrower and each Lender of such determination, whereupon (i) no Loans of the applicable Class may be made as, or converted to, LIBOR Rate Loans until such time as Administrative Agent notifies Borrower and the Lenders of that Class that the circumstances giving rise to such notice no longer exist, and (ii) any Notice of Borrowing or Conversion/Continuation Notice given by Borrower with respect to the applicable Class of Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower, as the case may be. Administrative Agent shall promptly notify Borrower and the Lenders when the circumstances giving rise to a notice pursuant to this Section 3.04(a) no longer exist.

(b)          Illegality or Impracticability of LIBOR Rate Loans. In the event that (i) any Lender shall determine (which determination shall be final and conclusive and binding upon all parties absent manifest error, but shall be made only after consultation with Borrower) that the making, maintaining or continuation of its LIBOR Rate Loans (1) has become unlawful or impossible as a result of a Change in Law or as a result of compliance by such Lender in good faith with any Law (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of Law even though the failure to comply therewith would not be unlawful) or (2) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market or (ii) any Lender shall have determined that LIBOR Rate for any requested Interest Period with respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to such Lender of funding such LIBOR Rate Loan, then, and in any such event, any such affected Lender shall be an “Affected Lender” and it shall give notice (by telephone confirmed in writing) to Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Upon receipt of such notice by Borrower, (A) the obligation of the Affected Lender to make Loans of the affected Class as, or to convert Loans of the affected Class to, LIBOR Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (B) to the extent such determination by the Affected Lender relates to a LIBOR Rate Loan then being requested by Borrower pursuant to a Notice of Borrowing or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (C) unless and until such notice shall be withdrawn by the Affected Lender, such Affected Lender’s obligation to maintain its outstanding LIBOR Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by Law, and (D) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding anything herein to the contrary, to the extent a determination by an Affected Lender as described above relates to a LIBOR Rate Loan then being requested by Borrower pursuant to a Notice of Borrowing or a Conversion/Continuation Notice, Borrower shall have the option, subject to the provisions of Section 3.04(c), to rescind such Notice of Borrowing or Conversion/Continuation Notice as to all Lenders of the affected Class by giving notice (by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender of such affected Class). Except as provided in the immediately preceding sentence, nothing in this Section 3.04(b) shall affect the obligation of any Lender of a particular Class other than an Affected Lender to make or maintain Loans of that Class as, or to convert Loans of that Class to, LIBOR Rate Loans in accordance with the terms hereof. Any Affected Lender shall promptly notify Borrower and Administrative Agent when the circumstances giving rise to a notice pursuant to this Section 3.04(b) no longer exist.

75

(c)          Compensation for Breakage or Non-Commencement of Interest Periods. Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid or calculated to be due and payable by such Lender to lenders of funds borrowed by it to make or carry its LIBOR Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds and including loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a Borrowing of any such LIBOR Rate Loan does not occur on a date specified therefor in a Notice of Borrowing or a telephonic request for Borrowing, or a conversion to or continuation of any such LIBOR Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its LIBOR Rate Loans occurs on any day other than the last day of an Interest Period applicable to such LIBOR Rate Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); (iii) if any prepayment of any of its LIBOR Rate Loans are not made on any date specified in a notice of prepayment given by Borrower; or (iv) any assignment of a LIBOR Rate Loan on a day other than the last day of the Interest Period thereof as a result of a request by Borrower pursuant to Section 3.03.

(d)          Booking of LIBOR Rate Loans. Any Lender may make, carry or transfer LIBOR Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.

(e)          Assumptions Concerning Funding of LIBOR Rate Loans. Calculation of all amounts payable to a Lender under this Section 3.04 and under Section 3.02 shall be made as though such Lender had actually funded each of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit bearing interest at the “LIBOR Rate” in an amount equal to the amount of such LIBOR Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such LIBOR deposit from an offshore office of such Lender to a domestic office of such Lender in the United States; provided that each Lender may fund each of its LIBOR Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 3.04 and under Section 3.02.

76

3.05         Matters Applicable to all Requests for Compensation. Administrative Agent, or any Lender, if claiming compensation under this Section 3, shall deliver to Borrower a certificate (i) setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder, which shall be conclusive absent manifest error and (ii) certifying that Administrative Agent, or Lender, as applicable, is generally taking comparable action with respect to its other borrowers in similar circumstances. In determining such amount, Lenders may use any reasonable averaging and attribution methods.

3.06         Survival. Each party’s obligations under this Section 3 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender or Issuing Bank, the termination of the Commitments and the repayment, satisfaction, discharge or cash collateralization of all Obligations under any Loan Document.

SECTION 4

CONDITIONS PRECEDENT

4.01         Conditions of Effectiveness. Subject to Section 6.19, the effectiveness of this Agreement is subject to satisfaction or waiver by Administrative Agent of the following conditions precedent immediately prior to or concurrently with the making of any Loans or Letter of Credit Extensions hereunder:

(a)          Unless waived by Administrative Agent and Lenders, Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles, including pdfs or similar electronic transmission (followed promptly by originals) unless otherwise specified, each properly executed by a Senior Officer of Borrower or the applicable Guarantor (including the Target Company), each dated on, or in the case of third-party certificates, dated on or as of a recent date before, the Closing Date and each in form and substance satisfactory to Administrative Agent, each Lender and their legal counsel:

(i)          executed counterparts of the Loan Documents;

(ii)         executed original counterparts of each Subordination Agreement, each in form and substance satisfactory to Administrative Agent;

(iii)        modifications to Subordinated Debt in form and substance acceptable to Administrative Agent in its sole discretion, including necessary consents to consummate the transactions contemplated by this Agreement;

77

(iv)        amendments to the existing UCC financing statements of the Subordinated Praesidian Agent as described in the Praesidian Subordination Agreement;

(v)         amendments to the Organization Documents of the Loan Parties in form and content reasonably acceptable to Administrative Agent;

(vi)        such certificates of resolutions or other action, incumbency certificates and/or other certificates of Senior Officers of Borrower and each Guarantor, as Administrative Agent may require to establish the identities of and verify the authority and capacity of each Senior Officer thereof authorized to act as a Senior Officer thereof;

(vii)       such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower and each Guarantor is duly organized or formed, validly existing, in good standing and qualified to engage in business in Borrower’s or such Guarantor’s jurisdiction of organization and in each foreign jurisdiction in which Borrower or such Guarantor is required to be qualified, including copies of Borrower’s and each Guarantor’s Organization Documents certified by the corporate Secretary, certificates of good standing and/or qualification to engage in business and, if requested by Administrative Agent, tax clearance certificates;

(viii)      a Perfection Certificate signed by a Senior Officer of the Loan Parties;

(ix)         a certificate signed by a Senior Officer of Borrower certifying that (1) the representations and warranties made by each Loan Party in the Loan Documents are true and correct on and as of the Closing Date (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (2) each Loan Party is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, (3) since December 31, 2015, there has been no event or circumstance which has or has had a Material Adverse Effect; and (4) a pro forma calculation of the Total Leverage Ratio of less than 4.50x, Senior Leverage Ratio of less than 3.00x, Adjusted EBITDA of the Parent on a Consolidated Basis of not less than $15,630,000, and Adjusted EBITDA of Borrower on a Consolidated Basis of not less than $19,130,000 (in each case giving effect to the Target Transaction and the funding of the Term Loans on the Closing Date);

(x)          an opinion of Kelley Drye & Warren LLP, Morgan Lewis & Bockius LLP, Keating Muething & Klekamp PLL and Bilzin Sumberg Baena Price & Axelrod LLP, each legal counsels to the Loan Parties, as to matters Administrative Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance satisfactory to Administrative Agent;

78

(xi)         Loan Parties shall have received all Governmental Authorizations and all Consents, in each case that are necessary in connection with the entry into, consummation and performance of the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion shall have expired;

(xii)        Administrative Agent and the Lenders shall have received all documentation and other information required by such institution or its bank regulatory authorities under Sanctions, Anti-Terrorism Laws, Anti-Corruption Laws and other Laws, including the USA PATRIOT Act;

(xiii)       evidence, reasonably satisfactory to Administrative Agent, that Borrower has completed, or concurrently with the making of the initial extension of credit will complete, the Target Transaction in accordance with the terms of the Target Acquisition Documents (without any material amendment thereto or waiver thereunder unless consented to by Administrative Agent). Administrative Agent shall have received a copy of the Target Acquisition Agreement and all supplements, amendments, installments, documents and agreements related thereto, certified by a Senior Officer, dated the Closing Date, as correct and complete;

(xiv)      evidence reasonably satisfactory to Administrative Agent that the sum of the aggregate purchase price under the Target Transaction is not in excess of $28,000,000;

(xv)       evidence that at least $5,000,000 of the purchase price of the Target Company under the Target Acquisition Agreement has been or is being satisfied by the issuance of Equity Securities by Parent to the seller of the Target Company concurrent with the consummation of the Acquisition of the Target Company;

(xvi)      receipt of certificates of insurance required to be maintained under Section 6.09, from insurance carriers acceptable to Administrative Agent, which certificates of insurance are in such forms and evidence such amounts of insurance coverage and deductibles acceptable to Administrative Agent pursuant to insurance policies with additional insured and lender loss payable clauses in favor of Administrative Agent and the Lenders;

(xvii)     receipt of a copy of the representations and warranty insurance in favor of Borrower, from an insurance carrier acceptable to Administrative Agent, which policy of insurance is in such forms and evidences such amounts of insurance coverage and deductibles acceptable to Administrative Agent;

79

(xviii)    the Target Quality of Earnings Report, in form and substance reasonably acceptable to Administrative Agent and the Lenders in all respects;

(xix)       confirmation of the satisfactory completion of each Lender’s due diligence, including satisfactory completion by Administrative Agent of results (satisfactory in form and substance to Administrative Agent and Requisite Lenders) of all due diligence items requested and reviewed in connection with the Target Transaction and the Target Acquisition Agreement and related documents; and

(xx)        such other assurances, certificates, documents, consents or opinions as Administrative Agent reasonably may require.

(b)          All fees (including fees required to be paid on or before the Closing Date as specified in the Commitment Letter) shall have been paid.

(c)          Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).

(d)          Each of the conditions in Section 4.01 and Section 4.02 have been satisfied.

4.02         Conditions to Each Loan. In addition to the applicable conditions precedent set forth elsewhere in this Section 4, the obligation of Lenders to make any Loan or any Letter of Credit Extension is subject to the satisfaction of the following conditions precedent:

(a)          Lender shall have received a notice of borrowing with respect to such Loan, substantially in the form of Exhibit A-1, attached hereto (a “Notice of Borrowing”); and

(b)          Both before and after giving effect to such Loan or Letter of Credit Extension, (i) the representations and warranties of Borrower in Section 5 shall be true and correct (or in all material respects for such representations and warranties that are not by their terms already qualified as to materiality) on and as of the date of such Loan or Letter of Credit Extension, except to the extent that any such representation and warranty relates to a specific earlier date, in which case such representation and warranty shall be true and correct (or in all material respects for such representations and warranties that are not by their terms already qualified as to materiality) as of such earlier date, and (ii) no Default or Event of Default shall exist or result from such Loan or Letter of Credit Extension. The making of each Loan and Letter of Credit Extension shall be deemed to be a representation and warranty by Borrower on the date thereof as to the matters contained in the foregoing sentence.

80

SECTION 5

REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants, in respect of itself and on behalf of each other Loan Party, to Administrative Agent and each Lender that:

5.01         Existence and Power. Each Loan Party and each of its Subsidiaries: (i) is a corporation, limited liability company or limited partnership, as applicable, duly formed, validly existing and in good standing under the laws of its jurisdiction of organization or formation; (ii) has all requisite power and authority to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged; (iii) is duly qualified as a foreign entity, licensed and in good standing under the laws of its state of organization or formation and of each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except to the extent that the failure to so qualify would not have a Material Adverse Effect; and (iv) has the power and authority to execute, deliver and perform its obligations under each Loan Document to which it is or will be a party and, in the case of Borrower, to borrow hereunder. Schedule 5.01 contains a true, complete and correct list of each Loan Party’s and each of its Subsidiaries’ jurisdiction of organization or formation (as applicable) and each jurisdiction where each such Loan Party or its Subsidiary is qualified to do business as a foreign entity.

5.02         Authorization; No Contravention. The execution, delivery and performance by Borrower of this Agreement and by each Loan Party of each other Loan Document to which it is or will be a party and the consummation of the transactions contemplated hereby and thereby, including the borrowings or performance of the terms and conditions of this Agreement and the other Loan Documents: (a) has been duly authorized by all necessary action (including, obtaining approval of its stockholders, partners, general partners, members or other applicable equity owners, if necessary); (b) do not and will not contravene the terms of the Organization Documents of such Loan Party or any of its Subsidiaries, or any amendment thereof or any Law or Consent applicable to such Person or such Person’s assets, business or properties; (c) do not and will not (i) conflict with, contravene, result in any violation or breach of or default under (with or without the giving of notice or the lapse of time or both), (ii) create in any other Person a right or claim of termination or amendment of, or (iii) require modification, acceleration or cancellation of, any Contractual Obligation of any Loan Party or any of its Subsidiaries; and (d) do not and will not result in the creation of any Lien (or obligation to create a Lien) against any property, asset or business of any Loan Party or any of its Subsidiaries (other than Permitted Liens).

5.03         Governmental Authorization; Third Party Consents. No approval, consent, compliance, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person in respect of any applicable Law, Consent or Contractual Obligation, and no lapse of a waiting period under any applicable Law, Consent or Contractual Obligation, is necessary or required in connection with the execution, delivery or performance by (including the payment of interest on the Loans or other Obligations), or enforcement against (except for any Consents that may be required from a Governmental Authority before Administrative Agent may exercise certain rights in connection with an Event of Default), any Loan Party of the Loan Documents to which it is a party or the consummation of the transactions contemplated hereby or thereby.

5.04         Binding Effect. This Agreement has been, and each of the Loan Documents to which any Loan Party will be a party will be, duly executed and delivered by such Loan Party and this Agreement constitutes, and such Loan Documents will constitute, the legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise), examination, administration, judicial management, moratorium or similar Debtor Relief Laws (in any applicable jurisdiction) relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

81

5.05         Litigation. There are no legal actions, suits, proceedings, claims or disputes pending or, to the knowledge of Borrower, threatened, at law, in equity, in arbitration or before any Governmental Authority against or affecting such Loan Party or any of its Subsidiaries that (a) purport to affect or pertain to this Agreement, any other Loan Document, any Subordinated Debt Document, the Target Acquisition Documents or any of the transactions contemplated hereby or thereby, or (b) could reasonably be expected to result in equitable relief or in monetary judgments, individually in excess of $500,000 or in the aggregate, in excess of the Threshold Amount. No injunction, writ, temporary restraining order, decree or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of the Loan Documents or the Subordinated Debt Documents.

5.06         Compliance with Laws. Each Loan Party and each of its Subsidiaries is in compliance, in all material respects, with all applicable Laws and applicable Consents of any Governmental Authority.

5.07         No Default or Breach. No event has occurred and is continuing or would result from the incurring of obligations by the Loan Parties under the Loan Documents which constitutes or, with the giving of notice or lapse of time or both, would constitute an Event of Default. Neither any Loan Party nor any of its Subsidiaries is in default under or with respect to any Contractual Obligation in any material respect.

5.08         Title to Properties.

(a)          Schedule 5.08(a) contains a true, complete and correct list of all real property owned by any Loan Party or any of its Subsidiaries. Each Loan Party and/or each of its Subsidiaries has good indefeasible and marketable title in and to all such owned real property, in each case, free and clear of all Liens, liabilities and rights except for Permitted Liens and as provided on Schedule 5.08(a).

(b)          Schedule 5.08(b) contains a list of all real property leased by any Loan Parties or any of its Subsidiaries. Each Loan Party and/or each of its Subsidiaries holds all of the right, title and interest of the tenant under such leased real property free and clear of all Liens, liabilities and rights except as provided on Schedule 5.08(b).

82

5.09         Use of Real Property. Except as set forth on Schedule 5.09, (a) the owned and leased real properties of the Loan Parties and their respective Subsidiaries are used and operated in compliance and conformity with all Contractual Obligations and all applicable Law and Consent, except to the extent that the failure so to comply would not have a Material Adverse Effect, and (b) neither any Loan Party nor any of its Subsidiaries has received notice of violation of any applicable zoning or building regulation, ordinance or other Law or Consent relating to the operations of any Loan Party or any of its Subsidiaries at any such location and there is no such violation which could reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 5.09, all structures, improvements and other buildings that are owned by the Loan Parties and their respective Subsidiaries or covered by leases used in connection with the Business comply in all material respects with all applicable Law and Consents, have a valid and subsisting certificate of occupancy for their present use, and neither any Loan Party nor any of its Subsidiaries has received any written notice from any Governmental Authority which is still outstanding of any failure to obtain any certificate, permit, license, authorization or approval with respect to the real property, or any intended revocation, modification or cancellation of same, and no applicable Law or Consent presently in effect or condition precludes or materially restricts continuation of the present use of such properties. Each lease relating to leased real property of the Loan Parties or any of their respective Subsidiaries, is in full force and effect, and the applicable Loan Party and/or Subsidiary enjoys peaceful and undisturbed possession thereunder. There is no default on the part of any Loan Party or any of its Subsidiaries or event or condition which (with notice or lapse of time, or both) would constitute a default on the part of any Loan Party or any of its Subsidiaries, under any such lease. There are no pending or, to the knowledge of any Loan Party, threatened condemnation or eminent domain proceedings that would affect any part of the leased property of the Loan Parties and their respective Subsidiaries. There is no Adverse Proceeding pending or, to the knowledge of any Loan Party, threatened against the owned or leased real property of the Loan Parties and their respective Subsidiaries which would in any way affect title to such real property or leased property.

5.10         Taxes.

(a)          Except as set forth on Schedule 5.10, each Loan Party and each of its Subsidiaries has filed all Tax Returns that it was required to file. All such Tax Returns were true, correct and complete in all material respects. All Taxes, other than de minimis amounts, owed by any Loan Party or any of its Subsidiaries (whether or not shown on any Tax Return) have been paid. Except as set forth on Schedule 5.10, neither any Loan Party nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return. There are no Liens on any of the assets of any Loan Party or any of their respective Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax, other than Permitted Liens as provided on Schedule 5.10.

(b)          Each Loan Party and each of its Subsidiaries has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.

(c)          There is no dispute or claim concerning any Tax liability of any Loan Party or any of its Subsidiaries either (i) claimed or raised by any Governmental Authority in writing or (ii) as to which any Loan Party has knowledge based upon personal contact with any agent of such authority.

(d)          Neither any Loan Party nor any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.

83

(e)          Neither any Loan Party nor any of its Subsidiaries has any liability for the Taxes of any Person other than such Loan Party and its Subsidiaries (i) as a transferee or successor, (ii) by contract, or (iii) otherwise.

(f)          Any reference in this Section 5.10 to any Loan Party shall be deemed to include each predecessor of such Loan Party, each subsidiary of such Loan Party, and each entity with respect to which such Loan Party has successor or transferee liability.

5.11         Financial Statements and Projections.

(a)          The consolidated financial statements of Parent and its Subsidiaries as of December 31, 2014 and December 31, 2015 (i) were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial condition of Parent and its Subsidiaries as of the dates thereof and their results of operations for the periods covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) to the extent required by GAAP, show all material indebtedness and other liabilities, direct or contingent, of Parent and its Subsidiaries as of the dates thereof, including liabilities for Taxes, material commitments and Indebtedness in accordance with GAAP consistently applied throughout the periods covered thereby.

(b)          Since December 31, 2015, there has been no event or circumstance which has or has had a Material Adverse Effect.

(c)          On the date hereof, and after giving effect to all Loans made or Letters of Credit issued on the date hereof, the use of proceeds thereof and the Target Transaction, Borrower is, and the Loan Parties on a consolidated basis are, Solvent.

(d)          The pro-forma balance sheet of Borrower dated as of September 30, 2016 (the “Pro Forma Balance Sheet”) furnished to Administrative Agent prior to the Closing Date reflects the consummation of the transactions contemplated under this Agreement and the other Loan Documents, the Target Acquisition Documents and the Subordinated Debt Documents (all such transactions, collectively, the “Transactions”) and is accurate, complete and correct in all material respects and fairly reflects the financial condition of Borrower as of the Closing Date after giving effect to the Transactions. The Pro Forma Balance Sheet has been certified as accurate, complete and correct in all material respects by a Senior Officer of Borrower.

(e)          The twelve-month cash flow projections of Borrower and its projected balance sheet as of the Closing Date, copies of which are annexed hereto as Schedule 5.11 (collectively, the “Projections”) were prepared by a Senior Officer of Borrower in good faith, are based on underlying assumptions which provide a reasonable basis for the projections contained therein and reflect Borrower’s judgment based on present circumstances of the most likely set of conditions and course of action for the projected period.

84

5.12         Disclosure.

(a)          Agreement and Other Documents. This Agreement and the other Loans Documents, together with all exhibits and schedules hereto and thereto, and the agreements, certificates and other documents furnished to Administrative Agent or any Lender by or on behalf of the Loans Parties and their respective Subsidiaries, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein or therein, in the light of the circumstances under which they were made, not misleading.

(b)          Material Adverse Effects. There is no fact known to any Loan Party which such Loan Party has not disclosed to the Lenders in writing which could reasonably be expected to have a Material Adverse Effect.

5.13         Absence of Certain Changes or Events. Since September 30, 2016, except as set forth on Schedule 5.13 and the incurrence of the Obligations, neither any Loan Party nor any of its Subsidiaries has (a) issued any stock, bonds or other corporate securities, (b) borrowed any amount or incurred any liabilities (absolute or contingent), other than in the ordinary course of business, in excess of $150,000, (c) discharged or satisfied any Lien or incurred or paid any obligation or liability (absolute or contingent), other than in the ordinary course of business or in connection with the repayment in full and termination of the Opus Credit Agreement, in excess of $150,000, (d) declared or made any payment or distribution to the holders of its Equity Securities or purchased or redeemed any shares of its Equity Securities, (e) mortgaged, pledged or subjected to Lien (other than Permitted Liens) any of its assets, tangible or intangible, (f) sold, assigned or transferred any of its tangible assets, or canceled any debts or claims, (g) sold, assigned or transferred any patents, trademarks, trade names, copyrights, trade secrets or other intangible assets, (h) expended any material amount, granted any bonuses or extraordinary salary increases, (i) entered into any transaction involving consideration in excess of $100,000 except as otherwise contemplated hereby or (j) entered into any agreement or transaction, or amended or terminated any agreement, with an Affiliate other than as contemplated by the Loan Documents. Since December 31, 2015, neither any Loan Party nor any of its Subsidiaries has suffered any Material Adverse Effect.

5.14         Environmental Compliance.

(a)          Each Loan Party has duly complied in all material respects with, and its facilities, business, assets, property, leaseholds, owned or, to the knowledge of Borrower, leased real property and equipment are in compliance in all material respects with, all Environmental Laws;

(b)          There is no outstanding investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order, consent decree, settlement agreement or other order or directive (conditional or otherwise), whether pending or threatened in writing under any Environmental Laws relating to the facilities, business, assets, property, leaseholds, owned or, to the knowledge of Borrower, leased real property or equipment of any Loan Party;

(c)          No Loan Party has received any letter or request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law, or any request for information under any Environmental Law;

85

(d)          Each Loan Party has been issued and is in compliance in all material respects with all federal, state and local licenses, certificates or permits relating to all applicable Environmental Laws necessary to own, operate and maintain the facilities, Business, assets, property, leaseholds, real property or equipment of the Loan Parties; and

(e)          (i) There are no signs of material Releases at, upon, under or within any real property owned or, to the knowledge of the Borrower, leased by any Loan Party, (ii) there are no underground storage tanks or to the knowledge of the Borrower, polychlorinated biphenyls on any real property owned or leased by any Loan Party, (iii) to the knowledge of the Borrower, no real property owned or leased by any Loan Party has ever been used as a treatment, storage or disposal facility of Hazardous Materials; (iv) no Hazardous Materials governed by an Environmental Law are present on any real property owned or, to the knowledge of the Borrower, leased by any Loan Party excepting such quantities as are handled in compliance with all applicable manufacturer’s instructions and Environmental Laws and in proper storage containers and as are necessary for the operation of the commercial business of the Loan Parties or of their respective tenants; and (v) all underground storage tanks on the real property owned or, to the knowledge of the Borrower, leased are in good condition and are being maintained in compliance in all material respects with all applicable federal, state and local laws and regulations, including all Environmental Laws.

5.15         Investment Company/Government Regulations. No Loan Party is an “investment company” within the meaning of the Investment Company Act of 1940, as amended. Neither any Loan Party nor any of its Subsidiaries is subject to regulation under any federal or state statute or regulation limiting its ability to incur Indebtedness or Guaranty Obligations.

5.16         Subsidiaries.

(a)          Schedule 5.16 sets forth a complete and accurate list of all of the Subsidiaries of each Loan Party together with their respective jurisdictions of incorporation or organization and a notation if a First Tier Foreign Subsidiary. All of the outstanding Equity Securities in, the Subsidiaries are validly issued, fully paid and non-assessable. Except as set forth on Schedule 5.16, all of the outstanding Equity Securities in each of the Subsidiaries are owned by a Loan Party or by a wholly-owned Subsidiary of a Loan Party free and clear of any Liens other than the Liens created by this Agreement and the other Loan Documents in favor of Administrative Agent and the other Secured Parties and Liens in favor of the Subordinated Praesidian Agent. No Subsidiary has outstanding options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments obligating the Subsidiary to issue, transfer or sell any securities of the Subsidiary.

(b)          Except for the Subsidiaries of the Loan Parties, no Loan Party owns of record or beneficially, directly or indirectly, any Equity Securities convertible into Equity Securities of any other Person.

5.17         Capitalization. Schedule 5.17 sets forth, a true and complete listing of each class of authorized Equity Securities of each Loan Party and its Subsidiaries, the number of Equity Securities which are issued and outstanding, as well as a list of all warrants, options, rights and securities convertible into Equity Securities, together with the number of Equity Securities to be issued upon the exercise or conversion of such warrants, options, rights and convertible securities, all of which have been reserved for insurance; provided that, with respect to Parent, such information shall only be provided as of the Closing Date. No Loan Party has any Equity Securities held in treasury. All outstanding Equity Securities of the Loan Parties have been duly authorized by all necessary action.

86

5.18         Broker’s, Finder’s or Similar Fees. Except as set forth on Schedule 5.18, there are no brokerage commissions, finder’s fees or similar fees or commissions payable in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with any Loan Party or any of its Subsidiaries, or any action taken by any such Person.

5.19         Labor Relations. Neither any Loan Party nor any of its Subsidiaries has committed or is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. Except as set forth in Schedule 5.19, there is (a) no unfair labor practice complaint pending or threatened against any Loan Party or any of its Subsidiaries before the National Labor Relations Board or any other Governmental Authority and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is so pending or threatened, (b) no strike, labor dispute, slowdown or stoppage pending or threatened against any Loan Party or any of its Subsidiaries, (c) no union representation question existing with respect to the employees of any Loan Party or any of its Subsidiaries and no union organizing activities are taking place, and (d) no contract with any officer described in Section 6.02(b) and no contract or agreement with any union or other entity. Each Loan Party and each of its Subsidiaries is in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment and wages and hours. Neither any Loan Party nor any of its Subsidiaries is a party to any collective bargaining agreement.

5.20         Employee Benefit Plans.

(a)          (i) Neither Borrower nor any ERISA Affiliate maintains, contributes to, or otherwise has any obligation or liability with respect to any Plan, (ii) each Plan is in material compliance with its terms and the applicable provisions of ERISA, the Code and other applicable federal or state Laws, (iii) each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination, advisory, or opinion letter from the IRS or an application for such a letter is currently pending with the IRS with respect thereto and nothing has occurred which would prevent, or cause the loss of, such qualification, (iv) Borrower and each ERISA Affiliate have in all material respects satisfied their obligations and liabilities with respect to each Plan, and have made all required contributions to each Plan on or before the applicable due date, including contributions to any Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Pension Plan, (v) there has been no material prohibited transaction (which is not otherwise exempt under Section 4975 of the Code) or violation of the fiduciary responsibility rules under ERISA with respect to any Plan, (vi) neither Borrower nor any ERISA Affiliate is a member of a Multiemployer Plan, and (vii) neither Borrower nor any ERISA Affiliate has incurred any material liability for any excise tax under Section 4972 or 4980B of the Code, and no facts exist which could give rise to such liability.

87

(b)          Each Plan that is a welfare benefit plan, as defined in Section 3(1) of ERISA, including without limitation, any Plan that provides benefits to former employees, directors, or other service providers, can be terminated by Borrower or an ERISA Affiliate in its sole discretion at any time without liability.

(c)          (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any material Unfunded Pension Liability; (iii) neither Borrower nor any ERISA Affiliate has incurred or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability (and no event has occurred which would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.

5.21         Patents, Trademarks, Etc. Each Loan Party and its Subsidiaries own, or possess the right to use, all Intellectual Property that is reasonably necessary in the conduct of their respective businesses as now operated, and none of such items, to the knowledge of any Loan Party, conflicts in any material respect with the Intellectual Property of any other Person. Except for such claims and infringements that could not reasonably be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person challenging the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does any Loan Party know of any such claim.

5.22         Potential Conflicts of Interest. Except as set forth on Schedule 5.22, as of the Closing Date, no officer or director of any Loan Party: (a) owns, directly or indirectly, any interest in (excepting less than five percent (5%) holdings for investment purposes in Equity Securities of publicly held and traded companies), or is an officer, director, employee or consultant of, any Person that is, or is engaged in business as, a competitor, lessor, lessee, supplier, distributor, sales agent or customer of, or lender to or from, such Loan Party, (b) owns, directly or indirectly, in whole or in part, any tangible or intangible property that any Loan Party uses in the Business; or (c) has any cause of action or other claim whatsoever against, or owes or has advanced any amount to, any Loan Party, except for claims in the ordinary course of business such as for accrued vacation pay, accrued benefits under employee benefit plans, and similar matters and agreements existing on the date hereof.

5.23         Trade Relations. There exists no actual or, to the knowledge of Borrower, threatened termination, cancellation or limitation of, or any adverse modification or change in, the business relationship of such Loan Party or its business with any customer or any group of customers whose purchases are individually or in the aggregate material to the business of such Loan Party, or with any material supplier, and there exists no present condition or state of facts or circumstances that could reasonably be expected to have a Material Adverse Effect or prevent such Loan Party or its Subsidiaries from conducting their business after the consummation of the transactions contemplated by this Agreement, in substantially the same manner in which such business has heretofore been conducted.

88

5.24         Indebtedness. Schedule 5.24 lists as of the Closing Date (a) the amount of all outstanding Indebtedness of the Loan Parties and their respective Subsidiaries (other than Indebtedness under this Agreement), (b) the Liens that relate to such Indebtedness and that encumber the assets of the Loan Parties and their respective Subsidiaries, (c) the name of each lender thereof, and (d) the amount of any unfunded commitments available to the Loan Parties or any of their respective Subsidiaries in connection with any such Indebtedness. Each Loan Party acknowledges that (i) Administrative Agent and each Lender are entering into this Agreement and have made the Loans and Letters of Credit Extensions in reliance upon the subordination provisions contained in the Subordination Agreements and (ii) each Secured Party is entering into its Secured Treasury Management Agreement and/or agreement or document regarding Secured Hedging Obligations, as applicable, in reliance upon the subordination provisions contained in the Subordination Agreements.

5.25         Material Contracts. Neither any Loan Party nor any of its Subsidiaries is or will be a party to any Contractual Obligation, or is subject to any charge, corporate restriction, judgment, injunction, decree, or other applicable Law or Consent, that could reasonably be expected to have a Material Adverse Effect. Schedule 5.25 lists all Material Contracts as of the Closing Date. Each of the Material Contracts is in full force and effect as of the Closing Date. Each Loan Party and each of its Subsidiaries has satisfied in full or provided for all of its liabilities and obligations under each Material Contract in all material respects, and are not in default under any of them, nor, to the knowledge of any Loan Party, does any condition exist that with notice or lapse of time or both would constitute such a default. To the knowledge of any Loan Party, no other party to any such Material Contract is in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute such a default. Except as set forth on Schedule 5.25, as of the Closing Date, no approval or consent of any Person is needed for all of the Material Contracts to continue to be in full force and effect.

5.26         Insurance.

(a)          The properties of each Loan Party and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where any Loan Party or such Subsidiary operates. All such policies are in full force and effect, are sufficient for all applicable Law, Consents and Contractual Obligations and otherwise are in compliance with the criteria set forth in Section 6.09 hereof. All such policies will remain in full force and effect and will not in any way be affected by, or terminate or lapse by reason of any of the transactions contemplated hereby.

(b)          The Loan Parties and their respective Subsidiaries maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that constitutes Collateral pursuant to a mortgage, security deed, deed of trust or similar document or instrument in favor of Administrative Agent for the benefit of the Secured Parties, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by Administrative Agent or any Lender.

89

5.27         Communications Matters.

(a)          Schedule 5.27 sets forth a true, correct and complete list of the following information for each License issued to, assigned or transferred to, or utilized by any Loan Party or its respective Subsidiaries in the Business: the jurisdiction of the License (e.g., FCC, state or local), the name of the licensee, and the type of service that can be provided under such License. Other than as set forth in Schedule 5.27 with regard to Licenses held by a Loan Party as of the Closing Date, each License is held by a Loan Party (other than Parent) or a wholly-owned Subsidiary of a Loan Party, in each case, whose Equity Securities are subject to a valid and perfected First Priority Lien in favor of Administrative Agent pursuant to the Loan Documents.

(b)          Each License listed on Schedule 5.27 (i) is in full force and effect, (ii) has not been revoked, reversed, stayed, set aside, annulled or suspended, and (iii) is not subject to any conditions or requirements that are not generally imposed by the FCC or the applicable PUC upon holders of such Licenses. The Licenses listed on Schedule 5.27 constitute all of the material Licenses necessary for the operation of the Business, as it is presently conducted. No event has occurred and is continuing which could reasonably be expected to (1) result in the imposition of a material forfeiture or the suspension, revocation, termination or adverse modification of any such License or (2) materially and adversely affect any rights of the Loan Parties or their respective Subsidiaries. Neither the Loan Parties nor any of their Subsidiaries have knowledge that any License listed on Schedule 5.27 will not be renewed in the ordinary course to the extent such License would otherwise expire. Neither the Loan Parties nor any of their respective Subsidiaries is a party to any investigation, inquiry, notice of apparent liability, notice of violation, order or complaint issued by or before the FCC, any PUC, or any applicable Governmental Authority, and there are no proceedings or inquiries pending by or before the FCC, PUC or any other applicable Governmental Authority with jurisdiction over the Business, which is reasonably likely to result in the invalidity or revocation of any material License.

(c)          Each of the Loan Parties and their respective Subsidiaries has made all material filings which are required to be filed by it pursuant to the Communications Laws, paid all Regulatory Assessments and other material License fees and charges that have become due pursuant to the Communications Laws (including amounts owed to the Universal Service Administrative Company and any similar state universal service fund administrators) in respect of the Business and has made appropriate provision as is required by GAAP for any such material Regulatory Assessments and other material License fees and charges which have accrued.

(d)          The operation of the Business complies in all material respects with the Communications Laws.

5.28         Reserved.

5.29         Perfection Certificate. All statements made by or on behalf of the Loan Parties or their Subsidiaries in the Perfection Certificate delivered on the Closing Date or the date of the most recent certificate delivered pursuant to Section 6.01(j) are true and correct and do not, as of the date of this Agreement, contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect.

90

5.30         Reserved.

5.31         Certain Payments. Except as set forth on Schedule 5.31, as of the Closing Date, neither the execution, delivery and performance by any Loan Party of this Agreement, nor the execution, delivery and performance by any Loan Party or any of its Subsidiaries of any of the other Loan Documents, the Subordinated Debt Documents, the Target Acquisition Documents nor the consummation of the transactions contemplated hereby or thereby shall require any payment by any Loan Party or any of its Subsidiaries, in cash or kind, under any other agreement, plan, policy, commitment or other arrangement. As of the Closing Date, there are no agreements, plans, policies, commitments or other arrangements with respect to any compensation, benefits or consideration which will be materially increased, or the vesting of benefits of which will be materially accelerated, as a result of this Agreement, the other Loan Documents, the Subordinated Debt Documents, the Target Acquisition Documents or the occurrence of any of the transactions contemplated hereby or thereby. As of the Closing Date, there are no payments or other benefits payable by any Loan Party or any of its Subsidiaries, the value of which will be calculated on the basis of any of the transactions contemplated by this Agreement, the other Loan Documents, the Subordinated Debt Documents or the Target Acquisition Documents.

5.32         Margin Requirements. The Loan Parties are not engaged, nor will any Loan Parties engage, principally or as one of their important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” “margin stock” within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors as now and from time to time hereafter in effect. No part of the proceeds of any Loan or Letter of Credit hereunder will be used for “purchasing” or “carrying” “margin stock” as so defined or for any purpose which violates, or which would be inconsistent with, the provisions of Regulations U or X of the Board of Governors.

5.33         Anti-Terrorism Laws; Anti-Corruption Laws; Sanctions.

(a)          Each Loan Party and their respective Subsidiaries and, to the knowledge of Borrower, any officers, directors, employees, or agents of such Loan Party are in compliance, in all respects, with all (i) Anti-Corruption Laws; (ii) Anti-Terrorism Laws, and (iii) Sanctions.

(b)          Borrower and Parent have implemented and maintain in effect policies and procedures designed to ensure compliance by the Loan Parties and their respective Subsidiaries, officers, directors, employees and agents with all (i) Anti-Corruption Laws; (ii) Anti-Terrorism Laws, and (iii) Sanctions.

(c)          None of the Loan Parties or their respective Subsidiaries and, to the knowledge of Borrower, the officers, directors, employees or agents, are Sanctioned Persons or have engaged in, or are now engaged in, or will engage in, any dealings or transactions with any Sanctioned Person.

91

(d)          No Loan, Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will violate any (i) Anti-Corruption Laws, (ii) Anti-Terrorism Laws, or (iii) Sanctions. Without limiting the forgoing, no part of the proceeds of the Loans or any Letter of Credit will be used, directly or indirectly, (1) to lend or otherwise make such proceeds available to any Subsidiary, joint venture, partner or other Person to fund any activities or business of or with any Sanctioned Person or Sanctioned Country or (2) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law or Anti-Terrorism Law.

(e)          The Loan Parties have provided to Administrative Agent and the Lenders all information requested by Administrative Agent and the Lenders regarding the Loan Parties and their respective Subsidiaries, officers, directors, employees and agents that Administrative Agent or any Lender has advised it requires in connection with its compliance with applicable Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions.

5.34         Target Transaction.

(a)          Borrower has heretofore furnished Administrative Agent a true and correct copy of the Target Acquisition Agreement and other associated documents and there have been no amendments to such Target Acquisition Agreement or associated documents from the copies so provided.

(b)          Borrower, and, to the Knowledge of Borrower, each other party to the Target Acquisition Agreement and associated documents, have duly taken all necessary corporate, partnership or other organizational action to authorize the execution, delivery and performance of the Target Acquisition Agreement and associated documents and the consummation of transactions contemplated thereby.

(c)          The Target Transaction will comply in all material respects with all applicable Law, and all necessary Consents required to be obtained by any Loan Party or any of its Subsidiaries and, to the Knowledge of Borrower, each other party to the Target Acquisition Agreement and associated documents, in connection with the Target Transaction will be, prior to consummation of the Target Transaction, duly obtained and will be in full force and effect. As of the date of the closing for the transaction contemplated by the Target Acquisition Agreement, all applicable waiting periods with respect to the Target Transaction will have expired without any action being taken by any Governmental Authority which restrains, prevents or imposes material adverse conditions upon the consummation of the Target Transaction.

(d)          The execution and delivery of the Target Acquisition Agreement and associated documents did not, and the consummation of the Target Transaction will not, violate in any material respect any Law or, to the Knowledge of Borrower, any Law applicable to any other party to the Target Acquisition Agreement and associated documents, or result in a breach of, or constitute a default under, any material agreement, indenture, instrument or other document, or any judgment, order or decree, to which any Loan Party or any Subsidiary is a party or by which any Loan Party or any Subsidiary is bound or, to the Knowledge of Borrower, to which any other party to the Target Acquisition Agreement and associated documents is a party or by which any such party is bound.

92

(e)          No statement or representation made in the Target Acquisition Agreement or associated documents by Borrower or, to the Knowledge of Borrower, any other Person, contains any untrue statement of a material fact or, when viewed together with Parent’s periodic reports filed under the Exchange Act and the rules and regulations promulgated thereunder, if any, omits to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading in any material respect.

(f)          No material condition to the consummation of the Target Transaction has been amended or waived.

5.35         Swap Contract. Each of the Loan Parties is (a) a Qualified ECP Guarantor or (b) at the time any Swap Obligation was incurred or at the time any guaranty or grant of security interest becomes effective with respect to any Swap Obligation, a Person that has been caused to qualify as an “eligible contract participant” as a result of a keepwell, support or other agreement entered into by a Qualified ECP Guarantor under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

5.36         Separateness Requirements. Each of the Loan Parties has and is, and is causing its Subsidiaries to have been and to be, in compliance in all material respects with the Separateness Requirements.

5.37         AHYDO Payment. No AHYDO Payments (as defined in the Praesidian Subordination Agreement) are or will be owed in connection with the Praesidian Facility.

SECTION 6

AFFIRMATIVE COVENANTS

So long as any Obligation remains unpaid or unperformed or any Commitment remains outstanding, Borrower shall, and shall cause each Loan Party and each Subsidiary of a Loan Party, to:

6.01         Financial Statements and Other Information. Each Loan Party shall maintain, and cause each of its Subsidiaries to maintain, a reasonably designed system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP (it being understood that monthly financial statements are not required to have footnote disclosures). The Loan Parties shall deliver to Administrative Agent each of the financial statements and other reports described below:

(a)          Annual Financial Statements. Furnish Administrative Agent within ninety five (95) days after the end of each fiscal year of the Loan Parties, audited financial statements of Parent and of Borrower, including statements of income and stockholders’ equity and cash flow from the beginning of such fiscal year to the end of such fiscal year and the balance sheet as at the end of such fiscal year, all prepared on, with respect to each of Parent and Borrower, a Consolidated Basis and Consolidating Basis, in reasonable detail and complete and correct in all material respects, and accompanied by a report and opinion of the Accountants, which report and opinion shall be prepared in accordance with GAAP and shall not be subject to any qualifications or exceptions as to the scope of the audit.

93

(b)          Quarterly Financial Statements. Furnish Administrative Agent within forty five (45) days after the end of each fiscal quarter of each fiscal year of Parent (beginning with the fiscal quarter ending December 31, 2016), an unaudited balance sheet of Parent and of Borrower and unaudited statements of income and stockholders’ equity and cash flow of Parent and of Borrower reflecting results of operations from the beginning of the fiscal year to the end of such quarter and for such quarter, all prepared on, with respect to each of Parent and Borrower, a Consolidated Basis and Consolidating Basis, in reasonable detail and complete and correct in all material respects, subject to normal and recurring year-end adjustments that individually and in the aggregate are not material to the business of Parent and Borrower respectively.

(c)          Monthly Financial Statements. Furnish Administrative Agent within thirty (30) days after the end of each month (beginning with the month ended October 31, 2016), an unaudited balance sheet of Parent and of Borrower and unaudited statements of income and stockholders’ equity and cash flow of the Loan Parties reflecting results of operations from the beginning of the fiscal year to the end of such month and for such month, all prepared on, with respect to each of Parent and of Borrower, a Consolidated Basis and Consolidating Basis, in reasonable detail and complete and correct in all material respects, subject to normal and recurring year-end adjustments that individually and in the aggregate are not material to the Loan Parties’ business.

(d)          Compliance Certificate. Together with each delivery of financial statements pursuant to Sections 6.01(a), 6.01(b) and 6.01(c) above, the Loan Parties shall deliver or cause to be delivered a fully and properly completed Compliance Certificate signed by the chief executive officer or principal accounting officer of each Loan Party.

(e)          Accountants’ Reports. Promptly upon receipt thereof, each Loan Party shall deliver copies of all significant reports submitted by the Accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Loan Parties and their Subsidiaries made by the Accountant, including any comment letter submitted by the Accountant to management in connection with its services.

(f)          Management Reports. Together with each delivery of financial statements of Parent and of Borrower, and their respective Subsidiaries pursuant to Sections 6.01(a), 6.01(b) and 6.01(c), the Loan Parties will deliver a management report, which can be in the form of an e-mail, setting forth in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the most recent projections for the current fiscal year delivered pursuant to Section 6.01(g) including explanations for any significant variations. The information above shall be presented in reasonable detail and shall be certified by the chief financial officer of each Loan Party to the effect that such information fairly presents the results of operations and financial condition of each of Parent and of Borrower on a Consolidated Basis and Consolidating Basis as at the dates and for the periods indicated.

94

(g)          Projections. No earlier than sixty (60) days prior nor later than the last day of each fiscal year beginning with the current fiscal year, the Loan Parties shall prepare and deliver to Administrative Agent projections of the Loan Parties and their Subsidiaries for the next succeeding fiscal year, on a month to month basis, including a balance sheet and cash flow statement as at the end of each quarterly period and income statements and statements of cash flows for each relevant period and for the period commencing at the beginning of the fiscal year and ending on the last day of such relevant period. Such projections shall be prepared in good faith on the basis of sound financial planning practice consistent with past budgets and financial statements and that none of the officers of the Loan Parties has reason to question the reasonableness of any material assumptions on which such projections were prepared.

(h)          SEC Filings/Press Releases. Promptly after the same are (i) filed, copies of all financial statements and regular, periodic or special reports which any Loan Party or Subsidiary may make to, or file with, the Securities and Exchange Commission or any successor or similar Governmental Authority, (ii) sent, copies of all financial statements, management reports and reports related thereto which any Loan Party or Subsidiary sends generally to its shareholders or other equity holders, and (iii) made available, all press releases to the public concerning material developments in the business of any of the Loan Parties or any of their respective Subsidiaries.

(i)          [Reserved.]

(j)          Annual Perfection Certificate. Each year (other than for the fiscal year ending December 31, 2016), at the time of delivery of annual financial statements with respect to the preceding fiscal year pursuant to Section 6.01, Borrower shall deliver to Administrative Agent a Senior Officer’s certificate either confirming that there has been no change in the information set forth in the Perfection Certificate since the date of the Perfection Certificate delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section 6.01(j) and/or identifying any applicable changes.

(k)          Updates to Schedules. In addition to any specific requirement herein to update any Schedule attached hereto concurrently with delivery of a Compliance Certificate, should any of the information or disclosures provided in any of the other Schedules attached hereto or to any other Loan Document which are not limited to matters disclosed as of the Closing Date become outdated or incorrect in any material respect, Borrower shall, together with delivery of each Compliance Certificate as required by Section 6.01(d), provide Administrative Agent in writing with such revisions or updates to such Schedules as may be necessary or appropriate to update or correct such Schedules; provided, however, that no Default or Event of Default resulting from the inaccuracy or incompleteness of any such Schedule or the circumstance giving rise to such inaccuracy or incompleteness (to the extent the same is not permitted by this Agreement) shall be deemed to have been waived or cured, unless and until the Requisite Lenders, in their sole and absolute discretion, grant such waiver or cure in writing pursuant to Section 10.03.

95

6.02         Deliveries. Borrower shall deliver, or cause to be delivered, to Administrative Agent each of the notices, reports and other deliveries described below:

(a)          Material Occurrences. Promptly notify Administrative Agent in writing upon the occurrence of (i) any Event of Default or Default; (ii) any event, development or circumstance due to which any financial statements or other reports furnished to Administrative Agent or the Lenders fail in any material respect to present fairly, in accordance with GAAP consistently applied, the financial condition or operating results of Parent or Borrower as of the date of such statements; (iii) any accumulated retirement plan funding deficiency which, if such deficiency continued for two plan years and was not corrected as provided in Section 4971 of the Code, could subject any Loan Party or Subsidiary to a Tax imposed by Section 4971 of the Code; (iv) each and every default by any Loan Party or Subsidiary which permits the holders of any Indebtedness of any Loan Party or Subsidiary, the outstanding principal amount of which exceeds $250,000, to accelerate the maturity of such Indebtedness, including the names and addresses of the holders of such Indebtedness and the amount of such Indebtedness; and (v) any other development in the business or affairs of any Loan Party or Subsidiary which could reasonably be expected to have a Material Adverse Effect.

(b)          Management. The Loan Parties shall notify Administrative Agent in writing promptly of any change in senior management (which, for purposes hereof, shall include any executive officer holding a more senior title than vice president, or the functional equivalent thereof), and, in any event (i) if such change arises from a voluntary termination of employment, or as the result of death or disability of such officer, such notice shall be given no later than five (5) Business Days after any Loan Party shall have obtained knowledge (excluding the knowledge of such officer) of such event and (ii) if such change arises from an involuntary termination of employment, such notice shall be given no later than the date that is five (5) Business Days prior to the occurrence of such event, unless the Loan Parties determine, in the good faith exercise of their commercially reasonable judgment, that the delay in effectuating such termination due to the aforedescribed notice obligation would be reasonably likely to have a Material Adverse Effect, in which case the Loan Parties shall notify Administrative Agent in writing within one (1) Business Day after the occurrence of such involuntary termination.

(c)          Litigation. Promptly upon any officer of any Loan Party obtaining knowledge of (i) the institution of any Adverse Proceeding not previously disclosed by the Loan Parties to Administrative Agent or (ii) any material development in any Adverse Proceeding which, in each case, could reasonably be expected to have a Material Adverse Effect, Borrower will promptly give notice thereof to Administrative Agent and provide such other information as may be reasonably available to it to enable Administrative Agent, Lenders and their counsel to evaluate such matter.

(d)          Notice of Corporate Changes. Promptly notify Administrative Agent in writing of any material change after the Closing Date in the authorized and issued Equity Securities of any Loan Party or any Subsidiary or any other material amendment to their applicable Organization Documents, such notice, in each case, to identify the applicable jurisdictions, capital structures or amendments, as applicable; provided that, this clause (d) shall not apply to (i) the issuance of Equity Securities of Parent in the form of common stock as dividends to previously issued Equity Securities of Parent, or (ii) to any issuance of Equity Securities of Parent reported to Administrative Agent and Lenders pursuant to the requirements of Section 6.01(h).

96

(e)          Notice of Adverse Events. Furnish Administrative Agent with (i) prompt written notice of any lapse or other termination, material adverse modification or revocation of any License or other Consent issued to any Loan Party or any Subsidiary by any Governmental Authority or any other Person that is material to the operation of the Business, (ii) prompt written notice of any refusal by any Governmental Authority or any other Person to renew or extend any such License or other Consent, (iii) copies of any periodic or special reports filed by any Loan Party or Subsidiary with any Governmental Authority or Person, if such reports indicate any material adverse change, (iv) copies of any material notices and other communications from any Governmental Authority or Person which specifically relate to any Loan Party or Subsidiary, its Licenses, or other Consents, and (v) prompt written notice of the occurrence of any development or event which is reasonably likely to cause any Loan Party or Subsidiary not to be in compliance in all material respects with all applicable Laws.

(f)          ERISA Notices and Requests. Furnish Administrative Agent, promptly after the occurrence thereof, notice of (i) any ERISA Event, together with a written statement describing the ERISA Event and the action, if any, which the Loan Party or ERISA Affiliate has taken, is taking, or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, Department of Labor, or PBGC with respect thereto, (ii) any material increase in the benefits of any existing Plan or the establishment of any new Plan or the commencement of contributions to any Plan to which Borrower or any ERISA Affiliate was not previously contributing shall occur; or (iii) the receipt by Borrower or any ERISA Affiliate of an unfavorable determination letter from the Internal Revenue Service regarding the qualification of a Plan under Section 401(a) of the Code, together with copies of each such letter.

(g)          Environmental Reports. Furnish Administrative Agent, concurrently with the delivery of the financial statements referred to in Sections 6.01(a), 6.01(b) and 6.01(c) with a certificate signed by a Senior Officer of each Loan Party stating that, to the best of such Senior Officer’s knowledge, each Loan Party and Subsidiary is in compliance in all material respects with all Environmental Laws. To the extent any Loan Party or Subsidiary is not in compliance with the foregoing laws, the certificate shall set forth with reasonable specificity all areas of non-compliance and the proposed action such Loan Party or Subsidiary will implement in order to achieve such compliance.

(h)          Other Information. With reasonable promptness, each Loan Party shall deliver such other information and data with respect to such Loan Party or any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent or any Lender, including evidence that Borrower is in compliance with the Separateness Requirements and, without the necessity of any request by Administrative Agent or any Lender, (i) copies of all environmental audits and reviews, (ii) at least thirty (30) days prior thereto, notice of any Loan Party’s or such Subsidiary’s opening of any new office or place of business or any Loan Party’s or such Subsidiary’s closing of any existing office or place of business, and (iii) promptly upon any Loan Party’s learning thereof, notice of any labor dispute to which any Loan Party or such Subsidiary may become a party, any strikes or walkouts relating to any of its plants or other facilities, and the expiration of any labor contract to which any Loan Party or such Subsidiary is a party or by which any Loan Party or such Subsidiary is bound. Promptly upon request therefor by Administrative Agent or any Lender, the Loan Parties shall deliver such other business or financial data, reports, appraisals and projections as Administrative Agent or such Lender may reasonably request.

97

(i)          Subordinated Debt.

(i)          Concurrently with, or promptly after, delivery of any information, documents or certificates to any lender or agent under the Subordinated Debt Documents, furnish to Administrative Agent complete copies of all such information, documents and certificates, in each case other than such information, documents and certificates previously or concurrently delivered pursuant to this Article 6.

(ii)         Promptly after receipt of such request, Borrower shall notify Administrative Agent of any request of any Loan Party or Subsidiary from or on behalf of the Subordinated Praesidian Agent regarding the Collateral.

(j)          Additional Documents. Execute and deliver to Administrative Agent, upon request, such documents and agreements as Administrative Agent may, from time to time, reasonably request to carry out the purposes, terms or conditions of this Agreement or any other Loan Document.

Each notice pursuant to this Section 6.02 shall be accompanied by a statement of a Senior Officer of Borrower setting forth the nature and period of existence of such condition event or change and otherwise, details of the occurrence referred to therein and, if applicable, stating what action Borrower has taken and proposes to take with respect thereto.

6.03         Preservation of Existence. Each Loan Party shall, and shall cause each of its Subsidiaries to:

(a)          conduct continuously and operate actively its business according to good business practices and maintain all of its properties useful or necessary in its business in good working order and condition (reasonable wear and tear excepted and except as may be disposed of in each case in accordance with the terms of this Agreement), including all Intellectual Property, in each case that are material to its business, and take all actions necessary to enforce and protect the validity of any Intellectual Property;

(b)          keep in full force and effect its existence and comply in all material respects with applicable Laws governing the conduct of the Business where the failure to do so could reasonably be expected to have a Material Adverse Effect; and

(c)          except as otherwise permitted herein, make all such reports and pay all such franchise and other Taxes, Regulatory Assessments and License fees and do all such other acts and things as may be lawfully required to maintain its Licenses under the applicable Laws of any Governmental Authority.

98

6.04         Payment of Obligations. Each Loan Party shall, and shall cause each of its Subsidiaries to, pay and discharge as the same shall become due and payable, all their respective obligations and liabilities (unless the same are being Properly Contested), including:

(a)          all Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets;

(b)          all lawful claims in excess of $100,000 in the aggregate which any Loan Party or any of its Subsidiaries is obligated to pay, which are due and which, if unpaid, might by Law become a Lien upon its property; and

(c)          pay, discharge or otherwise satisfy at or before maturity (subject, where applicable, to specified grace periods and, in the case of the trade payables, to normal payment practices) all its obligations and liabilities of whatever nature, except when the failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.05         Compliance with Laws.

(a)          Each Loan Party shall comply, and shall cause each of its Subsidiaries to comply, in all material respects with all applicable Laws and with the lawful directions of each Governmental Authority having jurisdiction over them or their respective business or property (including all applicable Environmental Laws), including without limitation any requirements to clean up, remove, or remediate Hazardous Materials at any location where necessary to protect human health or the environment.

(b)          Each Loan Party shall comply, and shall cause each of its Subsidiaries, , officers, directors, employees and agents to comply with, all (i) Anti-Corruption Laws, (ii) Anti-Terrorism Laws, and (iii) Sanctions. Parent and Borrower shall implement and maintain in effect policies and procedures designed to ensure compliance by the Loan Parties and their respective Subsidiaries, officers, directors, employees, and agents with all (1) Anti-Corruption Laws, (2) Anti-Terrorism Laws and (3) Sanctions.

6.06         Contractual Obligations. Promptly and fully comply with all Contractual Obligations to which any one or more of them is a party, except for any such Contractual Obligations (a)(i) then being Properly Contested or (ii) not constituting a Material Contract and (iii) the nonperformance of such Contractual Obligations which would not cause an Event of Default.

99

6.07         Inspection; Lender Meeting.

(a)          Each Loan Party will permit, and will cause each of its Subsidiaries to permit, Administrative Agent or any Lender to perform an annual collateral field audit of Borrower’s accounts receivable, inventory and equipment, at Borrower’s cost (not to exceed $25,000 for any 12 month period unless an Event of Default exists). In addition, at any time during regular business hours and as often as reasonably requested upon reasonable notice (but not more often than twice in a calendar year unless an Event of Default exists), at Borrower’s cost (not to exceed $25,000 for any 12 month period unless an Event of Default exists), each Loan Party will permit Administrative Agent, or any employee, agent or representative thereof, to examine, audit and make copies and abstracts from such Loan Party’s records and books of account and to visit and inspect the properties of such Loan Party and its Subsidiaries, including, but not limited to, an annual collateral field audit on such Loan Party’s accounts receivable and inventory, and to discuss its affairs, finances and accounts with any of its officers, key employees, and Accountants and, upon request, furnish promptly to Administrative Agent and each Lender true copies of all financial information and internal management reports made available to the Board of Directors of Parent (or any committee thereof), other than information and reports that involve the attorney-client privilege. Borrower shall furnish to Administrative Agent such information concerning the Intellectual Property of the Loan Parties and their Subsidiaries (including, without limitation, application and registration numbers for any filings in connection with such intellectual property) as is reasonably necessary to permit Administrative Agent to identify and to perfect a security interest in such Intellectual Property. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing, or if access is necessary to preserve or protect the Collateral, as determined by Administrative Agent or the Requisite Lenders, each such Loan Party or Subsidiary shall provide such access to Administrative Agent and Lenders at all times and without advance notice.

(b)          Each Loan Party will, and will cause each of its Subsidiaries to, upon the request of Administrative Agent or Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each fiscal year to be held at Parent’s corporate offices (or at such other location as may be agreed to by Borrower and Administrative Agent) at such time as may be agreed to by Borrower and Administrative Agent.

6.08         Maintenance of Properties. Other than Dispositions permitted by Section 7.01, each Loan Party shall maintain or cause to be maintained, and shall cause its Subsidiaries to maintain or cause to be maintained, in good repair, working order and condition all material properties used in their respective businesses and will make or cause to be made, and shall cause its Subsidiaries to make or cause to be made, all appropriate repairs, renewals and replacements thereof.

6.09         Insurance.

(a)          Each Loan Party and its Subsidiaries will maintain or cause to be maintained with financially sound and reputable insurers that have a rating of “A” or better as established by Best’s Rating Guide (or an equivalent rating with such other publication of a similar nature as shall be in current use), the life insurance policy required by Section 6.17 and public liability and property damage insurance with respect to their respective businesses and properties against loss or damage of the kinds customarily carried or maintained by a company of established reputation engaged in similar businesses and in amounts acceptable to Administrative Agent and will deliver evidence thereof to Administrative Agent. Without limiting the foregoing, each Loan Party and its Subsidiaries have established and shall maintain at all times (i) business interruption insurance in an amount satisfactory to Administrative Agent and (ii) flood insurance with respect to all real property that constitutes Collateral pursuant to a mortgage, security deed, deed of trust or similar document or instrument in favor of Administrative Agent for the benefit of the Secured Parties and is located in a community that participates in the National Flood Insurance Program.

100

(b)          Subject to Section 6.19, all such insurance policies shall provide that Administrative Agent shall be named as an additional insured or loss payee, as applicable and that such insurance policies may not be canceled or materially modified unless the insurance carrier gives at least 30 days prior written notice of such cancellation or modification to Administrative Agent.

(c)          If any Loan Party fails to obtain insurance as hereinabove provided, or to keep the same in force, Administrative Agent, if Administrative Agent so elects, upon notice to such Loan Party, may obtain such insurance and pay the premium therefor on behalf of such Loan Party, and such expenses so paid shall be part of the Obligations.

6.10         Reserved.

6.11         Compliance with ERISA. Cause, and cause each of its ERISA Affiliates to: (a) maintain each Plan in compliance in all material respects with its terms and with the applicable provisions of ERISA, the Code and other federal or state Law; (b) cause each Plan which is qualified under Section 401(a) of the Code to maintain such qualification; and (c) make all required contributions to any Plan before the applicable due date.

6.12         Use of Proceeds.

(a)          The proceeds of the Loans shall be used in solely as provided in Section 2.06.

(b)          No portion of the proceeds of any Loans shall be used in any manner that causes or might cause such Loan or other Borrowing or Letter of Credit or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation thereof or to violate the Exchange Act or to violate any Sanctions, Anti-Terrorism Law or Anti-Corruption Law.

6.13         Customer Contracts. Each Contractual Obligation entered into by any Loan Party and its respective customers after March 31, 2017 shall (a) permit, without the prior consent of the applicable customer, the assignment of the applicable Loan Party’s rights and the delegation of such Loan Party’s duties under such Contractual Obligation to Administrative Agent and (b) not prohibit, trigger a default or require the consent of such customer in the event of a change of control of the Loan Party party to such Contractual Obligation or the appointment of a receiver of such Loan Party’s business or assets.

6.14         New Real Property. If any Loan Party acquires at any time or times hereafter any fee simple interest in real property, then within ninety (90) days of the acquisition thereof such Loan Party shall execute and deliver to Administrative Agent, as additional security and Collateral for the obligations, deeds of trust, security deeds, mortgages or other collateral assignments reasonably satisfactory in form and substance to Administrative Agent and its counsel (herein collectively referred to as “New Mortgages”) covering such real property. The New Mortgages shall be duly recorded (at the Loan Parties’ expense) in each office where such recording is required to constitute a valid lien on the real property covered thereby. In respect of any New Mortgage, Loan Parties shall deliver to Administrative Agent, at Loan Parties’ expense, mortgagee title insurance policies issued by a title insurance company reasonably satisfactory to Administrative Agent, which policies shall be in form and substance reasonably satisfactory to Administrative Agent and shall insure a valid lien in favor of Administrative Agent on the property covered thereby, subject only to Permitted Liens and those other exceptions reasonably acceptable to Administrative Agent and its counsel. Loan Parties shall also deliver to Administrative Agent such other usual and customary documents, including ALTA surveys of the real property described in the New Mortgages, as Administrative Agent and its counsel may reasonably request relating to the real property subject to the New Mortgages.

101

6.15         Control Agreements; Cash Management Systems.

(a)          Subject to Section 6.19, the applicable Loan Parties will establish and maintain the Designated Deposit Accounts.

(b)          Subject to Section 6.19, concurrently with the opening of any new deposit, securities, commodity or similar account or lock box by any Loan Party or any of its Subsidiaries after the Closing Date, such Loan Party or Subsidiary shall enter into a Control Agreement with the applicable depository, securities intermediary or commodities intermediary with respect to such account. Notwithstanding the foregoing, this Section 6.15(b) shall not apply to (i) any payroll account so long as such payroll account is a zero balance account, or (ii) withholding Tax, employee benefits and similar fiduciary accounts. After the occurrence and during the continuation of an Event of Default, Administrative Agent shall be entitled to deliver a notice to any financial institution that is party to a Control Agreement of its exercise of control over any deposit, securities, commodity or other account or lock box subject to such Control Agreement.

(c)          Each Loan Party shall provide Administrative Agent with electronic access at all times to each of its and its Subsidiaries’ depositary, securities intermediary or commodities intermediary accounts so that Administrative Agent may monitor the activity in such accounts.

6.16         Collateral Access Agreements. Each Loan Party shall, with respect to each lease entered into, renewed or extended following the Closing Date for leased property (a) where books and records are stored or located, (b) where Collateral with an estimated value in excess of the Threshold Amount is stored or located, or (c) the loss of which would reasonably be expected to have a Material Adverse Effect obtain a Collateral Access Agreement from the lessor of such leased property in connection with entering, renewing or extending such lease.

6.17         Key-Man Life Insurance. The Loan Parties shall maintain a $3,000,000 key- man life insurance policy with respect to the life of Matthew Rosen.

6.18         Subsidiaries. Not less than twenty (20) days prior to creating a Subsidiary or acquiring the Equity Securities in a Person, such that such Person will become a Domestic Subsidiary or First Tier Foreign Subsidiary, the applicable Loan Party shall notify Administrative Agent of such Loan Party’s or of such Loan Party’s Subsidiary’s intention to create such Subsidiary or acquire such Equity Securities, and following such notice such Subsidiary will not be created or acquired until such Loan Party has complied with and caused each Subsidiary to comply with this Section 6.18 and received all required consents pursuant to this Agreement and the Subordinated Debt Documents.

102

(a)          In the event any Person becomes a Domestic Subsidiary of any Loan Party, such Loan Party shall concurrently with such creation or acquisition (or such later date acceptable to Administrative Agent in its sole discretion) of such Subsidiary, cause such Subsidiary to (i) become a Guarantor hereunder and a Grantor (as defined therein) under the applicable Security Documents by executing and delivering to Administrative Agent a Joinder Agreement, (ii) pledge or create the equivalent security over, or cause any Person that owns the Equity Securities of such Subsidiary to pledge (or create the equivalent security over), 100% of the Equity Securities of such Subsidiary by delivering, or causing any Person that owns the Equity Securities of such Subsidiary to deliver, the original stock certificates evidencing the Equity Securities of such Subsidiary to Administrative Agent, together with appropriate stock powers executed in blank or by other method acceptable to Administrative Agent in its reasonable discretion; and (iii) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates as are reasonably requested by Administrative Agent.

(b)          In the event any Person becomes a First Tier Foreign Subsidiary, such Loan Party shall concurrently with such creation or acquisition (or such later date acceptable to Administrative Agent in its sole discretion) of such Subsidiary, (i) pledge or create the equivalent security over, or cause any Person that owns the Equity Securities of such Subsidiary to pledge (or create the equivalent security over), 65% of the Equity Securities of such Subsidiary by delivering, or causing any Person that owns the Equity Securities of such Subsidiary to deliver, the original stock certificates evidencing the Equity Securities of such Subsidiary to Administrative Agent, together with appropriate stock powers executed in blank or by other method acceptable to Administrative Agent in its reasonable discretion; and (ii) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates as are reasonably requested by Administrative Agent.

6.19         Post Closing Covenants. The Loan Parties will, and will cause each of their Subsidiaries to, perform the obligations set forth on Schedule 6.19 on or before the date provided in Schedule 6.19 (as such date may be extended by Administrative Agent in its sole discretion) with respect to each such obligation unless Administrative Agent has agreed in its sole discretion in writing to waive such obligation in its entirety.

6.20         Separateness Requirements. The Loan Parties will comply with, and are causing their respective Subsidiaries to comply with the Separateness Requirements.

103

6.21         Board Observer. Each Loan Party shall give Lenders notice of (in the same manner as notice is given to directors), and permit two persons designated by Administrative Agent to attend as a non-voting observer (each such observer, an “Observer”), all meetings of its Board of Directors and all executive and other committee meetings of its Board of Directors and shall provide to Lenders the same information concerning the Loan Parties and their Subsidiaries, and access thereto, provided to members of the Loan Parties’ respective Boards of Directors and such committees, as applicable (the “Board Materials”). The reasonable travel expenses incurred by any Observer in attending any board or committee meetings shall be reimbursed by the Loan Parties; provided, that no Loan Party will be required to permit any Observer to attend, as an observer, any meeting of its Board of Directors or any committee thereof or provide any Board Materials to any Observer, unless such Observer has executed a confidentiality agreement (which confidentiality agreement shall contain provisions relating to restrictions on trading securities based on material nonpublic information) satisfactory to Administrative Agent and such Loan Party in their respective reasonable determinations. The Observers may be excluded from any meeting (or portion thereof) or denied access to any Board Materials (or portion thereof) if and to the extent (a) access to such information or attendance at such meeting or portion thereof would adversely affect any attorney-client privilege, (b) access to such information or attendance at such meeting or portion thereof could reasonably be expected to result in disclosure of trade secrets or a conflict of interest, or (c) any of the Lenders or the Loan Documents are the subject matter of such information or are under discussion at such meeting. All information provided to or obtained by an Observer or Lender in connection with the rights granted under this Section 6.20 shall be deemed to be Information and subject to the provisions of Section 10.15; provided that such information is clearly identified at the time of delivery as confidential.

SECTION 7

NEGATIVE COVENANTS

So long as any Obligations remain unpaid or unperformed or any Commitment remains outstanding, Borrower shall not, nor shall it permit any Loan Party or any Subsidiary to, directly or indirectly:

7.01         Fundamental Changes; Consolidation; Mergers and Acquisitions; Dispositions. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly: (a) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a substantial portion of the assets or Equity Securities of any Person or permit any other Person to consolidate with or merge with it (other than the consummation of the Target Transactions and any merger between Guarantors other than Parent), or (b) Dispositions of any of its properties or assets, except (i) Ordinary Course Dispositions and (ii) Dispositions as a result of the taking of any assets of any Loan Party or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a Disposition of any such assets to a purchaser with such power under threat of such a taking.

7.02         Liens. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly, create or suffer to exist any Lien or transfer upon or against any of its property or assets now owned or hereafter acquired, except Permitted Liens, including Liens disclosed on Schedule 7.02.

104

7.03         Guarantees. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly become liable upon the obligations or liabilities of any Person by assumption, endorsement or guaranty thereof or otherwise (other than to Lenders) except (a) guarantees made by a Loan Party in favor of another Loan Party (other than Parent) as a condition to a License of a Loan Party, (b) other guarantees in the ordinary course of business up to an aggregate amount of $300,000, (c) the endorsement of checks in the ordinary course of business, and (d) guarantees pursuant to the Praesidian Facility, subject to the terms and conditions of the Praesidian Subordination Agreement.

7.04         Investments. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly make any Investments, except:

(a)          Investments in cash and Cash Equivalents;

(b)          Investments existing on the Closing Date as set forth on Schedule 7.04 hereto;

(c)          Investments not otherwise prohibited hereunder by a Loan Party in another Loan Party (other than Parent);

(d)          loans permitted by Section 7.05;

(e)          the Target Transactions;

(f)          Investments by Borrower and its Subsidiaries in Capital Expenditures permitted to be made pursuant to Section 7.15(c); and

(g)          Investments not otherwise prohibited hereunder, provided that, the aggregate amount of such other Investments (less any return on such Investment) does not at any time exceed $250,000.

7.05         Loans. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly make or have outstanding advances, loans or extensions of credit to any Person, including any Subsidiary or Affiliate, except for (a) the extension of commercial trade credit in connection with the sale of inventory in the ordinary course of business, (b) loans to employees of the Loan Parties in the ordinary course of business not to exceed, in the aggregate, $25,000 at any time outstanding and (c) to the extent not otherwise prohibited hereunder, loans among Loan Parties (other than loans to or from Parent).

7.06         Restricted Payments. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly declare, pay or make any Restricted Payments other than (a) intercompany payments made in the ordinary course of business for funding of such Loan Party’s payroll and terminating NBS traffic on Parent’s network, provided that any payments by Borrower or any of its Subsidiaries to Parent shall be at direct cost plus a mark-up not in excess of the average mark-up provided to third party customers for similar services, (b) any Corporate Allocation Payment, provided that (i) no Default or Event of Default shall have occurred and be continuing or would result from the making of such payment and (ii) any proposed Corporate Allocation Payment, together with all other Corporate Allocation Payments made during the period of twelve (12) consecutive fiscal months ending on the last day of the month in which such proposed Corporate Allocation Payment is to be made, shall not in the aggregate exceed the sum of $2,000,000 in any fiscal year; provided that, if the Corporate Allocation Payment in any fiscal year exceeds $1,500,000, the Loan Party shall deliver a certificate to Administrative Agent (together with the Compliance Certificate for such fiscal year) comparing the Corporate Allocation Payment for such fiscal year to the previous fiscal year and the projections for such fiscal year and, if in excess of projections, discussing why such Corporate Allocation Payments exceed such projections, (c) a Loan Party may make Restricted Payments to Borrower or any other Loan Party (other than Parent), (d) a Subsidiary may make Restricted Payments to Borrower or any other Loan Party (other than Parent), (e) Borrower may pay interest on certain of the Subordinated Debt issued under the Praesidian Facility pursuant to the terms and conditions of Praesidian Subordination Agreement, provided that (i) after giving effect to such payment the Loan Parties are in compliance on a pro forma basis with the covenants set forth in Section 7.15, recomputed for the most recent quarter for which financial statements have been delivered, (ii) no Default or Event of Default shall have occurred and be continuing or would result from the making of such payment, and (iii) any AHYDO Payments (as defined in the Praesidian Subordination Agreement) shall not be in excess of or prior to the amounts and dates set forth in Section 5.37, (f) payment by Borrower of the purchase price of the Target Company pursuant to the Target Acquisition Agreement on the Closing Date, and (g) payments by Parent pursuant to the Rosen Shareholder Note to the extent permitted by the Rosen Subordination Agreement.

105

7.07         Indebtedness. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist any Indebtedness except:

(a)          trade debt incurred in the ordinary course of business;

(b)          the Indebtedness created under this Agreement;

(c)          Indebtedness for Capital Expenditures permitted under Section 7.15(c), including Purchase Money Indebtedness and indebtedness incurred under Capital Lease Obligations, in each case incurred in connection with such Capital Expenditures, in an aggregate amount not to exceed $500,000 per year for all Loan Parties and their respective Subsidiaries;

(d)          Indebtedness disclosed on Schedule 7.07 including up to $3,000,000 aggregate amount of Indebtedness at any time in respect of equipment financing leases, and any extension, renewal or refinancing thereof; provided that in connection with any such extension, renewal or refinancing: (i) the aggregate principal amount of such Indebtedness is not increased, (ii) the scheduled maturity date of such Indebtedness is not shortened, (iii) the covenants or defaults are not materially more restrictive or more onerous than analogous provisions in the documentation of such Indebtedness as in effect on the Closing Date;

(e)          Indebtedness in respect of Hedging Obligations permitted by Section 7.21;

(f)          guaranty obligations permitted pursuant to Section 7.03 hereof;

(g)          the Subordinated Debt, subject to the term and conditions of the applicable Subordination Agreement;

(h)          to the extent not otherwise prohibited hereunder, Indebtedness owed among the Loan Parties (other than loans to or from Parent); or

(i)          other unsecured Indebtedness not otherwise prohibited hereunder; provided that, the aggregate outstanding principal amount shall not exceed at any time $250,000.

106

7.08         Nature of Business. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, substantially change the nature of the business in which it is presently engaged, or except as specifically permitted hereby purchase or invest, directly or indirectly, in any assets or property other than in the ordinary course of business and where such assets or property are useful in, necessary for and are to be used in its business as presently conducted.

7.09         Transactions with Affiliates. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly, purchase, acquire or lease any property from, or sell, transfer or lease any property to, or otherwise enter into any transaction or deal with, any Affiliate, except for (a) transactions in the ordinary course of business, entered into on an arm’s-length basis on fair and reasonable terms no less favorable than terms which would have been obtainable from a Person other than an Affiliate; (b) the payment of customary and reasonable directors’ fees to directors who are not employees of the Loan Parties or any Affiliate of the Loan Parties as well as the payment of their reasonable out-of-pocket expenses incurred in performing their directorial duties and the payment of indemnities owing to them as directors; or (c) certain loans by Affiliates to Parent permitted by the terms of this Agreement or as indicated on Schedule 7.07.

7.10         Leases. Unless Administrative Agent consents in writing in its reasonable discretion, no Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly enter as lessee or sublessee into any lease arrangement for real property if (a) after giving effect thereto, aggregate annual rental payments for any individual leased or subleased property would exceed $1,000,000 in any one fiscal year in the aggregate for all Loan Parties and their respective Subsidiaries or (b) after giving effect thereto, aggregate annual rental payments for all leased and subleased property for all Loan Parties and their respective Subsidiaries would exceed the aggregate annual rent payments for all leased and subleased property for all Loan Parties and their respective Subsidiaries as of the Closing Date by more than $100,000.

7.11         Subsidiaries; Partnerships; Joint Ventures.

No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, form any Subsidiary (other than a Subsidiary, the formation of which shall have been consented to in advance in writing by the Requisite Lenders), or enter into any partnership, joint venture or similar arrangement unless consented to by Requisite Lenders.

7.12         Fiscal Year and Accounting Changes. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly maintain a fiscal year other than a year ending on December 31, or make any change (i) in accounting treatment and reporting practices except as required by GAAP or (ii) in Tax reporting treatment except as required by applicable Law.

7.13         Amendment of Organizational Documents. From and after the Closing Date, no Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, amend, modify or waive any material term or material provision of its Organization Documents in a manner materially adverse to Administrative Agent or any Lender except as required by applicable Law.

107

7.14         Limitation on Modifications of Indebtedness; Modifications of Certain Other Agreements; Etc. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, (a) amend or modify, or permit the amendment or modification of, any provision of the Indebtedness described in Section 7.07 hereto or of any agreement (including any purchase agreement, indenture, loan agreement or security agreement) relating thereto other than any amendments or modifications to such Indebtedness which do not in any way adversely affect the interests of the Lenders and are otherwise permitted under Section 7.07, (b) make (or give any notice in respect thereof) any voluntary or optional payment or prepayment on or redemption or acquisition for value of, or any prepayment or redemption as a result of any asset sale, change of control or similar event of, any Indebtedness which is contractually subordinated to any of the Obligations, (c) amend or modify, or permit the amendment or modification of, any provision of (i) the Subordinated Debt Documents, except as permitted by the applicable Subordination Agreement, or (ii) the Seller Specified Obligations, other than any amendments or modifications which do not in any way adversely affect the interests of the Lenders and are otherwise permitted hereunder, or (d) amend or modify, or permit the amendment or modification of, any provision of any Material Contract, other than any amendments or modifications which do not in any way adversely affect the interests of the Lenders and are otherwise permitted hereunder.

7.15         Financial Covenants.

(a)          Maximum Total Leverage Ratio. Permit the Total Leverage Ratio of Borrower on a Consolidated Basis, measured for each period of four consecutive fiscal quarters, on the last day of each fiscal quarter (each a “Measurement Date”), to be greater than the ratio set forth below for the corresponding period at any time:

Period	Ratio
Closing Date through September 30, 2017	5.00:1.00
December 31, 2017 through March 31, 2018	4.75:1.00
June 30, 2018 through September 30, 2018	4.50:1.00
December 31, 2018 through March 31, 2019	4.25:1.00
June 30, 2019 and thereafter	4.00:1.00

(b)          Fixed Charge Coverage. Permit the Fixed Charge Coverage Ratio of Borrower on a Consolidated Basis, measured for each period of four consecutive fiscal quarters beginning with the fiscal quarter ending on December 31, 2016 and on each Measurement Date thereafter, to be less than the ratio set forth below for the corresponding period at any time:

108

Period	Ratio
December 31, 2016 through December 31, 2019	1.10:1.00
March 31, 2020 and thereafter	1.20:1.00

(c)          Borrower Capital Expenditures. Contract for, purchase or make any expenditure or commitments for Capital Expenditures of Borrower on a Consolidated Basis in the fiscal year ending December 31, 2016 in an aggregate amount in excess of $5,500,000 and in any fiscal year thereafter in an aggregate amount in excess of 6.00% of the revenue of Borrower on a Consolidated Basis for the immediately preceding four consecutive fiscal quarters (calculated on a pro forma basis in form and substance reasonably acceptable to Administrative Agent).

(d)          Parent Capital Expenditures. Contract for, purchase or make any expenditure or commitments for Capital Expenditures of Parent.

(e)          Maximum Senior Leverage Ratio. Permit the Senior Leverage Ratio of Borrower on a Consolidated Basis, measured for each period of four consecutive fiscal quarters on each Measurement Date, to be greater than the ratio set forth below for the corresponding period at any time:

Period	Ratio
Closing Date through September 30, 2017	3.50:1.00
December 31, 2017 through March 31, 2018	3.25:1.00
June 30, 2018 through September 30, 2018	3.00:1.00
December 31, 2018 through March 31, 2019	2.75:1.00
June 30, 2019 and thereafter	2.50:1.00

(f)          Minimum Adjusted EBITDA. Permit the Adjusted EBITDA of Parent on a Consolidated Basis to be less than $15,000,000 at any time.

(g)         Minimum Liquidity. Permit the Liquidity of Parent on a Consolidated Basis to be less than $6,000,000 on December 31, 2016.

109

For purposes of calculating the covenants in this Section 7.15, any Acquisition, including the Target Transaction, or Disposition (and the incurrence or repayment of any Indebtedness in connection therewith) that exceeds the Threshold Amount and has been made either (i) during the applicable period or (ii) subsequent to such period and prior to or simultaneously with the event for which the calculation of any such ratio is made, shall be calculated on a pro forma basis (including pro forma adjustments arising out of anticipated synergies, cost savings and other events directly attributable to such Acquisition or Disposition that are factually supportable and are expected to have a continuing effect), in form and substance satisfactory to Agent in its reasonable discretion, assuming that such Acquisition or Disposition (and any increase or decrease in Adjusted EBITDA of any Person and the component financial definitions used therein attributable to such Acquisition or Disposition other than Fixed Charges prior to July 1, 2017) had occurred on the first day of the applicable period. Notwithstanding the above, (1) other than as provided in clause (3) of this sentence, no pro forma adjustment in excess of $1,000,000 for any Acquisition or Disposition shall be made unless approved by Administrative Agent in its sole discretion, (2) Adjusted EBITDA for the fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016 shall be as set forth on Schedule 7.15, and (3) on and after the Acquisition of the Target Company, Adjusted EBITDA of any Person shall be calculated for the fiscal quarter ending December 31, 2016 on a pro forma basis utilizing the anticipated synergies and cost savings set forth on page 10 of the Target Quality of Earnings Report.

7.16         ERISA. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, engage in any transaction which could be subject to Sections 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in any material non-exempt “prohibited transaction” (as defined in Section 4975 of the Code); (b) fail to materially comply with the terms of any Plan, ERISA or any other applicable Laws; (c) incur any material “unpaid required contribution” (as defined in Section 302 of ERISA) or otherwise fail to meet the minimum funding standards of Section 302 through 305 of ERISA; or (d) fail to promptly notify Administrative Agent of any ERISA Event. Neither Borrower nor its ERISA Affiliates shall (i) terminate any Plan where such event could result in any material liability to Borrower or an ERISA Affiliate, or the imposition of a lien on the property of any Borrower or any ERISA Affiliate pursuant to Section 4068 of ERISA, or (ii) incur any material withdrawal liability under any Multiemployer Plan. Notwithstanding any other provision of this Agreement or any other Loan Document, neither Borrower nor its ERISA Affiliates shall (i) establish or agree to contribute to or otherwise incur liability under any Pension Plan or Multiemployer Plan under which Borrower or its ERISA Affiliates have no liability as of the date of this Agreement or (ii) acquire an interest in any Person if such Person sponsors, administers, maintains or contributes to, or has any liability in respect of any Pension Plan or Multiemployer Plan.

7.17         Prepayment of Indebtedness. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, at any time, directly or indirectly, prepay any Indebtedness, or repurchase, redeem, retire or otherwise acquire any Indebtedness, other than, in each case, the Obligations to the Lenders and the other Secured Parties.

110

7.18         Burdensome Agreements. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries, to create or otherwise cause or suffer to exist or become effective, directly or indirectly, (a) any prohibition or restriction (including any agreement to provide equal and ratable security to any other Person) on the creation or existence of any Lien upon the assets of any Loan Party or any of its Subsidiaries, other than restrictions in agreements evidencing Purchase Money Indebtedness and Capital Leases permitted by Section 7.07(c) that impose restrictions on the property so acquired, (b) any Contractual Obligation (other than the Subordination Agreement) which may restrict or inhibit Administrative Agent’s rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default, (c) any prohibition or restriction on the ability of any Subsidiary of Borrower to (i) pay dividends or make distributions to on any of such Subsidiary’s Equity Securities owned by Borrower or by its Subsidiaries, (ii) to repay or prepay any Indebtedness owed by such Subsidiary to Borrower or to its Subsidiaries, (iii) make loans or advances to Borrower or its Subsidiaries or (iv), other than restrictions in agreements evidencing Purchase Money Indebtedness and Capital Leases permitted by Section 7.07(c) that impose restrictions on the property so acquired, transfer any of its property or assets to Borrower or its Subsidiaries, or (d), other than as provided on Schedule 7.18, require or create an obligation for any Loan Party or its Subsidiaries to pay dividends, distributions or otherwise make a Restricted Payment.

7.19         Separateness Requirements. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, engage in any activity prohibited by the Separateness Requirements.

7.20         Deposit Accounts; Securities Account. Except as expressly permitted by the Security Documents or as expressly provided for in this Agreement, (a) no Loan Party shall establish or maintain a Deposit Account, Securities Account, or Commodities Account that is not subject to a Control Agreement.

7.21         Hedging Transactions. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions entered into in the ordinary course of business to hedge or mitigate risks to which any of the Loan Parties or any Subsidiary of Parent is exposed in the conduct of its business or the management of its liabilities. Solely for the avoidance of doubt, Borrower acknowledge on behalf of itself and the other Loan Parties that a Hedging Transaction entered into for speculative purposes or of a speculative nature (which shall be deemed to include any Hedging Transaction under which any of the Loan Parties or any Subsidiary of Parent is or may become obliged to make any payment (a) in connection with the purchase by any third party of any Equity Securities or any Indebtedness or (b) as a result of changes in the market value of any Equity Securities or any Indebtedness) is not a Hedging Transaction entered into in the ordinary course of business to hedge or mitigate risks.

SECTION 8

EVENTS OF DEFAULT AND REMEDIES

8.01         Events of Default. Any one or more of the following events shall constitute an Event of Default:

(a)          Any Loan Party shall default in the payment of the principal amount of any Obligation, when and as the same shall become due and payable, whether at maturity or at a date fixed for payment or prepayment or by acceleration or otherwise; or

(b)          Any Loan Party shall default in the payment of any installment of interest on any Obligation or any other amount due under this Agreement or under any other Loan Document or the Notes (other than as set forth in clause (a) of this Section 8.01) according to its terms, when and as the same shall become due and payable and such default shall continue for a period of three (3) Business Days after the due date for the payment thereof; or

111

(c)          Any Loan Party or any of its Subsidiaries shall default in the due observance or performance of any covenant to be observed or performed pursuant to Sections 6.01, 6.02, 6.03, 6.04, 6.05, 6.08, 6.09, 6.12, 6.14, 6.18, 6.19 or 6.20 or Section 7; or

(d)          Any Loan Party or any of its Subsidiaries shall default in the due observance or performance of any other covenant, condition or agreement on the part of such Loan Party or such Subsidiary to be observed or performed pursuant to the terms hereof or any of the Loan Documents (other than those referred to in clauses (a), (b) or (c) of this Section 8.01), and such default shall continue for fifteen (15) days after the earliest of (i) if any Loan Party has knowledge of such default, the date such Loan Party is required pursuant to the Loan Documents or otherwise to give notice thereof to Administrative Agent or Lenders (whether or not such notice is actually given) or (ii) the date of written notice thereof, specifying such default, shall have been given to the Loan Parties by Administrative Agent or any Lender; or

(e)          Any representation, warranty or certification made by or on behalf of any Loan Party or any of its Subsidiaries in this Agreement, the other Loan Documents or in any certificate or other document delivered pursuant hereto or thereto shall have been incorrect in any material respect (without duplication of any materiality qualification therein) when made; or

(f)          Any event or condition shall occur that results in the acceleration of the maturity of any Indebtedness of any Loan Party or any of its Subsidiaries in an amount in excess of $500,000 for any Loan Party or its Subsidiary or $1,000,000 for all Loan Parties and their respective Subsidiaries, or any default shall occur by any Loan Party under the Subordinated Debt Documents, in each case which the Loan Parties fail to cure within any applicable cure period; or

(g)          Any uninsured damage to or loss, theft or destruction of any assets of any Loan Party or any of its Subsidiaries shall occur that is in excess of $500,000 for any Loan Party or its Subsidiary or $1,000,000 for all Loan Parties and their respective Subsidiaries; or

(h)          An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Loan Party or any of its Subsidiaries, or of a substantial part of any of their respective property or assets, under the Bankruptcy Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any of its Subsidiaries, or for a substantial part of any of their respective property or assets, or (iii) the winding up or liquidation of any Loan Party or any of its Subsidiaries; and such proceeding or petition shall continue undismissed for sixty (60) days, or an order or decree approving or ordering any of the foregoing shall be entered; or

(i)          Any Loan Party or any of its Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking relief under the Bankruptcy Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar applicable Law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (h) of this Section 8.01, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official, for a substantial part of its property or assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due, or (vii) take any action for the purpose of effecting any of the foregoing; or

112

(j)          One or more judgments for the payment of money in an aggregate amount in excess of $500,000 shall be rendered against any Loan Party or any of its Subsidiaries or in excess of $1,000,000 for all Loan Parties and their respective Subsidiaries (to the extent not covered by independent third-party insurance (1) as to which the insurer is rated at least “A” by A.M. Best Company, (2) who has been notified of the potential claim and has either accepted tender of defense and is defending such claim or has authorized the insured to defend such claim and (3) who does not dispute coverage) or one or more non-monetary final judgments shall be rendered against any Loan Party or any of its Subsidiary which could reasonably be expected to have a Material Adverse Effect and, in each case, such judgement shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgement creditor to levy upon assets or properties of any Loan Party or any of its Subsidiaries to enforce any such judgment; or

(k)          Any Loan Document, at any time after its execution and delivery and for any reason other than the agreement of all Lenders or satisfaction in full of all the Obligations, ceases to be in full force and effect or is declared by a court of competent jurisdiction to be null and void, invalid or unenforceable in any respect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or Borrower or any Guarantor denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or any Loan Document intended to provide a Lien in favor of Administrative Agent or any Lender, fails to create a valid and perfected First Priority Lien (except for Permitted Liens that by operation of law would take priority) on, or security interest in, any of the Collateral purported to be covered; or

(l)          Unless otherwise waived or consented to by the Requisite Lenders in writing, the subordination provisions relating to any Indebtedness subordinated to the Indebtedness pursuant to the Notes and this Agreement (collectively, the “Subordination Provisions”) shall fail to be enforceable by Administrative Agent and the Lenders in accordance with the terms thereof, or the monetary obligations pursuant to the Notes and this Agreement shall fail to constitute “Senior Debt” (or similar term) referring to such obligations; or any Loan Party shall, directly or indirectly, disavow or contest in any manner (i) the effectiveness, validity or enforceability of any of the Subordination Provisions, (ii) that the Subordination Provisions exist for the benefit of Administrative Agent and the Secured Parties or (iii) that all payments of principal of or premium and interest on the such subordinated Indebtedness, or realized from the liquidation of any property of any Loan Party or Subsidiary, shall be subject to any of such Subordination Provisions; or any Loan Party shall make any Subordinated Debt Payment not permitted by the applicable subordination agreement; or

(m)          (i) An ERISA Event occurs with respect to a Plan which has resulted or could reasonably be expected to result in liability of any Loan Party or any of its Subsidiaries in an aggregate amount in excess of the Threshold Amount; (ii) the aggregate amount of Unfunded Pension Liability among all Plans at any time exceeds the Threshold Amount; or (iii) Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payments with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or

113

(n)          The occurrence of any event or condition that could reasonably be expected to have a Material Adverse Effect; or

(o)          There occurs (i) any Change of Control, or (ii) any event relating to a change in the corporate ownership, control or governance of Parent or any Subsidiary as issuer (an “Issuer”) of any notes, bonds, debentures, convertible debt or other debt securities, the result of which is to cause Indebtedness evidenced by any such notes, bonds, debentures, convertible debt or other debt securities to be subject to mandatory redemption or repurchase by such Issuer, provided the outstanding amount of such outstanding Indebtedness exceeds $250,000; or

(p)          Any License held by any Loan Party shall be cancelled, terminated, rescinded, revoked, suspended, impaired, otherwise finally denied renewal, or otherwise modified, in each case, to the extent the same could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or any material License held by any Loan Party shall be renewed on terms that materially and adversely affect the economic or commercial value or usefulness thereof; or any License held by any Loan Party shall cease to be in full force and effect if such failure to be in full force and effect could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; or the grant of any material License held by any Loan Party shall have been stayed, vacated or reversed, or modified in any material adverse respect by judicial or administrative proceedings.

8.02         Remedies Upon Event of Default. Without limiting any other rights or remedies of Administrative Agent or Lenders provided for elsewhere in this Agreement or in the other Loan Documents, or by applicable Law, or in equity, or otherwise:

(a)          Upon the occurrence, and during the continuance, of any Event of Default (other than an Event of Default described in Sections 8.01(i) and (j), in respect of which Section 8.02(b) shall apply), Administrative Agent may, and upon the request of Requisite Lenders shall, terminate the Commitments and/or:

(i)          declare all or any part of the unpaid principal of all Loans, all interest accrued and unpaid thereon, any unpaid fees and all other amounts payable under the Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and payable to Administrative Agent for the benefit of each Lender without protest, presentment, notice of dishonor, demand or other notice of any kind, all of which are expressly waived by Borrower; and/or

(ii)         require Borrower to, and Borrower shall thereupon, Cash Collateralize all outstanding Letters of Credit, and Borrower hereby pledges to Administrative Agent and the Lenders, and grants to Administrative Agent and the Lenders a security interest in, all such Cash Collateral as security for such Obligations; and/or

114

(iii)        exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents.

(b)          Upon the occurrence of any Event of Default described in Section 8.01(i) or Section 8.01(j):

(i)          the Commitments shall automatically terminate without notice to or demand upon Borrower, which are expressly waived by Borrower; and

(ii)         the unpaid principal of all Loans, all interest accrued and unpaid thereon, any unpaid fees and all other amounts payable under the Loan Documents shall be immediately due and payable, without protest, presentment, notice of dishonor, demand or further notice of any kind, all of which are expressly waived by Borrower; and

(iii)        Administrative Agent may enforce any and all Liens and security interests created pursuant to the Security Documents.

(c)          Upon the occurrence and during the continuance of any Event of Default, Administrative Agent, without notice to or demand upon Borrower, all of which are expressly waived by Borrower, may proceed to protect, exercise and enforce its rights and remedies under the Loan Documents against Borrower and its Subsidiaries and such other rights and remedies as are provided by Law or equity (including, without limitation, the provisions of the applicable Uniform Commercial Code).

(d)          Except as permitted by Section 10.21, no Lender may exercise any rights or remedies with respect to the Obligations. The order and manner in which Administrative Agent’s and Secured Parties’ rights and remedies are to be exercised shall be determined by Administrative Agent in its sole and absolute discretion. Regardless of how a Lender may treat payments for the purpose of its own accounting, for the purpose of computing the Obligations hereunder, after the exercise of remedies provided for in this Section 8.02 (or after the Loans have automatically become immediately due and payable and the Letter of Credit Obligations have automatically been required to be Cash Collateralized as set forth in Section 8.02(a)(ii)), any amounts received on account of the Obligations shall be applied by Administrative Agent in the following order:

first, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including Attorney Costs and amounts payable under Section 3) payable to Administrative Agent in its capacity as such;

second, to payment of that portion of the Obligations constituting indemnities, expenses, and other amounts (other than principal, interest and fees (including Letter of Credit Fees)) payable to the Lenders and Issuing Bank (including fees, charges and disbursements of counsel to the respective Lenders and Issuing Bank and amounts payable under Section 9), ratably among them in proportion to the amounts described in this clause second payable to them;

115

third, to payment of that portion of the Obligations constituting (i) accrued and unpaid interest on (1) the Loans, (2) Letter of Credit Borrowings and (3) other Obligations (other than Obligations pursuant to any Secured Hedging Obligation and Secured Treasury Management Agreements), (ii) constituting fees and scheduled periodic payments, and any interest accrued thereon, due under any Secured Hedging Obligation entered into by Borrower with respect to any Class of Loans, and (iii) fees (including Letter of Credit Fees), ratably among the Lenders, Hedging Banks and Issuing Bank in proportion to the respective amounts described in this clause third payable to them;

fourth, to payment of that portion of the Obligations constituting (i) unpaid principal of the Loans and Letter of Credit Borrowings and (ii) breakage, termination or other payments, and any interest accrued thereon, due under any Secured Hedging Obligation entered into by Borrower with respect to any Class of Loans, ratably among the Lenders, Issuing Bank and Hedging Banks in proportion to the respective amounts described in this clause fourth payable to them;

fifth, to Administrative Agent for the account of Issuing Bank, to Cash Collateralize that portion of Letter of Credit Obligations comprised of the aggregate undrawn amount of Letters of Credit;

sixth, to (i) payment of that portion of the Obligations due under any Secured Hedging Obligation not described in clause fourth and (ii) payments of amounts due under any Secured Treasury Management Agreement, ratably among the applicable Hedging Banks and Treasury Management Banks in proportion to the respective amounts described in this clause sixth payable to them;

seventh, to payment of all other Obligations, ratably among the Secured Parties in proportion to the respective amounts described in this clause seventh held by them; and

eighth, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Loan Parties or as otherwise required by law.

Subject to Sections 2.03(g) and 2.19, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or such Guarantor’s assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section 8.02(d).

Notwithstanding the foregoing, Obligations arising under Secured Treasury Management Agreements and Secured Hedging Obligations shall be excluded from the application described above if Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as Administrative Agent may request, from the applicable Treasury Management Bank or Hedging Bank, as the case may be. Each Treasury Management Bank or Hedging Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of Administrative Agent pursuant to the terms of Section 9 for itself and its Affiliates as if a “Lender” party hereto.

116

No application of payments will cure any Event of Default, or prevent acceleration, or continued acceleration, of amounts payable under the Loan Documents, or prevent the exercise, or continued exercise, of rights or remedies of Administrative Agent and Lenders hereunder or thereunder or at Law or in equity.

(e)          FCC Licenses; PUC Licenses; Related Collateral.

(i)          Administrative Agent’s rights hereunder (and the rights of any receiver appointed by reason of the exercise of remedies hereunder) with respect to the FCC Licenses and the PUC Licenses and any Collateral subject to such FCC Licenses and PUC Licenses, are expressly subject to, and limited by any obligations and/or restrictions imposed by, the Communications Law.  Borrower agrees to, and to cause each Loan Party and Subsidiary of a Loan Party to, take any action which Administrative Agent may request in order to obtain and enjoy the full rights and benefits granted to Administrative Agent by this Agreement and the other Loan Documents, including the use of its best efforts to assist in obtaining Consent of the FCC or any PUC for any action or transaction contemplated by this Agreement or any other Loan Documents which Consent is then required by Law.

(ii)         Prior to the exercise by Administrative Agent (or any receiver appointed by reason of the exercise of remedies hereunder) of any power, rights, privilege, or remedy pursuant to this Agreement or any other Loan Document which requires any Consent of the FCC or any PUC, Borrower will, and will cause each Loan Party and Subsidiary of a Loan Party, at the request of Administrative Agent, execute and deliver, or cause the execution and delivery of, all applications, certificates, instruments, and other documents and papers that Administrative Agent determines may be required to obtain such Consent. Without limiting the generality of the foregoing, each such Loan Party or Subsidiary will promptly upon request by Administrative Agent (or any such receiver so appointed) execute and deliver the appropriate portions of applications to the FCC or PUC for its Consent to the assignment of or the direct or indirect transfer of control of the FCC Licenses and PUC Licenses issued to such Loan Party or Subsidiary and/or any Collateral subject to such FCC Licenses and PUC Licenses and use its best efforts, upon the request of Administrative Agent (or any receiver so appointed) to assist in obtaining from the FCC or PUC the necessary Consent, if any, for the assignment of or the direct or indirect transfer of control of such FCC Licenses, such PUC Licenses, and any Collateral subject to the such FCC Licenses or PUC Licenses to Administrative Agent or its designee upon or following an Event of Default.

(iii)        If any Loan Party or Subsidiary shall refuse to prepare, execute or file any such application or portion thereof within three (3) Business Days of being requested to do so by Administrative Agent, any court of competent jurisdiction may (1) direct such Loan Party or Subsidiary to provide such information to the receiver or the court, as the case may be, as will permit the filing of the application and (2) authorize the clerk of the court or any other designee of the court to prepare, execute and file any such application or portion thereof on behalf of such Loan Party or Subsidiary. Borrower acknowledges, and will cause each Loan Party to acknowledge, that the assignment of the FCC Licenses and the PUC Licenses, or change of control over any Loan Party or Subsidiary, is integral to Administrative Agent’s realization of the value of their Collateral, that there is no adequate remedy at Law for failure by any Loan Party to comply with the provisions of this Section 8.02(e), and that such failure would not be adequately compensable in damages, and therefore, agree that the agreements contained in this Section 8.02(e) may be specifically enforced.

117

(iv)        Notwithstanding anything to the contrary contained in any Loan Document but without waiving or limiting any obligations of any Loan Party or Subsidiary hereunder, neither Administrative Agent nor any receiver appointed by reason of the exercise of remedies hereunder shall control, supervise, direct, or manage, or attempt to control, supervise, direct, or manage, the business of any Loan Party or Subsidiary, in any case that would constitute or result in any assignment of any FCC License or PUC License or any Collateral subject to such FCC Licenses or PUC Licenses, or a direct or indirect transfer of control of any Loan Party or Subsidiary, any FCC License or any PUC License, whether de jure or de facto, if such assignment or such direct or indirect transfer of control would require under the Communications Law, the prior Consent of the FCC or any PUC without first obtaining such Consent.

SECTION 9

ADMINISTRATIVE AGENT

9.01         Appointment and Authorization of Administrative Agent. Each of the Lenders, Issuing Bank and Swingline Lender hereby irrevocably appoints EWB to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except as expressly set forth in Section 9.08, the provisions of this Section 9 are solely for the benefit of Administrative Agent, the Lenders, Issuing Bank, and Swingline Lender and neither Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

9.02         Rights as a Lender. The Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, Borrower, Parent or any Subsidiary or other Affiliate of Parent as if such Person were not Administrative Agent hereunder and without any duty to account therefor to the Lenders.

118

9.03         Exculpatory Provisions.

(a)          Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, Administrative Agent:

(i)          shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

(ii)         shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing by the Requisite Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may affect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

(iii)        shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as an Administrative Agent or any of its Affiliates in any capacity.

(b)          Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Requisite Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.03), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to Administrative Agent in writing by Borrower, a Lender, Issuing Bank or Swingline Lender.

(c)          Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent

119

9.04         Reliance by Administrative Agent. Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or Issuing Bank, Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of a Loan or the issuance of such Letter of Credit. Administrative Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

9.05         Delegation of Duties. Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Section 9 shall apply to any such sub-agent and to the Related Parties of Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Credit Facilities as well as activities as Administrative Agent. Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

9.06         Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify Administrative Agent (or sub-agent thereof) and any Administrative Agent-Related Persons (each, an “Indemnitee Agent Party”), to the extent that such Indemnitee Agent Party shall not have been reimbursed by any Loan Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Loan Documents or otherwise in its capacity as such Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Loan Documents, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory, or sole negligence of such INDEMNITEE Agent PARTY; provided, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Agent Party’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order. If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided, in no event shall this sentence require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided further, this sentence shall not be deemed to require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.

120

9.07         Non-Reliance on Administrative Agent and Other Lenders. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

9.08         Successor Administrative Agent; Resignation of Issuing Bank or Swingline Lender.

(a)          Administrative Agent may at any time give notice of its resignation to the Lenders, Issuing Bank, Swingline Lender and Borrower. Upon receipt of any such notice of resignation, the Requisite Lenders shall have the right, with the prior written consent of Borrower (not to be unreasonably withheld or delayed) unless an Event of Default has occurred and is continuing at the time of such appointment or such appointment is to a Lender, to appoint a successor. If no such successor shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Requisite Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and Issuing Bank and the Swingline Lender, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

121

(b)          If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Requisite Lenders may, to the extent permitted by applicable Law, by notice in writing to Borrower and such Person remove such Person as Administrative Agent and, with the prior written consent of Borrower (not to be unreasonably withheld or delayed) unless an Event of Default has occurred and is continuing at the time of such appointment or such appointment is to a Lender, appoint a successor. If no such successor shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Requisite Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

(c)          With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by Administrative Agent on behalf of the Lenders or Issuing Bank under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender and Issuing Bank directly, until such time, if any, as the Requisite Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Section and Section 10.02 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent

(d)          Notwithstanding anything herein to the contrary, Administrative Agent may assign its rights and duties as Administrative Agent hereunder to an Affiliate of EWB without the prior written consent of, or prior written notice to, Borrower, Issuing Bank, Swingline Lender or the Lenders; provided that Borrower and the Lenders may deem and treat such assigning Administrative Agent as Administrative Agent for all purposes hereof, unless and until such assigning Administrative Agent provides written notice to Borrower and the Lenders of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Administrative Agent hereunder and under the other Loan Documents.

(e)          Issuing Bank may resign at any time by giving thirty (30) days’ prior notice to Administrative Agent, the Lenders and Borrower. After the resignation of Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of Issuing Bank under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters of Credit or to extend, renew or increase any existing Letter of Credit.

122

(f)          Swingline Lender may resign at any time by giving thirty (30) days’ prior notice to Administrative Agent, the Lenders, and Borrower. After the resignation of the Swingline Lender hereunder, the retiring Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of the Swingline Lender under this Agreement and the other Loan Documents with respect to Swingline Loans issued by it prior to such resignation, but shall not be required to make any additional Swingline Loans.

9.09         Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Administrative Agent (irrespective of whether the principal of any Class of Loan or Letter of Credit Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(a)          to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, Issuing Bank, Swingline Lender and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, Issuing Bank, Swingline Lender and Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, Issuing Bank, Swingline Lender and Administrative Agent under Section 2.11, Section 3 and Section 10.02) allowed in such judicial proceeding; and

(b)          to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Lenders and Issuing Bank, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Section 2.11, Article 3 and Section 10.02.

9.10         Lenders’ Representations, Warranties and Acknowledgment.

(a)          Each Lender and Issuing Bank represents and warrants that it has made its own independent investigation of the financial condition and affairs of Parent and its Subsidiaries in connection with the Loans made and Letters of Credit issued hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Parent and its Subsidiaries. Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or Issuing Bank or to provide any Lender or Issuing Bank with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and Administrative Agent shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders or Issuing Bank.

123

(b)          Each Lender and Issuing Bank, by delivering its signature page to this Agreement or an Assignment and Assumption Agreement and funding its Loans or issuing its Letters of Credit shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by any Administrative Agent, Requisite Lenders or Lenders, as applicable on the Closing Date or as of the date of funding of such Loans or Letter of Credit Extension, as applicable.

9.11         Collateral and Guaranty Matters.

(a)          Each Lender (on behalf of itself and any of its Affiliates who are or who may become Secured Parties), the Swingline Lender and Issuing Bank irrevocably authorize Administrative Agent, at its option and in its discretion,

(i)          to release any Lien on any Collateral granted to or held by Administrative Agent under any Loan Document (1) upon termination of the aggregate Revolving Loan Commitments, the Term Loan Commitments and payment in full of all Obligations (other than contingent indemnification obligations and subject to such arrangements as is satisfactory to the applicable Secured Party, Borrower and Administrative Agent with respect to any Secured Hedging Obligations or Obligations in respect of any Secured Treasury Management Agreement) and the expiration, termination or Cash Collateralization in the Minimum Collateral Amount of all Letters of Credit, (2) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any Disposition permitted hereunder or under any other Loan Document, or (3) as approved in accordance with Section 10.03; and

(ii)         to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.

(b)          Upon request by Administrative Agent at any time, the Requisite Lenders will confirm in writing Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty, pursuant to this Section 9.11.

(c)          Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall Administrative Agent be responsible or liable to the Secured Parties for any failure to monitor or maintain any portion of the Collateral.

9.12         Treasury Management Banks and Hedging Banks. No Treasury Management Bank or Hedging Bank that obtains the benefit of Section 10.21, the Guaranty or any Collateral by virtue of the provisions hereof or any Security Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Security Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Section 9 to the contrary, Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Treasury Management Agreements and Secured Hedging Obligations.

124

SECTION 10

MISCELLANEOUS

10.01         Notices.

(a)          Notices Generally. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to a Loan Party, Administrative Agent, Swingline Lender or Issuing Bank shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

(i)          if to Borrower or any other Loan Party, at the address, facsimile number, e-mail address (with confirmation of receipt) or telephone number specified for such Person as set forth on Schedule 10.01; or

(ii)         if to Administrative Agent, at the address, facsimile number, e-mail address or telephone number specified for such Person as set forth on Schedule 10.01; or

(iii)        if to EWB as Issuing Bank, at the address, facsimile number, e-mail address or telephone number specified for such Person as set forth on Schedule 10.01;

(iv)        if to EWB as Swingline Lender, at the address, facsimile number, e-mail address or telephone number specified for such Person as set forth on Schedule 10.01; or

(v)         if to any other Lender, to the address, facsimile number, e-mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to Borrower) or otherwise indicated to Administrative Agent in writing.

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile or e-mail transmission shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause (b) below, shall be effective as provided in such clause (b).

125

(b)          Electronic Communications. Notices and other communications to the Lenders, Swingline Lender and Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail address and Internet or intranet websites) pursuant to procedures approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Lender, Swingline Lender or Issuing Bank pursuant to Section 2 if such Lender, Swingline Lender or Issuing Bank, as applicable, has notified Administrative Agent that it is incapable of receiving notices under such Section 2 by electronic communication. Administrative Agent, Swingline Lender or any Issuing Bank may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, e-mail or other communication is not sent during the normal business hours of the recipient, such notice, e-mail or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

(c)          Platforms. Each Loan Party agrees that Administrative Agent may, but shall not be obligated to, make communications, information, documents and other materials provided to any of Administrative Agent, Lender, Swingline Lender or Issuing Bank by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein available to Issuing Bank, Swingline Lender or Administrative Agent or Lenders by posting such communications on the Internet or any telecommunications, electronic or other information transmission system (each, a “Platform”). ANY PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF BORROWER MATERIALS OR THE ADEQUACY OF ANY PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER MATERIALS OR ANY PLATFORM. In no event shall Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Borrower, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s, any Loan Party’s or Administrative Agent’s transmission of Borrower Materials or any other information through the Platform, except to the extent arising from the gross negligence or willful misconduct of such Agent Parties.

126

(d)          Change of Address. Borrower may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties. Each of Administrative Agent, Swingline Lender and Issuing Bank may change its address, email address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties. Each other Lender may change its address, facsimile or telephone number or e-mail address for notices and other communications hereunder by notice to Borrower, Administrative Agent, Swingline Lender and Issuing Bank. In addition, each Lender agrees to notify Administrative Agent from time to time to ensure that Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

(e)          Reliance by Administrative Agent, Issuing Bank, Swingline Lender and Lenders. Administrative Agent, Issuing Bank, Swingline Lender and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Notice of Borrowing, Conversion/Continuation Notice and Letter of Credit Applications) purportedly given by or on behalf of any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify Administrative Agent, Issuing Bank, Swingline Lender, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities (including Attorney Costs) resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party, except to the extent arising from the gross negligence or willful misconduct of Administrative Agent, Issuing Bank, Swingline Lender any Lender or the Related Parties. All telephonic notices to and other telephonic communications with Administrative Agent may be recorded by Administrative Agent, and each of the parties hereby consents to such recording.

10.02         Expenses; Indemnity; Damage Waiver.

(a)          Expenses. Borrower agrees, on behalf of itself and the other Loan Parties, on a joint and several basis, to pay (i) all reasonable, out-of-pocket costs and expenses of Administrative Agent and its Affiliates, including Attorney Costs for Administrative Agent and its Affiliates, in connection with the preparation and administration of the Loan Documents and any amendments, modifications or waivers thereof (whether or not the transactions contemplated in this Agreement or any other Loan Document shall be consummated), (ii) all reasonable out-of-pocket costs and expenses (including Attorney Costs) incurred by Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all out-of-pocket costs and expenses (including Attorney Costs) incurred by any Administrative Agent, Issuing Bank, Swingline Lender or any Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section 10.02, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Loans or Letters of Credit.

127

(b)          In addition to the payment of expenses pursuant to Section 10.02(a), whether or not the transactions contemplated hereby shall be consummated, Borrower agrees, on behalf of itself and the other Loan Parties, on a joint and several basis to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, Administrative Agent, Issuing Bank, Swingline Lender and each Lender and each Related Party of any of the foregoing Persons (each such Person, an “Indemnitee”), from and against any and all losses, claims, damages, liabilities and related expenses (including Attorney Costs for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including Borrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by any Loan Party or any of its Subsidiaries, or any environmental liability related in any way to any Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory, or sole negligence of such INDEMNITEE; provided, no Loan Party shall have any obligation to any Indemnitee hereunder with respect to such indemnity to the extent such losses, costs, expenses or liabilities arise from the gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order, of that Indemnitee. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.02 may be unenforceable in whole or in part because they are violative of any Law or public policy, the applicable Loan Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of all such losses, costs, expenses and liabilities relating to the Obligations incurred by the Indemnitees or any of them. This Section 10.02(b) shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages or other similar amounts arising from any non-Tax claim.

(c)          Reimbursement by Lenders. To the extent that Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid by it to Administrative Agent (or any sub-agent thereof), Issuing Bank, Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to Administrative Agent (or any such sub-agent), Issuing Bank, Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that with respect to such unpaid amounts owed to Issuing Bank or Swingline Lender solely in its capacity as such, only the Revolving Loan Lenders shall be required to pay such unpaid amounts, such payment to be made severally among them based on such Revolving Loan Lenders’ Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) provided, further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Administrative Agent (or any such sub-agent), Issuing Bank or Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for Administrative Agent (or any such sub-agent), Issuing Bank or any such Swingline Lender in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.16.

128

(d)          To the extent permitted by applicable Law, no Loan Party shall assert, and Borrower, on behalf of itself and the other Loan Parties, on a joint and several basis hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Loan Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Class of Loans, Letters of Credit or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and Parent and Borrower hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except for such Indemnitee’s own gross negligence or willful misconduct.

10.03         Amendments and Waivers.

(a)          Consents. Subject to Section 10.03(b) and Section 10.03(c), no amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall in any event be effective without the written concurrence of Administrative Agent, Borrower and the Requisite Lenders.

(b)          Affected Lenders’ Consent.

(i)          Without the written consent of each Lender that would be affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would:

(1)         extend the scheduled final maturity of the applicable Class of Loans or the related Notes;

129

(2)         waive, reduce or postpone any scheduled repayment (but not prepayment);

(3)         reduce the rate of interest on the applicable Class of Loans;

(4)         extend the time for payment of any such interest or fees; or

(5)         reduce the principal amount of the applicable Class of Loans.

(ii)         Without the written consent of each Lender (other than a Defaulting Lender) that would be affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would:

(1)         amend, modify, terminate or waive any provision of this Section 10.03(b) or Section 10.03(c);

(2)         amend the definition of “Requisite Lenders” or “Pro Rata Share”;

(3)         release all or substantially all of the Collateral or the Guarantors prior to the indefeasible payment in full in cash of the Obligations, except as expressly provided in the Loan Documents; or

(4)         consent to the assignment or transfer by any Loan Party, of any of its rights and obligations under any Loan Document.

(c)          Other Consents. No amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party, therefrom, shall:

(i)          amend, modify, terminate or waive any provision of Section 9 as the same applies to Administrative Agent, or any other provision hereof as the same applies to the rights or obligations of Administrative Agent, in each case without the consent of Administrative Agent;

(ii)         increase any Revolving Loan Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided, no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Revolving Loan Commitment of any Lender;

(iii)        amend, modify, terminate or waive any provision of Section 4.02 with regard to any Revolving Loan without the consent of Requisite Lenders of such Class;

(iv)        [reserved];

130

(v)         alter the required application of any repayments or prepayments as between Classes pursuant to Section 2.15 or Section 8.02(d) without the consent of Requisite Lenders of each Class which is being allocated a lesser repayment or prepayment as a result thereof; provided, Administrative Agent and the Requisite Lenders may waive, in whole or in part, any prepayment so long as the application, as between Classes, of any portion of such prepayment which is still required to be made is not altered;

(vi)        unless also signed by the Swingline Lender, amend, modify, terminate or waive any provision affecting the rights or duties of the Swingline Lender under this Agreement or any other Loan Document;

(vii)       unless also signed by Issuing Bank, amend, modify, terminate or waive any provision affecting the rights or duties of Issuing Bank under this Agreement or any other Loan Document;

(viii)      unless also signed by Administrative Agent, no amendment, waiver or consent shall affect the rights or duties of Administrative Agent under this Agreement or any other Loan Document.

(d)          Execution of Amendments. Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender.

(e)          Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.03 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Loan Party, on such Loan Party.

(f)          Notwithstanding anything to the contrary herein, if following the Closing Date, Administrative Agent and Borrower shall have jointly identified an inconsistency, obvious error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then Administrative Agent and the Loan Parties shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Requisite Lenders within ten (10) Business Days following receipt of notice thereof.

(g)          Notwithstanding anything to the contrary contained herein, if, following the Closing Date, Administrative Agent and Borrower agree to modify this Agreement in accordance with the Commitment Letter, Administrative Agent and Borrower shall be permitted to amend one or more of the terms of this Agreement to the benefit of the Lenders (as determined by Administrative Agent) and such amendment shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

131

10.04         Successors and Assigns; Participations.

(a)          Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns permitted hereby, except that neither Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section 10.04, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section 10.04, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (e) of this Section 10.04 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section 10.04 and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)          Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (in each case with respect to any Credit Facility) any such assignment shall be subject to the following conditions:

(i)          Minimum Amounts.

(1)         in the case of an assignment of the entire remaining amount of the assigning Lender’s applicable Commitment and/or Loans at the time owing to it (in each case with respect to any Credit Facility) or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in Section 10.04(b)(i)(2) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(2)         in any case not described in Section 10.04(b)(i)(1), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption Agreement with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption Agreement, as of the Trade Date) shall not be less than $5,000,000 and integral multiples of $1,000,000 in excess of that amount, unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (such consent of Borrower not to be unreasonably withheld) with respect to an assignment of the principal outstanding balance of such Loans and; provided that Borrower shall be deemed to have given its consent five (5) Business Days after the date written notice thereof has been delivered by the assigning Lender (through Administrative Agent) unless such consent is expressly refused in writing by Borrower prior to such fifth (5th) Business Day.

132

(ii)         Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Classes on a non-pro rata basis.

(iii)        Required Consents. No consent shall be required for any assignment except to the extent required by Section 10.04(b)(i)(2) and, in addition:

(1)         the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (A) an Event of Default has occurred and is continuing at the time of such assignment or (B) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Administrative Agent within five (5) Business Days after having received notice thereof;

(2)         the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund;

(3)         the consent of Issuing Bank and the Swingline Lender shall be required for any assignment in respect of the Revolving Loan Facility;

(iv)        Assignment and Assumption Agreement. The parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption Agreement, together with a processing and recordation fee of $3,500; provided that Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to Administrative Agent an Administrative Questionnaire.

(v)         No Assignment to Certain Persons. No such assignment shall be made to (1) Parent or any of Parent’s Affiliates or Subsidiaries, (2)  any Defaulting Lender or any of its Subsidiaries, (3) the Subordinated Praesidian Agent or any holder of the Subordinated Debt or any of their respective Affiliates or Subsidiaries or (4) any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (v).

(vi)        No Assignment to Natural Persons. No such assignment shall be made to a natural Person (or to a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).

133

(vii)       Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of Borrower and Administrative Agent, the applicable Pro Rata Share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (1) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent, Swingline Lender, Issuing Bank, and each other Lender hereunder (and interest accrued thereon), and (2) acquire (and fund as appropriate) its full Pro Rata Share of all Loans and participations in Letters of Credit in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by Administrative Agent pursuant to paragraph (c) below, from and after the effective date specified in each Assignment and Assumption Agreement, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3 and 10.02 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from the Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.04(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) below.

(c)          Register. Administrative Agent, acting solely for this purpose as an agent of Borrower, shall maintain at its offices a copy of each Assignment and Assumption Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

134

(d)          Participations. Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than to (i) Parent or any of Parent’s Affiliates or Subsidiaries, (ii) the Subordinated Praesidian Agent or any holder of the Subordinated Debt or any of their respective Affiliates or Subsidiaries, or (iii) a natural Person (or to a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person)) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitments and/or the Loans owing to it); provided that (1) such Lender’s obligations under this Agreement shall remain unchanged, (2) such Lender shall remain solely responsible to the other parties for the performance of such obligations, and (3) Borrower, Administrative Agent, Issuing Bank, Swingline Lender and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.02 with respect to any payments made by such Lender to its Participant(s).

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 10.04(b) that affects such Participant. Borrower agrees that each Participant shall be entitled to the benefits of Section 3 (subject to the requirements and limitations therein, including the requirements under Section 3.01(f) (it being understood that the documentation required under Section 3.01(f) shall be delivered to the participating Lender)) and Section 10.02 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 3.03 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 3.01, Section 3.02(a) and Section 3.02(b), with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 3.04 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.21 as though it were a Lender; provided that such Participant agrees to be subject to Section 3.04 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as non-fiduciary of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

135

(e)          Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

10.05         Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.

10.06         Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of each Class of Loans and Letter of Credit Extensions. Notwithstanding anything herein or implied by law to the contrary, the agreements of each Loan Party set forth in Sections 3.02, 3.04(c), 3.01, 10.02, and 10.09 and the agreements of Lenders set forth in Sections 2.17, 9.03(b) and 9.06 shall survive the payment of each Class of Loans and of the other Obligations, the termination of the Commitments and the termination hereof.

10.07         No Waiver; Remedies Cumulative. No failure or delay on the part of Administrative Agent, Issuing Bank, Swingline Lender or any Lender in the exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to each of Administrative Agent, Issuing Bank, Swingline Lender and each Lender hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of Law or in any of the other Loan Documents. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.

10.08         Marshalling; Payments Set Aside. None of Administrative Agent, Issuing Bank, Swingline Lender nor any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Loan Party makes a payment or payments to Administrative Agent, Issuing Bank, Swingline Lender or any Lender (or to Administrative Agent, on behalf of Secured Parties), or Administrative Agent, Issuing Bank, Swingline Lender or any Lender enforce any security interests or exercise their rights of set-off, and such payment or payments or the proceeds of such enforcement or set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Laws, any other state, provincial or federal Law, common Law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or set-off had not occurred.

136

10.09         Severability. In case any provision in or obligation hereunder or any Note or other Loan Document 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.

10.10         Obligations Several; Actions in Concert. The obligations of Lenders and Issuing Bank hereunder are several and no Lender or Issuing Bank shall be responsible for the obligations or Commitments of any other Lender or Issuing Bank hereunder. Nothing contained herein or in any other Loan Document, and no action taken by Lenders or Issuing Bank pursuant hereto or thereto, shall be deemed to constitute Lenders and/or Issuing Bank as a partnership, an association, a joint venture or any other kind of entity. Anything in this Agreement or any other Loan Document to the contrary notwithstanding, each Lender and Issuing Bank hereby agrees with each other Lender and Issuing Bank that no Lender or Issuing Bank shall take any action to protect or enforce its rights arising out of this Agreement or any Note or otherwise with respect to the Obligations without first obtaining the prior written consent of Administrative Agent and/or the Requisite Lenders (as applicable), it being the intent of Lenders and Issuing Bank that any such action to protect or enforce rights under this Agreement and any Note or otherwise with respect to the Obligations shall be taken in concert and at the direction or with the consent of Administrative Agent and/or the Requisite Lenders (as applicable).

10.11         Headings. Section headings herein are included for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

10.12         APPLICABLE LAW. THIS AGREEMENT (INCLUDING SECTION 10.14) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER 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 (other than Sections 5-1401 and 5-1402 of The New York General Obligations Law).

10.13         CONSENT TO JURISDICTION.

(a)          ALL JUDICIAL PROCEEDINGS ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; PROVIDED THAT BORROWER AGREES, ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES, ON A JOINT AND SEVERAL BASIS THAT ADMINISTRATIVE AGENT, LENDERS, SWINGLINE LENDER AND ISSUING BANK RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION IF SUCH PROCEEDINGS ARE BEING BROUGHT IN ORDER TO REALIZE UPON ANY COLLATERAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING AND BROUGHT IN ANY COURT SPECIFIED ABOVE. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

137

(b)          BORROWER HEREBY AGREES THAT PROCESS MAY BE SERVED ON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESS PROVIDED IN APPENDIX B HERETO. ANY AND ALL SERVICE OF PROCESS AND ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE AGAINST ANY PARTY HERETO IF GIVEN BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER MEANS OR MAIL WHICH REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED AS PROVIDED ABOVE. IN THE EVENT THE ADDRESSEE SPECIFIED IN APPENDIX B HERETO SHALL NOT BE ABLE TO RECEIVE AND FORWARD SERVICE OF PROCESS AS AFORESAID AND IF BORROWER SHALL NOT MAINTAIN AN OFFICE IN NEW YORK CITY, BORROWER SHALL PROMPTLY APPOINT AND MAINTAIN AN AGENT QUALIFIED TO ACT AS AN AGENT FOR SERVICE OF PROCESS WITH RESPECT TO THE COURTS SPECIFIED IN THIS SECTION 10.13.

10.14         WAIVER OF JURY TRIAL. EACH PARTY HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN OR AMONG THEM RELATING HERETO OR THERETO OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. 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 AGREEMENT AND THE OTHER LOAN DOCUMENTS, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH PARTY 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 10.14 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 LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

138

10.15         Confidentiality. Each of Administrative Agent, Swingline Lender, Issuing Bank and the Lenders shall hold all Information regarding Parent and its Subsidiaries and their businesses in accordance with such Administrative Agent’s, Issuing Bank’s, Swingline Lender’s or Issuing Bank’s, as applicable, customary procedures for handling confidential information of such nature, it being understood and agreed by each Loan Party that, in any event, Administrative Agent, Swingline Lender, any Lender or Issuing Bank may make (a) disclosures of such Information to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) subject to an agreement containing provisions substantially the same as those of this Section 10.15, disclosures of such Information reasonably required by (i) any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation by Administrative Agent, Swingline Lender, Issuing Bank or a Lender of any of its rights and obligations under this Agreement or (ii) any bona fide or potential party (or its Related Parties) to any swap, derivate or other transaction under which payments are to be made by reference to Borrower and its obligations, this Agreement or payments hereunder, (c) disclosure to any rating agency when required by it, (d) disclosure to any Lender’s financing sources; provided that prior to any disclosure, such financing source is informed of the confidential nature of the Information and instructed to keep such Information confidential, (e) disclosures required or requested by any Governmental Authority or representative thereof or by the NAIC or pursuant to legal or judicial process or other legal proceeding; provided, unless specifically prohibited by applicable Law or court order, the applicable Administrative Agent, Issuing Bank or Lender shall make reasonable efforts to notify Borrower of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Administrative Agent, Issuing Bank, Swingline Lender or Lender by such Governmental Authority) for disclosure of any such non-public information prior to disclosure of such Information, (f) to any other party hereto, (g) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, and (h) with the consent of Borrower. Notwithstanding the foregoing, on or after the Closing Date, Administrative Agent may, at its own expense disseminate privately to current and potential borrowers and current and potential lending partners with respect to other transactions “tombstone” advertisements and other announcements relating to this transaction (which may include use of logos of one or more of the Loan Parties). No Loan Party shall issue any news releases or publish “tombstone” advertisements or other announcements relating to this transaction in newspapers, trade journals or in other appropriate media or otherwise except (i) disclosures required by applicable law, regulation, legal process or the rules of the Securities and Exchange Commission or (ii) with the prior approval of Administrative Agent.

139

10.16         Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged or agreed to be paid with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable Law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the applicable Obligations hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the applicable Obligations hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by Law, Borrower shall pay to Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and Borrower to conform strictly to any applicable usury Laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the applicable Obligations hereunder or be refunded to Borrower. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest, throughout the contemplated term of the Obligations hereunder.

10.17         Counterparts; Integration. This Agreement may be executed in any number of 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. This Agreement and the other Loan Documents and any separate letter agreements with respect to fees payable to Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.

10.18         Effectiveness; Electronic Execution for Assignments.

(a)          Except as provided in Section 4.01, this Agreement shall become effective upon the execution of a counterpart hereof by each of the parties and receipt by Borrower and Administrative Agent of written or telephonic notification of such execution and authorization of delivery thereof.

(b)          The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

140

10.19         USA Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow such Lender or Administrative Agent, as applicable, to identify Borrower in accordance with the USA Patriot Act.

10.20         Acknowledgment and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)          the application of any Write Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder that may be payable to it by any party hereto that is an EEA Financial Institution; and

(b)          the effects of any Bail-In Action on any such liability, including, if applicable:

(i)          a reduction in full or in part or cancellation of any such liability;

(ii)         a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii)        the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

10.21         Set-off. In addition to any rights and remedies of Lender or any assignee or participant of Lender or any Affiliate thereof (each, a “Proceeding Party”) provided by Law, upon the occurrence and during the continuance of any Event of Default, each Proceeding Party is authorized at any time and from time to time, without prior notice to Borrower, any such notice being waived by Borrower to the fullest extent permitted by Law, to proceed directly, by right of set-off, banker’s lien, or otherwise, against any assets of any Loan Party and their Subsidiaries which may be in the possession of such Proceeding Party (including all general or special, time or demand, provisional or other deposits and other indebtedness owing by such Proceeding Party to or for the credit or the account of Borrower) and apply such assets against the Obligations, irrespective of whether such Proceeding Party shall have made any demand therefor and although such Obligations may be unmatured. Lender agrees promptly to notify Borrower and Administrative Agent after any such set-off and application made by Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.

141

10.22         Sharing of Payments.

(a)          If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (1) notify Administrative Agent of such fact, and (2) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:

(i)          if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii)         the provisions of this paragraph shall not be construed to apply to (x) any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letters of Credit to any assignee or participant, other than to Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).

(b)          Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party’s rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.

10.23         Nonliability of Lender.

Borrower acknowledges and agrees that:

(a)          Any inspections of any property of any Loan Party or any of its Subsidiaries made by or through Administrative Agent or any Lender are for purposes of administration of the Loan Documents only, and any Loan Party or any of its Subsidiaries is not entitled to rely upon the same (whether or not such inspections are at the expense of Borrower);

142

(b)          By accepting or approving anything required to be observed, performed, fulfilled or given to Administrative Agent or any Lender pursuant to the Loan Documents, neither Administrative Agent or any Lender shall be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not constitute a warranty or representation to anyone with respect thereto by Administrative Agent or such Lender;

(c)          The relationship between Borrower and each Lender is, and shall at all times remain, solely that of borrower and lender; no Lender shall under any circumstance be deemed to be in a relationship of confidence or trust or a fiduciary relationship with Borrower or its Affiliates, or to owe any fiduciary duty to Borrower or its Affiliates; no Lender undertakes or assumes any responsibility or duty to Borrower or its Affiliates to select, review, inspect, supervise, pass judgment upon or inform Borrower or its Affiliates of any matter in connection with their property or the operations of Borrower or its Affiliates; Borrower and its Affiliates shall rely entirely upon its or their own judgment with respect to such matters; and any review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by such Lender in connection with such matters is solely for the protection of such Lender and neither Borrower nor any other Person is entitled to rely thereon; and

(d)          No Lender shall be responsible or liable to any Person for any loss, damage, liability or claim of any kind relating to injury or death to Persons or damage to property caused by the actions, inaction or negligence of Borrower and/or its Affiliates and Borrower hereby indemnifies and holds Lender harmless from any such loss, damage, liability or claim.

10.24         Further Assurances. Each Loan Party and its Subsidiaries shall, at their expense and without expense to Administrative Agent or Lenders, do, execute and deliver such further acts and documents as Administrative Agent from time to time reasonably requires for the assuring and confirming unto Administrative Agent of the rights hereby created or intended now or hereafter so to be, or for carrying out the intention or facilitating the performance of the terms of any Loan Document (including, without limitation, any matters set forth in any supplement agreement regarding post-closing deliveries or filings entered into with Administrative Agent).

10.25         Entire Agreement. This Agreement, the other Loan Documents and the Commitment Letter represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties or prior, contemporaneous or subsequent written agreement of the parties unless such subsequent written agreement conforms to the requirements of Section 10.03. There are no unwritten oral agreements between the parties.

143

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

Fusion NBS Acquisition Corp., a Delaware corporation, as Borrower
By:	/s/ Gordon Hutchins, Jr.
	Name:  Gordon Hutchins, Jr.
	Title:    President and Chief Operating Officer
EAST WEST BANK, as Administrative Agent, Issuing Bank, Swingline Lender
and as a Lender
By:	/s/ Richard Vian
	Name:  Richard Vian
	Title:    Senior Vice President

144

OPUS BANK, as a Lender
By:	/s/ James Crumpton
	Name:  James Crumpton
	Title:    Senior Vice President Credit Administration

145

Schedule 7.15 

Adjusted EBITDA

Adjusted EBITDA for the fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016 shall be : 

	March 31, 2016		June 30, 2016		September 30, 2016
Adjusted EBITDA of Borrower on a Consolidated Basis	$	6,202,392	$	5,689,300	$	5,294,460
Adjusted EBITDA of Parent on a Consolidated Basis	$	5,416,735	$	4,836,082	$	4,304,030

146

Schedule 10.01

Addresses for Notices

LOAN PARTIES:

Fusion NBS Acquisition Corp.

c/o Fusion Telecommunications International, Inc.

420 Lexington Avenue, Suite 1718

New York, New York 10170

Email: legal@fusionconnect.com

ADMINISTRATIVE AGENT:

For Notice of Borrowing and Conversion/Continuation Notice

East West Bank

East West Bancorp

East West Bank Loan Services

9300 Flair Drive, 6^th Floor

El Monte, California 91732

Attention: Mercedes Martinez

Email: Mercedes.Martinez@eastwestbank.com

Telephone: (626) 371-8746

For Other Notices

East West Bank

135 N. Los Robles Avenue, 2^nd Floor

Pasadena, California 91101

Attention: Richard Vian; Telecommunications Lending

Email: richard.vian@eastwestbank.com

Telephone: (626) 768-6816

LENDER:

Opus Bank

19900 MacArthur Blvd., 12^th Floor

Irvine, California 92612

Attention: James Crumpton

Email: JCrumpton@opusbank.com

Telephone: (949) 251-8169

147

APPENDIX A

COMMITMENTS OF LENDERS

Commitments of Lenders

LENDER	Amount of Commitment for Revolving Loans		Amount of Commitment for Term Loans		Aggregate Commitment		Pro Rata Share
EAST WEST BANK	$	5,000,000	$	45,000,000	$	50,000,000		71.428571428	%
OPUS BANK	$	0	$	20,000,000	$	20,000,000		28.571428571	%
TOTAL	$	5,000,000	$	65,000,000	$	70,000,000		100	%

Commitments of Swingline Lender and Issuing Bank

LENDER	SWINGLINE Commitment
EAST WEST BANK, AS SWINGLINE LENDER	$	4,000,000
	LETTER OF CREDIT Commitment
EASTWEST BANK, AS ISSUING BANK	$	4,000,000

148

APPENDIX B

ADDRESS FOR SERVICE OF PROCESS

Corporation Service Company

2711 Centerville Road, Suite 400

Wilmington, Delaware 19808

149

EX-10.1.2

EXHIBIT 10.1.2

REVOLVING LOAN NOTE

USD$5,000,000 November 14, 2016

FOR VALUE RECEIVED, the undersigned hereby promises to pay to the order of East West Bank (the “Revolving Loan Lender”), on the Maturity Date (as defined in the Credit Agreement referred to below) the principal amount of FIVE MILLION DOLLARS AND 00/100 (USD $5,000,000), or such lesser principal amount of the Revolving Loan (as defined in the Credit Agreement referred to below) payable by Borrower to Revolving Loan Lender on such Maturity Date under that certain Credit Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., a Delaware corporation (“Borrower”), East West Bank (“EWB”), as Administrative Agent, Swingline Lender, an Issuing Bank, and a Lender, and each other Lender from time to time party thereto (as amended, restated, extended, supplemented or otherwise modified in writing from time to time (the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.

Borrower shall make such prepayments on this Revolving Loan Note as are required by Sections 2.13 and 2.14 of the Credit Agreement.

Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from the date such Revolving Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.

All payments of principal and interest shall be made to Revolving Loan Lender for the account of Revolving Loan Lender in Dollars in immediately available funds at Revolving Loan Lender’s payment office or at such other address as the Revolving Loan Lender may, from time to time, designate in writing.

If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the Default Rate.

This Revolving Loan Note is one of the “Notes” referred to in the Credit Agreement. Reference is hereby made to the Credit Agreement for rights and obligations of payment and prepayment, Events of Default and the right of Administrative Agent to accelerate the maturity hereof upon the occurrence of such Events of Default. The Revolving Loans shall be evidenced by one or more loan accounts or records maintained by Revolving Loan Lender in the ordinary course of business. Revolving Loan Lender may also attach schedules to this Revolving Loan Note and endorse thereon the date, amount and maturity of the Revolving Loans and payments with respect thereto.

Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Loan Note.

Borrower agrees to pay all reasonable collection expenses, court costs and Attorney Costs (whether or not litigation is commenced) which may be incurred by Revolving Loan Lender in connection with the collection or enforcement of this Revolving Loan Note.

THIS REVOLVING LOAN NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES.

[signature page follows]

FUSION NBS ACQUISITION CORP., a

Delaware corporation, as the Borrower

By:

Name: Gordon Hutchins, Jr.

Title: President and Chief Operating Officer

LOANS AND PAYMENTS WITH RESPECT THERETO

Date	End of Interest Period	Amount of Principal of Interest Paid This Date	Outstanding Principal Balance This Date	Notation Made by
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________

EX-10.1.3

Exhibit 10.1.3

TERM LOAN NOTE

USD$45,000,000 November 14, 2016

FOR VALUE RECEIVED, the undersigned hereby promises to pay to the order of East West Bank (the “Term Loan Lender”), on the Maturity Date (as defined in the Credit Agreement, as referred to below) the principal amount of forty-Five Million Dollars and 00/100 (USD$45,000,000), or such lesser principal amount of the Term Loan (as defined in the Credit Agreement referred to below) payable by Borrower to Term Loan Lender on such Maturity Date under that certain Credit Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., a Delaware corporation (“Borrower”), and East West Bank (“EWB”), as Administrative Agent, Swingline Lender, an Issuing Bank, and a Lender, and each other Lender from time to time party thereto (as amended, restated, extended, supplemented or otherwise modified in writing from time to time (the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.

Borrower shall make scheduled principal payments on this Term Loan Note as set forth in Section 2.12 of the Credit Agreement. Borrower shall also make such prepayments on this Note as are required by Sections 2.13 and 2.14 of the Credit Agreement.

Borrower promises to pay interest on the unpaid principal amount of the Term Loan from the date of the Term Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.

All payments of principal and interest shall be made to Term Loan Lender for the account of Term Loan Lender in Dollars in immediately available funds at Term Loan Lender’s payment office or such other address as the Term Loan Lender may, from time to time, designate in writing.

If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the Default Rate.

This Term Loan Note is one of the “Notes” referred to in the Credit Agreement. Reference is hereby made to the Credit Agreement for rights and obligations of payment and prepayment, Events of Default and the right of Administrative Agent to accelerate the maturity hereof upon the occurrence of such Events of Default. The Term Loan shall be evidenced by one or more loan accounts or records maintained by Term Loan Lender in the ordinary course of business. Term Loan Lender may also attach schedules to this Term Loan Note and endorse thereon the date, amount and maturity of the Term Loan and payments with respect thereto.

Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Term Loan Note.

Borrower agrees to pay all reasonable collection expenses, court costs and Attorney Costs (whether or not litigation is commenced) which may be incurred by Term Loan Lender in connection with the collection or enforcement of this Term Loan Note.

THIS TERM LOAN NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES.

[signature page follows]

FUSION NBS ACQUISITION CORP.,
a Delaware corporation, as the Borrower

By:

Name: Gordon Hutchins, Jr.

Title:   President and Chief Operating Officer

LOANS AND PAYMENTS WITH RESPECT THERETO

Date	End of Interest Period	Amount of Principal of Interest Paid This Date	Outstanding Principal Balance This Date	Notation Made by
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________

EX-10.1.4

Exhibit 10.1.4

SWINGLINE LOAN NOTE

USD$4,000,000 November 14, 2016

FOR VALUE RECEIVED, the undersigned hereby promises to pay to the order of East West Bank (the “Swingline Lender”), on each Swingline Payment Date and on the Maturity Date (as each such term is defined in the Credit Agreement referred to below) the principal amount of FOUR MILLION DOLLARS AND 00/100 (USD$4,000,000), or such lesser principal amount of the Swingline Loan (as defined in the Credit Agreement referred to below) payable by Borrower to Swingline Lender on each such Swingline Payment Date or the Maturity Date under that certain Credit Agreement, dated as of November 14, 2016, by and among Fusion NBS Acquisition Corp., a Delaware corporation (“Borrower”), East West Bank (“EWB”), as Administrative Agent, Swingline Lender, an Issuing Bank, and a Lender, and each other Lender from time to time party thereto (as amended, restated, extended, supplemented or otherwise modified in writing from time to time (the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.

Borrower shall make such prepayments on this Note as are required by Section 2.13 of the Credit Agreement.

Borrower promises to pay interest on the unpaid principal amount of each Swingline Loan from the date of the making of such Swingline Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.

All payments of principal and interest shall be made to Swingline Lender for the account of Swingline Lender in Dollars in immediately available funds at Swingline Lender’s payment office or at such other address as the Swingline Lender may, from time to time, designate in writing.

If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the Default Rate.

This Swingline Loan Note is one of the “Notes” referred to in the Credit Agreement. Reference is hereby made to the Credit Agreement for rights and obligations of payment and prepayment, Events of Default and the right of Administrative Agent to accelerate the maturity hereof upon the occurrence of such Events of Default. The Swingline Loans shall be evidenced by one or more loan accounts or records maintained by Swingline Lender in the ordinary course of business. Swingline Lender may also attach schedules to this Swingline Loan Note and endorse thereon the date, amount and maturity of the Swingline Loans and payments with respect thereto.

Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.

Borrower agrees to pay all reasonable collection expenses, court costs and Attorney Costs (whether or not litigation is commenced) which may be incurred by Swingline Lender in connection with the collection or enforcement of this Swingline Loan Note.

THIS SWINGLINE LOAN NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES.

[signature page follows]

FUSION NBS ACQUISITION CORP., a
Delaware corporation, as the Borrower

By:

Name: Gordon Hutchins, Jr.

Title:   President and Chief Operating Officer

LOANS AND PAYMENTS WITH RESPECT THERETO

Date	End of Interest Period	Amount of Principal of Interest Paid This Date	Outstanding Principal Balance This Date	Notation Made by
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________
__________	__________	__________	__________	__________

EX-10.1.5

Exhibit 10.1.5

Execution Version

SUBORDINATION AGREEMENT

This Subordination Agreement (this “Agreement”), dated as of November 14, 2016, is entered into 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 (“Network”), PingTone Communications, Inc., a Delaware corporation (“PingTone”), Fusion BVX LLC, a Delaware limited liability company (“BVX”), 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”), and Fidelity Voice Services, LLC, an Ohio limited liability company (“FVSL”), Apptix, Inc., a Florida corporation (“Apptix”, and, together with Borrower, Fusion, Network, PingTone, BVX, FTL, FANI, FANL, FCL and FVSL, collectively, the “Loan Parties” each individually a “Loan Party”), Praesidian Capital Opportunity Fund III, LP, a Delaware limited partnership, as Agent (the “Subordinated Agent”), and East West Bank, a bank organized under the laws of the State of California, as administrative agent under the Senior Credit Agreement (as defined below) (in such capacity “Senior Agent”).

RECITALS: (a) Borrower is entering into the Senior Credit Agreement (as defined below) on the date hereof and the other Loan Parties are guarantying the obligations of Borrower thereunder; (b) Borrower, Subordinated Agent, the other Loan Parties and the lenders named therein are party to that certain Fifth Amended and Restated Securities Purchase Agreement and Security Agreement dated as of the date hereof (the “Subordinated Loan Agreement”); and (c) Borrower, the other Loan Parties and Subordinated Agent are entering into this Agreement to induce Senior Agent and the Senior Secured Parties under the Credit Agreement to enter into the Senior Credit Agreement and the other Senior Documents and extend credit to Borrower thereunder.

NOW THEREFORE, in consideration of the premises and any loan or other credit extension now or hereafter made by Senior Agent or any other Senior Secured Party to or for the benefit of Borrower or the other Obligors, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1.            Definitions; Etc. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement, and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Senior Credit Agreement. In addition to the terms defined elsewhere herein, the following terms shall have the following respective meanings:

“Aggregate Amount” shall have the meaning set forth in the definition of AHYDO Payments.

“AHYDO Payments” means, on any interest payment date in respect of the Subordinated Notes following the fifth anniversary of the issue date of the Subordinated Notes, payment of an additional amount on the Subordinated Debt equal to the excess, if any, of the Aggregate Amount (defined below) over the Maximum Accrual (defined below) if the aggregate amounts which would be includible in gross income of any holder of the Subordinated Debt with respect to such Subordinated Debt for all periods ending on or before such interest period date (the “Aggregate Amount”) would exceed an amount equal to the sum of (A) the aggregate amount of interest to be paid (within the meaning of Section 163(i) of the Internal Revenue Code of 1986, as amended or otherwise modified from time to time (the “IRC”)) on the Subordinated Debt (determined without regard to the amounts payable under this provision) before such interest period date and (B) the product of the issue price of the Subordinated Debt (as defined in sections 1273(b) and 1274(a) of the IRC) and its yield to maturity (interpreted in accordance with section 163(i) of the IRC) (such sum being the “Maximum Accrual”).

“Code” means the United States Bankruptcy Code, 11 U.S.C. § 101, et seq., as amended and in effect from time to time and regulations issued from time to time thereunder.

“Collateral” means the “Collateral” as defined in the Senior Credit Agreement and any Senior Document or any other assets of any Obligor with respect to which a Lien is granted or purported to be granted or required to be granted pursuant to a Senior Document as security for any Senior Obligations and shall include any property or assets subject to replacement Liens or adequate protection Liens in favor of Senior Agent or any Senior Secured Party.

2

“Collection Action” means (a) to declare due and payable, demand, sue for, take or receive from or on behalf of any one or more of the Obligors, by payment (in cash, property, by setoff or otherwise), set off or in any other manner, the whole or any part of any moneys that may now or hereafter be owing by any one or more of the Obligors with respect to the Subordinated Debt, (b) to initiate or participate with others in any suit, action or proceeding against any one or more of the Obligors to (i) enforce payment of or to collect the whole or any part of the Subordinated Debt or (ii) enforce any of the rights and remedies under any Subordinated Notes or applicable law with respect to any Subordinated Debt or Subordinated Notes, (c) to accelerate any Subordinated Debt, (d) to exercise any put or similar option with respect to any Subordinated Debt or to cause any one or more of the Obligors to honor any redemption or mandatory prepayment obligation under any Subordinated Note, (e) to take as collateral security for the Subordinated Debt, or to take any action to enforce, any Lien upon any assets or property of any one or more of the Obligors, to take possession or control of any such assets or property or to exercise any right or remedy with respect to any such assets or property (including exercising voting rights in respect of equity interests comprising Collateral), (f) to commence (or join with another Person in commencing) any action or proceeding to facilitate the actions described in clause (e), or (g) to file (or join with others in filing in the absence of joinder by Senior Agent and each Senior Secured Party, including the filing of any petition), commence or join (unless Senior Agent and each Senior Secured Party shall have joined or shall concurrently join therein) any involuntary Proceeding.

“DIP Financing” shall have the meaning ascribed to it in Section 4(d) below.

“Distribution” means, with respect to any indebtedness or obligation, (a) any payment or distribution of cash, securities or other property, by set-off or otherwise, on account of such indebtedness or obligation, (b) any redemption, purchase or other acquisition of such indebtedness or obligation by any Obligor or (c) the granting of any lien or security interest to or for the benefit of the holders of such indebtedness or obligation in or upon any property.

“Exercise Period” shall have the meaning ascribed to it in Section 19(a) below.

“Existing DACAs” shall mean, collectively, (i) that certain Deposit Account Control Agreement, dated as of September 21, 2015, by and among KeyBank National Association, as depository bank, Network, Opus Bank, as first lien secured party, and Subordinated Agent, as second lien secured party, and (ii) any other deposit account control agreement in favor of Subordinated Agent with respect to deposit accounts maintained by any of the Loan Parties with any bank other than Senior Agent.

“Hedging Obligations” shall have the meaning set forth in the definition of Senior Debt.

“Junior Adequate Protection Liens” shall have the meaning ascribed to it in Section 4(f) below.

“Letter of Credit Obligations” shall have the meaning set forth in the definition of Senior Debt.

“Maximum Accrual” shall have the meaning set forth in the definition of AHYDO Payments.

“Obligors” means the Loan Parties, each other Person which has granted a security interest pursuant to any Senior Document to secure any Senior Obligations, each other Person which has granted a security interest pursuant to any Subordinated Document to secure any Subordinated Obligations, each other Person which has guaranteed all or any portion of the Senior Obligations, and, each other Person which has guaranteed all or any portion of the Subordinated Obligations.

3

“Paid in Full” means, with respect to the Senior Debt, such time when (a) the aggregate amount of all Senior Debt (including, all Hedging Obligations) has been paid in full in cash (or other consideration acceptable to Senior Agent in its sole discretion); provided that Hedging Obligations or Letter of Credit Obligations shall have been cash collateralized in the amounts required under the Senior Documents, and Senior Agent and each Senior Secured Party has received satisfactory indemnity for items such as bounced checks and other matters that may arise after termination of the Senior Documents, except for contingent indemnification obligations to the extent no claim giving rise thereto has been asserted or, in the reasonable opinion of Senior Agent, is likely to be asserted. For the avoidance of doubt such unasserted contingent indemnification claims shall not include (i) Hedging Obligations, (ii) principal, interest and fees, and (iii) each Obligor’s contingent obligation to reimburse Senior Agent and each Senior Secured Party for any drawing under or other amounts due with respect to a Letter of Credit, and (b) all commitments and obligations of Senior Agent and each Senior Secured Party to make Loans, issue Letters of Credit, interest rate or other swaps or other extensions of credit or financial accommodations under the Senior Documents have been terminated.

“Permitted Payments” means (a) regularly scheduled monthly payments of interest accruing on the original principal amount of the Subordinated Notes at the rate per annum set forth in the Subordinated Debt Documents as of the date hereof (or as amended in accordance with Section 10(b) of this Agreement), (b) the payment of reasonable out-of-pocket costs and expenses of counsel to the Subordinated Creditors incurred by the Subordinated Creditors in connection with the transactions occurring on the date hereof, (c) the payment of reasonable out-of-pocket costs and expenses in each case as and when due and payable on a non-accelerated basis in accordance with the terms of the Subordinated Debt Documents in an amount not to exceed (i) in the absence of an event of default under the Subordinated Debt Documents, $75,000 per annum or (ii) during the continuance of an event of default under the Subordinated Debt Documents, $250,000 per annum (provided that the payment of any such costs and expenses in excess of $75,000 shall be subject to the prior approval of Senior Agent, such approval not to be unreasonably withheld) (the “Subordinated Debt Costs and Expenses”), (d) the payment of an amendment fee on the date hereof in an amount not to exceed $25,000, (e) the payment of an advisory fee in an amount not to exceed $250,000, $100,000 of which will be paid on the Closing Date and the remaining portion of which will be paid in the subsequent three months in three equal monthly installments of $50,000 each on the first Business Day of each such month (the “Advisory Fee”), (f) the issuance of Reorganization Subordinated Securities, (g) payment of AHYDO Payments, and (h) mandatory prepayment of the Subordinated Debt, together with any prepayment premium as provided in the Subordinated Notes, 5 days after the occurrence of a “Liquidity Event” (as defined in the Subordinated Loan Agreement on the date hereof, or as amended in accordance with Section 10(b)) so long as Senior Secured Parties are Paid in Full or have consented to such Liquidity Event in writing.

4

“Proceeding” means any receivership, conservatorship, general meeting of creditors, insolvency, restructuring or case filed under the Code, assignment for the benefit of creditors or any proceeding or action by or against any one or more of the Obligors for any relief under the Code, any insolvency law or other laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, dissolution, liquidation, compositions or extensions, or the appointment of any receiver, intervenor or conservator of, or trustee, or similar officer for, any one or more of the Obligors or any substantial part of its or their respective properties or assets, including, without limitation, proceedings under the Code, or under other federal, state or local statute, laws, rules and regulations, all whether now or hereafter in effect.

“Purchase Notice” shall have the meaning ascribed to it in Section 19(a) below.

“Pre-Closing Period” shall have the meaning ascribed to it in Section 19(b) below.

“Reorganization Subordinated Securities” means any debt or equity securities of any Obligor that are distributed to the Subordinated Creditors in respect of the Subordinated Debt pursuant to a confirmed plan of reorganization or adjustment and that (a) are subordinated in right of payment to the Senior Debt (or any debt or equity securities issued in substitution of all or any portion of the Senior Debt) to at least the same extent as the Subordinated Debt is subordinated to the Senior Debt, (b) do not have the benefit of any obligation of any person (whether as issuer, guarantor or otherwise) unless the Senior Debt has at least the same benefit of the obligation of such person and (c) do not have any terms, and are not subject to or entitled to the benefit of any agreement or instrument that has terms, that are more burdensome to the issuer of or other obligor on such debt or equity securities than are the terms of the Senior Debt.

“Secured Claim” means a “secured claim” within the meaning of such term in Section 506(a) of the Code (as presently in effect).

“Senior Adequate Protection Liens” shall have the meaning ascribed to it in Section 4(f) below.

“Senior Covenant Default” means any “Event of Default” under the Senior Documents (other than a Senior Payment Default).

“Senior Credit Agreement” means, collectively, that certain Credit Agreement dated as of November 14, 2016 among Borrower, Senior Agent and the Lenders party thereto from time to time, as from time to time amended, restated, renewed, supplemented or otherwise modified from time to time at the option of the parties thereto subject to the restrictions thereon contained herein, and any successor to or replacement or refinancing of such agreement with respect to the credit facilities evidenced thereby by any Senior Secured Party, Senior Agent or any other lender or group of lenders, as each such successor or replacement may from time to time be entered into, amended, renewed, supplemented or otherwise modified subject to the restrictions thereon contained herein, including any loan or credit agreement or order authorizing or documenting debtor in possession financing by Senior Agent or any Senior Secured Party or such other lenders in a Proceeding.

5

“Senior Debt” means, collectively, but without duplication, all existing and future (a) Obligations (as defined in the Senior Credit Agreement), Guaranteed Obligations (as defined in each Guaranty), and all principal of the Loans (as defined in the Senior Credit Agreement) and of any DIP Financing, interest on the foregoing (including interest that accrues after the commencement of a Proceeding of any Obligor, whether or not allowed or allowable as a claim in any such proceeding), and other extensions of credit under the Senior Documents, including DIP Financing in a Proceeding by Senior Agent, any Senior Secured Party or any other lender or group of lenders including Senior Agent, (b) bankers acceptances, interest rate swap, cap, floor or collar agreements, overdraft and similar obligations arising in connection with cash management services, obligations arising under any Treasury Management Agreement, currency agreements, currency spot, foreign exchange and forward contracts or similar arrangements or agreements providing for the transfer or mitigation of interest or currency risks either generally or under specific contingencies (collectively, “Hedging Obligations”), and (c) any and all other costs, fees, indemnifications, damage claims, expenses (including, without limitation, fees and expenses of attorneys, consultants and advisors) and other amounts payable by any one or more of the Obligors under the Senior Documents provided, however, that in no event shall (1) the sum of (A) the principal amount of the Loans, plus (B) the principal amount of the DIP Financing, plus (C) the face amount of undrawn letters of credit issued and outstanding under the Senior Documents (the “Letter of Credit Obligations”) exceed (2) the amount (such amount being the “Senior Debt Limit”) of the difference of (X) the sum of (i) 110% (not to exceed $5,500,000) of the principal amount of the Revolving Loan Commitment (as defined in the Senior Credit Agreement as in effect on the date hereof), plus (ii) 110% (not to exceed $71,500,000) of the principal amount of the Term Loans, as defined in, and to the extent advanced in accordance with the terms of the Senior Credit Agreement (as in effect on the date hereof), minus (Y) the amount of any permanent reductions in any Revolving Loan Commitment under the Senior Credit Agreement (other than any reduction of any Revolving Loan Commitment in connection with a refinancing thereof) and (without duplication of any commitment reduction) any repayments and prepayments of the principal amount of any Loan or DIP Financing, to the extent that such repayments and prepayments may not be reborrowed under the Senior Credit Agreement (other than any repayments or prepayments in connection with a refinancing thereof). For the avoidance of doubt, Hedging Obligations shall not be subject to the Senior Debt Limit.

“Senior Debt Limit” shall have the meaning set forth in the definition of Senior Debt.

“Senior Default” shall mean any Senior Payment Default or Senior Covenant Default.

“Senior Default Notice” shall mean a written notice from Senior Agent to Subordinated Agent, with a copy sent to the Loan Parties in accordance with the Senior Credit Agreement, pursuant to which Subordinated Agent is notified of the occurrence of a Senior Default, which notice incorporates a reasonably detailed description of such Senior Default and states that it is a “Senior Default Notice” within the meaning of this Agreement that is intended to commence a payment blockage period under this Agreement.

6

“Senior Documents” means, collectively, the Senior Credit Agreement, each Guaranty, the Pledge and Security Agreement, each Secured Treasury Management Agreement, each Swap Contract relating to a Secured Hedging Obligation, and each and every note, instrument, security agreement, pledge agreement, guaranty agreement, mortgage, deed of trust, indemnity deed of trust, loan agreement, hypothecation agreement, indemnity agreement, letter of credit, letter of credit application, assignment, bankers acceptance, interest rate swap, cap, floor or collar agreement, overdraft obligation, currency agreement, currency spot, foreign exchange and forward contract or similar arrangement or agreements providing for the transfer or mitigation of interest or currency risks either generally or under specific contingencies, or any other document (whether similar or dissimilar to any of the foregoing) heretofore, now or hereafter executed and delivered by any one or more of the Obligors or any other Person, singly or jointly with such Person or Persons, in connection with the Senior Debt or to or for the benefit of Senior Agent or any Senior Secured Party, including, without limitation, the Loan Documents all as originally executed and as amended, modified, restated, extended, renewed, refinanced or replaced from time to time, and any agreements, documents and instruments entered into in connection with a refunding, refinancing, or replacement of all or any Senior Debt, whether by the same or any other group of lenders, as such agreements may be amended, modified, restated, renewed, refinanced or replaced or otherwise modified from time to time in accordance with terms of this Agreement.

“Senior Payment Default” means any “Event of Default” under the Senior Documents resulting from the failure of Borrower to pay, when due or declared due, any principal, interest, fees or other obligations under the Senior Documents, including, without limitation, any default in payment of Senior Debt after acceleration thereof.

“Senior Secured Parties” means the “Secured Parties” as defined in the Senior Credit Agreement.

“Subordinated Creditors” means the Subordinated Agent, each of the “Lenders” (as defined in the Subordinated Loan Agreement), each other holder of any Subordinated Debt, and each other Person granted a Lien under any of the Subordinated Debt Documents.

“Subordinated Debt” means, collectively, all Indebtedness owed by one or more of the Obligors to the Subordinated Creditors (or any of them), whether now existing or hereafter created or acquired, including, without limitation, all principal, interest and premium (if any), expenses, fees and other amounts owing under the Subordinated Debt Documents.

“Subordinated Debt Default” means a default in the payment of the Subordinated Debt or in the performance of any term, covenant or condition contained in the Subordinated Debt Documents or any other occurrence permitting Subordinated Agent and/or the Subordinated Creditors to accelerate the payment of, put or cause the redemption of all or any portion of the Subordinated Debt.

“Subordinated Debt Documents” means, collectively, (a) all promissory notes issued at any time by any one or more of the Obligors in favor of any Subordinated Creditor, (b) the Subordinated Loan Agreement, and (c) all other documents, agreements and instruments entered into by any of the parties to any of the foregoing in replacement of or connection therewith, in each case as originally executed and as amended, modified, extended, renewed, refinanced or replaced from time to time in accordance with the terms of this Agreement.

7

“Subordinated Debt Costs and Expenses” shall have the meaning set forth in the definition of Permitted Payments.

“Subordinated Debt Default Notice” means a written notice from Subordinated Agent to Senior Agent pursuant to which Senior Agent is notified of the occurrence of a Subordinated Debt Default, which notice incorporates a reasonably detailed description of the Subordinated Debt Default.

2.            Subordination. All Subordinated Debt is hereby made expressly subordinate and junior to all Senior Debt (subject to the Senior Debt Limit) to the extent and in the manner set forth in this Agreement, and the Subordinated Agent, on behalf of itself and the Subordinated Creditors, hereby subordinates to Senior Agent and the Senior Secured Parties any security interest or Lien that Subordinated Agent or any other Subordinated Creditor may have or may acquire in any property of any of the Obligors and agrees not to take any Collection Action except as provided in this Agreement, in each case until such Senior Debt is Paid in Full. The payment by any one or more of the Obligors of any and all Subordinated Debt shall be subordinate and subject in priority and right of payment, to the extent and in the manner hereinafter set forth, to the Senior Debt (subject to the Senior Debt Limit) until such Senior Debt is Paid in Full.

3.            Payment Limitations.

(a)         Subordinated Agent, on behalf of itself and each Subordinated Creditor, hereby agrees that no Subordinated Creditor will, directly or indirectly ask, demand, sue for, take or receive from any Obligor, and each Obligor party hereto hereby agrees that it shall not remit, make or pay, directly or indirectly, in each case by setoff or in any other manner (whether in cash, property, securities or other form), the whole or any part of any of the Subordinated Debt (whether such amounts represent principal or interest, or obligations that are due or not due, direct or indirect, absolute or contingent) or any payment (whether of principal, interest or any other obligation) or other Distribution on the Subordinated Debt, including, without limitation, the taking of any negotiable instruments evidencing any of the Subordinated Debt, but excluding the accrual (but not payment) of default interest of up to 5% per annum charged during the continuance of a Subordinated Debt Default on the Subordinated Debt, and the issuance of Reorganization Subordinated Securities. Notwithstanding the foregoing sentence, the Obligors may make and Subordinated Agent and Subordinated Creditors may accept and retain, except as provided in Section 4, Permitted Payments, unless, at the time of and after giving effect to, such Permitted Payment:

(i)       Subordinated Agent shall have received a Senior Default Notice from Senior Agent stating that a Senior Payment Default exists and such Senior Payment Default shall not have been cured or waived; or

8

(ii)       subject to paragraph (d) of this Section 3, (A) any Loan Party and Subordinated Agent shall have received a Senior Default Notice from Senior Agent stating that a Senior Covenant Default exists, (B) each such Senior Covenant Default shall not have been cured or waived and (C) 180 days shall not have elapsed since the date such Senior Default Notice was received by Subordinated Agent, except that this clause (ii) shall not apply to any Permitted Payments consisting of Subordinated Debt Costs and Expenses or the Advisory Fee; or

(iii)      the commencement of a Proceeding has occurred, in which case the provisions of Section 4 hereof shall apply.

(b)          The Obligors may resume Permitted Payments (and may make any Permitted Payments missed due to the application of paragraph (a) of this Section 3) in respect of the Subordinated Debt or any judgment with respect thereto:

(i)        in the case of a Senior Payment Default referred to in clause (i) of paragraph (a) this Section 3, upon a cure or waiver thereof; or

(ii)       in the case of a Senior Covenant Default referred to in clause (ii) of paragraph (a) of this Section 3, upon the earlier to occur of (A) the cure or waiver of all such Senior Covenant Defaults or (B) the expiration of such period of 180 days.

(c)           No Senior Default shall be deemed to have been waived for purposes of this Section 3 unless and until the Obligors shall have received a written waiver from Senior Agent.

(d)           Notwithstanding any provision of this Section 3 to the contrary:

(i)        the Obligors shall not be prohibited from making, and Subordinated Agent and the Subordinated Creditors shall not be prohibited from receiving, Permitted Payments under clause (ii) of paragraph (a) of this Section 3 based on a Senior Default Notice solely referring to one or more Senior Covenant Defaults for more than an aggregate of 180 days within any period of 360 consecutive days;

(ii)       no Senior Covenant Default existing on the date any Senior Default Notice is given pursuant to clause (ii) of paragraph (a) of this Section 3 shall be used as a basis for any subsequent Senior Default Notice; provided that a violation of the same covenant as of a later date shall constitute a separate and distinct Senior Covenant Default;

(iii)      no more than 6 Senior Default Notices in the aggregate solely in respect of Senior Covenant Defaults may be issued during the term of this Agreement; and

9

(iv)      the failure of the Obligors to make any Distribution with respect to the Subordinated Debt by reason of the operation of this Section 3 shall not prevent the occurrence of a Subordinated Debt Default under the applicable Subordinated Debt Documents; provided that no Collection Action may be taken by Subordinated Agent or any Subordinated Creditor except as provided in this Agreement.

The provisions of this Section 3 shall not apply to a payment with respect to which Section 4(b) is applicable. For the avoidance of doubt, delivery to Subordinated Agent of a copy of the notice given by Senior Agent to any Obligor regarding (a) the occurrence of any default or event of default under the Senior Documents (including any demand for payment of the Senior Debt following any such default or event of default), (b) the acceleration of all or any portion of the Senior Debt, and (c) the assignment of all or any portion of the Senior Debt (together with the name and address of the assignee) shall not, unless expressly stated therein, be deemed to be a Senior Default Notice or to commence a payment blockage period.

4.            Proceedings. In the event of any Proceeding:

(a)          All Senior Debt shall first be Paid in Full before any Distribution (other than Reorganization Subordinated Securities), whether in cash, securities or other property, shall be made to Subordinated Agent or any Subordinated Creditor on account of any Subordinated Debt.

(b)          Any Distribution (other than Reorganization Subordinated Securities), whether in cash, securities or other property, which would otherwise, but for the terms hereof, be payable or deliverable in respect of the Subordinated Debt shall be paid or delivered directly to Senior Agent (to be held and/or applied by Senior Agent in accordance with the terms of the Senior Documents) until all Senior Debt is Paid in Full. Subordinated Agent, individually and on behalf of the Subordinated Creditors, irrevocably authorizes, empowers and directs any debtor, debtor in possession, receiver, trustee, liquidator, custodian, conservator or other Person having authority, to pay or otherwise deliver all such Distributions to Senior Agent.

(c)          Subordinated Agent, individually and on behalf of the Subordinated Creditors, agrees not to initiate, prosecute or participate in any claim, action, objection or other proceeding challenging the enforceability, validity, extent, perfection or priority of the Senior Debt or any liens and security interests securing the Senior Debt. Senior Agent, individually and on behalf of the Senior Secured Parties, agrees not to initiate, prosecute or participate in any claim, action, objection or other proceeding challenging the enforceability, validity, extent, perfection or priority of the Subordinated Debt or any liens and security interests securing the Subordinated Debt.

10

(d)          Subordinated Agent, in its capacity as the holder of a Secured Claim, on behalf of itself and Subordinated Creditors, agrees that Senior Agent may consent to the use of cash collateral or provide (or consent to any other Person providing) financing to any Obligor or trustee (in each case, “DIP Financing”) on such terms and conditions and in such amounts (subject to the Senior Debt Limit) as Senior Agent, in its sole discretion, may decide and, in connection therewith, each Obligor (or trustee) may grant to Senior Agent (or such other Person providing financing), liens and security interests upon all of its property, which liens and security interests (i) shall secure payment of all Senior Debt (whether such Senior Debt arose prior to the commencement of any Proceeding or at any time thereafter) and all other financing provided by Senior Secured Parties (or such other Persons providing financing) during the Proceeding and (ii) shall be superior in priority to the liens and security interests, if any, in favor of Subordinated Agent or any Subordinated Creditor on the property of any Obligor; provided, however, that Subordinated Agent may object to any DIP Financing in its capacity as the holder of a Secured Claim to the extent that the principal amount thereof, together with the aggregate principal amount of Senior Debt outstanding immediately after giving effect to any payment thereof with the proceeds of such DIP Financing, would exceed the Senior Debt Limit. If Senior Agent is granted adequate protection in the form of additional or replacement Collateral, Subordinated Agent may seek adequate protection in the form of a Junior Adequate Protection Lien in accordance with Section 4(e) below, and neither Senior Agent nor any Senior Secured Party will object to or oppose the granting of such lien to Subordinated Agent (provided that any failure of Subordinated Agent to obtain such adequate protection shall not impair or otherwise affect the agreements, undertakings and consents of Subordinated Agent pursuant to this Section 4(d)). In addition, Subordinated Agent, in its capacity as the holder of a Secured Claim, for itself and on behalf of the Subordinated Creditors, agrees that it will not object to or oppose, and will consent to, a sale or other disposition of any property securing all or any part of the Senior Debt free and clear of security interests, liens or other claims of Subordinated Agent and the Subordinated Creditors under Section 363 of the Code or any other provision of the Code if Senior Agent has consented to such sale or disposition; provided, that Subordinated Agent shall have the right to object to the further use of the net proceeds of such sale or other disposition unless such net proceeds are applied to reduce the amount of Senior Debt outstanding. None of Subordinated Agent or any other Subordinated Creditor shall, directly or indirectly, seek to provide any financing in any Proceeding secured by liens equal or senior to the liens securing the Senior Debt without Senior Agent’s prior written consent. Any claim of Subordinated Agent or any Subordinated Creditor arising during a Proceeding shall constitute Subordinated Debt under this Agreement. Subordinated Agent, on behalf of itself and the Subordinated Creditors, waives any claim it may now or hereafter have arising out of Senior Agent’s election, in any Proceeding instituted under the Code, of the application of Section 1111(b)(2) of the Code, the agreement of Senior Agent to any “carve-out” or the consent by Senior Agent to any borrowing or grant of a security interest under Section 364 of the Code by any Obligor, as debtor in possession. Subordinated Agent, in its capacity as the holder of a Secured Claim, for itself and on behalf of the Subordinated Creditors, agrees not to (1) assert any rights under Sections 362, 363 or 364 of the Code with respect to the Collateral, including any rights it may have to “adequate protection” of Subordinated Agent’s or any Subordinated Creditor’s interest in any Collateral in any Proceeding (except with respect to a Junior Adequate Protection Lien authorized by this section), (2) oppose or object to any adequate protection sought by or granted to Senior Agent or any Senior Secured Party with respect to the Collateral, (3) initiate or prosecute or join with any other Person to initiate or prosecute any claim, action, objection or other proceeding opposing a motion by Senior Agent or any Senior Secured Party to lift the automatic stay, (4) seek the dismissal or conversion of a Proceeding, (5) seek the appointment of a trustee, receiver or examiner in a Proceeding, or (6) seek to have the automatic stay of Section 362 of the Code (or any similar stay under any other applicable law) lifted or modified with respect to the Collateral.

11

(e)          Notwithstanding anything in Section 4(d) to the contrary but subject to the other express provisions of this Agreement, in any Proceeding involving any Obligor, Subordinated Agent may exercise rights and remedies generally available to holders of unsecured claims against such Obligor and otherwise in accordance with the Subordinated Debt Documents and applicable law. In furtherance of the foregoing, Subordinated Agent shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Obligors arising under either the Code or applicable non-bankruptcy law, in each case if not otherwise in contravention of the other express terms of this Agreement, including any right to object to the sale or use of property under Section 363 of the Code and/or any financing under Section 364 of the Code solely to the extent such objection could be asserted by the holder of an unsecured claim against any Obligor; provided, however, that in the exercise of such rights or interests, Subordinated Agent, for itself and on behalf of the Subordinated Creditors, shall not vote in favor of any plan of reorganization, or file any objection or other pleading, so as to (i) contest the validity of the Senior Debt or any Lien securing the Senior Debt, (ii) contest the rights of Senior Agent or any Senior Secured Party established in any Senior Document or the enforceability of any of the Senior Documents, (iii) contest the priority position of Senior Agent or each Senior Secured Party over Subordinated Agent and all Subordinated Creditors created by this Agreement or otherwise contest the obligations of Subordinated Agent and all Subordinated Creditors hereunder, (iv) otherwise provide for any terms that conflict with the terms of this Agreement unless Senior Agent and all Senior Secured Parties have approved such plan in writing (including, without limitation, objecting to the sale or use of property under Section 363 of the Code and/or any financing under Section 364 of the Code to the extent that Subordinated Agent and Subordinated Creditors, in their capacity as secured creditors, are prohibited from doing so under Section 4(d) of this Agreement), or (vi) take any position or action available only to a secured creditor which would have directly or indirectly any of the following effects: (1) effecting a cram-down of the Senior Debt over the rejection of the Senior Agent or Senior Secured Parties, (2) blocking current payment of any obligation in respect of Senior Debt, or (3) opposing or objecting to any sale or lease of any Collateral and/or sale of any Equity Interests that has been consented to by the holders of Senior Debt.

12

(f)            Notwithstanding the foregoing provisions in Section 4(d), in any Proceeding, if Senior Agent is granted any “replacement liens” as adequate protection for its interest in the Collateral (“Senior Adequate Protection Liens”), Subordinated Agent may seek (and Senior Agent shall not oppose) adequate protection of its interests in the Collateral, in the form of (i) replacement liens on the additional collateral subject to the Senior Adequate Protection Liens (the “Junior Adequate Protection Liens”), which Junior Adequate Protection Liens, if granted, will be subordinate to all liens securing the Senior Debt (including, without limitation, the Senior Adequate Protection Liens and any “carve-out” agreed to by Senior Agent) and any liens securing debtor-in-possession financing provided by Senior Agent and Senior Secured Parties or by any other Person with the consent of Senior Agent and Senior Secured Parties on the same basis as the other liens securing the Subordinated Debt are so subordinated under this Agreement and (ii) superpriority claims under Section 507(b) of the Code (it being agreed and understood that any such claim under Section 507(b) of the Code shall constitute Subordinated Debt under this Agreement); provided, in all cases that Subordinated Agent shall have irrevocably agreed, pursuant to Section 1129(a)(9) of the Code, in any stipulation and/or order granting such adequate protection, that any such junior superpriority claims may be paid under any plan of reorganization in any combination of cash, debt, equity or other property having a value on the effective date of such plan equal to the allowed amount of such junior superpriority claims.

(g)           Subordinated Agent agrees to execute, verify, deliver and file any proofs of claim in respect of the Subordinated Debt requested by Senior Agent in connection with any such Proceeding and hereby irrevocably authorizes, empowers and appoints Senior Agent its agent and attorney-in-fact to execute, verify, deliver and file such proofs of claim upon the failure of Subordinated Agent promptly to do so prior to 10 days before the expiration of the time to file any such proof of claim; provided, that Senior Agent shall have no obligation to execute, verify, deliver, and/or file, and no authority to vote, any such proof of claim.

(h)           The Senior Debt shall continue to be treated as Senior Debt and the provisions of this Agreement shall continue to govern the relative rights and priorities of Senior Agent, Senior Secured Parties, Subordinated Agent and the Subordinated Creditors even if all or part of the Senior Debt or the security interests securing the Senior Debt are subordinated, set aside, avoided, invalidated or disallowed in connection with any such Proceeding and this Agreement shall be reinstated if at any time any payment of any of the Senior Debt is rescinded or must otherwise be returned by any holder of Senior Debt or any representative of such holder.

(i)            The parties acknowledge and agree that (i) the claims and interests of Senior Agent and Senior Secured Parties under the Senior Documents are substantially different from the claims and interests of Subordinated Agent and the Subordinated Creditors under the Subordinated Debt Documents and (ii) such claims and interests should be treated as separate classes for purposes of Section 1122 of the Code. It is acknowledged and agreed that this Agreement shall constitute a “subordination agreement” within the meaning of Section 510(a) of the Code.

(j)            None of Subordinated Agent or any other Subordinated Creditor shall oppose or seek to challenge any claim by Senior Agent or any Senior Secured Party for allowance in any Proceeding of Senior Debt consisting of post-petition interest to the extent of the value of the Lien of Senior Agent on behalf of the Senior Secured Parties on the Collateral or any other Senior Secured Party’s Lien, without regard to the existence of the Liens of Subordinated Agent on behalf of Subordinated Creditors on the Collateral.

13

5.            Subordinated Debt Standstill Provisions.

(a)          Until the Senior Debt is Paid in Full, Subordinated Agent and Subordinated Creditors shall not, without the prior written consent of Senior Agent, take any Collection Action with respect to the Subordinated Debt until the earliest to occur of the following and in any event no earlier than ten days after Senior Agent’s receipt of written notice of Subordinated Agent’s intention to take any such Collection Action:

(i)        acceleration of all or any portion of the Senior Debt; provided, however, if, within 60 days after any such acceleration of the Senior Debt, such acceleration is rescinded, then any acceleration of the Subordinated Debt shall also be deemed automatically rescinded and any Collection Action commenced by Subordinated Agent and Subordinated Creditor shall also be immediately discontinued;

(ii)       the passage of 150 days from the delivery of a Subordinated Debt Default Notice to Senior Agent if any Subordinated Debt Default described therein shall not have been cured or waived within such period so long as, at least ten (10) days prior to the date on which Subordinated Agent intends to take such Collection Action, Senior Agent has received written notice from Subordinated Agent (which notice may be given prior to the end of such 150-day period) of Subordinated Agent’s intention to take such Collection Action; provided that (A) if a Subordinated Default which is the subject of any such notice has been cured or waived within such 150-day period, the applicable notice shall be deemed automatically rescinded and shall have no further force or effect and any acceleration in respect of such Subordinated Default shall be deemed automatically rescinded and any Collection Action commenced by Subordinated Agent and Subordinated Creditor shall also be immediately discontinued, and (B) a Subordinated Default which, to the actual knowledge of Subordinated Creditor, exists at or prior to the giving of any such notice may not serve as the basis for a subsequent notice by Subordinated Creditor under this clause (ii); or

(iii)      a Proceeding involving any Obligor (other than any such Proceeding initiated by a Subordinated Creditor).

14

(b)          Notwithstanding anything to the contrary contained in this Agreement or in any of the Subordinated Debt Documents, until the Senior Debt has been Paid in Full, Subordinated Agent and Subordinated Creditors shall not, without the prior written consent of Senior Agent, take any Collection Action with respect to the Collateral or any property or assets of any Obligor securing the Subordinated Debt or take any Collection Action with respect to the Collateral if the Senior Agent has commenced and is diligently pursuing the collection of the Senior Debt and the enforcement or liquidation of the Collateral securing the Senior Debt; provided, that this sentence shall not be construed to limit or impair in any way the right of any Subordinated Creditor to: (1) bid for, or purchase Collateral at any private or judicial foreclosure upon such Collateral initiated by any Person other than the Subordinated Agent or a Subordinated Creditor, so long as the Senior Debt is Paid in Full with the proceeds of such bid or a higher competing bid at such foreclosure, (2) join (but not control) any foreclosure or other judicial lien enforcement proceeding with respect to the Collateral initiated by Senior Agent for the sole purpose of creating, perfecting, preserving or protecting such Subordinated Agent’s security interest in the Collateral, (3) receive any remaining proceeds of Collateral after the Senior Debt has been Paid in Full, (4) file a claim, proof of claim or statement of interest with respect to all or any of the Subordinated Debt in any Proceeding, (5) file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Subordinated Agent or any Subordinated Creditor relating to the Subordinated Debt, in each case in accordance with the terms of this Agreement, (6) file any financing statement or amendment necessary to perfect or continue the perfection of the subordinated security interests of Subordinated Agent, and (7) vote on any plan of reorganization, make other filings and make any arguments and motions in any Proceeding as authorized by Section 4 above.

(c)          Without limiting the provisions of Section 2, Section 3, or Section 4 above, (i) until the Senior Debt has been Paid in Full, all Distributions or other proceeds of Collection Actions and/or any Collateral obtained by Subordinated Agent or any Subordinated Creditor (other than Reorganization Subordinated Securities) shall in any event be held in trust by it for the benefit of Senior Agent and promptly be paid or delivered to Senior Agent in the form received, (ii) subject to the proviso to Section 5(b), if any disposition of any Collateral or any assets of any Obligor is permitted under the terms of the Senior Documents or is consented to by Senior Agent, in each case that results in the release of the security interests and liens securing the Senior Debt, Subordinated Agent, on behalf of itself any the Subordinated Creditors, shall be deemed to have consented under the Subordinated Documents to such disposition free and clear of any security interests and liens securing the Subordinated Debt (excluding any portion of the proceeds of such Collateral remaining after the Payment in Full of the Senior Debt) and to have waived the provisions of the Subordinated Documents to the extent necessary to permit such disposition, and (iii) until the Senior Debt has been Paid in Full, neither Senior Agent nor any Senior Secured Party shall have any obligation whatsoever to account for, allocate or deliver to Subordinated Agent or any Subordinated Creditor any proceeds or distributions received by Senior Agent or such Senior Secured Party as a result thereof.

15

6.            Payments in Contravention of this Agreement; Subrogation. Any payment made by any one or more of the Obligors and received by Subordinated Agent or any Subordinated Creditor in violation of any provision of this Agreement shall be held in trust by Subordinated Agent or such Subordinated Creditor for Senior Agent and the Senior Secured Parties and shall be promptly delivered, in kind, to Senior Agent to the extent necessary to pay in full all Senior Debt in accordance with its terms. Upon all Senior Debt being Paid in Full, Subordinated Agent, for itself and Subordinated Creditors, shall be subrogated to all rights of Senior Agent and each Senior Secured Party to receive all further payments or distributions applicable to the Senior Debt until the Subordinated Debt shall have been paid in full but only to the extent of payments on the Subordinated Debt paid to Senior Agent and any Senior Secured Party pursuant to this Agreement and subject to the terms of any other subordination or comparable agreement applicable to the Subordinated Debt. For purposes of Subordinated Agent’s subrogation rights hereunder, payments to Senior Agent and any Senior Secured Party with respect to the Senior Debt that Subordinated Agent and Subordinated Creditors would have been entitled to receive with respect to the Subordinated Debt but for the provisions of this Agreement shall not, as between any Obligor, its creditors (other than Senior Agent and any Senior Secured Party), Subordinated Agent and Subordinated Creditors, be deemed payments with respect to the Senior Debt, but rather shall be deemed payments with respect to the Subordinated Debt, it being understood that the provisions of this Agreement are solely for the purpose of defining the relative rights of the holders of Senior Debt, on the one hand, and the holders of the Subordinated Debt, on the other hand.

7.            Concerning Collateral in Control or Possession.

(a)           In the event that Subordinated Agent or any Subordinated Creditor takes possession of or has “control” (as such term is used in the UCC as in effect in each applicable jurisdiction) over any certificated securities or other Collateral for purposes of perfecting its liens and security interests therein, Subordinated Agent or such Subordinated Creditor shall promptly deliver same to Senior Agent, for the benefit of itself and the Senior Secured Parties, and, prior to such delivery, be deemed to be holding such Collateral also as representative for the Senior Agent and the Senior Secured Parties, solely for purposes of perfection of Senior Agent’s liens and security interests under the UCC; provided that Subordinated Agent and Subordinated Creditors shall not have any duty or liability to protect or preserve any rights pertaining to any of the Collateral for the Senior Agent or Senior Secured Parties. It is understood and agreed that this Section 7(a) is intended solely to assure continuous perfection of the liens and security interests granted under the Senior Documents, and nothing in this Section 7(a) shall be deemed or construed as altering the priorities or obligations set forth elsewhere in this Agreement. The duties of Subordinated Agent and Subordinated Creditors under this Section 7(a) shall be mechanical and administrative in nature, and Subordinated Agent and Subordinated Creditors shall not have, or be deemed to have, by reason of this Agreement or otherwise a fiduciary relationship in respect of the Senior Agent or Senior Secured Parties. Senior Agent, Subordinated Agent and the Loan Parties shall use commercially reasonable efforts to enter into, following the Closing Date, four-party control agreements with East West Bank covering any new deposit accounts of the Loan Parties that are established at East West Bank prior to or following the Closing Date (the “New DACAs”), which shall be in form and substance reasonably satisfactory to Subordinated Agent and Senior Agent. Following the execution and delivery of the New DACAs, Subordinated Agent shall use commercially reasonable efforts to cooperate in the termination of the deposit account control agreements in place on the Closing Date (excluding any New DACAs). Prior to the notification to Subordinated Agent that Senior Agent has obtained the execution and delivery of the New DACAs, upon receipt by Subordinated Agent of a copy of any notice of default sent by Senior Agent to a Loan Party, Subordinated Agent agrees to act solely in accordance with the written direction of the Senior Agent in exercising any and all control rights, including the right to block or make withdrawals and direct the investment of deposits, under each Existing DACA. The Loan Parties hereby (i) agree to indemnify, defend and hold Subordinated Agent harmless from any and all loss, liability or expense (including reasonable fees and disbursements of counsel) arising out of Subordinated Agent’s following of Senior Agent’s direction or instruction pursuant to the immediately preceding sentence other than loss, liability and expense caused by the gross negligence or willful misconduct of Subordinated Agent and (ii) waive any claim against Subordinated Agent arising out of Subordinated Agent’s following of Senior Agent’s direction or instruction pursuant to the immediately preceding sentence other than for the gross negligence or willful misconduct of Subordinated Agent, provided that (A) the Subordinated Agent shall be deemed not to have committed gross negligence or willful misconduct if it acts in accordance with the direction or instruction of the Senior Agent in accordance with the immediately preceding sentence and (B) nothing herein shall waive any claim that the Loan Parties may have against the Senior Agent if the Senior Agent provides a direction or instruction to the Subordinated Agent that violates the terms of the Senior Documents.

16

(b)          In the event that Senior Agent takes possession of or has “control” (as such term is used in the UCC as in effect in each applicable jurisdiction) over any certificated securities or other Collateral for purposes of perfecting its liens and security interests therein, Senior Agent shall be deemed to be holding such certificated securities or other Collateral also as representative for the Subordinated Agent and the Subordinated Creditors, solely for purposes of perfection of its liens and security interests under the UCC; provided that Senior Agent shall not have any duty or liability to protect or preserve any rights pertaining to any of the Collateral for the Subordinated Agent. Promptly following the Senior Debt being Paid in Full, Senior Agent shall, upon the request of Subordinated Agent, deliver the remainder of the Collateral, if any, in its possession to Subordinated Agent or its designee (except as may otherwise be required by applicable law or court order). It is understood and agreed that this Section 7(b) is intended solely to assure continuous perfection of the liens and security interests granted under the Subordinated Debt Documents, and nothing in this Section 7(b) shall be deemed or construed as altering the priorities or obligations set forth elsewhere in this Agreement. The duties of Senior Agent under this Section 7(b) shall be mechanical and administrative in nature, and Senior Agent shall not have, or be deemed to have, by reason of this Agreement or otherwise a fiduciary relationship in respect of the Subordinated Agent.

8.            Legend. Subordinated Agent, Subordinated Creditors and the Obligors shall conspicuously mark each Subordinated Debt Document with the following legend:

“Notwithstanding anything herein to the contrary, the lien and security interest granted to the agent pursuant to this agreement and the exercise of any right or remedy by the agent hereunder are subject to the provisions of the Subordination Agreement, dated as of November 14, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Subordination Agreement”), among East West Bank, as Senior Agent and Praesidian Capital Opportunity Fund III, LP, as Subordinated Agent. In the event of any conflict between the terms of the Subordination Agreement and this agreement, the terms of the Subordination Agreement shall govern and control.”

17

By the execution of this Agreement, Subordinated Agent, on behalf of itself and each Subordinated Creditor, hereby authorizes Senior Agent to amend any financing statements filed by or on behalf of Subordinated Agent or any Subordinated Creditor against any Obligor as follows: “In accordance with a certain Subordination Agreement by and among the Secured Party, the Debtor and East West Bank, as Senior Agent, the Secured Party has subordinated any security interest or lien that Secured Party may have in any property of the Debtor to the security interest of East West Bank, as Senior Agent, in all assets of the Debtor, notwithstanding the respective dates of attachment or perfection of the security interest of the Secured Party and East West Bank.”

9.            Cumulative Rights; No Waivers; Termination. Each and every right, remedy and power granted to Senior Agent and any Senior Secured Party hereunder shall be cumulative and in addition to any other right, remedy or power specifically granted in this Agreement, or any Senior Document or now or hereafter existing in equity, at law, by virtue of statute or otherwise, and may be exercised by Senior Agent and any Senior Secured Party, as applicable, from time to time, concurrently or independently and as often and in such order as Senior Agent and any Senior Secured Party, as applicable, may deem expedient. Any failure or delay on the part of Senior Agent or any Senior Secured Party in exercising any such right, remedy or power, or abandonment or discontinuance of steps to enforce the same, shall not operate as a waiver thereof or affect the rights of Senior Agent or any Senior Secured Party thereafter to exercise the same, and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power, and no such failure, delay, abandonment or single or partial exercise of the rights of Senior Agent or any Senior Secured Party hereunder shall be deemed to establish a custom or course of dealing or performance among the parties hereto. This Agreement is of a continuing nature, and it shall continue in force until all the Senior Debt is Paid in Full and thereafter as provided in Section 11.

18

10.           Amendments.

(a)          Modifications to Senior Documents. Senior Agent and Senior Secured Parties may at any time and from time to time without the consent of or notice to Subordinated Agent or any Subordinated Creditor, without incurring liability to Subordinated Agent or any Subordinated Creditor and without impairing or releasing the obligations of Subordinated Agent or any Subordinated Creditor under this Agreement, change any of the terms of, renew, extend, change the manner, time, place and terms of payment of, sell, exchange, release, increase, substitute, surrender, realize upon, modify, waive, alter, grant indulgences with respect to and otherwise deal with in any manner: all or any Senior Debt, all or any of the Senior Documents; all or any part of any Collateral or other property at any time securing all or any Senior Debt; or any Person at any time primarily or secondarily liable for all or any Senior Debt and/or any collateral and security therefor, all as if this Agreement and any interest that Subordinated Agent or any Subordinated Creditor has in such property did not exist; provided that, without the prior written consent of Subordinated Agent, Senior Agent and Senior Secured Parties shall not agree to any amendment, modification or supplement to, or waiver or departure from, the Senior Documents the effect of which is to (a) increase the Revolving Loan Commitment, the principal amount of the Term Loan or the principal amount of any DIP Financing in an amount that would cause the Senior Debt Limit to be exceeded, (b) increase the interest rate, unused line fee or letter of credit fee with respect to the Senior Debt by more than 200 basis points (except as a result of a change in the prime rate or other index set forth in the Senior Credit Agreement for the calculation of same), except in connection with the imposition of a default rate of interest and/or letter of credit fees of up to an additional 5.0% per annum in accordance with the terms of the Senior Documents, (c) extend the final maturity date of the Senior Debt beyond the final maturity date of the Subordinated Debt, ) (d) accelerate the amortization of any portion of the Senior Debt from the amortization currently set forth in the Senior Credit Agreement (other than accelerating the final maturity date as a result of a Senior Default (e) add a provision requiring amortization or reduction of the Revolving Loan Commitment not currently provided for under the Senior Documents, (f) add or make more restrictive any default or any covenant with respect to the Senior Debt or make any more restrictive change to any default or covenant, unless each applicable Obligor offers to make a corresponding amendment to the applicable Subordinated Debt Documents (g) prohibit or restrict the payment of principal of, interest on, or other amounts payable with respect to, the Subordinated Debt in a manner that is more restrictive than the prohibitions and restrictions currently contained in the Senior Credit Agreement or (h) subordinate the Senior Debt to any other indebtedness, except for DIP Financing, and Permitted Liens (as defined in the Senior Credit Agreement) and indebtedness secured by such Permitted Liens.

(b)          Modifications to Subordinated Debt Documents. Until the Senior Debt has been Paid in Full, and notwithstanding anything to the contrary contained in the Subordinated Debt Documents, neither Subordinated Agent nor the Subordinated Creditors shall, without the prior written consent of Senior Agent, agree to any amendment, modification or supplement to the Subordinated Debt Documents the effect of which is to (a) increase the maximum principal amount of the Subordinated Debt or rate of interest on any of the Subordinated Debt, other than the imposition of a default rate of interest of up to an additional 2.0% per annum in accordance with the terms of the Subordinated Debt Document (as in effect on the date hereof), (b) accelerate the amortization of any portion of the Subordinated Debt from the amortization currently set forth in the Subordinated Loan Agreement, (c) add or make more restrictive any default, event of default or any covenant with respect to the Subordinated Debt or make any change to any default or any covenant which would have the effect of making such default or covenant more restrictive than currently set forth in the Subordinated Loan Agreement; provided, that if the Senior Documents are amended or otherwise modified to provide for additional covenants or events of default or to make more restrictive any existing covenants or events of default applicable to the Obligors, then Subordinated Agent and the Subordinated Creditors may, without the prior written consent of Senior Agent, amend the Subordinated Debt Documents to provide for such additional covenants or events of default or such more restrictive covenants or events of default, as the case may be, so long as, in each such case, any applicable cushion is maintained (determined on a percentage basis based on the relevant levels under the Senior Documents and the Subordinated Debt Documents on the date hereof), (d) change any redemption, put or prepayment provisions of the Subordinated Debt, (e) alter the subordination provisions with respect to the Subordinated Debt, including, without limitation, subordinating the Subordinated Debt to any other indebtedness, (f) take or perfect any liens or security interests in any assets of any Obligor or any other obligor on the Subordinated Debt unless Senior Agent, on behalf of itself and the other Senior Secured Parties, also has a lien and security interest on such assets, (g) cause any Person to be obligated, whether primarily, secondarily or otherwise, on the Subordinated Debt other than the Obligors, unless such Person also becomes so obligated on the Senior Debt, (h) subordinate the Subordinated Debt to any other indebtedness except as provided herein, or (i) change or amend any other term of the Subordinated Agreements if such change or amendment would (1) result in a Default or Event of Default under the Senior Credit Agreement or any other Senior Document, (2) increase the obligation of any Obligor, or (3) confer additional material rights on Subordinated Agent or any Subordinated Creditor in any manner adverse to Senior Agent, any Senior Secured Party, or any Obligor, other than, in any case, as a result of an amendment permitted under clause (c) of this Section 10(b).

19

11.          Payment Set Aside. If, after receipt of any payment or application of the proceeds of any Collateral to payment of all or any Senior Debt, Senior Agent or any Senior Secured Party is compelled to surrender or voluntarily surrenders such payment or proceeds to any Person, because such payment or application of proceeds is or may be avoided, invalidated, declared fraudulent, set aside, declared to be void or voidable as a preference, fraudulent conveyance, fraudulent transfer, impermissible setoff, diversion of trust funds, or any other void or voidable transfer or payment, or because of any settlement or compromise of such claim, then this Agreement shall be reinstated and shall continue to be in full force and effect, as if such payment or proceeds had not been received by Senior Agent or such Senior Secured Party, notwithstanding any revocation thereof, or the surrender of any promissory note, or the return or cancellation of any instrument or document relating to the Senior Credit Agreement or any Senior Document. Without limiting the generality of the foregoing, the Senior Debt shall continue to be treated as Senior Debt and the provisions of this Agreement shall continue to govern the relative rights and priorities of the holders of the Senior Debt, on the one hand, and the holders of the Subordinated Debt, on the other hand, even if all or part of the Senior Debt or the security interests securing the Senior Debt are subordinated, set aside, avoided or disallowed in connection with any such proceedings and the provisions hereof shall be reinstated if at any time any payment of any of the Senior Debt is rescinded or must otherwise be returned by any holder of the Senior Debt or any agent, designee or nominee of such holder. This Section 11 shall survive the termination of this Agreement.

20

12.          Waivers.

(a)           Subordinated Agent, on behalf of itself and each Subordinated Creditor, expressly waives all notice of the acceptance by Senior Agent or any Senior Secured Party of the subordination and other provisions of this Agreement and all other notices whatsoever not specifically required pursuant to the terms of this Agreement, and expressly waives reliance by Senior Agent and any Senior Secured Party upon the subordination and other agreements as herein provided. Subordinated Agent, on behalf of itself and each Subordinated Creditor, agrees that Senior Agent and each Senior Secured Party has made no warranties or representations with respect to the due execution, legality, validity, completeness or enforceability of any Senior Document, or the collectability of any Senior Debt. Senior Agent and each Senior Secured Party shall be entitled to manage and supervise its loans to and affairs with any one or more of the Obligors in accordance with applicable law and its usual practices, modified from time to time as it deems appropriate under the circumstances, without regard to the existence of any rights that Subordinated Agent or any Subordinated Creditor may now or hereafter have in or to any of the assets of any one or more of the Obligors.

(b)          Subordinated Agent, on behalf of itself and each Subordinated Creditor, hereby waives, to the extent permitted by applicable law, any rights which any of them may have to object to, enjoin or otherwise obtain a judicial or administrative order preventing Senior Agent or any Senior Secured Party from taking, or refraining from taking, any action with respect to all or any part of the Collateral (including, without limitation, actions with respect to the creation, perfection or continuation of Liens in the Collateral and other security for the Senior Debt, actions with respect to the occurrence of any default or event of default, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the Senior Debt from any account debtor, guarantor or other party), with respect to any of the Senior Documents or any other agreement related thereto, or the exercise of one or more rights or remedies thereunder, or with respect to the collection of the Senior Debt or the valuation, use, protection or release of the Collateral and/or other security for the Senior Debt, the failure to enforce or collect any Senior Debt or Senior Document or exercise any rights or remedies thereunder or under applicable law. Subordinated Agent, on behalf of itself and each Subordinated Creditor, agrees that neither Subordinated Agent nor any Subordinated Creditor shall demand, request, plead or otherwise claim the benefit of, any marshaling, foreclosure, appraisement, valuation or any other right contemplated at law or in equity (whether or not relating to notice, diligence, presentment, demand, protest, setoff, reliance, defense, counterclaim or election) that may otherwise be available to Subordinated Agent or any Subordinated Creditor with respect to Senior Agent or any Senior Secured Party or any of their rights and remedies with respect to the Collateral. Without limitation of the foregoing, Subordinated Agent, on behalf of itself and each Subordinated Creditor, hereby agrees (a) that none of Subordinated Agent or any Subordinated Creditor has any right to direct or object to the manner in which Senior Agent or any Senior Secured Party applies proceeds of the Collateral resulting from the exercise by Senior Agent or any Senior Secured Party of rights and remedies under the Senior Documents to the Senior Debt and (b) that none of Senior Agent or any Senior Secured Party has assumed any obligation to act as the agent for Subordinated Agent or any Subordinated Creditor with respect to the Collateral except as expressly set forth below. In exercising rights and remedies with respect to the Collateral, Senior Agent and Senior Secured Parties may enforce the provisions of the Senior Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of commercial reasonableness. Such exercise and enforcement shall include, without limitation, the rights to sell or otherwise dispose of Collateral, to incur expenses in connection with such sale or disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction. In conducting any public or private sale under the Uniform Commercial Code, Senior Agent shall give Subordinated Agent such notice of such sale as may be required by the applicable Uniform Commercial Code; provided, however, that 10 days’ notice shall be deemed to be commercially reasonable notice.

21

13.           Information; Application of Payments. Subordinated Agent, on behalf of itself and each Subordinated Creditor, hereby assumes responsibility for keeping itself informed of the financial condition of each of the Obligors and of all other circumstances bearing upon the risk of nonpayment of the Senior Debt and/or the Subordinated Debt that diligent inquiry would reveal, and Subordinated Agent, on behalf of itself and each Subordinated Creditor, hereby agrees that Senior Agent and each Senior Secured Party shall have no duty to advise Subordinated Agent or any other Subordinated Creditor of information known to them regarding such condition or any such circumstances. In the event Senior Agent or any Senior Secured Party, in its sole discretion, undertakes, at any time or from time to time, to provide any such information to Subordinated Agent or any Subordinated Creditor, Senior Agent and such Senior Secured Party shall be under no obligation (a) to provide any such information to Subordinated Agent or such Subordinated Creditor on any subsequent occasion, (b) to undertake any investigation or (c) to disclose any information that Senior Agent or such Senior Secured Party wishes to maintain as confidential. Subordinated Agent, on behalf of itself and each Subordinated Creditor, hereby (i) agrees that all payments received by Senior Agent or any Senior Secured Party may be applied, reversed, and reapplied, in whole or in part, to any of the Senior Debt, as Senior Agent or such Senior Secured Party, in its sole discretion, deems appropriate and (ii) assents to any extension or postponement of the time of payment of the Senior Debt or to any other indulgence with respect thereto, to any substitution, exchange or release of Collateral that may at any time secure the Senior Debt and to the addition or release of any Obligor or any other party or Person primarily or secondarily liable therefor. In the event Subordinated Agent or any Subordinated Creditor becomes obligated to make any payment to any one or more of the Obligors, Subordinated Agent, on behalf of itself and each Subordinated Creditor, hereby irrevocably agrees that, except as provided in Section 3 above, Subordinated Agent or such Subordinated Creditor shall make such payment in cash or cash equivalents in accordance with the terms of the respective agreements governing such obligations, and without setoff or counterclaim of any kind including any setoff against the Subordinated Debt.

14.           No Fiduciary Relationship. Subordinated Agent, on behalf of itself and each Subordinated Creditor, agrees that Senior Agent and each Senior Secured Party shall not be deemed or otherwise considered to be acting in any fiduciary capacity on behalf of Subordinated Agent or any Subordinated Creditor or the Subordinated Debt by virtue of this Agreement or otherwise.

22

15.          Successors and Assigns. This Agreement shall be binding upon Subordinated Agent, each Subordinated Creditor, each Obligor and their respective heirs, personal representatives, successors and assigns, and shall be binding upon and inure to the benefit of Senior Agent, Senior Secured Parties and their respective successors and assigns. Subordinated Agent, on behalf of itself and each Subordinated Creditor, agrees not to sell, assign, pledge, grant a security interest in, dispose of or otherwise transfer all or any portion of any Subordinated Debt (i) without giving prior written notice of such action to Senior Agent, and (ii) unless prior to the consummation of any such action, the transferee thereof shall execute and deliver to Senior Agent an agreement identical to this Agreement (but mutatis mutandis), providing for the continued subordination and forbearance of the Subordinated Debt to the Senior Debt as provided herein and for the continued effectiveness of all of the rights of Senior Agent and the Senior Secured Parties arising under this Agreement. Notwithstanding the failure to execute or deliver any such agreement, the subordination effected hereby shall survive any sale, assignment, pledge, disposition or other transfer of all or any portion of the Subordinated Debt, and the terms of this Agreement shall be binding upon the heirs, personal representatives, successors and assigns of Subordinated Agent and each Subordinated Creditor. The Obligors shall not assign any of their rights or obligations under this Agreement without the prior written consent of Senior Agent and Subordinated Agent. This Agreement shall also inure to the benefit of each holder of Senior Debt that exists as a result of a refinancing of Senior Debt. Upon such event, each such other holder of Senior Debt shall be deemed to be Senior Agent for all purposes hereunder.

16.          Governing Law; Remedies. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES), AND ANY DISPUTE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES). In furtherance of the foregoing, the internal law of the State of New York shall control the interpretation and construction of this Agreement, even though under that jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily apply. The parties hereto acknowledge that the provisions of this Agreement are unique and money damages may not provide an adequate remedy for any breach thereof, and each party may seek specific performance and other equitable remedies for any breaches under this Agreement.

17.          CONSENT TO JURISDICTION. SUBORDINATED AGENT, ON BEHALF OF ITSELF AND EACH SUBORDINATED CREDITOR, AND THE OBLIGORS AGREE THAT ALL DISPUTES ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK, AND SUBORDINATED AGENT, ON BEHALF OF ITSELF AND EACH SUBORDINATED CREDITOR, AND THE OBLIGORS WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, BUT SUBORDINATED AGENT, ON BEHALF OF ITSELF AND EACH SUBORDINATED CREDITOR, AND THE OBLIGORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. SUBORDINATED AGENT, ON BEHALF OF ITSELF AND EACH SUBORDINATED CREDITOR, AND THE OBLIGORS WAIVE IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.

23

18.          MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS RELATED THERETO.

19.          Purchase Option.

(a)         Purchase Notice. Within ten (10) Business Days after the date (such 10- Business Day period being an “Exercise Period”), if any, that (i) Senior Agent delivers a notice to Subordinated Agent that the Senior Debt has been accelerated or that Senior Agent intends to commence enforcement action against a material portion of the Collateral as a result of then existing Senior Defaults or (ii) if Senior Agent has not given a notice of acceleration under clause (i) of this section, 90 days after Senior Agent has given a Senior Default Notice based on a Senior Payment Default (unless such notice shall have been rescinded by a further notice to Subordinated Agent), Subordinated Agent shall have the option to purchase from Senior Secured Parties all (but not less than all) of the Senior Debt (including any unfunded commitments) by giving a written notice (the “Purchase Notice”) to Senior Agent prior to the expiration of such Exercise Period. The Purchase Notice from Subordinated Agent to Senior Agent shall be irrevocable. If Senior Agent fails to give a Purchase Notice within an Exercise Period, its rights under this Section 19 shall be terminated with respect to the events described in the notice triggering such Exercise Period.

(b)         Purchase Option Closing. On the date specified by Subordinated Agent in the Purchase Notice, which shall not be less than three (3) Business Days nor more than five (5) Business Days after the receipt by Senior Agent of the Purchase Notice (the “PreClosing Period”), Senior Secured Parties shall sell to Subordinated Agent, and Subordinated Agent shall purchase from Senior Secured Parties, all of the Senior Debt (including any unfunded commitments). Notwithstanding anything in this Section 19 to the contrary, none of Senior Agent or the other Senior Secured Parties shall be precluded from (i) the exercise of any rights or remedies as a secured creditor or from seeking to obtain payment directly from any account debtor of any Obligor or the exercise of dominion and control over cash collateral, accounts, instruments, chattel paper, letters of credit, deposit accounts, securities accounts, payment intangibles and supporting obligations (as those terms are defined in the Uniform Commercial Code) with respect to any Senior Debt at any time (including during the Exercise Period or the Pre-Closing Period); provided that Senior Agent shall not, without the consent of the Subordinated Agent, exercise any additional rights and remedies during the Pre-Closing Period other than any demand that account debtors remit such accounts directly to Senior Agent for application to the Senior Debt or the filing of motions and other documents in any Proceeding or the pursuing of other rights and remedies that, in the sole discretion of Senior Agent, are necessary to prevent the loss or impairment of such rights or the diminution of the value or collectability of the Senior Debt or Collateral for such debt during such Pre-Closing Period or (ii) selling or otherwise disposing of the Senior Debt to any other person in accordance with the terms of the Senior Documents, provided that such third party agrees to be bound by this Agreement as to any sale occurring prior to the expiration of the Exercise Period. For the purposes of any Hedging Obligations or associated swaps or agreements, Senior Agent and the other Senior Secured Parties may deem the giving of any Purchase Notice as a default or event of default under the Senior Documents, and any swaps or other agreements governing Hedging Obligations. If the Subordinated Agent fails to close on its purchase on or before the date specified in the Purchase Notice and this Section 19, all rights of the Subordinated Agent under this Section 19 shall terminate.

24

(c)         Purchase Price. Such purchase and sale shall be made by execution and delivery by Subordinated Agent of an Assignment Agreement in form and substance reasonably satisfactory to Senior Agent. Upon the date of such purchase and sale, Subordinated Agent shall (i) pay to Senior Secured Parties as the purchase price therefor the full amount of all the Senior Debt then outstanding and unpaid (including principal, interest, fees, LIBOR breakage or similar breakage amounts, and expenses, including financial examination and advisory expenses, appraisal fees and reasonable attorneys’ fees and expenses), (ii) furnish cash collateral to Senior Agent with respect to any outstanding letter of credit obligations in such amounts as are required under the Senior Documents, (iii) cash collateralize any Hedging Obligations that have not been terminated in a manner satisfactory to the applicable counterparties, (iv) agree to reimburse (or if required by Senior Agent, back by standby letters of credit or cash collateral in a manner satisfactory to Senior Agent) Senior Agent and Senior Secured Parties for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letter of credit obligations under the Senior Documents and Hedging Obligations as described above and any checks or other payments provisionally credited to the Senior Debt, and/or as to which Senior Agent and/or any Senior Secured Party has not yet received final payment, (v) agree to reimburse (or back by stand-by letters of credit or cash collateral in a manner satisfactory to Senior Agent) Senior Agent and Senior Secured Parties in respect of indemnification obligations of the Obligors under the Senior Documents as to matters or circumstances known to or determinable by Subordinated Agent which could result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to Senior Agent and/or any Senior Secured Party, provided that, in no event will Subordinated Agent have any liability for such amounts under this clause (v) in excess of proceeds of Collateral received by Subordinated Agent, and (vi) obtain a customary release of Senior Agent and the Senior Secured Parties by all Obligors that are then parties to the Senior Documents of and from any further obligations under the Senior Documents and the release by the Subordinated Agent, on behalf of itself and Subordinated Creditors, of Senior Agent and the Senior Secured Parties of any further obligations under this Agreement. Such purchase price and cash collateral shall be remitted by wire transfer of immediately available funds to such bank account of Senior Agent as Senior Agent may designate in writing to Subordinated Agent for such purpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by Subordinated Agent to the bank account designated by Senior Agent are received in such bank account prior to 2:00 p.m. Eastern time and interest shall be calculated to and including such Business Day if the amounts so paid by Subordinated Agent to the bank account designated by Senior Agent are received in such bank account later than 2:00 p.m. Eastern time.

25

(d)          Nature of Sale. Such purchase of the Senior Debt shall be (i) made pursuant to agreements, documents and instruments reasonably satisfactory in form and substance to Senior Agent and the other Senior Secured Parties (including the releases and indemnities referred to in Section 19(c), (ii) expressly made without any representation or warranty of any kind by Senior Agent or Senior Secured Parties as to the Senior Debt or otherwise and without recourse to Senior Agent or Senior Secured Parties, except for representations and warranties as to the following: (A) the notional amount of the Senior Debt being purchased (including as to the principal of and accrued and unpaid interest on such Senior Debt, and fees and expenses in respect thereof), (B) that Senior Secured Parties own the Senior Debt free and clear of any liens created by Senior Agent, on behalf of itself and the other Senior Secured Parties, and (C) Senior Secured Parties have the full right and power to assign the Senior Debt and such assignment has been duly authorized by all necessary action by Senior Agent and Senior Secured Parties and (iii) upon the representation that Senior Agent and any other purchaser of the Senior Debt is eligible to be an assignee of the Senior Documents and to assume any unperformed obligations of Senior Agent and Senior Secured Parties thereunder. Upon the consummation of the purchase option described in this Section 19, all commitments on the part of Senior Agent and Senior Secured Parties to fund loans or provide Letters of Credit under the Senior Credit Agreement shall be terminated and extinguished. None of the Subordinated Agent or any Subordinated Creditor shall have any claim against Senior Agent or any Senior Secured Party for any remedies or actions taken by Senior Agent and Senior Secured Parties with respect to the Senior Debt or any Collateral securing such Senior Debt.

26

20.          Miscellaneous. Subordinated Agent represents and warrants that all Subordinated Debt is owing only to, and is solely owned directly and beneficially by, Subordinated Creditors free and clear of all Liens, and that no Subordinated Creditor has previously assigned any interest in any Subordinated Debt. This Agreement may be changed, modified or waived only by a writing signed by Subordinated Agent and Senior Agent. All notices to be given under this Agreement must be in writing and shall be effective only when given at the addresses and to the attention of the Persons stated on the Address Schedule attached hereto, or at such other address or to the attention of such other Person as the recipient has designated after the date hereof in writing to the sending party. No party is obligated to give any other party any notices under this Agreement except as expressly set forth herein. Any communication or notice so addressed and mailed shall be deemed to be given (a) three (3) Business Days after deposit in the United States mails, with proper postage prepaid, (b) when sent after receipt of confirmation or answerback if sent by telecopy, or other similar facsimile transmission, (c) one (1) Business Day after deposited with a reputable overnight courier with all charges prepaid, or (d) when delivered, if hand-delivered by messenger. This Agreement may be executed and accepted in any number of counterparts, each of which shall be an original with the same effect as if the signatures were on the same instrument. The delivery of a copy of an executed counterpart of the signature page to this Agreement by telecopier or other electronic means (including by email) shall be effective as delivery of a manually executed counterpart of this Agreement. In the event that any provision of this Agreement is deemed to be invalid by reason of the operation of any law or by reason of the interpretation placed thereon by any court or governmental authority, this Agreement shall be construed as not containing such provision and the invalidity of such provision shall not affect the validity of any other provisions hereof, and any and all other provisions hereof that otherwise are lawful and valid shall remain in full force and effect. The provisions of this Agreement shall govern and control in the event of any conflict between any term, covenant or condition of this Agreement and any term, covenant or condition of any Subordinated Notes, any Subordinated Debt Document or any other agreement, instrument or document to which Subordinated Agent or any Subordinated Creditor and any one or more of the Obligors is a party. The section headings of this Agreement are for convenience only and shall have no legal effect.

[signatures appear on next page]

27

IN WITNESS WHEREOF, the parties hereto have executed this Subordination Agreement as of the day and year first above written.

LOAN PARTIES:
Fusion NBS Acquisition Corp.
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer
Fusion Telecommunications International, Inc.
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer
Network Billing Systems, L.L.C.
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		Executive Vice President
PingTone Communications, Inc.
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer
Fusion BVX LLC
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President
Fidelity Access Networks, Inc.
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer

[Subordination Agreement]

Fidelity Access Networks, LLC
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer
Fidelity Connect LLC
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer
Fidelity Voice Services, LLC
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer
Fidelity Telecom, LLC
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer
Apptix, Inc.
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer

 [Subordination Agreement]

Senior Agent:
East West Bank, in its capacity as Senior Agent
By:	/s/ Richard Vian
Name:		Richard Vian
Title:		Senior Vice President
SUBORDINATED AGENT:
Praesidian Capital Opportunity Fund III, LP, in its capacity as Subordinated Agent
By:		Praesidian Capital Opportunity GP III, LLC, its General Partner
By:	/s/ Jason D. Drattell
Name:		Jason D. Drattell
Title:		Manager

[Subordination Agreement]

ADDRESS SCHEDULE

If to any Obligor, at:

c/o Fusion Telecommunications International, Inc.

420 Lexington Avenue, Suite 1718

New York, NY 10170

Facsimile: (212)972-7884

Attention: General Counsel

If to Senior Agent, at:

East West Bank
135 N. Los Robles Avenue
Pasadena, California 91101
Attention:  Telecommunications Lending
Telephone:  (626) 768-6816

with a copy to (which shall not constitute notice):

Sutherland Asbill & Brennan LLP

999 Peachtree Street, NE, Suite 2300

Atlanta, Georgia 30324

Attention: Christina Rissler

Telecopy: (404) 853-8183

If to Subordinated Agent, at:

Praesidian Capital Opportunity Fund III, LP

419 Park Avenue South

New York, NY 10016

Facsimile:   212-520-2601

Attention:   Jason D. Drattell

with a copy to (which shall not constitute notice):

Morrison Cohen LLP

909 Third Avenue

New York, NY 10022

Facsimile:   (917) 522-3168

Attention:   Stephen I. Budow, Esq.

EX-10.1.6

Exhibit 10.1.6 

EXECUTION VERSION

INTERCREDITOR AND SUBORDINATION AGREEMENT

INTERCREDITOR AND SUBORDINATION AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of November 14, 2016, by and among MARVIN ROSEN, an individual (“Subordinated Lender”), FUSION TELECOMMUNICATIONS INTERNATIONAL, INC., a Delaware corporation (“Issuer”), each other Credit Party party hereto and EAST WEST BANK, in its capacity as administrative agent (“Administrative Agent”) pursuant to the Credit Agreement (as hereinafter defined).

WHEREAS, Fusion NBS Acquisition Corp., a Delaware corporation (“Borrower”), Administrative Agent and the Lenders party thereto (together with the lenders from time to time party thereto, the “Lenders”) have entered into that certain Credit Agreement, dated as of the date hereof (as amended, restated, modified or supplemented from time to time, including, without limitation, amendments, modifications, supplements and restatements thereof giving effect to increases, renewals, extensions, refundings, deferrals, restructurings, replacements or refinancings of, or additions to, the arrangements provided for therein, the “Credit Agreement”), pursuant to which, among other things, Administrative Agent and Lenders have agreed, subject to the terms and conditions set forth in the Credit Agreement, to extend certain credit facilities to the Borrower;

WHEREAS, in accordance with the terms of the Credit Agreement and the other Senior Loan Documents (as hereinafter defined), Issuer and the other Credit Parties will grant to Administrative Agent and the Lenders a first priority lien on, security interest in and right of set-off against any and all right, title and interest of Issuer in and to certain Collateral; and

WHEREAS, as an inducement to and as one of the conditions precedent to the agreement of Administrative Agent and Lender to consummate the transactions contemplated by the Credit Agreement and the other Senior Loan Documents, Administrative Agent and Lenders require the execution and delivery of this Agreement by Subordinated Lender and Credit Parties.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1.          Definitions.

(a)          Capitalized terms used but not defined herein (including, without limitation, in the introductory paragraph and recitals above) shall have the meanings given such terms in the Credit Agreement.

(b)          The following terms shall have the following meanings:

“Administrative Agent” has the meaning specified in the introductory paragraph to this Agreement.

“Blockage Period” has the meaning specified in Section 2(b) of this Agreement.

“Collateral” means, collectively, the “Collateral” (as such term is defined in the Credit Agreement) and any and all other property from time to time subject to Liens or security interests to secure payment or performance of the Senior Obligations.

“Credit Agreement” has the meaning specified in the recitals to this Agreement.

“Credit Parties” means, collectively, Issuer, Borrower, NBS, each other Subsidiary of Issuer and any other Person that at any time is or becomes directly or indirectly liable on or in respect of, or that provides security for, any Senior Obligations, and their successors and permitted assigns.

“Enforcement Action” means, with respect to the Subordinated Obligations, any action to collect all or any portion of the Subordinated Obligations, to accelerate or demand payment of all or any portion of the Subordinated Obligations or to enforce any of the rights and remedies of any holder of any of the Subordinated Obligations, either pursuant to the Subordinated Loan Documents, at Law, or in equity, including, but not limited to: (i) commencing or pursuing legal proceedings to collect any amounts owed with respect to the Subordinated Obligations; (ii) execution upon, or otherwise enforcing any judgment obtained with respect to, amounts owed on the Subordinated Obligations; or (iii) commencing or pursuing any judicial or non-judicial proceedings with respect to the Subordinated Obligations to foreclose upon, or to acquire title in lieu of foreclosure as to, all or any portion of the assets of Issuer or any other Credit Party.

“Insolvency Event” means (i) Issuer or any of its Subsidiaries commencing any case, proceeding or other action (A) under any Debtor Relief Laws or existing or future Law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Issuer or any of its Subsidiaries making a general assignment for the benefit of its creditors; (ii) there being commenced against Issuer or any of its Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above; (iii) there being commenced against Issuer or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets; (iv) Issuer or any of its Subsidiaries taking any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) Issuer or any of its Subsidiaries generally not paying, or being unable to pay, or admitting in writing its inability to pay, its debts as they become due.

“Insolvency Proceeding” means the occurrence or commencement of any proceeding specified in clause (i) or clause (ii) of the definition of “Insolvency Event” in this Agreement.

“Issuer” has the meaning specified in the recitals of this Agreement.

2

“Lenders” has the meaning specified in the recitals of this Agreement.

“Permitted Subordinated Debt Payments” means regularly scheduled cash payments of interest, at the non-default rate of interest not to exceed a rate of seven percent (7%) per annum, pursuant to and in accordance with the Subordinated Notes.

“Senior Default” means any “Default” or “Event of Default” under the Credit Agreement or any other Senior Loan Document.

“Senior Lenders” means Administrative Agent, Lenders and each other holder of a Senior Obligation and each of their respective successors and assigns.

“Senior Loan Documents” means, collectively, the Credit Agreement, the other “Loan Documents” (as such term is defined in the Credit Agreement) and all other documents, instruments and agreements that from time to time evidence the Senior Obligations or secure or support payment or performance of such Senior Obligations, as the same may be amended, restated, modified or supplemented from time to time, including, without limitation, amendments, modifications, supplements and restatements thereof giving effect to increases, renewals, extensions, refundings, deferrals, restructurings, replacements or refinancings of, or additions to, the arrangements provided therein (whether provided by one or more Lenders under the Credit Agreement or one or more successor Lenders).

“Senior Obligations” means collectively, the “Obligations” (as such term is defined in the Credit Agreement) and the “Guaranteed Obligations” (as such term is defined in the Guaranty), including, without limitation, all principal, interest, fees, expenses, indemnities and reimbursement obligations (including, without limitation, Attorney Costs) at any time owed by any Credit Party to Senior Lender pursuant to the terms of the Senior Loan Documents, in each instance, whether before or after the commencement of an Insolvency Proceeding and without regard to whether or not an allowed claim, and all obligations and liabilities incurred with respect to any refinancing of such obligations, together with any amendments, restatements, modifications, renewals or extensions thereof.

“Subordinated Event of Default” means any default or event of default under the Subordinated Notes or other Subordinated Loan Documents.

“Subordinated Lender” has the meaning specified in the introductory of this Agreement.

“Subordinated Loan Documents” means, collectively, the Subordinated Notes and any other documents, agreements or instruments that from time to time evidence or otherwise relate to the Subordinated Obligations.

“Subordinated Notes” means that certain Second Amended and Restated Unsecured Promissory Note, dated as of November 14, 2016, made by Issuer and payable to the order of the Subordinated Lender, as the same may be amended, supplemented, restated or otherwise modified from time to time as permitted by this Agreement and the Senior Loan Documents, including, without limitation, any notes issued in exchange or substitution therefor.

3

“Subordinated Obligations” means, collectively, the unpaid principal of and interest on the Subordinated Notes and all other Indebtedness of Issuer or any other Credit Party owing to the Subordinated Lender (including, without limitation, interest accruing at the then applicable rate provided therein after the maturity of the Subordinated Notes and interest accruing at the then applicable rate provided in the Subordinated Notes after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to Issuer or any other Credit Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Subordinated Notes, this Agreement, or any other Subordinated Loan Document, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, Attorney Costs incurred by the Subordinated Lender that are required to be paid by Issuer or any other Credit Party pursuant to the terms of any other Subordinated Loan Document); provided, however, that Subordinated Obligations shall not include obligations for compensation, employee benefits and reimbursement of related costs incurred in the ordinary course of business, to the extent any of the foregoing constitutes Indebtedness, and to the extent such Indebtedness is permitted by the Credit Agreement.

(c)          The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section and paragraph references are to this Agreement unless otherwise specified.

(d)          The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e)          No inference in favor of, or against, any party to this Agreement shall be drawn from the fact that such party has drafted any portion of this Agreement.

2.          Subordination; Enforcement Action. Each Credit Party and Subordinated Lender each hereby agrees, for itself and each future holder of the Subordinated Obligations, that:

(a)          No holder of the Subordinated Obligations shall have any claim to any assets of any Credit Party on a parity with or prior to the claim of any holder of the Senior Obligations.

4

(b)          Unless and until the Senior Obligations have been paid in full, without the express prior written consent of Administrative Agent, (1) Subordinated Lender shall not, directly or indirectly, take, demand, accept or receive from any Credit Party or any other Person, in cash or other property or by setoff or in any other manner, payment of all or any of the Subordinated Obligations, and (2) no Credit Party shall make, give or permit, directly or indirectly, by setoff, redemption, purchase or in any other manner, any payment of or with respect to, or any collateral or other security for, the whole or any part of the Subordinated Obligations, including, without limitation, any guarantee, letter of credit or similar credit support to support payment of any of the Subordinated Obligations; provided, however, that, subject in all respects to the other terms and provisions hereof, (x) Subordinated Lender may accept and retain, and Issuer may make, Permitted Subordinated Debt Payments so long as no Blockage Period is then in effect, so long as, after giving effect to such payment, the Credit Parties are in compliance on a pro forma basis with the covenants set forth in Section 7.15 of the Credit Agreement, recomputed for the most recent fiscal quarter for which financial statements have been delivered; and (y) Issuer may resume making any Permitted Subordinated Debt Payments, and may make any Permitted Subordinated Debt Payment missed during any Blockage Period, upon the cessation of a Blockage Period. A “Blockage Period” shall exist from and after the date that any Senior Default shall have occurred, until the earlier to occur of (a) the cure or waiver of such Senior Default, as determined by Administrative Agent in its sole discretion and (b) the payment in full of the Senior Obligations.

(c)          Unless and until the Senior Obligations have been paid in full, without the express written consent of Administrative Agent, Subordinated Lender shall not commence any Enforcement Action.

(d)          The expressions “prior payment in full,” “payment in full,” “paid in full” and any other similar terms or phrases when used herein with respect to the Senior Obligations shall mean (i) the indefeasible payment in full, in immediately available funds, of all of the Senior Obligations and the performance in full of all of the Senior Obligations and Hedging Obligations, (ii) the termination or expiration of all Senior Loan Documents, and (iii) termination of any and all commitments to lend under the Senior Loan Documents. Senior Obligations shall be considered to be outstanding whenever any loan commitment under any Senior Loan Document is outstanding.

(e)          Each holder of Senior Obligations, whether now outstanding or hereafter created, incurred, assumed or guaranteed, shall be deemed to have acquired Senior Obligations in reliance upon the provisions contained in this Agreement.

3.          Additional Provisions Concerning Subordination. Without limiting any other term or provision in this Agreement:

(a)          The Subordinated Lender and each Credit Party hereby agree that upon the occurrence of any Insolvency Event:

(i)          all Senior Obligations shall be paid in full before any payment or distribution is made with respect to any of the Subordinated Obligations; and

5

(ii)         any payment or distribution of assets of any Credit Party of any kind or character, whether in cash, property or securities, to which Subordinated Lender would be entitled except for the provisions hereof, shall be paid or delivered by such Credit Party, or any receiver, trustee in bankruptcy, liquidating trustee, disbursing agent or other Person making such payment or distribution, directly to Administrative Agent for application against the Senior Obligations (in accordance with the terms of the applicable Senior Loan Documents), to the extent necessary to pay in full all Senior Obligations, before any payment or distribution shall be made to Subordinated Lender, and (x) Subordinated Lender hereby unconditionally authorizes, empowers and directs all trustees, receivers, custodians, conservators, or any other Persons having authority over the property of any Credit Party to effect delivery of all such payments and distributions to Administrative Agent and (y) Subordinated Lender agrees to execute and deliver to Administrative Agent such further instruments as may be requested by Administrative Agent to confirm the authorization referred to in the foregoing clause (x).

(b)          Upon the occurrence of any Insolvency Proceeding commenced by or against any Credit Party, Subordinated Lender irrevocably authorizes and empowers Administrative Agent to demand, sue for, collect and receive every payment or distribution on account of any of the Subordinated Obligations payable or deliverable in connection with such event or proceeding, until the Senior Obligations are paid in full, and give acquittance therefor;

(c)          Subordinated Lender irrevocably authorizes and empowers Administrative Agent to file claims and proofs of claim in any such Insolvency Proceeding and take such other actions, in its own name, or in the name of the Subordinated Lender or otherwise, as Administrative Agent may deem necessary or advisable for the enforcement of the provisions of this Agreement; and, in furtherance thereof, Subordinated Lender shall execute and deliver such powers of attorney, assignments or proofs of claim or other instruments as Administrative Agent may request; provided, however, that the foregoing authorization and empowerment imposes no obligation on Administrative Agent or any other Senior Lender to take any such action.

(d)          Except as otherwise expressly permitted by the terms hereof, if any payment or distribution, whether consisting of money, property or securities, shall be collected or received by or come into the custody, control or possession of Subordinated Lender in respect of the Subordinated Obligations, Subordinated Lender shall forthwith deliver the same to Administrative Agent for application against the Senior Obligations, in the exact form received, duly endorsed to Administrative Agent, if required, in each case to be applied to the payment or prepayment of the applicable Senior Obligations in accordance with the terms of the applicable Senior Loan Documents until such Senior Obligations are paid in full. Until so delivered, such payment or distribution shall be held in trust by Subordinated Lender as the property of the Senior Lenders, segregated from other funds and property held by Subordinated Lender.

4.          Subrogation. Until the Senior Obligations are paid in full, the Subordinated Lender shall not make or assert any claim of subrogation under applicable Law or otherwise with respect to the Senior Lenders or the Senior Obligations. Upon the payment in full of the Senior Obligations, the Subordinated Lender shall be subrogated to the rights of the Senior Lenders to receive payments or distributions of assets of Issuer and each other Credit Party in respect of the Senior Obligations until the Senior Obligations shall be paid in full. For the purposes of such subrogation, payments or distributions to any Senior Lender of any money, property or securities to which Subordinated Lender would be entitled except for the provisions of this Agreement shall be deemed, as between Issuer and its creditors (other than the Senior Lenders and Subordinated Lender), to be a payment by Issuer to or on account of Subordinated Obligations (it being understood that the provisions of this Agreement are, and are intended solely, for the purpose of defining the relative rights of the Subordinated Lender, on the one hand, and Senior Lenders, on the other hand).

6

5.          Consents, Waivers and Covenants of Subordinated Lender.

(a)          Subordinated Lender consents and agrees that, without the necessity of any reservation of rights against Subordinated Lender, and without notice to or further assent by Subordinated Lender:

(i)          any demand for payment of any Senior Obligations made by any Senior Lender may be rescinded in whole or in part by such Senior Lender, and any Senior Obligation may be continued, and the Senior Obligations, or the liability of any Credit Party or any guarantor or any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, or any obligation or liability of any Credit Party or any other party under any Senior Loan Document, or any other agreement, may, from time to time, in whole or in part, be amended, restated, renewed, extended, increased, modified, accelerated, compromised, restructured, waived, surrendered, or released by Administrative Agent or the other Senior Lenders;

(ii)         the Credit Agreement, the other Senior Loan Documents and the Senior Obligations may be amended, restated, modified, extended, increased, renewed, restructured, supplemented or terminated, in whole or in part, as Administrative Agent or the other Senior Lenders may deem advisable from time to time, and any collateral security at any time held by any Senior Lender for the payment of any of the Senior Obligations may be sold, exchanged, restructured, waived, surrendered or released, in each case all without notice to or further assent by Subordinated Lender, which will remain bound under this Agreement, and Administrative Agent and the other Senior Lenders shall have the right to grant waivers or consents to any Credit Party with respect to any of the Senior Obligations or any Senior Loan Document in any manner whatsoever, all without impairing, abridging, releasing or affecting the subordination provided for herein; and

(iii)        any refinancing of the Obligations may be consummated by any Credit Party.

(b)          Subordinated Lender waives any and all notice of the creation, renewal, extension, increase, or accrual of any of the Senior Obligations and notice of or proof of reliance by any Senior Lender upon this Agreement. The Senior Obligations shall be deemed conclusively to have been created, contracted or incurred in reliance upon this Agreement, and all dealings between the Credit Parties and Senior Lenders shall be deemed to have been consummated in reliance upon this Agreement. Subordinated Lender acknowledges and agrees that each Senior Lender has relied upon the subordination provided for herein in entering into the Senior Loan Documents and in making funds available to Issuer thereunder. Subordinated Lender waives notice of or proof of reliance on this Agreement and protest, demand for payment and notice of default.

7

(c)          The Subordinated Lender hereby consents to the Liens on the Collateral created in favor of Senior Lenders under the Senior Loan Documents, and agrees that the grant, perfection, priority and existence of such Liens does not and shall not constitute a Subordinated Event of Default or any other default under any Subordinated Loan Document.

(d)          Concurrently with the issuance thereof, the Subordinated Lender shall provide Senior Lenders with a copy of any written notice of any Subordinated Event of Default or similar communication given by Subordinated Lender to Issuer pursuant to or in connection with any of the Subordinated Loan Documents. Upon demand by Administrative Agent, the Subordinated Lender will furnish to Senior Lenders a statement of the indebtedness owing from Issuer to the Subordinated Lender. Administrative Agent may rely without further investigations upon such statements.

(e)          Notwithstanding anything in the Subordinated Notes or any other agreement or instrument to the contrary, the Subordinated Lender and Issuer hereby acknowledge and agree that the maturity date of each of the Subordinated Notes shall be no earlier than the date upon which the Senior Obligations are paid in full.

6.          Negative Covenants of the Subordinated Lender. Until the payment in full of the Senior Obligations, Subordinated Lender shall not, without the prior written consent of Administrative Agent:

(a)          sell, assign, or otherwise transfer, in whole or in part, the Subordinated Obligations or any interest therein to any other Person (a “Transferee”) or create, incur or suffer to exist any security interest, Lien, charge or other encumbrance whatsoever upon any of the Subordinated Obligations or under any Subordinated Loan Document in favor of any Transferee unless:

(i)          such action is made expressly subject to this Agreement; and

(ii)         the Transferee expressly acknowledges to Senior Lenders, by a written agreement in form and substance satisfactory to Administrative Agent or by delivery of an executed counterpart of this Agreement or an intercreditor and subordination agreement substantially identical to this Agreement, the subordination provided for herein and agrees to be bound by all of the terms and provisions hereof;

(b)          permit any of the Subordinated Loan Documents or the Subordinated Obligations to be amended, restated, renewed, restructured, increased, extended, supplemented or otherwise modified in any respect, except changes that do not adversely affect Senior Lenders’ rights under this Agreement or the Senior Loan Documents or Senior Lenders’ right to payment of the Senior Obligations; and nothing herein shall prohibit the Subordinated Lender from converting any of the Subordinated Obligations into common stock of Issuer, nor prohibit the Issuer from permitting conversion of any Subordinated Obligations into common stock of Issuer;

8

(c)          permit or require any Credit Party to guarantee, or otherwise become liable in respect of, any of the Subordinated Obligations (other than Issuer);

(d)          permit or require any Credit Party to create any Lien on any of its assets or properties to secure the payment or performance of any of the Subordinated Obligations;

(e)          commence, or join with any creditors (other than Senior Lenders) in commencing, or otherwise cause, any Insolvency Proceeding;

(f)          challenge the validity, enforceability, priority of, or any other term or provision of, any Senior Loan Document;

(g)          challenge the extent, validity, creation, perfection or priority of, any Lien created or purported to be created pursuant to any Senior Loan Document or seek to avoid or subordinate any such Lien; or

(h)          interfere in any respect with the exercise by any Senior Lender of any right or remedy under any Senior Loan Document or applicable Law;

provided, however, that a transfer by operation of Law to the estate of a deceased Subordinated Lender shall not be a default hereunder; provided, further, that it is the express intent of all parties hereto that such transfer shall be expressly subject to this Agreement, and that the Transferee of the estate expressly acknowledges to Senior Lenders, by a written agreement in form and substance satisfactory to Administrative Agent or by delivery of an executed counterpart of this Agreement or an intercreditor and subordination agreement substantially identical to this Agreement, the subordination provided for herein and agrees to be bound by all of the terms and provisions hereof.

7.          Senior Obligations Unconditional. All obligations and agreements of the Subordinated Lender hereunder shall be irrevocable, unconditional, continuing and absolute. All rights and interests of Senior Lenders hereunder, and all agreements and obligations of the Subordinated Lender and any Credit Party, shall remain in full force and effect irrespective of:

(a)          any lack of validity or enforceability of any Senior Loan Document or if all or any portion of the Senior Obligations and/or the Liens securing same are subordinated, set aside, avoided or disallowed, in each case pursuant to an Insolvency Proceeding or otherwise (as a result of the fraudulent transfer provisions under the Bankruptcy Code, under any state fraudulent conveyance or fraudulent transfer statute, or otherwise);

(b)          any change in the time, manner or place of payment of, or in any other term of, all or any of the Senior Obligations, or any amendment or waiver or other modification, whether by course of conduct or otherwise, of the terms of any Senior Loan Document, including, without limitation, any increase in any of the Senior Obligations resulting from the extension of additional credit to any Credit Party or otherwise;

9

(c)          any exchange, release or nonperfection of any Lien upon any Collateral, or any release, amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the Senior Obligations or any guarantee thereof;

(d)          the existence of any claim, set-off, defense, counterclaim or other right that Subordinated Lender, any Credit Party or any other Person may have against any Person, including, without limitation, any Senior Lender;

(e)          any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Senior Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Senior Obligations or any obligations of the Credit Parties under the Senior Loan Documents or any other assets of the Credit Parties;

(f)          any change, restructuring or termination of the corporate or other organizational structure or existence of any Credit Party;

(g)          any failure of any Senior Lender to disclose to Subordinated Lender any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of Issuer or any of its Affiliates now or hereafter known to any Senior Lender (Subordinated Lender hereby waiving any duty on the part of Senior Lenders to disclose such information); or

(h)          any other event or circumstance which otherwise might constitute a defense or counterclaim available to, or a discharge of, any Credit Party in respect of any of the Senior Obligations, or of Subordinated Lender or any Credit Party in respect of this Agreement.

8.          Representations and Warranties. Subordinated Lender represents and warrants to each Senior Lender that:

(a)          the Subordinated Notes: (i) have been issued to it for good and valuable consideration; (ii) are owned by Subordinated Lender free and clear of any security interests, Liens, charges or encumbrances whatsoever, other than the interest of Senior Lenders under this Agreement; (iii) are payable solely and exclusively to Subordinated Lender and to no other Person and is payable without deduction for any defense, recoupment, offset or counterclaim, and (iv) constitute the only evidence of the obligations evidenced thereby;

(b)          Subordinated Lender has the power and authority and the legal right to execute and deliver and to perform its obligations under this Agreement and has taken all necessary action to authorize its execution, delivery and performance of this Agreement;

10

(c)          this Agreement has been duly executed and delivered by Subordinated Lender and constitutes a legal, valid and binding obligation of Subordinated Lender, enforceable against Subordinated Lender in accordance with its terms;

(d)          the execution, delivery and performance of this Agreement will not violate any provision of any requirement of Law applicable to Subordinated Lender or contractual obligation of Subordinated Lender and will not result in the creation or imposition of any Lien on any of the properties or revenues of Subordinated Lender pursuant to any requirement of Law affecting, or any contractual obligation of, Subordinated Lender, except the interest of Senior Lenders under this Agreement;

(e)          no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or Governmental Authority or any other Person (including, without limitation, any creditor of Subordinated Lender), is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement; and

(f)          no pending or, to the best of its knowledge, threatened litigation, arbitration or other proceedings if adversely determined would in any way prevent the performance of the terms of this Agreement; and

(g)          as of the date hereof, Issuer is indebted to the Subordinated Lender under the Subordinated Loan Documents in the aggregate amount of $928,081.18.

9.          No Representation by Senior Lenders. No Senior Lender has made, and no Senior Lender does hereby nor otherwise make to the Subordinated Lender, any representations or warranties, express, or implied, nor does any Senior Lender assume any liability or obligation to or of Subordinated Lender with respect to:

(a)          the financial or other condition of any Credit Party or any other obligors under any instruments of guarantee with respect to the Senior Obligations;

(b)          the enforceability, validity, value or collectability of any of the Senior Obligations or the Subordinated Obligations, any collateral therefor, or any guarantee or security which may have been granted in connection with any of the Senior Obligations or the Subordinated Obligations; or

(c)          the title or right of any Credit Party or any other Person to transfer any collateral or security.

11

10.         Waiver of Claims. To the maximum extent permitted by Law, Subordinated Lender waives any claim it might have against any Senior Lender with respect to, or arising out of, any action or failure to act or any error of judgment, negligence, or mistake or oversight whatsoever on the part of any Senior Lender or its affiliates, directors, officers, employees, advisors, attorneys or agents with respect to any exercise of any rights or remedies under any of the Senior Loan Documents or any transaction relating to any of the Collateral or any guarantee. No Senior Lender or any of its affiliates, directors, officers, employees, advisors, attorneys or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or any guarantee or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral or realize upon any guarantee upon the request of any Credit Party or Subordinated Lender or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof or any guarantee.

11.         Additional Provisions Applicable After Insolvency Event or Proceeding. Without limiting any other term or provision in this Agreement or any Senior Loan Document:

(a)          The provisions of this Agreement shall continue in full force and effect notwithstanding the occurrence of any Insolvency Event or Insolvency Proceeding.

(b)          Subordinated Lender agrees that it will not, directly or indirectly (including, without limitation, as a member of any unsecured creditors’ committee), take any action in or relating to any proceeding arising from, as a result of, in connection with or relating to any Insolvency Proceeding to challenge, contest or object in any manner to (i) the extent, validity, creation, enforceability, perfection or priority of any of the Senior Obligations or any Senior Loan Document or any Liens or security interests created under any Senior Loan Document, or any term or provision of this Agreement or Subordinated Lender's obligations, undertakings, acknowledgments and agreements set forth in this Agreement; (ii) any pleading, motion, notice, objection or argument of or made by or on behalf of any holder of any of the Senior Obligations based on, under or in respect of Section 361, 362, 363 or 364 of the Bankruptcy Code, including, without limitation, in respect of permitting the use of any cash or other collateral by, or providing any financing to, any Credit Party under either Section 363 or 364 of the Bankruptcy Code (including, without limitation, any request for adequate protection, or in respect of the sale or other disposition of any property by any Credit Party under Section 363 of the Bankruptcy Code or pursuant to a plan of reorganization or any other arrangement (and Subordinated Lender shall be deemed to have consented to any such sale or disposition and all of the terms applicable thereto); or (iii) the payment of interest, fees, expenses or other amounts to Senior Lenders under Sections 506(b) or 506(c) of the Bankruptcy Code or otherwise. Subordinated Lender agrees that it will not seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in derogation thereof, without the prior written consent of Administrative Agent. Subordinated Lender shall not support or vote in favor of any plan of reorganization (and they shall be deemed to have voted to reject any plan of reorganization) unless such plan (i) pays off in full, in cash, all Senior Obligations or (ii) is accepted by the Senior Lenders. This Agreement, which the parties hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy Code, shall be effective, during and after the commencement of an Insolvency Proceeding.

12

12.         Further Assurances. The Subordinated Lender and each Credit Party, at their own sole cost and expense and at any time from time to time, upon the written request of Administrative Agent, will promptly and duly execute and deliver such further instruments and documents and take such further actions as Administrative Agent reasonably may request for the purposes of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted. Without limiting the generality of the foregoing, in the event of an assignment pursuant to any Senior Loan Document or in the event of a refinancing of the Senior Obligations, the Subordinated Lender and each Credit Party shall, upon the request of Administrative Agent, execute a new intercreditor and subordination agreement upon the same terms as this Agreement to further evidence and confirm that the Subordinated Obligations are and shall remain junior and subordinate in right of payment to the Senior Obligations.

13.         Reinstatement. The terms and provisions of this Agreement shall continue to be effective or be reinstated, and the Senior Obligations shall not be deemed to be paid in full, as the case may be, if at any time any payment of any of the Senior Obligations is rescinded or avoided, or must otherwise be returned by any Senior Lender pursuant to any Insolvency Proceeding or otherwise, all as though such payment had not been made.

14.         Expenses. Subordinated Lender shall pay or reimburse Senior Lenders, upon demand, for all of its reasonable and documented costs and expenses incurred in connection with the enforcement of any rights and remedies with respect to the Subordinated Lender under this Agreement, including, without limitation, Attorney Costs of Senior Lenders.

15.         Provisions Define Relative Rights. This Agreement is intended solely for the purpose of defining the relative rights of Senior Lenders, on the one hand, and the Subordinated Lender, on the other, and the obligations of Credit Parties in connection with the foregoing and no other Person shall have any right, benefit or other interest under this Agreement. Each Credit Party hereby agrees that it will not make any payment on or in respect of any of the Subordinated Obligations, or take any other actions, in contravention of the provisions of this Agreement.

16.         Legend. Subordinated Lender will cause each Subordinated Note (and each other Subordinated Loan Document as Administrative Agent shall request) to bear upon its face the following legend:

“ALL INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBORDINATED TO OTHER INDEBTEDNESS PURSUANT TO, AND TO THE EXTENT PROVIDED IN, AND IS OTHERWISE SUBJECT TO THE TERMS OF, THE INTERCREDITOR AND SUBORDINATION AGREEMENT, DATED AS OF NOVEMBER 14, 2016 (THE “SUBORDINATION AGREEMENT”), AS THE SAME MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, BY AND AMONG FUSION TELECOMMUNICATIONS INTERNATIONAL, INC., A DELAWARE CORPORATION AND ITS SUBSIDIARIES, EAST WEST BANK, AS ADMINISTRATIVE AGENT, AND THE HOLDERS FROM TIME TO TIME OF THE OBLIGATIONS ARISING UNDER THE SUBORDINATED LOAN DOCUMENTS REFERRED TO IN THE SUBORDINATION AGREEMENT, INCLUDING, WITHOUT LIMITATION, THIS NOTE, AND EACH HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, ACKNOWLEDGES AND AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.”

13

17.         Powers Coupled With An Interest. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until the Senior Obligations are paid in full.

18.         Authority of Senior Lenders. Each Credit Party and Subordinated Lender acknowledge and agree that the rights and responsibilities of each Senior Lender under this Agreement with respect to any action taken by any Senior Lender or the exercise or non-exercise by any Senior Lender of any option, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall be governed by the Senior Loan Documents and by such other agreements with respect thereto as may exist from time to time among, but, as between Senior Lenders, on the one hand, and the Credit Parties and the Subordinated Lender, on the other hand, each Senior Lender shall be conclusively presumed to be acting with full and valid authority so to act or refrain from acting, and neither any Credit Party nor Subordinated Lender shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

19.         Notices.

(a)          Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to a Senior Lender, Administrative Agent, any Credit party or Subordinated Lender shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows: :

(i)          If to Administrative Agent or Senior Lender, at the following address, facsimile number or e-mail address:

	East West Bank
	135 N. Los Robles Avenue, 2nd Floor
	Pasadena, California 91101
	Attn: Richard Vian, Senior Vice President-Group Manager, Telecommunications Lending
	Telephone:  (626) 768-6816
	E-mail:  Richard.Vian@eastwestbank.com
with a copy to :
	Sutherland Asbill & Brennan LLP
	999 Peachtree Street, Suite 2300
	Atlanta, Georgia 30309
	Attention: Christina B. Rissler
	Telephone: (404) 853-8600
	Email: christina.rissler@sutherland.com

14

(ii)         If to any Credit Party, at the following address:

	Fusion Telecommunications International, Inc.
	420 Lexington Avenue, Suite 1718
	New York, New York 10170
	Attention:         Gordon Hutchins, Jr., President
with a copy to:	Kelley Drye & Warren LLP
	101 Park Avenue
	New York, New York 10178
	Attention: Jack Miles and Merrill Stone
	Facsimile: (212) 808-7897

(iii)        if to Subordinate Lender, at its address or transmission number for notices set forth under its signature below.

(b)          Any such notice shall be deemed to have been given or made or to have become effective on the terms set forth in Section 10.01 of the Credit Agreement.

(c)          Any Senior Lender, Credit Party or Subordinated Lender may change its addresses and transmission numbers for notices by notice in the manner provided in this Section 19.

20.         Counterparts. This Agreement may be executed by one or more of the parties on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic means shall be effective as delivery of an original executed counterpart of this Agreement.

21.         Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

22.         Integration. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT OF SENIOR LENDERS, CREDIT PARTIES AND THE SUBORDINATED LENDER WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THERE ARE NO PROMISES OR REPRESENTATIONS BY ANY SENIOR LENDER, CREDIT PARTIES OR SUBORDINATED LENDER RELATIVE TO THE SUBJECT MATTER HEREOF NOT REFLECTED HEREIN. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

15

23.         Amendments in Writing; No Waiver; Cumulative Remedies.

(a)          Any modification or waiver of any provision of this Agreement, or any consent to any departure by any party from the terms hereof, shall not be effective in any event unless the same is in writing and signed by Administrative Agent and the Subordinated Lender, and then such modification, waiver or consent shall be effective only in the specific instance and for the specific purpose given; provided that any such modification or waiver that directly and adversely affects the obligations of the Credit Parties hereunder and is sought to be enforced against the Credit Parties shall require the consent of the Credit Parties.

(b)          No failure to exercise, nor any delay in exercising, on the part of any Senior Lender, any right, remedy power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

(c)          The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by Law.

(d)          If Subordinated Lender or any Credit Party violates any of the terms or provisions of this Agreement, in addition to any remedies in Law, at equity or otherwise, any Senior Lender may restrain or enjoin such violation in any court of competent jurisdiction and may interpose this Agreement as a defense or counterclaim in any action or proceeding by Subordinated Lender or any Credit Party.

24.         Section Headings. The section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

25.         Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Credit Party and Subordinated Lender and shall inure to the benefit of Senior Lenders and their respective successors and assigns.

26.         Governing Law; etc. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.

27.         Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.

[The remainder of this page intentionally left blank.]

16

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.

ADMINISTRATIVE AGENT:
EAST WEST BANK, as Administrative Agent
By:	/s/ Richard Vian
Name:  Richard Vian
Title:  Senior Vice President

[Intercreditor and Subordination Agreement]

CREDIT PARTIES:
FUSION NBS ACQUISITION CORP.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By:	/s/ Gordon Hutchins, Jr
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
NETWORK BILLING SYSTEMS, L.L.C.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: Executive Vice President
PINGTONE COMMUNICATIONS, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FUSION BVX LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President

[Intercreditor and Subordination Agreement]

FIDELITY ACCESS NETWORKS, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY CONNECT LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY VOICE SERVICES, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY TELECOM, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
APPTIX, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer

[Intercreditor and Subordination Agreement]

SUBORDINATED LENDER:

/s/ Marvin Rosen

Marvin Rosen

Address for Notices:

Marvin S. Rosen

211 Central Park West (Apt 8G)

New York, New York 10024

Facsimile No.:

EX-10.1.7

Exhibit 10.1.7

Execution Version

PLEDGE AND SECURITY AGREEMENT

dated as of November 14, 2016

by and among

EACH OF THE GRANTORS PARTY HERETO

and

EAST WEST BANK,

as Administrative Agent

TABLE OF CONTENTS

		PAGE
SECTION 1	DEFINITIONS AND INTERPRETATION	1
1.01	General Definitions	1
1.02	Interpretation	7
SECTION 2	GRANT OF SECURITY	8
2.01	Grant of Security	8
2.02	Certain Limited Exclusions	9
2.03	FCC and PUC Licenses	9
SECTION 3	SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE	9
3.01	Security for Obligations	9
3.02	Continuing Liability Under Collateral	10
SECTION 4	REPRESENTATIONS AND WARRANTIES AND COVENANTS	10
4.01	Generally	10
4.02	Equipment and Inventory	13
4.03	Receivables	14
4.04	Investment Related Property	16
4.05	Material Contracts	22
4.06	Letter-of-Credit Rights	22
4.07	Intellectual Property	22
4.08	Commercial Tort Claims	26
SECTION 5	FURTHER ASSURANCES; ADDITIONAL GRANTORS; BRING DOWN OF REPRESENTATIONS AND WARRANTIES	26
5.01	Further Assurances	26
5.02	Additional Grantors	27
5.03	Bring Down of Representations and Warranties	27
SECTION 6	ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT	28
6.01	Power of Attorney	28
6.02	No Duty on the Part of Administrative Agent or Secured Parties	29
SECTION 7	REMEDIES	29
7.01	Generally	29
7.02	Application of Proceeds	30
7.03	Sales on Credit	30
7.04	Deposit Accounts	30
7.05	Investment Related Property	31
7.06	Intellectual Property	31
7.07	Cash Proceeds	33
7.08	Compliance with Communications Law	33
SECTION 8	ADMINISTRATIVE AGENT	33

i

SECTION 9	CONTINUING SECURITY INTEREST AND LIEN; TRANSFER OF LOANS	34
SECTION 10	STANDARD OF CARE; ADMINISTRATIVE AGENT MAY PERFORM	34
SECTION 11	MISCELLANEOUS	35

SCHEDULES:	4.01	General Information
	4.03	Government Contracts
	4.04	Investment Related Property
	4.06	Description of Letters of Credit
	4.07	Intellectual Property
	4.08	Commercial Tort Claims
EXHIBITS:	A	Form of Supplement

ii

PLEDGE AND SECURITY AGREEMENT

This PLEDGE AND SECURITY AGREEMENT, dated as of November 14, 2016 (“Agreement”), is by and among EACH OF THE UNDERSIGNED, whether as an original signatory hereto or as an Additional Grantor (as defined below) (each, a “Grantor” and collectively, the “Grantors”), and EAST WEST BANK (“EWB”), as administrative agent for the Secured Parties (as defined below) (in such capacity as administrative agent, “Administrative Agent”).

RECITALS:

WHEREAS, reference is made to that certain Credit Agreement, dated as of the date hereof (the “Credit Agreement”), by and among FUSION NBS ACQUISITION CORP., a Delaware corporation (“Borrower”), the Lenders party thereto from time to time (collectively, the “Lenders”) and EWB, as Administrative Agent, Swingline Lender, an Issuing Bank and a Lender; and

WHEREAS, in consideration of the extensions of credit and other accommodations of Lenders as set forth in the Credit Agreement, each Grantor has agreed to secure such Grantor’s obligations under the Loan Documents as set forth herein.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, each Grantor and Administrative Agent agree as follows:

SECTION 1       DEFINITIONS AND INTERPRETATION

1.01       General Definitions. In this Agreement, the following terms shall have the following meanings:

“Account Debtor” means each Person who is obligated on a Receivable or any Supporting Obligation related thereto.

“Accounts” means all “accounts” as defined in Article 9 of the UCC.

“Additional Grantors” has the meaning set forth in Section 5.02.

“Agreement” has the meaning set forth in the introductory paragraph.

“Assigned Agreements” means all agreements and contracts, other than Non-Assignable Contracts to which such Grantor is a party as of the date hereof, or to which such Grantor becomes a party after the date hereof, including each Material Contract.

“Borrower” has the meaning set forth in the recitals.

“Cash Proceeds” has the meaning set forth in Section 7.07.

“Chattel Paper” means all “chattel paper” as defined in Article 9 of the UCC, including “electronic chattel paper” or “tangible chattel paper”, as each such term is defined in Article 9 of the UCC.

“Collateral” as defined in Section 2.01.

“Collateral Records” means books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection of or realization upon such Collateral.

“Collateral Support” means all property (real or personal) assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.

“Commercial Tort Claims” means all “commercial tort claims” as defined in Article 9 of the UCC, including all commercial tort claims listed on Schedule 4.08 (as such Schedule may be amended or supplemented from time to time).

“Commodities Accounts” (i) means all “commodity accounts” as defined in Article 9 of the UCC and (ii) includes all of the accounts listed on Schedule 4.04 under the heading “Commodities Accounts” (as such Schedule may be amended or supplemented from time to time).

“Copyright Licenses” means any and all agreements providing for the granting of any right in or to Copyrights (whether such Grantor is licensee or licensor thereunder) including each agreement referred to in paragraph B of Schedule 4.07 (as such Schedule may be amended or supplemented from time to time).

“Copyrights” means all United States, and foreign copyrights (including community designs), including copyrights in software and databases, and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered, and, with respect to any and all of the foregoing: (i) all registrations and applications therefor including the registrations and applications referred to in paragraph (A) of Schedule 4.07 (as such Schedule may be amended or supplemented from time to time), (ii) all extensions and renewals thereof, (iii) all rights corresponding thereto throughout the world, (iv) all rights to sue for past, present and future infringements thereof, and (v) all Proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages and proceeds of suit.

“Credit Agreement” has the meaning set forth in the recitals.

“Deposit Account Control Agreement” means any agreement, in form and substance reasonably satisfactory to Administrative Agent, executed by a Grantor, Administrative Agent, and the applicable financial institution at which such Grantor maintains a Deposit Account.

“Deposit Accounts” (i) means all “deposit accounts” as defined in Article 9 of the UCC and (ii) includes all of the accounts listed on Schedule 4.04 under the heading “Deposit Accounts” (as such Schedule may be amended or supplemented from time to time).

“Documents” means all “documents” as defined in Article 9 of the UCC.

“Equipment” means (i) all “equipment” as defined in Article 9 of the UCC, (ii) all machinery, manufacturing equipment, data processing equipment, computers, office equipment, furnishings, furniture, appliances, fixtures and tools (in each case, regardless of whether characterized as equipment under the UCC) and (iii) all accessions or additions thereto, all parts thereof, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefor, wherever located, now or hereafter existing, including any fixtures.

“EWB” has the meaning set forth in the introductory paragraph.

2

“Excluded Property” means each lease, license, contract, property rights or agreement described (and to the extent provided for) in Section 2.02.

“General Intangibles” (i) means all “general intangibles” as defined in Article 9 of the UCC, including “payment intangibles” as also defined in Article 9 of the UCC and (ii) includes all interest rate or currency protection or hedging arrangements, all tax refunds, all licenses, permits, concessions and authorizations, all Assigned Agreements and all Intellectual Property (in each case, regardless of whether characterized as general intangibles under the UCC).

“Goods” (i) means all “goods” as defined in Article 9 of the UCC and (ii) includes all Inventory and Equipment (in each case, regardless of whether characterized as goods under the UCC).

“Grantor” and “Grantors” have the meanings set forth in the introductory paragraph.

“Instruments” means all “instruments” as defined in Article 9 of the UCC.

“Insurance” means (i) all insurance policies covering any or all of the Collateral (regardless of whether Administrative Agent is the loss payee thereof) and (ii) any key man life insurance policies.

“Intellectual Property” means, collectively, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.

“Inventory” means (i) all “inventory” as defined in Article 9 of the UCC and (ii) all goods held for sale or lease or to be furnished under contracts of service or so leased or furnished, all raw materials, work in process, finished goods, and materials used or consumed in the manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such inventory or otherwise used or consumed in any Grantor’s business; all goods in which any Grantor has an interest in mass or a joint or other interest or right of any kind; and all goods which are returned to or repossessed by any Grantor, all computer programs embedded in any goods and all accessions thereto and products thereof (in each case, regardless of whether characterized as inventory under the UCC).

“Investment Accounts” means the Securities Accounts, Commodities Accounts and Deposit Accounts.

“Investment Related Property” means (i) all “investment property” (as such term is defined in Article 9 of the UCC) and (ii) all of the following (regardless of whether classified as investment property under the UCC): all Pledged Equity Interests, Pledged Debt, Investment Accounts and certificates of deposit.

“Lenders” has the meaning set forth in the recitals.

“Letter of Credit Right” means a “letter-of-credit right” as defined in Article 9 of the UCC.

“Non-Assignable Contract” means any agreement, contract or license to which any Grantor is a party that by its terms purports to restrict or prevent the assignment or granting of a security interest therein or Lien thereon (either by its terms or by any federal, state, or foreign statutory prohibition or restriction or otherwise irrespective of whether such prohibition or restriction is enforceable under Section 9-406 through 9-409 of the UCC).

3

“Patent Licenses” means all agreements providing for the granting of any right in or to Patents (whether such Grantor is licensee or licensor thereunder) including each agreement referred to in paragraph (D) of Schedule 4.07 (as such Schedule may be amended or supplemented from time to time).

“Patents” means all United States and foreign patents and certificates of invention, or similar industrial property rights, and applications for any of the foregoing, including: (i) each patent and patent application referred to in paragraph (C) of Schedule 4.07 (as such Schedule may be amended or supplemented from time to time), (ii) all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and reexaminations thereof, (iii) all rights corresponding thereto throughout the world, (iv) all inventions and improvements described therein, (v) all rights to sue for past, present and future infringements thereof, (vi) all licenses, claims, damages, and proceeds of suit arising therefrom, and (vii) all Proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

“Pledged Debt” means all Indebtedness owed to such Grantor, including all Indebtedness described in paragraph (A) of Schedule 4.04 under the heading “Pledged Debt” (as such Schedule may be amended or supplemented from time to time), issued by the obligors named therein, the instruments evidencing such Indebtedness, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Indebtedness.

“Pledged Equity Interests” means all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests, Pledged Trust Interests, and Pledged Foreign Interests.

“Pledged Foreign Interests” means, with respect to any Grantor, all ownership interests in any Person (other than a U.S. Person) owned by such Grantor including all ownership interests listed in paragraph (A) of Schedule 4.04 under the heading “Pledged Foreign Interests” (as such Schedule may be amended or supplemented from time to time) and the certificates, if any, representing such ownership interests and any interest of such Grantor on the books and records of such Person or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, Securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such ownership interests. Notwithstanding the foregoing, in the case of the Capital Stock of a first-tier CFC Subsidiary, Pledged Foreign Interests shall be limited to 65% of the total outstanding voting Capital Stock (and 100% of the non-voting Capital Stock) if pledging more than 65% of the total outstanding voting Capital Stock (and 100% of the non-voting Capital Stock) of such CFC Subsidiary could result in an adverse tax liability to ultimate beneficial owners of Parent under Section 956 of the Internal Revenue Code (as determined by Administrative Agent in good faith and in consultation with the Borrower, and assuming that the CFC Subsidiary has positive earnings and profits).

“Pledged LLC Interests” means, with respect to any Grantor, all interests in any limited liability company that is a U.S. Person owned by such Grantor including all limited liability company interests listed in paragraph (A) of Schedule 4.04 under the heading “Pledged LLC Interests” (as such Schedule may be amended or supplemented from time to time) and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights (including, without limitation, management rights, voting rights, economic rights and any other rights conferred to a member in such limited liability company, in each case whether granted by the formation documents of such limited liability company or by operation of Law), options, instruments, Securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests.

4

“Pledged Partnership Interests” means, with respect to any Grantor, all interests in any general partnership, limited partnership, limited liability partnership or other partnership that is a U.S. Person owned by such Grantor including all partnership interests listed in paragraph (A) of Schedule 4.04 under the heading “Pledged Partnership Interests” (as such Schedule may be amended or supplemented from time to time) and the certificates, if any, representing such partnership interests and any interest of such Grantor on the books and records of such partnership or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights (whether granted by the formation documents of such partnership or by operation of Law), options, instruments, Securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests.

“Pledged Stock” means, with respect to any Grantor, all shares of capital stock issued by a U.S. Person owned by such Grantor, including all shares of capital stock described in paragraph (A) of Schedule 4.04 under the heading “Pledged Stock” (as such Schedule may be amended or supplemented from time to time), and the certificates, if any, representing such shares and any interest of such Grantor on the books and records of the issuer of such shares or on the books and records of any securities intermediary pertaining to such shares, and all dividends, distributions, cash, warrants, rights, options, instruments, Securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares.

“Pledged Trust Interests” means, with respect to any Grantor, all interests in a Delaware business trust or other trust that is a U.S. Person owned by such Grantor including all trust interests listed in paragraph (A) of Schedule 4.04 under the heading “Pledged Trust Interests” (as such Schedule may be amended or supplemented from time to time) and the certificates, if any, representing such trust interests and any interest of such Grantor on the books and records of such trust or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, Securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such trust interests.

“Proceeds” means (i) all “proceeds” as defined in Article 9 of the UCC, (ii) all payments or distributions made with respect to any Investment Related Property and (iii) whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary.

“Receivables” means all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property, together with all of Grantor’s rights, if any, in any goods or other property giving rise to such right to payment and all Collateral Support and Supporting Obligations related thereto and all Receivables Records.

5

“Receivables Records” means (i) all original copies of all documents, instruments or other writings or electronic records or other Records evidencing the Receivables, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Receivables, including all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Receivables, whether in the possession or under the control of Grantor or any computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or secured parties, and certificates, acknowledgments, or other writings, including lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto and (v) all other written or non-written forms of information related in any way to the foregoing or any Receivable.

“Record” as defined in Article 9 of the UCC.

“Secured Obligations” as defined in Section 3.01.

“Secured Parties” means Administrative Agent, the Lenders, Issuing Bank, the Hedging Banks, and/or the Treasury Management Banks, as the context may require.

“Securities Account Control Agreement” means any agreement, in form and substance reasonably satisfactory to Administrative Agent, executed by a Grantor, Administrative Agent, and the applicable financial institution at which such Grantor maintains a Securities Account.

“Securities Accounts” (i) means all “securities accounts” as defined in Article 8 of the UCC and (ii) includes all of the accounts listed in paragraph (A) of Schedule 4.04 under the heading “Securities Accounts” (as such Schedule may be amended or supplemented from time to time).

“Securities Act” means the Securities Act of 1933, as amended.

“Supplement” means any supplement to this Agreement in substantially the form of Exhibit A.

“Supporting Obligation” means all “supporting obligations” as defined in Article 9 of the UCC.

“Trademark Licenses” means any and all agreements providing for the granting of any right in or to Trademarks (whether such Grantor is licensee or licensor thereunder) including each agreement referred to in paragraph (F) of Schedule 4.07 (as such Schedule may be amended or supplemented from time to time).

“Trademarks” means all United States and foreign trademarks, trade names, corporate names, company names, business names, fictitious business names, Internet domain names, service marks, certification marks, collective marks, logos, other source or business identifiers, designs and general intangibles of a like nature, all registrations and applications for any of the foregoing including: (i) the registrations and applications referred to in paragraph (E) of Schedule 4.07 (as such Schedule may be amended or supplemented from time to time), (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by the foregoing, (iv) the right to sue for past, present and future infringement or dilution of any of the foregoing or for any injury to goodwill, and (v) all Proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

6

“Trade Secret Licenses” means any and all agreements providing for the granting of any right in or to Trade Secrets (whether such Grantor is licensee or licensor thereunder) including each agreement referred to in paragraph (G) of Schedule 4.07 (as such Schedule may be amended or supplemented from time to time).

“Trade Secrets” means, collectively, each trade secret and all other confidential or proprietary information and know-how whether or not such Trade Secret has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating, or referring in any way to such Trade Secret, including: (i) the right to sue for past, present and future misappropriation or other violation of any Trade Secret, and (ii) all Proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or, when the context implies, the Uniform Commercial Code as in effect from time to time in any other applicable jurisdiction.

“United States” means the United States of America.

1.02       Interpretation. All capitalized terms used herein (including the introductory paragraph and recitals hereto) and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement or, if not defined therein, in the UCC. All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC. If any conflict or inconsistency exists between this Agreement and the Credit Agreement, the Credit Agreement shall govern. References herein to any Section, Schedule or Exhibit shall be to a Section, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. The use herein of the word “include” or “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as it was originally executed or as it may from time to time be amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in the Credit Agreement), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of similar import shall be construed to refer to this Agreement as a whole and not to any particular provision hereof, (iv) any reference to any Law or regulation herein shall, unless otherwise specified, refer to such Law or regulation as amended, modified, supplemented or superseded from time to time and (v) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

7

SECTION 2       GRANT OF SECURITY

2.01       Grant of Security. Each Grantor hereby grants to Administrative Agent (for itself and for the benefit of the Secured Parties) a security interest in and continuing lien on all of such Grantor’s right, title and interest in, to and under all personal property of such Grantor including the following, in each case whether now owned or existing or hereafter acquired or arising and wherever located (all of which being hereinafter collectively referred to as the “Collateral”):

(a)          Accounts;

(b)          Chattel Paper;

(c)          Documents;

(d)          General Intangibles;

(e)          Goods;

(f)           Instruments;

(g)          Insurance;

(h)          Intellectual Property;

(i)           Investment Related Property;

(j)           Letter-of-Credit Rights;

(k)          Moneys, Cash, and Cash Equivalents;

(l)           Receivables and Receivable Records;

(m)         Commercial Tort Claims;

(n)          to the maximum extent permitted by Law, all rights of Grantor under or relating to any FCC License and/or PUC License and all Proceeds derived from the sale, assignment or lease of or the transfer of control over any FCC License and/or any PUC License;

(o)          to the extent not otherwise included above, all Collateral Records, Collateral Support and Supporting Obligations relating to any of the foregoing; and

(p)          to the extent not otherwise included above, all Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing;

provided that in no event shall the Collateral include any Excluded Property.

8

2.02       Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest or Lien granted under Section 2.01 attach to any lease, license, permit, contract, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest or Lien (a) is prohibited by Law or (b) shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, permit, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable Law (including the Bankruptcy Code) or principles of equity); provided that the Collateral shall include and such security interest or Lien shall attach immediately at such time as the condition causing such illegality, abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, permit, contract, property rights or agreement that does not result in any of the consequences specified in clause (a) or (b) above. Notwithstanding the foregoing, the Collateral shall include any Proceeds, substitutions or replacements of any of the property described above (unless such Proceeds, substitutions or replacements would constitute property described above).

2.03       FCC and PUC Licenses. Notwithstanding anything to the contrary herein, to the extent this Agreement or any other Loan Document purports to grant or to require any Grantor to grant to Administrative Agent a security interest in any FCC License and/or any PUC License, Administrative Agent shall only have a security interest in such FCC License and/or PUC License at such times and to the extent that a security interest in such FCC License and/or PUC License is permitted under applicable Law, including the Communications Law. Grantor agrees that Administrative Agent shall have a security interest in the right to receive all Proceeds derived or arising from the sale, assignment, transfer, lease or transfer of control over such FCC License or PUC License. The security interest granted in Proceeds of such FCC License and/or PUC License is intended to include, and hereby includes, all private (including economic) attributes of the FCC Licenses and/or PUC Licenses, but does not include the “public” rights to assign the FCC License or PUC License which are reserved to the FCC and/or applicable PUC where required by applicable Law. If at any time in the futurer the Communications Law permits any Grantor to grant a security interest in any FCC License and/or PUC License, this Agreement shall be deemed to grant a security interest in such FCC License and/or PUC License immediately thereupon without any further action by or notice to any Grantor, Administrative Agent or any Lender or other Loan Party. In furtherance of the foregoing, each Grantor agrees to cooperate fully and take all steps necessary to perfect such security interest as may be required by Administrative Agent.

SECTION 3       SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE

3.01       Security for Obligations. This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code (and any successor or similar provision or Law thereof)), of (a) all Obligations with respect to every Loan Party; (b) any and all sums incurred or advanced by Administrative Agent in order to preserve the Collateral or preserve its security interest in and Lien on the Collateral; and (c) in the event of any proceeding for the collection or enforcement of any indebtedness, obligations or liabilities of each Loan Party referred to in preceding clause (a) after an Event of Default shall have occurred and be continuing, the expenses of re-taking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by Administrative Agent of its rights hereunder, together with Attorney Costs and court costs (collectively, the “Secured Obligations”). It is acknowledged and agreed that Secured Obligations shall include obligations and liabilities of the types described above, whether outstanding on the date of this Agreement or extended, from time to time, after the date of this Agreement.

9

3.02       Continuing Liability Under Collateral. Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all obligations under the Collateral and nothing contained herein is intended or shall be a delegation of duties to Administrative Agent or any Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral, including any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither Administrative Agent nor any Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto nor shall Administrative Agent nor any Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, and (iii) the exercise by Administrative Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.

SECTION 4       REPRESENTATIONS AND WARRANTIES AND COVENANTS

4.01       Generally.

(a)          Representations and Warranties. In order to induce Administrative Agent to enter into this Agreement, each Grantor represents and warrants to Administrative Agent that the following statements are true, correct and complete:

(i)         it owns the Collateral purported to be owned by it or otherwise has the rights it purports to have in each item of Collateral and, as to all Collateral whether now existing or hereafter acquired, will continue to own (unless otherwise permitted by the Credit Agreement) or have such rights in each item of the Collateral, in each case free and clear of any and all Liens other than Permitted Liens;

(ii)        it has indicated in paragraph (A) of Schedule 4.01: (w) the type of organization of such Grantor; (x) the jurisdiction of organization of such Grantor; (y) its organizational identification number, if any; and (z) the jurisdiction where its chief executive office or its sole place of business is, and for the one-year period preceding the date hereof has been, located;

(iii)       the full legal name of such Grantor is as set forth in paragraph (A) of Schedule 4.01 and it has not done in the last five (5) years, and does not do, business under any other name (including any trade-name or fictitious business name) except for those names set forth in paragraph (B) of Schedule 4.01;

(iv)      except as provided in paragraph (C) of Schedule 4.01, it has not changed its name, jurisdiction of organization, chief executive office or principal place of business or its organizational structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) within the past five (5) years;

10

(v)        it has not within the last five (5) years become bound (whether as a result of merger or otherwise) as debtor under a security agreement entered into by another Person, which has not heretofore or concurrently herewith been terminated other than in connection with the Praesidian Facility or the agreements identified in paragraph (D) of Schedule 4.01;

(vi)       with respect to each agreement identified on Schedule 4.01(D), it has indicated in paragraph (A) and (B) of Schedules 4.01 the information required pursuant to Sections 4.01(a)(ii), 4.01(a)(iii) and 4.01(a)(iv) with respect to the debtor under each such agreement;

(vii)      (A) upon the filing of all UCC financing statements naming each Grantor as “debtor” and Administrative Agent as “secured party” and describing the Collateral in the filing offices set forth opposite such Grantor’s name in paragraph (E) of Schedule 4.01 and other filings delivered by each Grantor, (B) upon delivery (together with any necessary endorsement or instrument of transfer) of all Instruments, Chattel Paper consisting of tangible chattel paper and certificated Pledged Equity Interests and Pledged Debt, (C) upon sufficient identification of Commercial Tort Claims, (D) upon execution of a control agreement establishing Administrative Agent’s “control” (within the meaning of Section 8-106, 9-106 or 9-104 of the UCC, as applicable) with respect to any Investment Account or Deposit Account, (E) upon establishing Administrative Agent’s “control” (within the meaning of Section 9-105 of the UCC) with respect to any electronic chattel paper, (F) upon consent of the issuer with respect to Letter-of-Credit Rights, and (G) to the extent not subject to Article 9 of the UCC, upon recordation of the security interests and Liens granted hereunder in Patents, Trademarks and Copyrights in the applicable intellectual property registries, including the United States Patent and Trademark Office and the United States Copyright Office, the security interests and Liens granted to Administrative Agent hereunder shall constitute valid and perfected First Priority Liens on all of the Collateral in which a security interest or Lien can be created under Article 9 of the UCC;

(viii)     all actions and consents, including all filings, notices, registrations and recordings necessary or reasonably requested by Administrative Agent for the exercise by Administrative Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect of the Collateral have been made or obtained, except as may be required (A) in connection with the disposition of any Investment Related Property, by Laws generally affecting the offering and sale of Securities and (B) under the Communications Law;

(ix)       other than the financing statements filed in favor of Administrative Agent, no effective UCC financing statement, fixture filing or other instrument similar in effect under any applicable Law covering all or any part of the Collateral is on file in any filing or recording office except for (x) financing statements for which proper termination statements have been delivered to Administrative Agent for filing and (y) financing statements, fixture filings or other instruments filed in connection with Permitted Liens;

(x)        no authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for either (x) the pledge or grant by any Grantor of the Liens purported to be created in favor of Administrative Agent hereunder or (y) the exercise by Administrative Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created hereunder or created or provided for by applicable Law), except (A) for the filings contemplated by clause (vii) above, (B) as may be required, in connection with the disposition of any Collateral, by Laws generally affecting the offering and sale of Securities, (C) as may be required with respect to the exercise by Administrative Agent of any rights or remedies in respect of any Collateral under any Communications Law and (D) that have been obtained prior to the Closing;

11

(xi)       all written information supplied by any Grantor with respect to any of the Collateral (in each case taken as a whole with respect to any particular Collateral) is accurate and complete in all material respects;

(xii)      none of the Collateral constitutes, or is the Proceeds of (i) “farm products” (as defined in the UCC) or (ii) “health care receivables” (as defined in the UCC);

(xiii)     it does not own any “as extracted collateral” (as defined in the UCC) or any timber to be cut;

(xiv)     except in connection with the Praesidian Facility or as described in paragraph (D) of Schedule 4.01, such Grantor has not become bound as a debtor, either by contract or by operation of Law, by a security agreement previously entered into by another Person, which has not heretofore or concurrently herewith been terminated; and

(xv)      such Grantor has been duly organized as an entity of the type as set forth opposite such Grantor’s name in paragraph (A) of Schedule 4.01 solely under the Laws of the jurisdiction as set forth opposite such Grantor’s name in paragraph (A) of Schedule 4.01 and remains duly existing as such. Such Grantor has not filed any certificates of domestication, transfer or continuance, or similar document in any other jurisdiction.

(b)          Covenants and Agreements. Each Grantor covenants and agrees that it shall perform all covenants in this Section 4.01(b).

(i)         Except for the security interest and Lien created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein other than Permitted Liens.

(ii)        It shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral.

(iii)       Except as permitted by the Credit Agreement, it shall not change such Grantor’s name, identity, organizational structure (e.g., by merger, consolidation, change in corporate form or otherwise), principal place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (x) notified Administrative Agent in writing, by executing and delivering to Administrative Agent a completed Supplement, together with all Supplements to Schedules thereto, at least thirty (30) days (or such shorter period as may be acceptable to Administrative Agent) prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, principal place of business, chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as Administrative Agent may reasonably request and (y) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of Administrative Agent’s security interest in and Lien on the Collateral intended to be granted and agreed to hereby.

12

(iv)       If Administrative Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein.

(v)        Upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify Administrative Agent in writing of any event that is reasonably likely to have a Material Adverse Effect on the value of the Collateral or any portion thereof, the ability of any Grantor or Administrative Agent to dispose of the Collateral or any portion thereof, or the rights and remedies of Administrative Agent in relation thereto, including the levy of any legal process against the Collateral or any portion thereof.

(vi)       Except as permitted by the Credit Agreement, it shall not take or permit any action which could impair Administrative Agent’s rights in the Collateral.

(vii)      It shall not sell, transfer or assign (by operation of Law or otherwise) any Collateral except as otherwise in accordance with the Credit Agreement.

4.02       Equipment and Inventory.

(a)          Representations and Warranties. Each Grantor represents and warrants to Administrative Agent that none of the Inventory or Equipment is in the possession of an issuer of a negotiable document (as defined in Section 7-104 of the UCC) therefor or otherwise in the possession of a bailee or a warehouseman.

(b)          Covenants and Agreements. Each Grantor covenants and agrees that it shall perform all covenants in this Section 4.02(b).

(i)         It shall keep correct and accurate records of the Inventory, as is customarily maintained under similar circumstances by Persons of established reputation engaged in similar business, and in any event in conformity with GAAP.

(ii)        It shall not deliver any Document evidencing any Equipment and Inventory to any Person other than the issuer of such Document to claim the Goods evidenced therefor or Administrative Agent.

(iii)       If any Equipment or Inventory (other than Equipment or Inventory located at a colocation facility) with a value in excess of $50,000 individually or $100,000 in the aggregate is in possession or control of any third party, each Grantor shall join with Administrative Agent in notifying the third party of Administrative Agent’s security interest and Lien and using commercially reasonable efforts to obtain an acknowledgment from the third party that it is holding the Equipment and Inventory for the benefit of Administrative Agent.

13

4.03       Receivables.

(a)          Representations and Warranties. In order to induce Administrative Agent to enter into this Agreement, each Grantor represents and warrants to Administrative Agent that the following statements are true, correct and complete:

(i)         each Receivable, to such Grantor’s knowledge, (A) is the legal, valid and binding obligation of the Account Debtor in respect thereof, representing an unsatisfied obligation of such Account Debtor, (B) is enforceable in accordance with its terms (except as such enforceability may be limited by applicable Debtor Relief Laws and by general principles of equity), (C) is not subject to any setoffs, defenses, taxes, counterclaims (except with respect to refunds, returns and allowances in the ordinary course of business) and (D) is in compliance in all material respects with all applicable Laws, whether federal, state, local or foreign;

(ii)        except as set forth on Schedule 4.03, none of the Account Debtors in respect of any Receivable is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign. No Receivable requires the consent of the Account Debtor in respect thereof in connection with the pledge hereunder, except any consent which has been obtained; and

(iii)       no Receivable is evidenced by, or constitutes, an Instrument or Chattel Paper which has not been delivered to, or otherwise subjected to the control of, Administrative Agent to the extent required by, and in accordance with Section 4.03(c).

(b)          Covenants and Agreements. Each Grantor covenants and agrees that it shall perform all covenants in this Section 4.03(b).

(i)         It shall keep and maintain at its own cost and expense correct and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other material dealings therewith.

(ii)        It shall mark conspicuously, in form and manner reasonably satisfactory to Administrative Agent, all Chattel Paper and Instruments (other than any delivered to Administrative Agent as provided herein) with an appropriate reference to the fact that Administrative Agent has a security interest therein and Lien thereon.

(iii)       It shall perform in all material respects all of its obligations with respect to the Receivables.

(iv)       It shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, following and during the continuance of an Event of Default, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon.

14

(v)        Except as otherwise provided in this subsection, each Grantor shall continue to (A) use its commercially reasonable efforts to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and (B) diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or Administrative Agent may deem reasonably necessary or advisable. If an Event of Default has occurred and is continuing, Administrative Agent shall have the right at any time to: (1) notify, or require any Grantor to notify, any Account Debtor of Administrative Agent’s security interest in and Lien on the Receivables and any Supporting Obligation; (2) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Administrative Agent; (3) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Administrative Agent; and (4) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Administrative Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Administrative Agent if required, in a Deposit Account subject to a Deposit Account Control Agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Administrative Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.

(vi)       It shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.

(c)          Delivery and Control of Receivables. With respect to any Receivables in excess of $50,000 individually or $100,000 in the aggregate that is evidenced by, or constitutes, Chattel Paper or Instruments, each Grantor shall cause each originally executed copy thereof to be delivered to Administrative Agent (or its agent or designee) appropriately indorsed to Administrative Agent or indorsed in blank: (i) with respect to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within ten (10) Business Days of such Grantor acquiring rights therein. With respect to any Receivables in excess of $50,000 individually or $100,000 in the aggregate which would constitute “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give Administrative Agent control over such Receivables (within the meaning of Section 9-105 of the UCC): (i) with respect to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within ten (10) Business Days of such Grantor acquiring rights therein. If an Event of Default has occurred and is continuing, any Receivable not otherwise required to be delivered or subjected to the control of Administrative Agent in accordance with this paragraph (c) shall be delivered or subjected to such control upon the written request of Administrative Agent.

15

4.04       Investment Related Property.

(a)          Investment Related Property Generally.

(i)         Covenants and Agreements. Each Grantor covenants and agrees that it shall perform all covenants in this Section 4.04(a)(i).

(1)        In the event it acquires rights in any Investment Related Property after the date hereof, it shall promptly (and in any event not later than ten (10) Business Days after acquisition) deliver to Administrative Agent a completed Supplement, together with all Supplements to Schedules thereto, reflecting such new Investment Related Property and all other Investment Related Property (other than any Investment Property (other than Pledged Equity Interests) which is credited to a Securities Account). Notwithstanding the foregoing, it is understood and agreed that the security interest and Lien of Administrative Agent shall attach to all Investment Related Property immediately upon any Grantor’s acquisition of rights therein and shall not be affected by the failure of any Grantor to deliver a supplement to Schedule 4.04 as required hereby.

(2)        Except as provided in the next sentence, in the event such Grantor receives any dividends, interest or distributions on any Investment Related Property, or any securities or other property upon the merger, consolidation, liquidation or dissolution of any issuer of any Investment Related Property, then (x) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without further action and (y) such Grantor shall promptly take all steps, if any, necessary or advisable to ensure the validity, perfection, priority and, if applicable, control of Administrative Agent over such Investment Related Property (including delivery thereof to Administrative Agent) and pending any such action such Grantor shall be deemed to hold such dividends, interest, distributions, securities or other property in trust for the benefit of Administrative Agent and shall segregate such dividends, distributions, Securities or other property from all other property of such Grantor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, Administrative Agent authorizes each Grantor to retain all ordinary cash dividends and distributions paid in the normal course of the business of the issuer and consistent with the past practice of the issuer and all scheduled payments of interest.

(3)        Each Grantor consents to the grant by each other Grantor of a security interest in and Lien on all Investment Related Property to Administrative Agent.

(ii)        Delivery and Control.

(1)        Each Grantor agrees that with respect to any Investment Related Property in which it currently has rights it shall comply with the provisions of this Section 4.04(a)(ii)(1) on or before the Closing Date and with respect to any Investment Related Property hereafter acquired by such Grantor it shall comply with the provisions of this Section 4.04(a)(ii)(1) promptly (and in any event no later than ten (10) Business Days after acquisition thereof) upon acquiring rights therein, in each case in form and substance satisfactory to Administrative Agent. With respect to any Investment Related Property that is represented by a certificate or that is an “instrument” (other than any Investment Related Property credited to a Securities Account) it shall cause such certificate or instrument to be delivered to Administrative Agent, indorsed in blank by an “effective indorsement” (as defined in Section 8-107 of the UCC), regardless of whether such certificate constitutes a “certificated security” for purposes of the UCC.

16

(2)        With respect to any Investment Related Property that is an “uncertificated security” for purposes of the UCC (other than any “uncertificated securities” credited to a Securities Account), it shall cause the issuer of such uncertificated security to either (x) register Administrative Agent as the registered owner thereof on the books and records of the issuer or (y) execute an agreement in form and substance reasonably satisfactory to Administrative Agent, pursuant to which such issuer agrees to comply with Administrative Agent’s instructions with respect to such uncertificated security without further consent by such Grantor.

(iii)       Voting and Distributions.

(1)        So long as no Event of Default shall have occurred and be continuing:

(A)       except as otherwise provided under the covenants and agreements relating to Investment Related Property expressly set forth herein or in the Credit Agreement, each Grantor shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Investment Related Property or any part thereof for any purpose not inconsistent with the terms of this Agreement or the Credit Agreement; and

(B)       Administrative Agent shall promptly execute and deliver (or cause to be executed and delivered) to each Grantor all proxies, and other instruments as such Grantor may from time to time reasonably request for the purpose of enabling such Grantor to exercise the voting and other consensual rights when and to the extent which it is entitled to exercise pursuant to clause (1) above;

(2)        Upon the occurrence and during the continuation of an Event of Default:

(A)       all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in Administrative Agent who shall thereupon have the sole right to exercise such voting and other consensual rights; and

(B)       in order to permit Administrative Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder: (A) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to Administrative Agent all proxies, dividend payment orders and other instruments as Administrative Agent may from time to time reasonably request and (B) each Grantor acknowledges that Administrative Agent may utilize the power of attorney set forth in Section 6.01.

17

(b)          Pledged Equity Interests.

(i)         Representations and Warranties. In order to induce Administrative Agent to enter into this Agreement, each Grantor represents and warrants to Administrative Agent that the following statements are true, correct and complete:

(1)        Paragraph (A) of Schedule 4.04 sets forth under the headings “Pledged Stock”, “Pledged LLC Interests”, “Pledged Partnership Interests”, “Pledged Trust Interests”, and “Pledged Foreign Interests”, respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests, Pledged Trust Interests, and Pledged Foreign Interests owned by any Grantor and such Pledged Equity Interests constitute the percentage of issued and outstanding shares of stock, percentage of membership interests, percentage of partnership interests, percentage of beneficial interests, or percentage of ownership interests of the respective issuers thereof indicated on such Schedule;

(2)        except as set forth in paragraph (B) of Schedule 4.04, it has not acquired any equity interests of another entity or substantially all the assets of another entity within the past five (5) years;

(3)        it is the record and beneficial owner of the Pledged Equity Interests free of all Liens, rights or claims of other Persons other than Permitted Liens and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interests;

(4)        without limiting the generality of Section 4.01(a)(viii), no consent of any Person including any other general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary in connection with the creation, perfection or First Priority status of Administrative Agent’s security interest in and Lien on any Pledged Equity Interests or the exercise by Administrative Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect thereof, except in the exercise by Administrative Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created hereunder or created or provided for by applicable Law), as may be required (A) in connection with the disposition of any Investment Related Property, by Laws generally affecting the offering and sale of Securities and (B) under the Communications Law; and

(5)        none of the Pledged LLC Interests nor Pledged Partnership Interests are or represent interests in issuers that (x) are registered as investment companies under the Investment Company Act of 1940 or (y) are dealt in or traded on securities exchanges or markets; and

(ii)        Covenants and Agreements. Each Grantor covenants and agrees that it shall perform all covenants in this Section 4.04(b)(ii).

18

(1)        except as otherwise permitted herein or by the Credit Agreement, without the prior written consent of Administrative Agent, it shall not vote to enable any issuer of any Pledged Equity Interest or take any other action to: (v) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that changes in a material adverse manner the rights of such Grantor with respect to any Investment Related Property or affects in a material adverse manner the validity, perfection or priority of Administrative Agent’s security interest or Lien, (w) permit any issuer of any Pledged Equity Interest to issue any additional stock, partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such issuer unless the same are pledged to Administrative Agent, (x) permit any issuer of any Pledged Equity Interest to dispose of all or a material portion of its assets, (y) waive any default under or breach of any terms of organizational document relating to the issuer of any Pledged Equity Interest or the terms of any Pledged Debt, or (z) cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC; provided that notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such action described in this clause (z), such Grantor shall promptly notify Administrative Agent in writing of any such election or action and, in such event, shall take all steps necessary or advisable to establish Administrative Agent’s “control” thereof;

(2)        it shall comply with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall to the extent commercially reasonable enforce all of its rights with respect to any Investment Related Property;

(3)        except as permitted by the Credit Agreement, without the prior written consent of Administrative Agent, it shall not permit any issuer of any Pledged Equity Interest which is a Subsidiary to merge or consolidate unless (x) such issuer creates a security interest or Lien that is perfected by a filed financing statement (that is not effective solely under Section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, and (y) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests to Parent or any Subsidiary which is not a Guarantor; and

(4)        each Grantor consents to the grant by each other Grantor of a security interest in and Lien on all Investment Related Property to Administrative Agent and, without limiting the foregoing, consents to, after an Event of Default has occurred and is continuing, the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to Administrative Agent or its nominee and to the substitution of Administrative Agent or its nominee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto.

(c)          Pledged Debt.

(i)         Representations and Warranties. Each Grantor represents and warrants to Administrative Agent that Schedule 4.04 sets forth under the heading “Pledged Debt” all of the Pledged Debt having a face amount in excess of $50,000 individually or $100,000 in the aggregate owned by any Grantor as of the date indicated therein and, to the knowledge of such Grantor, all of such Pledged Debt has been duly authorized, authenticated or issued, and delivered and is the legal, valid and binding obligation of the issuers thereof and is not in default and constitutes all of the issued and outstanding intercompany Indebtedness.

19

(ii)        Covenants and Agreements. Each Grantor covenants and agrees that it shall notify Administrative Agent of any default under any Pledged Debt that has caused, either in any individual case or in the aggregate, a Material Adverse Effect. Notwithstanding anything to the contrary set forth herein, it is agreed that the Grantors shall only be required to comply with the delivery and control requirements specified in Section 4.04(a)(ii) with respect to Pledged Debt having a face amount in excess of $50,000 individually or $100,000 in the aggregate.

(d)          Investment Accounts.

(i)        Representations and Warranties. In order to induce Administrative Agent to enter into this Agreement, each Grantor represents and warrants to Administrative Agent that the following statements are true, correct and complete:

(1)        Schedule 4.04 sets forth under the headings “Securities Accounts” and “Commodities Accounts” respectively, all of the Securities Accounts and Commodities Accounts in which such Grantor has an interest; provided that, such Securities Accounts are established with a U.S. securities intermediary and such Commodities Accounts are carried by a U.S. commodity intermediary. Such Grantor is the sole entitlement holder of each such Securities Account and Commodity Account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other than Administrative Agent) having “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over, or any other interest in, any such Securities Account or Commodity Account or securities or other property credited thereto;

(2)        Schedule 4.04 sets forth under the headings “Deposit Accounts” all of the Deposit Accounts in which such Grantor has an interest; provided that, such Deposit Account is maintained with a U.S. bank. Such Grantor is the sole account holder of each such Deposit Account and such Grantor has not consented to, and is not otherwise aware of, any Person (other than Administrative Agent) having either sole dominion and control (within the meaning of common Law) or “control” (within the meaning of Section 9-104 of the UCC) over, or any other interest in, any such Deposit Account or any money or other property deposited therein; and

(3)        To the extent required by this Agreement, such Grantor has taken all actions necessary or desirable, including those specified in Section 4.04(d)(iii), to: (x) establish Administrative Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Related Property constituting Certificated Securities and Uncertificated Securities owned on the Closing Date; and (y) deliver all Instruments owned on the Closing Date to Administrative Agent.

(ii)        Covenant and Agreement. Each Grantor covenants and agrees that within the time periods provided in the Credit Agreement, it shall take all actions necessary or desirable, including those specified in Section 4.04(d)(iii), to: (w) establish Administrative Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Related Property constituting Certificated Securities and Uncertificated Securities acquired after the Closing Date; (x) establish Administrative Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Related Property constituting Securities Accounts, Securities Entitlements or Commodities Accounts (each as defined in the UCC) having amounts on deposit in excess of $50,000 individually or $100,000 in the aggregate; (y) establish Administrative Agent’s “control” (within the meaning of Section 9-104 of the UCC) over all Deposit Accounts (other than Deposit Accounts (1) having amounts on deposit in an amount in excess of $50,000 individually or $100,000 in the aggregate, or (2) specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for any Grantor’s employees); and (z) deliver all Instruments in a principal amount in excess of $50,000 individually or $100,000 in the aggregate that are acquired after the Closing Date to Administrative Agent.

20

(iii)       Delivery and Control.

(1)        With respect to any Investment Related Property consisting of Securities Accounts or Securities Entitlements having amounts on deposit in excess of $50,000 individually or $100,000 in the aggregate, within the time periods provided by the Credit Agreement, it shall cause the securities intermediary maintaining such Securities Account or Securities Entitlement to enter into a Securities Account Control Agreement pursuant to which it shall agree to, among other things, comply with Administrative Agent’s “entitlement orders” without further consent by such Grantor. With respect to any Investment Related Property that is a “Deposit Account” (other than Deposit Accounts (1) having amounts on deposit in an amount in excess of $50,000 individually or $100,000 in the aggregate, or (2) specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for any Grantor’s employees), it shall cause the depositary institution maintaining such account to enter into a Deposit Account Control Agreement, pursuant to which Administrative Agent shall have control (within the meaning of Section 9-104 of the UCC) over such Deposit Account. Each Grantor shall enter into such control agreement or agreements with respect to: (x) any Securities Accounts, Securities Entitlements or Deposit Accounts having amounts on deposit in excess of $50,000 individually or $100,000 in the aggregate that exist on the Closing Date, within the time periods provided in the Credit Agreement, and (y) any Securities Accounts or Securities Entitlements having amounts on deposit in excess of $50,000 individually or $100,000 in the aggregate or Deposit Accounts (other than Deposit Accounts (1) having amounts on deposit in an amount in excess of $50,000 individually or $100,000 in the aggregate, or (2) specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for any Grantor’s employees) that are created or acquired after the Closing Date, as of or prior to the deposit or transfer of any such Securities Entitlements or funds, whether constituting moneys or investments, into such Securities Accounts or Deposit Accounts.

(2)        If any issuer of any Investment Related Property is located in a jurisdiction outside of the United States, each Grantor shall take such additional actions, including causing the issuer to register the pledge on its books and records or making such filings or recordings, in each case as may be necessary or advisable, under the Laws of such issuer’s jurisdiction to insure the validity, perfection and priority of the security interest and Lien of Administrative Agent. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent shall have the right, without notice to any Grantor, to transfer all or any portion of the Investment Related Property to its name or the name of its nominee or agent. In addition, Administrative Agent shall have the right at any time, without notice to any Grantor, to exchange any certificates or instruments representing any Investment Related Property for certificates or instruments of smaller or larger denominations.

21

4.05       Material Contracts.

(a)          Representations and Warranties. In order to induce Administrative Agent to enter into this Agreement, each Grantor represents and warrants to Administrative Agent that the following statements are true, correct and complete:

(i)         Schedule 4.05 of this Agreement sets forth all of the Material Contracts to which such Grantor has rights; and

(ii)        the Material Contracts, true and complete copies (including any amendments or supplements thereof) of which have been furnished or made available to Administrative Agent, have been duly authorized, executed and delivered by such Grantor and, to such Grantor’s knowledge, all other parties thereto, are in full force and effect and are binding upon and enforceable against such Grantor, and to such Grantor’s knowledge, all other parties thereto in accordance with their respective terms.

(b)          Covenant and Agreement. Each Grantor covenants and agrees that after the occurrence and during the continuance of an Event of Default, Administrative Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under the Material Contracts directly to Administrative Agent.

4.06       Letter-of-Credit Rights.

(a)          Representations and Warranties. In order to induce Administrative Agent to enter into this Agreement, each Grantor represents and warrants to Administrative Agent that the following statements are true, correct and complete:

(i)         all letters of credit with a face amount in excess of $100,000 to which such Grantor has rights are listed on Schedule 4.06; and

(ii)        it has obtained the consent of each issuer of any letter of credit with a face amount in excess of $100,000 to the assignment of the proceeds of the letter of credit to Administrative Agent.

(b)          Covenants and Agreements. Each Grantor covenants and agrees that with respect to any letter of credit with a face amount in excess of $100,000 hereafter arising, it shall obtain the consent of the issuer thereof to the assignment of the proceeds of the letter of credit to Administrative Agent and shall deliver to Administrative Agent a completed Supplement, together with all Supplements to Schedules thereto.

4.07       Intellectual Property.

(a)          Representations and Warranties. In order to induce Administrative Agent to enter into this Agreement, each Grantor hereby represents and warrants to Administrative Agent that the following statements are true, correct and complete (except as disclosed in paragraph H of Schedule 4.07):

22

(i)         Schedule 4.07 sets forth a true and complete list of (x) all United States, state and foreign registrations of and applications for Patents, Trademarks, and Copyrights owned by each Grantor and (y) all Patent Licenses, Trademark Licenses, Trade Secret Licenses and Copyright Licenses, in each case, material to the business of such Grantor;

(ii)        it is the sole and exclusive owner of the entire right, title, and interest in and to, or has the valid right to use, all Intellectual Property listed on Schedule 4.07, and owns or has the valid right to use all other Intellectual Property used in or necessary to conduct its business, free and clear of all Liens, claims, encumbrances and licenses, except for Permitted Liens and the licenses set forth in paragraphs (B), (D), (F) and (G) of Schedule 4.07 and except to the extent the failure to have such rights could not reasonably be expected to have a Material Adverse Effect;

(iii)       all Intellectual Property set forth on Schedule 4.07 is subsisting and has not been adjudged invalid or unenforceable, in whole or in part, and each Grantor has performed all acts and has paid all renewal, maintenance, and other fees and taxes required to maintain each and every registration and application of Copyrights, Patents and Trademarks in full force and effect;

(iv)       except to the extent that could not reasonably be expected to have a Material Adverse Effect, all Intellectual Property set forth on Schedule 4.07 is valid and enforceable; no holding, decision, or judgment has been rendered in any action or proceeding before any court or administrative authority challenging the validity of, such Grantor’s right to register, or such Grantor’s rights to own or use, any such Intellectual Property and no such action or proceeding is pending or, to the best of such Grantor’s knowledge, threatened;

(v)        all registrations and applications for Copyrights, Patents and Trademarks set forth on Schedule 4.07 are standing in the name of the specified Grantor, and none of the Trademarks, Patents, Copyrights or Trade Secrets set forth on Schedule 4.07 has been licensed by any Grantor to any Affiliate or third party, except as disclosed in paragraphs (B), (D), (F) and (G) of Schedule 4.07;

(vi)       it has been using appropriate statutory notice of registration in connection with its use of registered Trademarks, proper marking practices in connection with the use of Patents, and appropriate notice of copyright in connection with the publication of Copyrights, in each case material to the business of such Grantor;

(vii)      it uses adequate standards of quality in the provision of all services rendered under or in connection with all material Trademark Collateral and has taken all action necessary to insure that all licensees of the material Trademark Collateral owned by such Grantor use such adequate standards of quality;

(viii)     to the knowledge of such Grantor, the conduct of such Grantor’s business does not infringe upon or otherwise violate any trademark, patent, copyright, trade secret or other intellectual property right owned or controlled by a third party; no claim has been made that the use of any Intellectual Property owned or used by Grantor (or any of its respective licensees) violates the asserted rights of any third party, except for such infringement, violation or claim for which such Grantor is indemnified by a third party or to the extent that such infringement, violation or claim could not reasonably be expected to result in liability in excess of $500,000 individually or $1,000,000 in the aggregate;

23

(ix)       to the knowledge of such Grantor, no third party is infringing upon or otherwise violating any rights in any material Intellectual Property owned or used by such Grantor, or any of its respective licensees material to the business of such Grantor;

(x)        no settlement or consents, covenants not to sue, non-assertion assurances, or releases have been entered into by Grantor or to which Grantor is bound that affect Grantor’s rights in a material adverse manner to own or use any Intellectual Property; and

(xi)       other than in connection with the Praesidian Facility, it has not made a previous assignment, sale, transfer or agreement constituting a present or future assignment, sale, transfer or agreement of any Intellectual Property that has not been terminated or released. Other than in connection with the Praesidian Facility and those being terminated on the Closing Date, there is no effective financing statement or other document or instrument now executed, or on file or recorded in any public office, granting a security interest in or Lien on, or otherwise encumbering any part of the Intellectual Property, other than in favor of Administrative Agent.

(b)          Covenants and Agreements. Each Grantor covenants and agrees that it shall perform all covenants in this Section 4.07(b).

(i)         It shall not do any act or omit to do any act whereby any of the Intellectual Property which is material to the business of Grantor may lapse, or become abandoned, dedicated to the public, or unenforceable, or which would adversely affect the validity, grant, or enforceability of the security interest and Lien granted therein.

(ii)        It shall not, with respect to any Trademarks which are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality.

(iii)       It shall, within thirty (30) days of the creation or acquisition of any Copyrightable work which is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office.

(iv)       It shall promptly notify Administrative Agent if it knows or has reason to know that any item of the Intellectual Property that is material to the business of any Grantor may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office, any state registry, any foreign counterpart of the foregoing, or any court; provided that such Grantor shall not be required to notify Administrative Agent if such item of Intellectual Property expires by its terms.

(v)        It shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office, any state registry or any foreign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Intellectual Property including those items in paragraphs (A), (C) and (E) of Schedule 4.07 (as each such Schedule may be amended or supplemented from time to time).

24

(vi)       In the event that any material Intellectual Property owned by or exclusively licensed to any Grantor is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all actions it determines in its commercially reasonable judgment are necessary or appropriate to stop such infringement, misappropriation, or dilution and protect its rights in such Intellectual Property including the initiation of a suit for injunctive relief and to recover damages.

(vii)      It shall (x) give notice to Administrative Agent of any application for the registration of any Copyright to be filed by such Grantor with the United States Copyright Office or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof), (y) promptly (but in no event more than (1) five (5) days, in the case of any Copyright or (2) thirty (30) days, in the case of any other Intellectual Property, after any Grantor obtains knowledge thereof) report to Administrative Agent (A) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (B) the registration of any Intellectual Property by the United States Copyright Office or the United States Patent and Trademark Office, in each case by executing and delivering to Administrative Agent a completed Supplement, together with all Supplements to Schedules thereto.

(viii)     It shall, promptly upon the reasonable request of Administrative Agent, execute and deliver to Administrative Agent any document required to acknowledge, confirm, register, record, or perfect Administrative Agent’s security interest and Lien in any part of the Intellectual Property, whether now owned or hereafter acquired.

(ix)       Except with the prior consent of Administrative Agent or in connection with the Praesidian Facility or as permitted under the Credit Agreement, it shall not execute or permit to be on file in any public office, any financing statement or other document or instruments evidencing a Lien on any owned Intellectual Property, except financing statements or other documents or instruments filed or to be filed in favor of Administrative Agent and it shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Loan Documents.

(x)        It shall hereafter use its commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could or might in any way materially impair or prevent the creation of a security interest in or Lien on, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts.

(xi)       It shall take all steps it determines in its commercially reasonable judgment that are reasonably necessary to protect the secrecy of all Trade Secrets, including entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.

25

(xii)      It shall use proper statutory notice in connection with its use of any of the material Intellectual Property.

(xiii)     It shall continue to use its commercially reasonable efforts to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at Administrative Agent’s reasonable direction, shall take) such action as such Grantor or Administrative Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, Administrative Agent shall have the right to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest and Lien created hereby.

4.08       Commercial Tort Claims.

(a)          Representations and Warranties. In order to induce Administrative Agent to enter into this Agreement, each Grantor represents and warrants to Administrative Agent that Schedule 4.08 sets forth all Commercial Tort Claims of each Grantor.

(b)          Covenant and Agreement. Each Grantor covenants and agrees that with respect to any Commercial Tort Claim hereafter arising it shall deliver to Administrative Agent a completed Supplement, together with all Supplements to Schedules thereto, identifying such new Commercial Tort Claims.

SECTION 5      FURTHER ASSURANCES; ADDITIONAL GRANTORS; BRING DOWN OF REPRESENTATIONS AND WARRANTIES

5.01       Further Assurances.

(a)          Each Grantor agrees that from time to time, at the expense of such Grantor, it shall promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or reasonably desirable, or that Administrative Agent may reasonably request, in order to create and/or maintain the validity, perfection or priority of and protect any security interest or Lien granted hereby or to enable Administrative Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, each Grantor shall:

(i)         file such financing or continuation statements, or amendments thereto, and execute and deliver such other agreements, instruments, endorsements, powers of attorney or notices, as may be necessary or reasonably desirable, or as Administrative Agent may reasonably request, in order to perfect and preserve the security interests and Liens granted or purported to be granted hereby;

(ii)        take all actions necessary to ensure the recordation of appropriate evidence of the Liens and security interest granted hereunder in the Intellectual Property with any intellectual property registry in which said Intellectual Property is registered or in which an application for registration is pending including the United States Patent and Trademark Office, the United States Copyright Office, the various Secretaries of State, and the foreign counterparts on any of the foregoing; and

26

(iii)       at Administrative Agent’s request, appear in and defend any action or proceeding that may affect such Grantor’s title to or Administrative Agent’s security interest in and Lien on all or any part of the Collateral.

(b)          Each Grantor hereby authorizes Administrative Agent to file a Record or Records, including financing or continuation statements, and amendments thereto, in any jurisdictions and with any filing offices as Administrative Agent may determine, in its reasonable discretion, are necessary or advisable to perfect the security interest and Lien granted to Administrative Agent herein. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as Administrative Agent may determine, in its reasonable discretion, is necessary, advisable or prudent to ensure the perfection of the security interest and Lien in the Collateral granted to Administrative Agent herein, including describing such property as “all assets” or “all personal property, whether now owned or hereafter acquired.” Each Grantor shall furnish to Administrative Agent from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as Administrative Agent may reasonably request, all in reasonable detail.

(c)          Each Grantor hereby authorizes Administrative Agent to modify this Agreement after obtaining such Grantor’s written approval of or signature to such modification by amending Schedule 4.07 (as such Schedule may be amended or supplemented from time to time) to include reference to any right, title or interest in any existing Intellectual Property or any Intellectual Property acquired or developed by any Grantor after the execution hereof or to delete any reference to any right, title or interest in any Intellectual Property in which any Grantor no longer has or claims any right, title or interest.

5.02       Additional Grantors. From time to time subsequent to the date hereof, additional Persons may become parties hereto as additional Grantors (each, an “Additional Grantor”), by executing a Counterpart Agreement. Upon delivery of any such Counterpart Agreement to Administrative Agent, notice of which is hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if Additional Grantor were an original signatory hereto. Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder, nor by any election of Administrative Agent not to cause any Subsidiary of Parent or Borrower to become an Additional Grantor hereunder. This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.

5.03       Bring Down of Representations and Warranties. Each Grantor agrees that as a condition to each Borrowing or Letter of Credit Extension, the representations and warranties of such Grantor set forth in Section 4 of this Agreement shall be true and correct in all material respects (other than (x) as otherwise permitted by the Credit Agreement or any other Loan Document or (y) those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) at the time of any Borrowing or Letter of Credit Extension and after giving effect to the proposed Borrowing or Letter of Credit Extension. The representations and warranties of each Grantor set forth in Section 4 of this Agreement shall be deemed to have been amended to account for any applicable changes to the extent permitted by the Credit Agreement or any other Loan Document (and such Grantor shall be deemed to be in compliance with this Section 5.03) by Borrower’s delivery of the Senior Officer’s certificate to Administrative Agent pursuant to Section 6.01(j) of the Credit Agreement.

27

SECTION 6       ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT

6.01       Power of Attorney. Each Grantor hereby irrevocably appoints Administrative Agent (such appointment being coupled with an interest) as such Grantor’s attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor, Administrative Agent or otherwise, from time to time in Administrative Agent’s discretion to take any action and to execute any instrument that Administrative Agent may reasonably deem necessary or advisable to accomplish the purposes of this Agreement, including the following:

(a)          upon the occurrence and during the continuance of any Event of Default, to obtain and adjust insurance required to be maintained by such Grantor or paid to Administrative Agent pursuant to the Credit Agreement;

(b)          upon the occurrence and during the continuance of any Event of Default, to ask for, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral;

(c)          upon the occurrence and during the continuance of any Event of Default, to receive, endorse and collect any drafts or other instruments, documents and chattel paper in connection with clause (b) above;

(d)          upon the occurrence and during the continuance of any Event of Default, to file any claims or take any action or institute any proceedings that Administrative Agent may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights of Administrative Agent with respect to any of the Collateral;

(e)          to prepare and file any UCC financing statements against such Grantor as debtor;

(f)           to prepare, sign, and file for recordation in any intellectual property registry, appropriate evidence of the Lien and security interest granted herein in the Intellectual Property in the name of such Grantor as debtor;

(g)          to take or cause to be taken all actions necessary to perform or comply or cause performance or compliance with the terms of this Agreement, including access to pay or discharge taxes or Liens (other than Permitted Liens) levied or placed upon or threatened against the Collateral, the legality or validity thereof and the amounts necessary to discharge the same to be determined by Administrative Agent in its reasonable discretion, any such payments made by Administrative Agent to become obligations of such Grantor to Administrative Agent, due and payable immediately without demand;

(h)          upon the occurrence and during the continuance of an Event of Default, generally to sell, transfer, pledge, make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though Administrative Agent were the absolute owner thereof for all purposes; and

(i)           to do, at Administrative Agent’s option and such Grantor’s expense, at any time or from time to time, all acts and things that Administrative Agent reasonably deems necessary to protect, preserve or realize upon the Collateral and Administrative Agent’s security interest therein and Lien thereon in order to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.

28

6.02       No Duty on the Part of Administrative Agent or Secured Parties. The powers conferred on Administrative Agent hereunder are solely to protect the interests of the Secured Parties in the Collateral and shall not impose any duty upon Administrative Agent or any Secured Party to exercise any such powers. Administrative Agent and the Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct.

SECTION 7       REMEDIES

7.01       Generally.

(a)          If any Event of Default shall have occurred and be continuing, Administrative Agent may exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it at Law or in equity, all the rights and remedies of Administrative Agent on default under the UCC (whether or not the UCC applies to the affected Collateral) to collect, enforce or satisfy any Secured Obligations then owing, whether by acceleration or otherwise, and also may pursue any of the following separately, successively or simultaneously:

(i)         require any Grantor to, and each Grantor hereby agrees that it shall at its expense and promptly upon request of Administrative Agent forthwith, assemble all or part of the Collateral as directed by Administrative Agent and make it available to Administrative Agent at a place to be designated by Administrative Agent that is reasonably convenient to both parties;

(ii)        enter onto the property where any Collateral is located and take possession thereof with or without judicial process;

(iii)       prior to the disposition of the Collateral, store, process, repair or recondition the Collateral or otherwise prepare the Collateral for disposition in any manner to the extent Administrative Agent deems appropriate; and

(iv)       without notice except as specified below or under the UCC, sell, assign, lease, license (on an exclusive or nonexclusive basis) or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any of Administrative Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as Administrative Agent may deem commercially reasonable.

29

(b)          Administrative Agent or any Secured Party may be the purchaser of any or all of the Collateral at any public or private (to the extent to the portion of the Collateral being privately sold is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations) sale in accordance with the UCC and Administrative Agent, as Administrative Agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale made in accordance with the UCC, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any Collateral payable by Administrative Agent at such sale. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable Law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of Law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by Law, at least ten (10) days’ notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. Administrative Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Grantor agrees that it would not be commercially unreasonable for Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against Administrative Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if Administrative Agent accepts the first offer received and does not offer such Collateral to more than one offeree. If the proceeds of any sale or other disposition of the Collateral are insufficient to pay all the Secured Obligations, Grantors shall be liable for the deficiency and the fees of any attorneys employed by Administrative Agent to collect such deficiency. Each Grantor further agrees that a breach of any of the covenants contained in this Section 7.01 will cause irreparable injury to Administrative Agent, that Administrative Agent has no adequate remedy at Law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 7.01 shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no default has occurred giving rise to the Secured Obligations becoming due and payable prior to their stated maturities. Nothing in this Section 7.01 shall in any way alter the rights of Administrative Agent hereunder.

(c)          Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.

(d)          Administrative Agent shall have no obligation to marshal any of the Collateral.

7.02       Application of Proceeds. Except as expressly provided elsewhere in this Agreement, all proceeds received by Administrative Agent in respect of any sale, any collection from, or other realization upon all or any part of the Collateral shall be applied in full or in part by Administrative Agent against the Secured Obligations as set forth in Section 2.15 of the Credit Agreement.

7.03       Sales on Credit. If Administrative Agent sells any of the Collateral upon credit, Grantor will be credited only with payments actually made by purchaser and received by Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Administrative Agent may resell the Collateral and Grantor shall be credited with proceeds of the sale.

7.04       Deposit Accounts. If any Event of Default shall have occurred and be continuing, Administrative Agent may apply the balance from any Deposit Account or instruct the bank at which any Deposit Account is maintained to pay the balance of any Deposit Account to or for the benefit of Administrative Agent in accordance with the Credit Agreement.

30

7.05       Investment Related Property. Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act and applicable state securities Laws, Administrative Agent may be compelled, with respect to any sale of all or any part of the Investment Related Property conducted without prior registration or qualification of such Investment Related Property under the Securities Act and/or such state securities Laws, to limit purchasers to those who will agree, among other things, to acquire the Investment Related Property for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private sale may be at prices and on terms less favorable than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances, each Grantor agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that Administrative Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Investment Related Property for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities Laws, even if such issuer would, or should, agree to so register it. If, after an Event of Default has occurred and is continuing, Administrative Agent determines to exercise its right to sell any or all of the Investment Related Property, upon written request, each Grantor shall and shall use its commercially reasonable efforts to cause each issuer of any Pledged Stock to be sold hereunder, each partnership and each limited liability company from time to time to furnish to Administrative Agent all such information as Administrative Agent may reasonably request in order to determine the number and nature of interest, shares or other instruments included in the Investment Related Property which may be sold by Administrative Agent in exempt transactions under the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.

7.06       Intellectual Property.

(a)          Anything contained herein to the contrary notwithstanding, upon the occurrence and during the continuation of an Event of Default:

(i)         Administrative Agent shall have the right (but not the obligation) to bring suit or otherwise commence any action or proceeding in the name of any Grantor, Administrative Agent or otherwise, in Administrative Agent’s sole discretion, to enforce any Intellectual Property, in which event such Grantor shall, at the request of Administrative Agent, do any and all lawful acts and execute any and all documents required by Administrative Agent in aid of such enforcement and such Grantor shall promptly, upon demand, reimburse and indemnify Administrative Agent as provided in Section 10 in connection with the exercise of its rights under this Section 7.06, and, to the extent that Administrative Agent shall elect not to bring suit to enforce any Intellectual Property as provided in this Section 7.06, each Grantor agrees to use all reasonable measures, whether by action, suit, proceeding or otherwise, to prevent the infringement or other violation of any of such Grantor’s rights in the Intellectual Property by others and for that purpose agrees to diligently maintain any action, suit or proceeding against any Person so infringing as shall be necessary to prevent such infringement or violation;

(ii)        upon written demand from Administrative Agent, each Grantor shall grant, assign, convey or otherwise transfer to Administrative Agent or such Administrative Agent’s designee all of such Grantor’s right, title and interest in and to the Intellectual Property and shall execute and deliver to Administrative Agent such documents as are necessary or appropriate to carry out the intent and purposes of this Agreement;

31

(iii)       each Grantor agrees that such an assignment and/or recording shall be applied to reduce the Secured Obligations outstanding only to the extent that Administrative Agent (or any Secured Party) receives cash proceeds in respect of the sale of, or other realization upon, the Intellectual Property;

(iv)       Administrative Agent shall have the right to notify, or require each Grantor to notify, any obligors with respect to amounts due or to become due to such Grantor in respect of the Intellectual Property, of the existence of the security interest and Lien created herein, to direct such obligors to make payment of all such amounts directly to Administrative Agent, and, upon such notification and at the expense of such Grantor, to enforce collection of any such amounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done;

(v)        all amounts and proceeds (including checks and other instruments) received by Grantor in respect of amounts due to such Grantor in respect of the Collateral or any portion thereof shall be received in trust for the benefit of Administrative Agent hereunder, shall be segregated from other funds of such Grantor and shall be forthwith paid over or delivered to Administrative Agent in the same form as so received (with any necessary endorsement) to be held as cash Collateral and applied as provided by Section 7.07; and

(vi)       without the consent of Administrative Agent, no Grantor shall adjust, settle or compromise the amount or payment of any such amount or release wholly or partly any obligor with respect thereto or allow any credit or discount thereon.

(b)          If (i) an Event of Default shall have occurred and, by reason of cure, waiver, modification, amendment or otherwise, no longer be continuing, (ii) no other Event of Default shall have occurred and be continuing, (iii) an assignment or other transfer to Administrative Agent of any rights, title and interests in and to the Intellectual Property shall have been previously made and shall have become absolute and effective, and (iv) the Secured Obligations shall not have become immediately due and payable, upon the written request of any Grantor, Administrative Agent shall promptly execute and deliver to such Grantor, at such Grantor’s sole cost and expense, such assignments or other transfer as may be necessary or reasonably advisable to reassign to such Grantor any such rights, title and interests as may have been assigned to Administrative Agent as aforesaid, subject to any disposition thereof that may have been made by Administrative Agent; provided that after giving effect to such reassignment, Administrative Agent’s security interest and Lien granted pursuant hereto, as well as all other rights and remedies of Administrative Agent granted hereunder, shall continue to be in full force and effect; and provided further, the rights, title and interests so reassigned shall be free and clear of any other Liens granted by or on behalf of Administrative Agent and the Secured Parties.

(c)          Solely for the purpose of enabling Administrative Agent to exercise rights and remedies under this Section 7 and at such time as Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to Administrative Agent, to the extent it has the right to do so, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation of said Trademarks, to use, operate under, license, or sublicense any Intellectual Property now owned or hereafter acquired by such Grantor, and wherever the same may be located.

32

7.07       Cash Proceeds. Unless otherwise provided pursuant to the Credit Agreement or Section 4.04(a)(i)(2), all proceeds of any Collateral received by any Grantor consisting of cash, checks and other non-cash items (collectively, “Cash Proceeds”) shall be held by such Grantor in trust for Administrative Agent and shall, forthwith upon receipt by such Grantor, be turned over to Administrative Agent in the exact form received by such Grantor (duly endorsed by such Grantor to Administrative Agent, if required) (including by deposit into a Controlled Account or any other Deposit Account permitted not to be a Controlled Account pursuant to the terms hereof). Any Cash Proceeds received by Administrative Agent (whether from a Grantor or otherwise): (i) if no Event of Default shall have occurred and be continuing, shall be applied against the Secured Obligations pursuant to and as required by the terms of the Credit Agreement and (ii) if an Event of Default shall have occurred and be continuing, may, in the sole discretion of Administrative Agent, (A) be held by Administrative Agent for the ratable benefit of the Secured Parties, as collateral security for the Secured Obligations (whether matured or unmatured) and/or (B) then or at any time thereafter may be applied by Administrative Agent against the Secured Obligations then due and owing; in each case, in accordance with the terms of the Credit Agreement.

7.08       Compliance with Communications Law. Notwithstanding any other provision of this Agreement, any foreclosure on, sale, assignment, transfer of control, direct or indirect transfer or other disposition of, the exercise of any rights to vote or consent with respect to any of, and the exercise of any other right or remedy with respect to any FCC License and/or PUC License and/or any Collateral subject to such FCC License and/or PUC License shall be in compliance with the Communications Law and Grantor and Administrative Agent shall have the rights and obligations set forth in Section 8.02(e) of the Credit Agreement.

SECTION 8       ADMINISTRATIVE AGENT

Administrative Agent has been appointed to act as Administrative Agent hereunder by Lenders and, by their acceptance of the benefits hereof, the other Secured Parties. Administrative Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement. In furtherance of the foregoing provisions of this Section 8, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by Administrative Agent for the benefit of Secured Parties in accordance with the terms of this Section 8. Administrative Agent may resign at any time in accordance with the provisions of the Credit Agreement. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent under this Agreement, and the retiring or removed Administrative Agent under this Agreement shall promptly (i) transfer to such successor Administrative Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under this Agreement, and (ii) execute and deliver to such successor Administrative Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Administrative Agent of the security interests and Liens created hereunder, whereupon such retiring or removed Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was Administrative Agent hereunder.

33

SECTION 9       CONTINUING SECURITY INTEREST AND LIEN; TRANSFER OF LOANS

This Agreement shall create a continuing security interest in and Lien on the Collateral and shall remain in full force and effect until the payment in full of all Secured Obligations, be binding upon each Grantor, its successors and assigns, and inure, together with the rights and remedies of Administrative Agent hereunder, to the benefit of Administrative Agent and its successors, transferees and assigns. Without limiting the generality of the foregoing, but subject to the terms of the Credit Agreement, any Lender may assign or otherwise transfer any Loans held by it to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to Lenders herein or otherwise. Upon the payment in full of all Secured Obligations, the security interest and Lien granted hereby shall automatically terminate hereunder and of record and all rights to the Collateral shall revert to Grantors. Upon any such termination, Administrative Agent shall, at Grantors’ expense, execute and deliver to Grantors or otherwise authorize the filing of such documents as Grantors shall reasonably request, including financing statement amendments, to evidence such termination. Upon any disposition of property permitted by the Credit Agreement, the Liens granted on such property herein shall be deemed to be automatically released and such property shall automatically revert to the applicable Grantor with no further action on the part of any Person. Administrative Agent shall, at Grantor’s expense, execute and deliver or otherwise authorize the filing of such documents as Grantors shall reasonably request, in form and substance reasonably satisfactory to Administrative Agent, including financing statement amendments, to evidence such release.

SECTION 10    STANDARD OF CARE; ADMINISTRATIVE AGENT MAY PERFORM

The powers conferred on Administrative Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, Administrative Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which Administrative Agent accords its own property. Neither Administrative Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, Administrative Agent may itself perform, or cause performance of, such agreement, and the expenses of Administrative Agent incurred in connection therewith shall be payable by each Grantor pursuant to Section 10.02 of the Credit Agreement as though the provisions are incorporated herein.

34

SECTION 11     MISCELLANEOUS

(a)          Any notice required or permitted to be given under this Agreement shall be given in accordance with Section 10.01 of the Credit Agreement.

(b)          No failure or delay on the part of Administrative Agent in the exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to Administrative Agent hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of Law or in any of the other Loan Documents. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy. In case any provision in or obligation hereunder or under any other Loan Document 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.

(c)          All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.

(d)          The provisions of this Agreement shall be binding upon and inure to the benefit of Administrative Agent and each Grantor and their respective successors and assigns permitted hereby, except that (i) no Grantor may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and (ii) Administrative Agent may not assign or transfer any of its rights or obligations hereunder except in connection with the resignation or removal of Administrative Agent in accordance with this Agreement and the Credit Agreement. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than Administrative Agent and Grantors and their respective successors and assigns permitted hereby, and to the extent expressly contemplated hereby, the Related Parties of Administrative Agent) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(e)          This Agreement and the other Loan Documents embody the entire agreement and understanding between Grantors and Administrative Agent and supersede all prior agreements and understandings between such parties relating to the subject matter hereof and thereof. Accordingly, the Loan Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.

(f)           There are no unwritten oral agreements between the parties.

(g)          If any conflict or inconsistency exists between the Pledge Agreement and this Agreement, this Agreement shall govern.

(h)          This Agreement may be executed in any number of 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. This Agreement shall become effective upon the execution of a counterpart hereof by each of Administrative Agent and each Grantor and receipt by Administrative Agent and each Grantor of written or telephonic notification of such execution and authorization of delivery thereof.

35

(i)           THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF ADMINISTRATIVE AGENT AND EACH GRANTOR 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 (other than Sections 5-1401 and 5-1402 of The New York General Obligations Law).

[Remainder of page intentionally left blank]

36

IN WITNESS WHEREOF, each Grantor and Administrative Agent have caused this Agreement to be duly executed and delivered by their respective representatives thereunto duly authorized as of the date first written above.

GRANTORS:	FUSION NBS ACQUISITION CORP.
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: President and Chief Operating Officer
	FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: President and Chief Operating Officer
	NETWORK BILLING SYSTEMS, L.L.C.
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: Executive Vice President
	FUSION BVX LLC
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: President
	PINGTONE COMMUNICATIONS, INC.
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: President and Chief Operating Officer

[Pledge and Security Agreement]

FIDELITY ACCESS NETWORKS, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY CONNECT LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY VOICE SERVICES, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY TELECOM, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
APPTIX, INC.
By:	/s/ Gordon Hutchins, Jr
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer

[Pledge and Security Agreement]

ADMINISTRATIVE AGENT:	EAST WEST BANK,
	as Administrative Agent
	By:	/s/ Richard Vian
		Name:  Richard Vian
		Title: Senior Vice President

[Pledge and Security Agreement] 

SCHEDULE 4.01

GENERAL INFORMATION

(A) Full Legal Name, Type of Organization, Jurisdiction of Organization, Mailing Address of Chief Executive Office/Sole Place of Business and Organizational Identification Number of each Grantor:

Full Legal Name	Type of Organization	Jurisdiction of Organization	Mailing Address/Sole Place of Business	Organizational ID #
Fusion Telecommunications International, Inc.	C corp.	Delaware	420 Lexington Avenue, Suite 1718, New York (New York), NY 10170	2797310
Fusion NBS Acquisition Corp.	C corp.	Delaware	420 Lexington Avenue, Suite 1718, New York (New York), NY 10170	5169555
Network Billing Systems, L.L.C.	Limited liability company	New Jersey	155 Willowbrook Boulevard, Suite 200, Wayne, (Passaic), NJ 07470	0600051385
Fusion BVX LLC	Limited liability company	Delaware	420 Lexington Avenue, Suite 1718, New York (New York), NY 10170	5391192
PingTone Communications, Inc.	C corp.	Delaware	13921 Park Center Road, Herndon, Virginia 20171	3341333
Fidelity Access Networks, Inc.	C corp.	Ohio	23250 Chagrin Boulevard, Suite 250, Beechwood, Ohio 44122	1223593
Fidelity Access Networks, LLC	Limited liability company	Ohio	23250 Chagrin Boulevard, Suite 250, Beechwood, Ohio 44122	1223586
Fidelity Connect LLC	Limited liability company	Ohio	23250 Chagrin Boulevard, Suite 250, Beechwood, Ohio 44122	1943232
Fidelity Voice Services, LLC	Limited liability company	Ohio	23250 Chagrin Boulevard, Suite 250, Beechwood, Ohio 44122	1469027
Fidelity Telecom, LLC	Limited liability company	Ohio	23250 Chagrin Boulevard, Suite 250, Beechwood, Ohio 44122	1848967
Apptix, Inc.	C corp.	Florida	13461 Sunrise Valley Drive, Suite 300, Herndon, VA 20171	P99000010732

(B) Other Names (including any Trade-Name or Fictitious Business Name) under which each Grantor has conducted business for the past five (5) years:

Credit Party	Additional Names
Fusion BVX LLC	Fusion Broadvox Acquisition Corp.
Network Billing Systems, L.L.C.	Fusion
Each of Fidelity Companies	Fidelity Voice and Data, Intercloud and Ethernet Everywhere

(C) Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure within past five (5) years:

i) Changes in name are covered in (B) immediately above.

ii) On December 3, 2013, Fusion Broadvox Acquisition Corp., a Delaware corporation, organized under the laws of the state of Delaware on August 29, 2013, converted from a “c” corp. to a limited liability company and changed its name to Fusion BVX LLC.

iii) On October 31, 2014, Fusion PTC Acquisition Inc., a company established solely for the purpose of acquiring PingTone Communications, Inc., merged with and into PingTone Communications, Inc. with PingTone Communications, Inc. being the surviving company in such merger.

(D) Agreements pursuant to which Grantor was bound as debtor within past five (5) years:

i) Immediately prior to the date hereof, each of the Grantors (other than Apptix, Inc.) was either a borrower or a guarantor under the (a) Opus Credit Agreement and related documents (together, the “Opus Facility”), and (b) the Fourth Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of December 8, 2015, with Subordinated Praesidian Agent, Praesidian Capital Opportunity Fund III-A, LP, and United Insurance Company of America and related documents (together, the “Fourth A&R Praesidian Facility”). The Opus Facility amended and restated the Original Opus Facility (as defined below) and the Fourth A&R Praesidian Facility amended and restated the Third A&R Praesidian Facility (as defined below).

ii) Each of the Grantors (other than Apptix, Inc., Fidelity Access Networks, Inc., Fidelity Access Networks, LLC, Fidelity Connect LLC, Fidelity Voice Services, LLC and Fidelity Telecom, LLC (collectively, the “Excluded Grantors”)) was either a borrower or a guarantor under the (a) Credit Agreement between Opus and Borrower dated as of August 28, 2015 and related documents (together, the “Original Opus Facility”), and (b) the Third Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of August 28, 2015, with Subordinated Praesidian Agent and the other lenders party thereto and related documents (together, the “Third A&R Praesidian Facility”). The Third A&R Praesidian Facility amended and restated the Second A&R Praesidian Facility.

iii) Each of the Grantors (other than the Excluded Grantors) was either a borrower or a guarantor under the Second Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of October 31, 2014, with Subordinated Praesidian Agent and the other parties party thereto and related documents (together, the “Second A&R Praesidian Facility”). The Second A&R Praesidian Facility amended and restated the First A&R Praesidian Facility (as defined below).

iv) Each of the Grantors (other than the Excluded Grantors) was either a borrower or a guarantor under the Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of December 31, 2013, with Subordinated Praesidian Agent and the other parties party thereto and related documents (together, the “A&R Praesidian Facility”). The A&R Praesidian Facility amended and restated the Original Praesidian Facility (as defined below).

v) Each of the Grantors (other than the Excluded Grantors) was either a borrower or a guarantor under the Securities Purchase Agreement and Security Agreement, dated as of October 29, 2012, with Subordinated Praesidian Agent and the other parties party thereto and related documents (together, the “Original Praesidian Facility”).

vi) Parent is a borrower under the Second Amended and Restated Unsecured Promissory Note dated as of the Closing Date in favor of Marvin S. Rosen (the “Second A&R Rosen Note). The Second A&R Rosen Note amended and restated the First A&R Rosen Note (as defined below).

vii) Parent was a borrower under the Amended and Restated Unsecured Promissory Note dated as of August 28, 2015 in favor of Marvin S. Rosen (the “First A&R Rosen Note). The First A&R Rosen Note amended and restated the Original Rosen Note (as defined below).

viii) Parent was a borrower under the Unsecured Promissory Note dated as of October 25, 2012 in favor of Marvin S. Rosen (the “Original Rosen Note).

(E) Financing Statements:

Grantor	Filing Jurisdiction
	Delaware
	Delaware
	New Jersey
	Delaware
	Delaware
	Ohio
	Ohio
	Ohio
	Ohio
	Ohio
	Florida

SCHEDULE 4.03

GOVERNMENT CONTRACTS

Grantor	Description of Services Purchased
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	SIP Trunking
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity
	Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice/Connectivity

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Voice  

Cloud Connectivity

Cloud Connectivity

Cloud Connectivity

Cloud Connectivity

Cloud Connectivity

Cloud Connectivity

Cloud Connectivity

Cloud Connectivity

Cloud Computing

Cloud Computing

Cloud Computing

Cloud Computing

Cloud Computing

Cloud Computing

SCHEDULE 4.04

INVESTMENT RELATED PROPERTY

(A) Pledged Stock:

Grantor	Issuer	Class of Stock	Stock Certificate No.	Par Value	Number of Shares	% of Outstanding Stock of Company Pledged
Fusion Telecommunications International, Inc	Fusion NBS Acquisition Corp.	Common	1	$0.0001	100 shares	100%
Fusion NBS Acquisition Corp.	PingTone Communications, Inc.	Common	200	$0.01	1 share	100%
Fusion NBS Acquisition Corp.	Fidelity Access Networks, Inc.	Common	3	No par value	100 shares	100%
Fusion NBS Acquisition Corp.	Apptix, Inc.	Common	5	$0.01	12,500	100%

Pledged LLC Interests:

Grantor	Issuer	Certificated (Y/N)	Certificate No. (if any)	% of Outstanding LLC Interests of Limited Liability Company Pledged
Fusion NBS Acquisition Corp.	Network Billing Systems, L.L.C.	Y	1	100%
Fusion NBS Acquisition Corp.	Fusion BVX LLC	Y	1	100%
Fidelity Access Networks, Inc.	Fidelity Access Networks, LLC	Y	1	100%
Fidelity Access Networks, LLC	Fidelity Connect LLC	Y	1	100%
Fidelity Access Networks, LLC	Fidelity Voice Services, LLC	Y	1	100%
Fusion NBS Acquisition Corp.	Fidelity Telecom, LLC	Y	1	100%

Pledged Partnership Interests: None.

Pledged Trust Interests: None.

Pledged Foreign Interests: None.

Pledged Debt: None.

Subordinated Intercompany Notes: None.

Securities Accounts with a U.S. Securities Intermediary: None.

Commodities Accounts with a U.S. Commodity Intermediary: None.

Deposit Accounts with a U.S. Bank:

Grantor	Financial Institution where Account Maintained
Fusion Telecommunications International, Inc.	Opus Bank
Network Billing System, L.L.C.	Opus Bank
Network Billing System, L.L.C.	Key Bank
Apptix, Inc.	Silicon Valley Bank
Apptix, Inc.	Silicon Valley Bank
Apptix, Inc.	Silicon Valley Bank
Apptix, Inc.	Silicon Valley Bank

(B)

i) On October 2012, Fusion NBS Acquisition Corp. acquired all of the outstanding equity interests of Network Billing Systems, L.L.C. and certain assets of Interconnect Systems Group 11 LLC.

ii) On December 31, 2013, Fusion BVX LLC acquired substantially all of the assets of Broadvox Go! LLC and Cypress Communications LLC.

iii) On October 31, 2014, Fusion PTC Acquisition Inc., a company established solely for the purpose of acquiring PingTone Communications, Inc., merged with and into PingTone Communications, Inc. with PingTone Communications, Inc. being the surviving company in such merger.

iv) On September 30, 2015, Network Billing Systems, LLC acquired substantially all of the assets of RootAxcess, LLC.

v) Pursuant to a Stock Purchase and Sale Agreement dated December 8, 2015, Fusion NBS Acquisition Corp. acquired all of the equity interests of Fidelity Access Networks, Inc., Fidelity Access Networks, LLC, Fidelity Connect LLC, Fidelity Voice Services, LLC and Fidelity Telecom LLC (acquisition of Fidelity Telecom LLC closed in Feb 2016).

vi) On March 25, 2016, Network Billing Systems, LLC acquired substantially all of the assets of Technology for Business Corporation.

vii) On the Closing Date, Borrower acquired all of the outstanding equity interests of Apptix, Inc.

SCHEDULE 4.06

LETTERS OF CREDIT

Grantor	Description of Letters of Credit
None.	Not Applicable

SCHEDULE 4.07

INTELLECTUAL PROPERTY

(A) Copyrights – None

(B) Copyright Licenses – None

(C) Patents – None

(D) Patent Licenses – None

(E) Trademarks:

Service Marks

Network Billing Systems, L.L.C.

V.O.I.C.E. the one that works!

Fusion Telecommunications International, Inc.

Fusion Telecom

Fusion Telecommunications International

Fusion

Fusion [LOGO]

“Clear Connections in the Cloud” is a registered service mark in the United States, reg. no. 4,775,318, and will expire on July 21, 2021.

Unregistered:

Fusion Tel

Fusion Softphone

PingTone Communications, Inc.

“PingTone Communications” service mark is registered in the United States, reg. no 2,880,663 that expires on September 7, 2024.

The logo as represented in the graphic below is not currently registered in the United States but is used by PingTone Communications, Inc.:

The logo as represented in the graphic below is not currently registered in the United States but is used by the Fidelity companies:

The following tradenames have been registered by the Fidelity companies in the state of Ohio only:

Fidelity Voice and Data

Ethernet Everywhere

Intercloud Services

Fidelity Cloud Services

Registered Marks for Apptix, Inc.:

“Apptix” is a registered service mark with in the United States, reg. no 4,054,446 that expires on November 15, 2021.

Apptix is also registered with the European Community (reg no. 9188285) that expires on June 30, 2021, Norway (reg. no. 259282) that expires on March 23, 2021 and Sweden (reg. no. 503825) that expires on March 2, 2022.

“Cloud Alliance Network & Design” is a registered service mark with the United States, reg. nos. 4,780,287 that expires July 28, 2025, 4,780,288 that expires July 28, 2025 and 4,861,836 that expires December 1, 2025.

“Mailstreet” is a registered service mark of Apptix, Inc. in the United States (reg. nos. 2,840,397 and 4,054,447 that expire on May 11, 2024 and November 15, 2021, respectively), the European Community (reg. no. 9188351 that expires June 30, 2020), Norway (reg. no. 260173 that expires May 30, 2021) and Sweden (reg. no. 500013), that expires July 22, 2021.

Domain Names - Fusion

fusionconnect.net

fusionuc.com

fusionuc.net

onecloudcollaboration.com

fusionconnect.com

fusionconnect.com (Private Reg)

onecloudconnection.com

Fusionconnect.cloud

Fusionmeeting.com

Fusionvoice.cloud

FusionV2T.com

Domain Names - NBS

simlab.net

Cloud-UC.com

Cloud-UC.net

Contact360.net

ISGVoice.com

ISGVoice.net

MyVoiceManager.com

MyVoiceManager.net

Nbsvoice.com

Nbsvoice.net

NBSVoiceManager.com

NBSVoiceManager.net

Solexsuite.com

TheVoiceManager.com

TheVoiceManager.net

Domain Names - Broadvox

c2voicemail.net

c4communicate.com

c4communicate.net

c4conference.net

c4office.com

c4office.mobi

c4office.net

c4server.com

c4server.net

c4voicemail.com

c4voicemail.net

cypresscom.info

cypresscom.net

cypresscomm.com

cypresscomm.net

cypresscommunications.com

cypressconnection.com

cypressconnections.com

cypressconnections.net

cypressconnexion.com

cypressconnexion.net

cypresscorp.net

cypressdemo.com

cypressdemo.net

cypressmail.com

cypressmail.net

cypressuc.com

cypressuc.mobi

cypressuc.net

cypressvoip.com

PSTNIN.COM

C4COMMUNICATE.NET

CYPRESSDEMO.NET

C3LOGIN.NET

CYPRESSMAIL.NET

CYPRESSCONNECTIONS.NET

CYPRESSDEMO.COM

PSTNOUT.COM

CYPRESSCONNEXION.NET

CYPRESSUC.MOBI

ABNBILLING.COM

CYPRESSCORP.NET

CYPRESSCONNECTIONS.COM

C4COMMUNICATE.COM

CYPRESSCONNECTION.COM

C4OFFICE.NET

CYPRESSCOMMUNICATIONS.COM

C2VOICEMAIL.NET

CYPRESSCOMM.NET

C4OFFICE.MOBI

C4VOICEMAIL.COM

CYPHOSTED.COM

C4SERVER.COM

C4VOICEMAIL.NET

CYPRESSCOMM.COM

C4OFFICE.COM

CYPRESSMAIL.COM

C4SERVER.NET

CYPRESSVOIP.COM

CYPRESSUC.NET

C4CONFERENCE.NET

CYPRESSCOM.NET

CYPRESSCONNEXION.COM

CYPRESSUC.COM

CYPRESSCOM.INFO

Domain Names - PingTone

pingtone.com

pingtone.net

Domain Names – Fidelity

fidelityaccess.net

fidelityaccess.com

fidelityaccess.org

fidelityvoice.com

fidelityvoice.net

fidelityuc.net

fidelityuc.com

fidelityvoiceanddata.com

fidelityvoiceanddata.net

etherneteverywhere.net

ethernetohio.com

ethernetohio.net

exploreyourconnections.com

fidelityaccessnetworks.com

fidelityaccessnetworks.net

fidelityhosted.com

fidelityops.com

fidelitytelecom.com

fvdhosted.com

fvdinternal.net

Domain Names – TFB

TFBC.COM

Domain Names – RootAxcess

rootaxcess.net

rootaxcesscloud.com

rootaxcesscloud.net

chicagohipaahosting.com

hostedvmware.com

rootaxcess.com

rootaxess.com

cloudchannelpartner.net

datamgtstrategies.com

Domain names – Apptix, Inc.

MAILSTREET.NET

DEVSTREET.COM

SHAREPOINTLIVE.COM

SHAREPOINTNOW.COM

SHAREPOINTSITE.COM

EXCHANGE.MS

SHAREPOINT-SERVICES.NET

SHAREPOINT-SERVICES.COM

EOUTLOOK.NET

EOUTLOOK.COM

SMBONDEMAND.COM

APPTIXONDEMAND.COM

APPTIXONDEMAND.NET

MYHOSTEDMAIL.COM

MYHOSTEDMAIL.NET

APPTIXHOSTEDMAIL.COM

APPTIXHOSTEDMAIL.NET

APPTIXTRIAL.COM

HOSTEDBC.COM

HOSTEDBC.NET

APPTIXMAIL.COM

APPTIXMAIL.NET

HOSTEDMAIL.ORG

APPTIX-OPS.COM

APPTIX-OPS.NET

COLLABORATIONHOST.COM

COLLABORATIONHOST.NET

COLLABORATIONHOST.ORG

APPTIX-MGT.COM

APPTIX-MGT.NET

APXMGT.COM

APXMGT.NET

APPTIX-QA.COM

APPTIX-QA.NET

APPTIX-SWDEV.COM

APPTIX-SWDEV.NET

KENSLANDSCAPING.NET

APPTIXLAB.COM

APPTIXLAB.NET

APPTIXE14.COM

APPTIXE14.NET

APPTIXFAX.COM

APPTIXFAX.NET

HOSTACCOUNT.COM

INBOUNDMX.COM

INBOUNDMX.NET

MXINBOUND.COM

MXINBOUND.NET

EMAILINBOUND.COM

EMAILINBOUND.NET

MAILSTREET.BIZ

MAILSTREET.BZ

MAILSTREET.CC

MAILSTREET.TV

MAILSTREET.US.COM

MAILSTREETEMAIL.BIZ

MAILSTREETEMAIL.BZ

MAILSTREETEMAIL.CC

MAILSTREETEMAIL.COM

MAILSTREETEMAIL.NET

MAILSTREETEMAIL.ORG

MAILSTREETEMAIL.TV

MAILSTREETEMAIL.US.COM

MAILSTREETMAIL.BIZ

MAILSTREETMAIL.BZ

MAILSTREETMAIL.CC

MAILSTREETMAIL.COM

MAILSTREETMAIL.NET

MAILSTREETMAIL.ORG

MAILSTREETMAIL.TV

MAILSTREETMAIL.US.COM

TRACKWIZ.BIZ

TRACKWIZ.BZ

TRACKWIZ.CC

TRACKWIZ.TV

BIZTROPOLIS.BIZ

BIZTROPOLIS.US.COM

APPTIX.BIZ

APPTIX.ORG

APPTIX.US.COM

APPTIXVOIP.COM

APPTIXFOIP.COM

APPTIXOCS.COM

APPTIXIM.COM

APPTIXCONFERENCING.COM

APPTIXBACKUP.COM

APPTIXHOSTING.COM

APPTIXHOSTEDEXCHANGE.COM

APPTIXEMAIL.COM

APPTIXSHAREPOINT.COM

APPTIXMOBILE.COM

APPTIXIPHONE.COM

APPTIXBLACKBERRY.COM

APPTIXREVIEW.COM

APPTIXSOFTWARE.COM

APPTIXASA.COM

APPTIXPOWERRESELLER.COM

APPTIXPARTNER.COM

APTIXEXCHANGE.COM

APTIXMAIL.COM

APPTIXVOICE.NET

APPTIXVOIP.NET

APPTIXFOIP.NET

APPTIXOCS.NET

APPTIXIM.NET

APPTIXCONFERENCING.NET

APPTIXBACKUP.NET

APPTIXHOSTING.NET

APPTIXHOSTEDEXCHANGE.NET

APPTIXEMAIL.NET

APPTIXSHAREPOINT.NET

APPTIXMOBILE.NET

APPTIXIPHONE.NET

APPTIXBLACKBERRY.NET

APPTIXREVIEW.NET

APPTIXSOFTWARE.NET

APPTIXASA.NET

APPTIXPOWERRESELLER.NET

APPTIXPARTNER.NET

APPTIXTRIAL.NET

APTIXEXCHANGE.NET

APTIXMAIL.NET

APPTIK.NET

APPTIXONDEMAND.ORG

APPTIXVOICE.ORG

APPTIXVOIP.ORG

APPTIXFOIP.ORG

APPTIXFAX.ORG

APPTIXOCS.ORG

APPTIXIM.ORG

APPTIXCONFERENCING.ORG

APPTIXBACKUP.ORG

APPTIXHOSTING.ORG

APPTIXHOSTEDEXCHANGE.ORG

APPTIXMAIL.ORG

APPTIXEMAIL.ORG

APPTIXSHAREPOINT.ORG

APPTIXMOBILE.ORG

APPTIXIPHONE.ORG

APPTIXBLACKBERRY.ORG

APPTIXREVIEW.ORG

APPTIXSOFTWARE.ORG

APPTIXASA.ORG

APPTIXRESELLER.ORG

APPTIXPOWERRESELLER.ORG

APPTIXPARTNER.ORG

APPTIXLAB.ORG

APPTIXTRIAL.ORG

APTIX.ORG

APTIXEXCHANGE.ORG

APTIXMAIL.ORG

APPTIK.ORG

APPTIX.INFO

APPTIX.MOBI

APPTIXSITE.COM

APPTIXHOSTED.COM

APPTIXLIVE.COM

APPTIXDIRECT.COM

MYAPPTIX.COM

APPTIXMGT.COM

APPTIXOPS.COM

APPTIXMGT.NET

APPTIXMGT.ORG

APPTIXOPS.NET

APPTIXOPS.ORG

EOUTLOOK.ORG

EOUTLOOK.INFO

EOUTLOOK.BIZ

EOUTLOOK.US.COM

EOUTLOOK.MOBI

COLLABORATIONHOST.INFO

COLLABORATIONHOST.BIZ

COLLABORATIONHOST.US.COM

COLLABORATIONHOST.MOBI

SHAREPOINTSITE.INFO

SHAREPOINTSITE.BIZ

SHAREPOINTSITE.US.COM

SHAREPOINTSITE.MOBI

HOSTACCOUNT.ORG

HOSTACCOUNT.INFO

HOSTACCOUNT.BIZ

HOSTACCOUNT.US.COM

HOSTACCOUNT.MOBI

APPTIX-QA001.COM

APPTIX-QA002.COM

APPTIX-QA003.COM

APPTIX-QA004.COM

APPTIX-QA005.COM

APPTIX-QA006.COM

APPTIX-QA007.COM

APPTIX-QA008.COM

MI8ONSIGHT.NET

MI8ONSIGHT.ORG

MI8CORP.NET

MI8CORP.ORG

MI8DEMO.COM

MI8DEMO.NET

MI8DEMO.ORG

MI8DESKTOP.COM

MI8DESKTOP.NET

MI8DESKTOP.ORG

MI8EXCHANGE.COM

MI8EXCHANGE.NET

MI8EXCHANGE.ORG

MI8GOLDMINE.COM

MI8GOLDMINE.NET

MI8GOLDMINE.ORG

MI8HQ.COM

MI8HQ.NET

MI8HQ.ORG

MI8NOTES.COM

MI8NOTES.NET

MI8NOTES.ORG

MI8SERVICES.COM

MI8SERVICES.NET

MI8SERVICES.ORG

CLOUD5G.COM

CLOUD5G.NET

APPTIXCLOUD5G.COM

APPTIXCLOUD5G.NET

HOSTYOURAPP.COM

ACCESSAPPSNOW.COM

MYHOSTEDAPPSPORTAL.COM

MYHOSTEDAPPSSITE.COM

CLOUD5G.ORG

APPTIXCLOUD5G.ORG

HOSTYOURAPP.NET

HOSTYOURAPP.ORG

ACCESSAPPSNOW.NET

ACCESSAPPSNOW.ORG

MYHOSTEDAPPSPORTAL.NET

MYHOSTEDAPPSPORTAL.ORG

MYHOSTEDAPPSSITE.NET

MYHOSTEDAPPSSITE.ORG

HOSTINGYOURAPP.COM

HOSTINGYOURAPP.NET

HOSTYOURASS.COM

HOSTINGYOURAPP.ORG

HOSTYOURASS.NET

HOSTYOURASS.ORG

ITHEALTHNEWS.COM

ITHEALTHNEWS.NET

ITHEALTHNEWS.ORG

APPTIX.XXX

MAILSTREET.XXX

SHAREPOINTSITE.XXX

APPTIXVOICE.XXX

COLLABORATIONHOST.XXX

HOSTACCOUNT.XXX

APPTIXEMAIL.XXX

APPTIXHEALTH.NET

OFFICIALAPPTIX.COM

HOSTEDMAIL.NET

APPTIXPRO.COM

APPTIXHOSTED.ORG

APPTIXHOSTEDEMAIL.ORG

MAILSTREET2003.NET

ASP-1.ORG

MI8CORP.COM

COLLABORATIONFAX.NET

MAILSTREETVOICE.COM

MI8.ORG

APPTIX.NET

HOSTEDSECURE.ORG

ATLARGE.NET

ASHBURNLAB.NET

MAILSREET.COM

MYMAILSTREET.COM

MI8ONSIGHT.COM

BIZATLARGE.COM

SHARESTREET.NET

ATLARGE2.NET

GLOBALTRIAL.COM

CLOUDCOMMUNICATIONSTODAY.ORG

HOSTEDCORPORATEEMAIL.COM

MALESTREET.COM

GETMAILSTREET.COM

HOSTEDSECURE.COM

MAILSTRET.COM

APPTIX-VOICE.NET

BOUNDARY-DEFENSE.NET

HOSTEDSECURE.NET

APPTIXHOSTED.NET

BOUNDARYDEFENSE.ORG

ASP-1.INFO

ASP1.INFO

BOUNDARY-DEFENSE.ORG

ASP-ONE.ORG

HOSTEDCORPORATEEMAIL.NET

BIZATLARGE.INFO

BOUNDARYDEFENCE.COM

BOUNDARY-DEFENSE.COM

MAILSTREET2003.COM

MI8.NET

EXCHANGETRIAL.NET

CLOUDCOMMUNICATIONSTODAY.COM

BOUNDARYDEFENSE.NET

COLLABORATIONFAX.COM

APPTIXHEALTH.COM

BOUNDARYDEFENSE.COM

MI8.COM

SHARESTREET.COM

BOUNDARYDEFENCE.ORG

ASP1.NET

ASP-1.NET

ASHBURNLAB.ORG

INBOUNDMAIL.NET

MAILSTREET.COM

APPTIXONLINE.COM

MAILSTEET.COM

ATLARGE.INFO

HOSTEDCORPORATEEMAIL.ORG

BIZATLARGE.ORG

APPTIXSTORE.COM

SHAREPOINT-SITE.COM

ASP-ONE.INFO

ASP-ONE.COM

APPTIXHEALTH.ORG

SHAREPOINTSITE.NET

EXCHANGETRIAL.COM

BOUNDARYDEFENCE.NET

APPTIX.COM

APPTIXHOSTEDEMAIL.NET

COLLABORATIONFAX.ORG

APPTIXVOICE.COM

MAILSTREETWEB.COM

MAILSTREETVOIP.COM

APPTIXHOSTEDEMAIL.COM

CLOUDCOMMUNICATIONSTODAY.NET

BIZATLARGE.NET

APPTIX-VOICE.COM

ASHBURNLAB.COM

ASP-1.COM

ASP-ONE.NET

Aptix Software:

Apptix is the sole licensee of a provisioning software, TECOS, from Apptix ASA, used to manage legacy SharePoint customers.

Apptix, Inc. has developed custom code, primarily in the form of scripts and Application Program Interfaces (API), as well as some Application Packaging Standards (APS), to customize the delivery of services across the various Apptix operating platforms. These include, but are not limited to, custom code created for Ascension Heath Resource and Supply Chain Management Group, LLC in the deployment of Active Roles Server, API’s that facilitated and streamlined the GoDaddy migration and Exchange Service delivery via APS packaged to certain Apptix Channel Partners.

See the following documents attached to the Apptix Share Purchase Agreement Disclosure Schedules:

· Apptix Proprietary Software Code.doc;

· ARS Technical Reference Guide.doc;

· Apptix ARS Manager Sync.doc; and

· Apptix ARS Thumbnail Photo Sync.doc.

Technology For Business:

In connection with its acquisition of all of the assets of Technology For Business Corporation (“TFB”), Network Billing Systems acquired the rights to the proprietary service center software platform developed by TFB. Network Billing Systems, LLC has further developed that software platform for deployment as a web-based application. No patents or trademarks have been filed with respect to this proprietary software.

(F) Trademark Licenses – None.

(G) Trade Secret Licenses – None.

(H) Intellectual Property Exceptions – None.

SCHEDULE 4.08

COMMERCIAL TORT CLAIMS

None.

EXHIBIT A

SUPPLEMENT TO SCHEDULE 4.01

This SUPPLEMENT, dated as of [mm/dd/yy], is delivered by [NAME OF GRANTOR] a [NAME OF STATE OF INCORPORATION] [TYPE OF ORGANIZATION] (the “Grantor”) pursuant to that certain Pledge and Security Agreement, dated as of November 14, 2016 (as amended, restated, modified or supplemented from time to time, the “Security Agreement”), entered into by and among FUSION NBS ACQUISITION CORP., the other Grantors party thereto, and EAST WEST BANK, as Administrative Agent. Capitalized terms used herein not otherwise defined herein shall have the meanings ascribed thereto in the Security Agreement.

Grantor hereby confirms the grant to Administrative Agent set forth in the Security Agreement of, and does hereby grant to Administrative Agent, a security interest in and Lien on all of Grantor’s right, title and interest in and to all Collateral to secure the Secured Obligations, in each case whether now or hereafter existing or in which Grantor now has or hereafter acquires an interest and wherever the same may be located. Grantor represents and warrants that the attached Supplements to Schedules accurately and completely sets forth all additional information required pursuant to the Security Agreement and hereby agrees that such Supplements to Schedules shall constitute part of the Schedules to the Security Agreement.

IN WITNESS WHEREOF, Grantor has caused this Supplement to be duly executed and delivered by its authorized representative thereunto duly authorized as of the date first written above.

[NAME OF GRANTOR]
By:
	Name:
	Title:

Exhibit A-1

SUPPLEMENT TO SCHEDULE 4.01

Additional Information:

(A) Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive Office/Sole Place of Business and Organizational Identification Number of each Grantor:

Full Legal Name Type of Organization Jurisdiction of
Organization Chief Executive Office Organizational
ID#

(B) Other Names (including any Trade-Name or Fictitious Business Name) under which each Grantor has conducted business for the past five (5) years:

Full Legal Name Trade Name or Fictitious Business Name

(C) Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of Business and Corporate Structure within past five (5) years:

Grantor Date of Change Description of Change

(D) Agreements pursuant to which Grantor is bound as debtor within past five (5) years:

Grantor Description of Agreement

(E) Financing Statements:

Grantor Filing Jurisdiction

Exhibit A-2

SUPPLEMENT TO SCHEDULE 4.03

TO PLEDGE AND SECURITY AGREEMENT

Additional Information:

Grantor Description of Government Contract

Exhibit A-3

SUPPLEMENT TO SCHEDULE 4.04

TO PLEDGE AND SECURITY AGREEMENT

Additional Information:

(A)       Pledged Stock:

Grantor Issuer Class of Stock Stock
Certificate No. Par Value Number of Shares %of
Outstanding
Stock of
Company
Pledged

Pledged LLC Interests:

Grantor Issuer Certificated (Y/N) Certificate No. (if any) % of Outstanding LLC
Interests of Limited Liability
Company Pledged

Exhibit A-4

Pledged Partnership Interests:

Grantor Issuer Type of Partnership
Interests
(general or limited) Certificated (Y/N) Certificate No.
 (if any) % of Outstanding
Partnership Interests of
Partnership Pledged

Pledged Trust Interests:

Grantor Issuer Class of Trust Interests Certificated (Y/N) Certificate No.
(if any) % of Outstanding Trust
Interests of Trust
Pledged

Exhibit A-5

Pledged Foreign Interests:

Grantor Issuer Type of Interests Certificated (Y/N) Certificate No. 
(if any) % of Outstanding
Interests of Entity
Pledged

Pledged Debt:

Grantor Issuer Original Principal
Amount Outstanding Principal
Balance Issue Date Maturity Date

Securities Accounts with a U.S. Securities Intermediary:

Grantor Financial Institution where Account
Maintained Name of Account Account Number

Exhibit A-6

Commodities Accounts with a U.S. Commodity Intermediary:

Grantor Financial Institution where Account
Maintained Name of Account Account Number

Deposit Accounts with a U.S. Bank:

Grantor Financial Institution where Account
Maintained Name of Account Account Number

(B)

Grantor Date of Acquisition Description of Acquisition

Exhibit A-7

SUPPLEMENT TO SCHEDULE 4.06
TO PLEDGE AND SECURITY AGREEMENT

Additional Information:

Name of Grantor Description of Letters of Credit

SUPPLEMENT TO SCHEDULE 4.07
TO PLEDGE AND SECURITY AGREEMENT

Additional Information:

(A) Copyrights

(B) Copyright Licenses

(C) Patents

(D) Patent Licenses

(E) Trademarks

(F) Trademark Licenses

(G) Trade Secret Licenses

(H) Intellectual Property Exceptions

SUPPLEMENT TO SCHEDULE 4.08
TO PLEDGE AND SECURITY AGREEMENT

Additional Information:

Name of Grantor Commercial Tort Claims

EX-10.1.8

Exhibit 10.1.8

EXECUTION VERSION

GUARANTY

dated as of November 14, 2016

from

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.,

NETWORK BILLING SYSTEMS, L.L.C.,

PINGTONE COMMUNICATIONS, INC.,

FUSION BVX LLC,

FIDELITY TELECOM, LLC,

FIDELITY ACCESS NETWORKS, INC.,

FIDELITY ACCESS NETWORKS, LLC,

FIDELITY VOICE SERVICES, LLC,

FIDELITY CONNECT LLC, and

APPTIX, INC.

collectively, as Guarantors,

to

EAST WEST BANK,

as Administrative Agent

GUARANTY

This GUARANTY (this “Guaranty”), dated as of November 14, 2016 is made by Fusion Telecommunications International, Inc., a Delaware corporation, Fusion BVX LLC, a Delaware limited liability company, NETWORK BILLING SYSTEMS, L.L.C., a New Jersey limited liability company, PINGTONE COMMUNICATIONS, INC., a Delaware corporation, FIDELITY TELECOM, LLC, an Ohio limited liability company, FIDELITY ACCESS NETWORKS, INC., an Ohio corporation, FIDELITY ACCESS NETWORKS, LLC, an Ohio limited liability company, FIDELITY VOICE SERVICES, LLC, an Ohio limited liability company, FIDELITY CONNECT LLC, an Ohio limited liability company, APPTIX, INC., a Florida corporation (collectively, the “Guarantors” and each individually a “Guarantor”), in favor of EAST WEST BANK (in its capacity as Administrative Agent (“Administrative Agent”) under that certain Credit Agreement, dated as of November 14, 2016 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Fusion NBS Acquisition Corp., a Delaware corporation (“Borrower”), Administrative Agent and the Lenders from time to time party thereto (“Lenders”). Capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.

WITNESSETH:

WHEREAS, Borrower, Administrative Agent and Lenders have entered into the Credit Agreement;

WHEREAS, Borrower and Guarantors are members of a group of related entities, the success of each of which is dependent in part on the success of the other members of such group;

WHEREAS, Guarantors expect to receive substantial direct and indirect benefits from the Loans made by Lenders to Borrower pursuant to the Credit Agreement (which benefits are hereby acknowledged);

WHEREAS, a condition precedent to the obligation of each Lender to make its extension of credit to Borrower under the Credit Agreement is that Guarantors jointly and severally execute and deliver this Guaranty to Administrative Agent for the ratable benefit of the Beneficiaries; and

WHEREAS, each Guarantor wishes to guaranty all Obligations under and in respect of the Loan Documents as herein provided.

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

- 2 -

Section 1.          Guaranty of Payment and Performance of Obligations. Guarantors, jointly and severally, hereby absolutely, irrevocably and unconditionally guarantee to Administrative Agent for the ratable benefit of the Beneficiaries, the due and punctual payment and performance in full of the Obligations when the same shall become due, whether at stated maturity, by required payment, declaration, demand or otherwise (including amounts that would become due but for the operation of any automatic stay under any applicable Debtor Relief Laws and all other obligations from time to time owing to such Beneficiaries or the Administrative Agent by Borrower under any Loan Document) (collectively the “Guaranteed Obligations” and individually a “Guaranteed Obligation”). Guarantors hereby jointly and severally agree, in furtherance of the foregoing and not in limitation of any other right which any Beneficiary may have at Law or in equity against any Guarantor by virtue hereof, that upon the failure of Borrower to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of any automatic stay under any applicable Debtor Relief Laws), Guarantors will upon demand pay, or cause to be paid, in cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for Borrower becoming the subject of a case under any applicable Debtor Relief Laws, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against Borrower for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.

Section 2.          Guarantors’ Further Agreements to Pay. Each Guarantor further agrees, pursuant to Section 10.02 of the Credit Agreement, as the principal obligor and not only as a guarantor, to pay to any of the Beneficiaries forthwith upon demand, in funds immediately available to such Beneficiaries, as applicable, all reasonable out-of-pocket costs and expenses (including Attorney Costs) incurred or expended by any such Beneficiary in connection with this Guaranty and the enforcement hereof, together with interest on amounts recoverable under this Guaranty from the time after such amounts become due at the default rate of interest set forth in the Credit Agreement; provided that if such interest exceeds the Highest Lawful Rate, then such interest shall be reduced to such Highest Lawful Rate.

Section 3.          Payments in Dollars. Each Guarantor covenants and agrees that the Obligations will be paid in Dollars and otherwise strictly in accordance with their respective terms regardless of any Law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Beneficiaries with respect thereto.

Section 4.          Taxes. All payments hereunder shall be made without any counterclaim or setoff, free and clear of, and without reduction for, any Taxes (other than Excluded Taxes) or Other Taxes, which are now or may hereafter be imposed, levied or assessed by any Governmental Authority on payments hereunder, all of which will be for the account of and paid by any Guarantor. If for any reason, any such reduction is made or any Taxes or Other Taxes are paid by any of the Beneficiaries (except for Taxes on income or profits of such Beneficiary), Guarantors agree to pay to such Beneficiary such additional amounts as may be necessary to ensure that such Beneficiary receives the same net amount which it would have received had no reduction been made or Taxes or Other Taxes paid. Each Guarantor (as if it were Borrower) and the Lenders agree to comply with the requirements of Section 3.01 of the Credit Agreement which are incorporated by reference herein.

- 3 -

Section 5.          Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, joint and several, independent and unconditional irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment and performance in full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:

(a)        this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;

(b)        Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between Borrower and any of the Beneficiaries with respect to the existence of such Event of Default;

(c)        the obligations of each Guarantor hereunder are independent of the obligations of Borrower and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions;

(d)        payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the Guaranteed Obligations;

- 4 -

(e)        any of the Beneficiaries, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents, the Secured Treasury Management Agreement or the Master Agreement or other documentation for the Secured Hedging Obligation; and

(f)        this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of Law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, the Secured Treasury Management Agreement or the Master Agreement or other documentation for the Secured Hedging Obligation, at Law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to Events of Default) hereof, any of the other Loan Documents, the Secured Treasury Management Agreement, the Master Agreement or other documentation for the Secured Hedging Obligation or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof, such Loan Document, such Secured Treasury Management Agreement, such Master Agreement or such other documentation for the Secured Hedging Obligation or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents and its Secured Treasury Management Agreement or Master Agreement or other documentation for the Secured Hedging Obligation or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of Parent or any of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses, setoffs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.

- 5 -

Section 6.          Representations and Warranties; Covenants.

(a)       Each Guarantor hereby makes and confirms the representations and warranties made on its behalf by Borrower pursuant to Section 5 of the Credit Agreement, as if such representations and warranties were set forth herein except that the confirmation herein regarding each representation and warranty that refers to a specific earlier date shall be that it was true as of such specific earlier date.

(b)       Each Guarantor hereby agrees to perform the covenants set forth in Section 6 (other than Section 6.01 and Section 6.02) and Section 7 (other than Section 7.14) of the Credit Agreement to the extent such covenants expressly apply to such Guarantor as if such covenants were set forth herein and makes the acknowledgements set forth in Section 7.20 of the Credit Agreement.

(c)       Each Guarantor acknowledges that it is, on a collective basis with Borrower, bound by the financial covenants and other covenants set forth in the Credit Agreement.

(d)       Each Guarantor hereby confirms that it shall be bound by all acts or omissions of Borrower pursuant to the Credit Agreement.

(e)       Each Qualified ECP Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party or Parent’s Subsidiary to honor all of its obligations under the Credit Agreement in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 6(e) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 6(e), or otherwise under the Credit Agreement, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 6(e) shall remain in full force and effect until all of the Guaranteed Obligations shall have been paid in full. Each Qualified ECP Guarantor intends that this Section 6(e) constitute, and this Section 6(e) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party and Parent’s Subsidiaries for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

- 6 -

Section 7.          Effectiveness. This Guaranty is a continuing guaranty and shall remain in full force and effect until all of the Guaranteed Obligations shall have been indefeasibly paid in full in cash or otherwise fully satisfied, and continue to be effective or be reinstated, as the case may be, if at any time payment or other satisfaction of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of Borrower, or otherwise, as though such payment had not been made or other satisfaction occurred. No invalidity, irregularity or unenforceability of the Guaranteed Obligations by reason of any applicable Debtor Relief Laws or any other similar Law, or by reason of any Law or order of any Governmental Authority purporting to reduce, amend or otherwise affect the Guaranteed Obligations, shall impair, affect, be a defense to or claim against the obligations of any Guarantor under this Guaranty.

Section 8.        Freedom of Administrative Agent and Lenders to Deal with Borrower and Other Parties. Administrative Agent and each Lender shall be at liberty, without giving notice to or obtaining the assent of any Guarantor and without relieving any Guarantor of any liability hereunder, to deal with Borrower and with each other party who now is or after the date hereof becomes liable in any manner for any of the Guaranteed Obligations, in such manner as Administrative Agent and such Lender in its respective sole discretion deems fit, and to this end each Guarantor gives to Administrative Agent and each Lender full authority in its respective sole discretion to do any or all of the following things: (a) extend credit, make loans and afford other financial accommodations to Borrower at such times, in such amounts and on such terms as Administrative Agent or such Lender may approve, (b) vary the terms and grant extensions of any present or future indebtedness or obligation of Borrower or of any other party to Administrative Agent or any Lender, (c) grant time, waivers and other indulgences in respect thereto, (d) vary, exchange, release or discharge, wholly or partially, or delay in or abstain from perfecting and enforcing any security or guaranty or other means of obtaining payment of any of the Guaranteed Obligations which Administrative Agent or any Lender now has or may acquire after the date hereof, (e) accept partial payments from Borrower or any such other party, (f) release or discharge, wholly or partially, any endorser or guarantor, and (g) compromise or make any settlement or other arrangement with Borrower or any such other party.

Section 9.        Freedom of Administrative Agent and Lenders to Deal with Borrower and Other Parties. Administrative Agent and each Lender shall be at liberty, without giving notice to or obtaining the assent of any Guarantor and without relieving any Guarantor of any liability hereunder, to deal with Borrower and with each other party who now is or after the date hereof becomes liable in any manner for any of the Guaranteed Obligations, in such manner as Administrative Agent and such Lender in its respective sole discretion deems fit, and to this end each Guarantor gives to Administrative Agent and each Lender full authority in its respective sole discretion to do any or all of the following things: (a) extend credit, make loans and afford other financial accommodations to Borrower at such times, in such amounts and on such terms as Administrative Agent or such Lender may approve, (b) vary the terms and grant extensions of any present or future indebtedness or obligation of Borrower or of any other party to Administrative Agent or any Lender, (c) grant time, waivers and other indulgences in respect thereto, (d) vary, exchange, release or discharge, wholly or partially, or delay in or abstain from perfecting and enforcing any security or guaranty or other means of obtaining payment of any of the Guaranteed Obligations which Administrative Agent or any Lender now has or may acquire after the date hereof, (e) accept partial payments from Borrower or any such other party, (f) release or discharge, wholly or partially, any endorser or guarantor, and (g) compromise or make any settlement or other arrangement with Borrower or any such other party.

- 7 -

Section 10.        Unenforceability of Obligations Against Borrower; Invalidity of Security or Other Guaranties. If for any reason Borrower has no legal existence or is under no legal obligation to discharge any of the Guaranteed Obligations undertaken or purported to be undertaken by it or on its behalf, or if any of the moneys included in the Guaranteed Obligations have become irrecoverable from Borrower by operation of law or for any other reason, this Guaranty shall nevertheless be binding on each Guarantor to the same extent as if such Guarantor at all times had been the principal debtor on all such Guaranteed Obligations. This Guaranty shall be in addition to any other guaranty or other security for the Guaranteed Obligations, and it shall not be prejudiced or rendered unenforceable by the invalidity of any such other guaranty or security.

Section 11.         Waivers by Guarantors.

(a)        Each Guarantor hereby waives, for the benefit of Beneficiaries:  (i) any right to require any Beneficiary, as a condition of payment or performance by such Guarantor, to (A) proceed against Borrower, any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (B) proceed against or exhaust any security held from any Borrower, any such other guarantor or any other Person, (C) proceed against or have resort to any balance of any Deposit Account or Securities Account or credit on the books of any Beneficiary in favor of Borrower or any other Person, or (D) pursue any other remedy in the power of any Beneficiary whatsoever; (ii) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Borrower or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Borrower or any other Guarantor from any cause other than payment in full of the Guaranteed Obligations; (iii) any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance upon the guarantee provided hereunder or acceptance of this Guaranty, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty, and all dealings between any Loan Party and any Lender or Administrative Agent shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty; (iv) any defense based upon any statute or rule of Law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (v) any defense based upon any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations, except behavior which amounts to gross negligence or willful misconduct; (vi)(A) any principles or provisions of Law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder, (B) the benefit of any statue of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (C) any rights to setoffs, recoupments and counterclaims, and (D) promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vii) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to Borrower and notices of any of the matters referred to in Section 6 and any right to consent to any thereof; and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.

- 8 -

(b)       Each Guarantor understands and acknowledges that if Administrative Agent forecloses, either by judicial foreclosure or by exercise of power of sale, any deed of trust or mortgage securing the Guaranteed Obligations, that foreclosure could impair or destroy any ability such Guarantor may have to seek reimbursement, contribution, or indemnification from Borrower or others based on any right such Guarantor may have of subrogation, reimbursement, contribution, or indemnification for any amounts paid by such Guarantor under this Guaranty. Each Guarantor further understands and acknowledges that in the absence of this paragraph, such potential impairment or destruction of such Guarantor’s rights, if any, may entitle such Guarantor to assert a defense to this Guaranty based on Section 580d of the California Code of Civil Procedure (“CCP”) as interpreted in Union Bank v. Gradsky, 265 Cal. App. 2d. 40 (1968). By executing this Guaranty, each Guarantor freely, irrevocably, and unconditionally: (i) waives and relinquishes that defense and agrees that such Guarantor will be fully liable under this Guaranty even though Administrative Agent may foreclose, either by judicial foreclosure or by exercise of power of sale, any deed of trust or mortgage securing the Obligations; (ii) agrees that such Guarantor will not assert that defense in any action or proceeding Administrative Agent may commence to enforce this Guaranty; (iii) acknowledges and agrees that the rights and defenses waived by such Guarantor in this Guaranty include any right or defense Guarantor may have or be entitled to assert based upon or arising out of any one or more of CCP §§ 580a, 580b, 580d, or 726 or Section 2848 of the California Civil Code (“CC”); and (iv) acknowledges and agrees that each Lender is relying on this waiver in creating the Obligations, and that this waiver is a material part of the consideration therefor.

(c)       Each Guarantor agrees not to claim or attempt to enforce any rights and defenses that are or may become available to such Guarantor under CC §§2787 to 2855, inclusive, until this Guaranty has terminated as provided in Section 7.

- 9 -

Section 12.        Restriction on Subrogation and Contribution Rights. Until the Guaranteed Obligations shall have been indefeasibly paid in full in cash, each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against Borrower or any other Guarantor or any of its assets in connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common Law or otherwise and including (a) any right of subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter have against any Borrower with respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have against Borrower, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Beneficiary.  In addition, until the Guaranteed Obligations shall have been indefeasibly paid in full in cash, each Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any other Guarantor of the Guaranteed Obligations.  Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor may have against Borrower or against any collateral or security, and any rights of contribution such Guarantor may have against any such other Guarantor, shall be junior and subordinate to any rights any Beneficiary may have against Borrower, to all right, title and interest any Beneficiary may have in any such collateral or security, and to any right any Beneficiary may have against such other guarantor (including a Guarantor).  If any amount shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations shall not have been finally and indefeasibly paid in full in cash, such amount shall be held in trust for Agent on behalf of Beneficiaries and shall forthwith be paid over to Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or not matured, in accordance with the terms hereof.

Section 13.        Notices; Demands. Any demand on or notice made or required or permitted to be given pursuant to this Guaranty shall be in writing and shall be delivered by hand, or overnight courier service, mailed by certified or registered mail as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number as follows:

(a)	if to any Guarantor, at
c/o Fusion Telecommunications International, Inc.
420 Lexington Avenue, Suite 1718
New York, NY 10170
Attention: General Counsel
Email: legal@fusionconnect.com
or at such other address for notice as Guarantor shall last have furnished in writing to the Lender; and

(b)	if to Administrative Agent, at
EAST WEST BANK
135 N. Los Robles Ave., 2nd Floor
Pasadena, CA 91101
Attention: Richard Vian; Telecommunications Lending
richard.vian@eastwestbank.com
Telephone: (626) 768-6816
or at such other address for notice as the Lender shall last have furnished in writing to Guarantor.

- 10 -

Any such notice or demand shall be deemed to have been duly given or made and to have become effective on the terms set forth in Section 10.01 of the Credit Agreement.

Section 14.        Amendments, Waivers, Etc. No provision of this Guaranty can be changed, waived, discharged or terminated except by an instrument in writing signed by Administrative Agent and each Guarantor expressly referring to the provision of this Guaranty to which such instrument relates; and no such waiver shall extend to, affect or impair any right with respect to any Obligation which is not expressly dealt with therein. No course of dealing or delay or omission on the part of Administrative Agent or any Lender or any of them in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto.

Section 15.        Further Assurances. Each Guarantor shall, at its sole cost and expense, execute and deliver such further acts and documents as Administrative Agent may, from time to time, reasonably request in order to give full effect to this Guaranty and to perfect and preserve the rights and powers of Administrative Agent hereunder.

Section 16.       Subordination of Other Obligations.  Any Indebtedness of Borrower or any Guarantor now or hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of payment to the Guaranteed Obligations, and any such indebtedness collected or received by Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for Administrative Agent on behalf of the Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of the Beneficiaries to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of Obligee Guarantor under any other provision hereof.

Section 17.       Authority of Guarantors or Borrower.  It is not necessary for any Beneficiary to inquire into the capacity or powers of any Guarantor or Borrower or the officers, directors or any agents acting or purporting to act on behalf of any of them.

Section 18.        Financial Condition of Borrower.  Any Loan, Letter of Credit or other Obligation may be made to Borrower or continued from time to time, without notice to or authorization from any Guarantor regardless of the financial or other condition of Borrower at the time of any such grant or continuation.  No Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of Borrower.  Each Guarantor has adequate means to obtain information from Borrower on a continuing basis concerning the financial condition of Borrower and their ability to perform their obligations under the Loan Documents, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of Borrower and of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations.  Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing relating to the business, operations or conditions of Borrower now known or hereafter known by any Beneficiary.

- 11 -

Section 19.         Bankruptcy.

(a)        So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the instructions of Requisite Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise), judicial management, administration or insolvency case or proceeding (or other comparable action under any Debtor Relief Law) of or against Borrower or any other Guarantor.  The obligations of Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, administrative receivership, reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise), judicial management, administration, liquidation, or arrangement of Borrower or any other Guarantor or by any defense which Borrower or any other Guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.

(b)       Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the intention of Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should be determined without regard to any rule of Law or order which may relieve Borrower of any portion of such Guaranteed Obligations.  Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors, administrator, judicial manager or similar person to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such interest accruing after the date on which such case or proceeding is commenced.

(c)       In the event that all or any portion of the Guaranteed Obligations are paid by Borrower, the obligations of Guarantors hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.

(d)       If all of the Equity Securities of any Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger, amalgamation or consolidation) in accordance with the terms and conditions of the Loan Documents, the Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be discharged and released without any further action by any Beneficiary or any other Person effective as of the time of such sale.

- 12 -

Section 20.        Governing Law.

(a)       THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

Section 21.        Miscellaneous Provisions.

(a)      This Guaranty shall inure to the benefit of Administrative Agent and each Lender and its successors in title and assigns permitted under the Credit Agreement, and shall be binding on each Guarantor and each Guarantor’s successors in title, assigns and legal representatives.

(b)      The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by Law or any other agreement. The invalidity or unenforceability of any one or more sections of this Guaranty shall not affect the validity or enforceability of its remaining provisions.

(c)       Captions are for ease of reference only and shall not affect the meaning of the relevant provisions. The meanings of all defined terms used in this Guaranty shall be equally applicable to the singular and plural forms of the terms defined.

Section 22.       WAIVER OF JURY TRIAL. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS GUARANTY AND ANY OTHER LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT A PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

[Remainder of Page Intentionally Left Blank]

- 13 -

IN WITNESS WHEREOF, each Guarantor has executed and delivered this Guaranty as of the date first above written.

FUSION TELECOMMUNICATIONS
INTERNATIONAL, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
NETWORK BILLING SYSTEMS, L.L.C.
By	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: Executive Vice President
FIDELITY TELECOM, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
PINGTONE COMMUNICATIONS, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FUSION BVX LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President

[Guaranty]

FIDELITY ACCESS NETWORKS, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer

FIDELITY ACCESS NETWORKS, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer

FIDELITY CONNECT LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer

FIDELITY VOICE SERVICES, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer

APPTIX, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer

[Guaranty]

EX-10.1.9

Exhibit 10.1.9

Execution Version

INTELLECTUAL PROPERTY SECURITY AGREEMENT

THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, the “IP Security Agreement”), dated as of November 14, 2016, is made by Fusion NBS Acquisition Corp.,a Delaware corporation (the “Borrower”), Fusion Telecommunications International, Inc.,a Delaware corporation (“Fusion”), Network Billing Systems, L.L.C., a New Jersey limited liability company (“NBS”), PingTone Communications, Inc.,a Delaware corporation (“PingTone”), Fusion BVX LLC, a Delaware limited liability company (“BVX”), Fidelity Telecom, LLC, an Ohio limited liability company (“Fidelity Telecom”), Fidelity Access Networks, Inc., an Ohio corporation (“Fidelity”), Fidelity Connect LLC, an Ohio limited liability company (“Fidelity Connect”), Fidelity Voice Services, LLC, an Ohio limited liability company (“Fidelity Voice”), Fidelity Access Networks, LLC, an Ohio limited liability company (“Fidelity Networks”) and Apptix, Inc., a Florida corporation (“Apptix”; and, together with Borrower, Fusion, NBS, PingTone, BVX, Fidelity Telecom, Fidelity, Fidelity Connect, Fidelity Voice and Fidelity Networks, individually a “Grantor” and collectively the “Grantors”), and East West Bank (“EWB”)(in its capacity as Administrative Agent under the Credit Agreement defined below, “Administrative Agent”), as Administrative Agent under that certain Credit Agreement, dated as of November 14, 2016 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Borrower, Administrative Agent and the Lenders from time to time party thereto (the “Lenders”). Terms defined in the Credit Agreement and not otherwise defined herein are used herein as defined in the Credit Agreement.

WHEREAS, as a condition precedent to the making of Loans by the Lenders, each Grantor has executed and delivered that certain Pledge and Security Agreement, dated as of November 14, 2016, by and among the Grantors and Administrative Agent (as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”); and

WHEREAS, under the terms of the Security Agreement, each Grantor has granted a security interest in, among other property, certain intellectual property of such Grantor to Administrative Agent, and has agreed as a condition thereof to execute this IP Security Agreement covering such intellectual property for recording with the U.S. Patent and Trademark Office, the United States Copyright Office and other governmental authorities.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor agrees as follows:

SECTION 1.          Grant of Security. Each Grantor hereby grants to Administrative Agent a security interest in and to all of Grantor’s right, title and interest in and to the following (the “Collateral”):

(i)          the United States, international and foreign patents, patent applications and patent licenses set forth in Schedule A hereto (as such Schedule A may be supplemented from time to time by supplements to the Security Agreement and this IP Security Agreement, each such supplement, an “IP Security Agreement Supplement”), executed and delivered by such Grantor to Administrative Agent from time to time), together with all reissues, divisions, continuations, continuations-in-part, extensions and reexaminations thereof, and all rights therein provided by international treaties or conventions (the “Patents”);

(ii)         The United States and foreign trademark and service mark registrations, applications, and licenses set forth in Schedule B hereto (as such Schedule B may be supplemented from time to time by an IP Security Agreement Supplement executed and delivered by such Grantor to Administrative Agent from time to time) (the “Trademarks”);

(iii)        the copyrights, United States and foreign copyright registrations and applications and copyright licenses set forth in Schedule C hereto (as such Schedule C may be supplemented from time to time by an IP Security Agreement Supplement executed and delivered by such Grantor to Administrative Agent from time to time) (the “Copyrights”);

(iv)        any and all claims for damages for past, present and future infringement, misappropriation or breach with respect to the Patents, Trademarks and Copyrights, with the right, but not the obligation, to sue for and collect, or otherwise recover, such damages; and

(v)          any and all proceeds of the foregoing.

Notwithstanding the foregoing, however, the Collateral shall not include any intent-to-use trademark, prior to the filing of a “Statement of Use” with respect thereto if and solely to the extent that (and so long as) any such intent-to-use trademark application would be rendered void by the attachment or creation of a security interest in the right, title or interest of such Grantor therein).

SECTION 2.          Security for Obligations. The grant of a security interest in the Collateral by each Grantor under this IP Security Agreement secures the payment of the Obligations (as defined in the Credit Agreement) and the Guaranteed Obligations (as defined in the Guaranty) of each Grantor now or hereafter existing, whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest (including any interest that accrues after the commencement of bankruptcy), premiums, penalties, fees, indemnifications, contract causes of action, costs, expenses or otherwise.

SECTION 3. Recordation. Each Grantor authorizes and requests that the Register of Copyrights, the Commissioner of Patents and Trademarks and any other applicable government office record this IP Security Agreement.

SECTION 4. Execution in Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

SECTION 5.          Grants, Rights and Remedies. This IP Security Agreement has been entered into in conjunction with the provisions of the Security Agreement. Each Grantor does hereby acknowledge and confirm that the grant of the security interest hereunder to, and the rights and remedies of, the Administrative Agent with respect to the Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated herein by reference as if fully set forth herein.

SECTION 6. Governing Law. This IP Security Agreement shall be governed by, and construed and enforced in accordance with, the Law of the State of New York without regard to principles of conflict of Law.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, Grantors have caused this IP Security Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first above written.

Address for Notices:	FUSION NBS ACQUISITION CORP., a Delaware corporation, as a Grantor
c/o Fusion Telecommunications International, Inc.
420 Lexington Avenue, Suite 1718	By:	/s/ Gordon Hutchins, Jr.
New York, NY 10170		Name:
Attention: General Counsel		Its:

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC., a Delaware corporation, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:
NETWORK BILLING SYSTEMS, L.L.C., a New Jersey limited liability company, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:
PINGTONE COMMUNICATIONS, INC., a Delaware corporation, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:
FUSION BVX LLC, a Delaware limited liability company, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:

FIDELITY TELECOM, LLC, an Ohio limited liability company, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:
FIDELITY ACCESS NETWORKS, INC., an Ohio corporation, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:
FUSION ACCESS NETWORKS, LLC, an Ohio limited liability company, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:
FIDELITY VOICE SERVICES, LLC, an Ohio limited liability company, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:
FIDELITY CONNECT, LLC, an Ohio limited liability company, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:
APPTIX, INC., a Florida corporation, as a Grantor
By:	/s/ Gordon Hutchins, Jr.
	Name:
	Its:

IN WITNESS WHEREOF, Administrative Agent has caused this IP Security Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

EAST WEST BANK, as Administrative Agent
By:	/s/ Richard Vian
Name: Richard Vian
Its: Senior Vice President

Address for Notices:

East West Bank

135 N. Los Robles Avenue, 2^nd Floor

Pasadena, California 91101

Attention:  Richard Vian,

Telecommunications Lending

Email: Richard. Vian@eastwestbank.com

Schedule A

Patents

None.

Schedule B

Trademarks

Owner Trademark Description	U.S. Registration/Serial No./ Application No.	Date Registered/Filed
Network Billing Systems, L.L.C.
V.O.I.C.E the one that Works!	Registration No. 3264612	Registered: July 17, 2007
Fusion Telecommunications International, Inc.
Fusion Telecom	Registration No. 2970850	Registered: July 19, 2005
FUSION	Serial No. 86281292	Filed: May 14, 2014
FUSION	Serial No. 86281295	Filed: May 14, 2014
CLEAR CONNECTIONS IN THE CLOUD	Serial No. 86281300 Registration No. 4,775,318	Filed: May 14, 2014 Registered: July 21, 2015
PingTone Communications, Inc.
PingTone Communications	Registration No. 2880663	Registered: September 7, 2004
Apptix, Inc.
Apptix	Registration No. 4,054,446	Filed:  February 11, 2010 Registered: November 15, 2011
Cloud Alliance Network & Design	Registration Nos. 4,780,287	Filed:  June 6, 2014 Registered: July 28, 2015
Cloud Alliance Network & Design	Registration No. 4,780,288	Filed:  June 6, 2014 Registered: July 28, 2015
Cloud Alliance Network & Design	Registration No. 4,861,836	Filed:  June 6, 2014 Registered: December 1, 2015
Mailstreet	Registration No. 2,840,397	Filed:  June 15, 2003 Registered: May 11, 2004
Mailstreet	Registration No. 4,054,447	Filed:  February 11, 2010 Registered: November 15, 2011

Schedule C

Copyrights

None.

EX-10.2

 Exhibit 10.2

EXECUTION VERSION

Notwithstanding anything herein to the contrary, the lien and security interest granted to the Agent pursuant to this Agreement and the exercise of any right or remedy by the Agent hereunder are subject to the provisions of the Subordination Agreement, dated as of November 14, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Subordination Agreement”), among East West Bank, as Senior Agent and Praesidian Capital Opportunity Fund III, LP, as Subordinated Agent. In the event of any conflict between the terms of the Subordination Agreement and this agreement, the terms of the Subordination Agreement shall govern and control.

FIFTH AMENDED AND RESTATED

SECURITIES PURCHASE AGREEMENT AND SECURITY AGREEMENT

by and among

FUSION NBS ACQUISITION CORP.

as Borrower

and

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.,

as Parent and Guarantor

and

NETWORK BILLING SYSTEMS, L.L.C.,

FUSION BVX LLC,

PINGTONE COMMUNICATIONS, INC.
FIDELITY ACCESS NETWORKS, LLC,
FIDELITY CONNECT LLC,
FIDELITY VOICE SERVICES, LLC,
FIDELITY ACCESS NETWORKS, INC.,
FIDELITY TELECOM, LLC,
APPTIX, INC.

and

EACH OTHER SUBSIDIARY

FROM TIME TO TIME PARTY HERETO

as Guarantors

and

PRAESIDIAN CAPITAL OPPORTUNITY FUND III, LP,

PRAESIDIAN CAPITAL OPPORTUNITY FUND III-A, LP,

and

UNITED INSURANCE COMPANY OF AMERICA,

as Lenders

and

PRAESIDIAN CAPITAL OPPORTUNITY FUND III, LP,

as Agent

Dated as of November 14, 2016

(amending and restating the Fourth Amended and Restated Securities Purchase Agreement and Security Agreement dated as of December 8, 2015 as amended prior to the date hereof)

TABLE OF CONTENTS

		Page
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS		3
1.01	Defined Terms	3
1.02	Certain Matters of Construction	29
1.03	Accounting Terms; Financial Statements	29
1.04	Rounding	30
1.05	Articles, Sections, Exhibits and Schedules	30
1.06	References to Agreements and Laws	30
1.07	Effect of this Agreement; Modification of Loan Documents	30
SECTION 2 THE LOANS		31
2.01	Outstanding Notes	31
2.02	Fees and Expenses	31
2.03	Closing	31
2.04	Financial Accounting Positions; Tax Reporting	31
2.05	Interest	32
SECTION 3 Collateral		33
3.01	Security Interest in the Collateral	33
3.02	Perfection of Security Interest	34
3.03	Safeguarding Collateral	34
3.04	Ownership of Collateral	34
3.05	Defense of Agent’s Interest	35
3.06	Financial Disclosure	35
3.07	Accounts.	35
3.08	Exculpation of Liability	37
3.09	Financing Statements	37
SECTION 4 CONDITIONS PRECEDENT		37
4.01	Conditions of Effectiveness	37
SECTION 5 REPRESENTATIONS AND WARRANTIES		40
5.01	Existence and Power	40
5.02	Authorization; No Contravention	40
5.03	Governmental Authorization; Third Party Consents	41
5.04	Binding Effect	41

i 

5.05	Litigation	41
5.06	Compliance with Laws	41
5.07	No Default or Breach	41
5.08	Title to Properties	42
5.09	Use of Real Property	42
5.10	Taxes	43
5.11	Financial Statements and Projections	43
5.12	Disclosure	44
5.13	Absence of Certain Changes or Events	44
5.14	Environmental Compliance	45
5.15	Investment Company/Government Regulations	46
5.16	Subsidiaries	46
5.17	Capitalization	46
5.18	Broker’s, Finder’s or Similar Fees	46
5.19	Labor Relations	46
5.20	Employee Benefit Plans	47
5.21	Patents, Trademarks, Etc.	48
5.22	Potential Conflicts of Interest	48
5.23	Trade Relations	48
5.24	Indebtedness	48
5.25	Material Contracts	48
5.26	Insurance	49
5.27	Communications Matters	49
5.28	(Reserved)	50
5.29	Perfection Certificate	50
5.30	Reserved	50
5.31	Certain Payments	50
5.32	Margin Requirements	51
5.33	Anti-Terrorism Laws; Anti-Corruption Laws; Sanctions	51
5.34	Target Transaction	51
5.35	Reserved	52
5.36	Separateness Requirements	52
5.37	AHYDO Payment	53

ii 

SECTION 6 AFFIRMATIVE COVENANTS		53
6.01	Financial Statements and Other Information	53
6.02	Deliveries	55
6.03	Preservation of Existence	58
6.04	Payment of Obligations	58
6.05	Compliance with Laws	58
6.06	Contractual Obligations	59
6.07	Inspection; Lender Meeting	59
6.08	Maintenance of Properties	59
6.09	Insurance	60
6.10	(Reserved)	60
6.11	Compliance with ERISA	60
6.12	Use of Proceeds	60
6.13	Customer Contracts	61
6.14	New Real Property	61
6.15	Control Agreements; Cash Management Systems	61
6.16	Collateral Access Agreements	62
6.17	Key-Man Life Insurance	62
6.18	Subsidiaries	62
6.19	Post Closing Covenants	63
6.20	Separateness Requirements	63
6.21	Board Observer	63
SECTION 7 NEGATIVE COVENANTS		63
7.01	Fundamental Changes; Consolidation; Mergers and Acquisitions; Dispositions	64
7.02	Liens	64
7.03	Guarantees	64
7.04	Investments	64
7.05	Loans	65
7.06	Restricted Payments	65
7.07	Indebtedness	65
7.08	Nature of Business	66
7.09	Transactions with Affiliates	66
7.10	Leases	66

iii 

7.11	Subsidiaries; Partnerships; Joint Ventures	67
7.12	Fiscal Year and Accounting Changes	67
7.13	Amendment of Organizational Documents	67
7.14	Limitation on Modifications of Indebtedness; Modifications of Certain Other Agreements; Etc.	67
7.15	Financial Covenants.  The Borrower shall not:	67
7.16	ERISA	69
7.17	Prepayment of Indebtedness	70
7.18	Burdensome Agreements	70
7.19	Separateness Requirements	70
7.20	Deposit Accounts; Securities Account	70
7.21	Hedging Transactions	70
SECTION 8 EVENTS OF DEFAULT AND REMEDIES		71
8.01	Events of Default	71
8.02	Remedies Upon Event of Default	74
SECTION 9 INDEMNIFICATION		77
9.01	Indemnification	77
9.02	Procedure; Notification	78
9.03	Survival	78
SECTION 10 GUARANTEE		79
10.01	The Guarantee	79
10.02	Obligations Unconditional	79
10.03	Reinstatement	80
10.04	Subrogation	80
10.05	Remedies	80
10.06	Continuing Guarantee	81
10.07	General Limitation on Guarantors’ Obligations	81
SECTION 11 PRINCIPAL PAYMENTS		81
11.01	Optional Prepayment	81
11.02	Mandatory Prepayments	82
11.03	Scheduled Payments	82
11.04	Application of Payments	83
SECTION 12 REGARDING AGENT		83
12.01	Appointment	83

iv 

12.02	Nature of Duties	83
12.03	Lack of Reliance on Agent and Resignation	84
12.04	Certain Rights of Agent	84
12.05	Reliance	85
12.06	Notice of Default	85
12.07	Indemnification	85
12.08	Agent in its Individual Capacity	85
12.09	Delivery of Documents or Other Information	85
12.10	Loan Parties’ Undertaking to Agent	86
12.11	No Reliance on Agent’s Customer Identification Program	86
12.12	Other Agreements	86
SECTION 13 TAXES		87
13.01	Taxes.	87
SECTION 14 MISCELLANEOUS		89
14.01	Survival of Representations and Warranties	89
14.02	Notices	89
14.03	Successors and Assigns; Third Party Beneficiaries	91
14.04	Amendment and Waiver	91
14.05	Signatures; Counterparts	92
14.06	Headings	92
14.07	GOVERNING LAW	92
14.08	JURISDICTION; JURY TRIAL WAIVER	92
14.09	Severability	93
14.10	Rules of Construction	93
14.11	Entire Agreement	93
14.12	Certain Expenses	94
14.13	Publicity	94
14.14	Further Assurances	94
14.15	Obligations of the Lenders	94
14.16	No Strict Construction	94
14.17	Transfer of the Notes	95
14.18	East West Subordination Agreement.	95

v 

EXHIBITS

A	Form of Compliance Certificate
B-l	Form of East West Subordination Agreement
B-2	Form of Rosen Subordination Agreement
C-1	Form of Perfection Certificate for Closing Date
C-2	Form of Perfection Certificate for Section 6.01(j)
D	Form of Second Amended and Restated Pledge Agreement
E	Form of Joinder Agreement
F	Form of Amended and Restated Intellectual Property Security Agreement

SCHEDULES

3.07	Chief Executive Offices
3.09	UCC Filings
5.01	Subsidiaries
5.05	Litigation
5.08(a)	Owned Real Property
5.08(b)	Real Property Leases
5.09	Uses of Owned and Leased Real Property
5.10	Taxes
5.11	Cash Flow Projection
5.13	Certain Changes, Events
5.16	Subsidiaries
5.17	Capitalization
5.18	Brokers Fees
5.19	Labor Relations
5.20	Employee Benefit Plans
5.22	Conflicts of Interest
5.24	Existing Indebtedness
5.25	Material Contracts
5.27	Licenses
5.31	Certain Payments
6.19	Post-Closing Covenants
7.02	Permitted Liens
7.04	Investments
7.07	Indebtedness
7.15	Pro Forma Adjustments for Target
7.18	Burdensome Agreements

vi 

FIFTH AMENDED AND RESTATED

SECURITIES PURCHASE AGREEMENT AND SECURITY AGREEMENT

FIFTH AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT AND SECURITY AGREEMENT, dated as of November 14, 2016 by and among FUSION NBS ACQUISITION CORP., a Delaware corporation (“Borrower”), FUSION TELECOMMUNICATIONS INTERNATIONAL, INC., a Delaware corporation (“Parent”), 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 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”), Fidelity Access Networks, Inc., an Ohio corporation (“FANI”) Fidelity Telecom, LLC, an Ohio limited liability company (“FTL”) Apptix, Inc., a Florida corporation (“Apptix”, and together with Parent, NBS, BVX, PingTone, FANL, FCL, FVS, FANI, FTL and each other direct and indirect subsidiary of Parent from time to time party hereto, the “Guarantors”, and together with the Borrower, the “Loan Parties”), 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”).

WITNESSETH:

WHEREAS, certain of the Loan Parties, Fund III, Fund III-A, Plexus Fund II, L.P., a Delaware limited partnership (“Plexus” and together with Fund III and Fund III-A and each of their respective successors and assigns, each an “Original Lender” and collectively, the “Original Lenders”), and the Agent entered into a Securities Purchase Agreement and Security Agreement, dated as of October 29, 2012 (as amended or otherwise modified prior to December 31, 2013, the “Original Securities Purchase Agreement”) pursuant to which (i)(A) the Borrower issued to the Original Lenders Senior Notes in the initial aggregate principal amount of $6,500,000 bearing interest at 10% per annum (“Series A Notes”) and Senior Notes in the initial aggregate principal amount of $10,000,000 bearing interest at 11.5% per annum (“Series B Notes”) and (B) in connection with the Series A Notes, Parent issued to the Original Lenders Warrants (“Original Warrants”) to purchase 5.0% of the equity interests of Parent, calculated on a fully-diluted basis, as of the October 29, 2012, and (ii) the Borrower issued to the Original Lenders Senior Notes in the initial aggregate principal amount of $500,000 bearing interest at 11.15% per annum (the “Series C Notes”);

1

WHEREAS, certain of the Loan Parties, the Warrant Shareholders and the Agent entered into an Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of December 31, 2013 (as heretofore amended or otherwise modified, the “12/31/13 A&R Securities Purchase Agreement”) pursuant to which the Original Securities Purchase Agreement was amended and restated to, among other things (i) provide for the issuance by Borrower to the Warrant Shareholders (other than Plexus II) of Senior Notes in the initial aggregate principal amount of $25,000,000 bearing interest at 11.15% per annum (“Series D Notes”), (ii) provide for the issuance by Parent to such Warrant Shareholders, in connection with their purchase of the Series D Notes, of warrants (“New Warrants”) to purchase 4.25% of the equity interests of Parent, calculated on a fully-diluted basis, as of December 31, 2013, (iii) change the interest rate of the Series A Notes and the Series B Notes to 11.15% per annum, and (iv) extend the maturity date of the Series A Notes, Series B Notes and Series C Notes;

WHEREAS, certain of the Loan Parties, the Warrant Shareholders and the Agent entered into a Second Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of October 31, 2014 (as heretofore amended or otherwise modified, the “10/31/14 A&R Securities Purchase Agreement”) pursuant to which the 12/31/13 A&R Securities Purchase Agreement was amended and restated to, among other things (i) provide for the issuance by Borrower to the Warrant Shareholders of Senior Notes in the initial aggregate principal amount of $5,000,000 bearing interest at 11.15% per annum (“Series E Notes”), (ii) extend the maturity date of the Series A Notes, Series B Notes, Series C Notes and Series D Notes, and (iii) add PingTone as a Guarantor and Loan Party hereunder;

WHEREAS, certain of the Loan Parties, the Lenders and the Agent entered into a Third Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of August 28, 2015 (as heretofore amended or otherwise modified, the “8/28/15 A&R Securities Purchase Agreement”) pursuant to which the 10/31/14 A&R Securities Purchase Agreement was amended and restated to, among other things (i) provide for the issuance by Borrower of Senior Notes in the initial aggregate principal amount of $9,000,000 bearing interest at 10.8% per annum (“Series F Notes”), (ii) prepay the Obligations (as defined in the 10/31/14 A&R Securities Purchase Agreement) owing to Plexus, Plexus Fund III, L.P., a Delaware limited partnership (“Plexus III”), Plexus Fund QP III, L.P., a Delaware limited partnership (“Plexus QP III” and together with Plexus and Plexus III, the “Plexus Lenders”) (such repayment, the “Plexus Payoff”), (iii) extend the maturity date of the Series A Notes, Series B Notes, Series C Notes, Series D Notes and Series E Notes, and (iv) change the interest rate of the Series A Notes, the Series B Notes, the Series C Notes, the Series D Notes and the Series E Notes to 10.8% per annum; and

WHEREAS, certain of the Loan Parties, the Lenders and Agent parties entered into a Fourth Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of December 8, 2015 (as heretofore amended or otherwise modified, the “12/8/15 A&R Securities Purchase Agreement” and together with the Original Securities Purchase Agreement, the 12/31/13 A&R Securities Purchase Agreement, the 10/31/14 A&R Securities Purchase Agreement, and the 8/28/15 A&R Securities Purchase Agreement collectively, the “Prior Securities Purchase Agreements”) pursuant to which the 8/28/15 A&R Securities Purchase Agreement was amended and restated to, among other things permit the Target Transactions (as defined in the 8/28/15 A&R Securities Purchase Agreement) and add the Initial Fidelity Entities (as defined in the 8/28/15 A&R Securities Purchase Agreement) as Guarantors and Loan Parties hereunder.

2

WHEREAS, in connection with the intended acquisition of Apptix, Inc., a Florida corporation, the Loan Parties have determined to replace the First Lien Credit Agreement with a Credit Agreement with East West Bank and the other lenders named therein, and the Loan Parties have requested that the Lenders amend and restate the 12/8/15 A&R Securities Purchase Agreement and the Lenders are willing to do so on the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree to amend and restate the 12/8/15 A&R Securities Purchase Agreement and the 12/8/15 A&R Securities Purchase Agreement is hereby amended and restated in its entirety as follows:

SECTION 1

DEFINITIONS AND ACCOUNTING TERMS

1.01         Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

“Accountant” means EisnerAmper LLP or another independent certified public accountant selected by Borrower and reasonably acceptable to Agent.

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any line of business or any division of a Person, (b) the acquisition of in excess of fifty percent (50%) of the Equity Securities of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary).

“Adjusted EBITDA” means for any period, the sum of (a) Earnings Before Interest and Taxes of any Person on a Consolidated Basis for such period, plus to the extent deducted in the determination of net income (or loss) for such period (b) depreciation expenses of such Person on a Consolidated Basis for such period plus (c) amortization expenses of such Person on a Consolidated Basis for such period, plus (d) cash charges relating to the Target Transactions in an amount not to exceed $1,600,000 in the aggregate and incurred prior to May 15, 2017.

“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Parent or any of its Subsidiaries) at Law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Borrower, threatened against or affecting Parent or any of its Subsidiaries or any property of Parent or any of its Subsidiaries.

“Advisory Fee” means such amounts as are payable pursuant to the Investment Management Agreement.

3

“Affiliate” means, with respect to any Person, any other Person (a) directly or indirectly controlling, controlled by, or under common control with, such Person, (b) directly or indirectly owning or holding five percent (5%) or more of any Equity Security in such Person, or (c) five percent (5%) or more of whose voting stock or other Equity Security is directly or indirectly owned or held by such Person. For purposes of this definition, “control” (including with correlative meanings, the terms “controlling,” “controlled by” and under “common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Agent” shall have the meaning set forth in the first paragraph of this Agreement, and shall include its successors and assigns.

“Agreement” shall mean this Fifth Amended and Restated Securities Purchase Agreement and Security Agreement, including the exhibits and schedules attached hereto, as the same may be amended, restated, supplemented or otherwise modified in accordance with the terms hereof.

“Amendment Fee” shall mean $25,000.

“Anti-Corruption Laws” means all Laws of any Governmental Authority applicable to any Loan Party, any of its Subsidiaries, Agent or any Lender, Issuing Bank or Participant concerning or relating to bribery or corruption; provided that, in the case of any non-U.S. Participant, any Governmental Authority applicable solely to one or more Participants shall only be included within the scope of the definition of “Anti-Corruption Laws” if Borrower has received written notice from Agent, any Lender or any Participant of such Governmental Authority being applicable to a Participant.

“Anti-Terrorism Laws” means all Laws of any Governmental Authority applicable to any Loan Party, any of its Subsidiaries, Agent or any Lender, Issuing Bank or Participant concerning or relating to bribery or corruption concerning or relating to anti-terrorism, terrorism financing, money laundering or “know your customer”; provided that, in the case of any non-U.S. Participant, any Governmental Authority applicable solely to one or more Participants shall only be included within the scope of the definition of “Anti-Terrorism Laws” if Borrower has received written notice from Agent, any Lender or any Participant of such Governmental Authority being applicable to a Participant.

“Attorney Costs” means and includes all reasonable, out-of-pocket attorneys’ and other fees and disbursements of any law firm or other external counsel and the allocated costs of internal legal services and all disbursements of internal counsel.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”.

“Board of Directors” means the board of directors of any corporation, board of managers of any limited liability company or other similar governing body of any other Person.

“Board of Governors” means the Board of Governors the United States Federal Reserve System.

4

“Borrower” has the meaning specified in the introductory paragraph hereto.

“Business” means the businesses engaged in by the Loan Parties and their Subsidiaries as of the Closing Date, including providing integrated cloud solutions, cloud voice, cloud connectivity, cloud infrastructure, cloud computing, and managed cloud-based applications to businesses of all sizes; voice over IP based voice services to carriers; provided that, concurrent with the consummation of the Acquisition of the Target Company and thereafter, the definition of “Business” shall be deemed to include the businesses engaged in by the Target Company as of the Closing Date.

“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the Laws of the State of New York or the State of California or is a day on which banking institutions located in either state are authorized or required by Law or other governmental action to close.

“CALEA” means the Communications Assistance for Law Enforcement Act, codified at 47 U.S.C. §1001, et. seq., as amended.

“Capital Expenditures” means expenditures made or liabilities incurred for the acquisition of any fixed assets or improvements, replacements, substitutions or additions thereto which have a useful life of more than one (1) year, including the total principal portion of Capital Lease Obligations, which, in accordance with GAAP, would be classified as capital expenditures and all other expenditures made or liabilities incurred for intangible assets, which are capitalized.

“Capital Lease Obligations” means any Indebtedness of the Loan Parties represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

“Capital Leases” means any and all leases under which certain obligations are required to be capitalized on the books of a lessee in accordance with GAAP.

“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition thereof; (b) commercial paper maturing no more than two hundred seventy (270) days from the date issued and, at the time of acquisition, having a rating of at least A-1 from S&P, or at least P-1 from Moody’s; (c) certificates of deposit or bankers’ acceptances maturing within one (1) year from the date of issuance thereof issued by, or overnight reverse repurchase agreements from, any commercial bank organized under the Laws of the United States of America or any state thereof or the District of Columbia having combined capital and surplus of not less than $500,000,000; (d) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks having membership in the Federal Deposit Insurance Corporation in amounts not exceeding the lesser of $100,000 or the maximum amount of insurance applicable to the aggregate amount of the Loan Parties’ and their respective Subsidiaries’ deposits at such institution; and (e) deposits or investments in mutual or similar funds offered or sponsored by brokerage or other companies having membership in the Securities Investor Protection Corporation in amounts not exceeding the lesser of $100,000 or the maximum amount of insurance applicable to the aggregate amount of the Loan Parties’ and their respective Subsidiaries’ deposits at such institution. Notwithstanding the foregoing, unless otherwise consented to in writing by Agent, Cash Equivalents will not include and each Loan Party will be prohibited from purchasing, purchasing participations in, entering into any type of swap or other equivalent derivative transaction, or otherwise holding or engaging in any ownership interest in any type of debt instrument, including any corporate or municipal bond with a long-term nominal maturity for which the interest rate is reset through a Dutch auction and more commonly referred to as an auction rate security.

5

“CFC” means a “controlled foreign corporation” (as that term is defined in the Code).

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law; (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Governmental Authority.

Change of Control” means (a) Parent ceasing to (i) own, directly or indirectly, one hundred percent (100%) of the issued and outstanding Equity Securities of Borrower, or (ii) control, by contract, ownership or otherwise, that percentage of the outstanding voting Equity Securities of Borrower necessary at all times to elect a majority of the Board of Directors of Borrower and to direct the management policies and decisions of Borrower, (b) any merger, consolidation or sale of all or substantially all of the property or assets of any Loan Party or Subsidiary of any Loan Party, other than as permitted by Section 7.01(a), (c) the occurrence of any “Change of Control” (or similar term) under (and as defined in) (i) any Subordinated Debt Document or (ii) any Contractual Obligation regarding Indebtedness which has not been subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative Agent, (d) both (i) Matthew Rosen ceasing to be the Chief Executive Officer of Parent for any reason unless a successor, reasonably acceptable to Administrative Agent, is appointed within four (4) months thereof, and (ii) Marvin Rosen ceasing to be the Chairman of the Board of Directors of Parent for any reason unless a successor, reasonably acceptable to Administrative Agent, is appointed within four (4) months thereof, or (e) the direct or indirect acquisition after the Closing Date by any person (as such term is used in Section 13(d) and Section 14(d)(2) of the Exchange Act, but excluding any employee benefit plan of Parent or its Subsidiaries, or any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) or related persons constituting a group (as such term is used in Rule 13d-5 under the Exchange Act), of (i) beneficial ownership of the issued and outstanding shares of voting stock or similar equity interest of Parent, the result of which acquisition is that such Person or group possesses in excess of 50% of the combined voting power of all then-issued and outstanding voting stock of Parent, or (ii) the power to elect, appoint, or cause the election or appointment of at least a majority of the members of the Board of Parent.  For purposes of this definition “control” means the power to direct or cause the direction of management and policies of a Person, whether by contract or otherwise.

“Closing Date” means November 14, 2016.

6

“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto.

“Collateral” means and include all personal property and fixtures, whether now owned or hereafter created or acquired, and wherever located, and consisting of (capitalized terms used in this definition shall have the meaning set forth in the UCC):

(a)          all Accounts;

(b)          all Equipment (other than motor vehicles);

(c)          all General Intangibles;

(d)          all Inventory;

(e)          all Investment Property;

(f)          all Deposit Accounts, Commodities Accounts and Securities Accounts;

(g)          all Instruments;

(h)          all Chattel Paper and Electronic Chattel Paper;

(i)          all Letter of Credit Rights;

(j)          all Documents;

(k)          all Commercial Tort Claims;

(l)          all Goods;

(m)          all Software; and

(n)          all right, title and interest in and to, whether now owned or hereafter acquired and wherever located, (i) its respective goods and other property including all merchandise returned or rejected by Customers, relating to or securing any of the Accounts; (ii) all rights as a consignor, a consignee, an unpaid vendor, mechanic, artisan, or other lienor, including stoppage in transit, setoff, detinue, replevin, reclamation and repurchase; (iii) all other rights and interests, including warranty claims, relating to any goods; (iv) if and when obtained, all guarantees from and all real and personal property of third parties in which such Person has been granted a lien or security interest as security for the payment or enforcement of Accounts; and (v) all documents, instruments, and agreements supporting the foregoing or delivered in connection therewith;

(o)          all ledger sheets, ledger cards, files, correspondence, records, books of account, business papers, computers, computer software (owned or in which it has an interest), computer programs, tapes, disks and documents relating to any other property constituting part of the Collateral; and

7

(p)          all proceeds and products of the foregoing in whatever form, including: cash, deposit accounts (whether or not comprised solely of proceeds), certificates of deposit, insurance proceeds (including hazard, flood and credit insurance), negotiable instruments and other instruments for the payment of money, chattel paper, security agreements, documents, eminent domain proceeds, condemnation proceeds and tort claim proceeds.

Notwithstanding the foregoing, none of the following items will be included within the Collateral: (a) assets if the granting of a security interest in such asset would: (I) be prohibited by Applicable Laws (other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition), or (II) be prohibited by contract (except to the extent such prohibition is overridden by UCC Section 9-408) so long as such negative pledge is otherwise permitted under clause (c) hereof, (b) any property and assets, the pledge of which would require a Consent from a Governmental Authority, unless and until such Consent shall have been obtained or waived, and (c) assets in circumstances where the Lenders and the Borrower agree in writing that the cost, burden or consequence (including adverse tax consequences) of obtaining or perfecting a security interest in such assets is excessive in relation to the practical benefit afforded thereby, it being understood that neither the Borrower nor any Subsidiary thereof shall be required to provide any guarantee, pledge or asset support arrangement that, in the reasonable judgment of the Borrower, would subject the Borrower to any adverse tax consequence due to the application of Section 956 of the Code.

“Collateral Access Agreement” means an agreement reasonably satisfactory to Administrative Agent, which is executed in favor of Administrative Agent by a Person who owns or occupies the premises at which any Collateral may be located from time to time and by which such Person shall waive any Lien that such Person may ever have with respect to any of the Collateral and shall authorize Administrative Agent from time to time to enter upon the premises to inspect or remove the Collateral from such premises or to use such premises to store or dispose of such Collateral.

“Commodities Account” has the meaning specified in the UCC.

“Commodity Exchange Act” means the United States Commodity Exchange Act (7 U.S.C. §1 et seq.), as amended and in effect from time to time, and any successor statute.

“Communications Law” means (a) the Communications Act of 1934, as amended, and any similar or successor federal statute, (b) the rules and regulations of the FCC promulgated under Title 47 of the U.S. Code of Federal Regulations, as may be amended or supplemented from time to time and decisions, policies, reports and orders issued pursuant to the adoption of such rules and regulations, (c) CALEA, (d) such other Laws of the United States codified or otherwise included in Title 47 of the U.S. Code as may be applicable to the conduct of the Business of the Loan Parties, (e) any other Law of any Governmental Authority with jurisdiction over telecommunications-related matters as may be applicable to the conduct of the Business of the Loan Parties or their Subsidiaries, including all Laws administered by any PUC with jurisdiction of any Loan Party or any of its Subsidiaries and (f) the terms and conditions of any License granted or issued to any Loan Party or any of its Subsidiaries.

8

“Compliance Certificate” means a certificate substantially in the form of Exhibit A, properly completed and signed by a Senior Officer of Borrower.

“Consents” means all filings with and all Licenses, consents, approvals, authorizations, qualifications, waivers and orders of Governmental Authorities and other third parties, domestic or foreign, necessary to carry on each Loan Party’s or Subsidiary’s business or necessary (including to avoid a conflict or breach under any agreement, instrument, other document, license, permit or other authorization) for the execution, delivery or performance of this Agreement, any of the other Loan Documents or any of the Target Acquisition Documents, including any Consents required under all applicable federal, state or other applicable Law.

“Consolidated Basis” means, with respect to the financial statements or other financial information of a Person, the accounts and other items of such Person and its Subsidiaries on a consolidated basis in accordance with GAAP applied on a basis consistent with prior practices.

“Consolidating Basis” means, with respect to the financial statements or other financial information of a Person, the accounts and other items of such Person and its Subsidiaries on a consolidating basis in accordance with GAAP applied on a basis consistent with prior practices.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument or arrangement (whether in writing or otherwise) to which such Person is a party or by which it or any of such Person’s property is bound.

“Control Agreement” means a four-party deposit account, securities account or commodities account control agreement by and among the applicable Loan Party, Agent, First Lien Agent and the depository, securities intermediary or commodities intermediary and, in the case of a four-party deposit account, securities account or commodities account control agreement, each in form and substance reasonably satisfactory in all respects to Agent and, in any event, providing to First Lien Agent “control” of such deposit account, securities or commodities account within the meaning of Articles 8 and 9 of the UCC, as applicable.

“Corporate Allocation Payments” means intercompany payments made to Parent for allocation of expenses actually incurred related to management support, professional services incurred, rent or utilities as set forth in the projections provided to the Lenders in accordance with Section 6.01(g) and pursuant to rates which are available to any Lender upon request and are reasonable and customary.

“Cost of Money” shall have the meaning defined in and shall be calculated as provided in the SBA Regulations.

“Debt Payments” means and includes for any period, (a) the aggregate of scheduled principal payments of all Senior Indebtedness and Subordinated Debt made or to be made by the Borrower and its Subsidiaries during such period (or reductions in commitments on lines of credit to the extent such reductions caused the repayment of principal amounts then outstanding under such lines of credit), plus (b) all interest expense actually paid on the Senior Indebtedness and Subordinated Debt during such period, plus (c) all fees, commissions and charges with respect to the Senior Indebtedness and Subordinated Debt paid during such period.

9

“Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States of America or other applicable jurisdictions from time to time in effect affecting the rights of creditors generally.

“Default” means a condition, act or event that, after notice or lapse of time or both, would constitute an Event of Default if that condition, act or event were not cured or removed within any applicable grace or cure period.

“Deposit Account” has the meaning specified in the UCC.

“Designated Deposit Account” means, collectively, (i) a Deposit Account maintained by Parent with EWB designated as such in writing by Parent and First Lien Agent, (ii) a Deposit Account maintained by Borrower with EWB designated as such in writing by Parent and First Lien Agent, and (iii) a Deposit Account maintained by NBS with EWB designated as such in writing by Parent and First Lien Agent.

“Disposition” or “Dispose” means the conveyance, sale, transfer, lease or sub-lease (as lessor or sub-lessor), exchange or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal with or without recourse of any notes or accounts receivable or any rights and claims associated therewith.

“Dollar” and “$” means lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary of Borrower or any other Loan Party that is organized under the Laws of the United States of America, any state or territory thereof, or the District of Columbia and is not a direct or indirect Subsidiary of a Foreign Subsidiary.

“Earnings Before Interest and Taxes” means for any period the sum of (a) net income (or loss) of any Person on a Consolidated Basis for such period, plus (b) to the extent deducted in the determination of net income (or loss) for such period, (i) all interest expense of such Person on a Consolidated Basis for such period, including interest expense resulting from original issue discount and other amortization of debt discount as determined in accordance with GAAP, plus (ii) all charges against income of such Person on a Consolidated Basis for such period for federal, state and local income taxes, plus (iii) any non-cash expense of such Person on a Consolidated Basis associated with ASC Topic 350, ASC Topic 360, ASC Topic 480 or ASC Topic 815, plus (iv) any non-cash expenses of such Person on a Consolidated Basis associated with stock options, warrants or stock grants of such Person and its Subsidiaries, plus (v) any non-cash expenses incurred in connection with the early extinguishment of Indebtedness of such Person or its Subsidiaries, plus (vi) any other unusual or one-time items which are mutually agreed upon by the Agent and Borrower. In addition, the calculation of Earnings Before Interest and Taxes for any period shall be adjusted to exclude (1) any aggregate net gain or loss arising from any permitted sale, conversion, exchange or other disposition of capital assets made during such period, including (A) all non-current assets, and (B) without duplication, the following assets, whether or not current: fixed assets, whether tangible or intangible, inventory sold in connection with the disposition of fixed assets and all Equity Securities and other securities, (2) any net gain from the collection during such period of any proceeds of life insurance policies, (3) any gain or loss (or other impact to the financial statements) arising from the repurchase during such period of Equity Securities and (4) any non-cash income or expense realized during such period relating to any Swap Contract.

10

“East West Subordination Agreement” means that certain Subordination Agreement in substantially the form of Exhibit B-1, dated as of the Closing Date, by and among Borrower, the other Loan Parties, Agent and the First Lien Agent.

“Environment” means the natural and man-made environment including all or any of the following media, namely air, water and land (including air within buildings and other natural or man-made structures above or below the ground) and any living organisms (including man) or systems supported by those media.

“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), whether pending or threatened in writing, by any Governmental Authority or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the Environment.

“Environmental Laws” means all Laws and Consents relating to public health and safety and protection of the Environment, threatened or endangered species, preservation or reclamation of natural resources, Releases or to health and safety matters

“Equity Security” or “Equity Securities” of any Person means (a) all common stock or shares, preferred stock or shares, participations in the stock or shares of such Person, partnership interests, membership interests or other ownership or equity interests in such Person (regardless of how designated and whether voting or nonvoting) and (b) all warrants, options and other rights to acquire any of the foregoing.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, or any successor federal statute.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Borrower such that such trade or business, together with Borrower, is treated as a single employer within the meaning of Section 414 of the Code).

11

“ERISA Event” means (a) a Reportable Event with respect to a Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in critical status (as defined in ERISA Section 305(b)(2)) or is in endangered status (as defined in ERISA Section 305(b)(1)); (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC under Section 4042 of ERISA to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) an event or condition that results or could reasonably be expected to result in the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, to Borrower or any ERISA Affiliate; (g) with respect to any Pension Plan, the failure to satisfy the minimum funding standards under Section 412 and Sections 430 through 432 of the Code and Section 302 and Sections 303 through 305 of ERISA (whether or not waived); (h) with respect to any Pension Plan, the occurrence of any event that would result in the imposition of any limitation under Section 436 of the Code or Section 206(g) of ERISA; or (i) a prohibited transaction with respect to a Plan (other than a Multiemployer Plan) that could subject Borrower or any ERISA Affiliate to any material liability under Section 4975 of the Code or Section 406 of ERISA.

“Event of Default” means any of the events specified in Section 8.01.

“EWB” means East West Bank.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor federal statute.

“Excluded Taxes” has the meaning specified in Section 13.01(a).

“FATCA” means collectively, Section 1471 through Section 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any law implementing an intergovernmental agreement with respect to the foregoing entered into between a Governmental Authority of the United States of America and a Governmental Authority of the jurisdiction in which the applicable Recipient is resident.

“FCC” means the Federal Communications Commission and any successor or substitute Governmental Authority performing functions similar to those performed by the Federal Communications Commission on the date hereof.

“FCC License” means any License granted or issued by the FCC.

12

“First Lien Agent” means East West Bank, in its capacity as Administrative Agent under, and as defined in, the First Lien Credit Agreement.

“First Lien Credit Agreement” means that certain Credit Agreement, dated as of the Closing Date, by and among Borrower, the First Lien Agent and the lenders from time to time party thereto.

“First Lien Credit Documents” means the “Senior Documents” as such term is defined in the Subordination Agreement.

“First Lien Indebtedness” has the meaning given to the term “Senior Debt” in the Subordination Agreement.

“First Lien Threshold Amount” means the “Threshold Amount” as defined in the First Lien Credit Agreement.

“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, such Lien is prior to all other Liens on such Collateral, subject to any Permitted Lien which is prior as a matter of Law and subject to any Liens on such Collateral in favor of First Lien Agent.

“First Tier Foreign Subsidiary” means, at any date of determination, each foreign Subsidiary in which Borrower or any of its Domestic Subsidiaries owns directly more than fifty percent (50%), in the aggregate, of the Equity Securities of such Subsidiary.

“Fixed Charge Coverage Ratio” means, with respect to any fiscal period, for the Borrower on a Consolidated Basis, the ratio of (a) Adjusted EBITDA of Borrower on a consolidated basis for such period, less Capital Expenditures of the Borrower on a Consolidated Basis during such period which are not funded by borrowed money (but excluding from “borrowed money” proceeds of Revolving Loans), less all taxes (whether federal, local, state, income or otherwise) actually paid by the Borrower on a Consolidated Basis during such period to (b) Fixed Charges; provided that for the four fiscal quarter period ending December 31, 2016, the Fixed Charges will be the Fixed Charges for such fiscal quarter multiplied by four (4), for the four (4) fiscal quarter period ending March 31, 2017, the Fixed Charges will be the Fixed Charges for the two (2) fiscal quarter period ending on such date multiplied by two (2), for the four (4) fiscal quarter period ending June 30, 2017, the Fixed Charges will be the Fixed Charges for the three (3) fiscal quarter period ending on such date multiplied by one and one third (1.3).

“Fixed Charges” means the sum of (a) Debt Payments and (b) all payments made pursuant to, or in respect of, the Seller Specified Obligations , in each case made or scheduled to be made by the Borrower on a Consolidated Basis during such period, plus (c) payments made by the Borrower on a Consolidated Basis during such fiscal period on account of Capital Lease Obligations.

“Foreign Lender” means any Lender that is not a United States Person as defined in Section 7701(a)(30) of the Code.

13

“Foreign Subsidiary” means any (a) Subsidiary that is (i) treated as a corporation for U.S. federal income tax purposes and (ii) is not a United States persons for U.S. federal income tax purposes; and (b) Foreign Subsidiary HoldCo.

“Foreign Subsidiary HoldCo” means any Domestic Subsidiary all or substantially all of whose assets consist of Equity Securities in or indebtedness of one or more Subsidiaries that (a) is treated as a corporation for U.S. federal income tax purposes and (b) is not United States persons for U.S. federal income tax purposes.

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession, that are applicable to the circumstances as of the date of determination, consistently applied.

“Governmental Authority” means (a) any international, foreign, federal, state, provincial, territorial, municipal, local, national or other government, governmental or quasi-governmental department, commission, board, bureau, court, agency, taxing authority, regulatory body or authority (including a national securities exchange), central bank, public body or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to any government, court, regulation or compliance, in each case whether associated with a state or territory of the United States, the United States or any other foreign entity or government and (b) any corporation or other entity owned or controlled, through stock or capital ownership or otherwise by any of the foregoing.

“Governmental Authorizations” means any permit, license, certificate, authorization, plan, directive, consent, consent order or consent decree of or from any Governmental Authority, including the Licenses.

“Guarantor” means Parent and each Domestic Subsidiary of Parent in existence on the date hereof and designated as a Guarantor in the introductory paragraph of this Agreement and each other Subsidiary that may from time to time become a Guarantor hereafter pursuant to the terms of Section 6.18.

“Guaranty Obligation” means, as to any Person, any (a) guaranty by such Person of Indebtedness of, or other obligation payable or performable by, any other Person; or (b) assurance, agreement, letter of responsibility, letter of awareness, undertaking or arrangement given by such Person to an obligee of any other Person with respect to the payment or performance of an obligation by, or the financial condition of, such other Person, whether direct, indirect or contingent, including any purchase or repurchase agreement covering such obligation or any collateral security therefor, any agreement to provide funds (by means of loans, capital contributions or otherwise) to such other Person, any agreement to support the solvency or level of any balance sheet item of such other Person or any “keep-well” or other arrangement of whatever nature, in each such case, given for the purpose of assuring or holding harmless such obligee against loss with respect to any obligation of such other Person; provided, however, that the term “Guaranty Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, covered by such Guaranty Obligation or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the Person in good faith.

14

“Hazardous Materials” means any chemical, pollutant, contaminant, pesticide, petroleum or petroleum product or byproduct, radioactive substance, solid waste (hazardous or extremely hazardous), special, dangerous or toxic waste, hazardous or toxic substance, chemical or material regulated, listed, referred to, limited or prohibited under any Environmental Law, including without limitation those which could pose a hazard to the Environment, or the health or safety of any Person or materially impair the use or value of any portion of any real property owned or leased by any of the Loan Parties or any of their Subsidiaries.

“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.

“Hedging Obligation” shall have the meaning given to such term in the First Lien Credit Agreement, as in effect on the date hereof.

“Hedging Transaction” shall have the meaning given to such term in the First Lien Credit Agreement, as in effect on the date hereof.

“Indebtedness” means, as to any Person at any date of determination, the following items:

(a)          all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

(b)          any direct or contingent obligations of such Person arising under letters of credit (including standby and commercial letter of credit), banker’s acceptances, bank guaranties, surety bonds and similar instruments;

(c)          whether or not so included as liabilities in accordance with GAAP but excluding any portion thereof which would be accounted for as interest under GAAP, net obligations under any Swap Contract in an amount equal to (i) if such Swap Contract has been closed out, the termination value thereof, or (ii) if such Swap Contract has not been closed out, the mark-to- market value thereof determined on the basis of readily available quotations provided by any recognized dealer in such Swap Contract;

(d)          whether or not so included as liabilities in accordance with GAAP and whether with or without recourse, all obligations of such Person to pay the deferred purchase price of property or services, and all indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), provided that, this clause (d) shall not include the Seller Specified Obligations;

15

(e)          the aggregate amount of all Capital Lease Obligations of such Person;

(f)          the principal component or liquidation preference of all Equity Securities of such Person and which by the terms thereof could at any time prior to the Maturity Date (at the request of the holders thereof or otherwise) be subject to mandatory sinking fund payments, mandatory redemption or other acceleration;

(g)          all Guaranty Obligations of such Person in respect of any of the foregoing obligations of any other Person; and

(h)          all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e.. take-or-pay and similar obligations;

provided that for all purposes of this Agreement, Indebtedness shall exclude (i) trade and other accounts payable incurred in the ordinary course of business in accordance with customary trade terms and which are not overdue for a period of more than ninety (90) days (unless contested in good faith by Borrower or any Subsidiary), (ii) deferred Taxes, and (iii) accrued interest and expenses, except to the extent capitalized.

For all purposes of this Agreement, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (to the extent the joint venture is a legal entity where the venture members have pass-through liability for all of the debts of the joint venture) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person (subject to customary recourse exceptions acceptable to Agent).

“Indemnified Taxes” means Taxes other than Excluded Taxes or Other Taxes.

“Intellectual Property” means (a) all inventions and discoveries (whether patentable or not patentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications and patent disclosures, industrial designs, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (b) all trademarks, service marks, domain names, trade dress, logos, trade names and corporate names, together with all translations, adaptations, derivations and combinations thereof and including all goodwill associated therewith; (c) all copyrightable works, all copyrights and all applications, registrations and renewals in connection therewith; (d) all broadcast rights; (e) all mask works, designs, industrial designs, and all applications, registrations and renewals in connection therewith; (f) all know-how, trade secrets and confidential business information, whether patentable or unpatentable and whether or not reduced to practice (including ideas, research and development, know-how, formulas, compositions and manufacturing and production process and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals); (g) all computer software (including data and related documentation); (h) all other proprietary rights; (i) all copies and tangible embodiments thereof (in whatever form or medium); and (j) any rights or licenses to or from a third party in connection therewith.

16

“Intellectual Property Security Agreement” means that certain Amended and Restated Intellectual Property Security Agreement, dated as of the Closing Date, in substantially the form of Exhibit F, entered into by Borrower, each Subsidiary of Borrower from time to time party thereto, and Agent (for the benefit of the Lenders), securing the Obligations of Borrower (and, as the case may be, the obligations of each Subsidiary of Borrower), as the same may from time to time be amended, modified or supplemented.

“Interest” shall have the meaning assigned to that term in Section 2.05.

“Interest Payment Date” shall have the meaning assigned to that term in Section 2.05(a).

“Interest Rate” shall have the meaning assigned to that term in Section 2.05.

“Investment” means, as to any Person, any investment by such Person, whether by means of the purchase or other acquisition of the Equity Securities of any other Person or by means of a loan, creating a debt, capital contribution, guaranty or other debt or equity participation or interest in any other Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“Investment Management Agreement” means the Investment Management Agreement dated the Closing Date between First Lien Agent and an Affiliate of Agent.

“IRS” means the United States Internal Revenue Service.

“Issuer” has the meaning specified in Section 8.01(o).

“Joinder Agreement” means that certain Joinder Agreement, in substantially the form of Exhibit E, entered into by Borrower, the existing Guarantors, each other Subsidiary of a Loan Party that may from time to time be required to become a Guarantor hereafter pursuant to Section 6.18, and Agent (for the benefit of the Lenders).

“Law” or “Laws” means all international, foreign, federal, state, provincial, territorial, municipal, local, national or other governmental or quasi-governmental statutes, treaties, rules, guidelines, regulations, ordinances, codes, orders, injunctions, writs, decrees, bonds, judgments, administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations, approvals and permits of, and settlements and other agreements with, any Governmental Authority, in each case whether or not having the force of Law.

17

“Lender” and “Lenders” means each person identified as a “Lender” on the signature pages hereto, together with their respective successors and assigns as permitted by this Agreement.

“License” means license, permit, consent, certificate, franchise, approval, waiver, registration or authorization related to the Business granted or issued by the FCC, any applicable PUC or other Governmental Authority with jurisdiction over telecommunications related matters.

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement (including in the nature of, cash collateral accounts or security interests), encumbrance, lien (statutory or other), claim, fixed or floating charge, or other security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the UCC or comparable Laws of any jurisdiction), including the interest of a purchaser of a material portion of a seller’s accounts receivable.

“Liquidity” means, as of the date of determination, the result of (a) aggregate available “Revolving Loan Commitments” (as defined in the First Lien Credit Agreement), provided that, as of such date of determination, each of the conditions precedent in Section 4.02 of the First Lien Credit Agreement are satisfied, plus (b) the unrestricted cash and Cash Equivalents on deposit in or held in all Deposit Accounts and Securities Accounts of any Loan Party on such date of determination.

“Loan(s)” means an extension of credit by a Lender to Borrower as described in Section 2 hereof.

“Loan Documents” means this Agreement, each Note, each Security Document, each Subordination Agreement, any Joinder Agreement, each Collateral Access Agreement, the Perfection Certificate, and each certificate, fee letter, and other instrument, document or agreement from time to time executed by Borrower or any of its Subsidiaries or any Senior Officer and delivered in connection with this Agreement.

“Loan Party” means any of the Borrower, Parent and each other Guarantor and “Loan Parties” means, collectively, Borrower, Parent and each other Guarantor.

“Loan Year” means each period of twelve consecutive months beginning on the Closing Date and each anniversary thereof.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the assets, properties, operations, business, condition (financial or otherwise), or prospects of the Business, any Loan Party or any of its Subsidiaries, or (b) a material impairment of the ability of any Loan Party to perform its Obligations under any Loan Document to which it is a party, or (c) a material adverse effect upon the legality, validity, binding effect, or enforceability against each Loan Party of any Loan Document to which it is a party.

18

“Material Contract” means each contract, agreement, commitment and other Contractual Obligations of any Loan Party or any of their Subsidiaries, whether written or oral, other than (a) the Loan Documents, (b) purchase orders in the ordinary course of business, and (c) any other contract, agreement, commitment and other Contractual Obligation of any Loan Party or any of Subsidiary that (i) does not extend beyond one (1) year, (ii) does not involve the receipt or payment of not more than $500,000 and (iii) the loss of which could not reasonable be expected to have a Material Adverse Effect.

“Maturity Date” means May 12, 2022.

“McCrosson Agreement” means the Agreement, to be dated on or about November 18, 2016, among NBS, Solutions Express Ltd. and Technology Opportunities Group Ltd in form and substance consistent with the draft of the Agreement delivered to Agent on or about November 1, 2016 with only such modifications as could not reasonably be expected to be adverse to the interests of the Lenders in any material respect.

“Moody’s” means Moody’s Investor Services, Inc.

“Multiemployer Plan” means any Plan of the type described in Section 4001(a)(3) of ERISA.

“NBS” means Network Billing Systems, L.L.C., a New Jersey limited liability company.

“New Mortgage” has the meaning specified in Section 6.14.

“Note Register” has the meaning specified in Section 13.17(b).

“Notes” means the Series A Notes, the Series B Notes, the Series C Notes, the Series D Notes, the Series E Notes and the Series F Notes, each as defined in the recitals to this Agreement.

“Obligations” means, with respect to each Loan Party, any and all loans (including the loans evidenced by the Notes), advances, debts, liabilities, obligations, covenants and duties owing by Borrower to Lenders, or to any other direct or indirect subsidiary or affiliate of Lenders of any kind or nature, present or future (including any interest accruing thereon after maturity, or after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to Borrower whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) arising under this Agreement and the other Loan Documents, absolute or contingent, joint or several, due or to become due, contractual or tortious, liquidated or unliquidated, now existing or hereafter arising, including under any amendments, extensions, renewals or increases and all costs and expenses of Lenders incurred in the documentation, negotiation, modification, enforcement, collection or otherwise in connection with any of the foregoing, including attorneys’ fees and expenses owing under this Agreement and the other Loan Documents, and all obligations of Borrower to Lenders to perform acts or refrain from taking any action.

19

“Opus Credit Agreement” means the Amended and Restated Credit Agreement, dated as of December 8, 2015 pursuant to which Opus Bank and certain other lenders therein named extended a senior secured credit facility to Borrower in the original principal amount of $40,000,000.

“Ordinary Course Dispositions” means:

(a)          Dispositions of inventory in the ordinary course of business;

(b)          Dispositions of damaged, obsolete, surplus or worn out property in the ordinary course of business;

(c)          Dispositions among the Loan Parties (other than the Parent); and

(d)          Dispositions of real property interests in the form of subleases in the ordinary course of business.

“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate or articles of organization or formation and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership or joint venture agreement and any other agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the jurisdiction of its formation, in each case as amended from time to time.

“Other Taxes” means all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution or delivery of this Agreement or any other Loan Document.

“Parent” means Fusion Telecommunications International, Inc., a Delaware corporation.

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto established under ERISA.

“Pension Plan” means any Plan (other than a Multiemployer Plan) that is subject to Title IV of ERISA or the minimum funding requirements under Section 412 of the Code, and that Borrower or any ERISA Affiliate sponsors, maintains, contributes or has an obligation to contribute to or has sponsored, maintained, contributed or had an obligation to contribute to within the last five (5) years, or with respect to which Borrower or any ERISA Affiliate has any obligation or liability.

“Perfection Certificate” means that certain Perfection and Diligence Certificate, dated as of the Closing Date, executed by the Loan Parties, and in substantially the form of Exhibit C-1 or that certain annual Perfection and Diligence Certificate delivered from time to time pursuant to Section 6.01(j) in substantially the form of Exhibit C-2.

20

“Permitted Liens” means:

(a)          Subject to the provisions of the East West Subordination Agreement, Liens in favor of Agent, for the benefit of itself and the Lenders, pursuant to any Loan Document;

(b)          Liens for Taxes, assessments or other governmental charges not delinquent or being Properly Contested;

(c)          deposits or pledges to secure obligations under worker’s compensation, social security or similar Laws, or under unemployment insurance;

(d)          deposits or pledges to secure bids, tenders, contracts (other than contracts for borrowed money), leases, statutory obligations, surety, litigation and appeal bonds and other obligations of like nature arising in the ordinary course of business;

(e)          Liens arising by virtue of the rendition, entry or issuance against any Loan Party or any of its Subsidiaries, or any property of any such Person, of any judgment, writ, order or decree, provided that such Liens are in existence for less than twenty (20) consecutive days after they first arise or are being Properly Contested;

(f)          carriers’, warehousemen’s, repairmen’s, landlord’s, mechanics’, workers’, materialmen’s or other like Liens arising in the ordinary course of business with respect to obligations which are not due or which are being Properly Contested;

(g)          Liens placed upon equipment or real property hereafter acquired or leased to secure a portion of the purchase price or lease thereof, provided that (i) any such Lien shall not encumber any other property of the Loan Parties or their Subsidiaries and (ii) the aggregate amount of Indebtedness incurred as a result of such purchases, during any fiscal year, shall not exceed the amount provided for in Section 7.07(c);

(h)          Liens disclosed on Schedule 7.02;

(i)          non-exclusive licenses of Intellectual Property and leases or sub-leases of equipment or Real Property, in each case granted to third Persons in the ordinary course of business and which do not interfere in any material respect with the operations of the business of the Loan Parties or their Subsidiaries;

(j)          Liens in favor of the First Lien Agent pursuant to any First Lien Credit Document;

(k)          Liens on cash and Cash Equivalents securing obligations in respect of Hedging Transactions permitted under Section 7.21;

(l)          easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of any Person;

21

(m)          attachment, judgment or other similar Liens arising in connection with litigation or other legal proceedings (and not otherwise constituting an Event of Default hereunder) in the ordinary course of business, being Properly Contested and no item or portion of property of any Loan Party or any Subsidiary of any Loan Party is in jeopardy of being seized, levied upon or forfeited as a result thereof;

(n)          Liens arising from sub-leasehold interests; the rights of licensors of real property interests under licenses under which Borrower or a Subsidiary is the licensee, and licenses granted in the ordinary course of business and not interfering in any material respect with the business of the licensor;

(o)          Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties and in connection with the importation of goods in the ordinary course of Borrower’s and its Subsidiaries’ businesses that are promptly paid on or before the date they become due;

(p)          Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by such Loan Party in excess of those set forth by regulations promulgated by its Board, and (ii) such deposit account is not intended by any Loan Party or any Subsidiary of any Loan Party to provide collateral to the depository institution; and

(q)          purported Liens evidenced by the filing of UCC precautionary financing statements relating to operating leases entered into in the ordinary course of business, not otherwise prohibited under this Agreement and applying only to assets of the purported secured party being leased by the purported debtor.

“Person” means any individual, trustee, corporation, general partnership, limited partnership, limited liability company, joint stock company, trust, unincorporated organization, bank, business association, firm, joint venture, or Governmental Authority or other entity of any kind and shall include any successor (by merger or otherwise) of such entity.

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including any Pension Plan or any Multiemployer Plan) that any Borrower or ERISA Affiliate sponsors, maintains, contributes or has an obligation to contribute to or with respect to which Borrower or any ERISA Affiliate otherwise has any obligation or liability.

“Pledge Agreement” means the Second Amended and Restated Pledge Agreement, substantially in the form of Exhibit D, by and among the Loan Parties party thereto from time to time, as Pledgors, and Agent (for the benefit of the Lenders), as Secured Party, securing the Obligations, as the same may from time to time be amended, modified or supplemented

“Prior Securities Purchase Agreements” has the meaning in the recitals to this Agreement.

22

“Proceeding Party” has the meaning specified in Section 10.21.

“Properly Contested” means contested in good faith by appropriate proceedings diligently conducted which stay the enforcement of any Lien and for which adequate reserves in accordance with GAAP are being maintained by the Loan Parties and their Subsidiaries; provided, that no such Lien shall have any effect on the priority of the Liens in favor of Agent for its benefit and for the ratable benefit of Lenders or the value of the assets on which Agent has such a Lien and a stay of enforcement of any such Lien shall be in effect.

“PUC” means any state or other local public utility commission, franchising authority, or similar regulatory agency or body that has jurisdiction over telecommunications related matters.

“PUC License” means any License granted or issued by any PUC.

“Purchase Money Indebtedness” means and includes (a) Indebtedness (other than Indebtedness under this Agreement or any other Loan Document) of any Loan Party for the payment of all or any part of the purchase price of any equipment, (b) any Indebtedness (other under this Agreement or any other Loan Document) of any Loan Party incurred at the time of or within thirty (30) days prior to or one hundred twenty (120) days after the acquisition of any equipment for the purpose of financing all or any part of the purchase price thereof (whether by means of a loan agreement, Capital Lease or otherwise), and (c) any renewals, extensions or refinancings (but not any increases in the principal amounts) thereof outstanding at the time.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor Environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater, whether intentional or unintentional.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, for which the reporting requirement has not been waived.

“Requisite Lenders” means Lenders holding greater than sixty percent (60%) of the outstanding principal amount of the Notes.

“Restricted Payment” means:

(a) any dividend or other distribution, direct or indirect (whether in cash or property), on account of any Equity Securities of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, except a dividend payable solely in shares of that class of Equity Securities to the holders of that class;

23

(b) any payment or prepayment of principal of, premium, if any, or interest on, or any redemption, conversion, exchange, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Securities of any Loan Party or any of its Subsidiaries now or hereafter outstanding, or the issuance of a notice of an intention to do any of the foregoing (or setting aside any funds for any of the foregoing purposes);

(c) any payment or prepayment of interest on, principal of, premium, if any, redemption, conversion, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Indebtedness subordinated to the Indebtedness existing pursuant to this Agreement or the other Loan Documents, other than, as expressly permitted under the terms of the applicable Subordination Agreement or other subordination agreement to which Agent and/or Lenders are a party;

(d) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any Equity Securities of any Loan Party or any of its Subsidiaries now or hereafter outstanding;

(e) any director fee paid to any member of the Board of Directors of any Loan Party who is also an employee of any Loan Party;

(f) any payments to Parent; and

(g) any payments to the sellers of the Target Company, except pursuant to the terms and conditions of the Target Acquisition Agreement, as in effect on the Closing Date.

“Rosen Shareholder Note” means the Second Amended and Restated Unsecured Promissory Note in the original principal amount of $928,081.18, dated as of the Closing Date, made by Parent in favor of Marvin Rosen, which note is subject to the Rosen Subordination Agreement.

“Rosen Subordination Agreement” means that certain Amended and Restated Intercreditor and Subordination Agreement, in substantially the form of Exhibit B-2, dated as of the Closing Date by and among Agent, Loan Parties and Marvin Rosen.

“S&P” means Standard & Poor’s Financial Services LLC, a division of The McGraw Hill Companies, Inc., and any successor thereto.

“SBA” means the United States Small Business Administration or any successor thereto.

“SBA Regulations” means the Small Business Investment Act of 1958, as amended, and the Regulations of SBA thereunder.

“SBIC” means a small business investment company that is licensed by the SBA.

“Securities” means the Notes and the Warrants issued under the Prior Securities Purchase Agreements.

24

“Securities Account” has the meaning specified in the UCC.

“Security Documents” means the Intellectual Property Security Agreement, the Pledge and Security Agreement, the Control Agreements and each other security agreement executed in connection with this Agreement which recite that they secure all or a portion of the Obligations.

“Seller Specified Obligations” means, collectively, that certain Asset Purchase Agreement, dated September 30, 2015, by and between NBS and RootAxcess, LLC, (b) that certain Asset Purchase Agreement, dated as of March 25, 2016, by and between NBS and Technology for Business Corporation, and (c) that certain McCrosson Agreement.

“Senior Indebtedness” means, at any time, the aggregate Indebtedness of Borrower on a Consolidated Basis at such time, other than Indebtedness under the Loan Documents, Subordinated Debt (as defined in the First Lien Credit Agreement) or Indebtedness described in clause (c) of the definition thereof.

“Senior Leverage Ratio” means, with respect to each measuring period, the ratio of (a) Senior Indebtedness on such date to (b) Adjusted EBITDA of the Borrower on a Consolidated Basis for such measuring period, where “measuring period” means each period of four (4) consecutive fiscal quarters of the Borrower on a Consolidated Basis.

“Senior Officer” means, with respect to any Loan Party, any chief executive officer, the chief financial officer, the vice president, accounting and finance, the principal accounting officer, the chief operating officer or the treasurer of such Loan Party and any other Person reasonably designated in writing as a “Senior Officer” by a Loan Party.

“Separateness Requirements” means each of the following representations, warrants and covenants:

(a)          Except as expressly permitted by this Agreement, neither any Loan Party nor any of its Subsidiaries shall take any action, or conduct its affairs in a manner, which is likely to result in the corporate existence of such Loan Party or any of its Subsidiaries being ignored, or in the property and liabilities of such Loan Party or any of its Subsidiaries being substantively consolidated with those of any other such Person in a bankruptcy, reorganization or other insolvency proceeding.

(b)          Borrower on the one hand, and Parent on the other, will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.

(c)          Neither Borrower, Parent nor or any of their respective Subsidiaries will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.

(d)          Borrower will not commingle the funds and other assets of Borrower with those of any Affiliate or any other Person, and will hold all of its assets in its own name. Parent will not commingle the funds and other assets of Parent with those of any Affiliate or any other Person, and will hold all of its assets in its own name.

25

(e)          Borrower has and will maintain its assets in such manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. Parent shall not cause any business opportunities of Borrower to be directed to Parent or to any Loan Party other than Borrower, or take any other action which advantages Parent or any other Loan Party, to the disadvantage of Borrower.

(f)          Borrower will not permit any Affiliate independent access to its bank accounts. Parent will not permit any Affiliate independent access to its bank accounts. No Loan Party will permit (i) any accounts receivable from, or any proceeds or payments related to or arising from, Borrower’s Business Services division, as Borrower and its Subsidiaries is conducting as of the date of this Agreement, to be billed by or paid to, or otherwise received or held by, Parent, or (ii) Parent to bill or receive payment (or possess any proceeds thereof) for any services other than for Parent’s Carrier Services division, which Parent is providing on the date of this Agreement.

(g)          Each of Borrower and Parent will pay the salaries of its own employees (if any) from its own funds and maintain a sufficient number of employees (if any) in light of its contemplated business operations.

(h)          Each of Borrower and Parent will compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred.

(i)          The Organization Documents of each Loan Party (other than Parent) shall set forth the foregoing the Separateness Requirements and such other customary requirements relating to the separate nature, existence and operation of each Loan Party (other than Parent), as Agent may reasonably request from time to time.

The foregoing provisions are not intended to restrict Loan Parties from having a consolidated payroll function or a combined accounting and finance department or from using one another’s employees provided in any event that each of the Loan Parties shall maintain separate books and records with appropriate entries to account for such transactions, including an appropriate allocation of the direct cost of any employee used by more than one Loan Party.

“Solvent” means, as to any Person at any time, that (a) the fair value of the assets of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its assets and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital.

26

“Subordinated Debt” means Indebtedness subordinated to Agent and the Lenders in a manner, and pursuant to an agreement satisfactory to Agent in its sole discretion, which shall include, without limitation, all Indebtedness subject to any of the Subordination Agreements other than the East West Subordination Agreement.

“Subordinated Debt Documents” means any Contractual Obligation regarding any Subordinated Debt.

“Subordinated Debt Payment” means and includes all cash actually expended by any Loan Party or any of its Subsidiaries to make payments of principal or interest on any Subordinated Debt and of any fees, commissions or charges with respect to any Subordinated Debt.

“Subordination Agreements” means the East West Subordination Agreement and the Rosen Subordination Agreement.

“Subordination Provisions” has the meaning specified in Section 8.01(l).

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Equity Securities having ordinary voting power for the election of directors or other governing body (other than Equity Securities having such power only by reason of the happening of a contingency) are at the time beneficially owned or controlled, directly, or indirectly through one or more intermediaries, or both, by such Person; excluding however any such entity for so long as it conducts no business, owns or leases no Licenses, owns or holds no Equity Securities of any Loan Party, has assets of less than $10,000 and has assets of less than $50,000 when aggregated with all other entities excluded from the definition of “Subsidiary” pursuant to this proviso. For purposes of this definition, “controlled by” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting Equity Securities, by contract or otherwise. Unless otherwise specified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of a Loan Party.

“Swap Contract” shall have the meaning given to such term in the First Lien Credit Agreement, as in effect on the date hereof.

“Target Acquisition Agreement” means the Stock Purchase and Sale Agreement dated as of the date hereof, by and between Borrower and Apptix ASA.

“Target Acquisition Documents” means the Target Acquisition Agreement and all other agreements, documents and instruments delivered in connection therewith to which a Loan Party is a party thereunder, including all exhibits and schedules thereto.

“Target Company” means Apptix, Inc., a Florida corporation.

27

“Target Quality of Earnings Report” means that certain Apptix Inc. Due Diligence Report, dated August 5, 2016, by Citrin Cooperman.

“Target Transaction” means the acquisition by Borrower of all of the outstanding Equity Securities of the Target Company.

“Tax Return” means any return, declaration, report, claim for refund, or information return or statement return relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Taxes” has the meaning specified in Section 13.01(a).

“Threshold Amount” means $1,150,000.

“to the knowledge of” or “Knowledge” means, when modifying a representation, warranty or other statement of any Person, that the fact or situation described therein is known by such Person (or, (a) in the case of Borrower, known by any officer of Borrower or any other Loan Party; or, (b) in the case of any other Person other than a natural Person, known by any Senior Officer of such Person) making the representation, warranty or other statement, or with the exercise of reasonable due diligence under the circumstances (in accordance with the standard of what a reasonable Person in similar circumstances would have done) would have been known by such Person (or, (i) in the case of Borrower, would have been known by any officer of Borrower or any other Loan Party; or, (ii) in the case of any other Person other than a natural Person, would have been known by any Senior Officer of such Person).

“Total Leverage Ratio” means, with respect to each measuring period, the ratio of (a) the aggregate Indebtedness of Borrower on a Consolidated Basis (other than Indebtedness described in clause (c) of the definition thereof) on such date to (b) Adjusted EBITDA of Borrower on a Consolidated Basis for such measuring period, where “measuring period” means each period of four (4) consecutive fiscal quarters of Borrower on a Consolidated Basis.

“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of such Pension Plan’s assets, determined in accordance with the assumptions used for funding such Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

“UCC” has the meaning assigned to that term in Section 1.07.

“USA PATRIOT Act” means United States Public Law 107-56, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001), as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“U.S. Person” has the meaning specified in Section 13.01(f).

28

1.02         Certain Matters of Construction. All terms defined in this Agreement shall have the same defined meanings when used in any certificate or other document made or delivered pursuant hereto or thereto, unless otherwise defined therein. The terms “herein”, “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. Wherever appropriate in the context, terms used herein in the singular also include the plural and vice versa. All references herein to the time of day means the time in Pacific Time. Whenever the words “including” or “include” shall be used, such words shall be understood to mean “including, without limitation” or “include, without limitation”. A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the Requisite Lenders. Any Lien referred to in this Agreement or any of the other Loan Documents as having been created in favor of Agent, any agreement entered into by Agent pursuant to this Agreement or any of the Loan Documents, any payment made by or to or funds received by Agent pursuant to or as contemplated by this Agreement or any of the Loan Documents, or any act taken or omitted to be taken by Agent, shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of Agent and the other Lenders. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.

1.03         Accounting Terms; Financial Statements. All accounting terms used herein and not expressly defined in this Agreement shall have the respective meanings given to them in conformance with GAAP, as consistently applied to the applicable Person. Financial statements and other information furnished after the Closing Date pursuant to this Agreement or the other Loan Documents shall be prepared in accordance with GAAP as in effect at the time of such preparation, provided, however, (a) no effect will be given to any election under Statement of Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial Liabilities, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Indebtedness of any Loan Party or any Subsidiary at “fair value”, as defined therein and (b) that if at any time any change in GAAP would affect the computation of any financial ratio or financial requirement set forth in any Loan Document, and Borrower or Agent shall so request, Agent, the Requisite Lenders and the Loan Parties shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Loan Parties shall provide to the Lenders financial statements and other documents required under this Agreement which include a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

29

1.04         Rounding. Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed in this Agreement and rounding the result up or down to the nearest number (with a round-up if there is no nearest number) to the number of places by which such ratio is expressed in this Agreement.

1.05         Articles, Sections, Exhibits and Schedules. All references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement.

1.06         References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to agreements (including this Agreement and the other Loan Documents) and other contractual instruments shall include all exhibits and schedules attached thereto and all amendments, restatements, extensions, supplements and other modifications thereto (unless prohibited by any Loan Document), and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, extending, renewing, replacing, succeeding, supplementing or interpreting such Law.

1.07         Effect of this Agreement; Modification of Loan Documents. Upon the execution and delivery of this Agreement, the obligations and other liabilities (including interest and fees accrued to the date hereof) governed by the 8/28/15 A&R Securities Purchase Agreement (collectively, the “Original Obligations”) shall continue to be in full force and effect to the extent remaining unpaid, but shall be governed by the terms and conditions set forth in this Agreement. Each Loan Party hereby reaffirms its obligations under each Transaction Document (as defined in the 8/28/15 A&R Securities Purchase Agreement, collectively, the “Original Transaction Documents”) to which it is party, as amended, supplemented or otherwise modified by this Agreement and by the other Loan Documents delivered at the Closing. Each Loan Party further agrees that each such Original Transaction Document shall remain in full force and effect as amended as of the date hereof following the execution and delivery of this Agreement and that all references to the “Agreement” in such Original Transaction Documents shall be deemed to refer to this Agreement. The execution and delivery of this Agreement shall constitute an amendment, replacement and restatement, but not a novation or repayment, of the Original Obligations.

1.08         UCC Terms. All terms used herein and defined in the Uniform Commercial Code as adopted in the State of New York from time to time (the “UCC”) shall have the meaning given therein unless otherwise defined herein. Without limiting the foregoing, the terms “accounts”, “chattel paper”, “instruments”, “general intangibles”, “payment intangibles”, “supporting obligations”, “securities”, “investment property”, “documents”, “deposit accounts”, “software”, “letter of credit rights”, “inventory”, “equipment” and “fixtures”, as and when used shall have the meanings given to such terms in Articles 8 or 9 of the UCC. To the extent the definition of any category or type of Collateral is expanded by any amendment, modification or revision to the UCC, such expanded definition will apply automatically as of the date of such amendment, modification or revision.

30

1.09         Consent to Target Transaction. Upon satisfaction of the conditions precedent set forth is Section 4 hereof and the consummation of the Closing of the transactions contemplated herby, Lenders hereby consent to (i) the consummation of the Target Transaction and to Loan Parties entering into the First Lien Credit Agreement, and (ii) the amendments to the Organization Documents of the Loan Parties as provided in Section 4.01(a)(v) hereof.

SECTION 2

THE LOANS

2.01         Outstanding Notes. The Loan Parties acknowledge that Borrower has previously sold and there remains outstanding the Series A Notes, Series B Notes, Series C Notes, Series D Notes, Series E Notes and Series F Notes, except for such of the foregoing as had been issued to Plexus and its Affiliates.

2.02         Fees and Expenses. Concurrently with the execution hereof, the Borrower agrees to and shall (a) pay to, or as directed by, Agent (i) the Amendment Fee on the Closing Date and (ii) the Advisory Fee, in an amount equal to $100,000 on the Closing Date, and in an amount equal to $50,000 on the first Business Day of each of the following three consecutive months after the Closing Date and (b) reimburse, on the Closing Date, all of the Lenders’ reasonable out-of-pocket expenses (including Attorney Costs) incurred in connection with (i) the negotiation and execution and delivery of this Agreement and the other Loan Documents and the Lenders’ due diligence investigation and (ii) the transactions contemplated by this Agreement and the other Loan Documents, which payments shall be made by wire transfer of immediately available funds or Automated Clearing House (ACH) payment to an account or accounts designated by the Lenders.

2.03         Closing. The closing of the transactions contemplated by this Agreement shall take place at the closing (the “Closing”) to be held at the offices of Morrison Cohen LLP, 909 Third Avenue, New York, NY 10022 at 8:30 a.m., New York time, on the Closing Date.

2.04         Financial Accounting Positions; Tax Reporting. Each of the parties hereto agrees to take reporting and other positions with respect to the Securities which are consistent with the purchase price of the Securities set forth in the Prior Securities Purchase Agreements and herein for all financial accounting purposes, unless otherwise required by applicable GAAP or Commission rules. If any position inconsistent with the purchase price of the Securities set forth herein is taken, the covenants shall be adjusted to the extent necessary to eliminate any impact caused by such inconsistent position. Each of the parties to this Agreement agrees to take reporting and other positions with respect to the Securities which are consistent with the purchase price of the Securities set forth in the Prior Securities Purchase Agreements, and herein for all other purposes, including for all federal, state and local tax purposes, except as otherwise required by Applicable Law.

31

2.05         Interest. The Borrower shall pay interest (“Interest”) (i) on the principal amount of the Notes at the rate (i) from and after August 28, 2015, of ten and eighty hundredths percent (10.8%) per annum and (ii) for periods prior to August 28, 2015, at the rates provided in the Prior Securities Purchase Agreements (the “Interest Rate”), as set forth in clause (a) below. Interest on the Notes shall accrue from and including the date of issuance through and until repayment of the principal amount of the Notes and payment of all Interest in full, and shall be computed on the basis of a 360-day year of twelve 30-day months. Interest shall be paid as follows and all Interest accrued and unpaid through the Maturity Date shall be paid in full on the Maturity Date:

(a)          Cash Interest. Interest shall be paid monthly in arrears on the last day of each calendar month of each year or, if any such date shall not be a Business Day, on the immediately preceding Business Day to occur prior to such date (each date upon which Interest shall be so payable, an “Interest Payment Date”), beginning on October 31, 2012 with respect to the Original Notes, January 31, 2014 with respect to the Series C Notes and the Series D Notes, November 30, 2014 with respect to the Series E Notes and August 31, 2015 with respect to the Series F Notes, by wire transfer of immediately available funds or by Automated Clearing House (ACH) payment, in either case to an account at a bank designated in writing by each Lender. In the absence of any such written designation, any such Interest payment shall be deemed made on the date a check in the applicable amount payable to the order of each Lender is delivered to such Lender at its last address as reflected in the Note Register of the Borrower; if no such address appears, then to such Lender in care of the last address in such Note Register of any predecessor holder of the Notes (or its predecessor).

(b)          [Reserved].

(c)          Default Interest. Notwithstanding the foregoing provisions of this Section 2.05, but subject to Applicable Law, any overdue principal of and overdue Interest on the Notes shall bear interest, payable on demand in immediately available funds, for each day from the date payment thereof was due to the date of actual payment, at a rate equal to the sum of (i) the Interest Rate and (ii) an additional two percent (2%) per annum, and, upon and during the occurrence of an Event of Default, the Notes shall bear interest, from the date of the occurrence of such Event of Default until such Event of Default is cured or waived, payable on demand in immediately available funds, at a rate equal to the sum of (i) the Interest Rate, and (ii) an additional two percent (2%) per annum. Subject to Applicable Law, any interest that shall accrue on overdue interest on the Notes as provided in the preceding sentence and shall not have been paid in full on or before the next Interest Payment Date to occur after the date on which the overdue interest became due and payable shall itself be deemed to be overdue interest to which the preceding sentence shall apply.

(d)          No Usurious Interest. In the event that any interest rate(s) or premiums provided for in this Section 2.05 or otherwise in this Agreement, shall be determined to be unlawful, such interest rate(s) shall be computed at the highest rate permitted by Applicable Law. Any payment by the Loan Parties of any interest amount in excess of that permitted by Applicable Law shall be considered a mistake, with the excess being applied to the principal amount of the Notes without prepayment premium or penalty; if no such principal amount is outstanding, such excess shall be returned to the Loan Parties.

32

(e)          AHYDO. Notwithstanding anything to the contrary contained in Section 2, if (1) the loans evidenced by the Notes remain outstanding after the fifth anniversary of the initial issuance thereof and (2) the aggregate amount of the accrued but unpaid interest on such loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of any Testing Date occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual, then all such accrued but unpaid interest on such loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of such time in excess of an amount equal to the Maximum Accrual shall be paid in cash by the Borrower to the holders thereof on such Testing Date, it being the intent of the parties hereto that the deductibility of interest under such loans shall not be limited or deferred by reason of Section 163(i) of the Code. For these purposes, the “Maximum Accrual” is an amount equal to the product of the issue price of such loans (as defined in Code Sections 1273(b) and 1274(a)) and their yield to maturity, and a “Testing Date” is any Interest Payment Date and the date on which any “accrual period” (within the meaning of Section 1272(a)(5) of the Code) closes. Any accrued interest which for any reason has not theretofore been paid shall be paid in full on the date on which the final principal payment on such loans is made.

(f)          SBA Cost of Money Limitation. The sum of (i) the Interest Rate paid by the Loan Parties to the Lenders and (ii) all other consideration paid by the Loan Parties to the Lenders pursuant to the Notes and any other provision of this Agreement that constitutes Cost of Money, shall not exceed, with respect to any Lender that is an SBIC, the ceiling for the Cost of Money that is applicable to the Notes pursuant to SBA Regulations. Any payment to a Lender that is an SBIC of default interest pursuant to Section 2.06(c), Mandatory Redemption Price or other consideration pursuant to this Agreement that results in the Cost of Money for the Notes being in excess of the applicable ceiling for the Cost of Money for the Notes shall be considered an error and shall be returned to the Loan Parties.

SECTION 3

Collateral

3.01         Security Interest in the Collateral. To secure the prompt payment and performance of the Obligations, Borrower hereby grants to Agent for its benefit and the benefit of each Lender a continuing security interest in and to and Lien on all of its Collateral, whether now owned or existing or hereafter acquired or arising and wheresoever located. To secure the prompt payment and performance of the Guarantors’ Obligations, each Guarantor hereby grants to Agent for its benefit and the benefit of each Lender a continuing security interest in and to and Lien on all of its Collateral, whether now owned or existing or hereafter acquired or arising and wheresoever located. Each Loan Party shall provide Agent with written notice of all commercial tort claims promptly following its determination that it has any such claim, such notice to contain the case title (if any proceeding has been commenced thereon) together with the applicable court and a brief description of the claim(s). Upon delivery of each such notice, each Loan Party shall be deemed to hereby grant to Agent for its benefit and the benefit of each Lender a security interest and Lien in and to such commercial tort claim(s) and all proceeds thereof and execute and deliver to Agent any further agreement or document requested by Agent to further evidence the grant of a security interest in such claim.

33

3.02         Perfection of Security Interest. Each Loan Party shall take all action that may be reasonably necessary or desirable, or that Agent may reasonably request, in order to maintain at all times the validity, perfection, enforceability and priority of Agent’s security interest in and Lien on the Collateral or to enable Agent and Lenders to protect, exercise or enforce their rights hereunder and in the Collateral, including (i) immediately discharging all Liens other than Permitted Liens, (ii) obtaining Collateral Access Agreements in accordance with Section 6.16, (iii) delivering to Agent, endorsed or accompanied by such instruments of assignment as Agent may specify, and stamping or marking, in such manner as Agent may specify, any and all chattel paper, instruments, letters of credit and advices thereof and documents evidencing or forming a part of the Collateral, and (iv) executing and/or delivering financing statements, control agreements, instruments of pledge, mortgages, notices, assignments and other documents, in each case in form and substance reasonably satisfactory to Agent, relating to the creation, validity, perfection, maintenance or continuation of Agent’s security interest and Lien under the Uniform Commercial Code or other Applicable Law. Each Loan Party hereby authorizes the filing of any financing statements or continuation statements, and amendments to financing statements or any similar document in any applicable jurisdictions and with any filing offices as Agent may determine are necessary or advisable to perfect the security interest granted to Agent for its benefit and the benefit of each Lender herein. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or a description of collateral that describes such property in any other manner as Agent may determine is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to Agent for its benefit and the benefit of each Lender herein, including describing such property as “all assets” or “all personal property, whether now owned or hereafter acquired.” All actual, out-of-pocket charges, expenses and fees Agent may incur in doing any of the foregoing, and any local taxes relating thereto, shall be added to the Obligations, or, at Agent’s option, shall be paid by each Loan Party to Agent immediately upon demand.

3.03         Safeguarding Collateral. Each Loan Party will take commercially reasonable efforts at all times to safeguard, protect and preserve all Collateral other than dispositions expressly permitted hereunder.

3.04         Ownership of Collateral. With respect to the Collateral, at the time the Collateral becomes subject to Agent’s security interest: (i) except as set forth on Schedule 3.04, each Loan Party shall be the sole owner of and fully authorized and able to sell, transfer, assign each Loan Party’s rights to, pledge and/or grant a security interest and Lien in each and every item of Collateral to Agent for its benefit and the benefit of each Lender and, except for Permitted Liens, the Collateral shall be free and clear of all Liens or encumbrances whatsoever; (ii) the Lien on the Collateral granted by each Loan Party other than Parent shall be, except for the Liens in favor of the holders of the First Lien Indebtedness, but subject to the Subordination Agreement, a first priority security interest and the Lien on the Collateral granted by Parent shall be a security interest subject only to the Liens securing the First Lien Indebtedness; (iii) each document and agreement executed by each Loan Party or delivered to Agent and Lenders in connection with this Agreement shall be true and correct in all material respects; and (iv) all signatures and endorsements of each Loan Party that appear on such documents and agreements shall be genuine and each Loan Party shall have full capacity to execute same.

34

3.05         Defense of Agent’s Interest. Until (a) full and indefeasible payment and performance of all of the Obligations and (b) termination of this Agreement, Agent’s interest in the Collateral shall continue in full force and effect. Each Loan Party shall use commercially reasonable efforts to defend Agent’s interest in the Collateral against any and all Persons whatsoever.

3.06         Financial Disclosure. Each Loan Party hereby irrevocably authorizes and directs all accountants and auditors employed by each Loan Party at any time to exhibit and deliver to Agent copies of any of each Loan Party’s financial statements, trial balances or other accounting records of any sort in the accountant’s or auditor’s possession (other than work papers and other proprietary information of such accountants and auditors), and to disclose to Agent any information such accountants may have concerning each Loan Party’s financial status and business operations. Each Loan Party hereby authorizes all Governmental Authorities to furnish to Agent copies of material reports or examinations relating to each Loan Party; however, Agent will attempt to obtain such information or materials directly from each Loan Party prior to obtaining such information or materials from such accountants or Governmental Bodies.

3.07         Accounts.

(a)          Nature of Accounts. Each of the Accounts of the Loan Parties is and shall be a bona fide and valid account representing a bona fide indebtedness incurred by the Customer therein named, for a fixed sum as set forth in the invoice relating thereto (provided immaterial or unintentional invoice errors shall not be deemed to be a breach hereof) with respect to an absolute sale or lease and delivery of goods upon stated terms of each Loan Party, or work, labor or services theretofore rendered by each Loan Party, as applicable, as of the date each Account is created. The Customer’s obligation with respect thereto shall be due and owing in accordance with each Loan Party’s standard terms of sale without dispute, setoff or counterclaim except as may be stated on the accounts receivable schedules delivered by each Loan Party to Agent.

(b)          Solvency of Customers. Each Customer, to each Loan Party’s knowledge, as of the date each Account is created, is and will be solvent and able to pay all Accounts on which the Customer is obligated in full when due or with respect to such Customers of each Loan Party who are not solvent, each Loan Party has set up on its books and in its financial records bad debt reserves adequate to cover such Accounts.

(c)          Chief Executive Offices. Unless at least ten (10) Business Days prior written notice is given to Agent by each Loan Party of any other office at which each Loan Party keeps its records pertaining to Accounts, all such records shall be kept at such chief executive office shown in Schedule 3.07.

(d)          Collection of Accounts. Subject to the terms of the East West Subordination Agreement, upon request of Agent at any time after the occurrence and during the continuance of an Event of Default, each Loan Party will, at each Loan Party’s sole cost and expense but on Agent’s behalf and for Agent’s account, collect all amounts owing on its Accounts, shall not commingle any collections with each Loan Party’s funds or use the same except to pay Obligations, and Agent shall deposit or cause to be deposited into a blocked account designated by the Agent, in original form and on the date of receipt thereof all checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness.

35

(e)          Verification and Notification of Assignment of Accounts. Subject to the terms of the East West Subordination Agreement, Agent shall have the right, at any time upon the occurrence and during the continuance of an Event of Default, to confirm and verify any and all Accounts by any manner and through any medium it considers advisable. Upon the occurrence and during the continuance of an Event of Default, Agent shall have the right to send notice of the assignment of, and Agent’s security interest in and Lien on, the Accounts to any and all customers or any third party holding or otherwise concerned with any of the Collateral. At all times during such period, the Agent, subject to the East West Subordination shall have the sole right to collect and commence legal proceedings to collect the Accounts, take possession of the Collateral, or both. Agent’s actual, out-of-pocket collection expenses, including stationery and postage, telephone, secretarial and clerical expenses and the salaries of any collection personnel used for collection, may be added to the Obligations.

(f)          Power of Agent to Act on Each Loan Party’s Behalf. Each Loan Party hereby constitutes Agent or Agent’s designee as each Loan Party’s attorney and agent with power to take each of the following actions (if an Event of Default shall have occurred and be continuing, except those described in the following clause (iii) and (iv) which actions may be taken at any time and from time to time): (i) to endorse each Loan Party’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment or Collateral; (ii) to sign each Loan Party’s name on any invoice or bill of lading relating to any of the Accounts, drafts against Customers, assignments and verifications of Accounts; (iii) to send verifications of Accounts to any Customer, (iv) to sign each Loan Party’s name on all financing statements or any other documents or instruments deemed necessary or appropriate by Agent to preserve, protect, or perfect Agent’s interest in the Collateral and to file same; (v) to demand payment of the Accounts; (vi) to enforce payment of the Accounts by legal proceedings or otherwise; (vii) to exercise all of each Loan Party’s rights and remedies with respect to the collection of the Accounts and any other Collateral; (viii) to settle, adjust, compromise, extend or renew the Accounts; (ix) to settle, adjust or compromise any legal proceedings brought to collect Accounts; (x) to prepare, file and sign each Loan Party’s name on a proof of claim in bankruptcy or similar document against any Customer; (xi) to prepare, file and sign each Loan Party’s name on any notice of Lien, assignment or satisfaction of Lien or similar document in connection with the Accounts; (xii) to change the address for delivery of mail addressed to each Loan Party to such address as Agent may designate and to receive, open and dispose of all mail addressed to either of them and (xiii) to do all other acts and things necessary to carry out this Agreement. All acts of said attorney and agent or designee are hereby ratified and approved, and said attorney and agent or designee shall not be liable for any acts of omission or commission nor for any error of judgment or mistake of fact or of law, unless done maliciously or with gross (not mere) negligence; this power being coupled with an interest is irrevocable while any of the Obligations remain unpaid.

36

(g)          No Liability. Agent shall not, under any circumstances or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts or any instrument received in payment thereof, or for any damage resulting therefrom except as a result of the gross negligence or willful misconduct of such Person. If an Event of Default shall have occurred and be continuing, Agent may, without notice or consent from each Loan Party, sue upon or otherwise collect, extend the time of payment of, compromise or settle for cash, credit or upon any terms any of the Accounts or any other securities, instruments or insurance applicable thereto and/or release any Loan Party thereof. If an Event of Default shall have occurred and be continuing, Agent is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by each Loan Party, all without discharging or in any way affecting each Loan Party’s liability hereunder.

(h)          Adjustments. Each Loan Party will not, without Agent’s consent, compromise or adjust any Accounts (or extend the time for payment thereof) or accept any returns of merchandise or grant any additional discounts, allowances or credits thereon except for those compromises, adjustments, returns, discounts, credits and allowances as have been heretofore customary in the ordinary course of business of each Loan Party.

3.08         Exculpation of Liability. Nothing herein contained shall be construed to constitute Agent as agent of any Loan Party for any purpose whatsoever, nor shall Agent be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof. Agent, whether by anything herein or in any assignment or otherwise, does not assume any of any Loan Party’s obligations under any contract or agreement assigned to Agent, and Agent shall not be responsible in any way for the performance by any Loan Party of any of the terms and conditions thereof.

3.09         Financing Statements. Except with respect to (a) the financing statements filed by the First Lien Agent, (b) the financing statements described on Schedule 3.09, and (c) any financing statement with respect to any other Permitted Lien, no financing statement covering any of the Collateral or any proceeds thereof is on file in any public office.

SECTION 4

CONDITIONS PRECEDENT

4.01         Conditions of Effectiveness. Subject to Section 6.19, the effectiveness of this Agreement is subject to satisfaction or waiver by Agent of the following conditions precedent:

(a)          Unless waived by Agent and Lenders, Agent’s receipt of the following, each of which shall be originals or facsimiles, including pdfs or similar electronic transmission (followed promptly by originals,) unless otherwise specified, each properly executed by a Senior Officer of Borrower or the applicable Guarantor (including the Target Company), each dated on, or in the case of third-party certificates, dated on or as of a recent date before, the Closing Date and each in form and substance satisfactory to Agent, each Lender and their legal counsel:

(i)          executed counterparts of the Loan Documents;

37

(ii)         executed original counterparts of each Subordination Agreement, each in form and substance satisfactory to Agent;

(iii)        executed copies of the First Lien Credit Documents and the Term Loan (as defined therein) shall have funded in accordance with the terms of the First Lien Credit Documents; (Reserved);

(iv)        (Reserved);

(v)         amendments to the Organization Documents of the Loan Parties in form and content reasonably acceptable to Agent;

(vi)        such certificates of resolutions or other action, incumbency certificates and/or other certificates of Senior Officers of Borrower, each Guarantor, as Agent may require to establish the identities of and verify the authority and capacity of each Senior Officer thereof authorized to act as a Senior Officer thereof;

(vii)       such evidence as Agent and any Lender may reasonably require to verify that Borrower and each Guarantor is duly organized or formed, validly existing, in good standing and qualified to engage in business in Borrower’s or such Guarantor’s jurisdiction of organization and in each foreign jurisdiction in which Borrower or such Guarantor is required to be qualified, including copies of Borrower’s and each Guarantor’s Organization Documents certified by the corporate Secretary, certificates of good standing and/or qualification to engage in business and, if requested by Agent, tax clearance certificates;

(viii)      a Perfection Certificate signed by a Senior Officer of the Loan Parties;

(ix)         a certificate signed by a Senior Officer of Borrower certifying that (1) the representations and warranties made by each Loan Party in the Loan Documents are true and correct on and as of the Closing Date (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (2) each Loan Party is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, (3) since December 31, 2015, there has been no event or circumstance which has or has had a Material Adverse Effect, and (4) a pro forma calculation of the Total Leverage Ratio of less than 4.50x, Senior Leverage Ratio of less than 3.00x, Adjusted EBITDA of the Parent on a Consolidated Basis of not less than $15,630,000, and Adjusted EBITDA of Borrower on a Consolidated Basis of not less than $19,130,000 (in each case giving effect to the Target Transaction and the funding of the Term Loans (as defined in the First Lien Credit Agreement) on the Closing Date);

(x)          (Reserved);

38

(xi)         an opinion of Kelley Drye & Warren LLP, Morgan Lewis & Bockius LLP, Keating Muething & Klekamp PLL and Bilzin Sumberg Baena Price & Axelrod LLP, each legal counsel to the Loan Parties, as to matters Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance satisfactory to Agent;

(xii)        receipt of certificates of insurance required to be maintained under Section 6.09, from insurance carriers acceptable to Agent, which certificates of insurance are in such forms and evidence such amounts of insurance coverage and deductibles acceptable to Agent pursuant to insurance policies with additional insured and lender loss payable clauses in favor of Agent and the Lenders;

(xiii)       Loan Parties shall have received all Governmental Authorizations and all Consents, in each case that are necessary in connection with the entry into, consummation and performance of the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion shall have expired;

(xiv)      Agent and the Lenders shall have received all documentation and other information required by such institution or its bank regulatory authorities under Sanctions, Anti-Terrorism Laws, Anti-Corruption Laws and other Laws, including the USA PATRIOT Act;

(xv)       Agent shall have received evidence, reasonably satisfactory to Agent, that Borrower has completed the Target Transaction in accordance with the terms of the Target Acquisition Documents (without any material amendment thereto or waiver thereunder unless consented to by Agent). Agent shall have received a copy of the Target Acquisition Agreement and all supplements, amendments, installments, documents and agreements related thereto, certified in an Officer’s Certificate, dated the Closing Date, as correct and complete;

(xvi)      (Reserved);

(xvii)      receipt of a copy of the representations and warranty insurance in favor of the Borrower, from an insurance carrier acceptable to Agent, which policy of insurance is in such form and evidences such amounts of insurance coverage and deductibles acceptable to Agent; and

39

(xviii)    such other assurances, certificates, documents, consents or opinions as Agent reasonably may require.

(b)          All amounts payable under Section 2.02, shall have been paid.

(c)          Unless waived by Agent, Borrower shall have paid all Attorney Costs of Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Agent).

SECTION 5

REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants, in respect of itself and on behalf of each other Loan Party, to Agent and each Lender that:

5.01         Existence and Power. Each Loan Party and each of its Subsidiaries: (i) is a corporation, limited liability company or limited partnership, as applicable, duly formed, validly existing and in good standing under the laws of its jurisdiction of organization or formation; (ii) has all requisite power and authority to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged; (iii) is duly qualified as a foreign entity, licensed and in good standing under the laws of its state of organization or formation and of each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except to the extent that the failure to so qualify would not have a Material Adverse Effect; and (iv) has the power and authority to execute, deliver and perform its obligations under each Loan Document to which it is or will be a party and, in the case of Borrower, to borrow hereunder. Schedule 5.01 contains a true, complete and correct list of each Loan Party’s and each of its Subsidiaries’ jurisdiction of organization or formation (as applicable) and each jurisdiction where each such Loan Party or its Subsidiary is qualified to do business as a foreign entity.

5.02         Authorization; No Contravention. The execution, delivery and performance by Borrower of this Agreement and by each Loan Party of each other Loan Document to which it is or will be a party and the consummation of the transactions contemplated hereby and thereby, including the borrowings or performance of the terms and conditions of this Agreement and the other Loan Documents: (a) has been duly authorized by all necessary action (including, obtaining approval of its stockholders, partners, general partners, members or other applicable equity owners, if necessary); (b) do not and will not contravene the terms of the Organization Documents of such Loan Party or any of its Subsidiaries, or any amendment thereof or any Law or Consent applicable to such Person or such Person’s assets, business or properties; (c) do not and will not (i) conflict with, contravene, result in any violation or breach of or default under (with or without the giving of notice or the lapse of time or both), (ii) create in any other Person a right or claim of termination or amendment of, or (iii) require modification, acceleration or cancellation of, any Contractual Obligation of any Loan Party or any of its Subsidiaries; and (d) do not and will not result in the creation of any Lien (or obligation to create a Lien) against any property, asset or business of any Loan Party or any of its Subsidiaries (other than Permitted Liens).

40

5.03         Governmental Authorization; Third Party Consents. No approval, consent, compliance, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person in respect of any applicable Law, Consent or Contractual Obligation, and no lapse of a waiting period under any applicable Law, Consent or Contractual Obligation, is necessary or required in connection with the execution, delivery or performance by (including the payment of interest on the Loans or other Obligations), or enforcement against (except for any Consents that may be required from a Governmental Authority before Agent may exercise certain rights in connection with an Event of Default), any Loan Party of the Loan Documents to which it is a party or the consummation of the transactions contemplated hereby or thereby.

5.04         Binding Effect. This Agreement has been, and each of the Loan Documents to which any Loan Party will be a party will be, duly executed and delivered by such Loan Party and this Agreement constitutes, and such Loan Documents will constitute, the legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise), examination, administration, judicial management, moratorium or similar Debtor Relief Laws (in any applicable jurisdiction) relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

5.05         Litigation. There are no legal actions, suits, proceedings, claims or disputes pending or, to the knowledge of any Loan Party, threatened, at law, in equity, in arbitration or before any Governmental Authority against or affecting such Loan Party or any of its Subsidiaries that (a) purport to affect or pertain to this Agreement, any other Loan Document, any Subordinated Debt Document, the Target Acquisition Documents or any of the transactions contemplated hereby or thereby, or (b) could reasonably be expected to result in equitable relief or in monetary judgments, individually in excess of $500,000 or in the aggregate, in excess of the First Lien Threshold Amount. No injunction, writ, temporary restraining order, decree or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of the Loan Documents or the Subordinated Debt Documents.

5.06         Compliance with Laws. Each Loan Party and each of its Subsidiaries is in compliance, in all material respects, with all applicable Laws and applicable Consents of any Governmental Authority.

5.07         No Default or Breach. No event has occurred and is continuing or would result from the incurring of obligations by the Loan Parties under the Loan Documents which constitutes or, with the giving of notice or lapse of time or both, would constitute an Event of Default. Neither any Loan Party nor any of its Subsidiaries is in default under or with respect to any Contractual Obligation in any material respect. Immediately prior to the execution and delivery of this Agreement no Default or Event of Default existed under, and as defined in, the Prior Securities Purchase Agreements.

41

5.08         Title to Properties.

(a)          Schedule 5.08(a) contains a true, complete and correct list of all real property owned by any Loan Party or any of its Subsidiaries. Each Loan Party and/or each of its Subsidiaries has good indefeasible and marketable title in and to all such owned real property, in each case, free and clear of all Liens, liabilities and rights except for Permitted Liens and as provided on Schedule 5.08(a).

(b)          Schedule 5.08(b) contains a list of all real property leased by any Loan Parties or any of its Subsidiaries. Each Loan Party and/or each of its Subsidiaries holds all of the right, title and interest of the tenant under such leased real property free and clear of all Liens, liabilities and rights except as provided on Schedule 5.08(b).

5.09         Use of Real Property. Except as set forth on Schedule 5.09, (a) the owned and leased real properties of the Loan Parties and their respective Subsidiaries are used and operated in compliance and conformity with all Contractual Obligations and all applicable Law and Consent, except to the extent that the failure so to comply would not have a Material Adverse Effect, and (b) neither any Loan Party nor any of its Subsidiaries has received notice of violation of any applicable zoning or building regulation, ordinance or other Law or Consent relating to the operations of any Loan Party or any of its Subsidiaries at any such location and there is no such violation that could reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 5.09, all structures, improvements and other buildings that are owned by the Loan Parties or covered by leases used in connection with the Business comply in all material respects with all applicable Laws and Consents, have a valid and subsisting certificate of occupancy for their present use, and neither any Loan Party nor any of its Subsidiaries has received any written notice from any Governmental Authority which is still outstanding of any failure to obtain any certificate, permit, license, authorization or approval with respect to the real property, or any intended revocation, modification or cancellation of same, and no applicable Law or Consent presently in effect or condition precludes or materially restricts continuation of the present use of such properties. Each lease relating to leased real property of the Loan Parties or any of their respective Subsidiaries, is in full force and effect, and the applicable Loan Party and/or Subsidiary enjoys peaceful and undisturbed possession thereunder. There is no default on the part of any Loan Party or any of its Subsidiaries or event or condition which (with notice or lapse of time, or both) would constitute a default on the part of any Loan Party or any of its Subsidiaries, under any such lease. There are no pending or, to the knowledge of any Loan Party, threatened condemnation or eminent domain proceedings that would affect any part of the leased property of the Loan Parties and their respective Subsidiaries. There is no Adverse Proceeding pending or, to the knowledge of any Loan Party, threatened against the owned or leased real property of the Loan Parties and their respective Subsidiaries which would in any way affect title to such real property or leased property.

42

5.10         Taxes.

(a)          Except as set forth on Schedule 5.10, each Loan Party and each of its Subsidiaries has filed all Tax Returns that it was required to file. All such Tax Returns were true, correct and complete in all material respects. All Taxes, other than de minimis amounts, owed by any Loan Party or any of its Subsidiaries (whether or not shown on any Tax Return) have been paid. Except as set forth on Schedule 5.10, neither any Loan Party nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return. There are no Liens on any of the assets of any Loan Party or any of their respective Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax, other than Permitted Liens as provided on Schedule 5.10.

(b)          Each Loan Party and each of its Subsidiaries has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.

(c)          There is no dispute or claim concerning any Tax liability of any Loan Party or any of its Subsidiaries either (i) claimed or raised by any Governmental Authority in writing or (ii) as to which any Loan Party has knowledge based upon personal contact with any agent of such authority.

(d)          Neither any Loan Party nor any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.

(e)          Neither any Loan Party nor any of its Subsidiaries has any liability for the Taxes of any Person other than such Loan Party and its Subsidiaries (i) as a transferee or successor, (ii) by contract, or (iii) otherwise.

(f)          Any reference in this Section 5.10 to any Loan Party shall be deemed to include each predecessor of such Loan Party, each subsidiary of such Loan Party, and each entity with respect to which such Loan Party has successor or transferee liability.

5.11         Financial Statements and Projections.

(a)          The consolidated financial statements of Parent and its Subsidiaries as of December 31, 2014 and December 31, 2015 (i) were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial condition of Parent and its Subsidiaries as of the dates thereof and their results of operations for the periods covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) to the extent required by GAAP, show all material indebtedness and other liabilities, direct or contingent, of Parent and its Subsidiaries as of the dates thereof, including liabilities for Taxes, material commitments and Indebtedness in accordance with GAAP consistently applied throughout the periods covered thereby.

(b)          Since December 31, 2015, there has been no event or circumstance which has or has had a Material Adverse Effect.

43

(c)          On the date hereof, and after giving effect to all loans made under the First Lien Credit Documents or Letters of Credit issued on the date hereof under the First Lien Credit Documents, the use of proceeds thereof and the Target Transaction, Borrower is, and the Loan Parties on a consolidated basis are, Solvent.

(d)          The pro-forma balance sheet of Borrower dated as of September 30, 2016 (the “Pro Forma Balance Sheet”) furnished to Agent prior to the Closing Date reflects the consummation of the transactions contemplated under this Agreement and the other Loan Documents, the Target Acquisition Documents and the First Lien Credit Documents (all such transactions, collectively, the “Transactions”) and is accurate, complete and correct in all material respects and fairly reflects the financial condition of Borrower as of the Closing Date after giving effect to the Transactions. The Pro Forma Balance Sheet has been certified as accurate, complete and correct in all material respects by a Senior Officer of Borrower.

(e)          The twelve-month cash flow projections of Borrower and its projected balance sheet as of the Closing Date, copies of which are annexed hereto as Schedule 5.11 (collectively, the “Projections”) were prepared by a Senior Officer of Borrower in good faith, are based on underlying assumptions which provide a reasonable basis for the projections contained therein and reflect Borrower’s judgment based on present circumstances of the most likely set of conditions and course of action for the projected period.

5.12         Disclosure.

(a)          Agreement and Other Documents. This Agreement and the other Loans Documents, together with all exhibits and schedules hereto and thereto, and the agreements, certificates and other documents furnished to Agent or any Lender by or on behalf of the Loans Parties and their respective Subsidiaries, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein or therein, in the light of the circumstances under which they were made, not misleading.

(b)          Material Adverse Effects. There is no fact known to any Loan Party which such Loan Party has not disclosed to the Lenders in writing which could reasonably be expected to have a Material Adverse Effect.

5.13         Absence of Certain Changes or Events. Since September 30, 2016, except as set forth on Schedule 5.13 and the incurrence of the Obligations, neither any Loan Party nor any of its Subsidiaries has (a) issued any stock, bonds or other corporate securities, (b) borrowed any amount or incurred any liabilities (absolute or contingent), other than in the ordinary course of business, in excess of $150,000, (c) discharged or satisfied any Lien or incurred or paid any obligation or liability (absolute or contingent), other than in the ordinary course of business or in connection with the repayment in full and termination of the Opus Credit Agreement, in excess of $150,000, (d) declared or made any payment or distribution to the holders of its Equity Securities or purchased or redeemed any shares of its Equity Securities, (e) mortgaged, pledged or subjected to Lien (other than Permitted Liens) any of its assets, tangible or intangible, (f) sold, assigned or transferred any of its tangible assets, or canceled any debts or claims, (g) sold, assigned or transferred any patents, trademarks, trade names, copyrights, trade secrets or other intangible assets, (h) expended any material amount, granted any bonuses or extraordinary salary increases, (i) entered into any transaction involving consideration in excess of $100,000 except as otherwise contemplated hereby or (j) entered into any agreement or transaction, or amended or terminated any agreement, with an Affiliate other than as contemplated by the Loan Documents. Since December 31, 2015, neither any Loan Party nor any of its Subsidiaries has suffered any Material Adverse Effect.

44

5.14         Environmental Compliance.

(a)          Each Loan Party has duly complied in all material respects with, and its facilities, business, assets, property, leaseholds, owned or, to the knowledge of such Loan Party, leased real property and equipment are in compliance in all material respects with, all Environmental Laws;

(b)          There is no outstanding investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order, consent decree, settlement agreement or other order or directive (conditional or otherwise), whether pending or threatened in writing under any Environmental Laws relating to the facilities, business, assets, property, leaseholds, owned or, to the knowledge of such Loan Party, leased real property or equipment of any Loan Party;

(c)          No Loan Party has received any letter or request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law, or any request for information under any Environmental Law;

(d)          Each Loan Party has been issued and is in compliance in all material respects with all federal, state and local licenses, certificates or permits relating to all applicable Environmental Laws necessary to own, operate and maintain the facilities, Business, assets, property, leaseholds, real property or equipment of the Loan Parties; and

(e)          (i) There are no signs of material Releases at, upon, under or within any real property owned or, to the knowledge of the Borrower, leased by any Loan Party, (ii) there are no underground storage tanks or to the knowledge of the Borrower, polychlorinated biphenyls on any real property owned or leased by any Loan Party, (iii) to the knowledge of the Borrower, no real property owned or leased by any Loan Party has ever been used as a treatment, storage or disposal facility of Hazardous Materials; (iv) no Hazardous Materials governed by an Environmental Law are present on any real property owned or, to the knowledge of the Borrower, leased by any Loan Party excepting such quantities as are handled in compliance with all applicable manufacturer’s instructions and Environmental Laws and in proper storage containers and as are necessary for the operation of the commercial business of the Loan Parties or of their respective tenants; and (v) all underground storage tanks on the real property owned or, to the knowledge of the Borrower, leased are in good condition and are being maintained in compliance in all material respects with all applicable federal, state and local laws and regulations, including all Environmental Laws.

45

5.15         Investment Company/Government Regulations. No Loan Party is an “investment company” within the meaning of the Investment Company Act of 1940, as amended. Neither any Loan Party nor any of its Subsidiaries is subject to regulation under any federal or state statute or regulation limiting its ability to incur Indebtedness or Guaranty Obligations.

5.16         Subsidiaries.

(a)          Schedule 5.16 sets forth a complete and accurate list of all of the Subsidiaries of each Loan Party together with their respective jurisdictions of incorporation or organization and a notation if a First Tier Foreign Subsidiary. All of the outstanding Equity Securities in, the Subsidiaries are validly issued, fully paid and non-assessable. Except as set forth on Schedule 5.16, all of the outstanding Equity Securities in each of the Subsidiaries are owned by a Loan Party or by a wholly-owned Subsidiary of a Loan Party free and clear of any Liens other than the Liens created by this Agreement and the other Loan Documents in favor of Agent and the other Lenders and Liens in favor of the Subordinated Praesidian Agent. No Subsidiary has outstanding options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments obligating the Subsidiary to issue, transfer or sell any securities of the Subsidiary.

(b)          Except for the Subsidiaries of the Loan Parties, no Loan Party owns of record or beneficially, directly or indirectly, any Equity Securities convertible into Equity Securities of any other Person.

5.17         Capitalization. Schedule 5.17 sets forth, a true and complete listing of each class of authorized Equity Securities of each Loan Party and its Subsidiaries, the number of Equity Securities which are issued and outstanding, as well as a list of all warrants, options, rights and securities convertible into Equity Securities, together with the number of Equity Securities to be issued upon the exercise or conversion of such warrants, options, rights and convertible securities, all of which have been reserved for insurance; provided that, with respect to Parent, such information shall only be provided as of the Closing Date. No Loan Party has any Equity Securities held in treasury. All outstanding Equity Securities of the Loan Parties have been duly authorized by all necessary action.

5.18         Broker’s, Finder’s or Similar Fees. Except as set forth on Schedule 5.18, there are no brokerage commissions, finder’s fees or similar fees or commissions payable in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with any Loan Party or any of its Subsidiaries, or any action taken by any such Person.

5.19         Labor Relations. Neither any Loan Party nor any of its Subsidiaries has committed or is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. Except as set forth in Schedule 5.19, there is (a) no unfair labor practice complaint pending or threatened against any Loan Party or any of its Subsidiaries before the National Labor Relations Board or any other Governmental Authority and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is so pending or threatened, (b) no strike, labor dispute, slowdown or stoppage pending or threatened against any Loan Party or any of its Subsidiaries, (c) no union representation question existing with respect to the employees of any Loan Party or any of its Subsidiaries and no union organizing activities are taking place, and (d) no contract with any officer described in Section 6.02(b) and no contract or agreement with any union or other entity. Each Loan Party and each of its Subsidiaries is in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment and wages and hours. Neither any Loan Party nor any of its Subsidiaries is a party to any collective bargaining agreement.

46

5.20         Employee Benefit Plans.

(a)          (i) Neither Borrower nor any ERISA Affiliate maintains, contributes to, or otherwise has any obligation or liability with respect to any Plan, (ii) each Plan is in material compliance with its terms and the applicable provisions of ERISA, the Code and other applicable federal or state Laws, (iii) each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination, advisory, or opinion letter from the IRS or an application for such a letter is currently pending with the IRS with respect thereto and nothing has occurred which would prevent, or cause the loss of, such qualification, (iv) Borrower and each ERISA Affiliate have in all material respects satisfied their obligations and liabilities with respect to each Plan, and have made all required contributions to each Plan on or before the applicable due date, including contributions to any Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Pension Plan, (v) there has been no material prohibited transaction (which is not otherwise exempt under Section 4975 of the Code) or violation of the fiduciary responsibility rules under ERISA with respect to any Plan, (vi) neither Borrower nor any ERISA Affiliate is a member of a Multiemployer Plan, and (vii) neither Borrower nor any ERISA Affiliate has incurred any material liability for any excise tax under Section 4972 or 4980B of the Code, and no facts exist which could give rise to such liability.

(b)          Each Plan that is a welfare benefit plan, as defined in Section 3(1) of ERISA, including without limitation, any Plan that provides benefits to former employees, directors, or other service providers, can be terminated by Borrower or an ERISA Affiliate in its sole discretion at any time without liability.

(c)          (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any material Unfunded Pension Liability; (iii) neither Borrower nor any ERISA Affiliate has incurred or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability (and no event has occurred which would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.

47

5.21         Patents, Trademarks, Etc.

Each Loan Party and its Subsidiaries own, or possess the right to use, all Intellectual Property that is reasonably necessary in the conduct of their respective businesses as now operated, and none of such items, to the knowledge of any Loan Party, conflicts in any material respect with the Intellectual Property of any other Person. Except for such claims and infringements that could not reasonably be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person challenging the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does any Loan Party know of any such claim.

5.22         Potential Conflicts of Interest. Except as set forth on Schedule 5.22, as of the Closing Date, no officer or director of any Loan Party (a) owns, directly or indirectly any interest in (excepting less than five percent (5%) holdings for investment purposes in Equity Securities of publicly held and traded companies), or is an officer, director, employee or consultant of, any Person that is, or is engaged in business as, a competitor, lessor, lessee, supplier, distributor, sales agent or customer of, or lender to or from, such Loan Party (b) owns, directly or indirectly, in whole or in part, any tangible or intangible property that any Loan Party uses in the Business; or (c) has any cause of action or other claim whatsoever against, or owes or has advanced any amount to, any Loan Party, except for claims in the ordinary course of business such as for accrued vacation pay, accrued benefits under employee benefit plans, and similar matters and agreements existing on the date hereof.

5.23         Trade Relations. There exists no actual or, to the knowledge of any Loan Party, threatened termination, cancellation or limitation of, or any adverse modification or change in, the business relationship of such Loan Party or its business with any customer or any group of customers whose purchases are individually or in the aggregate material to the business of such Loan Party, or with any material supplier, and there exists no present condition or state of facts or circumstances that could reasonably be expected to have a Material Adverse Effect or prevent such Loan Party or its Subsidiaries from conducting their business after the consummation of the transactions contemplated by this Agreement, in substantially the same manner in which such business has heretofore been conducted.

5.24         Indebtedness. Schedule 5.24 lists as of the Closing Date (a) the amount of all outstanding Indebtedness of the Loan Parties and their respective Subsidiaries (other than Indebtedness under this Agreement), (b) the Liens that relate to such Indebtedness and that encumber the assets of the Loan Parties and their respective Subsidiaries, (c) the name of each lender thereof, and (d) the amount of any unfunded commitments available to the Loan Parties or any of their respective Subsidiaries in connection with any such Indebtedness. Each Loan Party acknowledges that Agent and each Lender are entering into this Agreement and have made the Loans in reliance upon the subordination provisions contained in the Subordination Agreements.

5.25         Material Contracts. Neither any Loan Party nor any of its Subsidiaries is or will be a party to any Contractual Obligation, or is subject to any charge, corporate restriction, judgment, injunction, decree, or other applicable Law or Consent, that could reasonably be expected to have a Material Adverse Effect. Schedule 5.25 lists all Material Contracts as of the Closing Date. Each of the Material Contracts is in full force and effect as of the Closing Date. Each Loan Party and each of its Subsidiaries has satisfied in full or provided for all of its liabilities and obligations under each Material Contract in all material respects, and is not in default under any of them, nor, to the knowledge of any Loan Party, does any condition exist that with notice or lapse of time or both would constitute such a default. To the knowledge of any Loan Party, no other party to any such Material Contract is in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute such a default. Except as set forth on Schedule 5.25, as of the Closing Date no approval or consent of any Person is needed for all of the Material Contracts to continue to be in full force and effect.

48

5.26         Insurance.

(a)          The properties of each Loan Party and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where any Loan Party or such Subsidiary operates. All such policies are in full force and effect, are sufficient for all applicable Law, Consents and Contractual Obligations and otherwise are in compliance with the criteria set forth in Section 6.09 hereof. All such policies will remain in full force and effect and will not in any way be affected by, or terminate or lapse by reason of any of the transactions contemplated hereby.

(b)          The Loan Parties and their respective Subsidiaries maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that constitutes Collateral pursuant to a mortgage, security deed, deed of trust or similar document or instrument in favor of Agent for the benefit of the Secured Parties, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by Agent or any Lender.

5.27         Communications Matters.

(a)          Schedule 5.27 sets forth a true, correct and complete list of the following information for each License issued to, assigned or transferred to, or utilized by any Loan Party or its respective Subsidiaries in the Business: the jurisdiction of the License (e.g., FCC, state or local), the name of the licensee, and the type of service that can be provided under such License. Other than as set forth in Schedule 5.27 with regard to Licenses held by a Loan Party as of the Closing Date, each License is held by a Loan Party (other than Parent) or a wholly-owned Subsidiary of a Loan Party, in each case, whose Equity Securities are subject to a valid and perfected First Priority Lien in favor of Agent pursuant to the Loan Documents.

(b)          Each License listed on Schedule 5.27 (i) is in full force and effect, (ii) has not been revoked, reversed, stayed, set aside, annulled or suspended, and (iii) is not subject to any conditions or requirements that are not generally imposed by the FCC or the applicable PUC upon holders of such Licenses. The Licenses listed on Schedule 5.27 constitute all of the material Licenses necessary for the operation of the Business, as it is presently conducted. No event has occurred and is continuing which could reasonably be expected to (1) result in the imposition of a material forfeiture or the suspension, revocation, termination or adverse modification of any such License or (2) materially and adversely affect any rights of the Loan Parties or their respective Subsidiaries. Neither the Loan Parties nor any of their Subsidiaries have knowledge that any License listed on Schedule 5.27 will not be renewed in the ordinary course to the extent such License would otherwise expire. Neither the Loan Parties nor any of their respective Subsidiaries is a party to any investigation, inquiry, notice of apparent liability, notice of violation, order or complaint issued by or before the FCC, any PUC, or any applicable Governmental Authority, and there are no proceedings or inquiries pending by or before the FCC, PUC or any other applicable Governmental Authority with jurisdiction over the Business, which is reasonably likely to result in the invalidity or revocation of any material License.

49

(c)          Each of the Loan Parties and their respective Subsidiaries has made all material filings which are required to be filed by it pursuant to the Communications Laws, paid all Regulatory Assessments and other material License fees and charges that have become due pursuant to the Communications Laws (including amounts owed to the Universal Service Administrative Company and any similar state universal service fund administrators) in respect of the Business and has made appropriate provision as is required by GAAP for any such material Regulatory Assessments and other material License fees and charges which have accrued.

(d)          The operation of the Business complies in all material respects with the Communications Laws.

5.28         (Reserved)

5.29         Perfection Certificate. All statements made by or on behalf of the Loan Parties or their Subsidiaries in the Perfection Certificate delivered on the Closing Date or the date of the most recent certificate delivered pursuant to Section 6.01(j) are true and correct and do not, as of the date of this Agreement, contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect.

5.30         Reserved.

5.31         Certain Payments. Except as set forth on Schedule 5.31, as of the Closing Date, neither the execution, delivery and performance by any Loan Party of this Agreement, nor the execution, delivery and performance by any Loan Party or any of its Subsidiaries of any of the other Loan Documents, the First Lien Credit Documents, the Subordinated Debt Documents, the Target Acquisition Documents nor the consummation of the transactions contemplated hereby or thereby shall require any payment by any Loan Party or any of its Subsidiaries, in cash or kind, under any other agreement, plan, policy, commitment or other arrangement. As of the Closing Date, there are no agreements, plans, policies, commitments or other arrangements with respect to any compensation, benefits or consideration which will be materially increased, or the vesting of benefits of which will be materially accelerated, as a result of this Agreement, the other Loan Documents, First Lien Credit Documents, the Subordinated Debt Documents, the Target Acquisition Documents or the occurrence of any of the transactions contemplated hereby or thereby. As of the Closing Date, there are no payments or other benefits payable by any Loan Party or any of its Subsidiaries, the value of which will be calculated on the basis of any of the transactions contemplated by this Agreement, the other Loan Documents, the First Lien Credit Documents, the Subordinated Debt Documents or the Target Acquisition Documents.

50

5.32         Margin Requirements. The Loan Parties are not engaged, nor will any Loan Parties engage, principally or as one of their important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” “margin stock” within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors as now and from time to time hereafter in effect. No part of the proceeds of any Loan or Letter of Credit hereunder will be used for “purchasing” or “carrying” “margin stock” as so defined or for any purpose which violates, or which would be inconsistent with, the provisions of Regulations U or X of the Board of Governors.

5.33         Anti-Terrorism Laws; Anti-Corruption Laws; Sanctions.

(a)          Each Loan Party and their respective Subsidiaries, and to the knowledge of Parent and Borrower, any officers, directors, employees or agents of such Loan Party are in compliance, in all respects, with all (i) Anti-Corruption Laws; (ii) Anti-Terrorism Laws, and (iii) Sanctions.

(b)          Borrower and Parent have implemented and maintain in effect policies and procedures designed to ensure compliance by the Loan Parties and their respective Subsidiaries, officers, directors, employees and agents with all (i) Anti-Corruption Laws; (ii) Anti-Terrorism Laws, and (iii) Sanctions.

(c)          None of the Loan Parties or their respective Subsidiaries, and to the knowledge of Parent and Borrower, the officers, directors, employees or agents, are Sanctioned Persons or have engaged in, or are now engaged in, or will engage in, any dealings or transactions with any Sanctioned Person.

(d)          No Loan, letter of credit, use of proceeds or other transaction contemplated by this Agreement or the First Lien Loan Documents will violate any (i) Anti-Corruption Laws, (ii) Anti-Terrorism Laws, or (iii) Sanctions. Without limiting the forgoing, no part of the proceeds of any of the foregoing will be used, directly or indirectly, (1) to lend or otherwise make such proceeds available to any Subsidiary, joint venture, partner or other Person to fund any activities or business of or with any Sanctioned Person or Sanctioned Country or (2) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law or Anti-Terrorism Law.

(e)          The Loan Parties have provided to Agent and the Lenders all information requested by Agent and the Lenders regarding the Loan Parties and their respective Subsidiaries, officers, directors, employees and agents that Agent or any Lender has advised it requires in connection with its compliance with applicable Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions.

5.34         Target Transaction

(a)          Borrower has heretofore furnished Agent a true and correct copy of the Target Acquisition Agreement and other associated documents and there have been no amendments to such Target Acquisition Agreement or associated documents from the copies so provided.

51

(b)          Borrower, and, to the Knowledge of Borrower, each other party to the Target Acquisition Agreement and associated documents, have duly taken all necessary corporate, partnership or other organizational action to authorize the execution, delivery and performance of the Target Acquisition Agreement and associated documents and the consummation of transactions contemplated thereby.

(c)          The Target Transaction will comply in all material respects with all applicable Law, and all necessary Consents required to be obtained by any Loan Party or any of its Subsidiaries and, to the Knowledge of Borrower, each other party to the Target Acquisition Agreement and associated documents, in connection with the Target Transaction will be, prior to consummation of the Target Transaction, duly obtained and will be in full force and effect. As of the date of the closing for the transaction contemplated by the Target Acquisition Agreement, all applicable waiting periods with respect to the Target Transaction will have expired without any action being taken by any Governmental Authority which restrains, prevents or imposes material adverse conditions upon the consummation of the Target Transaction.

(d)          The execution and delivery of the Target Acquisition Agreement and associated documents did not, and the consummation of the Target Transaction will not, violate in any material respect any Law or, to the Knowledge of Borrower, any Law applicable to any other party to the Target Acquisition Agreement and associated documents, or result in a breach of, or constitute a default under, any material agreement, indenture, instrument or other document, or any judgment, order or decree, to which any Loan Party or any Subsidiary is a party or by which any Loan Party or any Subsidiary is bound or, to the Knowledge of Borrower, to which any other party to the Target Acquisition Agreement and associated documents is a party or by which any such party is bound.

(e)          No statement or representation made in the Target Acquisition Agreement or associated documents by Borrower or, to the Knowledge of Borrower, any other Person, contains any untrue statement of a material fact or, when viewed together with Parent’s periodic reports filed under the Exchange Act and the rules and regulations promulgated thereunder, if any, omits to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading in any material respect.

(f)          No material condition to the consummation of the Target Transaction has been amended or waived.

5.35         Reserved

5.36         Separateness Requirements. Each of the Loan Parties has and is, and is causing its Subsidiaries to have been and to be, in compliance in all material respects with the Separateness Requirements.

52

5.37         AHYDO Payment. No AHYDO payments, as provided in Section 2.05(e), are or will be owed in connection with this Agreement.

SECTION 6

AFFIRMATIVE COVENANTS

So long as any Obligation remains unpaid or unperformed or any Commitment remains outstanding, Borrower shall, and shall cause each Loan Party and each Subsidiary of a Loan Party, to:

6.01         Financial Statements and Other Information. Each Loan Party shall maintain, and cause each of its Subsidiaries to maintain, a reasonably designed system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP (it being understood that monthly financial statements are not required to have footnote disclosures). The Loan Parties shall deliver to Agent each of the financial statements and other reports described below:

(a)          Annual Financial Statements. Furnish Agent within ninety five (95) days after the end of each fiscal year of the Loan Parties, audited financial statements of Parent and of Borrower, including statements of income and stockholders’ equity and cash flow from the beginning of such fiscal year to the end of such fiscal year and the balance sheet as at the end of such fiscal year, all prepared on, with respect to each of Parent and Borrower, a Consolidated Basis and Consolidating Basis, in reasonable detail and complete and correct in all material respects, and accompanied by a report and opinion of the Accountants, which report and opinion shall be prepared in accordance with GAAP and shall not be subject to any qualifications or exceptions as to the scope of the audit.

(b)          Quarterly Financial Statements. Furnish Agent within forty five (45) days after the end of each fiscal quarter of each fiscal year of Parent (beginning with the fiscal quarter ending December 31, 2016), an unaudited balance sheet of Parent and of Borrower and unaudited statements of income and stockholders’ equity and cash flow of Parent and of Borrower reflecting results of operations from the beginning of the fiscal year to the end of such quarter and for such quarter, all prepared on, with respect to each of Parent and Borrower, a Consolidated Basis and Consolidating Basis, in reasonable detail and complete and correct in all material respects, subject to normal and recurring year-end adjustments that individually and in the aggregate are not material to the business of Parent and Borrower respectively.

(c)          Monthly Financial Statements. Furnish Agent within thirty (30) days after the end of each month (beginning with the month ended October 31, 2016), an unaudited balance sheet of Parent and of Borrower and unaudited statements of income and stockholders’ equity and cash flow of the Loan Parties reflecting results of operations from the beginning of the fiscal year to the end of such month and for such month, all prepared on, with respect to each of Parent and of Borrower, a Consolidated Basis and Consolidating Basis, in reasonable detail and complete and correct in all material respects, subject to normal and recurring year-end adjustments that individually and in the aggregate are not material to the Loan Parties’ business.

53

(d)          Compliance Certificate. Together with each delivery of financial statements pursuant to Sections 6.01(a), 6.01(b) and 6.01(c) above, the Loan Parties shall deliver or cause to be delivered a fully and properly completed Compliance Certificate signed by the chief executive officer or principal accounting officer of each Loan Party.

(e)          Accountants’ Reports. Promptly upon receipt thereof, each Loan Party shall deliver copies of all significant reports submitted by the Accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Loan Parties and their Subsidiaries made by the Accountant, including any comment letter submitted by the Accountant to management in connection with its services.

(f)          Management Reports. Together with each delivery of financial statements of Parent and of Borrower, and their respective Subsidiaries pursuant to Sections 6.01(a), 6.01(b) and 6.01(c), the Loan Parties will deliver a management report, which can be in the form of an e-mail setting forth in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the most recent projections for the current fiscal year delivered pursuant to Section 6.01(g) including explanations for any significant variations. The information above shall be presented in reasonable detail and shall be certified by the chief financial officer of each Loan Party to the effect that such information fairly presents the results of operations and financial condition of each of Parent and of Borrower on a Consolidated Basis and Consolidating Basis as at the dates and for the periods indicated.

(g)          Projections. No earlier than sixty (60) days prior nor later than the last day of each fiscal year beginning with the current fiscal year, the Loan Parties shall prepare and deliver to Agent projections of the Loan Parties and their Subsidiaries for the next succeeding fiscal year, on a month to month basis, including a balance sheet and cash flow statement as at the end of each quarterly period and income statements and statements of cash flows for each relevant period and for the period commencing at the beginning of the fiscal year and ending on the last day of such relevant period. Such projections shall be prepared in good faith on the basis of sound financial planning practice consistent with past budgets and financial statements and that none of the officers of the Loan Parties has reason to question the reasonableness of any material assumptions on which such projections were prepared.

(h)          SEC Filings/Press Releases. Promptly after the same are (i) filed, copies of all financial statements and regular, periodic or special reports which any Loan Party or Subsidiary may make to, or file with, the Securities and Exchange Commission or any successor or similar Governmental Authority, (ii) sent, copies of all financial statements, management reports and reports related thereto which any Loan Party or Subsidiary sends generally to its shareholders or other equity holders, and (iii) made available, all press releases to the public concerning material developments in the business of any of the Loan Parties or any of their respective Subsidiaries.

(i)          [Reserved.]

54

(j)          Annual Perfection Certificate. Each year (other than for the fiscal year ending December 31, 2016), at the time of delivery of annual financial statements with respect to the preceding fiscal year pursuant to Section 6.01, Borrower shall deliver to Agent a Senior Officer’s certificate either confirming that there has been no change in the information set forth in the Perfection Certificate since the date of the Perfection Certificate delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section 6.01(j) and/or identifying any applicable changes.

(k)          Updates to Schedules. In addition to any specific requirement herein to update any Schedule attached hereto concurrently with delivery of a Compliance Certificate, should any of the information or disclosures provided in any of the other Schedules attached hereto or attached to any other Loan Document which are not limited to matters disclosed as of the Closing Date become outdated or incorrect in any material respect, Borrower shall, together with delivery of each Compliance Certificate as required by Section 6.01(d), provide Agent in writing with such revisions or updates to such Schedules as may be necessary or appropriate to update or correct such Schedules; provided, however, that no Default or Event of Default resulting from the inaccuracy or incompleteness of any such Schedule or the circumstance giving rise to such inaccuracy or incompleteness (to the extent the same is not permitted by this Agreement) shall be deemed to have been waived or cured, unless and until the Requisite Lenders, in their sole and absolute discretion, grant such waiver or cure in writing pursuant to Section 14.04.

6.02         Deliveries. Borrower shall deliver, or cause to be delivered, to Agent each of the notices, reports and other deliveries described below:

(a)          Material Occurrences. Promptly notify Agent in writing upon the occurrence of (i) any Event of Default or Default; (ii) any event, development or circumstance due to which any financial statements or other reports furnished to Agent or the Lenders fail in any material respect to present fairly, in accordance with GAAP consistently applied, the financial condition or operating results of Parent or Borrower as of the date of such statements; (iii) any accumulated retirement plan funding deficiency which, if such deficiency continued for two plan years and was not corrected as provided in Section 4971 of the Code, could subject any Loan Party or Subsidiary to a Tax imposed by Section 4971 of the Code; (iv) each and every default by any Loan Party or Subsidiary which permits the holders of any Indebtedness of any Loan Party or Subsidiary, the outstanding principal amount of which exceeds $250,000, to accelerate the maturity of such Indebtedness, including the names and addresses of the holders of such Indebtedness and the amount of such Indebtedness; and (v) any other development in the business or affairs of any Loan Party or Subsidiary which could reasonably be expected to have a Material Adverse Effect.

(b)          Management. The Loan Parties shall notify Agent in writing promptly of any change in senior management (which, for purposes hereof, shall include any executive officer holding a more senior title than vice president, or the functional equivalent thereof), and, in any event (i) if such change arises from a voluntary termination of employment, or as the result of death or disability of such officer, such notice shall be given no later than five (5) Business Days after any Loan Party shall have obtained knowledge (excluding the knowledge of such officer) of such event and (ii) if such change arises from an involuntary termination of employment, such notice shall be given no later than the date that is five (5) Business Days prior to the occurrence of such event, unless the Loan Parties determine, in the good faith exercise of their commercially reasonable judgment, that the delay in effectuating such termination due to the aforedescribed notice obligation would be reasonably likely to have a Material Adverse Effect, in which case the Loan Parties shall notify Agent in writing within one (1) Business Day after the occurrence of such involuntary termination.

55

(c)          Litigation. Promptly upon any officer of any Loan Party obtaining knowledge of (i) the institution of any Adverse Proceeding not previously disclosed by the Loan Parties to Agent or (ii) any material development in any Adverse Proceeding which, in each case, could reasonably be expected to have a Material Adverse Effect, Borrower will promptly give notice thereof to Agent and provide such other information as may be reasonably available to it to enable Agent, Lenders and their counsel to evaluate such matter.

(d)          Notice of Corporate Changes. Promptly notify Agent in writing of any material change after the Closing Date in the authorized and issued Equity Securities of any Loan Party or any Subsidiary or any other material amendment to their applicable Organization Documents, such notice, in each case, to identify the applicable jurisdictions, capital structures or amendments, as applicable; provided that, this clause (d) shall not apply to (i) the issuance of Equity Securities of Parent in the form of common stock as dividends to previously issued Equity Securities of Parent, or (ii) to any issuance of Equity Securities of Parent reported to Agent and Lenders pursuant to the requirements of Section 6.01(h).

(e)          Notice of Adverse Events. Furnish Agent with (i) prompt written notice of any lapse or other termination, material adverse modification or revocation of any License or other Consent issued to any Loan Party or any Subsidiary by any Governmental Authority or any other Person that is material to the operation of the Business, (ii) prompt written notice of any refusal by any Governmental Authority or any other Person to renew or extend any such License or other Consent, (iii) copies of any periodic or special reports filed by any Loan Party or Subsidiary with any Governmental Authority or Person, if such reports indicate any material adverse change, (iv) copies of any material notices and other communications from any Governmental Authority or Person which specifically relate to any Loan Party or Subsidiary, its Licenses, or other Consents, and (v) prompt written notice of the occurrence of any development or event which is reasonably likely to cause any Loan Party or Subsidiary not to be in compliance in all material respects with all applicable Laws.

(f)          ERISA Notices and Requests. Furnish Agent, promptly after the occurrence thereof, notice of (i) any ERISA Event, together with a written statement describing the ERISA Event and the action, if any, which the Loan Party or ERISA Affiliate has taken, is taking, or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, Department of Labor, or PBGC with respect thereto, (ii) any increase in the benefits of any existing Plan or the establishment of any new Plan or the commencement of contributions to any Plan to which Borrower or any ERISA Affiliate was not previously contributing shall occur; or (iii) the receipt by Borrower or any ERISA Affiliate of an unfavorable determination letter from the Internal Revenue Service regarding the qualification of a Plan under Section 401(a) of the Code, together with copies of each such letter.

56

(g)          Environmental Reports. Furnish Agent, concurrently with the delivery of the financial statements referred to in Sections 6.01(a), 6.01(b) and 6.01(c) with a certificate signed by a Senior Officer of each Loan Party stating that, to the best of such Senior Officer’s knowledge, each Loan Party and Subsidiary is in compliance in all material respects with all Environmental Laws. To the extent any Loan Party or Subsidiary is not in compliance with the foregoing laws, the certificate shall set forth with reasonable specificity all areas of non-compliance and the proposed action such Loan Party or Subsidiary will implement in order to achieve such compliance.

(h)          Other Information. With reasonable promptness, each Loan Party shall deliver such other information and data with respect to such Loan Party or any of its Subsidiaries as from time to time may be reasonably requested by Agent or any Lender, including evidence that Borrower is in compliance with the Separateness Requirements and, without the necessity of any request by Agent or any Lender, (i) copies of all environmental audits and reviews, (ii) at least thirty (30) days prior thereto, notice of any Loan Party’s or such Subsidiary’s opening of any new office or place of business or any Loan Party’s or such Subsidiary’s closing of any existing office or place of business, and (iii) promptly upon any Loan Party’s learning thereof, notice of any labor dispute to which any Loan Party or such Subsidiary may become a party, any strikes or walkouts relating to any of its plants or other facilities, and the expiration of any labor contract to which any Loan Party or such Subsidiary is a party or by which any Loan Party or such Subsidiary is bound. Promptly upon request therefor by Agent or any Lender, the Loan Parties shall deliver such other business or financial data, reports, appraisals and projections as Agent or such Lender may reasonably request.

(i)           First Lien Indebtedness.

(i)          Concurrently with, or promptly after, delivery of any information, documents or certificates to any lender or agent under the First Lien Credit Documents, furnish to Agent complete copies of all such information, documents and certificates, in each case other than such information, documents and certificates previously or concurrently delivered pursuant to this Article 6.

(ii)         Promptly after receipt of such request, Borrower shall notify Agent of any request of any Loan Party or Subsidiary of any Loan Party from or on behalf of the First Lien Agent regarding the Collateral.

(j)          Additional Documents. Execute and deliver to Agent, upon request, such documents and agreements as Agent may, from time to time, reasonably request to carry out the purposes, terms or conditions of this Agreement or any other Loan Document.

Each notice pursuant to this Section 6.02 shall be accompanied by a statement of a Senior Officer of Borrower setting forth the nature and period of existence of such condition event or change and otherwise, details of the occurrence referred to therein and, if applicable, stating what action Borrower has taken and proposes to take with respect thereto.

57

6.03         Preservation of Existence. Each Loan Party shall, and shall cause each of its Subsidiaries to:

(a)          conduct continuously and operate actively its business according to good business practices and maintain all of its properties useful or necessary in its business in good working order and condition (reasonable wear and tear excepted and except as may be disposed of in each case in accordance with the terms of this Agreement), including all Intellectual Property, in each case that are material to its business, and take all actions necessary to enforce and protect the validity of any Intellectual Property;

(b)          keep in full force and effect its existence and comply in all material respects with applicable Laws governing the conduct of the Business where the failure to do so could reasonably be expected to have a Material Adverse Effect; and

(c)          except as otherwise permitted herein, make all such reports and pay all such franchise and other Taxes, Regulatory Assessments and License fees and do all such other acts and things as may be lawfully required to maintain its Licenses under the applicable Laws of any Governmental Authority.

6.04         Payment of Obligations. Each Loan Party shall, and shall cause each of its Subsidiaries to, pay and discharge as the same shall become due and payable, all their respective obligations and liabilities (unless the same are being Properly Contested), including:

(a)          all Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets;

(b)          all lawful claims in excess of $100,000 in the aggregate which any Loan Party or any of its Subsidiaries is obligated to pay, which are due and which, if unpaid, might by Law become a Lien upon its property; and

(c)          pay, discharge or otherwise satisfy at or before maturity (subject, where applicable, to specified grace periods and, in the case of the trade payables, to normal payment practices) all its obligations and liabilities of whatever nature, except when the failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.05         Compliance with Laws.

(a)          Each Loan Party shall comply, and shall cause each of its Subsidiaries to comply, in all material respects with all applicable Laws and with the lawful directions of each Governmental Authority having jurisdiction over them or their respective business or property (including all applicable Environmental Laws), including without limitation any requirements to clean up, remove, or remediate Hazardous Materials at any location where necessary to protect human health or the environment.

58

(b)          Each Loan Party shall comply, and shall cause each of its Subsidiaries, officers, directors, employees and agents to comply with, all (i) Anti-Corruption Laws, (ii) Anti-Terrorism Laws, and (iii) Sanctions. Parent and Borrower shall implement and maintain in effect policies and procedures designed to ensure compliance by the Loan Parties and their respective Subsidiaries, officers, directors, employees, and agents with all (1) Anti-Corruption Laws, (2) Anti-Terrorism Laws and (3) Sanctions.

6.06         Contractual Obligations. Promptly and fully comply with all Contractual Obligations to which any one or more of them is a party, except for any such Contractual Obligations (a) (i) then being Properly Contested or (ii) not constituting a Material Contract and (iii) the nonperformance of such Contractual Obligations which would not cause an Event of Default.

6.07         Inspection; Lender Meeting.

(a)          Each Loan Party will permit, and will cause each of its Subsidiaries to permit, Agent or any Lender to perform an annual collateral field audit of Borrower’s accounts receivable, inventory and equipment, at Borrower’s cost (not to exceed $25,000 for any 12 month period unless an Event of Default exists). In addition, at any time during regular business hours and as often as reasonably requested upon reasonable notice (but not more often than twice in a calendar year unless an Event of Default exists), at Borrower’s cost (not to exceed $25,000 for any 12 month period unless an Event of Default exists), each Loan Party will permit Agent, or any employee, agent or representative thereof, to examine, audit and make copies and abstracts from such Loan Party’s records and books of account and to visit and inspect the properties of such Loan Party and its Subsidiaries, including, but not limited to, an annual collateral field audit on such Loan Party’s accounts receivable and inventory, and to discuss its affairs, finances and accounts with any of its officers, key employees, and Accountants and, upon request, furnish promptly to Agent and each Lender true copies of all financial information and internal management reports made available to the Board of Directors of Parent (or any committee thereof), other than information and reports that involve the attorney-client privilege. Borrower shall furnish to Agent such information concerning the Intellectual Property of the Loan Parties and their Subsidiaries (including, without limitation, application and registration numbers for any filings in connection with such intellectual property) as is reasonably necessary to permit Agent to identify and to perfect a security interest in such Intellectual Property. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing, or if access is necessary to preserve or protect the Collateral, as determined by Agent or the Requisite Lenders, each such Loan Party or Subsidiary shall provide such access to Agent and Lenders at all times and without advance notice.

(b)          Each Loan Party will, and will cause each of its Subsidiaries to, upon the request of Agent or Requisite Lenders, participate in a meeting of Agent and Lenders once during each fiscal year to be held at Parent’s corporate offices (or at such other location as may be agreed to by Borrower and Agent) at such time as may be agreed to by Borrower and Agent.

6.08         Maintenance of Properties. Other than Dispositions permitted by Section 7.01, each Loan Party shall maintain or cause to be maintained, and shall cause its Subsidiaries to maintain or cause to be maintained, in good repair, working order and condition all material properties used in their respective businesses and will make or cause to be made, and shall cause its Subsidiaries to make or cause to be made, all appropriate repairs, renewals and replacements thereof.

59

6.09         Insurance.

(a)          Each Loan Party and its Subsidiaries will maintain or cause to be maintained with financially sound and reputable insurers that have a rating of “A” or better as established by Best’s Rating Guide (or an equivalent rating with such other publication of a similar nature as shall be in current use), the life insurance policy required by Section 6.17 and public liability and property damage insurance with respect to their respective businesses and properties against loss or damage of the kinds customarily carried or maintained by a company of established reputation engaged in similar businesses and in amounts acceptable to Agent and will deliver evidence thereof to Agent. Without limiting the foregoing, each Loan Party and its Subsidiaries have established and shall maintain at all times (i) business interruption insurance in an amount satisfactory to Administrative Agent and (ii) flood insurance with respect to all real property that constitutes Collateral pursuant to a mortgage, security deed, deed of trust or similar document or instrument in favor of Administrative Agent for the benefit of the Secured Parties and is located in a community that participates in the National Flood Insurance Program.

(b)          Subject to Section 6.19, all such insurance policies shall provide that Agent shall be named as an additional insured or loss payee, as applicable and that such insurance policies may not be canceled or materially modified unless the insurance carrier gives at least 30 days prior written notice of such cancellation or modification to Agent.

(c)          If any Loan Party fails to obtain insurance as hereinabove provided, or to keep the same in force, Agent, if Agent so elects, upon notice to such Loan Party, may obtain such insurance and pay the premium therefor on behalf of such Loan Party, and such expenses so paid shall be part of the Obligations.

6.10         (Reserved).

6.11         Compliance with ERISA. Cause, and cause each of its ERISA Affiliates to: (a) maintain each Plan in compliance in all material respects with its terms and with the applicable provisions of ERISA, the Code and other federal or state Law; (b) cause each Plan which is qualified under Section 401(a) of the Code to maintain such qualification; and (c) make all required contributions to any Plan before the applicable due date.

6.12         Use of Proceeds.

(a)          The proceeds of the Loans shall be used solely as provided in the Prior Securities Purchase Agreements.

(b)          No portion of the proceeds of any Loans shall be used in any manner that causes or might cause such Loan or other Borrowing or Letter of Credit or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation thereof or to violate the Exchange Act or to violate any Sanctions, Anti-Terrorism Law or Anti-Corruption Law.

60

6.13         Customer Contracts. Each Contractual Obligation entered into by any Loan Party and its respective customers after March 31, 2017 shall (a) permit, without the prior consent of the applicable customer, the assignment of the applicable Loan Party’s rights and the delegation of such Loan Party’s duties under such Contractual Obligation to Agent and (b) not prohibit, trigger a default or require the consent of such customer in the event of a change of control of the Loan Party party to such Contractual Obligation or the appointment of a receiver of such Loan Party’s business or assets.

6.14         New Real Property.

If any Loan Party acquires at any time or times hereafter any fee simple interest in real property, then within ninety (90) days of the acquisition thereof such Loan Party shall execute and deliver to Agent, as additional security and Collateral for the obligations, deeds of trust, security deeds, mortgages or other collateral assignments reasonably satisfactory in form and substance to Agent and its counsel (herein collectively referred to as “New Mortgages”) covering such real property. The New Mortgages shall be duly recorded (at the Loan Parties’ expense) in each office where such recording is required to constitute a valid lien on the real property covered thereby. In respect of any New Mortgage, Loan Parties shall deliver to Agent, at Loan Parties’ expense, mortgagee title insurance policies issued by a title insurance company reasonably satisfactory to Agent, which policies shall be in form and substance reasonably satisfactory to Agent and shall insure a valid lien in favor of Agent on the property covered thereby, subject only to Permitted Liens and those other exceptions reasonably acceptable to Agent and its counsel. Loan Parties shall also deliver to Agent such other usual and customary documents, including ALTA surveys of the real property described in the New Mortgages, as Agent and its counsel may reasonably request relating to the real property subject to the New Mortgages.

6.15         Control Agreements; Cash Management Systems.

(a)          Subject to Section 6.19, the applicable Loan Parties will establish and maintain the Designated Deposit Accounts.

(b)          Subject to Section 6.19, concurrently with the opening of any new deposit, securities, commodity or similar account or lock box by any Loan Party or any of its Subsidiaries after the Closing Date, such Loan Party or Subsidiary shall enter into a Control Agreement with the applicable depository, securities intermediary or commodities intermediary with respect to such account. Notwithstanding the foregoing, this Section 6.15(b) shall not apply to (i) any payroll account so long as such payroll account is a zero balance account, or (ii) withholding Tax, employee benefits and similar fiduciary accounts. After the occurrence and during the continuation of an Event of Default, Agent shall be entitled to deliver a notice to any financial institution that is party to a Control Agreement of its exercise of control, subject to the rights of First Lien Agent, over any deposit, securities, commodity or other account or lock box subject to such Control Agreement.

61

(c)          Each Loan Party shall provide Agent with electronic access at all times to each of its and its Subsidiaries’ depositary, securities intermediary or commodities intermediary accounts so that Agent may monitor the activity in such accounts.

6.16         Collateral Access Agreements. Each Loan Party shall, with respect to each lease entered into, renewed or extended following the Closing Date for leased property (a) where books and records are stored or located, (b) where Collateral with an estimated value in excess of the Threshold Amount is stored or located, or (c) the loss of which would reasonably be expected to have a Material Adverse Effect, obtain a Collateral Access Agreement from the lessor of such leased property in connection with entering, renewing or extending such lease. Nothing contained herein shall affect any Collateral Access Agreement obtained under any of the Prior Securities Purchase Agreements.

6.17         Key-Man Life Insurance. The Loan Parties shall maintain a $3,000,000 key-man life insurance policy with respect to the life of Matthew Rosen.

6.18         Subsidiaries. Not less than twenty (20) days prior to creating a Subsidiary or acquiring the Equity Securities in a Person, such that such Person will become a Domestic Subsidiary or First Tier Foreign Subsidiary, the applicable Loan Party shall notify Agent of such Loan Party’s or of such Loan Party’s Subsidiary’s intention to create such Subsidiary or acquire such Equity Securities, and following such notice such Subsidiary will not be created or acquired until such Loan Party has complied with and caused each Subsidiary to comply with this Section 6.18 and received all required consents pursuant to this Agreement and the Subordinated Debt Documents.

(a)          In the event any Person becomes a Domestic Subsidiary of any Loan Party, such Loan Party shall concurrently with such creation or acquisition (or such later date acceptable to Agent in its sole discretion) of such Subsidiary, cause such Subsidiary to (i) become a Guarantor hereunder and a Grantor (as defined therein) under the applicable Security Documents by executing and delivering to Agent a Joinder Agreement, (ii) pledge or create the equivalent security over, or cause any Person that owns the Equity Securities of such Subsidiary to pledge (or create the equivalent security over), 100% of the Equity Securities of such Subsidiary by delivering, or causing any Person that owns the Equity Securities of such Subsidiary to deliver, the original stock certificates evidencing the Equity Securities of such Subsidiary to Agent, together with appropriate stock powers executed in blank or by other method acceptable to Agent in its reasonable discretion; and (iii) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates as are reasonably requested by Agent.

(b)          In the event any Person becomes a First Tier Foreign Subsidiary, such Loan Party shall concurrently with such creation or acquisition (or such later date acceptable to Agent in its sole discretion) of such Subsidiary, (i) pledge or create the equivalent security over, or cause any Person that owns the Equity Securities of such Subsidiary to pledge (or create the equivalent security over), 65% of the Equity Securities of such Subsidiary by delivering, or causing any Person that owns the Equity Securities of such Subsidiary to deliver, the original stock certificates evidencing the Equity Securities of such Subsidiary to Agent, together with appropriate stock powers executed in blank or by other method acceptable to Agent in its reasonable discretion; and (ii) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates as are reasonably requested by Agent.

62

6.19         Post-Closing Covenants. The Loan Parties will, and will cause each of their Subsidiaries to, perform the obligations set forth on Schedule 6.19 on or before the date provided in Schedule 6.19 (as such date may be extended by Administrative Agent in its sole discretion) with respect to each such obligation unless Administrative Agent has agreed in its sole discretion in writing to waive such obligation in its entirety.

6.20         Separateness Requirements. The Loan Parties will comply with, and are causing their respective Subsidiaries to comply with the Separateness Requirements.

6.21         Board Observer. Each Loan Party shall give Lenders notice of (in the same manner as notice is given to directors), and permit one person designated by each Lender to attend as a non-voting observer (each such observer, an “Observer”), all meetings of its Board of Directors and all executive and other committee meetings of its Board of Directors and shall provide to Lenders the same information concerning the Loan Parties and their Subsidiaries, and access thereto, provided to members of the Loan Parties’ respective Boards of Directors and such committees, as applicable (the “Board Materials”).  The reasonable travel expenses incurred by any Observer in attending any board or committee meetings shall be reimbursed by the Loan Parties; provided, that no Loan Party will be required to permit any Observer to attend, as an observer, any meeting of its Board of Directors or any committee thereof or provide any Board Materials to any Observer unless such Observer has executed a confidentiality agreement satisfactory to the Lender appointing such Observer and such Loan Party in their respective reasonable determinations.  The Observers may be excluded from any meeting (or portion thereof) or denied access to any Board Materials (or portion thereof) if and to the extent (a) access to such information or attendance at such meeting or portion thereof would adversely affect any attorney-client privilege, (b) access to such information or attendance at such meeting or portion thereof could reasonably be expected to result in disclosure of trade secrets or a conflict of interest, or (c) any of the Lenders, the Loan Documents, the lenders of the First Lien Indebtedness or the First Lien Credit Documents are the subject matter of such information or are under discussion at such meeting. The Lenders agree that all Board Materials shall remain confidential and shall not be voluntarily disclosed to any other Person, except as may be required by Law.

SECTION 7

NEGATIVE COVENANTS

So long as any Obligations remain unpaid or unperformed, Borrower shall not, nor shall it permit any Loan Party or any Subsidiary to, directly or indirectly:

63

7.01         Fundamental Changes; Consolidation; Mergers and Acquisitions; Dispositions. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly: (a) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a substantial portion of the assets or Equity Securities of any Person or permit any other Person to consolidate with or merge with it (other than the consummation of the Target Transactions and any merger between Loan Parties other than Parent), or (b) Dispositions of any of its properties or assets, except (i) Ordinary Course Dispositions and (ii) Dispositions as a result of the taking of any assets of any Loan Party or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a Disposition of any such assets to a purchaser with such power under threat of such a taking.

7.02         Liens. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly, create or suffer to exist any Lien or transfer upon or against any of its property or assets now owned or hereafter acquired, except Permitted Liens, including Liens disclosed on Schedule 7.02.

7.03         Guarantees. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly become liable upon the obligations or liabilities of any Person by assumption, endorsement or guaranty thereof or otherwise (other than to Lenders) except (a) guarantees made by a Loan Party in favor of another Loan Party (other than Parent) as a condition to a License of a Loan Party, (b) other guarantees in the ordinary course of business up to an aggregate amount of $345,000, (c) the endorsement of checks in the ordinary course of business, and (d) guarantees pursuant to the First Lien Credit Documents, subject to the terms and conditions of the East West Subordination Agreement.

7.04         Investments. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly make any Investments, except:

(a)          Investments in cash and Cash Equivalents;

(b)          Investments existing on the Closing Date as set forth on Schedule 7.04 hereto;

(c)          Investments not otherwise prohibited hereunder by a Loan Party in another Loan Party (other than Parent);

(d)          loans permitted by Section 7.05;

(e)          the Target Transactions;

(f)          Investments by Borrower and its Subsidiaries in Capital Expenditures permitted to be made pursuant to Section 7.15(c); and

(g)          Investments not otherwise prohibited hereunder, provided that, the aggregate amount of such other Investments (less any return on such Investment) does not at any time exceed $287,500.

64

7.05         Loans. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly make or have outstanding advances, loans or extensions of credit to any Person, including any Subsidiary or Affiliate, except for (a) the extension of commercial trade credit in connection with the sale of inventory in the ordinary course of business, (b) loans to employees of the Loan Parties in the ordinary course of business not to exceed, in the aggregate, $28,750 at any time outstanding and (c) to the extent not otherwise prohibited hereunder, loans among Loan Parties (other than loans to or from Parent).

7.06         Restricted Payments. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly declare, pay or make any Restricted Payments other than (a) intercompany payments made in the ordinary course of business for funding of such Loan Party’s payroll and terminating NBS traffic on Parent’s network, provided that any payments by Borrower or any of its Subsidiaries to Parent shall be at direct cost plus a mark-up not in excess of the average mark-up provided to third party customers for similar services, (b) any Corporate Allocation Payment, provided that (i) no Default or Event of Default shall have occurred and be continuing or would result from the making of such payment and (ii) any proposed Corporate Allocation Payment, together with all other Corporate Allocation Payments made during the period of twelve (12) consecutive fiscal months ending on the last day of the month in which such proposed Corporate Allocation Payment is to be made, shall not in the aggregate exceed the sum of $2,000,000 in any fiscal year; provided that, if the Corporate Allocation Payment in any fiscal year exceeds $1,500,000, the Loan Party shall deliver a certificate to Agent (together with the Compliance Certificate for such fiscal year) comparing the Corporate Allocation Payment for such fiscal year to the previous fiscal year and the projections for such fiscal year and, if in excess of projections, discussing why such Corporate Allocation Payments exceed such projections, (c) a Loan Party may make Restricted Payments to Borrower or any other Loan Party (other than Parent), (d) a Subsidiary may make Restricted Payments to Borrower or any other Loan Party (other than Parent), (e) payment by Borrower of the purchase price of the Target Company pursuant to the Target Acquisition Agreement on the Closing Date, and (g) payments by Parent pursuant to the Rosen Shareholder Note to the extent permitted by the Rosen Subordination Agreement.

7.07         Indebtedness. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist any Indebtedness except:

(a)          trade debt incurred in the ordinary course of business;

(b)          the Indebtedness created under this Agreement;

(c)          Indebtedness for Capital Expenditures permitted under Section 7.15(c), including Purchase Money Indebtedness and indebtedness incurred under Capital Lease Obligations, in each case incurred in connection with such Capital Expenditures, in an aggregate amount not to exceed $575,000 per year for all Loan Parties and their respective Subsidiaries;

65

(d)          Indebtedness disclosed on Schedule 7.07 including up to $3,450,000 aggregate amount of Indebtedness at any time in respect of equipment financing leases, and any extension, renewal or refinancing thereof; provided that in connection with any such extension, renewal or refinancing: (i) the aggregate principal amount of such Indebtedness is not increased, (ii) the scheduled maturity date of such Indebtedness is not shortened, (iii) the covenants or defaults are not materially more restrictive or more onerous than analogous provisions in the documentation of such Indebtedness as in effect on the Closing Date;

(e)          Indebtedness in respect of Hedging Obligations, permitted by Section 7.21;

(f)          guaranty obligations permitted pursuant to Section 7.03 hereof;

(g)          the Subordinated Debt, subject to the term and conditions of the applicable Subordination Agreement;

(h)          to the extent not otherwise prohibited hereunder, Indebtedness owed among the Loan Parties (other than loans to or from Parent); or

(i)          other unsecured Indebtedness not otherwise prohibited hereunder; provided that, the aggregate outstanding principal amount shall not exceed at any time $287,500.

7.08         Nature of Business No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, substantially change the nature of the business in which it is presently engaged, or except as specifically permitted hereby purchase or invest, directly or indirectly, in any assets or property other than in the ordinary course of business and where such assets or property are useful in, necessary for and are to be used in its business as presently conducted.

7.09         Transactions with Affiliates. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly, purchase, acquire or lease any property from, or sell, transfer or lease any property to, or otherwise enter into any transaction or deal with, any Affiliate, except for (a) transactions in the ordinary course of business, entered into on an arm’s-length basis on fair and reasonable terms no less favorable than terms which would have been obtainable from a Person other than an Affiliate; (b) the payment of customary and reasonable directors’ fees to directors who are not employees of the Loan Parties or any Affiliate of the Loan Parties as well as the payment of their reasonable out-of-pocket expenses incurred in performing their directorial duties and the payment of indemnities owing to them as directors; or (c) certain loans by Affiliates to Parent as permitted by the terms of this Agreement or as indicated on Schedule 7.07.

7.10          Leases. Unless Agent consents in writing in its reasonable discretion, no Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly enter as lessee or sublessee into any lease arrangement for real property if (a) after giving effect thereto, aggregate annual rental payments for any individual leased or subleased property would exceed $1,150,000 in any one fiscal year in the aggregate for all Loan Parties and their respective Subsidiaries or (b) after giving effect thereto, aggregate annual rental payments for all leased and subleased property for all Loan Parties and their respective Subsidiaries would exceed the aggregate annual rent payments for all leased and subleased property for all Loan Parties and their respective Subsidiaries as of the Closing Date by more than $115,000.

66

7.11         Subsidiaries; Partnerships; Joint Ventures. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, form any Subsidiary (other than a Subsidiary, the formation of which shall have been consented to in advance in writing by Agent), or enter into any partnership, joint venture or similar arrangement unless consented to by Agent.

7.12         Fiscal Year and Accounting Changes No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly maintain a fiscal year other than a year ending on December 31, or make any change (i) in accounting treatment and reporting practices except as required by GAAP or (ii) in Tax reporting treatment except as required by applicable Law.

7.13         Amendment of Organizational Documents. From and after the Closing Date, no Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, amend, modify or waive any material term or material provision of its Organization Documents in a manner materially adverse to Agent or any Lender, except as required by applicable Law.

7.14         Limitation on Modifications of Indebtedness; Modifications of Certain Other Agreements; Etc. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, (a) amend or modify, or permit the amendment or modification of, any provision of the Indebtedness described in Section 7.07 hereto or of any agreement (including any purchase agreement, indenture, loan agreement or security agreement) relating thereto other than any amendments or modifications to such Indebtedness which do not in any way adversely affect the interests of the Lenders and are otherwise permitted under Section 7.07, (b) make (or give any notice in respect thereof) any voluntary or optional payment or prepayment on or redemption or acquisition for value of, or any prepayment or redemption as a result of any asset sale, change of control or similar event of, any Indebtedness which is contractually subordinated to any of the Obligations, (c) amend or modify, or permit the amendment or modification of, any provision of (i) the Subordinated Debt Documents, except as permitted by the applicable Subordination Agreement, or (ii) the Seller Specified Obligations, other than any amendments or modifications which do not in any way adversely affect the interests of the Lenders and are otherwise permitted hereunder, or (d) amend or modify, or permit the amendment or modification of, any provision of any Material Contract, other than any amendments or modifications which do not in any way adversely affect the interests of the Lenders and are otherwise permitted hereunder.

7.15         Financial Covenants.

(a)          The Borrower shall not

(a) Maximum Total Leverage Ratio. Permit the Total Leverage Ratio of Borrower on a Consolidated Basis, measured for each period of four consecutive fiscal quarters, on the last day of each fiscal quarter (each, a “Measurement Date”), to be greater than the ratio set forth below for the corresponding period at any time:

67

Period	Ratio
Closing Date through September 30, 2017	5.50:1.00
December 31, 2017 through March 31, 2018	5.25:1.00
June 30, 2018 through September 30, 2018	5.00:1.00
December 31, 2018 through March 31, 2019	4.75:1.00
June 30, 2019 and thereafter	4.50:1.00

(b)          Fixed Charge Coverage. Permit the Fixed Charge Coverage Ratio of Borrower on a Consolidated Basis, measured for each period of four consecutive fiscal quarters beginning with the fiscal quarter ending on December 31, 2016, and on each Measurement Date thereafter, to be less than the ratio set forth below for the corresponding period at any time:

Period	Ratio
December 31, 2016 through December 31, 2019	1.05:1.00
March 31, 2020 and thereafter	1.10:1.00

(c)          Borrower Capital Expenditures. Contract for, purchase or make any expenditure or commitments for Capital Expenditures of Borrower on a Consolidated Basis in the fiscal year ending December 31, 2016 in an aggregate amount in excess of $6,325,000 and in any fiscal year thereafter in an aggregate amount in excess of 6.09% of the revenue of Borrower on a Consolidated Basis for the immediately preceding four consecutive fiscal quarters (calculated on a pro forma basis in form and substance reasonably acceptable to Agent).

(d)          Parent Capital Expenditures. Contract for, purchase or make any expenditure or commitments for Capital Expenditures of Parent.

(e)          Maximum Senior Leverage Ratio. Permit the Senior Leverage Ratio of Borrower on a Consolidated Basis, measured for each period of four consecutive fiscal quarters on each Measurement Date, to be greater than the ratio set forth below for the corresponding period at any time:

Period	Ratio
Closing Date through September 30, 2017	4.00:1.00
December 31, 2017 through March 31, 2018	3.75:1.00
June 30, 2018 through September 30, 2018	3.50:1.00
December 31, 2018 through March 31, 2019	3.25:1.00
June 30, 2019 and thereafter	3.00:1.00

68

(f)          Minimum Adjusted EBITDA. Permit the Adjusted EBITDA of Parent on a Consolidated Basis to be less than 12,750,000 at any time.

(g)          Minimum Liquidity. Permit the Liquidity of Parent on a Consolidated Basis to be less than $5,100,000 on December 31, 2016.

For purposes of calculating the covenants in this Section 7.15, any Acquisition, including the Target Transaction, or Disposition (and the incurrence or repayment of any Indebtedness in connection therewith) that exceeds the First Lien Threshold Amount has been made either (i) during the applicable period or (ii) subsequent to such period and prior to or simultaneously with the event for which the calculation of any such ratio is made, shall be calculated on a pro forma basis (including pro forma adjustments arising out of anticipated synergies, cost savings and other events directly attributable to such Acquisition or Disposition that are factually supportable and are expected to have a continuing effect), in form and substance satisfactory to Agent in its reasonable discretion, assuming that such Acquisition or Disposition (and any increase or decrease in Adjusted EBITDA of any Person and the component financial definitions used therein attributable to such Acquisition or Disposition other than Fixed Charges prior to July 1, 2017) had occurred on the first day of the applicable period. Notwithstanding the above, (1) other than as provided in clause (3) of this sentence, no pro forma adjustment in excess of $1,000,000 for any Acquisition or Disposition shall be made unless approved by Agent in its sole discretion, (2) Adjusted EBITDA for the fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016 shall be as set forth on Schedule 7.15, and (3) on and after the Acquisition of the Target Company, Adjusted EBITDA of any Person shall be calculated for the fiscal quarter ending December 31, 2016 on a pro forma basis utilizing the anticipated synergies and cost savings set forth on page 10 of the Target Quality of Earnings Report.

7.16         ERISA. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, engage in any transaction which could be subject to Sections 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in any material non-exempt “prohibited transaction” (as defined in Section 4975 of the Code); (b) fail to materially comply with the terms of any Plan, ERISA or any other applicable Laws; (c) incur any material “unpaid required contribution” (as defined in Section 302 of ERISA) or otherwise fail to meet the minimum funding standards of Section 302 through 305 of ERISA; or (d) fail to promptly notify Agent of any ERISA Event. Neither Borrower nor its ERISA Affiliates shall (i) terminate any Plan where such event could result in any material liability to Borrower or an ERISA Affiliate, or the imposition of a lien on the property of any Borrower or any ERISA Affiliate pursuant to Section 4068 of ERISA, or (ii) incur any material withdrawal liability under any Multiemployer Plan. Notwithstanding any other provision of this Agreement or any other Loan Document, neither Borrower nor its ERISA Affiliates shall (i) establish or agree to contribute to or otherwise incur liability under any Pension Plan or Multiemployer Plan under which Borrower or its ERISA Affiliates have no liability as of the date of this Agreement or (ii) acquire an interest in any Person if such Person sponsors, administers, maintains or contributes to, or has any liability in respect of any Pension Plan or Multiemployer Plan.

69

7.17         Prepayment of Indebtedness. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, at any time, directly or indirectly, prepay any Indebtedness, or repurchase, redeem, retire or otherwise acquire any Indebtedness, other than, in each case, the Obligations to the Lenders.

7.18         Burdensome Agreements. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries, to create or otherwise cause or suffer to exist or become effective, directly or indirectly, (a) any prohibition or restriction (including any agreement to provide equal and ratable security to any other Person) on the creation or existence of any Lien upon the assets of any Loan Party or any of its Subsidiaries, other than restrictions in agreements evidencing Purchase Money Indebtedness and Capital Leases permitted by Section 7.07(c) that impose restrictions on the property so acquired, (b) any Contractual Obligation (other than the Subordination Agreement) which may restrict or inhibit Agent’s rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default, (c) any prohibition or restriction on the ability of any Subsidiary of Borrower to (i) pay dividends or make distributions to on any of such Subsidiary’s Equity Securities owned by Borrower or by its Subsidiaries, (ii) to repay or prepay any Indebtedness owed by such Subsidiary to Borrower or to its Subsidiaries, (iii) make loans or advances to Borrower or its Subsidiaries or (iv), other than restrictions in agreements evidencing Purchase Money Indebtedness and Capital Leases permitted by Section 7.07(c) that impose restrictions on the property so acquired, transfer any of its property or assets to Borrower or its Subsidiaries, or (d), other than as provided on Schedule 7.18, require or create an obligation for any Loan Party or its Subsidiaries to pay dividends, distributions or otherwise make a Restricted Payment.

7.19         Separateness Requirements. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, engage in any activity prohibited by the Separateness Requirements.

7.20         Deposit Accounts; Securities Account. Except as expressly permitted by the Security Documents or as expressly provided for in this Agreement, no Loan Party shall establish or maintain a Deposit Account, Securities Account, or Commodities Account that is not subject to a Control Agreement.

7.21         Hedging Transactions. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions entered into in the ordinary course of business to hedge or mitigate risks to which any of the Loan Parties or any Subsidiary of Parent is exposed in the conduct of its business or the management of its liabilities. Solely for the avoidance of doubt, Borrower acknowledge on behalf of itself and the other Loan Parties that a Hedging Transaction entered into for speculative purposes or of a speculative nature (which shall be deemed to include any Hedging Transaction under which any of the Loan Parties or any Subsidiary of Parent is or may become obliged to make any payment (a) in connection with the purchase by any third party of any Equity Securities or any Indebtedness or (b) as a result of changes in the market value of any Equity Securities or any Indebtedness) is not a Hedging Transaction entered into in the ordinary course of business to hedge or mitigate risks.

70

SECTION 8

EVENTS OF DEFAULT AND REMEDIES

8.01         Events of Default. Any one or more of the following events shall constitute an Event of Default:

(a)          Any Loan Party shall default in the payment of the principal amount of any Obligation, when and as the same shall become due and payable, whether at maturity or at a date fixed for payment or prepayment or by acceleration or otherwise; or

(b)          Any Loan Party shall default in the payment of any installment of interest on any Obligation or any other amount due under this Agreement or under any other Loan Document or the Notes (other than as set forth in clause (a) of this Section 8.01) according to its terms, when and as the same shall become due and payable and such default shall continue for a period of three (3) Business Days after the due date for the payment thereof; or

(c)          Any Loan Party or any of its Subsidiaries shall default in the due observance or performance of any covenant to be observed or performed pursuant to Sections 6.01, 6.02, 6.03, 6.04, 6.05, 6.08, 6.09, 6.12, 6.14, 6.18, 6.19 or 6.20 or Section 7; or

(d)          Any Loan Party or any of its Subsidiaries shall default in the due observance or performance of any other covenant, condition or agreement on the part of such Loan Party or such Subsidiary to be observed or performed pursuant to the terms hereof or any of the Loan Documents (other than those referred to in clauses (a), (b) or (c) of this Section 8.01), and such default shall continue for fifteen (15) days after the earliest of (i) if any Loan Party has knowledge of such default, the date such Loan Party is required pursuant to the Loan Documents or otherwise to give notice thereof to Agent or Lenders (whether or not such notice is actually given) or (ii) the date of written notice thereof, specifying such default, shall have been given to the Loan Parties by Agent or any Lender; or

(e)          Any representation, warranty or certification made by or on behalf of any Loan Party or any of its Subsidiaries in this Agreement, the other Loan Documents or in any certificate or other document delivered pursuant hereto or thereto shall have been incorrect in any material respect (without duplication of any materiality qualification therein) when made; or

(f)          Any event or condition shall occur that results in the acceleration of the maturity of any Indebtedness of any Loan Party or any of its Subsidiaries in an amount in excess of $575,000 for any Loan Party or its Subsidiary or $1,150,000 for all Loan Parties and their respective Subsidiaries, or any default shall occur by any Loan Party under the Subordinated Debt Documents, in each case which the Loan Parties fail to cure within any applicable cure period; or

71

(g)          Any uninsured damage to or loss, theft or destruction of any assets of any Loan Party or any of its Subsidiaries shall occur that is in excess of $575,000 for any Loan Party or its Subsidiary or $1,150,000 for all Loan Parties and their respective Subsidiaries; or

(h)          An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Loan Party or any of its Subsidiaries, or of a substantial part of any of their respective property or assets, under the Bankruptcy Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any of its Subsidiaries, or for a substantial part of any of their respective property or assets, or (iii) the winding up or liquidation of any Loan Party or any of its Subsidiaries; and such proceeding or petition shall continue undismissed for sixty (60) days, or an order or decree approving or ordering any of the foregoing shall be entered; or

(i)          Any Loan Party or any of its Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking relief under the Bankruptcy Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar applicable Law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (h) of this Section 8.01, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official, for a substantial part of its property or assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due, or (vii) take any action for the purpose of effecting any of the foregoing; or

(j)          One or more judgments for the payment of money in an aggregate amount in excess of $575,000 shall be rendered against any Loan Party or any of its Subsidiaries or in excess of $1,150,000 for all Loan Parties and their respective Subsidiaries (to the extent not covered by independent third-party insurance (1) as to which the insurer is rated at least “A” by A.M. Best Company, (2) who has been notified of the potential claim and has either accepted tender of defense and is defending such claim or has authorized the insured to defend such claim and (3) who does not dispute coverage) or one or more non-monetary final judgments shall be rendered against any Loan Party or any of its Subsidiary which could reasonably be expected to have a Material Adverse Effect and, in each case, such judgement shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgement creditor to levy upon assets or properties of any Loan Party or any of its Subsidiaries to enforce any such judgment; or

72

(k)          Any Loan Document, at any time after its execution and delivery and for any reason other than the agreement of all Lenders or satisfaction in full of all the Obligations, ceases to be in full force and effect or is declared by a court of competent jurisdiction to be null and void, invalid or unenforceable in any respect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or Borrower or any Guarantor denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or any Loan Document intended to provide a Lien in favor of Agent or any Lender, fails to create a valid and perfected First Priority Lien (except for Permitted Liens that by operation of law would take priority) on, or security interest in, any of the Collateral purported to be covered; or

(l)          Unless otherwise waived or consented to by the Requisite Lenders in writing, the subordination provisions relating to any Indebtedness subordinated to the Indebtedness pursuant to the Notes and this Agreement (collectively, the “Subordination Provisions”) shall fail to be enforceable by Agent and the Lenders in accordance with the terms thereof, or the monetary obligations pursuant to the Notes and this Agreement shall fail to constitute “Senior Debt” (or similar term) referring to such obligations; or any Loan Party shall, directly or indirectly, disavow or contest in any manner (i) the effectiveness, validity or enforceability of any of the Subordination Provisions, (ii) that the Subordination Provisions exist for the benefit of Agent and the Lenders or (iii) that all payments of principal of or premium and interest on the such subordinated Indebtedness, or realized from the liquidation of any property of any Loan Party or Subsidiary, shall be subject to any of such Subordination Provisions; or any Loan Party shall make any Subordinated Debt Payment not permitted by the applicable subordination agreement; or

(m)          (i) An ERISA Event occurs with respect to a Plan which has resulted or could reasonably be expected to result in liability of any Loan Party or any of its Subsidiaries in an aggregate amount in excess of the Threshold Amount; (ii) the aggregate amount of Unfunded Pension Liability among all Plans at any time exceeds the Threshold Amount; or (iii) Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payments with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or

(n)          The occurrence of any event or condition that could reasonably be expected to have a Material Adverse Effect; or

(o)          There occurs (i) any Change of Control, or (ii) any event relating to a change in the corporate ownership, control or governance of Parent or any Subsidiary as issuer (an “Issuer”) of any notes, bonds, debentures, convertible debt or other debt securities, the result of which is to cause Indebtedness evidenced by any such notes, bonds, debentures, convertible debt or other debt securities to be subject to mandatory redemption or repurchase by such Issuer, provided the outstanding amount of such outstanding Indebtedness exceeds $287,500; or

(p)          Any License held by any Loan Party shall be cancelled, terminated, rescinded, revoked, suspended, impaired, otherwise finally denied renewal, or otherwise modified, in each case, to the extent the same could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or any material License held by any Loan Party shall be renewed on terms that materially and adversely affect the economic or commercial value or usefulness thereof; or any License held by any Loan Party shall cease to be in full force and effect if such failure to be in full force and effect could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; or the grant of any material License held by any Loan Party shall have been stayed, vacated or reversed, or modified in any material adverse respect by judicial or administrative proceedings.

73

8.02         Remedies Upon Event of Default. Without limiting any other rights or remedies of Agent or Lenders provided for elsewhere in this Agreement or in the other Loan Documents, or by applicable Law, or in equity, or otherwise:

(a)          Upon the occurrence, and during the continuance, of any Event of Default (other than an Event of Default described in Sections 8.01(i) and (j), in respect of which Section 8.02(b) shall apply) Agent may, and upon the request of Requisite Lenders, shall:

(i)          declare all or any part of the unpaid principal of all Loans, all interest accrued and unpaid thereon, any unpaid fees and all other amounts payable under the Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and payable to Agent for the benefit of each Lender without protest, presentment, notice of dishonor, demand or other notice of any kind, all of which are expressly waived by Borrower; and/or

(ii)         exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents.

(b)          Upon the occurrence of any Event of Default described in Section 8.01(i) or Section 8.01(j):

(i)          the unpaid principal of all Loans, all interest accrued and unpaid thereon, any unpaid fees and all other amounts payable under the Loan Documents shall be immediately due and payable, without protest, presentment, notice of dishonor, demand or further notice of any kind, all of which are expressly waived by Borrower; and

(ii)         Agent may enforce any and all Liens and security interests created pursuant to the Security Documents.

(c)          Upon the occurrence and during the continuance of any Event of Default, Agent, without notice to or demand upon Borrower, all of which are expressly waived by Borrower, may proceed to protect, exercise and enforce its rights and remedies under the Loan Documents against Borrower and its Subsidiaries and such other rights and remedies as are provided by Law or equity (including, without limitation, the provisions of the applicable Uniform Commercial Code).

(d)          Notwithstanding any other provisions of this Agreement to the contrary, after the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Agent on account of the Notes or any other amounts outstanding under any of the Loan Documents or in respect of the Collateral may, at Agent’s discretion, or shall, at the direction of the Requisite Lenders, be paid over or delivered as follows:

74

FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the Agent in connection with enforcing its rights and the rights of the Lenders under this Agreement and the other Loan Documents;

SECOND, to the payment of any fees owed to the Agent;

THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of each of the Lenders to the extent owing to such Lender pursuant to the terms of this Agreement or the other Loan Documents;

FOURTH, to the payment of all accrued fees and Interest which has not been included in the principal amount, in respect of the Notes, this Agreement or the other Loan Documents;

FIFTH, to the payment of the principal amount of the Notes, pro rata, until paid in full;

SIXTH, to all other obligations which shall have become due and payable under the Loan Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and

SEVENTH, the balance, if any, to whoever may be lawfully entitled to receive such surplus.

In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; and (ii) each of the Lenders shall receive an amount equal to its pro rata share (based on the proportion of the principal amount of the Notes held by such Lender bears to the aggregate then outstanding principal amount of the Notes) of amounts available to be applied pursuant to clauses “FOURTH”, “FIFTH” and “SIXTH” above.

(e)          FCC Licenses; PUC Licenses; Related Collateral

(i)          Agent’s rights hereunder (and the rights of any receiver appointed by reason of the exercise of remedies hereunder) with respect to the FCC Licenses and the PUC Licenses and any Collateral subject to such FCC Licenses and PUC Licenses, are expressly subject to, and limited by any obligations and/or restrictions imposed by, the Communications Law.  Borrower agrees to, and to cause each Loan Party and Subsidiary of a Loan Party, to take any action which Agent may request in order to obtain and enjoy the full rights and benefits granted to Agent by this Agreement and the other Loan Documents, including the use of its best efforts to assist in obtaining Consent of the FCC or any PUC for any action or transaction contemplated by this Agreement or any other Loan Documents which Consent is then required by Law.

75

(ii)         Prior to the exercise by Agent (or any receiver appointed by reason of the exercise of remedies hereunder) of any power, rights, privilege, or remedy pursuant to this Agreement or any other Loan Document which requires any Consent of the FCC or any PUC, Borrower will, and will cause each Loan Party and Subsidiary of a Loan Party, at the request of Agent, execute and deliver, or cause the execution and delivery of, all applications, certificates, instruments, and other documents and papers that Agent determines may be required to obtain such Consent. Without limiting the generality of the foregoing, each such Loan Party or Subsidiary will promptly upon request by Agent (or any such receiver so appointed) execute and deliver the appropriate portions of applications to the FCC or PUC for its Consent to the assignment of or the direct or indirect transfer of control of the FCC Licenses and PUC Licenses issued to such Loan Party or Subsidiary and/or any Collateral subject to such FCC Licenses and PUC Licenses and use its best efforts, upon the request of Agent (or any receiver so appointed) to assist in obtaining from the FCC or PUC the necessary Consent, if any, for the assignment of or the direct or indirect transfer of control of such FCC Licenses, such PUC Licenses, and any Collateral subject to the such FCC Licenses or PUC Licenses to Agent or its designee upon or following an Event of Default.

(iii)        If any Loan Party or Subsidiary shall refuse to prepare, execute or file any such application or portion thereof within three (3) Business Days of being requested to do so by Agent, any court of competent jurisdiction may (1) direct such Loan Party or Subsidiary to provide such information to the receiver or the court, as the case may be, as will permit the filing of the application and (2) authorize the clerk of the court or any other designee of the court to prepare, execute and file any such application or portion thereof on behalf of such Loan Party or Subsidiary. Borrower acknowledges, and will cause each Loan Party to acknowledge, that the assignment of the FCC Licenses and the PUC Licenses, or change of control over any Loan Party or Subsidiary, is integral to Agent’s realization of the value of their Collateral, that there is no adequate remedy at Law for failure by any Loan Party to comply with the provisions of this Section 8.02(e), and that such failure would not be adequately compensable in damages, and therefore, agree that the agreements contained in this Section 8.02(e) may be specifically enforced.

(iv)        Notwithstanding anything to the contrary contained in any Loan Document but without waiving or limiting any obligations of any Loan Party or Subsidiary hereunder, neither Agent nor any receiver appointed by reason of the exercise of remedies hereunder shall control, supervise, direct, or manage, or attempt to control, supervise, direct, or manage, the business of any Loan Party or Subsidiary, in any case that would constitute or result in any assignment of any FCC License or PUC License or any Collateral subject to such FCC Licenses or PUC Licenses, or a direct or indirect transfer of control of any Loan Party or Subsidiary, any FCC License or any PUC License, whether de jure or de facto, if such assignment or such direct or indirect transfer of control would require under the Communications Law, the prior Consent of the FCC or any PUC without first obtaining such Consent.

76

SECTION 9

INDEMNIFICATION

9.01         Indemnification. In addition to all other sums due hereunder or provided for in this Agreement, each Loan Party, jointly and severally, agrees to indemnify and hold harmless Agent, each Lender and their respective Affiliates and each of their respective officers, directors, agents, employees, Subsidiaries, partners, members, attorneys, accountants and controlling persons (each, an “Indemnified Party”) to the fullest extent permitted by law from and against any and all losses, claims, damages, expenses (including reasonable fees, disbursements and other charges of counsel and costs of investigation incurred by an Indemnified Party in any action or proceeding between any Loan Party or any of its Subsidiaries and such Indemnified Party (or Indemnified Parties) or between an Indemnified Party (or Indemnified Parties) and any third party or otherwise) or other liabilities, losses, or diminution in value (collectively, “Liabilities”) resulting from or arising out of any breach of any representation or warranty, covenant or agreement of any Loan Party in this Agreement, the Notes, the Warrants, or any of the other Loan Documents, including the failure to make payment when due of amounts owing pursuant to this Agreement, the Notes, or any of the other Loan Documents, on the due date thereof (whether at the scheduled maturity, by acceleration or otherwise) or any legal, administrative or other actions (including actions brought by the Agent, any Lender, any Loan Party, any of its Subsidiaries or any holders of equity or indebtedness of any Loan Party or any of its Subsidiaries or derivative actions brought by any Person claiming through or in the name of any Loan Party or any of its Subsidiaries, proceedings or investigations (whether formal or informal), or written threats thereof, based upon, relating to or arising out of any of the Loan Documents, the transactions contemplated thereby, or any Indemnified Party’s role therein or in the transactions contemplated thereby; provided, however, that neither any Loan Party nor any of its Subsidiaries shall be liable under this Section 9.01 to an Indemnified Party: (a) for any amount paid by the Indemnified Party in settlement of claims by the Indemnified Party without such Loan Party’s consent (which consent shall not be unreasonably withheld or delayed), (b) to the extent that it is judicially determined in a final non-appealable judgment that such Liabilities resulted primarily from the willful misconduct or gross negligence of such Indemnified Party or (c) to the extent that it is judicially determined in a final non-appealable judgment that such Liabilities resulted primarily from the breach by such Indemnified Party of any representation, warranty, covenant or other agreement of such Indemnified Party contained in this Agreement; provided, further, that if and to the extent that such indemnification is unenforceable for any reason, the Loan Parties shall make the maximum contribution to the payment and satisfaction of such Liabilities which shall be permissible under Applicable Laws. In connection with the obligation of the Loan Parties to indemnify for expenses as set forth above, each Loan Party further agrees, upon presentation of appropriate invoices containing reasonable detail, to reimburse each Indemnified Party for all such expenses (including fees, disbursements and other charges of counsel and costs of investigation incurred by an Indemnified Party in any action or proceeding between any Loan Party (or any of its Subsidiaries) and such Indemnified Party (or Indemnified Parties) or between an Indemnified Party (or Indemnified Parties) and any third party or otherwise) as they are incurred by such Indemnified Party; provided, however, that if an Indemnified Party is reimbursed hereunder for any expenses, such reimbursement of expenses shall be refunded to the extent it is finally judicially determined that the Liabilities in question resulted primarily from (i) the willful misconduct or gross negligence of such Indemnified Party or (ii) the breach by such Indemnified Party of any representation, warranty, covenant or other agreement of such Indemnified Party contained in this Agreement or any other Loan Document. This Section 9.01 shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-tax claim.

77

9.02         Procedure; Notification. Each Indemnified Party under this Section 9 will, promptly after the receipt of notice of the commencement of any action, investigation, claim or other proceeding against such Indemnified Party in respect of which indemnity may be sought from the Loan Parties under this Section 9, notify the Loan Parties in writing of the commencement thereof. The omission of any Indemnified Party so to notify the Loan Parties of any such action shall not relieve the Loan Parties from any liability which they may have to such Indemnified Party unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses of the Loan Parties. In case any such action, claim or other proceeding shall be brought against any Indemnified Party and it shall notify the Loan Parties of the commencement thereof, the Loan Parties shall be entitled to assume the defense thereof at their own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment; provided, however, that, if the Loan Parties have assumed the defense of any such action, claim or other proceeding, any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense. Notwithstanding the foregoing, in any action, claim or proceeding in which the Loan Parties, on the one hand, and an Indemnified Party, on the other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall have the right to employ separate counsel at the expense of the Loan Parties and to control its own defense of such action, claim or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a conflict or potential conflict exists between the Loan Parties, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable; provided, however, that in no event shall the Loan Parties be required to pay fees and expenses under this Section 9 for more than one firm of attorneys in any jurisdiction in any one legal action or group of related legal actions. Each Loan Party agrees that it will not, without the prior written consent of the Lenders, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been actually threatened to be made a party thereto) unless such settlement, compromise or consent includes an unconditional release of the Lenders and each other Indemnified Party from all liability arising or that may arise out of such claim, action or proceeding. Neither any Loan Party nor any of its Subsidiaries shall be liable for any settlement of any claim, action or proceeding effected against an Indemnified Party without their written consent, which consent shall not be unreasonably withheld. The rights accorded to Indemnified Parties hereunder shall be in addition to any rights that any Indemnified Party may have at common law, by separate agreement or otherwise.

9.03         Survival. The obligations of the Loan Parties under this Section 9 shall survive termination of this Agreement and the Loan Documents and payment in full of the Notes.

78

SECTION 10

GUARANTEE

10.01         The Guarantee. The Guarantors hereby jointly and severally guarantee, as a primary obligor and not as a surety to each Lender and Agent and their respective successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal amount of and Interest (including any interest, fees, costs or charges that would accrue but for the provisions of Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code) on the Notes and all other obligations from time to time owing to such Lender and Agent by the Borrower under any Loan Document, in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guarantors’ Obligations”). The Guarantors hereby jointly and severally agree that if the Borrower shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guarantors’ Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guarantors’ Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise and after giving effect to any applicable notice or cure period) in accordance with the terms of such extension or renewal.

10.02         Obligations Unconditional. The obligations of the Guarantors under Section 9.01 shall constitute a guaranty of payment and not of collection and, to the fullest extent permitted by Applicable Law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guarantors’ Obligations of the Borrower under this Agreement, the Notes, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guarantors’ Obligations and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Guarantor (except for payment in full). Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder, which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:

(i)          at any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the Guarantors’ Obligations shall be extended, or such performance or compliance shall be waived;

(ii)         any of the acts mentioned in any of the provisions of this Agreement or the Notes or any other agreement or instrument referred to herein or therein shall be done or omitted;

(iii)        the maturity of any of the Guarantors’ Obligations shall be accelerated, or any of the Guarantors’ Obligations shall be amended in any respect, or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guarantors’ Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;

79

(iv)        any Lien granted to, or in favor of, Agent, on behalf of the Lenders, as security for any of the Guarantors’ Obligations shall fail to be perfected.

The Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that Agent or any Lender exhaust any right, power or remedy or proceed against the Borrower under this Agreement or the Notes, or any other agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any of the Guarantors’ Obligations. The Guarantors waive any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guarantors’ Obligations and notice of or proof of reliance by upon the guarantee provided under this Section 10 (the “Guarantee”) or acceptance of this Guarantee, and the Guarantors’ Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between any Loan Party and any Lender or Agent shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of offset with respect to the Guarantors’ Obligations at any time or from time to time held by any Lender or Agent, and the obligations and liabilities of the Guarantors hereunder shall not be conditioned or contingent upon the pursuit by such Lender or any other person at any time of any right or remedy against any Loan Party or against any other person which may be or become liable in respect of all or any part of the Guarantors’ Obligations or against any collateral security or guarantee therefore or right of offset with respect thereto. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of each Lender, Agent and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guarantors’ Obligations outstanding.

10.03         Reinstatement. The obligations of the Guarantors under this Section 10 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Loan Party in respect of the Guarantors’ Obligations is rescinded or must be otherwise restored by any holder of any of the Guarantors’ Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

10.04         Subrogation. Each Guarantor hereby agrees that until the indefeasible payment and satisfaction in full in cash of all Guarantors’ Obligations under this Agreement it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 10.01, whether by subrogation or otherwise, against any Loan Party or any security for any of the Guarantors’ Obligations.

10.05         Remedies. The Guarantors jointly and severally agree that if the obligations of any Borrower under this Agreement and the Notes are declared to be forthwith due and payable as provided in the Notes (or shall be deemed to have become automatically due and payable in the circumstances provided in the Notes) for purposes of Section 10.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower such obligations (whether or not due and payable by any Borrower) shall forthwith become due and payable by the Guarantors for purposes of Section 10.01.

80

10.06         Continuing Guarantee. The guarantee in this Section 10 is a continuing guarantee of payment, and shall apply to all Guarantors’ Obligations whenever arising.

10.07         General Limitation on Guarantors’ Obligations. In any action or proceeding involving any state corporate, limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Guarantor under Section 10.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 10.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Guarantor, or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.

SECTION 11

PRINCIPAL PAYMENTS

11.01        Optional Prepayment. The Borrower may prepay the outstanding principal amount (together with accrued Interest) on the Notes as follows:

(a)          The Borrower may, at its option, at any time upon notice given to Agent as provided in Section 11.01(b), unless such notice is waived by the Requisite Lenders, prepay all or any portion of the principal amount of any of the Notes, by payment to the Lenders, of an amount equal to the redemption prices (the “Optional Redemption Prices”) set forth below (expressed as a percentage of the outstanding principal amount being prepaid, from time to time) together with Interest accrued and unpaid on the principal amount of the Notes so prepaid through the date fixed for such prepayment, and reasonable out-of-pocket costs and expenses (including reasonable fees, charges and disbursements of counsel), if any, associated with such prepayment; provided, however, that each payment of less than the full outstanding balance of the principal amount of the Notes shall be in an aggregate amount of not less than $250,000 or integral multiples of $100,000 in excess thereof. If such prepayment is to be made by the Borrower to the Lenders during any Loan Year set forth below, the Optional Redemption Price shall be determined based upon the percentage indicated below for such Loan Year multiplied by the principal amount which is being prepaid:

Loan Year	Optional Redemption Price
1		104	%
2		103	%
Thereafter		100	%

81

(b)          The Borrower shall give written notice of prepayment of the Notes pursuant to this Section 11.01 not less than 10 nor more than 60 days prior to the date fixed for such prepayment. Such notice of prepayment pursuant to this Section 11.01 shall be given in the manner specified in Section 14.02 of this Agreement. Upon notice of prepayment pursuant to this Section 11.01 being given by the Borrower, the Borrower covenants and agrees that it will prepay, on the date therein fixed for prepayment, the Notes or the portion thereof so called for prepayment, at the applicable Optional Redemption Price set forth above with respect to the principal amount or the portion thereof so called for prepayment, together with Interest accrued and unpaid thereon to the date fixed for such prepayment, and the costs and expenses referred to in Section 11.01(a).

(c)          Any optional prepayment under this Section 11.01 shall include payment of accrued Interest on the principal amount of the Notes so prepaid and shall be applied first to all costs, expenses and indemnities payable under this Agreement, then to payment of default interest, if any, then to accrued but unpaid Interest, if any, and thereafter to the principal amount.

11.02       Mandatory Prepayments.

(a)          Liquidity Event. Upon the occurrence of a Liquidity Event (as hereinafter defined), the Borrower shall, prepay the outstanding principal amount of all Notes in accordance with the redemption prices (the “Mandatory Redemption Prices”) set forth below (expressed as a percentage of the outstanding principal amount being prepaid), together with Interest accrued and unpaid on the outstanding principal amount of the Notes so prepaid through the date of such prepayment and reasonable out-of-pocket costs and expenses (including reasonable fees, charges and disbursements of counsel), if any, associated with such prepayment. If a Liquidity Event shall occur during any Loan Year set forth below, the Mandatory Redemption Price shall be determined based upon the percentage indicated below for such Loan Year multiplied by the principal amount which is being prepaid. For the purposes hereof, “Liquidity Event” means (i) the occurrence of a Change of Control, or (ii) the liquidation, dissolution or winding up of Parent or Borrower or of one or more of Parent’s Subsidiaries that, individually or in the aggregate, constitute a material part of the business, operations or assets of the Loan Parties and all of their respective Subsidiaries, taken as a whole.

Loan Year	Mandatory Redemption Price
1		104	%
2		103	%
Thereafter		100	%

(b)          Notice. The Borrower shall give written notice to the Agent of any mandatory prepayment pursuant to Section 11.02(a) at least five (5) Business Days prior to the date of such prepayment. Such notice shall be given in the manner specified in Section 14.02 of this Agreement.

11.03         Scheduled Payments. The principal amount of the Notes shall be paid in full, together with accrued and unpaid Interest, on the Maturity Date.

82

11.04         Application of Payments.

(a)          Upon any payment or prepayment of any Series of Notes pursuant to any provision of this Agreement, the principal amount so paid or prepaid shall be allocated to all Notes of such Series at the time outstanding pro rata (based upon the proportion of the respective outstanding principal amount of such Series of Notes) until such Series of Notes has been paid in full.

(b)          Payments of the principal amount of each Note to each Lender shall be made to the same account and in the same manner as provided in Section 2.06(a).

SECTION 12

REGARDING AGENT

12.01         Appointment. Each Lender hereby designates Fund III to act as Agent for such Lender under this Agreement and the Loan Documents. Each Lender hereby irrevocably authorizes Agent to take such action on its behalf under the provisions of this Agreement and the Loan Documents and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto and Agent shall hold all Collateral, payments of principal and interest, fees, charges and collections received pursuant to this Agreement, for itself and for the ratable benefit of the Lenders. Agent may perform any of its duties hereunder by or through its agents or employees. As to any matters not expressly provided for by this Agreement (including collection of the Notes) Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders (or, if applicable pursuant to Section 11.04, the holders of 100% of the Notes), and such instructions shall be binding; provided, however, that Agent shall not be required to take any action which exposes Agent to liability or which is contrary to this Agreement or the Loan Documents or any Requirement of Law unless Agent is furnished with an indemnification reasonably satisfactory to Agent with respect thereto.

12.02         Nature of Duties. Agent shall have no duties or responsibilities except those expressly set forth in this Agreement and the Loan Documents. Neither Agent nor any of its officers, directors, employees or agents shall be (i) liable for any action taken or omitted by them as such hereunder or in connection herewith, unless caused by their gross (not mere) negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), or (ii) responsible in any manner for any recitals, statements, representations or warranties made by any Loan Party or any of its Subsidiaries or any officer of any of any Loan Party or any of its Subsidiaries contained in this Agreement, or in any of the Loan Documents or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any of the Loan Documents or for the value, validity, effectiveness, genuineness, due execution, enforceability or sufficiency of this Agreement, or any of the Loan Documents or for any failure of any Loan Party or any of its Subsidiaries to perform its obligations hereunder. Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any of the Loan Documents, or to inspect the properties, books or records of any Loan Party or any of its Subsidiaries. The duties of Agent as respects payments or collections shall be mechanical and administrative in nature; Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Lender; and nothing in this Agreement, expressed or implied, is intended to or shall be so construed as to impose upon Agent any obligations in respect of this Agreement except as expressly set forth herein.

83

12.03         Lack of Reliance on Agent and Resignation.

(a)          Independently and without reliance upon Agent or any other Lender, each Lender has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Loan Parties and their Subsidiaries in connection with the purchase of any Securities hereunder and the taking or not taking of any action in connection herewith, and (ii) its own appraisal of the creditworthiness of the Loan Parties. Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the purchase of any Securities or at any time or times thereafter except as shall be provided by the Loan Parties pursuant to the terms hereof. Agent shall not be responsible to any Lender for any recitals, statements, information, representations or warranties herein or in any agreement, document, certificate or a statement delivered in connection with or for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Agreement or any Loan Document, or of the financial condition of the Loan Parties and their Subsidiaries, or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement, the Notes, the Loan Documents or the financial condition of the Loan Parties and their Subsidiaries, or the existence of any Event of Default or any Default.

(b)          Agent may resign on thirty (30) days’ written notice to each Lender and upon such resignation, the Requisite Lenders will promptly designate a successor Agent reasonably satisfactory to the Loan Parties (provided that the consent of the Loan Parties shall not be required after the occurrence and during the continuance of an Event of Default).

(c)          Any such successor Agent shall succeed to the rights, powers and duties of Agent, and the term “Agent” shall mean such successor agent effective upon its appointment, and the former Agent’s rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such former Agent. After any Agent’s resignation as Agent, the provisions of this Section 12 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.

12.04        Certain Rights of Agent. If Agent shall request instructions from the Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any Loan Document, Agent shall be entitled to refrain from such act or taking such action unless and until Agent shall have received instructions from the Lenders; and Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of its acting or refraining from acting hereunder in accordance with the instructions of the Requisite Lenders.

84

12.05         Reliance. Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, electronic communications, certificate or telecopier message, order or Loan Document or telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person or entity, and, with respect to all legal matters pertaining to this Agreement and the Loan Documents and its duties hereunder, upon advice of counsel selected by it. Agent may employ agents and attorneys-in-fact and shall not be liable for the default or misconduct of any such agents or attorneys-in-fact selected by Agent with reasonable care.

12.06         Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder or under the Loan Documents, unless Agent has received notice from a Lender or a Loan Party referring to this Agreement or the Loan Documents, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that Agent receives such a notice, Agent shall give notice thereof to each Lender. Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by Requisite Lenders; provided, that, unless and until Agent shall have received such directions, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.

12.07         Indemnification. To the extent Agent is not reimbursed and indemnified by the Loan Parties and their Subsidiaries, each Lender will reimburse and indemnify Agent in proportion to its respective portion of the Notes, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Agent in performing its duties hereunder, or in any way relating to or arising out of this Agreement or any Loan Document; provided that, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from Agent’s gross (not mere) negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment). The obligations of the Lenders under this Section 12.07 shall survive termination of this Agreement and the Loan Documents and payment in full of the Notes.

12.08         Agent in its Individual Capacity. With respect to the obligation of Agent to purchase Securities under this Agreement, the Securities purchased by it shall have the same rights and powers hereunder as any other Lender and as if it were not performing the duties as Agent specified herein; and the term “Lender” or any similar term shall, unless the context clearly otherwise indicates, include Agent in its individual capacity as a Lender. Agent may engage in business with any Loan Party as if it were not performing the duties specified herein.

12.09         Delivery of Documents or Other Information. To the extent Agent receives financial statements or other information required under this Agreement from the Loan Parties pursuant to the terms of this Agreement which the Loan Parties are not obligated to deliver to the Lenders, Agent will promptly furnish such documents and information to the Lenders.

85

12.10         Loan Parties’ Undertaking to Agent. Without prejudice to its respective obligations to each Lender under the other provisions of this Agreement, each Loan Party undertakes with Agent to pay to Agent from time to time on demand all amounts from time to time due and payable by it for the account of Agent or Lenders or any of them pursuant to this Agreement to the extent not already paid. Any payment made pursuant to any such demand shall pro tanto satisfy such Loan Party’s obligations to make payments for the account of Lenders or the relevant one or more of them pursuant to this Agreement.

12.11         No Reliance on Agent’s Customer Identification Program. Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on the Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the USA PATRIOT Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the following items relating to or in connection with any Loan Party, its Affiliates or its agents, this Agreement, the Loan Documents or the transactions hereunder or contemplated hereby: (1) any identity verification procedures, (2) any record-keeping, (3) comparisons with government lists, (4) customer notices or (5) other procedures required under the CIP Regulations or such other laws.

12.12         Other Agreements. Each Lender hereby specifically authorizes and directs Agent to enter into each of the Loan Documents on behalf of such Lender. Each Lender agrees that it shall not, without the express consent of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the request of Agent, set off against the obligations of the Loan Parties and their Subsidiaries to Agent and Lenders under the Agreement and Loan Documents, any amounts owing by such Lender to the Loan Parties or any of their Subsidiaries. Anything in this Agreement to the contrary notwithstanding, each Lender further agrees that it shall not take any action to protect or enforce its rights arising out of this Agreement or the Loan Documents, it being the intent of each Lender that any such action to protect or enforce rights under this Agreement and the Loan Documents shall be taken by Agent at the direction of Requisite Lenders.

86

SECTION 13

TAXES

13.01         Taxes.

(a)          Any and all payments by Borrower to or for the account of Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and all interest, additions to tax, penalties or other liabilities with respect thereto (“Taxes”), excluding the following (collectively, “Excluded Taxes”): (i) franchise Taxes and Taxes imposed or measured by Agent’s or Lender’s (as the case may be) overall net income, that are imposed on it by the jurisdiction (or any political subdivision thereof) (1) under the Laws of which Agent or Lender (as the case may be) is organized or maintains a lending office, or (2) with which Agent or such Lender otherwise has a present or former connection (other than any such connection arising solely from Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document); (ii) any branch profits Tax imposed by the United States or any similar Tax imposed by another jurisdiction in which Borrower is located; (iii) any Taxes that are attributable to Agent’s or such Lender’s failure or inability to comply with Section 13.01(f) below; (iv) United States withholding Taxes required to be imposed on amounts payable to Agent or any Lender pursuant to the Laws in force at the time Agent or such Lender becomes a party to this Agreement, except, if Lender designates a new lending office or becomes a party to this Agreement pursuant to an assignment, withholding Taxes shall not be Excluded Taxes to the extent that such Taxes were not Excluded Taxes with respect to Lender or its assignor, as the case may be, immediately before such designation of a new lending office or assignment; and (v) United States withholding Taxes imposed by FATCA. If Borrower is required by any Law to deduct any Taxes other than Excluded Taxes (“Indemnified Taxes”) from or in respect of any sum payable under any Loan Document to Lender, (1) the sum payable shall be increased as necessary so that after making all required deductions of Indemnified Taxes (including deductions applicable to additional sums payable under this Section), Lender receives an amount equal to the sum it would have received had no such deductions been made, (2) Borrower shall make such deductions, (3) Borrower shall timely pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (4) as soon as possible, but in any event within thirty (30) days after the date of such payment, Borrower shall furnish to Administrative Agent or such Lender the original or a certified copy of a receipt issued by such taxation or other authority evidencing payment thereof.

(b)          In addition, Borrower agrees to pay any and all present or future stamp, excise, court, or documentary Taxes, charges or similar levies, which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document, other than Taxes that are imposed with respect to an assignment and that are imposed as a result of a pre-existing connection between Agent or Lender and the jurisdiction imposing the Tax (such Taxes that Borrower agrees to pay hereinafter referred to as “Other Taxes”).

(c)          If Borrower shall be required by the Laws of any jurisdiction outside the United States to deduct any Indemnified Taxes from or in respect of any sum payable under any Loan Document to Lender, Borrower shall also pay to Agent (for payment to the applicable Lender), at the time interest is paid, such additional amount that such Lender specifies as necessary to preserve the after-tax yield (after factoring in United States (federal and state) Taxes imposed on or measured by net income, and taking into account any foreign tax credits available under Sections 901 through 903 of the Code or similar credit or exemption under a similar state law attributable to Borrower’s payment of such Indemnified Taxes) such Lender would have received if such deductions (including deductions applicable to additional sums payable under this Section) had not been made. A certificate that such Lender delivers to Borrower as to any such additional amount shall be conclusive absent manifest error.

87

(d)          Without duplication of any amounts payable under clauses (a), (b) or (c) above, Borrower agrees to indemnify, defend and hold Agent and each Lender harmless for (i) the full amount of Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section) payable or paid by Agent and/or such Lender; and (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Borrower shall make payment under this subsection (d) as soon as practicable after the date Agent or Lender makes a demand therefor.

(e)          Each Lender shall severally indemnify Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that Borrower has not already indemnified Agent for such Indemnified Taxes and without limiting the obligation of Borrower to do so), and (ii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Agent to the Lender from any other source against any amount due to Agent under this subsection (e).

(f)          Each Lender, on or prior to the date on which such Lender becomes a Lender under this Agreement, and from time to time thereafter if reasonably requested in writing by Borrower, shall provide Borrower with (i) if such Lender is not a “United States Person” as that term is defined in Section 7701(a)(30) of the Code (“U.S. Person”) (a “Non- U.S. Lender”), a complete and properly executed IRS Form W-8BEN, W-8BEN-E, W-8ECI or W-8IMY (including all required accompanying information), as appropriate, or any successor form prescribed by the IRS (including a United States taxpayer identification number), certifying that such Non-U.S. Lender is entitled to benefits under an income Tax treaty to which the United States is a party that reduces the rate of withholding Tax on payments of interest, certifying that such Non-U.S. Lender is eligible for the “portfolio interest exemption” or certifying that the income receivable pursuant to this Agreement is effectively connected with the conduct of a trade or business in the United States or (ii) if Lender is a U.S. Person, an IRS Form W-9 or any successor form prescribed by the IRS. If a payment made by Borrower to Lender or Administrative Agent would be subject to U.S. federal withholding Tax imposed by FATCA if such person were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such person shall deliver to Borrower and Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Agent to comply with their obligations under FATCA and to determine that such Lender or Agent has complied with such Lender’s or Administrative Agent’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. In addition, each Lender will (1) take all actions reasonably requested in good faith by Borrower in writing that are consistent with applicable legal and regulatory restrictions to claim any available reductions or exemptions from Indemnified Taxes or Other Taxes and (2) otherwise cooperate with Borrower to minimize any amounts payable by Borrower under this Section 13.01; provided that, in each case, any out-of-pocket cost relating directly to such action or cooperation requested by Borrower shall be borne solely by Borrower, and no Lender shall be required to take any action that it determines in its sole good faith discretion may be adverse in any non de minimis respect to it and not indemnified to its satisfaction.

88

(g)          If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 13.01 (including by the payment of additional amounts pursuant to this Section 13.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

SECTION 14

MISCELLANEOUS

14.01         Survival of Representations and Warranties. All of the representations and warranties made herein shall survive the execution and delivery of this Agreement, any investigation by or on behalf of the Agent or any Lender, acceptance of the Securities and the Warrant Shares and the respective payments therefor, or termination of this Agreement.

14.02         Notices. All notices, demands and other communications provided for or permitted hereunder shall be made in writing and shall be sent by registered or certified first class mail, return receipt requested, facsimile (with receipt confirmed), e-mail with confirmation of receipt), courier service or personal delivery:

89

if to Agent or Fund III or Fund III-A:

c/o Praesidian Capital Opportunity Fund III, LP
2 Madison Avenue
Larchmont, NY 10538
Facsimile:	212-520-2601
Attention:	Jason D. Drattell
Email:	jdrattell@praesidian.com

with a copy to:

Morrison Cohen LLP
909 Third Avenue
New York, NY 10022
Facsimile:	(917) 522-3168
Attention:	Stephen I. Budow, Esq.
Email:	sbudow@morrisoncohen.com

If to United:

United Insurance Company of America
c/o Kemper Corporation
1 E. Wacker Dr.
Chicago, IL 60601
Facsimile:	(312) 467-6210
Attention:	Jonathan Wilson
Email:	jpwilson@kemper.com

if to any Loan Party:

(Name of Loan Party)
c/o Fusion Telecommunications International, Inc.
420 Lexington Avenue, Suite 1718
New York, NY 10170
Facsimile:	(212) 972-7884
Attention:	General Counsel
Email:	legal@fusionconnect.com

All such notices and communications shall be deemed to be effective: (i) in the case of hand-delivery, when delivered; (ii) in the case of a facsimile transmission, when sent to the applicable party’s facsimile machine’s telephone number, if the party sending such notice or communication receives confirmation of the delivery thereof from its own facsimile machine; (iii) in the case of electronic transmission, upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); (iv) in the case of mail, five (5) Business Days after being deposited in the mail, postage prepaid; or (v) if given by any other means (including by overnight courier), when actually received.

90

14.03         Successors and Assigns; Third Party Beneficiaries.

(a)          This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. Subject to applicable securities laws and, subject to the prior written consent of the Borrower (such consent of the Borrower not to be unreasonably withheld or delayed, and shall be deemed provided unless expressly withheld by the Borrower within three (3) Business Days of written request therefor), Agent and each Lender may assign any of its rights under any of the Loan Documents to any Person, and any holder of the Notes may assign, in whole or in part, the Notes to any Person; provided, however, that no such consent of the Borrower will be required (i) with respect to any assignment to another Lender or any Affiliate of any Lender, or (ii) during the continuation of any Event of Default. No Loan Party may assign any of their respective rights, or delegate any of its obligations, under this Agreement or any of the other Loan Documents without the prior written consent of the Lenders, and any such purported assignment by any Loan Party without the written consent of the Lenders shall be void and of no effect. Except as provided in this Section 14.03 and Article 7, no Person other than the parties hereto and to the other Loan Documents and their successors and permitted assigns is intended to be a beneficiary of any of such Loan Documents.

(b)          Notwithstanding any other provision of this Agreement or any Loan Document to the contrary, Agent and any Lender may at any time create a security interest in all or any portion of its rights under this Agreement, the Notes or any other Loan Document, and the Collateral.

(c)          Notwithstanding anything in this Agreement or any Loan Document to the contrary, there shall be no limitation or restriction on (A) the ability of any Lender or Agent to assign or otherwise transfer this Agreement, any Note, or any of the other Loan Documents, or any rights thereunder, to any of its Affiliates or (B) (x) the ability of any Lender or Agent to pledge, or otherwise grant a security interest in, this Agreement, any Note, or any of the other Loan Documents, or any of its rights thereunder, to any lender or other funding or financing source of such Lender or Agent or (y) the assignment or other transfer in connection with the realization of any such pledge or other security interest; provided, however, such Lender shall continue to be liable as a “Lender” under this Agreement and the other Loan Documents unless any such Affiliate, lender or funding or financing source agrees to be bound by this Agreement and the other Loan Documents.

14.04         Amendment and Waiver.

(a)          No failure or delay on the part of any of the parties hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for in this Agreement are cumulative and are not exclusive of any remedies that may be available to the parties hereto at law, in equity or otherwise.

91

(b)          Any Modification of this Agreement, the Notes or any other Loan Document, shall be effective as to the Lenders (i) only if it is made or given in writing and signed by each Loan Party and the Requisite Lenders, except that, without the written consent of the holder or holders of all Notes at the time outstanding, no amendment to this Agreement or any other Loan Document shall change the maturity of any Note, or change the principal of, or the rate, method of computation or time of payment of interest on or any fee payable with respect to, any Note, or affect the time, amount or allocation of any prepayments, or change the proportion of the principal amount of the Notes required with respect to any amendment, supplement or modification, and (ii) only in the specific instance and for the specific purpose for which made or given. No amendment, supplement or modification of or to any provision of this Agreement or any of the other Loan Documents, or any waiver of any such provision or consent to any departure by any party from the terms of any such provision may be made orally. Except where notice is specifically required by this Agreement, no notice to or demand on any Loan Party in any case shall entitle such Loan Party to any other or further notice or demand in similar or other circumstances.

14.05         Signatures; Counterparts. Facsimile or electronic transmissions of any executed original document and/or retransmission of any executed facsimile or electronic transmission shall be deemed to be the same as the delivery of an executed original. At the request of any party hereto, the other parties hereto shall confirm facsimile or electronic transmissions by executing duplicate original documents and delivering the same to the requesting party or parties. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

14.06         Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

14.07         GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE.

14.08         JURISDICTION; JURY TRIAL WAIVER.

(a)          EACH LOAN PARTY HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SECURITIES OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM. EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 12.02, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER JURISDICTION.

92

(b)          EACH LOAN PARTY AND EACH OF ITS SUBSIDIARIES HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE SECURITIES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EACH LOAN PARTY AND EACH OF ITS SUBSIDIARIES (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT EACH LENDER HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS PARTY BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.

14.09         Severability. If any one or more of the provisions contained in this Agreement, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions of this Agreement. The parties hereto further agree to replace such invalid, illegal or unenforceable provisions of this Agreement with valid, legal and enforceable provisions that will achieve, to the extent possible, the economic, business and other purposes of such invalid, illegal or unenforceable provisions.

14.10         Rules of Construction. Unless the context otherwise requires, “or” is not exclusive.

14.11         Entire Agreement. This Agreement and the other Loan Documents, together with the exhibits and schedules hereto and thereto, is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or therein. This Agreement and the other Loan Documents, together with the exhibits and schedules hereto and thereto, supersede all prior agreements and understandings between the parties with respect to such subject matter.

93

14.12         Certain Expenses. The Loan Parties will pay all expenses of the Agent and Lenders (including Attorney Costs) in connection with (i) any amendment, supplement, modification or waiver of or to any provision of this Agreement or any of the other Loan Documents or any documents relating thereto (including a response to a request by any Loan Party for the Lenders’ consent to any action otherwise prohibited hereunder or thereunder), or consent to any departure from, the terms of any provision of this Agreement or such other documents, (ii) all efforts made to enforce payment of the Notes, (iii) instituting, maintaining, preserving, enforcing and foreclosing on Agent’s security interest in or Lien on any of the Collateral, or maintaining, preserving or enforcing any of Agent’s or any Lender’s rights hereunder, under any Subordination Agreement and under all related agreements, documents and instruments, whether through judicial proceedings or otherwise, or (iv) defending or prosecuting any actions or proceedings arising out of or relating to Agent’s or any Lender’s transactions with any Loan Party or any other Lender or (v) any advice given to any Agent or any Lender with respect to its rights and obligations under this Agreement or any Subordination Agreement and all related agreements, documents and instruments.

14.13         Publicity. Except as may be required by Applicable Law, none of the parties hereto shall issue a publicity release or announcement or otherwise make any public disclosure concerning this Agreement or the transactions contemplated hereby, without prior approval by the other parties hereto. If any announcement is required by law to be made by any party hereto, prior to making such announcement such party will deliver a draft of such announcement to the other parties and shall give the other parties an opportunity to comment thereon. Notwithstanding the foregoing, any Lender or any Affiliate of any Lender may (i) disclose a general description of transactions arising under the Loan Documents for advertising, marketing or other similar purposes, and (ii) use any Loan Party’s name, logo or other indicia germane to such party in connection with such advertising, marketing or other similar purposes, and, in each case, may post such information on its website.

14.14         Further Assurances. Each of the parties shall execute such documents and perform such further acts (including obtaining any consents, exemptions, authorizations, or other actions by, or giving any notices to, or making any filings with, any Governmental Authority or any other Person) as may be reasonably required or desirable to carry out or to perform the provisions of this Agreement, including any post-closing assignment(s) by any Lender of a portion of the Securities to a Person not currently a party hereto.

14.15         Obligations of the Lenders. The obligations of each Lender shall be several and not joint and no Lender shall be liable or responsible for the acts or omissions of any other Lender.

14.16         No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and the other Loan Documents. In the event an ambiguity or question of intent or interpretation arises under any provision of this Agreement or any Loan Document, this Agreement or such other Loan Document shall be construed as if drafted jointly by the parties thereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement or any other Loan Document. No knowledge of, or investigation, including due diligence investigation, conducted by, or on behalf of, any Lender shall limit, modify or affect the representations set forth in Article 5 of this Agreement or the right of any Lender to rely thereon.

94

14.17         Transfer of the Notes.

(a)          The term “Lender” as used herein shall include any transferee of any Note whose name has been recorded by the Borrower in the Note Register. Each transferee of any Note acknowledges that the Notes have not been registered under the Securities Act, and may be transferred only pursuant to an effective registration under the Securities Act or pursuant to an applicable exemption from the registration requirements of the Securities Act.

(b)          The Borrower shall maintain a register (the “Note Register”) in its principal offices for the purpose of registering the Notes and any transfer or partial transfer thereof, which register shall reflect and identify, at all times, the ownership of record of any interest in the Notes or any interest therein. Upon the issuance of the Notes, the Borrower shall record the name and address of the initial Lender of each Note in the Note Register as the first Lender. Upon surrender for registration of transfer or exchange of any Note at the principal offices of the Borrower, the Borrower shall, at its expense, execute and deliver one or more Notes of like tenor and of denominations of at least $500,000 (except as may be necessary to reflect any principal amount not evenly divisible by $500,000) of a like aggregate principal amount, registered in the name of the Lender or a transferee or transferees. Every Note surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by written instrument of transfer duly executed by the Lender of such Note or such Lender’s attorney duly authorized in writing.

(c)          On receipt by the Borrower of an affidavit of an authorized representative of any Lender stating the circumstances of the loss, theft, destruction or mutilation of any Note (and in the case of any such mutilation, on surrender and cancellation of such Note), the Borrower, at its expense, will promptly execute and deliver, in lieu thereof, a new Note of like tenor. If required by the Borrower, such Lender must provide indemnity sufficient in the reasonable judgment of the Borrower to protect the Borrower from any loss which they may suffer if a lost, stolen or destroyed Note is replaced.

14.18         East West Subordination Agreement.

(a)          In connection with the incurrence by the Borrower of the First Lien Indebtedness and the Loan Parties’ guarantees in respect thereof, each Lender hereby authorizes and directs Agent to execute deliver and perform the East West Subordination Agreement on behalf of such Lender and agrees that Agent in its various capacities thereunder may take such actions on such Lender’s behalf as is contemplated by the terms of the East West Subordination Agreement. Each Lender further acknowledges that is has received and reviewed the East West Subordination Agreement and agrees that it will be bound by and will take no actions contrary to the provisions of the East West Subordination Agreement, authorizes and instructs Agent and to execute deliver and perform the East West Subordination Agreement as agent and on behalf of such Lender and authorizes and agrees that Agent may take such actions on behalf of such Lender as is contemplated by the terms of the East West Subordination Agreement.

95

(b)          The provisions of this Section 14.18 are not intended to summarize all relevant provisions of the East West Subordination Agreement. Reference must be made to the East West Subordination Agreement itself to understand all terms and conditions thereof. Each Lender is responsible for making its own analysis and review of the Subordination Agreement and the terms and provisions thereof, and neither Agent nor or any of its affiliates makes any representation to any Lender as to the sufficiency or advisability of the provisions contained in the East West Subordination Agreement.

(c)          Each Lender (a) hereby consents to the subordination of the Liens securing the Obligations on the terms set forth in the East West Subordination Agreement, (b) hereby agrees that this Agreement and the other Loan Documents, and the rights and remedies of Agent and the Lenders hereunder and thereunder, are subject to the terms of the East West Subordination Agreement, (c) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the East West Subordination Agreement and (d) hereby authorizes and instructs Agent to enter into the East West Subordination Agreement and to subject the Liens securing the Obligations to the provisions thereof.

(d)          The delivery of any Collateral or any certificates, titles, instruments, chattel paper or documents evidencing or in connection with such Collateral to the First Lien Agent under and in accordance with the First Lien Credit Documents shall constitute compliance by the Loan Parties with the provisions of this Agreement or any other Loan Document which require delivery or possession of certain types of Collateral to or by Agent so long as such First Lien Credit Documents are in full force and effect, the First Lien Indebtedness has not been paid in full and the Loan Parties are in compliance with the applicable provisions thereof with respect to such Collateral.

96

EXECUTION VERSION

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

Borrower:	FUSION NBS ACQUISITION CORP.
	By:	/s/ Gordon Hutchins, Jr.
		Name:	Gordon Hutchins, Jr.
		Title:	President and Chief Operating Officer

[Signature Page to Fifth Amended and Restated Securities Purchase Agreement and Security Agreement]

Guarantors:	FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: President and Chief Operating Officer
	NETWORK BILLING SYSTEMS, L.L.C.
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: Executive Vice President
	FUSION BVX LLC
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: President
	PINGTONE COMMUNICATIONS, INC.
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: President and Chief Operating Officer
	FIDELITY ACCESS NETWORKS, LLC
	By:	/s/ Gordon Hutchins, Jr.
		Name: Gordon Hutchins, Jr.
		Title: President and Chief Operating Officer

[Signature Page to Fifth Amended and Restated Securities Purchase Agreement and Security Agreement]

FIDELITY CONNECT LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY VOICE SERVICES, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
FIDELITY TELECOM, LLC
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer
APPTIX, INC.
By:	/s/ Gordon Hutchins, Jr.
	Name: Gordon Hutchins, Jr.
	Title: President and Chief Operating Officer

[Signature Page to Fifth Amended and Restated Securities Purchase Agreement and Security Agreement]

Lenders:
	PRAESIDIAN CAPITAL OPPORTUNITY FUND III, LP
	By:	Praesidian Capital Opportunity GP III, LLC,
		its General Partner
	By:	/s/ Jason D. Drattell
	Name:	Jason D. Drattell
	Title:	Manager
	PRAESIDIAN CAPITAL OPPORTUNITY FUND III-A, LP
	By: Praesidian Capital Opportunity GP III-A, LLC,
	its General Partner
	By:	/s/ Jason D. Drattell
	Name:	Jason D. Drattell
	Title:	Manager
	UNITED INSURANCE COMPANY OF AMERICA
	By:	/s/ Jonathan Wilson
	Name:	Jonathan Wilson
	Title:	Assistant Treasurer

[Signature Page to Fifth Amended and Restated Securities Purchase Agreement and Security Agreement]

Agent:
	PRAESIDIAN CAPITAL OPPORTUNITY FUND III, LP
	By: Praesidian Capital Opportunity GP III, LLC, its General Partner
	By:	/s/ Jason D. Drattell
	Name:	Jason D. Drattell
	Title:	Manager

[Signature Page to Fifth Amended and Restated Securities Purchase Agreement and Security Agreement]

EX-10.3.1

Exhibit 10.3.1

Execution Version

STOCK PURCHASE AND SALE AGREEMENT

THIS STOCK PURCHASE AND SALE AGREEMENT is made as of this 14^th day of November 2016 (the “Effective Date”) by and among Fusion NBS Acquisition Corp., a corporation formed under the laws of the state of Delaware (“Buyer”); Fusion Telecommunications International, Inc., a Delaware corporation (“Fusion”) solely as to Section 2.3(a), Section 2.3(c)(ii), Section 2.4(b)(ii), Section 2.4(b)(iv), its representations in Section 4.6 through Section 4.11, Section 5.4, Section 5.9, Section 5.11 and Article IX; and Apptix, ASA, a company formed under the laws of Norway (“Seller”). The Buyer, Fusion and the Seller are hereinafter sometimes referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, Apptix, Inc., a corporation incorporated under the laws of the state of Florida and a wholly-owned subsidiary of Seller (“Apptix”), is engaged in the business of providing managed and hosted business communication, collaboration, compliance and security, and infrastructure solutions to mid-market and enterprise customers and blue chip channel partners (the “Business”); and

WHEREAS, Seller owns all of the issued and outstanding equity securities of Apptix (collectively, hereinafter referred to as the “Equity Interests”); and

WHEREAS, Seller desires to sell the Equity Interests to Buyer and Buyer desires to purchase all of the Equity Interests from Seller upon the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants, representations, warranties and agreements contained herein, the Parties agree as follows:

ARTICLE I

DEFINITIONS AND CONSTRUCTION

1.1          Certain Definitions

As used in this Agreement, the following terms shall have the following meanings, unless the context otherwise requires:

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” means this Agreement, including all Exhibits and schedules hereto.

“Apptix” has the meaning given such term in the recitals.

“Apptix Employees” has the meaning given such term in Section 3.16(a).

“Apptix Intellectual Property” means all Intellectual Property that is owned by Apptix.

“Apptix IP Agreements” means licenses in which Apptix grants to any other Person rights with respect to Apptix Intellectual Property.

“Apptix IP Registrations” means all Apptix Intellectual Property that is subject to any issuance registration, application or other filing by, to or with any Governmental Entity or authorized private registrar in any jurisdiction, including registered trademarks, domain names, IP Address blocks, and copyrights, issued and reissued patents and pending applications for any of the foregoing.

“Apptix Leased Real Property” has the meaning given such term in Section 3.14.

“Apptix Permits” has the meaning given such term in Section 3.12(b).

“Apptix Real Property Leases” has the meaning given such term in Section 3.14.

“Apptix Transaction Expenses” means, as of immediately prior to the Closing, (a) the aggregate of all fees and expenses payable by Apptix (or for which Apptix may otherwise be liable prior to the Closing), that have been incurred in connection with the Transactions including any of the foregoing payable to legal counsel, accountants, investment bankers, financial advisors, brokers, finders, or consultants, (b) the amounts of any change of control or change in control bonuses due to Apptix employees as a result of the consummation of the Transactions, and (c) any severance obligations to Apptix employees, other than the Assumed Severance Expense, related to terminations of such employees prior to the Closing.

“Assumed Severance Expense” means $355,000 of severance expense incurred by Seller in connection with the termination of employees and/or transaction bonuses incurred by Seller which shall be assumed by Buyer at Closing and paid in accordance with Section 5.12.

“Audited Financial Statements” has the meaning given such term in Section 3.5.

“Benefit Plan” has the meaning given such term in Section 3.18(a).

“Broker” has the meaning given such term in Section 3.13.

“Business” has the meaning given such term in the first recital.

“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in New York, New York are authorized or required by Law to be closed for business.

“Buyer” has the meaning given such term in the preamble.

2

“Cash” means the aggregate amount of cash and cash equivalents held (as of the applicable measurement time) in Apptix’s bank accounts, including money market accounts (but excluding deposits in transit to Apptix and excluding checks written by Apptix to pay obligations in the ordinary course of business).

“Cash Purchase Price” has the meaning set forth in Section 2.2.

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.

“Closing” means the consummation of the transactions contemplated by this Agreement.

“Closing Date” has the meaning set forth in Section 2.3(a).

“Closing Purchase Price” has the meaning set forth in Section 2.2.

“COBRA” has the meaning given such term in Section 3.18(m).

“Code” means the Internal Revenue Code of 1986, as amended.

“Common Stock” means shares of common stock, $0.01 par value per share of Fusion.

“Communications Act” means the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq., and the rules, regulations, and published policies, procedures, orders and decisions of the FCC.

“Contract” means any note, bond, indenture, mortgage, deed of trust, lease, franchise, permit, authorization, license, contract, instrument, employee benefit plan or practice, or other agreement, obligation, commitment, arrangement or concession of any nature whatsoever, whether oral or written.

“Delivery Date” has the meaning given such term in Section 5.11.

“Disclosure Schedules” means the Disclosure Schedules delivered by the Seller concurrently with the execution and delivery of this Agreement.

“Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

“Entity” means a partnership, corporation, limited liability company, trust, unincorporated organization, association, joint venture, or other similar entity.

3

“Environmental Claim” means any Action, Governmental Order, lien, fine, penalty, or, as to each, any settlement or judgment arising therefrom, by or from any Person alleging liability of whatever kind or nature (including liability or responsibility for the costs of enforcement proceedings, investigations, cleanup, governmental response, removal or remediation, natural resources damages, property damages, personal injuries, medical monitoring, penalties, contribution, indemnification and injunctive relief) arising out of, based on or resulting from: (a) the presence, Release of, or exposure to, any Hazardous Materials; or (b) any actual or alleged non-compliance with any Environmental Law or term or condition of any Environmental Permit.

“Environmental Law” means any applicable Law, and any Governmental Order or binding agreement with any Governmental Entity: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials. The term “Environmental Law” includes, without limitation, the following (including their implementing regulations and any state analogs): CERCLA; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.

“Environmental Notice” means any written directive, notice of violation or infraction, or notice respecting any Environmental Claim relating to actual or alleged non-compliance with any Environmental Law or any term or condition of any Environmental Permit.

“Environmental Permit” means any permit, letter, clearance, consent, waiver, closure, exemption, decision or other action required under or issued, granted, given, authorized by or made pursuant to Environmental Law.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

“ERISA Affiliate” means all employers (whether or not incorporated) that would be treated together with Apptix or any of its Affiliates as a “single employer” within the meaning of Section 414 of the Code.

“Escrow Letter” means the escrow letter, dated as of the date hereof, among, Buyer, Seller and the Law Firm setting forth the regulatory conditions that must be satisfied prior to release of the Escrow Shares to Buyer.

“Escrow Shares” has the meaning given such term in Section 5.9.

“Equity Interests” has the meaning given such term in the second recital.

4

“Exchange Act” has the meaning given such term in Section 4.10.

“FCC” means the United States Federal Communications Commission.

“FIRPTA Statement” has the meaning set forth in Section 6.3.

“Flow of Funds Memorandum” has the meaning set forth in Section 2.3(b).

“Fusion” has the meaning given such term in the preamble.

“GAAP” means accounting principles generally accepted in the United States of America as in effect from time to time.

“Government Contracts” has the meaning set forth in Section 3.24(a)(xi).

“Governmental Entity” means any court, arbitrator, administrative or other governmental department, agency, commission, authority or instrumentality, domestic or foreign.

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity.

“Hazardous Materials” means: (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is hazardous, acutely hazardous, toxic, or words of similar import or regulatory effect under Environmental Laws; and (b) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation, and polychlorinated biphenyls.

“HCERA” has the meaning given such term in Section 3.18(m).

“IASB” means the International Accounting Standards Board.

“IFRS” means the International Financial Reporting Standards.

“Indebtedness” means, without duplication and with respect to Apptix, all (a) indebtedness for borrowed money; (b) obligations for the deferred purchase price of property, (c) long or short-term obligations evidenced by notes, bonds, debentures or other similar instruments; (d) obligations under any interest rate, currency swap or other hedging agreement or arrangement; (e) capital lease obligations; (f) non-contingent reimbursement obligations under any drawn letter of credit, banker’s acceptance or similar credit transactions (but, for the avoidance of doubt, excluding checks issued in the ordinary course of business); (g) guarantees made by Apptix on behalf of any third party in respect of obligations of the kind referred to in the foregoing clauses (a) through (f); and (h) any unpaid interest, prepayment penalties, premiums, costs and fees that would arise or become due as a result of the prepayment of any of the obligations referred to in the foregoing clauses (a) through (g). Indebtedness shall not include credit card obligations incurred in the ordinary course of business.

“Instruction Letter” has the meaning set forth in Section 2.3(c)(ii).

5

“Insurance Policies” has the meaning given such term in Section 3.22.

“Intellectual Property” means all intellectual property and industrial property rights and all rights, interests and protections that are associated with, similar to, or required for the exercise of, any of the foregoing, however arising, pursuant to the Laws of any jurisdiction throughout the world, whether registered or unregistered, including any and all: (a) trademarks, service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications and renewals for, any of the foregoing; (b) internet domain names, whether or not trademarks, registered in any top-level domain by any authorized private registrar or Governmental Entity, web addresses, web pages, websites and related content, accounts with Twitter, Facebook and other social media companies and the content found thereon and related thereto, and URLs; (c) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer, moral and neighboring rights, and all registrations, applications for registration and renewals of such copyrights; (d) inventions, discoveries, trade secrets, including proprietary business and technical information and know-how, databases, data collections and other confidential and proprietary information and all rights therein; (e) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Entity-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models); and (f) software and firmware, including data files, source code, object code, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation; and (g) toll free numbers.

“IRS” means the United States Internal Revenue Service and any successor Entity thereto.

“Knowledge” has the meaning given such term in Section 1.2.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Entity.

“Law Firm” has the meaning given such term in Section 9.16.

“Liabilities” has the meaning given such term in Section 3.6.

“Losses” means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however, that “Losses” shall not include punitive damages, except to the extent actually awarded to a Governmental Entity or other third party.

6

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the Business, results of operations, condition (financial or otherwise) or assets or liabilities of Apptix, or (b) the ability of Seller or Apptix to consummate the Transactions on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Apptix operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement; (vi) any changes in applicable Laws or accounting rules, including GAAP or IFRS; or (vii) the public announcement, pendency or completion of the Transactions; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Apptix, compared to other participants in the industries in which Apptix conducts the Business.

“Material Contract” has the meaning set forth in Section 3.24(a).

“Multiemployer Plan” has the meaning set forth in Section 3.18(c).

“Newco” has the meaning given such term in Section 5.11.

“Party” or “Parties” has the meaning given such term in the preamble.

“PBGC” means the Pension Benefit Guaranty Corporation, or any successor Entity thereto.

“Permitted Encumbrance” means those items set forth in Section 3.15 of the Disclosure Schedules; liens for Taxes not yet due and payable; mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business consistent with past practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the Business; easements, rights of way, zoning ordinances and other similar encumbrances affecting real property which are not, individually or in the aggregate, material to the Business; or other than with respect to owned real property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business consistent with past practice which are not, individually or in the aggregate, material to the Business.

“Preferred Stock” has the meaning given such term in Section 4.9(a).

“Person” means any Entity or natural person.

“Post Balance Sheet Accounts Receivable” has the meaning given such term in Section 3.8.

“PPACA” means the Patient Protection and Affordable Care Act., Pub. L. No. 111-148.

“Purchase Price” has the meaning set forth in Section 2.2.

7

“Qualified Benefit Plan” has the meaning set forth in Section 3.18(c).

“R&W Insurance Policy” means that certain Representations and Warranties Insurance Policy to be issued by Ambridge Partners, for the benefit of Buyer as the named insured, substantially in the form attached hereto as Exhibit A.

“Registration Rights Agreement” means that certain Registration Rights between Fusion and Seller, substantially in the form attached hereto as Exhibit B.

“Release” means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).

“Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

“SEC” means the Securities and Exchange Commission.

“SEC Reports” has the meaning given such term in Section 4.10.

“Securities Act” has the meaning given such term in Section 3.28.

“Seller” has the meaning given such term in the preamble.

“Share Purchase Price” has the meaning set forth in Section 2.2.

“Tax” or “Taxes” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments, charges or surcharges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties and any surcharges (including federal and state universal service fund fees and surcharges) imposed by any Government Entity.

“Tax Return” means any return, declaration, report, filing, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Transactions” means the transactions contemplated by this Agreement.

“Unaudited Financial Statements” has the meaning given such term in Section 3.5.

“Union” has the meaning given such term in Section 3.19(a).

8

1.2          Terms Generally

For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. Further to the “Knowledge” of a Person means the actual knowledge of such Person, and in the case of a Person who is a natural person, after due inquiry of such Person’s direct reports; provided that, (a) with respect to Seller, to the “Knowledge” of Seller means the actual knowledge of Johan Lindqvist, Chris Mack, Tom Tighe, Matt Reding, Shane Smith, and Peter Walther, after reasonable inquiry; and (b) with respect to Buyer, the actual knowledge of Gordon Hutchins, Jr. and Russell P. Markman after reasonable inquiry.

ARTICLE II

PURCHASE AND SALE

2.1          Agreement to Sell

At the Closing, Buyer will purchase from Seller and Seller will grant, sell, convey, assign, transfer and deliver to Buyer, upon and subject to the terms and conditions of this Agreement, all of its right, title and interest in and to the Equity Interests, free and clear of all Encumbrances (including Tax liens), other than Permitted Encumbrances.

2.2          Purchase Price and Payment

The purchase price to be paid by Buyer to Seller at Closing for the Equity Interests is the sum of twenty eight million US dollars (US$28,000,000) (the “Purchase Price”), of which Twenty Two Million Nine Hundred Sixty Three Thousand Four Hundred Eighty Four and 32/100 US dollars (US$22,963,484.32) will be paid in cash (the “Cash Purchase Price”) and the remainder will be paid through the issuance of Two Million Nine Hundred Ninety Seven Thousand Nine Hundred Twenty Six shares (2,997,926) (valued at $1.68 per share based on the 180 day volume weighted average price) of unregistered Common Stock (the “Share Purchase Price”), plus (a) Cash as of Closing, minus (c) the outstanding Indebtedness at Closing, and minus (d) unpaid Apptix Transaction Expenses, if any. The Cash Purchase Price, as adjusted by the amounts set forth in the foregoing clauses (a), (b) and (c), plus the Share Purchase Price is referred to as the “Closing Purchase Price”. For the avoidance of doubt, Buyer acknowledges that Apptix shall distribute to Seller all Cash in Apptix’s bank accounts in excess of one hundred thousand US dollars (US$100,000).

9

2.3          Closing; Closing Payments

(a)          The Closing shall take place at 12:00 p.m. (Eastern Time) at the offices of Buyer, 420 Lexington Avenue, Suite 1718, New York, New York 10170, on the date hereof (the “Closing Date”). By mutual agreement of the Parties, the Closing may take place by conference call and electronic (i.e., email/PDF) or facsimile delivery. At the Closing, (i) Seller or Apptix will deliver to Buyer the various certificates, instruments, and documents referred to in Section 2.4(a) and (ii) Buyer and Fusion will deliver to Seller and/or the applicable third parties the various certificates, instruments, and documents referred to in Section 2.4(b). To the extent permitted by Law and GAAP, for Tax and accounting purposes, the parties will treat the Closing as being effective at 11:59 p.m. Eastern Time on the Closing Date.

(b)          Not later than three (3) Business Days prior to the Closing Date, Seller and Apptix shall prepare and deliver to Buyer a flow of funds memorandum containing Apptix’s good faith estimate (including all calculations in reasonable detail) of: (i) the amount that Indebtedness will be on the Closing Date together with payoff letters from the Company’s lenders, if any; (ii) the amount of unpaid Apptix Transaction Expenses on the Closing Date; and (iii) the amount of the Closing Purchase Price (such statement, the “Flow of Funds Memorandum”). These calculations will be used in connection with the payments described in Section 2.3(c). The Flow of Funds Memorandum also will contain wire instructions for all of the foregoing payments (or instructions to pay certain amounts by check).

(c)          At the Closing:

(i)          Buyer will deliver to Seller the Closing Purchase Price less the Share Purchase Price;

(ii)         Fusion will deliver to the Law Firm a binding and irrevocable written instruction letter executed by Fusion directing Fusion’s transfer agent to deliver two (2) stock certificates evidencing the Share Purchase Price to the Law Firm to be held in accordance with Section 5.9 (the “Instruction Letter”);

(iii)        Buyer will deliver to the applicable lenders, the amount of the outstanding Indebtedness; and

(iv)        Buyer will deliver to the applicable service providers, the amount of the unpaid Apptix Transaction Expenses, if any (provided that the amount of any severance obligations, other than the Assumed Severance Expense, to Apptix employees related to terminations of such employees prior to the Closing shall be reduced from the Purchase Price, as described in Section 2.2, but will not be paid to the applicable employees until due).

2.4          Items to be Delivered at Closing

(a)          At the Closing, and subject to the terms and conditions contained in this Agreement, Seller shall deliver, or cause to be delivered, to Buyer the following:

(i)          the Equity Interests, duly endorsed for transfer to Buyer;

10

(ii)         possession of all agreements, Contracts, customer prospect lists, commitments, leases, plans, bids, quotations, proposals, licenses, permits, authorizations, instruments, manuals and guidebooks, price books and price lists, customer and subscriber lists, supplier lists, sales records, files, correspondence, and other documents, books, records, papers, files and data belonging to Apptix and used in the operation of the Business, which will be deemed accomplished by the delivery of a CD containing the contents of the electronic data room for the transaction in accordance with Section 5.10;

(iii)        resignations of the directors and officers of Apptix pursuant to Section 5.2;

(iv)        the Flow of Funds Memorandum executed by Seller and Apptix;

(v)         payoff letters and evidence of the release of all Encumbrances with respect to the Indebtedness to be paid on the Closing Date pursuant to Section 2.3(c);

(vi)        (A) certificates of good standing with respect to Apptix issued by the State of Florida and each state in which Apptix is qualified as a foreign corporation to conduct business, in each case dated no earlier than twenty (20) days prior to the Closing Date; and (B) bring down certificates of good standing with respect to Apptix issued by the State of Florida and the top seven (7) states from which Apptix received the highest amounts of revenue for fiscal year 2015, in each case dated no earlier than six (6) days prior to the Closing Date;

(vii)       a certificate, dated the Closing Date, signed by the Secretary of Seller, certifying as to (A) the good standing of Apptix (with a good standing certificate from the State of Florida for Apptix), (B) due authorization of this Agreement and the Transactions (with resolutions attached), (C) true and correct attached copies of the charter documents of Seller and Apptix, and (D) the incumbency of all signatories to any document or instrument delivered by Seller in connection with the Transactions and their respective authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and the Transactions;

(viii)      the Registration Rights Agreement executed by Seller;

(ix)         the FIRPTA Statement; and

(x)          the Escrow Letter executed by Seller.

(b)          At the Closing, and subject to the terms and conditions contained in this Agreement, Buyer and Fusion shall deliver, or cause to be delivered, to Seller, and the Law Firm in the case of the Instruction Letter, the following:

(i)          the Closing Purchase Price and the other Closing payments in accordance with Section 2.3(c) hereof;

(ii)         the Instruction Letter addressing delivery of certificates evidencing the Share Purchase Price;

11

(iii)        a certificate, dated the Closing Date, signed by the President and Chief Operating Officer of Buyer, certifying as to (i) due authorization of this Agreement and the Transactions (with resolutions of Buyer and Fusion attached), (ii) true and correct attached copies of the charter documents of Buyer, and (iii) the incumbency of all signatories to any document or instrument delivered by Buyer and Fusion in connection with the Transactions and their respective authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and the Transactions;

(iv)        the Registration Rights Agreement executed by Fusion;

(v)         the Flow of Funds Memorandum executed by Buyer; and

(vi)        the Escrow Letter executed by the Buyer.

(c)          In addition, each of the Parties shall deliver such other and further documents as may be required pursuant to the terms of this Agreement to consummate the Transactions.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE SELLER

Except as set forth in the correspondingly numbered Section of the Disclosure Schedules, Seller hereby represents and warrants to Buyer as follows:

3.1          Ownership of Equity Interests

Seller is the sole record and beneficial owner of the Equity Interests, all of which are owned free and clear of all Encumbrances, and have not been sold, pledged, assigned or otherwise transferred except pursuant to this Agreement. There are no outstanding subscriptions, rights, options, warrants or other agreements obligating Seller to sell or transfer to any Person other than Buyer any or all of the Equity Interests owned by Seller, or any interest therein. Upon consummation of the Transactions, Buyer will acquire good and marketable title to the Equity Interests, free and clear of all Encumbrances.

3.2          Authorization and Validity of Agreement

Seller has the full power and authority to enter into this Agreement and each agreement contemplated hereby and to consummate the Transactions and to carry out its obligations hereunder and thereunder. The execution, delivery and performance by Seller of this Agreement and the consummation of the Transactions have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement has been duly executed by Seller and constitutes the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other Laws of general application relating to of affecting the enforcement of creditor’s rights generally, or (b) as limited by Laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

12

3.3          No Approvals or Notices Required; No Conflict with Instruments

Except as set forth in Section 3.3 of the Disclosure Schedules, the execution, delivery and performance of this Agreement and each agreement contemplated hereby and the consummation of the Transactions by Seller will not contravene or violate (a) any existing Law to which Seller is subject, (b) any judgment, order, writ, injunction, decree or award of any court, arbitrator or Governmental Entity which is applicable to Seller, or (c) the organizational documents of Seller; nor will such execution, delivery or performance violate, be in conflict with, or result in a breach (with or without the giving of notice or lapse of time, or both) of any term, condition or provision of, or require the consent of any other party to, any mortgage, indenture, agreement, contract, commitment, lease, plan or other instrument, document or understanding, oral or written, to which Seller is a party or by which Seller is otherwise bound. Except as set forth in Section 3.3 of the Disclosure Schedules, no authorization, approval or consent, and no registration or filing with any Governmental Entity is required in connection with the execution, delivery and performance of this Agreement by Seller.

3.4          Organization and Qualification

Apptix is duly formed, validly existing and in good standing under the laws of the state of Florida, (a) has all requisite corporate power and corporate authority to own, lease and operate its properties and to carry on its business as it is now being conducted and (b) is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the properties owned, leased or operated by it or the nature of its activities makes such qualification necessary, except where failure to be so registered would not have a Material Adverse Effect on the Business or Apptix.

3.5          Financial Statements; Books and Records; Controls and Procedures

Attached to Schedule 3.5 of the Disclosure Schedules are (i) copies of the audited financial statements of Seller for fiscal years 2015 and 2014 (the “Audited Financial Statements”), accompanied by a written representation from Ernst & Young, auditors for the Seller, that the Audited Financial Statements were audited in accordance with IFRS as issued by the IASB, (ii) an unaudited comparative interim income statement and balance sheet as of September 30, 2016, (iii) an unaudited balance sheet, statement of operations and cash flows converted from IFRS to GAAP as of September 30, 2016, (iv) a statement of operations for fiscal year 2015 converted from IFRS to GAAP, and (v) an unaudited opening balance sheet as of the Closing Date converted from IFRS to GAAP to be delivered pursuant to Section 5.7 (each of items (ii), (iii), (iv) and (v) hereinafter collectively referred to as the “Unaudited Financial Statements”).

3.6          Undisclosed Liabilities

Apptix has no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise (“Liabilities”), except (a) those which are adequately reflected or reserved against in the balance sheet included in the Unaudited Financial Statements, (b) those which have been incurred in the ordinary course of business consistent with past practice since the date of the most recently completed interim period included in the Unaudited Financial Statements, and (c) obligation to perform Apptix contracts in the ordinary course of business.

13

3.7          No Material Adverse Change

Since the date of the Unaudited Financial Statements, there have been no material changes in the assets, properties, business, operations, prospects or condition (financial or otherwise) of Apptix or the Business that could be reasonably foreseen to have a Material Adverse Effect on Apptix or the Business, nor does the Seller have Knowledge of any such change that is reasonably likely to occur, nor has there been any damage, destruction or loss materially and adversely affecting the assets, properties, business, operations, prospects or condition of Apptix or the Business, whether or not covered by insurance.

3.8          Accounts and Notes Receivable

Subject to reserves shown thereon, all accounts and notes receivable reflected in the Unaudited Financial Statements and all accounts receivable arising after the date of the most recent balance sheet included in the Unaudited Financial Statements (collectively, the “Post Balance Sheet Accounts Receivable”) have arisen in the ordinary course of business, represent valid and enforceable obligations due to Apptix, and are not subject to any discount, set-off or counter-claim. Subject to reserves shown thereon, all such Post Balance Sheet Accounts Receivable have been collected or, to the best Knowledge of Seller, are fully collectible in the ordinary course of business in the aggregate recorded amounts thereof, except as reserved in the balance sheet included in the Unaudited Financial Statements.

3.9          Tax Matters

Except as set forth in Section 3.9 of the Disclosure Schedules:

(a)          All Tax Returns required to be filed on or before the Closing Date by Apptix have been timely filed (subject to applicable extensions). Such Tax Returns are true, complete and correct in all respects. All Taxes due and owing by Apptix (whether or not shown on any Tax Return) have been timely collected and paid. Apptix has collected and remitted to the appropriate taxing authority all taxes payable with respect to services provided to its customers.

(b)          Apptix has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to/by any employee, independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions of applicable Law.

(c)          No claim which has not been resolved has been made in writing by any taxing authority in any jurisdiction where Apptix does not file Tax Returns that it is, or may be, subject to Tax by that jurisdiction.

(d)          No extensions or waivers of statutes of limitations have been given or requested in writing with respect to any Taxes of Apptix for any currently open taxable period.

(e)          The total amount of Liability of Apptix for unpaid Taxes (i) did not, as of the date of the Unaudited Financial Statements, exceed the reserve for Tax liability (rather that any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth in the Unaudited Financial Statements of Apptix and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Apptix in filing its Tax Returns.

14

(f)          Section 3.9(f) of the Disclosure Schedules sets forth:

(i)          the taxable years of Apptix as to which the applicable statutes of limitations on the assessment and collection of federal income Taxes have not expired; and

(ii)         those taxable years for which examinations by taxing authorities are presently being conducted.

(g)          All deficiencies asserted, or assessments made against Apptix as a result of any examinations by any taxing authority have been fully paid or otherwise settled.

(h)          Apptix is not a party to any Action by any taxing authority. There are no pending Actions or Actions threatened in writing by any taxing authority against Apptix.

(i)          Apptix has delivered to Buyer copies of all federal, state, and local income, franchise and similar Tax Returns, examination reports, and statements of deficiencies assessed against, or agreed to by, Apptix for all Tax periods ending after December 31, 2010.

(j)          There are no Encumbrances for Taxes (other than for current Taxes not yet due and payable) upon the assets of Apptix.

(k)          Apptix is not a party to, or bound by, any Tax indemnity, Tax sharing or Tax allocation agreement (excluding contracts entered into in the ordinary course of business of business such as leases and customers contracts which require one party to bear taxes of the other).

(l)          No private letter rulings, technical advice memoranda or similar agreement or rulings have been requested, entered into or issued by any taxing authority with respect to Apptix.

(m)          Apptix is not nor has been a member of an affiliated, combined, consolidated or unitary Tax group for Tax purposes. Apptix does not have any Liability for Taxes of any Person (other than itself) under Treasury Regulations Section 1.1502-6 (or any corresponding provision of state, local or foreign Law), as transferee or successor, by contract or otherwise.

(n)          Apptix will not be required to include any item of income in, or exclude any item or deduction from, taxable income for taxable period or portion thereof ending after the Closing Date as a result of:

(i)          any change in a method of accounting under Section 481 of the Code (or any comparable provision of state, local or foreign Tax Laws), or use of an improper method of accounting, for a taxable period ending on or prior to the Closing Date;

(ii)         an installment sale or open transaction occurring on or prior to the Closing Date;

15

(iii)        a prepaid amount received on or before the Closing Date;

(iv)        any closing agreement under Section 7121 of the Code, or similar provision of state, local or foreign Law executed on or prior to the Closing Date; or

(v)         any election under Section 108(i) of the Code made on or prior to the Closing Date.

(o)          Apptix is not, nor has it been, a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(a) of the Code.

(p)          During the past five (5) years, Apptix has not been a “distributing corporation” or a “controlled corporation” in connection with a distribution described in Section 355 of the Code.

(q)          Apptix is not, and has not been, a party to, or a promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011 4(b).

(r)          Apptix has not entered into a gain recognition agreement pursuant to Treasury Regulations Section 1.367(a)-8 that remains in effect. Apptix has not transferred an intangible the transfer of which would be subject to the rules of Section 367(d) of the Code.

3.10       No Approvals or Notices Required; No Conflict with Instruments

Except as set forth in Section 3.10 of the Disclosure Schedules, the execution, delivery and performance of this Agreement and each agreement contemplated hereby and the consummation of the Transactions by Apptix will not contravene or violate (a) any existing law, rule or regulation to which Apptix is subject, (b) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority which is applicable to Apptix, or (c) the charter documents of Apptix; nor will such execution, delivery or performance violate, be in conflict with or result in the breach (with or without the giving of notice or lapse of time, or both) of any term, condition or provision of, or require the consent of any other party to, any mortgage, indenture, agreement, contract, commitment, lease, plan or other instrument, document or understanding, oral or written, to which Apptix is a party or by which Apptix is otherwise bound. Except as set forth in Section 3.10 of the Disclosure Schedules, no authorization, approval or consent, and no registration or filing with, any governmental or regulatory official, body or authority is required in connection with the execution, delivery and performance of this Agreement by Apptix.

3.11       Legal Proceedings

Except as set forth in Section 3.11 of the Disclosure Schedules, there is no (a) Action pending, or to the Knowledge of Seller threatened, against, involving or affecting Seller or any of its assets or rights; (b) judgment, decree, injunction, rule, or order of any Governmental Entity applicable to or that has had or is reasonably likely to have, either individually or in the aggregate, a Material Adverse Effect on the Business or Apptix, (c) Action pending or threatened, against Seller that seeks to restrain, enjoin or delay the consummation of this Agreement or the Transactions or that seeks damages in connection therewith; or (d) an injunction of any type outstanding against Apptix or the Seller.

16

3.12       Licenses; Compliance with Regulatory Requirements

(a)          Apptix and the Business are and have been in compliance with, and not in default under or in violation of, any applicable Law (including state and federal Laws relating to the collection and remittance of universal service fund fees, 911 or E-911 fees and/or assessments), except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix. Within the past five (5) years, Apptix has not received any written notice or, to the Knowledge of Seller, other communication from any Governmental Entity regarding any actual or possible violation of, or failure to comply with, any Law, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix.

(b)          Except as set forth in Section 3.12(b)(i) of the Disclosure Schedules, Apptix is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals, clearances, permissions, qualifications and registrations or orders of any Governmental Entity (the “Apptix Permits”), and all rights under any Material Contract with any Governmental Entity, necessary for Apptix to own, lease and operate its properties and assets or to carry on the Business as it is now being conducted, except where the failure to have any Apptix Permit would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix. All Apptix Permits are valid and in full force and effect, except where the failure to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix. Apptix is in compliance in all respects with the terms and requirements of such Apptix Permits, except where the failure to be in compliance would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix. No Apptix Permit is the subject of a revocation proceeding nor, to the Knowledge of Seller, is any such proceeding contemplated. A true and correct list of all Apptix Permits is set forth in Section 3.12(b)(ii) of the Disclosure Schedules.

3.13       Brokers or Finders

Except as set forth in Section 3.13 of the Disclosure Schedules, no agent, broker, investment banker, financial advisor or other Person (collectively, a “Broker”) is or will be entitled, by reason of any agreement, act or statement by Seller or any Seller Representative to any financial advisory, broker’s, finder’s or similar fee or commission, to reimbursement of expenses or to indemnification or contribution in connection with any of the Transactions.

17

3.14        Leasehold Interests

Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix, (i) each material lease and sublease (collectively, the “Apptix Real Property Leases”) under which Apptix or the Business uses of occupies or has the right to use or occupy any material real property (the “Apptix Leased Real Property”) at which the operations of Apptix or the Business are conducted as of the date hereof, is valid, binding and in full force and effect, (ii) neither Apptix nor the Business is currently subleasing, licensing or otherwise granting any Person the right to use or occupy a material portion of a Apptix Leased Real Property that would reasonably be expected to materially and adversely effect the existing use of the Apptix Leased Real Property by Apptix in the operation of its business in the ordinary course, and (iii) Apptix has not received written notice of any uncured default on the part of it or the Business or, to the Knowledge of Seller, the landlord thereunder, with respect to any Apptix Real Property Lease and, to the Knowledge of Seller, no event has occurred or circumstance exists which, with the giving of notice, passage of time, or both, would constitute a material breach or default under a Apptix Real Property Lease. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix, Apptix has a good and valid leasehold interest, subject to the terms of the Apptix Real Property Leases, in each parcel of Apptix Leased Real Property, free and clear of all encroachments, easements, rights-of-way, restrictions and other Encumbrances that do not materially and adversely affect the existing use of the real property subject thereto by the owner (or lessee to the extent a leased property) thereof in the operation of the Business in the ordinary course. Neither Apptix nor the Business has received written notice of any pending, and, to the Knowledge of Seller, there is no threatened, condemnation proceeding with respect to any Apptix Leased Real Property, except such proceeding as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix.

3.15       Title to Assets; Encumbrances

Except as set forth in Section 3.15 of the Disclosure Schedules, Apptix has good, valid and marketable title to the assets (other than the Apptix Intellectual Property which is addressed in Section 3.23) used in the Business, free and clear of all Encumbrances other than Permitted Encumbrances. To the Knowledge of Seller, there are no developments, pending or threatened, affecting any of the assets of Apptix that might materially detract from their value, materially interfere with any present or intended use of such assets and/or impair the value of the Transactions to Buyer.

3.16       Employees

(a)          Set forth in Section 3.16(a) of the Disclosure Schedules, is a complete list of all current employees of the Business (the “Apptix Employees”) as of November 10, 2016. Except as set forth in Section 3.16(a) of the Disclosure Schedules, Apptix is not delinquent in payments to any of its employees for any wages, salaries, commissions, bonuses or other direct compensation for any services performed by such employees, or for amounts reimbursable to such employees.

(b)          Except as set forth in Section 3.16(b) of the Disclosure Schedules, Apptix is not, nor has it been during the past five (5) years, a party to any business arrangement with any Affiliate of Apptix, with any officer, director or employee of Apptix, or with any member of any officer’s, director’s, or employee’s immediate family member (mother, father, sister, brother, wife, husband, son or daughter). If any business arrangement between Seller and Apptix exists, it will be terminated prior to the Closing.

18

3.17       Capitalization

(a)          The authorized capital stock of Apptix is set forth in Section 3.17(a) of the Disclosure Schedules.

(b)          Section 3.17(b) of the Disclosure Schedules set forth the name of each Person that is the registered owner of any Equity Interest of Apptix, the type of Equity Interest, and the number of shares owned by such Person.

(c)          No subscription, warrant, option, convertible or exchangeable security, or other right (contingent or otherwise) to purchase or otherwise acquire the Equity Interests of Apptix is authorized or outstanding. There is no commitment by Apptix to (i) issue shares, subscriptions, warrants, options, convertible or exchangeable securities, or other such rights, (ii) distribute to holders of any of its Equity Interests any evidence of Indebtedness or asset, (iii) repurchase or redeem any Equity Interests, or (iv) grant, extend, accelerate the vesting of, change the price of, or otherwise amend any warrant, option, convertible or exchangeable security or other such right. There are no declared or accrued unpaid dividends with respect to any Equity Interests issued by Apptix.

(d)          All issued and outstanding Equity Interests of Apptix are (i) duly authorized, validly issued, fully paid and non-assessable; (ii) not subject to any preemptive rights created by statute, the charter documents of Apptix or any agreement to which Apptix is a party; and (iii) free of any Encumbrances created by Apptix in respect thereof. The issued and outstanding Equity Interests of Apptix were issued in compliance with applicable Law.

(e)          No outstanding Equity Interests of Apptix are subject to vesting or forfeiture rights or repurchase by Apptix. There are no outstanding or authorized stock appreciation, dividend equivalent, phantom stock, profit participation or other similar rights with respect to Apptix or any of its Equity Interests.

(f)          All distributions, dividends, repurchases and redemptions of capital stock (or other equity interests) of Apptix were undertaken in compliance with its charter documents then in effect, any agreement to which it then was a party and in compliance with applicable Law.

3.18       Employee Benefit Plans

(a)          Section 3.18(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, flexible spending, material fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to by Apptix for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of Apptix or any spouse or dependent of such individual, or under which Apptix or any of its ERISA Affiliates has or may have any Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (as listed in Section 3.18(a) of the Disclosure Schedules, each, a “Benefit Plan”). Apptix has separately identified in Section 3.18(a) of the Disclosure Schedules each Benefit Plan that contains a change in control provision.

19

(b)          With respect to each Benefit Plan, Apptix has made available to Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of the most current trust agreements or other funding arrangements now in effect; (iv) copies of the most recent summary plan descriptions and summaries of material modifications thereto, the current employee handbooks and any other material written communications to employees describing benefits provided under or the terms of any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the IRS; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (ix) copies of material notices, letters or other correspondence from the IRS, Department of Labor, PBGC or other Governmental Entity relating to a governmental audit of a Benefit Plan.

(c)          Except as set forth in Section 3.18(c) of the Disclosure Schedules, each Benefit Plan and any related trust (other than any multiemployer plan within the meaning of Section 3(37) of ERISA (each a “Multiemployer Plan”)) has been established, administered and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code) in all material respects. Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified has received a favorable and current determination letter from the IRS, or with respect to a prototype plan, can rely on an opinion letter from the IRS to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject Apptix or any of its ERISA Affiliates or plan fiduciaries or, with respect to any period on or after the Closing Date, Buyer or any of its Affiliates or plan fiduciaries, to a penalty under Section 502 of ERISA or to tax or penalty under Section 4975 of the Code. All benefits, contributions and premiums relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principles (including any permissible extensions), and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.

(d)          Neither Apptix, any of its ERISA Affiliates, nor any plan fiduciary has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the PBGC; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA.

20

(e)          With respect to each Benefit Plan (1) no such plan is, or has Apptix, Seller, any subsidiary of Apptix or Seller, or, to the Knowledge of Apptix, any other ERISA Affiliate, ever maintained, sponsored, contributed, to or been required to contribute to, (i) a Multiemployer Plan, or (ii) a “multiple employer plan” within the meaning of Section 413(c) of the Code, a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); or a “voluntary employees’ welfare arrangement” (as defined in Section 501(c)(9) of the Code; and (2) no Action has been initiated by the PBGC to terminate any such plan or to appoint a trustee for any such plan; no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the assets of Apptix, Seller, any subsidiary of Apptix or Seller, or, to the Knowledge of Apptix, any other ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code and no plan listed in Section 3.18(e) of the Disclosure Schedules has failed to satisfy the minimum funding standards of Section 302 of ERISA or Section 412 of the Code; and no “reportable event,” as defined in Section 4043 of ERISA, has occurred with respect to any such plan.

(f)          Subject to applicable Law, and to Apptix’s statutory and contractual obligations to pay any earned and vested benefits and to provide advanced notice, each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Apptix other than ordinary administrative expenses typically incurred in a termination event. Apptix has no commitment or obligation nor has it made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.

(g)          Except as set forth in Section 3.18(g) of the Disclosure Schedules and other than as required under Section 601 et. seq. of ERISA or other applicable Law, no Benefit Plan provides post-termination or retiree welfare benefits to any individual for any reason, and neither Apptix nor any of its ERISA Affiliates has any Liability to provide such post-termination or retiree welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree welfare benefits.

(h)          Except as set forth in Section 3.18(h) of the Disclosure Schedules, there is no pending or, to the Knowledge of Seller, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Entity or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Entity.

21

(i)          There has been no amendment to, announcement by Apptix or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable. Neither Apptix nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement.

(j)          Section 3.18(j) of the Disclosure Schedules sets forth each Benefit Plan that is a nonqualified deferred compensation plan, within the meaning of Section 409A of the Code and the regulations issued and outstanding thereunder and identifies each plan in connection with which Apptix or any successor may have liability. No such plan has assets set aside directly or indirectly in the manner described in Section 409A(b)(1) of the Code or contains a provision that would be subject to Section 409A(b)(2) of the Code. Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder in all material respects and no event has occurred with respect to such plan that has or will result in any individual incurring income acceleration or Taxes under Section 409A of the Code. There is no agreement by which Apptix is bound to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.

(k)          Except as set forth in Section 3.18(k) of the Disclosure Schedules, neither the execution of this Agreement nor any of the Transactions will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of Apptix to severance pay or any other payment that is not set aside in a trust or otherwise accrued for as a Liability; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due to any such individual other than the right of a participant in a Benefit Plan to commence receiving benefits as a result of no longer being an employee of Apptix or as required by Law; (iii) limit or restrict the right of Apptix to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code. Apptix has provided Buyer true and complete copies of any Section 280G calculations prepared (whether or not final) with respect to any disqualified individual in connection with the transactions.

(l)          No asset of Apptix or any ERISA Affiliates is subject to any encumbrance or lien under ERISA or the Code. To Seller’s Knowledge, there has been no violation of the health insurance obligations imposed by Section 9801 of the Code and Part 7 of Subtitle B of Title I of ERISA with respect to any Benefit Plan to which such obligations apply. To Seller’s Knowledge, no event has occurred that could oblige Apptix to indemnify any Person against Liabilities incurred under any statute, regulation or governmental order as it relates to a Benefit Plan.

22

(m)          To Seller’s Knowledge, neither Apptix nor any ERISA Affiliate has contributed to a nonconforming group health plan (as defined under Section 5000(c) of the Code), and no ERISA Affiliate has incurred a tax under Section 5000(a) of the Code which could become a Liability of Apptix or any ERISA Affiliate. Apptix has complied in all material respects with the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder, with respect to each Benefit Plan to the extent applicable to such plan. Apptix does not maintain any plan that is an “employee welfare benefit plan” (as such term is defined under Section 3(1) of ERISA) that has provided any “disqualified benefit” (as such term is defined in Section 4976(b) of the Code) with respect to which an excise tax could be imposed under Section 4976 of the Code. Each Benefit Plan that is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code or Section 607(1) of ERISA) has, to the extent applicable to such plan, been administered in all material respects in compliance with the continuation coverage requirements contained in the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, as set forth at Section 4980B of the Code and any regulations promulgated thereunder or Part 6 of Subtitle B of Title I of ERISA or any comparable state law (collectively, “COBRA”), and neither Apptix nor any ERISA Affiliate is subject to any Liability, including additional contributions, fines, taxes, penalties or loss of tax deduction as a result of such administration. Apptix, any ERISA Affiliate and each Benefit Plan that is a "group health plan" as defined in Section 733(a)(1) of ERISA is currently in compliance in all material respects with the PPACA, the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152 (“HCERA”) and all regulations and guidance issued thereunder (collectively with PPACA and HCERA, the "Healthcare Reform Laws"), to the extent applicable to such plan, and each Benefit Plan has been in compliance in all material respects with all Healthcare Reform Laws since the applicable effective date. No event has occurred, and no condition or circumstance exists, that could reasonably be expected to subject Apptix nor any ERISA Affiliate or any Benefit Plan to penalties or excise taxes under Sections 4980D, 4980H or 4980I of the Code or any other provision of the Healthcare Reform Laws.

(n)          No individual who has been classified by Apptix as a non-employee (such as an independent contractor, leased employee, consultant, or any employee of any of the foregoing) shall have a claim against it for eligibility to participate in any Benefit Plans if such individual is later reclassified as an employee of Apptix. No employee of Apptix is a "leased employee" within the meaning of Section 414(n) of the Code. Apptix has never been bound by any collective bargaining agreement or agreement with a works council or similar association to maintain or contribute to any Benefit Plan.

3.19       Labor Matters

(a)          Apptix is not a party to, or bound by, any collective bargaining agreement, work rules or other agreement with any labor union, labor organization, employee association, or works council (each, a “Union”) applicable to any Apptix Employee, (ii) none of the Apptix Employees is represented by any Union with respect to his or her employment with Apptix, (iii) to Seller’s Knowledge, within the past three (3) years no Union has attempted to organize employees at Apptix or the Business or filed a petition with the National Labor Relations Board seeking to be certified as the bargaining representative of any Apptix Employees, (iv) within the past three (3) years, there have been no actual or, to Seller’s knowledge, threatened (A) work stoppages, lock-outs or strikes, (B) slowdowns, boycotts, hand-billing, picketing, walkouts, demonstrations, leafleting, sit-ins or sick-outs by any Apptix Employees, causing significant disruption to the operations of a facility or (C) other form of Union disruption at Apptix, and (v) except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix, there is no unfair labor practice, labor dispute or labor arbitration proceeding pending or, to the Knowledge of Seller, threatened with respect to any Apptix Employees.

23

(b)          Except for such matters that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix: (i) Apptix and the Business are, and within the past three (3) years have been, in compliance with applicable state, federal, and local Laws respecting labor and employment, including, but not limited to, Laws relating to discrimination, disability, labor relations, unfair labor practices, hours of work, payment of wages, employee benefits, retirement benefits, compensation, immigration, workers’ compensation, working conditions, occupational safety and health, family and medical leave, reductions in force, plant closings, notification of employees, employee terminations, and employee classifications (as exempt or non-exempt); and (ii) neither Apptix nor the Business has any liabilities under the Worker Adjustment and Retraining Notification Act or any state or local Laws requiring notice with respect to such layoffs or terminations.

(c)          To the Knowledge of the Seller, in the past three (3) years, (i) no Governmental Entity has threatened or initiated any material complaints, charges, lawsuits, grievances, claims arbitrations, administrative proceedings or other proceeding(s) or investigation(s) with respect to Apptix or the Business arising out of, in connection with, or otherwise relating to any Apptix Employees or any Laws governing labor or employment and (ii) no Governmental Entity has issued or, to the Seller’s Knowledge, threatened to issue any significant citation, order, judgment, fine or decree against Apptix or the Business with respect to any Apptix Employees or Laws governing labor or employment.

(d)          The execution of this Agreement and the consummation of the Transactions will not result in any material breach or violation of, or cause any payment to be made under, any collective bargaining agreement, employment agreement, consulting agreement or any other employment-related agreement to which Apptix is a party.

3.20       Environmental Laws and Regulations

(a)          Apptix is currently, and has been in compliance with all Environmental Laws and has not received from any Person any: (i) Environmental Notice or Environmental Claim; or (ii) written request for information pursuant to Environmental Laws, which, in each case, either remains pending or unresolved, or is the source of ongoing obligations or requirements as of the Closing Date.

(b)          Apptix has obtained and is in material compliance with all Environmental Permits (each of which is disclosed in Section 3.20(b) of the Disclosure Schedules) necessary for the ownership, lease, operation or use of the Business or assets of Apptix and all such Environmental Permits are in full force and effect and shall be maintained in full force and effect by Apptix through the Closing Date in accordance with Environmental Laws, and Apptix is not aware of any condition, event or circumstance that might prevent or impede, after the Closing Date, the ownership, lease, operation or use of the Business or assets of Apptix as currently carried out.

24

(c)          No real property currently or formerly owned, operated or leased by Apptix is listed on, or has been proposed for listing on, the National Priorities List (or CERCLIS) under CERCLA, or any similar state list.

(d)          Apptix has not released and to the Knowledge of Seller, there has been no Release of Hazardous Materials in contravention of Environmental Law with respect to the Business or assets of Apptix or any real property currently or formerly owned, operated or leased by Apptix, and Apptix has not received an Environmental Notice that any real property currently or formerly owned, operated or leased in connection with the Business (including soils, groundwater, surface water, buildings and other structure located on any such real property) has been contaminated with any Hazardous Material which could reasonably be expected to result in an Environmental Claim against, or a violation of Environmental Law or term of any Environmental Permit by, Apptix.

(e)          Section 3.20(e) of the Disclosure Schedules contains a complete and accurate list of all active or abandoned aboveground or underground storage tanks owned or operated by Apptix.

(f)          Section 3.20(f) of the Disclosure Schedules contains a complete and accurate list of all off-site Hazardous Materials treatment, storage, or disposal facilities or locations used by Apptix and any predecessors as to which Apptix may retain Liability, and none of these facilities or locations has been placed or proposed for placement on the National Priorities List (or CERCLIS) under CERCLA, or any similar state list, and Apptix has not received any Environmental Notice regarding potential liabilities with respect to such off-site Hazardous Materials treatment, storage, or disposal facilities or locations used by Apptix.

(g)          Apptix has not retained or assumed, by Contract or operation of Law, any liabilities or obligations of third parties under Environmental Law.

(h)          Apptix has provided or otherwise made available to Buyer and listed in Section 3.20(h) of the Disclosure Schedules: (i) any and all environmental reports, studies, audits, records, sampling data, site assessments, risk assessments, economic models and other similar documents with respect to the Business or assets of Apptix or any currently or formerly owned, operated or leased real property which are in the possession or control of Apptix related to compliance with Environmental Laws, Environmental Claims or an Environmental Notice or the Release of Hazardous Materials; and (ii) any and all material documents concerning planned or anticipated capital expenditures required to reduce, offset, limit or otherwise control pollution and/or emissions, manage waste or otherwise ensure compliance with current or future Environmental Laws (including, without limitation, costs of remediation, pollution control equipment and operational changes).

(i)          Apptix is not aware of, nor reasonably anticipates, as of the Closing Date, any condition, event or circumstance concerning the Release or regulation of Hazardous Materials that might prevent, impede or materially increase the costs associated with the ownership, lease, operation, performance or use of the Business or assets of Apptix as currently carried out.

25

3.21       Personal Property

Except as set forth in Section 3.21 of the Disclosure Schedules and as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Business or Apptix, Apptix has good title to, or a valid and binding leasehold interest in, all the personal property owned or leased by it, free and clear of all Encumbrances, other than Permitted Encumbrances.

3.22       Insurance

Section 3.22 of the Disclosure Schedules sets forth a true and complete list of all current policies or binders of fire, liability, product liability, umbrella liability, real and personal property, workers’ compensation, vehicular, directors’ and officers’ liability, fiduciary liability and other casualty and property insurance maintained by Apptix and relating to the assets, Business, operations, employees, officers and directors of Apptix (collectively, the “Insurance Policies”) and true and complete copies of such Insurance Policies have been provided to Buyer. Such Insurance Policies are in full force and effect and shall remain in full force and effect following the consummation of the Transactions. Apptix has not received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been paid or, if due and payable prior to Closing, will be paid prior to Closing in accordance with the payment terms of each Insurance Policy. The Insurance Policies do not provide for any retrospective premium adjustment or other experience-based liability on the part of Apptix. All such Insurance Policies (a) are valid and binding in accordance with their terms; (b) are provided by carriers who are financially solvent; and (c) have not been subject to any lapse in coverage. Except as set forth in Section 3.22 of the Disclosure Schedules, there are no claims related to the Business pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. Apptix is not in default under, and has not otherwise failed to comply with, in any material respect, any provision contained in any such Insurance Policy. The Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar to Apptix and are sufficient for compliance with all applicable Law and contractual commitments.

3.23       Intellectual Property

(a)          Section 3.23(a) of the Disclosure Schedules lists all (i) Apptix IP Registrations and (ii) Apptix Intellectual Property, including software, that are not registered but that are material to the Business. All required filings and fees related to the Apptix IP Registrations have been timely filed with and paid to the relevant Governmental Entity and authorized registrars, and all Apptix IP Registrations are otherwise in good standing. Apptix has provided Buyer with true and complete copies of file histories, documents, certificates, office actions, correspondence and other materials related to all Apptix IP Registrations in its possession or control.

(b)          Apptix has provided Buyer with its standard forms of Apptix IP Agreements with its end user customers who have purchased licenses under a “click through” agreement from Apptix. Section 3.23(b) of the Disclosure Schedules lists (i) all Apptix IP Agreements other than those set forth in the prior sentence and other than customer contracts through resellers and (ii) all Apptix contracts with resellers. Apptix has provided Buyer with true and complete copies of all such Apptix IP Agreements referenced in the prior sentence, including all modifications, amendments and supplements thereto and waivers thereunder. Each Apptix IP Agreement is valid and binding on Apptix in accordance with its terms and is in full force and effect. Neither Apptix nor any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of breach or default of or any intention to terminate, any Apptix IP Agreement.

26

(c)          Except as set forth in Section 3.23(c) of the Disclosure Schedules, Apptix is the sole and exclusive legal and beneficial, and with respect to the Apptix IP Registrations, record, owner of all right, title and interest in and to the Apptix Intellectual Property, and has the valid right to use all other Apptix Intellectual Property used in, or necessary for, the conduct of the Business or operations, in each case, free and clear of Encumbrances, other than Permitted Encumbrances. Without limiting the generality of the foregoing, Apptix has entered into binding, written agreements with every current and former employee, and with every current and former independent contractor engaged in the development of Apptix Intellectual Property on behalf of Apptix, whereby such employees and independent contractors (i) assign to Apptix any ownership interest and right they may have in the Apptix Intellectual Property; and (ii) acknowledge Apptix’s exclusive ownership of the Apptix Intellectual Property. Apptix has provided Buyer with true and complete copies of all such agreements.

(d)          The consummation of the Transactions will not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other Person in respect of, the right of Apptix to own, use or hold for use any Intellectual Property as owned, used or held for use in the conduct of the Business or operations as currently conducted.

(e)          The rights of Apptix in the Apptix Intellectual Property are valid, subsisting and enforceable. Apptix has taken all reasonable steps to maintain the Apptix Intellectual Property and to protect and preserve the confidentiality of all trade secrets included in the Apptix Intellectual Property, including requiring all Persons having access thereto to execute written non-disclosure agreements.

(f)          The conduct of the Business as currently and formerly conducted, and the processes and services of Apptix, have not infringed, misappropriated, diluted or otherwise violated, and do not and will not infringe, dilute, misappropriate or otherwise violate the Intellectual Property or other rights of any Person. No Person has infringed, misappropriated, diluted or otherwise violated, or is currently infringing, misappropriating, diluting or otherwise violating, any Apptix Intellectual Property.

(g)          There are no Actions (including any oppositions, interferences or re-examinations) settled, pending or threatened (including in the form of offers to obtain a license): (i) alleging any infringement, misappropriation, dilution or violation of the Intellectual Property of any Person by Apptix; (ii) challenging the validity, enforceability, registrability or ownership of any Apptix Intellectual Property or Apptix’s rights with respect to the Apptix Intellectual Property; or (iii) by Apptix or any other Person alleging any infringement, misappropriation, dilution or violation by any Person of the Apptix Intellectual Property. Apptix is not subject to any outstanding or prospective Governmental Order (including any motion or petition therefor) that does or would restrict or impair the use of any Apptix Intellectual Property.

27

3.24       Material Contracts

(a)          Section 3.24(a) of the Disclosure Schedules lists each of the following Contracts of Apptix (such Contracts, together with all Contracts concerning the occupancy of any real property listed or otherwise disclosed in Section 3.14 of the Disclosure Schedules and all Apptix IP Agreements set forth in Section 3.23(b) of the Disclosure Schedules, being “Material Contracts”):

(i)          the twenty five (25) largest customer Contracts of Apptix for calendar year 2015 based on the amount of revenue realized by each such customer Contract;

(ii)         all employment agreements between Apptix and any employee (other than any form agreement or offer letter entered into in the ordinary course of business);

(iii)        any instrument creating an Indebtedness of Apptix to any third party (including guarantees of an obligation, notes or similar instruments);

(iv)        each Contract of Apptix, other than customer Contracts, involving aggregate consideration in excess of $50,000.00 and which, in each case, cannot be cancelled by Apptix without penalty or without more than ninety (90) days’ notice;

(v)         all Contracts that require Apptix to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;

(vi)        all Contracts that provide for the indemnification by Apptix of any Person or the assumption of any Tax (excluding Tax gross-up or indemnification provisions in Contracts entered into in the ordinary course of business that are not primarily related to Tax), environmental or other Liability of any Person;

(vii)       all Contracts that relate to the acquisition or disposition of any real property (whether by merger, sale of stock, sale of assets or otherwise);

(viii)      all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which Apptix is a party;

(ix)         all Contracts with independent contractors or consultants (or similar arrangements) to which Apptix is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice;

(x)          except for Contracts relating to trade receivables, all Contracts relating to Indebtedness (including, without limitation, guarantees) of Apptix;

(xi)         all Contracts with any Governmental Entity to which Apptix is a party (“Government Contracts”);

28

(xii)        all Contracts that limit or purport to limit the ability of Apptix to compete in any line of business or with any Person or in any geographic area or during any period of time or that restrict the ability of Apptix to solicit customers and/or employees of other Person’s;

(xiii)       any Contracts to which Apptix is a party that provides for any joint venture, partnership or similar arrangement by Apptix;

(xiv)      all collective bargaining agreements or Contracts with any Union to which Apptix is a party;

(xv)       any Contracts that limit or restrict the ability of Apptix to pay dividends or make distributions to stockholders/members.

(b)          Each Material Contract is valid and binding on Apptix in accordance with its terms and is in full force and effect. Neither Apptix nor, to the Knowledge of the Seller, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been provided to Buyer.

3.25       Subsidiaries

Expect as set forth in Section 3.25 of the Disclosure Schedules, Apptix does not own, or have any interest in any shares/membership interests or other form of ownership interest in any other Person.

3.26       GoDaddy Agreement

Neither Seller nor Apptix has received, nor does Seller or Apptix have any Knowledge that Seller or Apptix will receive, any claims of indemnification from GoDaddy.com LLC or any other Person arising out of or otherwise related to the Asset Purchase and Sale Agreement, dated as of September 8, 2015 or any documents executed in connection therewith.

3.27       Telecommunications Regulatory Compliance

Apptix owns, holds, or is in possession of all regulatory licenses and permits that are necessary for Apptix to carry on its business as currently conducted by it, including pursuant to contracts, agreements and arrangements currently in force with respect to its Business. The Company, with respect to any activities not undertaken pursuant to any license or permit, has fulfilled and performed, in all material respects, all of its obligations as required by the Communications Act or similarstate laws, rules, regulations, written policies and orders of state public service or state public utility commissions, and the payment of all regulatory fees, assessments and contributions.

29

3.28       Information About Seller

Seller is an “accredited investor,” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”), is experienced in investments and business matters, has made investments of a speculative nature and has such knowledge and experience in financial, tax and other business matters as to enable it to utilize the information made available by Buyer and/or Fusion to evaluate the merits and risks of, and to make an informed investment decision with respect to, this Agreement and the Seller’s acquisition of the shares of Common Stock, which represents a speculative investment. Seller is able to bear the risk of such investment for an indefinite period and has no current need for liquidity of its investment in the shares of Common Stock.

3.29       Investment Intent

Seller understands that any shares of Common Stock received as part of the Purchase Price have not been registered under the Securities Act, and may not be sold, assigned, pledged, transferred or otherwise disposed of unless those shares of Common Stock are registered under the Securities Act or an exemption from registration, including under Rule 144, if available. Except as provided in the Registration Rights Agreement, Seller understands that neither Buyer nor Fusion has undertaken to register those shares of Common Stock. Seller represents and warrants that it is acquiring the shares of Common Stock for its own account, for investment, and not with a view to the sale or distribution of those shares except in compliance with the SEC and other applicable laws and as contemplated in the Registration Rights Agreement. Each certificate representing shares of Common Stock will bear the following or substantially similar legend thereon:

“The shares represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Act”), or any state securities laws. The shares have been acquired for investment and may not be sold or transferred in the absence of an effective registration statement for the shares under the Act unless, in the opinion of counsel satisfactory to the issuer, registration is not required under the Act or any applicable state securities laws.”

3.30       Access to Information

Seller has been advised that Fusion files quarterly, annual and current reports with the SEC and that copies of such reports, including the SEC Reports (as hereinafter defined), may be examined at the SEC’s web site at www.sec.gov. In addition, Seller has been advised that prior to the Closing, Seller shall have the opportunity to ask questions and receive answers from Fusion’s officers and directors necessary to evaluate Fusion and the issuance of shares of Common Stock hereunder, and to receive such additional information as Seller may reasonably request for such purposes as Buyer can obtain without unreasonable effort or expense.

30

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BUYER

Except as set forth in the correspondingly numbered Section of the Disclosure Schedules, Buyer hereby represents and warrants to Seller as follows:

4.1          Organization and Qualification - Buyer

Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has all requisite corporate power and corporate authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified or licensed to do business in each jurisdiction in which the properties owned, leased or operated by it or the nature of its activities makes such qualification necessary, except where the failure to so register would not have a Material Adverse Effect on Buyer.

4.2          Authorization and Validity of Agreement - Buyer

Buyer has all requisite corporate power and corporate authority to enter into this Agreement and each agreement contemplated hereby and to consummate the Transactions and to carry out its obligations hereunder and thereunder. The execution, delivery and performance by Buyer of this Agreement and the consummation of the Transactions have been duly and validly authorized by all necessary corporate action on the part of Buyer. This Agreement has been duly executed by Buyer and constitutes the valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other Laws of general application relating to of affecting the enforcement of creditor’s rights generally, or (b) as limited by Laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

4.3          Brokers or Finders

No Broker is or will be entitled, by reason of any agreement, act or statement by Buyer, any Affiliate or Representative of Buyer, Fusion or any Affiliate or Representative of Fusion to any financial advisory, broker’s, finder’s or similar fee or commission, to reimbursement of expenses or to indemnification or contribution in connection with any of the Transactions.

4.4          No Approvals or Notices Required; No Conflict with Instruments - Buyer

Except as set forth in Section 3.3 of the Disclosure Schedules, the execution, delivery and performance of this Agreement and the agreements contemplated hereby by Buyer will not contravene or violate (a) any existing Law, rule or regulation to which it is subject, (b) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority which is applicable to it, or (c) the certificate of formation or operating agreement of Buyer; nor will such execution, delivery or performance violate, be in conflict with, or result in the breach (with or without the giving of notice or lapse of time, or both) of any term, condition or provision of, or require the consent of any other party to, any mortgage, indenture, agreement, contract, commitment, lease, plan or other instrument, document or understanding, oral or written, to which Buyer is a party or by which Buyer is otherwise bound that have not been obtained prior to the Closing. Except as set forth in Schedule 4.4 of the Disclosure Schedules, no authorization, approval or consent, and no registration or filing with, any governmental or regulatory official, body or authority is required in connection with the execution, delivery and performance of this Agreement by Buyer.

31

4.5          Legal Proceedings

Except as set forth in Schedule 4.5 of the Disclosure Schedules, there are no (a) Actions pending or, to the Knowledge of Buyer, threatened, against, involving or affecting Buyer or any of its assets or rights; (b) judgment, decree, injunction, rule, or order of any Governmental Entity applicable to Buyer that has had or is reasonably likely to have, either individually or in the aggregate, a Material Adverse Effect on Buyer; (c) Actions pending or, to the Knowledge of Buyer, threatened against Buyer that seeks to restrain, enjoin or delay the consummation of this Agreement and/or the Transactions or that seeks damages in connection therewith; or (d) an injunction of any type outstanding the Buyer.

4.6          Organization and Qualification of Fusion

Fusion is a corporation duly incorporated, validly existing and in good standing under the laws of the state of Delaware, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified or licensed and is in good standing to do business in each jurisdiction in which the properties owned, leased or operated by it or the nature of its activities makes such qualification necessary, except where the failure to so register would not have a Material Adverse Effect on Fusion.

4.7          Authorization and Validity of Agreement by Fusion

Fusion has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder. The execution, delivery and performance by Fusion of this Agreement and the consummation of its obligations hereunder have been duly and validly authorized by all necessary corporate action on the part of Fusion. This Agreement has been duly executed and delivered by Fusion and is a legal, valid and binding obligation of Fusion enforceable against it in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief, and other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by applicable federal or state securities laws.

4.8          No Approvals or Notices Required; No Conflict with Instruments – Fusion

The execution, delivery and performance of this Agreement and any related agreements by Fusion to which it is a party will not contravene or violate (a) any existing Law, rule or regulation to which it is subject, (b) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority which is applicable to it, or (c) the certificate of incorporation or bylaws of Fusion; nor will such execution, delivery or performance violate, be in conflict with, or result in the breach (with or without the giving of notice or lapse of time, or both) of any term, condition or provision of, or require the consent of any other party to, any mortgage, indenture, agreement, contract, commitment, lease, plan or other instrument, document or understanding, oral or written, to which Fusion is a party or by which Fusion is otherwise bound except such as have been obtained prior to the date of this Agreement. Except as set forth in Section 4.8 of the Disclosure Schedule, no authorization, approval or consent, and no registration or filing with, any governmental or regulatory official, body or authority is required in connection with the execution, delivery and performance of this Agreement by Fusion.

32

4.9          Capitalization - Fusion

(a)          The authorized capital stock of Fusion consists of 90,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”).  Of such authorized capital stock, as of October 31, 2016, (i) 15,064,953 shares of Common Stock were issued and outstanding, and (ii) 17,299 shares of Preferred Stock were issued or outstanding.  All outstanding shares of Common Stock and Preferred Stock are or will be duly authorized, validly issued, fully paid and nonassessable, and free of pre-emptive rights.

(b)          Except as set forth in Section 4.9(b) of the Disclosure Schedules, there are no outstanding subscriptions, options, warrants, calls, convertible securities or other similar rights, agreements or commitments relating to the issuance of capital stock to which Fusion or any of its subsidiaries is a party obligating Fusion to (i) issue, transfer or sell any shares of capital stock or other equity interests of Fusion or securities convertible into or exchangeable for such shares or equity interests, (ii) grant, extend or enter into any such subscription, option, warrant, call, convertible securities or other similar right, agreement or arrangement, or (iii) redeem or otherwise acquire any such shares of capital stock or other equity interests.

(c)          Fusion has no outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of Fusion on any matter.

(d)          There are no voting trusts or other agreements or understandings to which Fusion is a party with respect to the voting of the capital stock or other equity interest of Fusion.

4.10       Common Stock

The shares of Common Stock to be issued to the Seller have been duly authorized, and when issued and delivered by Fusion pursuant to this Agreement, (i) will be duly and validly issued, fully paid and non-assessable, (ii) will not be issued in violation of the preemptive or similar rights of any stockholder, (iii) will be free and clear of all Encumbrances, (iv) shall represent less than 19.9% of the issued and outstanding shares of Fusion’s Common Stock, (v) shall be issued in compliance with applicable Law, including the rules governing the National Association of Securities Dealers Automated Quotations system, and (vi) will not be aggregated with any shares of Common Stock to be issued by Fusion for purposes of determining the need for shareholder approval.

33

4.11       SEC Filings

Fusion has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and accordingly, files quarterly, annual and current reports and other information with the SEC under the Exchange Act (such reports and information filed by Fusion with the SEC for the preceding twelve (12) months being hereinafter referred to as the “SEC Reports”). Copies of all information filed by Fusion with the SEC, including the SEC Reports, may be examined at the website of the SEC at www.sec.gov. Fusion has filed all reports required to be filed by it under the Exchange Act and the SEC Reports do not contain a misstatement of a material fact, omit to state a material fact or omit to state any fact necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading.

ARTICLE V

ADDITIONAL COVENANTS AND AGREEMENTS

5.1          Confidentiality

The confidentiality agreement, dated January 27, 2016, between Apptix and Fusion is incorporated herein by reference and made a part of this Agreement as if stated herein in its entirety. For purposes of this Agreement, the term “Receiving Party” used therein shall be deemed to mean Buyer and the term “Company” shall be deemed to mean Apptix and the Seller, collectively.

5.2          Resignations

Apptix shall deliver to Buyer written resignations, effective as of the Closing Date, of all of its directors and officers, the names of who are set forth on Section 5.2 of the Disclosure Schedules.

5.3          Organizational Integration

Immediately after Closing, the Apptix Employees included in Schedule 5.3 to the Disclosure Schedules shall continue as employees of Apptix. Nothing in the foregoing shall guarantee any employee of the Business continued employment following the Closing, and Buyer reserves the right to make all decisions affecting personnel of the Business from and after the Closing.

5.4          Further Assurances

In case at any time after the Closing Date any further action is necessary or desirable to carry out the purposes of this Agreement, each Party and the proper officers and directors of each Party to this Agreement will use commercially reasonable efforts to take all such action. The R&W Insurance Policy shall provide that the insurer will waive and not pursue any subrogation rights against Seller with respect to any Losses covered thereunder, unless such Losses were caused by fraud prior to the Closing by Seller or Apptix. Buyer and Fusion agree that none of Buyer, Fusion nor their Affiliates shall consent to any amendment to the insurer’s subrogation rights against Seller in the R&W Insurance Policy without the written consent of Seller.

34

5.5          Publicity

Any public disclosures or announcements relating to this Agreement or the Transactions will be made only as may be agreed upon in writing by Seller and Buyer, except as may be required by Law or by any Governmental Entity or the rules of any stock exchange or trading system. Following the Closing, neither Party shall issue any press releases or public announcements setting forth the specific terms of this Agreement (e.g., Purchase Price) or the Transactions without the prior approval of the other Party, which approval shall not be unreasonably withheld, conditioned or delayed, except as may be required by Law or by any Governmental Order or the rules of any stock exchange or trading system or as may be reasonably necessary to enforce any rights under this Agreement. A Party shall be entitled to disclose or comment to any Person that a transaction has been consummated. In addition, nothing herein shall preclude communications or disclosures necessary to implement the provisions of this Agreement, and Seller, Buyer and their respective Affiliates may make such disclosures as they may consider necessary to satisfy their legal or contractual obligations to their lenders, shareholders, partners, members and/or investors, without the prior written consent of Buyer or Seller, as the case may be.

5.6          Lock Up Arrangements

On or prior to distribution of any shares of Common Stock by Seller to its shareholders, Seller shall use its commercially reasonable efforts to obtain a lock-up agreement, in the form attached hereto as Exhibit C, from each shareholder of Seller that will receive two percent (2%) or more of the Common Stock to be distributed to the shareholders of Seller.

5.7          Closing Date Balance Sheet

Seller shall deliver to Buyer, within five (5) Business Days after Closing, an unaudited opening balance sheet as of the Closing Date converted from IFRS to GAAP.

5.8          Use of Employees

Buyer agrees to make the applicable employees of Apptix or Fusion available post-closing to assist (i) Seller with the preparation of the unaudited opening balance sheet as of the Closing Date converted from IFRS to GAAP as required by Section 3.5 and (ii) Seller’s accountants with Seller’s 2016 audit and 2016 annual report.

5.9          Share Purchase Price

As soon as practicable, but no later than five (5) Business Days after the Closing Date, Fusion shall replace the single Fusion stock certificate representing the total Share Purchase Price, with two (2) stock certificates issued in the name of Seller. One certificate shall be issued for One Million Four Hundred Ninety Eight Thousand Nine Hundred Sixty Three (1,498,963) shares (the “Escrow Shares”) and shall be retained by the Law Firm in accordance with the Escrow Letter, and the second certificate shall be issued for One Million Four Hundred Ninety Eight Thousand Nine Hundred Sixty Three (1,498,963) shares and shall be delivered to Seller.

35

5.10       Delivery of Electronic Data Room CD

As soon as practicable, but no later than seven (7) Business Days after the Closing Date, Seller shall deliver the CD required by Section 2.4(a)(ii).

5.11       Regulatory Approvals

If the regulatory approvals set forth in the Escrow Letter are not received within one hundred twenty (120) days after the Closing Date (the “Delivery Date”), Seller shall have the right at any time after the Delivery Date to (a) extend the time for receipt of such regulatory approvals, or (b) direct Fusion to issue a certificate for the Escrow Shares in the name of another entity (“Newco”) and Newco shall be entitled to become a party to the Registration Rights Agreement.

5.12       Payment of Assumed Severance Expense

As soon as practicable, but no later than two (2) Business Days after the Closing Date, Buyer shall pay, or caused to be paid, the Assumed Severance Expense to Christopher Mack by wire transfer of immediately available funds to an account designated by Christopher Mack.

ARTICLE VI

TAX MATTERS

6.1          Tax Covenants

All U.S. transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the ancillary documents (including any real property transfer Tax and any other similar Tax) shall be borne and paid by Buyer when due. Buyer shall not be responsible for any such Taxes and fees arising in Norway. Buyer shall timely file any Tax Return or other document with respect to such Taxes or fees (and Seller shall cooperate with respect thereto as necessary).

6.2          Cooperation and Exchange of Information

Seller and Buyer shall provide each other with such cooperation and information as any of them reasonably may request of the others in filing any Tax Return pursuant to this Article VI or in connection with any audit or other proceeding in respect of Taxes of Apptix. Such cooperation and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules, related work papers and documents relating to rulings or other determinations by tax authorities. Seller and Buyer shall retain all Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of Apptix for any taxable period beginning before the Closing Date until the expiration of the statute of limitations of the taxable periods to which such Tax Returns and other documents relate, without regard to extensions except to the extent notified by any of the other parties in writing of such extensions for the respective Tax periods. Prior to transferring, destroying or discarding any Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of Apptix for any taxable period beginning before the Closing Date, Seller or Buyer (as the case may be) shall provide the other parties with reasonable written notice and offer the other parties the opportunity to take custody of such materials.

36

6.3          FIRPTA Statement

On the Closing Date, Seller shall deliver to Buyer a certificate, dated as of the Closing Date, certifying to the effect that no interest in Apptix is a U.S. real property interest (such certificate in the form required by Treasury Regulation Section 1.897-2(h) and 1.1445-2(c)(3)) (the “FIRPTA Statement”).

ARTICLE VII

INDEMNIFICATION

Subject to Section 9.13, the Buyer acknowledges and agrees that its sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud or criminal activity on the part of the Seller in connection with the Transactions) for any breach of any representation or warranty shall be pursuant to the R&W Insurance Policy. In furtherance of the foregoing, Buyer hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation or warranty set forth herein or otherwise relating to the subject matter of this Agreement it may have against the Seller and its Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in the R&W Insurance Policy. Nothing in this Article VII shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled, to seek any remedy on account of any party’s fraud or criminal misconduct, or to take action for breach of any covenant under this Agreement. In addition, nothing in this Article VII shall limit any claims for breach of any representation or warranty set forth in this Agreement against the R&W Insurance Policy.

ARTICLE VIII

CONDITIONS PRECEDENT TO CLOSING

The obligations of Buyer (see Section 8.1 below) and Seller (see Section 8.2 below) to consummate the Transactions are subject to the satisfaction at or prior to the Closing Date of each of the following conditions:

8.1          Conditions Precedent to the Obligations of Buyer

The obligation of Buyer to consummate the Transactions is subject to the satisfaction at or prior to the Closing Date of each of the following conditions, unless waived by Buyer in writing:

(a)          There shall not have been any material statute, rule, regulation, order, judgment or decree proposed, enacted, promulgated, entered, issued, enforced or deemed applicable by any foreign or United States federal, state or local Governmental Entity, and there shall be no action, suit or proceeding pending or threatened, which, in Buyer’s reasonable judgment (i) makes or may make this Agreement or any of the Transactions illegal, or imposes or may impose material damages or penalties in connection therewith; (ii) otherwise prohibits or unreasonably delays, or may prohibit or unreasonably delay the Transactions; or (iii) increases in any material respect the liabilities or obligations of Buyer arising out of this Agreement, or any of the Transactions.

37

(b)          The Board of Directors of Fusion and Buyer shall have approved the Transactions.

(c)          All approvals and consents by any Governmental Entity or other Persons required in connection with the consummation of the Transactions to be completed at Closing that are identified in Section 8.1(c) of the Disclosure Schedules shall have been obtained and shall be in full force and effect and delivered to Buyer; all filings with any Governmental Entity, as are required in connection with the consummation of such Transactions that are identified in Section 8.1(c) of the Disclosure Schedules, shall have been made; and all waiting periods, if any, applicable to the consummation of such Transactions imposed by any Governmental Entity shall have expired.

(d)          Buyer shall have obtained the R&W Insurance Policy, and it shall be in full force and effect.

(e)          Seller shall have delivered a waiver executed by Ascension Health Resource and Supply Chain Management Group, LLC stating that Ascension Health Resource and Supply Chain Management Group, LLC will not exercise its right to terminate its service agreement with Apptix as a result of the sale of Apptix to Buyer.

(f)          On the Closing Date, Seller will have delivered or caused to be delivered to Buyer duly executed Closing deliverables, as specified in Section 2.4(a).

8.2          Conditions Precedent to the Obligations of Seller

The obligations of Seller to consummate the Transactions is subject to the satisfaction at or prior to the Closing Date of each of the following conditions:

(a)          There shall not have been any material statute, rule, regulation, order, judgment or decree proposed, enacted, promulgated, entered, issued, enforced or deemed applicable by any foreign or United States federal, state or local Governmental Entity, and there shall be no action, suit or proceeding pending or threatened, which, in Seller’s reasonable judgment (i) makes or may make this Agreement or any of the Transactions illegal, or imposes or may impose material damages or penalties in connection therewith; or (ii) otherwise prohibits or unreasonably delays, or may prohibit or unreasonably delay the Transactions; or (iii) increases in any material respect the liabilities or obligations of Seller arising out of this Agreement, or any of the Transactions.

(b)          All approvals and consents by any Governmental Entity or other Persons required in connection with the consummation of the Transactions to be completed at Closing that are identified on Section 8.1(c) of the Disclosure Schedules shall have been obtained and shall be in full force and effect and delivered to Buyer; all filings with any Governmental Entity, as are required in connection with the consummation of such transactions that are identified on Section 8.1(c) of the Disclosure Schedules, shall have been made; and all waiting periods, if any, applicable to the consummation of such transactions imposed by any Governmental Entity shall have expired.

(c)          Buyer shall have obtained the R&W Insurance Policy, and it shall be in full force and effect.

(d)          On the Closing Date, Buyer will have delivered or caused to be delivered to Seller duly executed Closing deliverables, as specified in Section 2.4(b).

38

ARTICLE IX

MISCELLANEOUS

9.1          No Waiver, Survival of Representations, Warranties, Covenants and Agreements

The respective representations and warranties of the Parties contained herein, or in any schedule or certificate or other instrument delivered pursuant hereto prior to or at the Closing, shall not be deemed waived or otherwise affected by any investigation made by any Party or any Knowledge of any Party for whose benefit such representations and warranties are made. The respective covenants and agreements of the Parties contained herein which are to be performed after the Closing shall survive the Closing Date and shall only terminate in accordance their respective terms.

9.2          Expenses

Each Party shall bear its own costs and expenses associated with its completion of due diligence and the other activities contemplated by this Agreement; provided, however, that (a) Buyer and Seller shall equally share and pay the expenses associated with obtaining any regulatory approvals required to complete the Transactions, (b) Seller shall be responsible for all costs associated with delivery of the financial statements contemplated by Section 3.5 and (c) any Taxes described in Section 6.1 shall be borne as specified in such Section. Except as aforesaid, expenses of Seller or the Business incurred as a part of the Transactions shall not be considered incurred in the normal course of business and shall be discharged at or prior to Closing or shall cause a corresponding adjustment to the Purchase Price.

9.3          No Third Party Beneficiaries

This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

9.4          Notices

(a)          All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or (d) on the third (3^rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 9.4):

39

Notice to Buyer:	Fusion NBS Acquisition Corp.
	c/o Fusion Telecommunications International, Inc.
	Attention:  General Counsel
	420 Lexington Avenue, Suite 1718
	New York, New York 10170
	E-mail:  legal@fusionconnect.com
Notice to Seller:	Apptix ASA
	C/O Advokat Jon Schultz
	Postbox 323
	1301 Sandvika
	Norway
	E-mail:  js@advokatsenteret.no
With a copy to (which shall
not constitute notice):	Holland & Knight LLP
	1650 Tysons Boulevard, Suite 1700
	Tysons, Virginia  22102
	Attention:  Eric Wechselblatt
	Facsimile:  (703) 720-8610
	E-Mail:  eric.wechselblatt@hklaw.com

(b)          Notwithstanding the foregoing, notices to Seller and Buyer may be contained in a single notice to all of them, respectively.

9.5          Entire Agreement

This Agreement and the documents contemplated hereby constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in any ancillary documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement shall control.

9.6          Assignment; Binding Effect; Benefit

This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. No Party may assign its rights or obligations hereunder without the prior written consent of the other Parties, which consent shall not be unreasonably withheld, conditioned or delayed. No assignment shall relieve the assigning Party of any of its/their obligations hereunder.

40

9.7          Amendment, Modifications and Waivers

This Agreement may only be amended, modified or supplemented by an agreement in writing signed by Buyer and Seller. Any failure of Buyer, on the one hand, or Seller, on the other hand, to comply with any obligation, covenant, agreement or condition herein may be waived by Seller (with respect to any failure by Buyer) or by Buyer (with respect to any failure by Seller), respectively, only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

9.8          Headings

The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

9.9          Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

9.10       Governing Law; Submission to Jurisdiction; Waiver of Jury Trial

(a)          This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the state of New York without giving effect to any choice or conflict of law provision or rule (whether of the state of New York or any other jurisdiction).

(b)          ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF NEW YORK IN EACH CASE LOCATED IN THE CITY OF NEW YORK AND COUNTY OF NEW YORK, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c)          EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE ANCILLARY DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10(c).

41

9.11       Joint Participation in Drafting this Agreement

The Parties acknowledge and confirm that each of their respective attorneys have participated jointly in the drafting, review and revision of this Agreement and that it has not been written solely by counsel for one Party and that each Party has had the benefit of its independent legal counsel’s advice with respect to the terms and provisions hereof and its rights and obligations hereunder. Each Party, therefore, stipulates and agrees that the rule of construction to the effect that any ambiguities are to be or may be resolved against the drafting Party shall not be employed in the interpretation of this Agreement to favor any Party against another and that no Party shall have the benefit of any legal presumption or the detriment of any burden of proof by reason of any ambiguity or uncertain meaning contained in this Agreement.

9.12       Severability

The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.

9.13       Specific Performance

The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at Law or in equity.

9.14       Attorneys’ Fees and Costs

Unless expressly set forth in the Agreement, if any Action is brought for the enforcement or interpretation of this Agreement, or because of any alleged dispute, breach or default in connection with any of the provisions of this Agreement, the successful or prevailing Party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that Action (including, without limitation, reasonable attorneys’ fees and costs incurred in all appellate proceedings), in addition to any other relief to which it may be entitled.

42

9.15       Delays and Omissions

No delay or omission to exercise any right, power or remedy accruing to any Party, upon any breach or default of any other Party, shall impair any such right, power or remedy of such non-breaching or non-defaulting Party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by Law or otherwise afforded to any Party, shall be cumulative and not alternative.

9.16       Representation by Counsel

Each Party represents and warrants to the other Party that it has consulted with and has been represented by the attorney and accountant of its choosing with reference to this Agreement and the transactions contemplated herein. The Parties agree that, notwithstanding the fact that Holland & Knight LLP (the “Law Firm”) may have jointly represented the Seller and Apptix in connection with this Agreement, the Law Firm will be permitted in the future, after Closing, to represent the Seller in connection with the transactions contemplated by this Agreement, including in connection with any disputes that the Seller may hereafter have with the Buyer and its Affiliates arising out of, or related to, this Agreement. The Buyer, who is represented by independent counsel in connection with the transactions contemplated by this Agreement, hereby agrees, in advance, to waive any actual or potential conflict of interest that may hereafter arise in connection with the Law Firm’s future representation of the Seller in such circumstances. The Parties further agree that notwithstanding any law or rules to the contrary, all confidential communications between the Law Firm and Apptix, its Affiliates or their respective equity holders, officers, directors or managers that occurred in the context of the Law Firm’s representation of Apptix in connection with the transactions contemplated by this Agreement will remain privileged as between the Law Firm and the Seller after the Closing, and Apptix and the Buyer hereby agree that they will not seek disclosure of any such communications from the Law Firm or from Seller after Closing, in the context of litigation or otherwise.

[remainder of page intentionally left blank]

43

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.

BUYER:

FUSION NBS ACQUISITION CORP.
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer
SELLER:
APPTIX, ASA
By:	/s/ Johan Lindqvist
Name:		Johan Lindqvist
Title:		Chairman of the Board of Directors

FUSION:

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. solely as to  Section 2.3(a), Section 2.3(c)(ii), Section 2.4(b)(ii), Section 2.4(b)(iv), its representations in Section 4.6 through Section 4.11, Section 5.4, Section 5.9, Section 5.11 and Article IX
By:	/s/ Gordon Hutchins, Jr.
Name:		Gordon Hutchins, Jr.
Title:		President and Chief Operating Officer

44

EX-10.3.2

Exhibit 10.3.2

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “Agreement”) is made and entered into as of November 14, 2016, by and between Fusion Telecommunications International, Inc., a Delaware corporation (the “Company”) and Apptix, ASA (the “Investor” and, together with the Company, the “Parties”).

WHEREAS, in connection with, and in consideration of, the transactions contemplated by the Stock Purchase and Sale Agreement (the “Purchase Agreement”), dated November 14, 2016, by and among Fusion NBS Acquisition Corp, a Delaware corporation, the Investor and the Company, the Investor has requested, and the Company has agreed to provide, the registration rights with respect to the Registrable Securities (as hereinafter defined) as set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.           Definitions. As used in this Agreement, the following terms have the meanings indicated:

“Affiliate” of any specified Person means any other person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified Person. For purposes of this definition, “control” of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Business Day” means any day other than a Saturday, Sunday, any federal holiday or any other day on which banking institutions in the State of New York are authorized or required to be closed by law or governmental action.

“Commission” means the Securities and Exchange Commission or any other federal agency then administering the Securities Act or Exchange Act.

“Common Stock” means the common stock, par value $0.01 per share, of the Company.

“Effective Date” means the time and date that a Registration Statement is first declared effective by the Commission or otherwise becomes effective.

“Effectiveness Period” has the meaning given such term in Section 2(b)(i).

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.

“Holder” means (i) the Investor, (ii) Newco, if any Shares are issued to such entity pursuant to the terms and upon the conditions set forth in the Purchase Agreement, and (iii) any holder of Registrable Securities to whom registration rights conferred by this Agreement have been transferred in compliance with Section 6(d) hereof.

“Holder Indemnified Person” has the meaning given such term in Section 5(a).

“Initial Filing Date” has the meaning given such term in Section 2(a).

“Losses” has the meaning given such term in Section 5.

“Newco” has the meaning given to such term in the Purchase Agreement.

“Person” means an individual, corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, estate, trust, government (or an agency or subdivision thereof) or other entity of any kind.

“Proceeding” means any action, claim, demand, suit, proceeding or investigation (including a preliminary investigation or partial proceeding, such as a deposition) pending or, to the knowledge of the Company, to be threatened, whether civil, criminal, administrative or investigative.

“Prospectus” means the prospectus included in a Registration Statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A, Rule 430B or Rule 430C promulgated under the Securities Act), as amended or supplemented by any Prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

“Qualifying Suspension” has the meaning given such term in Section 2(e).

“Registrable Securities” means the Shares; provided, however, that Registrable Securities shall not include:  (i) any Shares that have been registered under the Securities Act and disposed of pursuant to an effective Registration Statement or otherwise transferred to a Person who is not entitled to the registration and other rights hereunder; (ii) any Shares that have been sold or transferred by the Holder thereof pursuant to Rule 144 and the transferee thereof does not receive “restricted securities” as defined in Rule 144; and (iii) any Shares that cease to be outstanding.

“Registration Expenses” has the meaning given such term in Section 4.

“Registration Statement” has the meaning given such term in Section 2(a).

“S-3 Registration Statement” has the meaning given such term in Section 2(a).

“S-1 Registration Statement” has the meaning given such term in Section 2(a).

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.

“Selling Expenses” means any stock transfer taxes applicable to the Registrable Securities and fees and disbursement of counsel for Holder).

“Shares” means the shares of Common Stock issued in the name of the Holder as of the date hereof, all shares of Common Stock, if any, issued to Newco pursuant to the Purchase Agreement, and any other equity interests of the Company or equity interests in any successor of the Company issued in respect of such shares by reason of or in connection with any stock dividend, stock split, combination, reorganization, recapitalization, conversion to another type of entity or similar event involving a change in the capital structure of the Company.

“Suspension” has the meaning given such term in Section 2(f).

“Suspension Notice” has the meaning given such term in Section 2(f).

“Trading Market” means the principal national securities exchange on which Registrable Securities are listed.

“Unless the context requires otherwise: (a)  references to Sections refer to Sections of this Agreement; (b) the terms “include,” “includes,” “including” and words of like import shall be deemed to be followed by the words “without limitation”; (c)  unless the context otherwise requires, the term “or” is not exclusive and shall have the inclusive meaning of “and/or”; (d) defined terms herein will apply equally to both the singular and plural forms and derivative forms of defined terms will have correlative meanings; (e) references to any law or statute shall include all rules and regulations promulgated thereunder, and references to any law or statute shall be construed as including any legal and statutory provisions consolidating, amending, succeeding or replacing the applicable law or statute; (f) references to any Person include such Person’s successors and permitted assigns; and (g) references to “days” are to calendar days unless otherwise indicated.

2

2.           Registration Procedures; Transfer of Shares After Registration; Suspension.

(a)          No later than (9) months following the date hereof, the Company shall prepare and file with the Commission (the “Initial Filing Date”), a registration statement on Form S-3 (or any successor to Form S-3), covering the resale of the Registrable Securities and, if applicable, the distribution of the Registrable Securities to the shareholders of the Investor (the “S-3 Registration Statement”) and as soon as reasonably practicable thereafter but in no event later than ninety (90) days following the Initial Filing Date to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Holder. In the event that Form S-3 (or any successor form) is or becomes unavailable to register all of the Registrable Securities, the Company shall prepare and file with the Commission, by no later than the Initial Filing Date, a registration statement on Form S-1 (or any successor to Form S-1), covering the resale of the Registrable Securities and, if applicable, the distribution of the Registrable Securities to the shareholders of the Investor (the “S-1 Registration Statement” and such S-1 Registration Statement and/or the S-3 Registration Statement, as applicable, the “Registration Statement”)) and, as soon as reasonably practicable thereafter, but in no event later than ninety (90) days following the Initial Filing Date, to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Holder. If the Company is not eligible to use Form S-3 at the Initial Filing Date, and the Company subsequently becomes eligible to use Form S-3 during the Effectiveness Period (as defined below), the Company shall file, as promptly as reasonably practicable, a new S-3 Registration Statement covering the resale of the Registrable Securities and, if applicable, the distribution of the Registrable Securities to the shareholders of the Holder and replace the S-1 Registration Statement with the new S-3 Registration Statement upon the effectiveness of the new S-3 Registration Statement. Notwithstanding the foregoing, in the event that the Commission will not permit the registration of the distribution of the Registrable Securities from the Investor to its shareholders on the Registration Statement or such Registration Statement shall not be effective to permit the shareholders of the Investor to sell any and all such Registrable Securities without restriction no later than twelve (12) months following the date hereof, the Company shall take such actions as is necessary, including the filing of a registration statement on another form permitted by the Commission, including Form S-4 if so permitted, to provide the shareholders of the Investor with Registrable Securities that may be resold by such shareholders without restriction, including, for the avoidance of doubt, any holding period or volume restrictions under Rule 144.

(b)          The Company shall, during the Effectiveness Period, use all commercially reasonable efforts to:

(i)          prepare and file with the Commission such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary or advisable to keep the Registration Statement current and effective for the Registrable Securities held by the Holder for a period ending on the earlier of (i) the date on which all Registrable Securities may be sold by the Holder without any restriction under Rule 144 or (ii) such time as all Registrable Securities have been sold pursuant to a registration statement or Rule 144 (collectively, the “Effectiveness Period”). The Company shall notify Holder promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the Commission and advise the Holder that the form of Prospectus contained in the Registration Statement or post-effective amendment thereto, as the case may be, at the time of effectiveness meets the requirements of Section 10(a) of the Securities Act or that it intends to file a Prospectus pursuant to Rule 424(b) under the Securities Act that meets the requirements of Section 10(a) of the Securities Act;

(ii)         furnish to the Holder with respect to the Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement and the Prospectus (including supplemental prospectuses) filed with the Commission in conformance with the requirements of the Securities Act and such other documents as the Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Holder;

(iii)        make any necessary blue sky filings;

(iv)        advise the Holder, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the Commission delaying or suspending the effectiveness of the Registration Statement or of the initiation of any Proceeding for that purpose; and it will promptly use all commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and

3

(v)         with a view to making available to the Holder the benefits of Rule 144 and any other rule or regulation of the Commission that may at any time permit the Holder to sell Registrable Securities to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as such term is understood and defined in Rule 144, until the earlier of (A) such date as all of the Registrable Securities qualify to be resold immediately pursuant to Rule 144 or any other rule of similar effect during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1), or (B) such date as all of the Registrable Securities shall have been resold pursuant to Rule 144 (and may be further resold without restriction); (ii) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Holder upon request, as long as the Holder owns any Registrable Securities, (A) a written statement by the Company as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Holder of any rule or regulation of the Commission that permits the selling of any such Registrable Securities without registration.

The Company understands that the Holder disclaims being an underwriter, but acknowledges that a determination by the Commission that the Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.

(c)          Except in the event that section (d) below applies, the Company shall during the Effectiveness Period: (i) prepare and file from time to time with the Commission a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide the Holder copies of any documents filed pursuant to clause (i) above; and (iii) upon request, inform the Holder who so requests that the Company has complied with its obligations in paragraph (d)(i) below (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify Holder to that effect, will use all commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify Holder pursuant to paragraph (d)(i) when the amendment has become effective).

(d)          In the event: (i) of any request by the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any Proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any Proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to the Holder (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Holder is advised in writing by the Company that the current Prospectus may be used, and have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company will use all commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after delivery of a Suspension Notice to Holder. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and Holder, the Company and Holder shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this paragraph (d).

4

(e)          Notwithstanding the foregoing paragraphs of this Section, the Company shall use all commercially reasonable efforts to ensure that (i) a Suspension shall not exceed thirty (30) days individually, (ii) Suspensions covering no more than forty five (45) days, in the aggregate, shall occur during any twelve (12) month period, and (iii) each Suspension shall be separated by a period of at least thirty (30) days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”).

(f)          The Company shall cause certificates evidencing the Registrable Securities not to contain any Securities Act legend: (i) upon the effectiveness of a registration statement (including the Registration Statement) covering such Registrable Securities, or (ii) following a sale of such Registrable Securities pursuant to Rule 144, or (iii) upon such Registrable Securities becoming eligible for sale under Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Staff of the Commission). Following such time as restrictive legends are not required to be placed on certificates representing Shares, the Company will, no later than five (5) Trading Days following the delivery by Holder to the Company or the Company’s transfer agent of a certificate representing Registrable Securities containing a restrictive legend, deliver or cause to be delivered to Holder a certificate representing such Registrable Securities that is free from all restrictive and other legends. The Company shall, immediately following the Registration Statement being declared effective, cause its counsel to issue a legal opinion to the Company’s transfer agent to effect the removal of the restrictive legend contemplated by this Agreement. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Agreement. Certificates for Registrable Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to Holder by crediting the account of the Holder’s prime broker with the Depository Trust Company system.

3.           Registration Expenses. All Registration Expenses incident to the Parties’ performance of or compliance with their respective obligations under this Agreement or otherwise in connection with the Required Registration (in each case, excluding any Selling Expenses) shall be borne by the Company, whether or not any Registrable Securities are sold pursuant to a Registration Statement. “Registration Expenses” shall include, without limitation, (i) all registration and filing fees (including fees and expenses (A) with respect to filings required to be made with the Trading Market and (B) in compliance with applicable state securities or “blue sky” laws), (ii) printing expenses (including expenses of printing certificates for Shares and of printing Prospectuses if the printing of Prospectuses is reasonably requested by a Holder of Registrable Securities included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel, auditors and accountants for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement, and (vii) the reasonable fees and expenses of one law firm of national standing selected by the Holders owning the majority of the Registrable Securities to be included in any such registration or offering. In addition, the Company shall be responsible for all of its expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including expenses payable to third parties and including all salaries and expenses of their officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on the Trading Market.

5

4.           Indemnification.

(a)          The Company shall indemnify and hold harmless Holder, its Affiliates and each of their respective officers and directors and any agent thereof (collectively, “Holder Indemnified Persons”), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, joint or several, costs (including reasonable costs of preparation and reasonable attorneys’ fees) and expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any Proceeding, in which any Holder Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (collectively, “Losses”), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which any Registrable Securities were registered, in any preliminary Prospectus, or in any summary or final Prospectus or free writing Prospectus or in any amendment or supplement thereto, or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances in which they were made, not misleading; provided, however, that the Company shall not be liable to any Holder Indemnified Person to the extent that any such claim arises out of, is based upon or results from an untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, such preliminary, summary or final Prospectus or free writing Prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder Indemnified Person specifically for use in the preparation thereof. The Company shall notify the Holder promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement. This indemnity shall be in addition to any liability the Company may otherwise have and shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder Indemnified Person or any indemnified party and shall survive the transfer of such securities by the Holder. Notwithstanding anything to the contrary herein, this Section 4 shall survive any termination or expiration of this Agreement indefinitely.

(b)          In connection with any Registration Statement in which the Holder participates, the Holder shall, severally and not jointly, indemnify and hold harmless the Company, its Affiliates and each of their respective officers, directors and any agent thereof, to the fullest extent permitted by applicable law, from and against any and all Losses as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any such Registration Statement, in any preliminary Prospectus, or in any summary or final Prospectus or free writing Prospectus or in any amendment or supplement thereto, or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances in which they were made, not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to the Holder furnished in writing to the Company by that Holder for use therein. This indemnity shall be in addition to any liability the Holder may otherwise have and shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any indemnified party. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the proceeds received by such Holder from the sale of the Registrable Securities giving rise to such indemnification obligation.

(c)          Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or there may be reasonable defenses available to the indemnified party that are different from or additional to those available to the indemnifying party, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (in addition to any local counsel) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party that are in addition to or may conflict with those available to another indemnified party with respect to such claim. Failure to give prompt written notice shall not release the indemnifying party from its obligations hereunder.

(d)          If the indemnification provided for in this Section 5 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any Losses referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other, in connection with the untrue or alleged untrue statement of a material fact or the omission to state a material fact that resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, that in no event shall any contribution by a Holder hereunder exceed the net proceeds from the offering received by such Holder.

6

5.           Facilitation of Sales Pursuant to Rule 144. To the extent it shall be required to do so under the Exchange Act, the Company shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144), and shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable the Holders to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144. Upon the request of any Holder in connection with that Holder’s sale pursuant to Rule 144, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements.

6.           Miscellaneous.

(a)          Remedies. In the event of actual or potential breach by the Company of any of its obligations under this Agreement, the Holder, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.

(b)          Amendments and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and the Holder (or a majority of Holders following distribution) as of the date of such waiver or amendment; provided, that any waiver or amendment that would have a disproportionate adverse effect on a Holder shall require the consent of such Holder. The Company shall provide prior notice to the Holder of any proposed waiver or amendment. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any Party to exercise any right hereunder in any manner impair the exercise of any such right.

(c)          Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or (d) on the third (3^rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. The address for such notices and communications shall be as follows:

If to the Company:
	Fusion Telecommunications International, Inc. Attention: General Counsel 420 Lexington Avenue, Suite 1718 New York, New York 10170 E-mail: legal@fusionconnect.com
If to any Person who is then the registered Holder:	To the address of the Holder as it appears in the applicable register for the Registrable Securities or such other address as may be designated in writing by such Holder.

(d)          Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns. Except as provided in this Section 6(d), this Agreement, and any rights or obligations hereunder, may not be assigned without the prior written consent of the Company and the Holder. Notwithstanding anything in the foregoing to the contrary, the rights of the Holder pursuant to this Agreement with respect to all or any portion of its Registrable Securities may be assigned without such consent with respect to such Registrable Securities (and any Registrable Securities issued as a dividend or other distribution with respect to, in exchange for or in replacement of such Registrable Securities) by the Holder to a transferee of such Registrable Securities; provided the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the Registrable Securities with respect to which such registration rights are being assigned. The Company may not assign its rights or obligations hereunder without the prior written consent of the Holder.

7

(e)          No Third Party Beneficiaries. Nothing in this Agreement, whether express or implied, shall be construed to give any Person, other than the parties hereto or their respective successors and permitted assigns, any legal or equitable right, remedy, claim or benefit under or in respect of this Agreement.

(f)          Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or portable document format (“.pdf”)) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.

(g)          Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of New York. Each of the Parties irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in in the Borough of Manhattan in the City of New York and the United States District Court for the Southern District of New York for the purpose of any Proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any Proceeding may be served on each Party anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the Parties irrevocably waives any objection to the laying of venue of any Proceeding brought in such courts and irrevocably waives any claim that any Proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.

(h)          Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.

(i)          Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.

(j)          Entire Agreement. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior contracts or agreements with respect to the subject matter hereof and the matters addressed or governed hereby, whether oral or written.

(k)          Termination. Except for Section 4, this Agreement shall terminate as to the Holder, when all Registrable Securities held by the Holder no longer constitute Registrable Securities.

[THIS SPACE LEFT BLANK INTENTIONALLY]

8

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

COMPANY:
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By:	/s/ Gordon Hutchins, Jr.
Name:	Gordon Hutchins, Jr.
Title:	Chief Operations Officer and President
HOLDER:
APPTIX, ASA
By:	/s/ Johan Lindqvist
Name:	Johan Lindqvist
Title:	Chairman of the Board of Directors
Address for notice:
Apptix ASA C/O Advokat Jon Schultz Postbox 323 1301 Sandvika Norway

Signature Page to Registration Rights Agreement

EX-10.4

Exhibit 10.4

FORM OF FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

COMMON STOCK PURCHASE AGREEMENT

This Common Stock Purchase Agreement(this “Agreement”) is made as of November 14, 2016, by and among Fusion Telecommunications International, Inc., a Delaware corporation with its principal office at 420 Lexington Avenue, Suite 1718, New York, New York 10170 (the “Company”), and those purchasers listed on the attached Exhibit A, as such exhibit may be amended from time to time (each a “Purchaser,” and collectively, the “Purchasers”).

Recitals

A.          The Company has authorized the sale and issuance of up to 2,608,696 shares (the “Shares” or “Securities”) of the common stock of the Company, $0.01 par value per share (the “Common Stock”), to certain investors in a private placement (the “Offering”).

B.          Pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506(b) promulgated thereunder, the Company desires to sell to the Purchasers listed on the attached Exhibit A, as such exhibit may be amended from time to time, and such Purchasers, severally and not jointly, desire to purchase from the Company that number of shares of Common Stock set forth opposite each such Purchaser’s name on Exhibit A, on the terms and subject to the conditions set forth in this Agreement.

Terms and Conditions

Now, therefore, in consideration of the foregoing recitals and the mutual covenants and agreements contained herein, the parties, intending to be legally bound, do hereby agree as follows:

1.           Purchase of the Securities.

1.1          Agreement to Sell and Purchase. At the Closing (as hereinafter defined), the Company will issue and sell to each of the Purchasers, and each Purchaser will, severally and not jointly, purchase from the Company, the number of Shares set forth opposite such Purchaser’s name on Exhibit A for the purchase price set forth opposite such Purchaser’s name on Exhibit A (the “Purchase Price”). The aggregate purchase price for each Share to be purchased hereunder will be $1.15.

1.2          Placement Agent Fee. The Purchasers acknowledge that the Company intends to pay to Craig-Hallum Capital Group LLC, in its capacity as the placement agent for the Offering (the “Placement Agent”), a fee in respect of the sale of Securities to the Purchasers. The Company shall indemnify and hold harmless the Purchasers from and against all fees, commissions, or other payments owing by the Company to the Placement Agent or any other persons from or acting on behalf of the Company hereunder.

1.3          Closing; Closing Date. The completion of the sale and purchase of the Securities (the “Closing”) shall be held at 10:00 a.m. (Central Time) on Wednesday, November 16, 2016 or, if the conditions set forth in Section 4 have not been satisfied by such date, as soon as practicable following the satisfaction of the conditions set forth in Section 4 (the “Closing Date”), remotely by facsimile or other electronic transmission of documents, or at such other time and place as the Company and the Purchasers may agree.

1.4          Delivery of the Shares. At the Closing, subject to the terms and conditions hereof, the Company will deliver to each Purchaser a stock certificate or certificates, in such denominations and registered in such names as such Purchaser may designate by notice to the Company, representing the Securities, or at a Purchaser’s request, a statement or other written evidence that the Securities issuable to such Purchaser have been issued and are held in book entry form at the Company’s transfer agent, in either case dated as of the Closing Date (each such certificate and each such book entry position are hereinafter referred to as a “Certificate”), against payment of the purchase price therefor by cash in the form of wire transfer, unless other means of payment shall have been agreed upon by the Purchasers and the Company.

1

2.          Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchasers:

2.1          Authorization. All corporate action on the part of the Company, its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement, has been taken. The Company has the requisite corporate power to enter into this Agreement and carry out and perform its obligations under this Agreement. At the Closing, the Company will have the requisite corporate power to issue and sell the Securities. This Agreement has been duly authorized, executed and delivered by the Company and, upon due execution and delivery by the Purchasers, this Agreement will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by equitable principles.

2.2          No Conflict with Other Instruments. The execution, delivery and performance of this Agreement, the issuance and sale of the Securities to be sold by the Company hereunder and the consummation of the actions contemplated by this Agreement will not (A) result in any violation of, be in conflict with, or constitute a default under, with or without the passage of time or the giving of notice: (i) any provision of the Company’s charter documents as in effect on the date hereof or at the Closing; (ii) any provision of any judgment, arbitration ruling, decree or order to which the Company or its subsidiaries are a party or by which they are bound; (iii) any bond, debenture, note or other evidence of indebtedness, or any lease, contract, mortgage, indenture, deed of trust, loan agreement, joint venture or other agreement, instrument or commitment to which the Company or any subsidiary is a party or by which they or their respective properties are bound; or (iv) any statute, rule, law or governmental regulation or order applicable to the Company or any of its subsidiaries, except, in the case of (ii), (iii) and (iv) above, would not reasonably be expected to have a Material Adverse Effect (as hereinafter defined); or (B) result in the creation or imposition of any lien, encumbrance, claim, security interest or restriction whatsoever upon any of the properties or assets of the Company or any subsidiary or any acceleration of indebtedness pursuant to any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or any indenture, mortgage, deed of trust or any other agreement or instrument to which the Company or any subsidiary are a party or by which they are bound or to which any of the property or assets of the Company or any subsidiary is subject. No consent, approval, authorization or other order of, or registration, qualification or filing with, any regulatory body, administrative agency, or other governmental body is required for the execution and delivery of this Agreement by the Company and the valid issuance or sale of the Securities by the Company pursuant to this Agreement, other than such as have been made or obtained and that remain in full force and effect, and except for the filing of a Form D or any filings required to be made under state securities laws.

2.3          Certificate of Incorporation; Bylaws. The Company has made available to the Purchasers true, correct and complete copies of the Certificate of Incorporation and Bylaws of the Company, as in effect on the date hereof.

2.4          Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted. The Company and each of its subsidiaries has full power and authority to own, operate and occupy its properties and to conduct its business as presently conducted and is duly qualified to transact business and is in good standing in each jurisdiction in which the failure so to qualify would not reasonably be expected to have a material adverse effect on its or its subsidiaries’ business, financial condition, properties, operations, prospects or assets or its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).

2

2.5          SEC Filings; Financial Statements. As used herein, the “Company SEC Documents” means all reports, schedules, forms, statements and other documents filed or furnished, as applicable, by the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including pursuant to Section 13(a) or 15(d) thereof, including the exhibits thereto and documents incorporated by reference therein. The Company has filed all SEC Documents as required on a timely basis and as of their respective filing dates, the Company SEC Documents since December 31, 2015 complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Securities and Exchange Commission (the “SEC”) promulgated thereunder, and none of these Company SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading. The consolidated financial statements contained in the Company SEC Documents since December 31, 2015: (i) complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods covered, except in the case of unaudited statements as permitted by Form 10-Q of the SEC, and except that unaudited financial statements may not contain footnotes and are subject to year-end audit adjustments; and (iii) fairly present the consolidated financial position of the Company and its subsidiaries as of the respective dates thereof and the consolidated results of operations cash flows and the changes in shareholders’ equity of the Company and its subsidiaries for the periods covered thereby.

2.6          Capitalization. The authorized capital stock of the Company consists of (i) 90,000,000 shares of Common Stock, of which (A) 15,064,953 shares prior to the acquisition of Target (as defined below) and 18,062,879 shares after the acquisition of Target were issued and outstanding as of the date of this Agreement, and (B) 4,090,520 shares were reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities as of the date of this Agreement; and (ii) 10,000,000 shares of preferred stock, of which 17,299 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of capital stock have been duly authorized and validly issued, are fully paid and non-assessable, have been issued and sold in compliance with the registration requirements of the federal and state securities laws or the applicable statutes of limitation have expired, and were not issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except as set forth herein or the Company SEC Documents, there are no (i) outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind to which the Company or any subsidiary is a party and relating to the issuance or sale of any capital stock or convertible or exchangeable security of the Company or any subsidiary, other than 1,135,765 options granted to directors and employees of the Company and its subsidiaries pursuant to its 1998 Stock Option Plan, 2009 Stock Option Plan or the 2016 Equity Incentive Plan and 2,937,456 warrants that are issued and outstanding; or (ii) obligations of the Company to purchase redeem or otherwise acquire any of its outstanding capital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except as disclosed in the Company SEC Documents and as contemplated by the share purchase agreement (the “SPA”) relating to the Company’s acquisition of a target company (“Target”) proposed to be consummated contemporaneously with this Offering, there are no anti-dilution or price adjustment provisions, co-sale rights, registration rights, rights of first refusal or other similar rights contained in the terms governing any outstanding security of the Company that will be triggered by the issuance of the Securities and no person has any right to cause the Company to effect the registration under the Securities Act of any securities of the Company (other than the rights which have been granted in connection with this Agreement and under the SPA).

3

2.7          Subsidiaries. Except for Target and except as set forth in the Company SEC Documents, the Company does not presently own or control, directly or indirectly, and has no stock or other interest as owner or principal in, any other corporation or partnership, joint venture, association or other business venture or entity (each a “subsidiary”). Each subsidiary is duly incorporated or organized, validly existing and, if applicable to the jurisdiction, in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite power and authority to carry on its business as now conducted. Each subsidiary is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect. Except as set forth in the Company SEC Documents, all of the outstanding capital stock or other securities of each subsidiary is owned by the Company, directly or indirectly, free and clean of any liens, claims or encumbrances.

2.8          Valid Issuance of Securities. The Securities are duly authorized and, when issued, sold and delivered and paid for in accordance with the terms hereof will be duly and validly authorized and issued, fully paid and non-assessable, free from all taxes, liens, claims, encumbrances and charges with respect to the issue thereof; provided, however, that the Securities will be subject to restrictions on transfer under state and/or federal securities laws or as otherwise set forth herein. The issuance, sale and delivery of the Securities in accordance with the terms hereof will not be subject to preemptive rights of shareholders of the Company.

2.9          Offering. Assuming the accuracy of the representations of the Purchasers in Section 3.3 of this Agreement on the date hereof and on the Closing Date, the offer, issue and sale of the Securities are and will be exempt from the registration and prospectus delivery requirements of the Securities Act and have been or will be registered or qualified (or are or will be exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration under the Securities Act of the issuance of the Securities to the Purchasers. Other than the Company SEC Documents, the Company has not distributed and will not distribute prior to the Closing Date any offering materials in connection with the offering and sale of the Securities. The Company has not taken any action to sell, offer for sale or solicit offers to buy any securities of the Company which would bring the offer, issuance or sale of the Securities within the provisions of Section 5 of the Securities Act, unless such offer, issuance or sale was or shall be within the exemptions of Section 4 of the Securities Act.

2.10         Litigation. Except as set forth in the Company SEC Documents, there is no action, suit, proceeding nor investigation pending or, to the Company’s knowledge, currently threatened against the Company or any of its subsidiaries that (a) if adversely determined would reasonably be expected to have a Material Adverse Effect or (b) would be required to be disclosed in the Company’s Annual Report on Form 10-K under the requirements of Item 103 of Regulation S-K. The foregoing includes, without limitation, any action, suit, proceeding or investigation, pending or threatened, that questions the validity of this Agreement or the right of the Company to enter into this Agreement and perform its obligations hereunder. Neither the Company nor any subsidiary is subject to any injunction, judgment, decree or order of any court, regulatory body, arbitral panel, administrative agency, national securities exchange or other government body. To the Company’s knowledge, there is no proceeding or investigation by the Principal Market (as defined below) pending that could lead to a suspension of listing or trading of the Common Stock.

2.11         Governmental Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state, local or provincial governmental authority on the part of the Company or any of its subsidiaries is required in connection with the consummation of the transactions contemplated by this Agreement, except for notices required or permitted to be filed with the Principal Market or certain state and federal securities commissions, which notices will be filed on a timely basis.

4

2.12         No Brokers. Except for any fees payable to the Placement Agent, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based on arrangements made by the Company.

2.13         Compliance. Neither the Company nor any of its subsidiaries is in violation of its Certificate of Incorporation or Bylaws (or similar organizational documents). The Company and its subsidiaries, and their representatives, have been conducting their business in compliance with all applicable laws, rules and regulations of the jurisdictions in which they conduct business, including, without limitation, all applicable local, state and federal environmental laws and regulations, except where failure to be so in compliance would not have a Material Adverse Effect. Each of the Company and its subsidiaries has all necessary franchises, licenses, permits, certificates and other authorizations from any foreign, federal, state or local government or governmental agency, department or body that are currently necessary for the operation of the business of the Company and its subsidiaries as currently conducted, except where the failure to currently possess such franchises, licenses, certificates and other authorizations would not reasonably be expected to have a Material Adverse Effect.

2.14         No Material Changes. Except as disclosed in the Company SEC Documents and except for the acquisition of Target pursuant to the SPA and the entry by the Company into a new credit facility (the “Credit Facility”) contemporaneously therewith, since December 31, 2015, there has been no material adverse change in the assets, liabilities, business, properties, operations, financial condition or results of operations of the Company and its subsidiaries, taken as a whole. Since December 31, 2015, the Company has not declared or paid any dividend or distribution on its common stock.

2.15         Contracts. Except for matters which are not reasonably likely to have a Material Adverse Effect and those contracts that are substantially or fully performed or expired by their terms, the contracts listed as exhibits to or described in the Company SEC Documents that are material to the Company or any of its subsidiaries and all amendments thereto, are in full force and effect on the date hereof, and neither the Company nor any applicable subsidiary of the Company nor, to the Company’s knowledge, any other party to such contracts is in breach of or default under any of such contracts. Neither the Company nor any of its subsidiaries has any contracts or agreements that would constitute a material contract as such term is defined in Item 601(b) of Regulation S-K, except for such contracts or agreements that are filed as exhibits to or described in the Company SEC Documents and except for the SPA, the Credit Agreement and agreements contemplated thereby.

2.16        Intellectual Property.

(a)          The Company and each of its subsidiaries has ownership or license or legal right to use, or can acquire on reasonable terms, all patent, copyright, trade secret, know-how trademark, trade name customer lists, designs, manufacturing or other processes, computer software, systems, data compilation, research results or other proprietary rights used in the business of the Company or such subsidiary (collectively “Intellectual Property”), except as such failure to own, license, use or acquire would not result in a Material Adverse Effect. All of such patents, registered trademarks and registered copyrights have been duly registered in, filed in or issued by the United States Patent and Trademark Office, the United States Register of Copyrights or the corresponding offices of other jurisdictions and have been maintained and renewed in accordance with all applicable provisions of law and administrative regulations in the United States and all such jurisdictions.

(b)          The Company and each of its subsidiaries has taken all reasonable steps required in accordance with sound business practice and business judgment to establish and preserve its ownership of all material Intellectual Property with respect to their products and technology.

(c)          To the knowledge of the Company, the present business, activities and products of the Company and its subsidiaries do not infringe any intellectual property of any other person, except or where such infringement would not have a Material Adverse Effect. No proceeding charging the Company or any of its subsidiaries with infringement of any adversely held Intellectual Property is currently pending. To the knowledge of the Company, no other person is infringing any rights of the Company or its subsidiaries to the Intellectual Property.

5

(d)          No proceedings are pending or, to the knowledge of the Company, threatened, which challenge the rights of the Company or any of its subsidiaries to the use of the Intellectual Property. To the knowledge of the Company, the Company and each of its subsidiaries has the right to use, free and clear of material claims or rights of other persons, all of its customer lists, designs, computer software, systems, data compilations, and other information that are required for its products or its business as presently conducted. To the knowledge of the Company, neither the Company nor any of its subsidiaries is making unauthorized use of any confidential information or trade secrets of any person. The activities of any of the employees on behalf of the Company or of any of its subsidiaries do not violate any agreements or arrangements between such employees and third parties related to confidential information or trade secrets of third parties or that restrict any such employee’s engagement in business activity of any nature.

(e)          All material licenses or other agreements under which (i) the Company or any subsidiary employs rights in Intellectual Property, or (ii) the Company or any subsidiary has granted rights to others in Intellectual Property owned or licensed by the Company or any subsidiary are in full force and effect, and there is no default (and there exists no condition which, with the passage of time or otherwise, would constitute a default by the Company or such subsidiary) by the Company or any subsidiary of the Company with respect thereto.

2.17         Exchange Compliance. The Company’s common stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on The Nasdaq Capital Market (the “Principal Market”), and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock (including the Shares) from the Principal Market. The Company is in compliance with all of the presently applicable requirements for continued listing of the Common Stock on the Principal Market. The issuance of the Securities does not require shareholder approval including, without limitation, pursuant to the rules and regulations of the Principal Market.

2.18         Form S-3 Eligibility. The Company is eligible to register the Shares for resale by the Purchasers using Form S-3 promulgated under the Securities Act.

2.19         Accountants. EisnerAmper LLP, who expressed their opinion with respect to the consolidated financial statements contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2015, to be incorporated by reference into the Registration Statement (as hereinafter defined) and the prospectus which forms a part thereof (the “Prospectus”), have advised the Company that they are, and to the knowledge of the Company they are, independent accountants as required by the Securities Act and the rules and regulations promulgated thereunder. The Company covenants to file its Form 10-K containing audited consolidated financial statements for the year ended December 31, 2016 within the time period required by applicable securities laws and further represents and warrants that it has no reason to believe that the auditors will not be able to express an unqualified opinion with respect to such financial statements, assuming the Closing occurs as contemplated herein.

2.20         Taxes. The Company and each of its subsidiaries has filed all federal, state, local and foreign income and franchise tax returns (except where the failure to file would not have a Material Adverse Effect) and has paid all taxes shown as due thereon. The Company has set aside on its books adequate provisions for payments of taxes as of its reporting period, and has no knowledge of a tax deficiency which has been or might be asserted or threatened against it or any of its subsidiaries by any taxing jurisdiction.

6

2.21       Insurance. The Company and each of its subsidiaries maintains and will continue to maintain insurance of the types and in the amounts that the Company reasonably believes is adequate for its business, including, but not limited to, insurance covering real and personal property owned or leased by the Company and its subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect.

2.22      Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Securities hereunder will be, or will have been, fully paid or provided for by the Company and the Company will have complied with all laws imposing such taxes.

2.23        Investment Company. The Company (including its subsidiaries) is not an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for an investment company, within the meaning of the Investment Company Act of 1940 and will not be deemed an “investment company” as a result of the transactions contemplated by this Agreement.

2.24      Related Party Transactions. To the knowledge of the Company, no transaction has occurred between or among the Company or any of its affiliates (including, without limitation, any of its subsidiaries), officers or directors or any affiliate or affiliates of any such affiliate, officer or director that with the passage of time will be required to be disclosed pursuant to Section 13, 14 or 15(d) of the Exchange Act other than those transactions that have already been so disclosed.

2.25      Books and Records. The books, records and accounts of the Company and its subsidiaries accurately and fairly reflect, in reasonable detail, the transactions in, and dispositions of, the assets of, and the operations of, the Company and its subsidiaries.

2.26      Disclosure Controls and Internal Controls.

(a)          The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act), which (i) are designed to ensure that material information relating to the Company is made known to the Company’s principal executive officer and its principal financial officer by others within the Company particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; and (ii) provide for the periodic evaluation of the effectiveness of such disclosure controls and procedures as of the end of the period covered by the Company’s most recent annual or quarterly report filed with the SEC.

(b)          The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-14 under the Exchange Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure. The Company is not aware of (i) any significant deficiency or material weakness in the design or operation of its internal controls; or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s or any of its subsidiary’s internal controls.

7

(c)          Since the date of the most recent evaluation of such disclosure controls and procedures, there have been no changes that have materially affected, or are reasonably likely to materially affect, the Company’s or any of its subsidiary’s internal control over financial reporting, including any corrective actions with regard to significant deficiencies and material weaknesses.

(d)          Except as described in the Company SEC Documents, there are no material off-balance sheet arrangements (as defined in Item 303 of Regulation S-K), or any other relationships with unconsolidated entities (in which the Company or its control persons have an equity interest) that may have a material current or future effect on the Company’s or any of its/subsidiary’s financial condition, revenues or expenses, changes in financial condition, results of operations, liquidity, capital expenditures or capital resources.

2.27         No General Solicitation. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act) in connection with the offer or sale of the Securities.

2.28         Rights Agreement. The Company has not adopted a shareholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Common Stock or a change in control of the Company.

2.29         Foreign Corrupt Practices. Neither the Company nor any of its subsidiaries nor any director, officer, agent, employee or other person acting on behalf of the Company or any of its subsidiaries has, in the course of its actions for, or on behalf of, the Company (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.

2.30         Sarbanes-Oxley Act. The Company is in compliance in all material respects with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof.

2.31         Employee Relations. Neither the Company nor any of its subsidiaries is a party to any collective bargaining agreement. The Company reasonably believes that its and its subsidiaries’ relations with its employees are good. No executive officer of the Company (as defined in Rule 501(f) of the Securities Act) has notified the Company that such officer intends to leave the Company or otherwise terminate such officer’s employment with the Company. To the knowledge of the Company, no executive officer of the Company is, or is expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive officer does not subject the Company to any liability with respect to any of the foregoing matters.

The Company and each of its subsidiaries is in compliance with all federal, state, local and foreign laws and regulations respecting labor, employment and employment practices and benefits, terms and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

8

2.32         Environmental Laws. The Company and each of its subsidiaries (i) is in compliance with any and all Environmental Laws (as hereinafter defined), (ii) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (iii) is in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.

2.33         No Manipulation; Disclosure of Information. The Company has not taken and will not take any action designed to or that might reasonably be expected to cause or result in an unlawful manipulation of the price of the Common Stock to facilitate the sale or resale of the Securities. The Company confirms that, to its knowledge, with the exception of the proposed sale of Securities as contemplated herein (as to which the Company makes no representation) and information provided with respect to the Target and the SPA and the Company’s new credit facility, neither it nor any other person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchasers shall be relying on the foregoing representations in effecting transactions in securities of the Company. All disclosures provided to the Purchasers regarding the Company, its business and the transactions noted in Section 2.33 above furnished by the Company are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

2.34         Forward-Looking Information. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) made by the Company or any of its officers or directors contained in the SEC Documents, or made available to the public generally since September 30, 2016, has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

2.35         No Additional Agreements. Other than with respect to closing mechanics, the Company has no other agreements or understandings (including, without limitation, side letters) with any Purchaser or other person to purchase Shares on terms more favorable to such person than as set forth herein.

2.36         No “Bad Actor” Disqualification. The Company has exercised reasonable care, in accordance with SEC rules and guidance, and has conducted a factual inquiry, the nature and scope of which reflect reasonable care under the relevant facts and circumstances, to determine whether any Covered Person (as defined below) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (“Disqualification Events”). To the Company’s knowledge, after conducting such sufficiently diligent factual inquiries, no Covered Person is subject to a Disqualification Event, except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has complied, to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act, including the Company; any predecessor or affiliate of the Company; any director, executive officer, other officer participating in the offering, general partner or managing member of the Company; any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power; any promoter (as defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of the sale of the Securities; and any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of the Securities (a “Solicitor”), any general partner or managing member of any Solicitor, and any director, executive officer or other officer participating in the offering of any Solicitor or general partner or managing member of any Solicitor.         

9

3.          Representations and Warranties of the Purchasers. Each Purchaser, severally and not jointly, hereby represents and warrants to the Company as follows:

3.1          Legal Power. The Purchaser has the requisite authority to enter into this Agreement and to carry out and perform its obligations under the terms of this Agreement. All action on the Purchaser’s part required for the lawful execution and delivery of this Agreement have been or will be effectively taken prior to the Closing.

3.2          Due Execution. This Agreement has been duly authorized, executed and delivered by the Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of the Purchaser, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by equitable principles.

3.3          Investment Representations. In connection with the sale and issuance of the Securities, the Purchaser, for itself and no other Purchaser, makes the following representations:

(a)          Investment for Own Account. The Purchaser is acquiring the Securities for its own account, not as nominee or agent, and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act;provided, however, that by making the representations herein, the Purchaser does not agree to hold any of the Securities for any minimum or specific term and reserves the right to dispose of the securities at any time in accordance with or pursuant to a registration statement or an exemption from the registration requirements of the Securities Act.

(b)          Transfer Restrictions; Legends. The Purchaser understands that (i) the Securities have not been registered under the Securities Act; (ii) the Securities are being offered and sold pursuant to an exemption from registration, based in part upon the Company’s reliance upon the statements and representations made by the Purchasers in this Agreement, and that the Securities must be held by the Purchaser indefinitely, and that the Purchaser must, therefore, bear the economic risk of such investment indefinitely, unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration; (iii) each Certificate representing Securities will be endorsed or notated with the following legend until the date the Shares are eligible for sale without restriction or limitation under Rule 144 under the Securities Act:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. UNLESS SOLD PURSUANT TO EITHER AN EFFECTIVE REGISTRATION STATEMENT OR RULE 144 UNDER THE SECURITIES ACT, THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

10

(iv) the Company will instruct any transfer agent not to register the transfer of the Securities (or any portion thereof) until the applicable date set forth in clause (iii) above unless (A) the conditions specified in the foregoing legends are satisfied, (B) if the opinion of counsel referred to above is to the further effect that such legend is not required in order to establish compliance with any provisions of the Securities Act or this Agreement, (C) if the Purchaser provides the Company with reasonable assurance, such as through a representation letter, that the Securities may be sold pursuant to Rule 144 under the Securities Act, or (D) other reasonably satisfactory assurances of such nature are given to the Company. If so required by the Company’s transfer agent, the Company shall cause its counsel to issue and deliver a legal opinion to the transfer agent to effect the removal of the restrictive legend contemplated by this Agreement.

The Company acknowledges and agrees that a Purchaser may from time to time pledge, and/or grant a security interest in some or all of the Securities pursuant to a bona fide margin agreement in connection with a bona fide margin account and, if required under the terms of such agreement or account, the Purchaser may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer shall not be subject to approval or consent of the Company and no legal opinion of legal counsel to the pledgee, secured party or pledgor shall be required in connection with the pledge, but such legal opinion may be required in connection with a subsequent transfer following default by the Purchaser transferee of the pledge. No notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including the preparation and filing of any required prospectus supplement under Rule 424(b)(3) of the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of Selling Shareholders thereunder.

Certificates evidencing the Shares shall not contain any restrictive legend (including the legend set forth in this Section): (i) following a resale of the Shares under an effective registration statement (including the Registration Statement) covering the Shares, or (ii) following a sale of such Shares pursuant to Rule 144, or (iii) while such Shares are eligible for sale under Rule 144 and, with respect to any Purchaser’s Shares, such Purchaser is not and has not been for three months an affiliate of the Company (as such term is defined in Rule 144(a)(1)) and such Shares have been held for one year or more pursuant to the requirements of Rule 144 and any other requirements under Rule 144 have been satisfied at such time, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Staff of the SEC). Following such time as restrictive legends are not required to be placed on Certificates representing Shares, the Company will, no later than three business days following the delivery by a Purchaser to the Company or the Company’s transfer agent of a Certificate representing Shares containing a restrictive legend and such other documentation and representations as the Company, its legal counsel or Transfer Agent may reasonably request to confirm compliance with the preceding sentence as applicable (provided, however, that neither the Company nor its legal counsel will require a legal opinion in connection with any sale pursuant to Rule 144), deliver or cause to be delivered to such Purchaser a Certificate representing such Shares that is free from all restrictive legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section. Certificates for Shares subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the Purchasers by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system unless a Purchaser provides alternate written instructions. The Company will pay all fees and expenses of its transfer agent and the Depository Trust Company in connection with the removal of legends pursuant to this Section 3.3(b).

11

Each Purchaser, severally and not jointly with the other Purchasers, agrees that the removal of the restrictive legend from Certificates representing Shares as set forth in this Section 3.3(b) is predicated upon the Company’s reliance that the Purchaser will sell any Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom.

(c)          Financial Sophistication; Due Diligence. The Purchaser has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in connection with the transactions contemplated in this Agreement. Such Purchaser has, in connection with its decision to purchase the Securities, relied only upon the representations and warranties contained herein and the information contained in the Company SEC Documents. Further, the Purchaser has had such opportunity to obtain additional information and to ask questions of, and receive answers from, the Company, concerning the terms and conditions of the investment and the business and affairs of the Company, as the Purchaser considers necessary in order to form an investment decision.

(d)          Accredited Investor Status. The Purchaser is an “accredited investor” as such term is defined in Rule 501(a) of the rules and regulations promulgated under the Securities Act.

(e)          Residency. If the Purchaser is an entity, the Purchaser is organized under the laws of the jurisdiction set forth beneath such Purchaser’s name on the signature page attached hereto, and its principal place of operations is in the state set forth beneath such Purchaser’s name on the signature page attached hereto.

(f)          General Solicitation. The Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over the television or radio or presented at any seminar or any other general solicitation or general advertisement.

3.4          No Investment, Tax or Legal Advice. Each Purchaser understands that nothing in the Company SEC Documents, this Agreement, or any other materials presented to the Purchaser in connection with the purchase and sale of the Securities constitutes legal, tax or investment advice. Each Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Securities.

3.5          Additional Acknowledgement. Each Purchaser acknowledges that it has independently evaluated the merits of the transactions contemplated by this Agreement, that it has independently determined to enter into the transactions contemplated hereby, that it is not relying on any advice from or evaluation by any other person. Each Purchaser acknowledges that the Placement Agent has acted solely as placement agent for the Company in connection with the Offering of the Securities by the Company, that the information and data provided to the Purchaser in connection with the transaction contemplated hereby has not been subjected to independent verification by the Placement Agent, and that the Placement Agent has made no representation or warranty whatsoever with respect to the accuracy or completeness of such information, data or other related disclosure material. Each Purchaser acknowledges that it has not taken any actions that would deem the Purchasers to be members of a “group” for purposes of Section 13(d) of the Exchange Act.

3.6          Limited Ownership. The purchase of the Securities issuable to each Purchaser at the Closing will not result in such Purchaser (individually or together with any other person or entity with whom such Purchaser has identified, or will have identified, itself as part of a “group” in a public filing made with the SEC involving the Company’s securities) acquiring, or obtaining the right to acquire, in excess of 19.999% of the outstanding shares of Common Stock or voting power of the Company on a post-transaction basis that assumes that the Closing shall have occurred. Such Purchaser does not presently intend to, along or together with others, make a public filing with the SEC to disclose that it has (or that it together with such other persons or entities have) acquired, or obtained the right to acquire, as a result of the Closing (when added to any other securities of the Company that it or they then own or have the right to acquire), in excess of 19.999% of the outstanding shares of Common Stock or the voting power of the Company on a post-transaction basis that assumes that the Closing shall have occurred.

12

3.7          No Short Position. Other than consummating the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any person or entity acting on behalf of or pursuant to any understanding with such Purchaser, executed any purchases or sales, including short sales as defined in Rule 200 of Regulation SHO under the Exchange Act (“Short Sales”), of the securities of the Company during the period commencing from the time that such Purchaser first received a term sheet (written or oral) from the Company or any other person representing the Company setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the securities covered by this Agreement. Other than to other persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction, the acquisition of Target and the Company’s new credit facility). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future.

4.            Conditions to Closing.

4.1          Conditions to Obligations of Purchasers at Closing. Each Purchaser’s obligation to purchase the Securities at the Closing is subject to the fulfillment, on or prior to the Closing, of all of the following conditions, any of which may be waived by the Purchaser:

(a)          Representations and Warranties True; Performance of Obligations. The representations and warranties made by the Company in Section 2 shall be true and correct in all material respects (or, where the representation and warranty itself is qualified by materiality, it shall be true and correct in all respects) on the Closing Date with the same force and effect as if they had been made on and as of said date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier date), and the Company shall have performed and complied with all obligations and conditions herein required to be performed or complied with by it on or prior to the Closing, including, but not limited to, those obligations and conditions set forth in Sections 4.1(c), 4.1(f), 4.1(g), 4.1(h), and 4.1(i), and a certificate duly executed by an officer of the Company, to the effect of the foregoing, shall be delivered to the Purchasers. The delivery of such certificate shall evidence the satisfaction of the conditions set forth in this Section 4.1.

 (b)          Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to counsel to the Purchaser, and counsel to the Purchaser shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request. The Company shall have delivered (or caused to have been delivered) to each Purchaser, the Certificates required by this Agreement.

13

(c)          Qualifications, Legal Investment. All authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful sale and issuance of the Securities shall have been duly obtained and shall be effective on and as of the Closing. No stop order or other order enjoining the sale of the Securities shall have been issued and no proceedings for such purpose shall be pending or, to the knowledge of the Company, threatened by the SEC, or any commissioner of corporations or similar officer of any state having jurisdiction over this transaction. At the time of the Closing, the sale and issuance of the Securities shall be legally permitted by all laws and regulations to which the Company is subject. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.

(d)          Execution of Agreements. The Company shall have executed this Agreement and have delivered this Agreement to the Purchasers.

(e)          Secretary’s Certificate. The Company shall have delivered to the Purchasers a certificate of the Secretary of the Company certifying as to (i) the truth and accuracy of the resolutions of the board of directors relating to the transaction contemplated hereby (a copy of which shall be included with such certificate) and (ii) the current versions of the Company’s Certificate of Incorporation and bylaws.

(f)          Trading and Listing. Trading and listing of the Company’s common stock on the Principal Market shall not have been suspended by the SEC or the Principal Market.

(g)          Market Listing. The Company will comply with all of the requirements of the Financial Industry Regulatory Authority, Inc. and the Principal Market with respect to the issuance of the Securities and will list the Shares on the Principal Market no later than the earlier of (a) the effective date of the Registration Statement (as hereinafter defined) or (b) the Required Effective Date (as hereinafter defined).

(h)          Blue Sky. The Company shall have obtained all necessary “blue sky” law permits and qualifications, or have the availability of exemptions therefrom, required by any state for the offer and sale of the Securities.

(i)          Material Adverse Change. Since the date of this Agreement, there shall not have occurred any event which results in a Material Adverse Effect.

(j)          Opinion. The Company shall have delivered to Purchasers the opinion of Kelley Drye & Warren LLP, counsel to the Company, dated as of the Closing Date in substantially the form attached hereto as Exhibit B.

(k)          Acquisition of Target. The acquisition of Target shall have been consummated in accordance with the SPA.

4.2          Conditions to Obligations of the Company. The Company’s obligation to issue and sell the Securities at the Closing is subject to the fulfillment, on or prior to the Closing, of the following conditions, any of which may be waived by the Company:

(a)          Representations and Warranties True. The representations and warranties made by the Purchasers in Section 3 shall be true and correct in all material respects (or, where the representation and warranty itself is qualified by materiality, it shall be true and correct in all respects) on the Closing Date with the same force and effect as if they had been made on and as of said date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier date).

(b)          Performance of Obligations. The Purchasers shall have performed and complied with all agreements and conditions herein required to be performed or complied with by them on or before the Closing. The Purchasers shall have delivered the Purchase Price, by wire transfer, to the account designated by the Company for such purpose.

14

(c)          Qualifications, Legal Investment. All authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful sale and issuance of the Securities shall have been duly obtained and shall be effective on and as of the Closing. No stop order or other order enjoining the sale of the Securities shall have been issued and no proceedings for such purpose shall be pending or, to the knowledge of the Company, threatened by the SEC, or any commissioner of corporations or similar officer of any state having jurisdiction over this transaction. At the time of the Closing, the sale and issuance of the Securities shall be legally permitted by all laws and regulations to which the Company is subject. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.

(d)          Execution of Agreements. The Purchasers shall have executed this Agreement and delivered this Agreement to the Company.

(e)          Acquisition of Target. The acquisition of Target shall have been consummated in accordance with the SPA.

4.3          Termination of Obligations to Effect Closing; Effects.

(a)          Termination. The obligations of the Company, on the one hand, and the Purchasers, on the other hand, to effect the Closing shall terminate as follows:

(i)          Upon the mutual written consent of the Company and the Purchasers;

(ii)         By the Company if any of the conditions set forth in Section 4.2 shall have become incapable of fulfillment, and shall not have been waived by the Company;

(iii)        By a Purchaser (with respect to itself only) if any of the conditions set forth in Section 4.1 shall have become incapable of fulfillment, and shall not have been waived by the Purchaser; or

(iv)        By either the Company or any Purchaser (with respect to itself only) if the Closing has not occurred on or prior to December 1, 2016;

provided, however, that, in the case of clause (iii) above and clause (iv) with respect to the Company, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants, or agreements contained in this Agreement if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing.

(b)          Effect of Termination. In the event of termination by the Company or any Purchaser of its obligations to effect the Closing pursuant to this Section 4.3, written notice thereof shall be given promptly to the other Purchasers by the Company and the other Purchasers shall have the right to terminate their obligations to effect the Closing upon written notice to the Company and the other Purchasers. Nothing in this Section 4.3 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

15

5.          Additional Covenants.

5.1          Reporting Status. With a view to making available to the Purchasers the benefits of certain rules and regulations of the SEC which may permit the sale of the Shares to the public without registration, the Company agrees to use its reasonable best efforts to file with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act. The Company will otherwise take such further action as a Purchaser may reasonably request, all to the extent required from time to time, to enable such Purchaser to sell the Shares without registration under the Securities Act or any successor rule or regulation adopted by the SEC. If, at any time during the period commencing from the six-month anniversary of the date hereof and ending at such time that all Registrable Securities (as defined below) may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144 (the “144 Sale Date”), the Company fails to satisfy the current public information requirement of Rule 144(c) under the Securities Act, then the Company shall, on the business day immediately following such failure and each 30^th day thereafter until the 144 Sale Date, make a payment to the Purchasers as partial liquidated damages for such failure equal to 1% of the Purchase Price paid for the Shares then owned by the Purchasers up to a maximum of 12.0% of the Purchase Price for such Registrable Securities. Payments pursuant to this Section 5.1 will be prorated on a daily basis during each 30-day period and will be paid to the Purchasers by wire transfer or check within five business days after the earlier of (i) the end of each 30-day period following such failure to satisfy the current public information requirement or (ii) the 144 Sale Date. If the Company fails to pay any liquidated damages pursuant to this section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Purchasers, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full.

5.2          Listing. So long as a Purchaser owns any of the Securities, the Company will use its reasonable best efforts to maintain the qualification or listing of its Common Stock, including the Shares, on the Principal Market or an alternative listing on the NASDAQ Stock Market, New York Stock Exchange or NYSE MKT and will comply in all material respects with the Company’s reporting, filing and other obligations under the rules of such exchanges, as applicable.

5.3          Adjustments in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in shares of Common Stock (or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares of Common Stock), combination or other similar recapitalization or event occurring after the date hereof, each reference in this Agreement to a number of shares or price per share shall be amended appropriately to account for such event.

5.4          Non-Public Information. The Company covenants and agrees that neither it nor any other person acting on its behalf will provide any Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto such Purchaser shall have executed a written agreement regarding the confidentiality and use of such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company. Furthermore, if the Company has disclosed any material non-public information to the Purchaser, the Purchaser has no duty to keep such information confidential following the public announcement of the Offering.

5.5          Equal Treatment of Purchasers. No consideration (including any modification of this Agreement and any other documents or agreements executed in connection with the transaction contemplated hereunder) shall be offered or paid to any person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration is also offered to all of the parties to this Agreement. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of securities of the Company or otherwise.

16

5.6          Restriction on Future Issuances. Unless otherwise waived by holders of a majority of the Shares sold in this Offering:

(a)          The Company will not, from the date of this Agreement through the date that is 45 days after the effective date of the Registration Statement (the “Lock-Up Period”), (a) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (b) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, except for (x) grants of options, shares of Common Stock and other awards to purchase or receive shares of Common Stock under the Company’s equity incentive plans that are in effect as of or prior to the date hereof or (y) issuances of shares of Common Stock upon the exercise or conversion of securities outstanding as of the date of this Agreement in accordance with the terms of such securities in effect on the date hereof or upon the exercise of options or other awards granted under the Company’s equity incentive plans.

(b)          The Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period.

(c)          In addition, from the Closing Date of the Offering until 45 days after the effective date of the Registration Statement, the Company will not issue or agree to issue more than (i) such number of shares as is equal in value to $1,000,000 of (a) Common Stock or (b) any securities of the Company or any subsidiary that would entitle the holder thereof to acquire at any time shares of Common Stock, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time directly or indirectly convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock, entitling any person or entity to acquire shares of Common Stock, in the case of each of (i)(a) and (i)(b) above at an effective price per share of at least $1.15, and (ii) such number of shares as is equal in value to $5,000,000 of (a) Common Stock or (b) any securities of the Company or any subsidiary that would entitle the holder thereof to acquire at any time shares of Common Stock, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time directly or indirectly convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock, entitling any person or entity to acquire shares of Common Stock, in the case of each of (ii)(a) and (ii)(b) above at an effective price per share of at least $2.00.

Notwithstanding this Section 5.6, the Company shall not be restricted from issuing shares of Common Stock, or registering with the SEC the sale or resale of shares of Common Stock, in connection with the SPA and any agreement contemplated thereby, provided, however, that the registration statement for such shares shall not be filed earlier than sixty (60) days following the effective date of the registration statement covering the shares of Common Stock sold hereunder.

6.          Registration Rights.

6.1          Registration Procedures and Expenses; Liquidated Damages for Certain Events.

(a)          The Company shall prepare and file with the SEC, as promptly as reasonably practicable following Closing, but in no event later than 45 days following the date hereof (the “Initial Filing Date”), a registration statement on Form S-3 (or any successor to Form S-3), covering the resale of the Registrable Securities (the “S-3 Registration Statement”) and use all commercially reasonable efforts to, as soon as reasonably practicable thereafter but in no event later than 90 days following the date hereof (or 120 days in the event of a full review of the S-3 Registration Statement by the SEC), effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchasers. For purposes of this Agreement, the term “Registrable Securities” shall mean (i) the Shares and (ii) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, any Shares. In the event that Form S-3 (or any successor form) is or becomes unavailable to register the resale of the Registrable Securities at any time prior to the Initial Filing Date, the Company shall prepare and file with the SEC, as promptly as reasonably practicable following the Closing but in no event later than the Initial Filing Date, a registration statement on Form S-1 (or any successor to Form S-1), covering the resale of the Registrable Securities (the “S-1 Registration Statement” and collectively the S-3 Registration Statement, the “Registration Statement”) and use all commercially reasonable efforts to, as soon as reasonably practicable thereafter but in no event later than 120 days following the date hereof (150 days in the event of a full review of the S-1 Registration Statement by the SEC), to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchasers. If the Company is not eligible to use Form S-3 at the Initial Filing Date, and the Company subsequently becomes eligible to use Form S-3 during the Effectiveness Period (as defined below), the Company shall file, as promptly as reasonably practicable, a new S-3 Registration Statement, or if available, an amendment to the Form S-1, covering the resale of the Registrable Securities and replace the S-1 Registration Statement with the new S-3 Registration Statement or amended Form S-1, as the case may be, upon the effectiveness of the new S-3 Registration Statement.

17

(b)          The Company shall, during the Effectiveness Period (as hereinafter defined), use its commercially reasonable efforts to:

(i)          prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary or advisable to keep the Registration Statement current and effective for the Registrable Securities held by a Purchaser for a period ending on the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which all Registrable Securities may be sold pursuant to Rule 144 under the Securities Act or any successor rule (“Rule 144”) during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (iii) such time as all Registrable Securities have been sold pursuant to a registration statement or Rule 144 (collectively, the “Effectiveness Period”). The Company shall notify each Purchaser promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC and advise each Purchaser that the form of Prospectus contained in the Registration Statement or post-effective amendment thereto, as the case may be, at the time of effectiveness meets the requirements of Section 10(a) of the Securities Act or that it intends to file a Prospectus pursuant to Rule 424(b) under the Securities Act that meets the requirements of Section 10(a) of the Securities Act;

(ii)         furnish to the Purchaser promptly with respect to the Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement and the Prospectus (including supplemental prospectuses and amendments) filed with the SEC in conformance with the requirements of the Securities Act and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser;

(iii)        make any necessary blue sky filings;

(iv)        pay the expenses incurred by the Company and the Purchasers in complying with this Section 6, including, all registration and filing fees, FINRA fees, exchange listing fees, printing expenses, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding attorneys’ fees of any Purchaser and any and all underwriting discounts and selling commissions applicable to the sale of Registrable Securities by the Purchasers);

18

(v)         advise the Purchasers, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and

(vi)        with a view to making available to the Purchaser the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Purchaser to sell Registrable Securities to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as such term is understood and defined in Rule 144, until the earlier of (A) such date as all of the Registrable Securities qualify to be resold immediately pursuant to Rule 144 or any other rule of similar effect during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (B) such date as all of the Registrable Securities shall have been resold pursuant to Rule 144 (and may be further resold without restriction); (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Purchaser upon request, as long as the Purchaser owns any Registrable Securities, (A) a written statement by the Company as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) if not available on the SEC EDGAR system, a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration.

The Company understands that each Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that a Purchaser is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.

(c)          If (i) the Registration Statement is not filed on or prior to the Initial Filing Date, or (ii) the Company fails to file with the SEC a request for acceleration of the Registration Statement in accordance with Rule 461 under the Securities Act, within five Trading Days, as defined below, after the date the Company is first notified (orally or in writing) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review or comment, or (iii) prior to the effective date of the Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the SEC in respect of such Registration Statement within 21 days after the receipt of comments by or notice from the SEC that such amendment or resolution of such comments is required in order for such Registration Statement to be declared effective, or (iv) the Registration Statement is not declared effective by the SEC on or before the date that is 90 days after the date hereof, or 120 days after the date hereof in the event of a full review of the Registration Statement by the SEC (the “Required Effective Date”), or (v) there occurs a Suspension (or part thereof) (as defined below) that does not constitute a Qualifying Suspension (as defined below) or (vi) at any time during the period commencing from the six month anniversary of the date hereof and ending at such time, the Company shall fail to satisfy the current public information requirement under Rule 144(c) (any of the foregoing being referred to as an “Event”, and for purposes of clauses (i), (iv) and (vi), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five Trading Day period is exceeded, and for purpose of clause (iii) the date which such 21 day period is exceeded, and for purpose of clause (v) the date on which the applicable 30 or 45 day period is exceeded being the “Event Date”), then except during any period of time during which the Registrable Securities may be resold pursuant to Rule 144 without volume limitations, in addition to any other rights the Purchasers may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Purchaser an amount in cash, as liquidated damages and not as a penalty, equal to the product of 1.0% multiplied by the Purchase Price paid by such Purchaser with respect to the Registrable Securities affected by such Event and held by such Purchaser on such Event Date or monthly anniversary thereof, up to a maximum of 12.0% of the Purchase Price for such Registrable Securities; provided, however, that no amount arising under subsection (vi) above shall be payable in duplication of any amount payable under Section 5.1. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Purchaser, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. A “Trading Day” is any day of the year that the Principal Market is open for trading of the Common Stock.

19

6.2          Transfer of Shares After Registration; Suspension.

(a)          Except in the event that Section 6.2(b) applies, the Company shall during the Effectiveness Period: (i) if deemed necessary or advisable by the Company, prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide the Purchasers copies, or access to copies, of any documents filed pursuant to Section 6.2(a)(i); and (iii) upon request, inform each Purchaser who so requests that the Company has complied with its obligations in Section 6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify the Purchaser to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Purchaser pursuant to Section 6.2(b)(i) when the amendment has become effective).

(b)          Subject to Section 6.1(c), in the event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to the Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchasers will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Purchasers are advised in writing by the Company that the current Prospectus may be used, and have received copies, or access to copies, from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company will use its reasonable best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after delivery of a Suspension Notice to the Purchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).

20

(c)          Notwithstanding the foregoing paragraphs of this Section 6.2, the Company shall use its reasonable best efforts to ensure that (i) a Suspension shall not exceed 30 days individually, (ii) Suspensions covering no more than 45 days, in the aggregate, shall occur during any twelve month period and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”).

(d)          During the Effectiveness Period, the Company shall cause Certificates evidencing the Registrable Securities not to contain any restrictive legend (including the legend set forth in Section 3.3(b)): (i) following a resale of the Shares under an effective registration statement (including the Registration Statement) covering such Registrable Securities, or (ii) following a sale of such Registrable Securities pursuant to Rule 144, or (iii) while such Registrable Securities are eligible for sale under Rule 144 and, with respect to any Purchaser’s Shares, such Purchaser is not and has not been for three months an affiliate of the Company (as such term is defined in Rule 144(a)(1)) and such Shares have been held for one year or more pursuant to the requirements of Rule 144 and any other requirements under Rule 144 have been satisfied at such time, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Staff of the SEC). Following such time as restrictive legends are not required to be placed on Certificates representing Shares, the Company will, no later than three Trading Days following the delivery by a Purchaser to the Company or the Company’s transfer agent of a Certificate representing Registrable Securities containing a restrictive legend, deliver or cause to be delivered to such Purchaser a Certificate representing such Registrable Securities that is free from all restrictive legends. Promptly after the Registration Statement is declared effective by the SEC, the Company will cause its counsel to issue a legal opinion to the Company’s transfer agent to effect the removal of the restrictive legend contemplated by this Agreement upon request by a Purchaser in connection with a sale of such Purchaser’s Registrable Securities by such Purchaser pursuant to the Registration Statement, which opinion will not include the resale of shares issued as part of the purchase price for the acquisition of Target pursuant to the SPA. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Agreement. Certificates for Registrable Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the Purchasers by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system unless a Purchaser provides alternate written instructions.

6.3          Indemnification. For the purpose of this Section 6.3:

(a)          the term “Selling Shareholder” shall mean a Purchaser, its general partners, managing members, managers, executive officers and directors and each person, if any, who controls that Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act;

(b)          the term “Registration Statement” shall include any final Prospectus, exhibit, supplement or amendment included in or relating to, and any document incorporated by reference in, the Registration Statement (or deemed to be a part thereof) referred to in Section 6.1; and

(c)          the term “untrue statement” shall mean any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission to state in the Registration Statement a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

21

(d)          The Company agrees to indemnify and hold harmless each Selling Shareholder from and against any losses, claims, damages or liabilities to which such Selling Shareholder may become subject (under the Securities Act or otherwise) insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon (i) any untrue statement of a material fact contained in the Registration Statement, (ii) any inaccuracy in the representations and warranties of the Company contained in this Agreement or the failure of the Company to perform its obligations hereunder or (iii) any failure by the Company to fulfill any undertaking included in the Registration Statement, and the Company will reimburse such Selling Shareholder for any reasonable legal expense or other actual accountable out-of-pocket expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable in any such case to the extent that such loss, claim, damage or liability arises out of, or is based upon, an untrue statement made in such Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Selling Shareholder specifically for use in preparation of the Registration Statement or the failure of such Selling Shareholder to comply with its covenants and agreements contained herein or any statement or omission in any Prospectus that is corrected in any subsequent Prospectus that was delivered to the Selling Shareholder prior to the pertinent sale or sales by the Selling Shareholder.

(e)          Each Purchaser severally (as to itself), and not jointly, agrees to indemnify and hold harmless the Company (and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who signs the Registration Statement and each director of the Company) from and against any losses, claims, damages or liabilities to which the Company (or any such officer, director or controlling person) may become subject (under the Securities Act or otherwise), insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement of a material fact contained in the Registration Statement if, and only if, such untrue statement was made in reliance upon and in conformity with written information furnished by or on behalf of that Purchaser specifically for use in preparation of the Registration Statement, and that Purchaser will reimburse the Company (or such officer, director or controlling person, as the case may be), for any reasonable legal expense or other actual accountable out-of-pocket expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim. The obligation to indemnify shall be limited to the net amount of the proceeds received by the Purchaser from the sale of the Registrable Securities pursuant to the Registration Statement.

(f)          Promptly after receipt by any indemnified person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 6.3, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, but the omission to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under this Section 6.3 (except to the extent that such omission materially and adversely affects the indemnifying party’s ability to defend such action) or from any liability otherwise than under this Section 6.3. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof (unless it has failed to assume the defense thereof and appoint counsel reasonably satisfactory to the indemnified party), such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the reasonable opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel (who shall not be the same as the opining counsel) at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could reasonably have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceeding.

22

(g)          If the indemnification provided for in this Section 6.3 is unavailable to or insufficient to hold harmless an indemnified party under subsection (d) or (e) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and the liable Purchaser on the other in connection with the statements or omissions or other matters which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, in the case of an untrue statement, whether the untrue statement relates to information supplied by the Company on the one hand or the liable Purchaser on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement. The Company and the Purchasers agree that it would not be just and equitable if contribution pursuant to this subsection (g) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to above in this subsection (g). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (g) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (g), no Purchasers shall be required to contribute any amount in excess of the amount by which the net amount received by that Purchaser from the sale of the Registrable Securities to which such loss relates exceeds the amount of any damages which that Purchaser has otherwise been required to pay to the Company by reason of such untrue statement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Purchasers’ obligations in this subsection to contribute are several in proportion to their sales of Registrable Securities to which such loss relates and not joint.

(h)          The parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions hereof including, without limitation, the provisions of this Section 6.3, and are fully informed regarding said provisions. They further acknowledge that the provisions of this Section 6.3 fairly allocate the risks in light of the ability of the parties to investigate the Company and its business in order to assure that adequate disclosure is made in the Registration Statement as required by the Securities Act and the Exchange Act.

(i)          The obligations of the Company and of the Purchasers under this Section 6.3 shall survive completion of any offering of Registrable Securities in such Registration Statement for a period of two years from the effective date of the Registration Statement. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

23

6.4          Termination of Conditions and Obligations. The conditions precedent imposed by Section 3 or this Section 6 upon the transferability of the Registrable Securities shall cease and terminate as to any particular number of the Registrable Securities when such Registrable Securities shall have been effectively registered under the Securities Act and sold or otherwise disposed of in accordance with the intended method of disposition set forth in the Registration Statement covering such Registrable Securities or at such time as an opinion of counsel satisfactory to the Company shall have been rendered to the effect that such conditions are not necessary in order to comply with the Securities Act. The Company shall request an opinion of counsel promptly upon receipt of a request therefor from a Purchaser.

6.5          Information Available. So long as the Registration Statement is effective covering the resale of Registrable Securities owned by a Purchaser, the Company will furnish (or, to the extent such information is available electronically through the Company’s filings with the SEC, the Company will make available via the SEC’s EDGAR system or any successor thereto) to each Purchaser:

(a)          as soon as practicable after it is available, one copy of its Annual Report on Form 10-K (the foregoing, in each case, excluding exhibits);

(b)          upon the request of the Purchaser, all exhibits excluded by the parenthetical to subparagraph (a)(ii) of this Section 6.5 as filed with the SEC and all other information that is made available to shareholders; and

(c)          upon the reasonable request of the Purchaser, an adequate number of copies of the Prospectuses to supply to any other party requiring such Prospectuses; and the Company, upon the reasonable request of a Purchaser, will meet with each Purchaser or a representative thereof at the Company’s headquarters during the Company’s normal business hours to discuss all information relevant for disclosure in the Registration Statement covering the Registrable Securities and will otherwise reasonably cooperate with the Purchasers conducting an investigation for the purpose of reducing or eliminating the Purchasers’ exposure to liability under the Securities Act, including the reasonable production of information at the Company’s headquarters; provided, that the Company shall not be required to disclose any confidential information to or meet at its headquarters with a Purchaser until and unless that Purchaser shall have entered into a confidentiality agreement in form and substance reasonably satisfactory to the Company with the Company with respect thereto.

6.6          Public Statements; Limitation on Information. The Company shall (A) by no later than 9:00 a.m. (New York City time) on the fourth Trading Day immediately following the date hereof, issue a press release disclosing the material terms of the Offering and (B) file a Current Report on Form 8-K within the time required by and in accordance with the requirements of the Exchange Act. From and after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its subsidiaries, or any of their respective officers, directors, employees or agents in connection with the Offering. Neither the Company nor any Purchaser shall issue any other press release with respect to the transactions contemplated hereby nor otherwise make any such public statement without the prior consent of the Company and the Placement Agent, which consents in each case shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company will not make any public disclosure listing a Purchaser as one of the purchasers of the Securities without that Purchaser’s prior written consent, except as may be required by applicable law or rules of any exchange on which the Company’s securities are listed.

24

6.7          Protection of Exemptions. Without limiting the provisions of Section 5.6, the Company will not, for a period of six months following the Closing Date offer for sale or sell any securities unless, in the opinion of the Company’s counsel, such offer or sale does not jeopardize the availability of exemptions from the registration and qualification requirements under applicable securities laws with respect to the Offering. Except for the issuance of stock options under the Company’s stock option plans, the issuance of common stock upon exercise of outstanding options and warrants, the issuance of common stock purchase warrants, the issuance of Common Stock pursuant to the SPA, and the offering contemplated hereby, the Company has not engaged in any offering of equity securities during the six months prior to the date of this Agreement. The foregoing provisions of this Section 6.7 shall not prevent the Company from filing a “shelf” registration statement pursuant to Rule 415 under the Securities Act, but the foregoing provisions shall apply to any sale of securities thereunder.

6.8          Form D and State Securities Filings. The Company will file with the SEC a Notice of Sale of Securities on Form D with respect to the Securities, as required under Regulation D under the Securities Act, no later than 15 days after the Closing Date. The Company will promptly and timely file all documents and pay all filing fees required by any states’ securities laws in connection with the sale of Securities.

6.9          Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Section 6 may be assigned by a Purchaser to a party that acquires, other than pursuant to the Registration Statement or Rule 144, any of the Registrable Securities originally issued or issuable to such Purchaser as contemplated by this Agreement, or to any affiliate of a Purchaser that acquires any Registrable Securities. Any such permitted assignee shall have all the rights of such Purchaser under this Section 6 with respect to the Registrable Securities transferred during the Effectiveness Period.

6.10         Selling Shareholder Questionnaire. Each Purchaser agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Exhibit C (a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of a Purchaser in a Registration Statement and shall not be required to pay any liquidated or other damages hereunder to any such Purchaser who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least three business days prior to the filing of the Registration Statement.

7.          Miscellaneous.

7.1          Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the choice of law provisions thereof, and the federal laws of the United States.

7.2          Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto. Notwithstanding the foregoing, the Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchasers that constitute at least a majority of the Shares then held by the Purchasers.

7.3          Entire Agreement. This Agreement and the exhibits hereto, and the other documents delivered pursuant hereto, constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants, or agreements except as specifically set forth herein or therein. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein.

25

7.4          Severability. In the event any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

7.5          Amendment and Waiver. Except as otherwise provided herein, any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of the Company and each Purchaser. Any amendment or waiver effected in accordance with this Section 7.5 shall be binding upon any holder of any Securities purchased under this Agreement, each future holder of all such securities, and the Company.

7.6          Fees and Expenses. Except as otherwise set forth herein, the Company and the Purchasers shall bear their own expenses and legal fees incurred on their behalf with respect to this Agreement and the transactions contemplated hereby. Each party hereby agrees to indemnify and to hold harmless of and from any liability the other parties for any commission or compensation in the nature of a finder’s fee to any broker or other person or firm (and the costs and expenses of defending against such liability or asserted liability) for which such indemnifying party or any of its employees or representatives are responsible.

7.7          Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be delivered (A) if within the United States, by first-class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid or by electronic mail, or (B) if from outside the United States, by International Federal Express (or comparable service) or by facsimile or electronic mail, and shall be deemed given (i) if delivered by first-class registered or certified mail domestic, upon the business day received, (ii) if delivered by nationally recognized overnight carrier, one business day after timely delivery to such carrier, (iii) if delivered by International Federal Express (or comparable service), two business days after so mailed, or (iv) if delivered by electronic mail at or prior to 5:30 p.m. (New York City time) on a Trading Day, on the Trading Day so delivered or, if delivered by facsimile or electronic mail after 5:30 p.m. (New York City time) on a Trading Day or on a day that is not a Trading Day, the next Trading Day after the date of delivery, and shall be addressed as follows, or to such other address or addresses as may have been furnished in writing by a party to another party pursuant to this paragraph:

· if to the Company, to the address of the Company’s principal office set forth on the first page of this Agreement, Attention: Secretary and Treasurer, e-mail: pturits@fusionconnect.com with a copy to (which shall not constitute notice to the Company) Kelley Drye & Warren LLP, 101 Park Avenue, New York, New York 10178, Attention: Carol Weiss Sherman, e-mail: csherman@kelleydrye.com and

· if to the Purchaser, at its address on the signature page to this Agreement.

7.8          Survival of Representations, Warranties and Agreements. Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent, all covenants, agreements, representations and warranties made by the Company and the Purchasers herein shall survive the execution of this Agreement, the delivery to the Purchasers of the Securities being purchased and the payment therefor, and a party’s reliance on such representations and warranties shall not be affected by any investigation made by such party or any information developed thereby.

7.9          Counterparts. This Agreement may be executed by pdf signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.

7.10       Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.

26

7.11         Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under this Agreement are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under this Agreement. Nothing contained herein, and no action taken by any Purchaser pursuant hereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. Each Purchaser confirms that it has independently participated in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.

[The Remainder of this Page is Blank; Signature Pages Follow]

27

In witness whereof, the foregoing Common Stock Purchase Agreement is hereby executed as of the date first above written.

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

By:

Name:

Title:

28

In witness whereof, the foregoing Common Stock Purchase Agreement is hereby executed as of the date first above written.

Name of Investor

By:

Name:

Title:

Investment Amount (# shares):

Investment Amount ($ @ $1.15 share):

Tax Identification No.:

Jurisdiction of Organization:

Jurisdiction of Principal Place of Operations:

Address for Notice:

Attention:

Telephone:

E-mail:

Delivery Instructions (if different from above):

Attention:

Telephone:

1

EXHIBIT A

SCHEDULE OF PURCHASERS

Purchaser Common
Shares Aggregate
Purchase Price Jurisdiction of
Organization Jurisdiction of
Principal Place of
Operations

EXHIBIT B

FORM OF OPINION OF COMPANY COUNSEL

[Capitalized terms shall have the meanings ascribed thereto in the Common Stock Purchase Agreement]

1.          The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

2.          The Company has all necessary corporate power and authority to (i) execute and deliver, and to perform its obligations under the Agreement and (ii) conduct its business as it is, to our knowledge, currently conducted and described in the Company SEC Documents, and own, lease and license it properties and assets.

3.          The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction listed on Schedule 1 hereto.

4.          The execution, delivery and performance by the Company of the Agreement and the consummation of the transactions contemplated thereby including the issuance of the Securities have been duly authorized by all necessary corporate action of the Company.

5.          The Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms.

6.          Except for filings, authorizations or approvals contemplated by the Agreement, no authorizations or approvals of, and no filings with, any governmental or administrative agency, regulatory authority, stock market or trading facility are necessary or required by the Company for the execution and delivery of the Agreement or the consummation of the transactions contemplated thereby.

7.          Neither the execution and delivery of the Agreement by the Company, nor the consummation or performance by the Company of any of the transactions contemplated by the Agreement (including the issuance of the Securities) (i) result in a violation of any provisions of the Company’s certificate of incorporation or bylaws; (ii) to our knowledge, constitute a violation of any U.S. federal or state law, rule or regulation applicable to the Company; or (iii) to our knowledge, violate any judgment, decree, order or award of any court, governmental body or arbitrator specifically naming the Company.

8.          The authorized capital stock of the Company on the date hereof consists of 90,000,000 shares of common stock and 10,000,000 shares of preferred stock. The form of certificates for the Shares conforms to the requirements of the Delaware General Corporation Law.

9.          To our knowledge, except as provided or disclosed in the Agreement on in the Company SEC Documents, no person or entity is entitled to any preemptive, right of first refusal, contractual or similar rights with respect to the issuance of the Shares.

10.        The Shares have been duly authorized or reserved for issuance by all necessary corporate action on the part of the Company; and the Shares, when issued, sold and delivered against payment therefor in accordance with the provisions of the Agreement will be duly and validly issued, fully paid and non-assessable. The holders of the Shares will not be subject to personal liability by reason of being such holders.

11.        Based in part on the representations contained in Section 3 of the Agreement, the offer and sale of the Shares as contemplated under the Agreement are exempt from registration under the Securities Act of 1933, as amended (the “Act”) [and from registration and qualification under the securities law of the States of [•]].

12.        We are not aware of any actions, suits, arbitrations, claims, proceedings or investigations pending or threatened against the Company or any of its subsidiaries or any of their respective operations, businesses, properties or assets by or before any court, arbitrator or government or regulatory commission, board, body, authority or agency that challenges the validity of any actions take or to be taken by the Company pursuant to the Agreement or the transaction contemplated thereby.

13.        To our knowledge, except as set forth in the Purchase Agreement, no holders of the Company’s securities have rights to the registration of shares of Common Stock or other securities of the Company because of the filing of the Registration Statement or the Offering, except as set forth in the Company SEC Documents.

14.        The Company is not, and immediately after giving effect to the sale of the Securities in accordance with the Purchase Agreement, and the application of the proceeds for working capital, will not be required to be, registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

EXHIBIT C

SELLING SHAREHOLDER QUESTIONNAIRE

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

Questionnaire for Selling Shareholder

This questionnaire is necessary to obtain information to be used by Fusion Telecommunications International, Inc. (the “Company”) to complete a Registration Statement (the “Registration Statement”) covering the resale of certain shares of Company Common Stock currently outstanding and/or of certain shares of Company Common Stock to be issued upon exercise of currently outstanding warrants to purchase Company Common Stock. Please complete and return this questionnaire to Kelley, Drye & Warren LLP, the Company’s legal counsel, to the attention of Carol Weiss Sherman either by mail to 101 Park Avenue, New York, New York 10178 or by fax to (212) 808-7897 or by email to csherman@kelleydrye.com. Please return the questionnaire by [•], or sooner, if possible. Call Carol Weiss Sherman at 212-808-5038 with questions.

FAILURE TO RETURN THE QUESTIONNAIRE MAY RESULT IN THE EXCLUSION OF YOUR NAME AND SHARES FROM THE REGISTRATION STATEMENT.

Please answer all questions. If the answer to any question is “None” or “Not Applicable,” please so state.

If there is any question about which you have any doubt, please set forth the relevant facts in your answer.

1. Please correct your name and/or address if not correct below

Name:

Address:

^*See Appendix A for definitions

2. Please state the total number of currently outstanding shares of Company Common Stock that you beneficially own* and the form of ownership and the date that you acquired such stock. Include shares registered in your name individually or jointly with others and shares held in the name of a bank, broker, nominee, depository or in “street name” for your account. (DO NOT list options, warrants or other derivative securities. See Question #3).

3. Please list any outstanding options and warrants to purchase Company Common Stock or other derivative securities to acquire Company Common Stock that you beneficially own*, including (i) the number of shares of Company Common Stock to be issued upon the exercise of such option or warrant, (ii) the date such option or warrant is exercisable, (iii) the expiration date and (iv) the exercise price per share of EACH such option and warrant.

Number of Shares
Covered by Option or
Warrant Date Exercisable Exercise Price Expiration Date

4. Please list the number of shares of Common Stock listed under Question #2 above that you wish to include in the Registration Statement.

^*See Appendix A for definitions

5. Please list the number of shares of Common Stock underlying warrants (to the extent such shares constitute Registrable Securities) listed under Question #3 above that, upon exercise of such warrants, you wish to include in the Registration Statement.

6. If you are a limited liability company or limited partnership, please name the managing member or general partner and each person controlling such managing member or general partner.

7. If you are an entity, please identify the natural person(s) who exercises sole or shared voting power* and/or sole or shared investment power* with regard to the shares listed under Question #2 and Question #3.

8. Please advise whether you are a registered broker-dealer or an affiliate* thereof. If you are an affiliate of a registered broker-dealer, please explain the nature of the affiliation and disclose whether you acquired the shares in the ordinary course of business and whether at the time of the acquisition you had any plans or proposals, directly or with any other person, to distribute the shares listed under Question #2 and Question #3.

9. List below the nature of any position, office or other material relationship that you have, or have had within the past three years, with the Company or any of its predecessors or affiliates*.

^*See Appendix A for definitions

10. If you expressly wish to disclaim any beneficial ownership* of any shares listed under Question #2 for any reason in the Registration Statement, indicate below the shares and circumstances for disclaiming such beneficial ownership*.

11. With respect to the shares that you wish to include in the Registration Statement, please list any party that has or may have secured a lien, security interest or any other claim relating to such shares, and please give a full description of such claims.

12. Please review Appendix B “Plan of Distribution.” Please identify and describe any method of distribution, other than described in Appendix B, that you plan on using to sell your shares of the Company’s Common Stock. By signing below you agree to distribute your shares of the Company’s Common Stock as described in Appendix B and this Item 11 and to notify the Company of any plan to distribute the Company’s Common Stock that is not described in Appendix B or herein under Item 11.

The undersigned, a Selling Shareholder of the Company, hereby furnishes the foregoing information for use by the Company in connection with the preparation of the Registration Statement. The undersigned will notify [•], at the address specified above, in writing immediately of any changes in the foregoing answers that should be made as a result of any developments occurring prior to the time that all the shares of Common Stock of the Company are sold pursuant to the Registration Statement referred to above. Otherwise, the Company is to understand that the above information continues to be, to the best of the undersigned’s knowledge, information and belief, complete and correct.

Dated: ___________ __, 20___

By:

Name:

Its:

^*See Appendix A for definitions

APPENDIX A
To Exhibit C

Certain Terms Used in Questionnaire

AFFILIATE

An “affiliate” of a company is a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such company.

BENEFICIAL OWNERSHIP

A person “beneficially owns” a security if such person, directly or indirectly, has or shares voting power or investment power of such security, whether through a contract, arrangement, understanding, relationship or otherwise. A person is also the beneficial owner of a security if he has the right to acquire beneficial ownership at any time within 60 days through the exercise of any option, warrant or right, or the power to revoke a trust, discretionary account or similar arrangement.

INVESTMENT POWER

“Investment power” includes the power to dispose, or to direct the disposition of, a security.

VOTING POWER

“Voting power” includes the power to vote, or to direct the voting of, a security.

APPENDIX B

To Exhibit C

PLAN OF DISTRIBUTION

15.         We are registering for resale by the selling shareholders and certain transferees a total of _________ shares of common stock, of which _______ shares are issued and outstanding. We will not receive any of the proceeds from the sale by the selling shareholders of the shares of common stock. We will bear all fees and expenses incident to our obligation to register the shares of common stock. If the shares of common stock are sold through broker-dealers or agents, the selling shareholder will be responsible for any compensation to such broker-dealers or agents.

16.         The selling shareholders may pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus.

17.         The selling shareholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

18.         The selling shareholders will sell their shares of common stock subject to the following:

· all of a portion of the shares of common stock beneficially owned by the selling shareholders or their perspective pledgees, donees, transferees or successors in interest, may be sold on the OTC Bulletin Board Market, any national securities exchange or quotation service on which the shares of our common stock may be listed or quoted at the time of sale, in the over-the counter market, in privately negotiated transactions, through the writing of options, whether such options are listed on an options exchange or otherwise, short sales or in a combination of such transactions;

· each sale may be made at market price prevailing at the time of such sale, at negotiated prices, at fixed prices or at carrying prices determined at the time of sale;

· some or all of the shares of common stock may be sold through one or more broker-dealers or agents and may involve crosses, block transactions or hedging transactions. The selling shareholders may enter into hedging transactions with broker-dealers or agents, which may in turn engage in short sales of the common stock in the course of hedging in positions they assume. The selling shareholders may also sell shares of common stock short and deliver shares of common stock to close out short positions or loan or pledge shares of common stock to broker-dealers or agents that in turn may sell such shares;

· in connection with such sales through one or more broker-dealers or agents, such broker-dealers or agents may receive compensation in the form of discounts, concessions or commissions from the selling shareholders and may receive commissions from the purchasers of the shares of common stock for whom they act as broker-dealer or agent or to whom they sell as principal (which discounts, concessions or commissions as to particular broker-dealers or agents may be in excess of those customary in the types of transaction involved). Any broker-dealer or agent participating in any such sale may be deemed to be an “underwriter” within the meaning of the Securities Act and will be required to deliver a copy of this prospectus to any person who purchases any share of common stock from or through such broker-dealer or agent. We have been advised that, as of the date hereof, none of the selling shareholders have made any arrangements with any broker-dealer or agent for the sale of their shares of common stock; and

· in connection with any other sales or transfers of common stock not prohibited by law.

19.         The selling shareholder and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any profits realized by the selling shareholders and any commissions paid, or any discounts or concessions allowed to any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. In addition, any shares of common stock covered by this prospectus which qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this prospectus. A selling shareholder may also transfer, devise or gift the shares of common stock by other means not covered in this prospectus in which case the transferee, devisee or giftee will be the selling shareholder under this prospectus.

20.         If required at the time a particular offering of the shares of common stock is made, a prospectus supplement or, if appropriate, a post-effective amendment to the shelf registration statements of which this prospectus is a part, will be distributed which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-deals or agents, any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.

21.         Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with. There can be no assurance that any selling shareholder will sell any or all of the shares of common stock registered pursuant to the shelf registration statement, of which this prospectus forms a part.

22.         The selling shareholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling shareholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.

We will bear all expenses of the registration of the shares of common stock including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with the state securities of “blue sky” laws. The selling shareholders will pay all underwriting discounts and selling commissions and expenses, brokerage fees and transfer taxes, as well as the fees and disbursements of counsel to and experts for the selling shareholders, if any. We will indemnify the selling shareholders against liabilities, including some liabilities under the Securities Act, in accordance with the registration rights agreement or the selling shareholder will be entitled to contribution. We will be indemnified by the selling shareholders against civil liabilities, including liabilities under the Securities Act that may arise from any written information furnished to us by the selling shareholders for use in this prospectus, in accordance with the related securities purchase agreement or will be entitled to contribution. Once sold under this shelf registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.