8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

CURRENT REPORT

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

Date of Report (Date of earliest event reported) May 4, 2018

FUSION CONNECT, 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

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

(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))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

☐ Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

Item 1.01     

Entry into a Material Definitive Agreement.

The information set forth under Item 2.01, Item 2.03, and Item 3.02 below is incorporated herein by reference.

MegaPath Merger Agreement

On May 4, 2018, Fusion Connect, Inc. (f/k/a Fusion Telecommunications International, Inc.), a Delaware corporation (“Fusion”), and its wholly owned subsidiary, Fusion MPHC Acquisition Corp., a Delaware corporation (“MPHC Merger Sub”), entered into an Agreement and Plan of Merger (the “MegaPath Merger Agreement”), with MegaPath Holding Corporation, a Delaware corporation (“MegaPath”) and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative of the stockholders and optionholders of MegaPath (the “Stockholder Representative”). The MegaPath Merger Agreement, provides, among other things, that upon the terms and conditions set forth therein, MPHC Merger Sub will merge with and into MegaPath (the “MegaPath Merger”), with MegaPath surviving the MegaPath Merger and continuing as a wholly-owned subsidiary of Fusion (the “Surviving Company”).

The purchase price for MegaPath is $71,500,000 (the “Purchase Price”), up to $10,000,000 of which may be paid by Fusion, at its option, in shares of Fusion’s common stock, par value $0.01 per share (the “Fusion Common Stock”). The Purchase Price is subject to a working capital adjustment as well as a reduction for certain transaction expenses and any outstanding indebtedness of MegaPath as of the closing of the MegaPath Merger (the “MegaPath Closing”), in each case, as provided in the MegaPath Merger Agreement. At the MegaPath Closing, $2,500,000 of the Purchase Price will be deposited in an escrow account held by Citibank, N.A., as escrow agent (the “Escrow Agent”), for one (1) year, to secure indemnification obligations in favor of Fusion under the MegaPath Merger Agreement. Furthermore, $850,000 of the Purchase Price (the “Holdback”) will be deposited by the selling stockholders with the Escrow Agent to cover fees and expenses of the Stockholder Representative.

The MegaPath Merger Agreement contains customary representations, warranties and covenants. In addition, the MegaPath Merger is subject to various closing conditions, including receipt of any required regulatory approvals and receipt of the approval from holders of 95% of the MegaPath common stock and preferred stock (on an as-converted basis) (the “MegaPath Capital Stock”), which stockholder approval was obtained prior to the date of this Current Report on Form 8-K.

Subject to certain exceptions and limitations, either Fusion or MegaPath may terminate the MegaPath Merger Agreement if the MegaPath Merger is not consummated by June 30, 2018. Fusion may also terminate the MegaPath Merger Agreement if holders of greater than one percent of the MegaPath Capital Stock exercise dissenters’ rights in accordance with Section 262 of the Delaware General Corporation Law.

The MegaPath Merger Agreement includes customary indemnification obligations by (a) each of the holders of MegaPath Capital Stock and outstanding options to purchase MegaPath common stock (collectively, the “MegaPath Securityholders”) for the benefit of Fusion and its affiliates, and (b) Fusion for the benefit of the MegaPath Securityholders and their affiliates.

At the MegaPath Closing, the directors and officers of MegaPath and each of its subsidiaries will resign from such positions, and the directors and officers of MPHC Merger Sub will become the directors and officers of the Surviving Company.

As described in Item 2.03 below, Fusion will use $62,000,000 of borrowings under the First Lien Credit Agreement (as defined below) to pay the cash portion of the Purchase Price. In accordance with the terms of the First Lien Credit Agreement, pending the MegaPath Closing, these funds have been deposited into a segregated bank account.

The foregoing description of the MegaPath Merger Agreement is qualified in its entirety by reference to the full text of that document, which is filed hereto as Exhibit 10.1, and which is incorporated by reference herein. The MegaPath Merger Agreement has been included as an exhibit hereto solely to provide investors and security holders with information regarding its terms. The representations, warranties and covenants contained in the MegaPath Merger 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 MegaPath Merger 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 MegaPath Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures.

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On May 10, 2018, Fusion issued a press release announcing its entry into MegaPath Merger Agreement, a copy of which is filed as Exhibit 99.1 and which is incorporated by reference herein.

Item 2.01   

Completion of Acquisition or Disposition of Assets.

Completion of the Acquisition of Birch Communications

On May 4, 2018 (the “Closing Date”), Fusion completed the various transactions contemplated by the Agreement and Plan of Merger, dated August 26, 2017, as amended (the “Birch Merger Agreement”), by and among Fusion, Fusion BCHI Acquisition LLC, a wholly-owned subsidiary of Fusion (“BCHI Merger Sub”), and Birch Communications Holdings, Inc. (“Birch”). As contemplated by the Birch Merger Agreement, on the Closing Date, Birch merged with and into BCHI Merger Sub (the “Birch Merger”), with BCHI Merger Sub surviving the Birch Merger as a wholly-owned subsidiary of Fusion. The Birch Merger and other transactions contemplated by the Birch Merger Agreement were approved by the stockholders of Fusion at its annual meeting of stockholders held on February 21, 2018 (the “Annual Meeting”).

On the Closing Date, all of the outstanding shares of common stock, par value $0.01 per share, of Birch (other than treasury shares or shares owned of record by any Birch subsidiary) were cancelled and converted into the right to receive, in the aggregate, 49,896,310 shares (the “Merger Shares”) of Fusion Common Stock. Pursuant to subscription agreements executed by each of the shareholders of Birch, the Merger Shares were issued in the name of, and are now held by, BCHI Holdings, LLC (“BCHI Holdings”), a Georgia limited liability company owned by the former shareholders of Birch. In accordance with the Birch Merger Agreement, the Merger Shares represent three times (3x) the number of shares of Fusion Common Stock outstanding immediately prior to the Closing Date, including the number of shares of Fusion Common Stock issuable to holders of preferred stock of Fusion converted on the Closing Date (as described below) and in-the-money warrants to purchase shares of Fusion Common Stock, but excluding (a) shares of Fusion Common Stock issued in connection with Fusion’s January 2018 acquisition of assets of IQmax, Inc., (b) shares of Fusion Common Stock issued on February 5, 2018 in connection with Fusion’s public offering of shares of Fusion Common Stock, and (c) shares of Fusion Common Stock issued on the Closing Date pursuant to the Common Stock Purchase Agreements (as described in Item 3.02 below). As of the Closing Date, BCHI Holdings held approximately 65.2% of the issued and outstanding shares of Fusion Common Stock.

All share and per share amounts included in this Current Report on Form 8-K give effect to a 1-for-1.5 Reverse Split (as defined below) that became effective on May 4, 2018 immediately prior to the closing of the Birch Merger.

As required by the terms of the Birch Merger Agreement, on the Closing Date all of the issued and outstanding shares of Fusion’s preferred stock, par value $0.01 per share (the “Preferred Stock”), including its Series A-1 Cumulative Convertible Preferred Stock, Series A-2 Cumulative Convertible Preferred Stock, Series A-4 Cumulative Convertible Preferred Stock, and Series B-2 Senior Cumulative Convertible Preferred Stock, that holders thereof elected to convert were converted into an aggregate of 1,288,974 shares of Fusion Common Stock. Any accrued but unpaid dividends with respect to such Preferred Stock were included in the calculation of the number of shares of Fusion Common Stock delivered to each holder of Preferred Stock on the Closing Date. Any shares of Preferred Stock that were not submitted for conversion by the applicable holder prior to the Closing Date automatically terminated and were cancelled without consideration in accordance with their terms.

Registration Rights Agreement

On the Closing Date, BCHI Holdings and Fusion entered into a Registration Rights Agreement (the “Registration Rights Agreement”) governing the registration rights of BCHI Holdings in respect of the Merger Shares, pursuant to which Fusion agreed, among other things, to use its reasonable best efforts to cause a shelf registration statement (the “Birch Registration Statement”) covering the resale of up to 25% of the Merger Shares to be declared effective by the Securities and Exchange Commission (the “SEC”) within 120 days of the Closing Date. Under the Preferred Stock Purchase Agreement (as defined below), Fusion agreed to file the Birch Registration Statement with the SEC within five (5) business days after the Closing Date if certain specified conditions were met.

Fusion has agreed to maintain the effectiveness of the Birch Registration Statement until the earlier of (a) the sale of all of the covered Merger Shares, or (b) the fifth anniversary of the effective date of Birch Registration Statement (the “Effectiveness End Date”). BCHI Holdings may, subject to certain limitations, require that distribution of the covered Merger Shares covered by Birch Registration Statement be made in an underwritten offering of the covered Merger Shares; provided that gross proceeds of any such offering are expected to be at least $10,000,000, and subject to customary cutbacks and lock-ups.

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Under the Registration Rights Agreement, BCHI Holdings has also been provided with certain customary demand and piggyback registration rights with respect to the Merger Shares. In addition, from the Effectiveness End Date, BCHI Holdings may, subject to certain limitations, require that distribution of the Merger Shares pursuant to a demand registration right be made in an underwritten offering, provided that gross proceeds of such offering are expected to be at least $20,000,000, and subject to customary cutbacks and lock-ups.

The foregoing description of the Registration Rights Agreement is qualified in its entirety by reference to the full text of such document, which is filed hereto as Exhibit 10.2 and which is incorporated by reference herein.

Stockholders’ Agreement

On the Closing Date, Fusion also entered into a Stockholders’ Agreement (the “Stockholders’ Agreement”) with BCHI Holdings and the pre-closing members of the Fusion Board of Directors (the “Fusion Committee”). Under the Stockholders’ Agreement, the parties agreed that immediately after the closing of the Birch Merger, the new Fusion Board of Directors (the “Fusion Board”) would initially be set at seven (7) members, of which (a) three (3) persons (at least one (1) of whom must be an independent director within the meaning of the Nasdaq listing standards (the “Nasdaq Listing Standards”)) would be designated for appointment to the Fusion Board by BCHI Holdings (the “Birch Designees”); (b) three (3) persons (at least one (1) of whom must be an independent director within the meaning of the Nasdaq Listing Standards) (the “Fusion Designees”) would be designated for appointment to the Fusion Board by the members of the pre-closing Fusion Board or, subsequently, the Fusion Designees (the “Fusion Committee”); and (c) one (1) person (who must also be an independent director within the meaning of the Nasdaq Listing Standards) would be designated by BCHI Holdings with the prior written approval (not to be unreasonably withheld, conditioned or delayed) of the Fusion Committee (the “Independent Designee”).

The Fusion Designees are Matthew D. Rosen, Marvin S. Rosen and Michael J. Del Giudice; the Birch Designees are Holcombe T. Green, Jr., Holcombe Green, III and Lewis W. Dickey, Jr.; and the Independent Designee is Rafe de la Gueronniere.

The Stockholders’ Agreement requires each party to vote its respective shares of Fusion Common Stock in favor of electing to the Fusion Board individuals nominated in accordance with the foregoing provisions. The rights of the Fusion Committee and BCHI Holdings to nominate directors to the Fusion Board continue (i) as to the Fusion Committee, until such time as Marvin S. Rosen and Matthew D. Rosen collectively beneficially own less than one and one-half percent (1.5%) of the then issued and outstanding shares of Fusion Common Stock, and (ii) as to BCHI Holdings, until such time as it and its affiliates collectively beneficially own less than twenty percent (20%) of the number of shares of Fusion Common Stock owned by them as of the Closing Date.

The foregoing description of the Stockholders’ Agreement is qualified in its entirety by reference to the full text of such document, which is filed hereto as Exhibit 10.3 and which is incorporated by reference herein.

Lingo Spin-Off

As contemplated by the terms of the Birch Merger Agreement, immediately prior to the closing of the Birch Merger, Birch distributed to its shareholders all of the shares of its subsidiary, Lingo Management, LLC, a Georgia limited liability company (“Lingo”), and certain other subsidiaries of Birch that provided services to Birch’s U.S.-based consumer customers, wireless customers and its small business customer-base (which include those business customers with $111 per month or less of monthly revenue for purposes of the spin-off) and assets associated with the support of those customers. In connection with that spin-off, Fusion entered into a transition services agreement with Lingo (the “Transition Services Agreement”) on the Closing Date, pursuant to which each party agreed to provide the other party with specified services. The types of services covered by the Transition Services Agreement include, but are not limited to, network operations center support services, customer care support services, IT support services, product and marketing support, human resources and legal support, and finance, tax and accounting support. The term and pricing of each service covered by the Transition Services Agreement varies.

In connection with the spin-off of Lingo, Fusion and Lingo also entered into a Non-Solicitation and Right of First Refusal Agreement (the “Non-Solicitation Agreement”) on the Closing Date, under which each of Lingo and Fusion agreed that it would not solicit (a) the employees, officers, directors, or consultants of the other party for a period of three years from the Closing Date, or (b) the customers of the other party, until two years after the end of the period during which Lingo and Fusion share certain customer records under the terms of the Transition Services Agreement, but in no event ending later than three years after the Closing Date. In addition, Lingo agreed to grant Fusion a right of first refusal for a period of three years from the Closing Date, to acquire any third party provider of communications services or cloud services to business services, such that Lingo must first offer Fusion the right to make such a proposed acquisition, on the same economic terms as Lingo, before Lingo can effect such a transaction.

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The foregoing descriptions of the Transition Services Agreement and Non-Solicitation Agreement are qualified in their entirety by reference to the text of such documents, which are filed hereto as Exhibit 10.4 and Exhibit 10.5, respectively, and which are incorporated by reference herein.

Carrier Spin-Off

On the Closing Date, Fusion entered into a Membership Interest Purchase and Sale Agreement (the “Membership Sale Agreement”) with XComIP, LLC (“XCOM”) pursuant to which Fusion transferred its sixty percent (60%) membership interest in Fusion Global Services, LLC (“Fusion Global”) to XCOM in exchange for a right to receive: (i) sixty percent (60%) of the Net Profits (as defined in the Membership Sale Agreement) of Fusion Global; (ii) sixty percent (60%) of any distributions being made by Fusion Global to its members only to the extent such amounts are not distributed as part of the distribution of Net Profits; and (iii) sixty percent (60%) of the net proceeds received by the members from a sale of Fusion Global to a third party. The Membership Sale Agreement contains customary representations and warranties for an agreement of this type and also includes various covenants by Fusion Global to deliver to Fusion specified information during the course of each year. In addition, the Membership Sale Agreement contains a list of specified actions that may not be taken by Fusion Global and its manager without the prior approval of Fusion. Further, the Membership Sale Agreement contains a right of first refusal under which Fusion has the right to purchase all of the membership interests in Fusion Global in the event of a proposed sale to a bona fide third party and also contains an additional revenue share obligation should Fusion Global expand the scope of its current business and use the assets and personnel (other than the manager) in support of that business. In connection with the execution of the Membership Sale Agreement, Fusion and XCOM also entered into a non-solicitation agreement.

The foregoing description of the Membership Sale Agreement is qualified in its entirety by reference to the full text of such document, which is filed hereto as Exhibit 10.6 and which is incorporated by reference herein.

Indemnity Agreements

On the Closing Date, BCHI Holdings and Fusion entered into an amended and restated indemnification letter agreement (the “Amended Indemnity Letter”), which amended the indemnity letter delivered by BCHI Holdings to Fusion on August 26, 2017 in connection with the execution of the Birch Merger Agreement (the “Original Indemnity Letter”). The Amended Indemnity Letter has substantially the same terms as the Original Indemnity Letter, except that it adds additional enumerated matters for which BCHI Holdings has agreed to indemnify Fusion. The indemnity cap and the terms of indemnification in the Amended Indemnity Letter are the same as those contained in the Original Indemnity Letter.

On the Closing Date, BCHI Holdings and Fusion also entered into a separate indemnification letter agreement (the “Tax Indemnity Letter”) whereby BCHI Holdings agreed to indemnify and hold harmless Birch Communications, LLC (“BCLLC”), a wholly-owned subsidiary of Fusion, and each of the other subsidiaries of BCLLC, from and against any and all liabilities for unpaid state income or franchise taxes, late fees and penalties and interest owed for 2017 and prior years and paid by BCLLC after the closing of the Birch Merger. However, Fusion agreed that BCHI Merger Sub (as successor-in-interest to Birch as a result of the Birch Merger) would pay the first $1,000,000 of any actual tax liabilities (but not late fees, penalties, or interest associated therewith). Amounts owed under the Tax Indemnity Letter may be paid by BCHI Holdings in Fusion Common Stock at a price per share equal to the greater of (a) $3.00 and (b) the five-day weighted-average price.

The foregoing descriptions of the Amended Indemnity Letter and Tax Indemnity Letter are qualified in their entirety by reference to the full text of such documents, which are filed hereto as Exhibit 10.7 and Exhibit 10.8, respectively, and which are incorporated by reference herein.

Fusion Press Release

On May 7, 2018, Fusion issued a press release announcing the closing of the Birch Merger and certain other items described below in Items 2.03, 5.01, and 5.03, a copy of which is filed as Exhibit 99.2 hereto.

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Item 2.03      

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

Senior Secured Credit Facilities

On May 4, 2018, Fusion entered into a First Lien Credit and Guaranty Agreement (the “First Lien Credit Agreement”) with Wilmington Trust, National Association, as Administrative Agent and Collateral Agent (in such capacities, the “First Lien Agent”), the lenders party thereto (the “First Lien Lenders”), and all of the U.S.-based subsidiaries of Fusion, as guarantors thereunder (the “Guarantors”), pursuant to which the First Lien Lenders extended (a) term loans to Fusion in an aggregate principal amount of $555,000,000, consisting of the “Tranche A Term Loan” and “Tranche B Term Loan,” in an aggregate principal amount of $45,000,000 and $510,000,000, respectively (collectively, the “First Lien Term Loan”), and (b) a revolving facility in an aggregate principal amount of $40,000,000 (the “Revolving Facility”, and together with the First Lien Term Loan, the “First Lien Facility”). Borrowings under the First Lien Credit Agreement are computed based upon either the then current “base rate” of interest or “LIBOR” rate of interest, as selected by Fusion at the time of its borrowings. Interest on borrowings that Fusion designates as “base rate” loans bear interest per annum at the greatest of (a) the prime rate published by the Wall Street Journal, (b) the federal funds effective rate as published by the Federal Reserve Bank of New York plus 0.5%, (c) the Adjusted LIBOR Rate (as defined below) with an interest period of one month plus 1%, or (d)(i) 1% (for the Revolving Facility) or (ii) 2% (for the First Lien Term Loan) (collectively, the “Base Rate”); plus (x) 4.00%, with respect to the Tranche A Term Loan, (y) 6.50%, with respect to the Tranche B Term Loan, or (z) 4.00%, with respect to the Revolving Facility (which shall be subject to adjustment based upon the net leverage ratio of Fusion and its subsidiaries after the delivery of Fusion’s financial statements for fiscal quarter ended June 30, 2018 and related compliance certificate (the “Financial Statement Delivery Date”)). Interest on borrowings that Fusion designates as “LIBOR” loans bear interest per annum at (a) the “LIBOR” rate divided by (b) one minus the “applicable reserve requirement” of the Federal Reserve for Eurocurrency liabilities (subject to a floor of 1% for the First Lien Term Loan) (the “Adjusted LIBOR Rate”); plus (x) 5.00%, with respect to the Tranche A Term Loan, (y) 7.50%, with respect to the Tranche B Term Loan, or (z) 5.00%, with respect to the Revolving Facility (which shall be subject to adjustment based upon the net leverage ratio of the Company and its subsidiaries after the Financial Statement Delivery Date). The Tranche A Term Loan has an original issue discount of 0.5%. The Tranche B Term Loan has an original issue discount of 4%, except for the $170 million portion of the Tranche B Term Loan made by one lender and certain of its affiliates, which has an original issue discount of 9%, for a blended original issue discount of approximately 5.67%. The Tranche A Term Loan and the Revolving Facility mature on the fourth anniversary of the Closing Date and the Tranche B Term Loan matures on the fifth anniversary of the Closing Date. The Guarantors guaranty the obligations of Fusion under the First Lien Credit Agreement.

In addition, Fusion simultaneously entered into a Second Lien Credit and Guaranty Agreement (the “Second Lien Credit Agreement”, and with the First Lien Credit Agreement, the “Credit Agreements”), by and among Fusion, the Guarantors, Wilmington Trust, National Association, as Administrative Agent and Collateral Agent (in such capacities, the “Second Lien Agent”, and together with the First Lien Agent, collectively the “Agents”), and the lenders party thereto (the “Second Lien Lenders”, and together with the First Lien Lenders, the “Lenders”), pursuant to which the Second Lien Lenders extended a term loan in the aggregate principal amount of $85,000,000 (the “Second Lien Term Loan”, and collectively with the First Lien Term Loan, the “Term Loans”, and collectively with the First Lien Facility, the “Credit Facilities”). Borrowings under the Second Lien Credit Agreement are computed based upon either the then current “base” rate of interest or “LIBOR” rate of interest, as selected by Fusion at the time of its borrowings. Interest on borrowings under the Second Lien Term Loan that Fusion designates as “base rate” loans bear interest per annum at Base Rate plus 9.50%. Interest on borrowings under the Second Lien Term Loan that Fusion designates as “LIBOR” loans bear interest per annum at (a) the “LIBOR” rate divided by (b) one minus the “applicable reserve requirement” of the Federal Reserve for Eurocurrency liabilities (subject to a floor of 1% for the Second Lien Term Loan), plus 10.50%. The Second Lien Term Loan has an original issue discount of 4.00%, and it matures 5.5 years from the Closing Date. The Guarantors guaranty the obligations of Fusion under the Second Lien Credit Agreement. The Credit Facilities may be prepaid, in whole or in part, subject to specified prepayment premiums.

As of the date of this Current Report on Form 8-K, the Credit Facilities (including the Revolving Facility) bear interest at a weighted-average rate of approximately LIBOR plus 7.56%. Excluding the Revolving Facility, the Credit Facilities bear interest at a weighted-average rate of approximately LIBOR plus 7.72%.

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Goldman Sachs Lending Partners LLC (“Goldman Sachs”), Morgan Stanley Senior Funding, Inc. and MUFG Union Bank, N.A., served as Joint Lead Arrangers and Joint Bookrunners, and Goldman Sachs served as Syndication Agent for each of the Credit Facilities.

In connection with the Credit Facilities, Fusion and the Guarantors entered into (i) a First Lien Pledge and Security Agreement with the First Lien Agent (the “First Lien Security Agreement”) and (ii) a Second Lien Pledge and Security Agreement with the Second Lien Agent (the “Second Lien Security Agreement” and together with the First Lien Security Agreement, collectively, the “Security Agreements”), pursuant to which Fusion and the Guarantors pledged substantially all of their now owned and hereafter acquired property as security for the obligations of Fusion under the Credit Agreements, including the capital stock of the Guarantors and other direct and indirect subsidiaries of Fusion (subject to certain limitations and restrictions set forth in the Security Agreements).

Under the Credit Agreements, Fusion 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. Furthermore, Fusion is required to comply with various financial covenants, including net leverage ratio, fixed charge coverage ratio and maximum levels of consolidated capital expenditures; 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.

Fusion and each of the Guarantors acknowledged the Intercreditor Agreement, by and among Fusion, the First Lien Agent, as collateral agent for the First Lien Lenders, and the Second Lien Agent, as collateral agent for the Second Lien Lenders (the “Intercreditor Agreement”), which sets forth the priority and other rights of the Lenders with respect to payment obligations and enforcement rights under the Credit Facilities.

The proceeds of the Term Loans have been used, in part, to refinance all of the existing indebtedness of Fusion and its subsidiaries (including Birch), under (i) the Credit Agreement, dated as of November 14, 2016, as amended, among Fusion NBS Acquisition Corp., a subsidiary of Fusion (“FNBS”), East West Bank (“EWB”), as Administrative Agent, Swingline Lender, an Issuing Bank and a Lender, and the other lenders party thereto; (ii) the Fifth Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of November 14, 2016, as amended, among FNBS, Fusion, the subsidiaries of Fusion guarantors thereto, Praesidian Capital Opportunity Fund III, LP, as Agent, and the lenders party thereto; and (iii) the Credit Agreement, dated as of July 18, 2014, among Birch, Birch Communications, Inc., Cbeyond, Inc., the other guarantors party thereto, the lenders party thereto and PNC Bank, National Association, as Administrative Agent. In addition, the Term Loans were used to repay, in full, approximately $929,000 of indebtedness under that certain Second Amended and Restated Unsecured Promissory Note, dated November 14, 2016, payable by Fusion to Marvin Rosen. The proceeds were also be used to pay the fees and expenses associated with the Birch Merger and related transactions, including in connection with the Credit Facilities.

The Term Loans were also used to make a prepayment of an aggregate of approximately $3.0 million of indebtedness of Birch under the subordinated notes each dated October 28, 2016, in favor of Holcombe T. Green, Jr., R. Kirby Godsey and the Holcombe T. Green, Jr. 2013 Five-Year Annuity Trust. The remaining indebtedness thereunder is evidenced after the closing of the Birch Merger by Amended and Restated Subordinated Notes, dated as of the Closing Date, made by BCHI Merger Sub (as successor in interest to Birch pursuant to the Birch Merger) with an aggregate principal amount of $3.3 million (the “Bircan Notes”). The Bircan Notes each have an interest rate of 12% per annum, and are amortized in three equal installments, to be paid off completely in March 2019, with interest due in quarterly installments. The indebtedness under the Bircan Notes is unsecured, and obligations thereunder are subordinated to the Credit Facilities.

In addition, $62,000,000 of the Tranche B Term Loan under the First Lien Credit Agreement has been deposited in a deposit account with EWB, which account is subject to the terms of a Deposit Account Control Agreement by and among Fusion, EWB, and the First Lien Agent (the “DACA”). The amounts deposited in this account will be used by Fusion to pay the cash portion of the Purchase Price for MegaPath. If the MegaPath Merger is not completed by August 4, 2018, such funds must be used to prepay the Tranche B Term Loan under the First Lien Credit Agreement.

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The foregoing and following descriptions of the Credit Facilities and related agreements do not purport to be complete and are qualified in their entirety by reference to the full text of the First Lien Credit Agreement which is attached hereto as Exhibit 10.9, the Second Lien Credit Agreement which is attached hereto as Exhibit 10.10, the First Lien Pledge and Security Agreement which is attached hereto as Exhibit 10.11, the Second Lien Pledge and Security Agreement which is attached hereto as Exhibit 10.12, the Intercreditor Agreement which is attached hereto as Exhibit 10.13, the DACA which is attached hereto as Exhibit 10.14, and the three different Bircan Notes, which are attached hereto as Exhibit 10.15, Exhibit 10.16, and Exhibit 10.17, each of which is incorporated by reference herein. The Credit Agreements 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, Birch or any other subsidiary of Fusion. The representations, warranties and covenants contained in the Credit Agreements and other agreements and instruments referenced therein 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, Birch 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.

Green Subordinated Note

At Closing, Holcombe T. Green, Jr. made an additional loan to Fusion in the principal amount of $10,000,000, which is evidenced by a Subordinated Promissory Note, dated the Closing Date (the “Green Note”), that Fusion delivered to Mr. Green. The Green Note has an interest rate of 13% per annum and an original issue discount of 4%, and it matures on the date which is 91 days after the maturity date of the Second Lien Term Loan. Until the maturity date of the Green Note, only interest is due thereunder, in quarterly payments. The indebtedness under the Green Note is unsecured, and obligations thereunder are subordinated to the Credit Facilities.

The foregoing description of the Green Note is qualified in its entirety by reference to the full text of such document, which is filed hereto as Exhibit 10.18 and which is incorporated by reference herein.

Vector Facility

In connection with its participation in the Tranche B Term Loan under the First Lien Credit Agreement, Vector Fusion Holdings (Cayman), Ltd. (“Vector”) entered into a separate credit agreement (the “Vector Credit Agreement”) with Goldman Sachs, as administrative agent and lender, and U.S. Bank National Association, as collateral agent and collateral custodian, pursuant to which Vector borrowed funds from Goldman Sachs, the proceeds of which were used to purchase Tranche B Term Loans under the First Lien Credit Agreement. In connection therewith, Vector issued to Fusion, and Fusion bought from Vector using proceeds of thevarious financing transactions consummated on the Closing Date, a $25,000,000 unsecured subordinated note (the “Vector Note”). The Vector Note bears interest at the rate earned by the bank account in which the proceeds of the Vector Note will be deposited and matures on May 3, 2024. The Vector Note is subordinate in right of payment to Vector’s loan from Goldman Sachs. Other than payments permitted under certain limited circumstances set forth in the Vector Credit Agreement, Fusion is not entitled to any distribution on account of the principal, premium or interest or any other amount in respect of the Vector Note until all amounts owed by Vector under the Vector Credit Agreement are paid in full. Similarly, while Fusion has the right to declare obligations due under the Vector Note to be immediately due and payable upon the occurrence of an event of default (including, without limitation, in the event of any insolvency, bankruptcy or liquidation or Vector), Fusion will not be entitled to receive any payment on account of the Vector Note until Vector’s obligations under the Senior Credit Agreement are paid in full. Fusion pledged the Vector Note as security for its obligations under the Credit Agreements.

In addition, in connection with its participation in the Tranche B Term Loan under the First Lien Credit Agreement, Vector and certain of its affiliates entered into a side letter with Fusion dated as of the Closing Date (the “Vector Letter”) pursuant to which Vector is entitled to certain non-voting board observation rights, including the receipt of materials provided to the Fusion Board and attendance at regularly scheduled quarterly Fusion Board meetings. Such board observation rights are not transferrable to any assignee of the Tranche B Term Loans under the First Lien Credit Agreement held by Vector and its affiliates.

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The foregoing descriptions of the Vector Note and Vector Letter are qualified in their entirety by reference to the full text of such documents, which are filed hereto as Exhibit 10.19 and Exhibit 10.20, respectively, and are incorporated by reference herein. The form of the Vector Credit Agreement was filed as Exhibit 99.1 to Fusion’s Current Report on Form 8-K filed with the SEC on April 30, 2018 and is incorporated by reference herein.

Item 3.02         

Unregistered Sale of Equity Securities

The information set forth under Item 2.01 above is incorporated herein by reference. The Merger Shares were issued to BCHI Holdings in reliance upon exemptions from the registration requirements under the Securities Act of 1933, as amended (the “Securities Act”) pursuant to Section 4(a)(2) thereunder. The issuance of the Fusion Common Stock at Closing in exchange for Preferred Stock was made in reliance upon Section 3(a)(9) of the Securities Act.

Private Placements of Common Stock

On the Closing Date, Fusion entered into and consummated the sale of shares of Fusion Common Stock under three separate common stock purchase agreements (the “Common Stock Purchase Agreements”). Specifically, Fusion issued and sold (i) 952,382 shares of Fusion Common Stock (the “North Haven Shares”), for an aggregate purchase price of approximately $5,000,000, to North Haven Credit Partners II L.P., one of the First Lien Lenders under the Tranche B Term Loan, which is managed by Morgan Stanley Credit Partners; (ii)380,953 shares of Common Stock (the “Aetna Shares”), for an aggregate purchase price of approximately $2,000,000, to Aetna Life Insurance Company; and (iii) 190,477 shares of Common Stock (the “Backcast Shares” and with the North Haven Shares and the Aetna Shares, the “Common Stock Purchase Shares”), for an aggregate purchase price of approximately $1,000,000, to Backcast Credit Opportunities Fund I, L.P. The Common Stock Purchase Shares were sold in reliance upon the exemption from the registration requirements under the Securities Act pursuant to Section 4(a)(2) thereunder. Pursuant to the Common Stock Purchase Agreements, Fusion has agreed to file a registration statement under the Securities Act to register the resale of the Common Stock Purchase Shares as promptly as reasonably practicable following Closing, and use all commercially reasonable efforts to effect such registration no event later than 120 days following the Closing Date (or 150 days in the event of a full review of such registration statement by the SEC). Fusion has agreed to maintain the effectiveness of such registration statement until the second anniversary of the Closing Date (unless the Common Stock Purchase Shares are sold in their entirety or may be sold without restriction under Rule 144 of the Securities Act). In connection with the sale of the Common Stock Purchase Shares, Fusion paid an aggregate of $492,000 of fees.

The foregoing description of the Common Stock Purchase Agreements are qualified in its entirety by reference to the full text of the form of Common Stock Purchase Agreement, which is filed hereto as Exhibit 10.21 and which is incorporated by reference herein.

On May 8, 2018, Fusion issued a press release announcing the sale of an aggregate of approximately $8.0 million of Fusion Common Stock pursuant to the Common Stock Purchase Agreements, a copy of which is filed as Exhibit 99.3 hereto.

Private Placement of Series D Preferred Stock

On the Closing Date, Fusion entered into a preferred stock purchase agreement with Holcombe T. Green, Jr. (the “Preferred Stock Purchase Agreement”) pursuant to which it issued and sold to Mr. Green 15,000 shares (the “Series D Preferred Shares”) of Series D Cumulative Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”) of Fusion, a newly designated series of Fusion Preferred Stock, for an aggregate purchase price of $14,700,000. The Series D Preferred Shares have a stated value of $15,000,000, and Fusion agreed to pay Mr. Green a closing fee of $200,000 in connection with the closing of such sale. The Series D Preferred Shares were sold in reliance upon the exemptions from the registration requirements under the Securities Act pursuant to Section 4(a)(2) thereunder.

On the Closing Date, Fusion filed a Certificate of Designations and Preferences (the “Series D Certificate of Designations”) of the Series D Preferred Stock with the Secretary of State of the State of Delaware. The Series D Certificate of Designations created, out of the authorized and unissued shares of preferred stock of Fusion, the Series D Preferred Stock, consisting of 100,000 shares, and established the rights, preferences and privileges thereof.

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The Series D Preferred Stock accrues dividends when, as and if declared by the Fusion Board at an annual rate of twelve percent (12%) per annum regardless of whether declared, payable monthly in arrears on a cumulative basis. All accrued and unpaid dividends on each share of Series D Preferred Stock with shares of Series D Preferred Stock on the last business day of each calendar month, or, at Fusion’s discretion and after satisfaction in full of all of Fusion’s obligations under the Credit Agreements, in cash. The Series D Preferred Stock is redeemable by Fusion at the stated amount thereof (including any accrued and unpaid dividends thereon), with the proceeds from a future public offering of equity securities of Fusion (if any), or upon the sale, merger, liquidation, or dissolution of Fusion. Series D Preferred Stock does not have any voting rights, but the consent of the holders thereof is required to take certain actions by Fusion that would adversely affect such holders.

The foregoing description of the Preferred Stock Purchase Agreement is qualified in its entirety by reference to the full text of the such document, which is filed hereto as Exhibit 10.22 and which is incorporated by reference herein. The Series D Certificate of Designations is described under Item 5.03 below.

The Preferred Stock Purchase Agreement and form of Common Stock Purchase Agreement have been included as exhibits hereto solely to provide investors and security holders with information regarding their terms. They are not intended to be sources of financial, business or operational information about Fusion or any subsidiary of Fusion. The representations, warranties and covenants contained in the such agreements are made only for purposes of the specific agreements and are made as of specific dates; are solely for the benefit of the parties to those agreements; may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms thereof, 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.

Item 3.03       

Material Modification to Rights of Security Holders.

The information set forth in Item 5.03 below under the heading “Reverse Stock Split” is incorporated herein by reference.

Item 5.01       

Changes in Control of Registrant.

The pre-closing Fusion Board determined that the consummation of the Birch Merger would constitute a change of control, as upon the closing of the Birch Merger, the majority of the members of the Fusion Board would change and more than a majority of the shares of Fusion’s Common Stock outstanding immediately following completion of the Birch Merger would be owned by BCHI Holdings. Immediately after the closing of the Birch Merger, BCHI Holdings held approximately 65.2% of the issued and outstanding shares of Fusion Common Stock.

The information set forth under Item 2.01 above and Item 5.02 below is incorporated herein by reference.

Item 5.02         

Departure of Directors or Certain Officers; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Pursuant to the Stockholders’ Agreement described in Item 2.01 above, upon the closing of the Birch Merger, the size of the Fusion Board was fixed as of the Closing Date at seven (7) directors, the post-Birch Merger Fusion Board was selected in accordance with the terms thereof.

As of the Closing Date, Paul C. O’Brien, Larry Blum, Philip D. Turits, Jack Rosen and William Rubin resigned as members of the Fusion Board and the following three individuals, who are the Birch Designees, were appointed by the Fusion Board to serve as directors until the next annual meeting of stockholders of Fusion, until their respective successors are duly elected and qualified or until their respective earlier resignation or removal in accordance with Fusion’s Bylaws: Holcombe T. Green, Jr., Holcombe Green, III, and Lewis W. Dickey, Jr. In addition, Rafe de la Gueronniere was appointed as the Independent Director under the terms of the Stockholders’ Agreement. Each of Messrs. Matthew Rosen, Marvin Rosen and Del Giudice were reappointed to the Fusion Board as the Fusion Designees.

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The Fusion Board, as constituted prior to the consummation of the Birch Merger, upon recommendation of the Nominating and Compensation Committee of the Fusion Board, determined that each of Messrs. Green, III, Dickey, Del Giudice and de la Gueronniere are “independent” as such term is defined in Rule 5605(a)(2) of the Nasdaq Listing Standards.

Also as of the Closing Date, Michael R. Bauer was replaced as Fusion’s Chief Financial Officer by Kevin Dotts. Mr. Dotts also holds the titles of Executive Vice President and Principal Accounting Officer.

Holcombe T. Green, Jr.

On the Closing Date, Mr. Green, Jr. was appointed as a Director of Fusion and as Vice Chairman of the Fusion Board. Mr. Green, Jr. is a co-founder, and has served as a director, of Birch Equity Partners, LLC since January 2015. Prior to forming Birch Equity Partners, Mr. Green founded and was a principal at Green Capital Investors, where he also served as its Chairman, a Director and Chief Executive Officer at the firm's portfolio companies. Prior to that, Mr. Green, Jr. served as the Chairman and Chief Executive Officer at Westpoint Stevens Inc. from October 1992 to June 2003. Prior to that, Mr. Green was a Senior Partner at Hansell & Post, where he practiced corporate law for more than 20 years. Mr. Green served as a Trustee of Yale University Board; as a Director of High Museum of Art, Atlanta Botanical Garden, Families First, Inc., The Atlanta Ballet, Atlanta History Center, Atlanta Music Festival Association and Woodruff Arts Center; and he was also a Trustee of The Taft School. Previously, Mr. Green served as the Chairman of HBO & Company; and as a Director of Cumulus Media Inc. The Fusion Board believes that Mr. Green’s background as the co-founder of several investment funds, his service as a chief executive officer of several companies, his background as a corporate attorney and his service as a director for several other private and public companies, provides him with the industry, financial, legal, and leadership experience to advise the Fusion Board on strategic and tactical matters.

Holcombe Green, III

On the Closing Date, Mr. Green, III was appointed as a Director of the Company. Mr. Green, III has been a Managing Director at Lazard Frѐres & Co. LLC (“Lazard”) in New York City since January 2008. He has served as the global head of the secondary advisory business at Lazard and a senior member of the private fund advisory business since January 2007. Mr. Green, III joined Lazard in January 2004. From January 2002 through January 2003, Mr. Green, III was Director of Corporate Development at IBM Corporation, with responsibilities including the origination and execution of strategic transactions with and for IBM Global Services, then the largest division of IBM. From 1997 until 2002, Mr. Green, III was an investment banker at Merrill Lynch & Co. advising clients in the technology, industrial and consumer sectors with regard to strategic and financing transactions. Prior to attending the Yale School of Management, Mr. Green, III worked in the United States Senate in the office of Senator Sam Nunn of Georgia. The Fusion Board believes that Mr. Green, III’s background as an investment banker, financial and leadership experience to advise the Fusion Board on strategic and tactical matters. He is a trustee of The Taft School and a member of the Advisory Board of the Yale University International Center for Finance.

Lewis W. Dickey, Jr.

On the Closing Date, Mr. Dickey was appointed as a Director of the Company. Since May 2017, Mr. Dickey has served as the Chairman and Chief Executive Officer of Modern Media Acquisition Corp., a Nasdaq-listed special purpose acquisition corporation. Since September 2010, Mr. Dickey has served as Chairman of the Board of Modern Luxury Media, a regional magazine publishing company and since May 2017 he has also served as its Chief Executive Officer. From March 2000 to September 2015, Mr. Dickey served as Chief Executive Officer of Cumulus Media, Inc., a leader in the radio broadcasting industry which owns and operates a nationwide radio network. Mr. Dickey also served Chairman of the Board of Cumulus Media Inc. from December 2000 to May 2015. Prior to co-founding Cumulus in 1997, Mr. Dickey was a nationally regarded consultant on media strategy. The Fusion Board believes that Mr. Dickey’s background as the co-founder of a media company, his service as the chairman and chief executive officer of several companies, provides him with the industry, financial, and leadership experience to advise the Fusion Board on strategic and tactical matters. Mr. Dickey’s qualifications to serve as a member of the Fusion Board include over thirty years of experience in the media, entertainment and marketing services industries.

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Rafe de la Gueronniere

On the Closing Date, Mr. de la Gueronniere was appointed as a Director of the Company. Mr. de la Gueronniere has served as a director of Third Point Reinsurance Ltd. since November 2013. From March 2014 to March 2017, Mr. de la Gueronniere served as co-chairman of Continuity Logic, LLC, a software company. From March 2013 through March 2014, Mr. de la Gueronniere served as Vice Chairman of New Providence Asset Management, a money management company that he co-founded in 2003. Prior to co-founding New Providence Asset Management, Mr. de la Gueronniere was a Principal at the Mariner Investment Group, Chairman of the Discount Corporation of New York, and a Member of the Management Committee and Board at Paine Webber, Inc. Mr. de la Gueronniere began his career at J.P. Morgan & Co. where he was a Senior Vice President responsible for the fixed income and precious metals businesses. Currently, Mr. de la Gueronniere is a member of the Investment Committee of the John D. and Catherine T. MacArthur Foundation. He formerly served as a Trustee and Investment Committee Chair for both the Taft School and the Far Hills Country Day School and was a longstanding member of the U.S. Treasury Debt Management Advisory Committee. Mr. de la Gueronniere has more than 35 years of experience in fixed income, equity investing, foreign exchange, and the precious metals business. The Fusion Board believes that Mr. de la Gueronniere’s experience in the investment and banking industries gained over a career spanning more than 30 years, his service as the vice-chairman for several companies and his service as a director for another public company, provides him with the financial and leadership experience to be a valuable advisor to executive management and the Fusion Board.

Kevin Dotts

On the Closing Date, Mr. Dotts was appointed as Executive Vice President, Chief Financial Officer and Principal Accounting Officer of Fusion. Prior to the closing of the Birch Merger, Mr. Dotts served as Executive Vice President and Chief Financial officer of Birch, positions that he assumed in February 2017. Prior to joining Birch, Mr. Dotts served as a financial consultant to Internap Corp., a cloud, hosting and colocation company, from December 2016 to January 2017 and from August 2012 to December 2016, as its Senior Vice President and Chief Financial Officer. Prior to joining Internap, Mr. Dotts served as Executive Vice President and Chief Financial Officer at Culligan International Company, from May 2011 to August 2012, as Chief Financial Officer of Gas Turbine Efficiency, a global energy technology development company, from November 2009 to April 2010 and from 2004 to 2009 served as Executive Vice President and Chief Financial Officer at EarthLink, Inc. Mr. Dotts started his career with financial leadership roles in various domestic and international divisions of General Electric Co.

Family Relationships

Marvin S. Rosen, a Director, is the father of Matthew D. Rosen, Fusion’s Chief Executive Officer, Director and Chairman of the Board. Holcombe T. Green, Jr, a Director and Vice Chairman of the Fusion Board, is the father of Holcombe Green, III, who also serves as a Director.

Committees of the Board of Directors

On the Closing Date, Messrs. Del Giudice, Dickey and Green, III were appointed to serve as members of the Audit Committee, and Mr. Del Giudice was appointed as Chairman of that committee. In addition, on the Closing Date Messrs. Del Giudice, Dickey and de la Gueronniere were appointed to serve as members of the Nominating and Compensation Committee, and Mr. Dickey was appointed as Chairman of that committee.

The description of the board observation rights provided to Vector, described in Item 2.03 above, is incorporated herein by reference.

Item 5.03         

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Reverse Stock Split

Fusion filed a Certificate of Amendment (the “Charter Amendment”) to the Certificate of Incorporation of Fusion with the Secretary of State of the State of Delaware, to effect a reverse split of the Fusion Common Stock at an exchange ratio of 1-for-1.5 (the “Reverse Split”), which became effective on May 4, 2018, immediately prior to the closing of the Birch Merger. The number of authorized shares of Fusion Common Stock was not affected by the Reverse Split. Any fractional shares of Fusion Common Stock resulting from the Reverse Split were rounded up to the nearest whole share. The Reverse Split was approved by the stockholders of Fusion at the Annual Meeting.

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The Reverse Split was undertaken to ensure that Fusion satisfied the $4 minimum bid price requirement for the listing the Fusion Common Stock on The Nasdaq Global Market, the middle tier of The Nasdaq Stock Market LLC (“Nasdaq”). Fusion was required to file a new listing application with Nasdaq as the Birch Merger was deemed to be a change of control of Fusion within the meaning of Nasdaq Rule 5110(a). Prior to the Birch Merger, Fusion’s Common Stock traded on The Nasdaq Capital Market. Nasdaq approved the listing of Fusion’s Common Stock on The Nasdaq Global Market effective upon the closing of the Birch Merger. On May 7, 2018, the Fusion Common Stock began trading on The Nasdaq Global Market. The ticker symbol for Fusion’s Common Stock, “FSNN”, remains unchanged.

The foregoing does not purport to be a complete description of the Charter Amendment and is qualified in its entirety by reference to the full text of such document, which is filed as Exhibit 3.1 hereto and which is incorporated by reference herein.

Amended and Restated Certificate of Incorporation

On May 4, 2018, Fusion filed the Second Amended and Restated Certificated of Incorporation (the “Restated Charter”) with the Secretary of State of the State of Delaware, which amended and restated Fusion’s certificate of incorporation in its entirety (after giving effect to the Reverse Split, pursuant to the Charter Amendment). The Restated Charter was approved by the stockholders of Fusion at the Annual Meeting.

The Restated Charter changed Fusion’s name from “Fusion Telecommunications International, Inc.” to “Fusion Connect, Inc.” and increased the number of authorized shares of Fusion Common Stock from 90,000,000 to 150,000,000.

The Restated Charter also authorizes the issuance of 10,000,000 shares of undesignated preferred stock, par value $0.01 per share. While the Series A-1 Cumulative Convertible Preferred Stock, Series A-2 Cumulative Convertible Preferred Stock, Series A-4 Cumulative Convertible Preferred Stock, and Series B-2 Senior Cumulative Convertible Preferred Stock are still designated under the Amended and Restated Charter, no shares of such series of preferred stock are issued and outstanding following consummation of the Birch Merger.

The foregoing does not purport to be a complete description of the Restated Charter and is qualified in its entirety by reference to the full text of such document, which is filed as Exhibit 3.2 hereto and which is incorporated by reference herein.

Certificate of Designations of Series D Preferred

In order to deliver the required Series D Preferred Stock under the Preferred Stock Purchase Agreement, Fusion filed the Series D Certificate of Designations with the Secretary of State of the State of Delaware on May 4, 2018, which certificate was effective promptly following the effectiveness of the Restated Charter. The information set forth in Item 3.02 above under the heading “Private Placement of Series D Preferred Stock,” including the description of the Series D Certificate of Designations and the rights and preferences of the Series D Preferred Stock, is incorporated herein by reference.

The foregoing does not purport to be a complete description of the Series D Certificate of Designations and is qualified in its entirety by reference to the full text of such document, which is filed as Exhibit 3.3 hereto and which is incorporated by reference herein.

Amended and Restated Bylaws

On May 4, 2018, the new Fusion Board adopted the Amended and Restated Bylaws of Fusion (the “Restated Bylaws”). Among other things, the Restated Bylaws expand the disclosure requirements for the nomination of directors and submission of other proposals by stockholders, including representation and agreement with respect to the background and qualifications of any director nominees. Subject to the rights, if any, of the holders of any series of preferred stock, and subject to the Stockholders’ Agreement (so long as it is in effect), vacancies and newly created directorships may be filled only by a vote of a majority of the directors then in office, even if less than a quorum, and not by the stockholders. The Restated Bylaws allow the Fusion Board or the chairman of the meeting to adopt such rules and regulations for the conduct of meetings as it shall deem appropriate which may have the effect of precluding the conduct of certain business at a meeting if the rules and regulations are not followed. Furthermore, the Restated Bylaws update the descriptions of the various officer positions so they more closely reflect the duties and responsibilities of the officers of Fusion.

13

The foregoing does not purport to be a complete description of the Restated Bylaws and is qualified in its entirety by reference to the full text of such document, which is filed as Exhibit 3.4 hereto and which is incorporated by reference herein.

Item 9.01

Financial Statements and Exhibits.

(a)         Financial Statements of Business Acquired.

The 2017 audited financial statements of Birch required by Item 9.01(a)(1) of Form 8-K and Rule 8-04(b) of Regulation S-X are filed as Exhibit 99.4 to this Current Report on Form 8-K.

(b)         Pro Forma Financial Information.

The pro forma financial information required by Item 9.01(a)(1) of Form 8-K and Rule 8-04(b) of Regulation S-X are filed as Exhibit 99.5 to this Current Report on Form 8-K.

(c)         Shell Company Transactions.

Not Applicable.

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(d)          Exhibits. EXHIBIT INDEX

Exhibit No.	Description of Exhibit
3.1	Amendment to the Certificate of Incorporation, effective May 4, 2018.
3.2	Amended and Restated Certificate of Incorporation, dated May 4, 2018.
3.3	Certificate of Designations and Preferences of the Series D Cumulative Preferred Stock, dated May 4, 2018.
3.4	Amended and Restated Bylaws, dated May 4, 2018.
10.1	Agreement and Plan of Merger, dated as of May 4, 2018, by and among Fusion Connect, Inc., MegaPathHolding Corporation, Fusion MPHC Acquisition Corp., and Shareholder Representative Services LLC.
10.2	Registration Rights Agreement, dated as of May 4, 2018, by and between Fusion Connect, Inc. and BCHI Holdings, LLC.
10.3	Stockholders’ Agreement, dated as of May 4, 2018, by and among Fusion Connect, Inc., BCHI Holdings, LLC, and the stockholders named therein.
10.4	Transition Services Agreement, dated as of May 4, 2018, by and between Fusion Connect, Inc. and Lingo Management, LLC.
10.5	Non-Solicitation and Right of First Refusal Agreement, dated as of May 4, 2018, by and between Fusion Connect, Inc. and Lingo Management, LLC.
10.6	Membership Interest Purchase and Sale Agreement, dated as of May 4, 2018, by and among Fusion Telecommunication International, Inc., XcomIP LLC, and Fusion Global Services LLC.
10.7	Amended and Restated Indemnification Letter Agreement, dated as of May 4, 2018, by and between Fusion Connect, Inc. and BCHI Holdings, LLC.
10.8	Tax Indemnification Letter Agreement, dated as of May 4, 2018, by and between Fusion Connect, Inc. and BCHI Holdings, LLC.
10.9	First Lien Credit and Guaranty Agreement, dated as of May 4, 2018, by and among Fusion Connect, Inc., certain subsidiaries of Fusion Connect, Inc., Wilmington Trust, National Association, as Administrative Agent and Collateral Agent, and the lenders party thereto.
10.10	Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018, by and among Fusion Connect, Inc., certain subsidiaries of Fusion Connect, Inc., Wilmington Trust, National Association, as Administrative Agent and Collateral Agent, and the lenders party thereto.
10.11	First Lien Pledge and Security Agreement, dated as of May 4, 2018, by and among Fusion Connect, Inc., certain subsidiaries of Fusion Connect, Inc., and Wilmington Trust, National Association, as Collateral Agent
10.12	Second Lien Pledge and Security Agreement, dated as of May 4, 2018, by and among Fusion Connect, Inc., certain subsidiaries of Fusion Connect, Inc., and Wilmington Trust, National Association, as Collateral Agent
10.13	Intercreditor Agreement, dated as of May 4, 2018, by and among Wilmington Trust, National Association, as Collateral Agent for the First Lien Lenders, Wilmington Trust, National Association, as Collateral Agent for the Second Lien Lenders, as acknowledged by Fusion Connect, Inc. and certain subsidiaries thereof.
10.14	Deposit Account Control Agreement, dated as of May 4, 2018, by and among Fusion Connect, Inc., Wilmington Trust, National Association, and East West Bank.
10.15	Amended and Restated Promissory Note, dated as of May 4, 2018, made by Fusion BCHI Acquisition LLC to Holcombe T. Green, Jr.

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10.16	Amended and Restated Promissory Note, dated as of May 4, 2018, made by Fusion BCHI Acquisition LLC to R. Kirby Godsey.
10.17	Amended and Restated Promissory Note, dated as of May 4, 2018, made by Fusion BCHI Acquisition LLC to the Holcombe T. Green, Jr. 2013 Five-Year Annuity Trust.
10.18	Subordinated Promissory Note, dated as of May 4, 2018, made by Fusion Connect, Inc. to Holcombe T. Green, Jr.
10.19	Subordinated Note, dated May 4, 2018, made by Vector Fusion Holdings (Cayman), Ltd. to Fusion Connect, Inc.
10.20	Side Letter, dated May 4, 2018, by and between Fusion Connect, Inc. and Vector Capital V, L.P., Vector Entrepreneur Fund V, L.P.,VC4 Debt Investments (U.S.), L.L.C., Vector Fusion Holdings (Cayman), Ltd. and Vector Trading (Cayman), L.P.
10.21	Form of Stock Purchase Agreement, dated May 4, 2018, by and between Fusion Connect, Inc. and each of North Haven Credit Partners II L.P., Aetna Life Insurance Company, and Backcast Credit Opportunities Fund I, L.P.
10.22	Preferred Stock Purchase Agreement, dated as of May 4, 2018, by and between Fusion Connect, Inc. and Holcombe T. Green, Jr.
23.1	Consent of McNair, McLemore, Middlebrooks & Co., LLC
99.1	Press release dated May 10, 2018 of Fusion Connect, Inc. announcing its proposed acquisition of MegaPath Holding Corporation.
99.2	Press release dated May 7, 2018 of Fusion Connect, Inc. announcing the closing of the Birch Merger.
99.3	Press release dated May 8, 2018 of Fusion Connect, Inc. announcing the private placement of $8 million of common stock.
99.4	Audited financial statements of Birch Communications Holdings, Inc. for the year ended December 31, 2017.
99.5	Pro Forma Financial Information.

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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 CONNECT, INC.
	By: /s/ James P. Prenetta, Jr.
	James P. Prenetta, Jr.
May 10, 2018	Executive Vice President and General Counsel

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EX-3.1

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

Fusion Telecommunications International, Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify that:

FIRST: The name of the corporation is FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

SECOND: The original certificate of incorporation of the Corporation was dated September 16, 1997 and recorded with the Secretary of State of the State of Delaware on September 17, 1997 (such certificate of incorporation, as amended and restated and in effect thereafter, the “Certificate of Incorporation”).

THIRD: The Certificate of Incorporation of the Corporation is hereby amended by deleting the first paragraph Article Fourth thereof and inserting in lieu of said paragraph the following:

“FOURTH: The total number of shares of capital stock which the Corporation shall have authority to issue is 100,000,000, of which 90,000,000 shall be shares of Common Stock, par value $0.01 per share and 10,000,000 shall be shares of preferred stock, par value $0.01 per share.”

The Certificate of Incorporation of the Corporation is further hereby amended by adding the following as subsection “f” of Article Fourth:

 “f. 2017 Reverse Stock Split.

(i) 

Upon the filing and effectiveness, pursuant to the General Corporation Law of the State of Delaware, of this Certificate of Amendment to the Certificate of Incorporation of the Corporation, which shall become effective as of 8:00 a.m., Eastern Time, on May 4, 2018 (the “Effective Time”), each one and one-half (1.5) shares of the Corporation’s Common Stock, par value $0.01 per share, issued and outstanding immediately prior to the Effective Time shall be combined into one (1) validly issued, fully paid and non-assessable share of Common Stock, par value $0.01 per share, without any further action by the Corporation or the holder thereof, subject to the treatment of fractional share interests as described below (the “Reverse Stock Split”). The conversion and exercise prices of outstanding preferred stock, common stock purchase warrants and options to purchase common stock and the number of shares of Common Stock issuable thereunder shall be proportionately adjusted to reflect the terms of the Reverse Stock Split consistent with the terms of such instruments. No fractional shares shall be issued as a result of the Reverse Stock Split, and any fractional share to which a stockholder may be entitled as a result of the Reverse Stock Split shall be rounded up to the nearest whole share.

(ii) 

Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”) shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined, subject to the elimination of fractional share interests as described above.”

FOURTH: Pursuant to resolution of the Corporation’s Board of Directors, an annual meeting of the Corporation’s stockholders was duly called and held, upon notice in accordance with Section 222 of the of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of amending the Certificate of Incorporation as provided herein.

FIFTH: The foregoing amendment was fully adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

-2-

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its duly authorized officer, this 3rd day of May, 2018.

FUSION TELECOMMUNICATIONS

INTERNATIONAL, INC.

By: /s/ James P. Prenetta, Jr.                                  

Name: James P. Prenetta, Jr.

Title: Executive Vice President and General Counsel

-3-

EX-3.2

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. (the “Corporation”), a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

FIRST: The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of Delaware on September 17, 1997.

SECOND: This Amended and Restated Certificate of Incorporation was duly adopted by the Board of Directors of the Corporation pursuant to Section 242 and Section 245 of the General Corporation Law of the State of Delaware.

THIRD: This Amended and Restated Certificate of Incorporation shall become effective as of 12:00 p.m. (noon), Eastern Time, on May 4, 2018.

FOURTH: The Certificate of Incorporation of the Corporation shall be amended and restated in full as follows:

ARTICLE I

The name of the Corporation is Fusion Connect, Inc. (the “Corporation”).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is 9 E. Loockerman Street, Suite 311, Dover, Delaware 19901, in the County of Kent. The name of the Corporation’s registered agent at such address is Registered Agent Solutions, Inc.

ARTICLE III

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as amended (the “DGCL”).

ARTICLE IV

Section 4.1 Authorized Capital Stock. The Corporation is authorized to issue two classes of capital stock, designated Common Stock and Preferred Stock. The total number of shares of capital stock that the Corporation is authorized to issue is 160,000,000 shares, consisting of 150,000,000 shares of Common Stock, par value $0.01 per share, and 10,000,000 shares of Preferred Stock, par value $0.01 per share.

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Section 4.2 Preferred Stock. The Preferred Stock may be issued in one or more series. The Board of Directors of the Corporation (the “Board”) is hereby authorized to issue the shares of Preferred Stock in such series and to fix from time to time before issuance the number of shares to be included in any such series and the designation, powers, preferences and relative participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof. The authority of the Board with respect to each such series will include, without limiting the generality of the foregoing, the determination of any or all of the following:

the number of shares of any series and the designation to distinguish the shares of such series from the shares of all other series;

the voting powers, if any, and whether such voting powers are full or limited in such series;

the redemption provisions, if any, applicable to such series, including the redemption price or prices to be paid;

whether dividends, if any, will be cumulative or noncumulative, the dividend rate of such series, and the dates and preferences of dividends on such series;

the rights of such series upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Corporation;

the provisions, if any, pursuant to which the shares of such series are convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock, or any other security, of the Corporation or any other corporation or other entity, and the rates or other determinants of conversion or exchange applicable thereto;

the right, if any, to subscribe for or to purchase any securities of the Corporation or any other corporation or other entity;

the provisions, if any, of a sinking fund applicable to such series; and

any other relative, participating, optional, or other special powers, preferences or rights and qualifications, limitations, or restrictions thereof;

all as may be determined from time to time by the Board and stated or expressed in the resolution or resolutions providing for the issuance of such Preferred Stock (collectively, a “Preferred Stock Designation”).

The powers, designations and preferences and the relative, participating, optional and other special rights of the shares of Series A-1 Cumulative Convertible Preferred Stock of the Corporation, and the qualifications, limitations and restrictions thereof, are attached hereto as Annex A and incorporated herein by reference.

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The powers, designations and preferences and the relative, participating, optional and other special rights of the shares of Series A-2 Cumulative Convertible Preferred Stock of the Corporation, and the qualifications, limitations and restrictions thereof, are attached hereto as Annex B and incorporated herein by reference.

The powers, designations and preferences and the relative, participating, optional and other special rights of the shares of Series A-4 Cumulative Convertible Preferred Stock of the Corporation, and the qualifications, limitations and restrictions thereof, are attached hereto as Annex C and incorporated herein by reference.

The powers, designations and preferences and the relative, participating, optional and other special rights of the shares of Series B-2 Senior Cumulative Convertible Preferred Stock of the Corporation, and the qualifications, limitations and restrictions thereof, are attached hereto as Annex D and incorporated herein by reference.

Section 4.3 Common Stock. Subject to the rights of the holders of any series of Preferred Stock, the holders of Common Stock will be entitled to one vote on each matter submitted to a vote at a meeting of stockholders for each share of Common Stock held of record by such holder as of the record date for such meeting.

ARTICLE V

The Board may make, amend, and repeal the Bylaws of the Corporation; provided, that nothing herein will limit the power of the stockholders of the Corporation to make, amend and repeal Bylaws. Any Bylaw made by the Board under the powers conferred hereby may be amended or repealed by the Board (except as specified in any such Bylaw so made or amended) or by the stockholders in the manner provided in the Bylaws of the Corporation. The Corporation may in its Bylaws confer powers upon the Board in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board by applicable law.

Subject to the rights of the holders of any series of Preferred Stock:

(a) any action required or permitted to be taken by the stockholders of the Corporation may be taken at a duly called annual or special meeting of stockholders of the Corporation or without a meeting by means of any consent in writing of such stockholders; and

(b) special meetings of stockholders of the Corporation may be called only (i) by the Chairman of the Board (the “Chairman”), (ii) by the Chief Executive Officer of the Corporation (the “Chief Executive Officer”), or (iii) by the Secretary of the Corporation (the “Secretary”) acting at the request of the Chairman, the Chief Executive Officer, a majority of the total number of Directors that the Corporation would have if there were no vacancies on the Board (the “Whole Board”), or stockholders of the Corporation holding at least a majority of voting power of the outstanding Voting Stock. For the purposes of this Amended and Restated Certificate of Incorporation, “Voting Stock” means stock of the Corporation of any class or series entitled to vote generally in the election of Directors.

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At any annual meeting or special meeting of stockholders of the Corporation, only such business will be conducted or considered as has been brought before such meeting in the manner provided in the Bylaws of the Corporation.

ARTICLE VI

Section 6.1 Number, Election, and Terms of Directors. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect additional Directors under circumstances specified in a Preferred Stock Designation, the number of the Directors of the Corporation will not be less than one nor more than nine and will be fixed from time to time by, or in the manner provided in, the Bylaws of the Corporation. Subject to adjustment per the Bylaws, the number of Directors as of the date of this Amended and Restated Certificate of Incorporation is fixed at nine. At each annual meeting of the stockholders of the Corporation, the successors to the Directors whose term expires at that meeting will be elected by plurality vote of all votes cast at such meeting to hold office for a term expiring at the annual meeting of stockholders held in the year following the year of their election and until their successors are elected and qualified. Election of Directors of the Corporation need not be by written ballot unless requested by the presiding officer or by the holders of a majority of the Voting Stock present in person or represented by proxy at a meeting of the stockholders at which Directors are to be elected. If authorized by the Board, such requirement of a written ballot shall be satisfied by a ballot submitted by electronic transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder or proxy holder.

Section 6.2 Newly Created Directorships and Vacancies. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect additional Directors under circumstances specified in a Preferred Stock Designation, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board resulting from death, resignation, disqualification, removal, or other cause will be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board, or by a sole remaining Director. Any Director elected in accordance with the preceding sentence will hold office for the remainder of the full term of the Director whose seat is being filled and until such Director’s successor has been elected and qualified. No decrease in the number of Directors constituting the Board may shorten the term of any incumbent Director.

To the full extent permitted by the DGCL and any other applicable law currently or hereafter in effect, no Director of the Corporation will be personally liable to the Corporation or its stockholders for or with respect to any breach of fiduciary duty or other act or omission as a Director of the Corporation. No repeal or modification of this Article VI will adversely affect the protection of any Director of the Corporation provided hereby in relation to any breach of fiduciary duty or other act or omission as a Director of the Corporation occurring prior to the effectiveness of such repeal or modification.

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ARTICLE VII

Section 7.1 Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise subject to or involved in any claim, demand, action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another Corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (an “Indemnitee”), whether the basis of such Proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified by the Corporation to the fullest extent permitted or required by the DGCL and any other applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith (“Indemnifiable Losses”); provided, however, that, except as provided in Section 7.4 of this Article VII with respect to Proceedings to enforce rights to indemnification, the Corporation shall indemnify any such Indemnitee pursuant to this Section 7.1 in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board.

Section 7.2 Right to Advancement of Expenses. The right to indemnification conferred in Section 7.1 of this Article VII shall include the right to advancement by the Corporation of any and all expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending any such Proceeding in advance of its final disposition (an “Advancement of Expenses”); provided, however, that, if the DGCL so requires, an Advancement of Expenses incurred by an Indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such Indemnitee, including without limitation service to an employee benefit plan) shall be made pursuant to this Section 7.2 only upon delivery to the Corporation of an undertaking (an “Undertaking”), by or on behalf of such Indemnitee, to repay, without interest, all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “Final Adjudication”) that such Indemnitee is not entitled to be indemnified for such expenses under this Section 7.2. An Indemnitee’s right to an Advancement of Expenses pursuant to this Section 7.2 is not subject to the satisfaction of any standard of conduct and is not conditioned upon any prior determination that Indemnitee is entitled to indemnification under Section 7.1 of this Article VII with respect to the related Proceeding or the absence of any prior determination to the contrary.

Section 7.3 Contract Rights. The rights to indemnification and to the Advancement of Expenses conferred in Sections 7.1 and 7.2 of this Article VII shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.

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Section 7.4 Right of Indemnitee to Bring Suit. If a claim under Section 7.1 or Section 7.2 of this Article VII is not paid in full by the Corporation within 60 calendar days after a written claim has been received by the Corporation, except in the case of a claim for an Advancement of Expenses, in which case the applicable period shall be 20 calendar days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to the fullest extent permitted or required by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader reimbursements of prosecution or defense expenses than such law permitted the Corporation to provide prior to such amendment), to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an Advancement of Expenses) it shall be a defense that, and (ii) any suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Corporation shall be entitled to recover such expenses, without interest, upon a Final Adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its Board of Directors or a committee thereof, its stockholders or independent legal counsel) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Board of Directors or a committee thereof, its stockholders or independent legal counsel) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by an Indemnitee to enforce a right to indemnification or to an Advancement of Expenses hereunder, or brought by the Corporation to recover an Advancement of Expenses hereunder pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such Advancement of Expenses, shall be on the Corporation.

Section 7.5 Non-Exclusivity of Rights. The rights to indemnification and to the Advancement of Expenses conferred in this Article VII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, By-laws, agreement, vote of stockholders or disinterested directors or otherwise. Nothing contained in this Article VII shall limit or otherwise affect any such other right or the Corporation’s power to confer any such other right.

Section 7.6 Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

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Section 7.7 No Duplication of Payments. The Corporation shall not be liable under this Article VII to make any payment to an Indemnitee in respect of any Indemnifiable Losses to the extent that the Indemnitee has otherwise actually received payment (net of any expenses incurred in connection therewith and any repayment by the Indemnitee made with respect thereto) under any insurance policy or from any other source in respect of such Indemnifiable Losses.

ARTICLE VIII

From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Amended and Restated Certificate of Incorporation are granted subject to the provisions of this Article VIII.

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IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Incorporation this 4th day of May, 2018.

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

By: James P. Prenetta, Jr._______________

Name: James P. Prenetta, Jr.

Title: Executive Vice President and General Counsel

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Annex A

Certificate of Rights and Preferences of

 Series A-1 Cumulative Convertible Preferred Stock

1.Number. The number of shares constituting the Series A-1 Cumulative Convertible Preferred Stock shall be three thousand eight hundred seventy-five (3,875).

2.Definitions. Unless the context otherwise requires, when used herein the following terms shall have the meaning indicated.

“Acquiring Person” is defined in Section 6(G).

“AMEX” means the American Stock Exchange, provided, however, that if the American Stock Exchange is not then the principal U.S. trading market for the Common Stock, then “AMEX” shall be deemed to mean the principal U.S. national securities exchange (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on which the Common Stock is then traded, or if such Common Stock is not then listed or admitted to trading on any national securities exchange but is designated as a Nasdaq Capital Market Security by the National Association of Securities Dealers, Inc. (“NASD”), then such market system, or if such Common Stock is not listed or quoted on any of the foregoing, then the OTC Bulletin Board.

“Board” means the Board of Directors of the Company.

“Business Day” means any day on which the Common Stock may be traded on the AMEX, or, if not admitted for trading on the AMEX, any day other than a Saturday, Sunday or holiday on which banks in New York City are required or permitted to be closed.

“Call Notice” is defined in Section 6(C).

“Capital Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated) of capital or capital stock of such Person and (ii) with respect to any Person that is not a corporation, any and all partnership, limited partnership, limited liability company or other equity interests of such Person.

“Certificate” means this Certificate of Rights and Preferences of the Series A-1 Cumulative Convertible Preferred Stock.

“Certificate of Incorporation” means the Certificate of Incorporation of the Company, as amended.

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“Change of Control” is defined in Section 6G.

“Common Stock” means the Company's common stock, par value $0.01 per share, and any Capital Stock for or into which such Common Stock hereafter is exchanged, converted, reclassified or recapitalized by the Company or pursuant to a Change of Control to which the Company is a party (or, at the election of the Acquiring Person, the capital stock of any Acquiring Person from and after the consummation of a Change of Control).

“Common Stock Equivalents” means (without duplication with any other Common Stock or common stock, as the case may be, or Common Stock Equivalents) rights, warrants, options, convertible securities or exchangeable securities, exercisable for or convertible or exchangeable into, directly or indirectly, Common Stock, or common stock, as the case may be, whether at the time of issuance or upon the passage of time or the occurrence of some future event.

“Company” means Fusion Telecommunications International, Inc., a Delaware corporation (or, if, as, and when applicable, any Acquiring Person from and after the consummation of a Change of Control).

“Company Conversion” is defined in Section 6(B)(i).

“Company Conversion Notice” is defined in Section 6(B)(i).

“Conversion Notice” is defined in Section 6(A)(i).

“Conversion Price” means $1.67, subject to adjustment for stock splits, recombinations, stock dividends and the like as provided herein.

“Conversion Stock Amount” is defined in Section 6(A)(ii).

“Daily Market Price” means, on any date, the amount per share of the Common Stock equal to (i) the daily volume-weighted average price on the AMEX or, if no sale takes place on such date, the closing bid prices on the AMEX thereof on such date, in each case as reported by Bloomberg, L.P. (or by such other Person as the Company may select), or (ii) if such Common Stock is not then listed or admitted to trading on the AMEX, the higher of (x) the book value per share thereof as determined by any firm of independent public accountants of recognized standing selected by the Board as of the last calendar day of the most recent month ending before the date as of which the determination is to be made or (y) the fair value per share thereof determined in good faith by an independent, nationally recognized appraisal firm selected by the Board, subject to adjustment for stock splits, recombinations, stock dividends and the like.

“Dividend Payment Date” is defined in Section 3(A).

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“Dividend Period” is defined in Section 3(A).

“Dividend Rate” means a rate equal to the Stated Value multiplied by eight percent (8%) per annum.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Holder” shall mean a holder of the Series A-1 Preferred Stock.

“Issue Date” means with respect to shares of the Series A-1 Preferred Stock the initial date of issuance of any of such shares of the Series A-1 Preferred Stock.

 “Issue Date Price” means the price of Issuer’s Common Stock determined on the date of the initial issuance of the shares of the Series A-1 Preferred Stock.

“Junior Securities” means Capital Stock that, with respect to dividends and distributions upon Liquidation, ranks junior to the Series A Preferred Shares, including but not limited to Common Stock and any other class or series of Capital Stock issued by the Company or any Subsidiary of the Company on or after the Issue Date, but excluding any Parity Securities and Senior Securities issued (i) to Holders of the Series A-1 Preferred Stock, (ii) with the approval of the Holders of a Majority of the Series A-1 Preferred Stock or (iii) upon the conversion, redemption or exercise of securities described in clause (i) or (ii) in accordance with the terms thereof.

“Liquidation” means the voluntary or involuntary liquidation, dissolution or winding up of the Company; provided, however, that a consolidation, merger or share exchange shall not be deemed a Liquidation, nor shall a sale, assignment, conveyance, transfer, lease or other disposition by the Company of all or substantially all of its assets, which does not involve a substantial distribution by the Company of cash or other property to the holders of Common Stock, be deemed to be a Liquidation.

“Liquidation Preference” is defined in Section 4.

“Majority of the Series A-1 Preferred Stock” means more than fifty percent (50%) of the then outstanding shares of the Series A-1 Preferred Stock.

“Other Securities” means any stock (other than Common Stock) and other securities of the Company or any other Person which the Holders of the Series A-1 Preferred Stock at any time shall be entitled to receive, or shall have received, upon conversion or redemption of the Series A-1 Preferred Stock in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or in replacement of Common Stock or Other Securities.

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“Parity Securities” means any class or series of Capital Stock that, with respect to dividends or distributions upon Liquidation, is pari passu with all Series A-1 Preferred Shares. For the avoidance of doubt, each series of Series A Preferred Shares is a Parity Security with respect to each other series of Series A Preferred Shares.

“Person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.

“Prevailing Price” means, with respect to any reference date, the average of the Daily Market Prices of the Common Stock for the thirty (30) Business Days ending on and including the third (3rd) Business Day before such reference date.

“Qualified Public Company” means a corporation meeting all of the following criteria: (i) the common stock of the corporation is registered under Section 12 of the Securities Exchange Act of 1934, as amended, (ii) the Prevailing Price shall be an amount greater than one dollar ($1) per share of Common Stock, and (iii) the average daily reported volume of trading in such common stock on all national securities exchanges, markets, services, and/or reported through the AMEX as reported by Bloomberg L.P. (or by such other Person as the Company may select) during the ninety (90) calendar days preceding the reference date exceeds twenty thousand (20,000) shares of Common Stock.

“Registered Common Stock” means Common Stock the resale of which has been registered under the Securities Act and is freely tradable upon delivery.

“Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“Senior Securities” means any class or series of Capital Stock that, with respect to dividends or distributions upon Liquidation, ranks senior to the Series A-1 Preferred Stock.

“Series A-1 Preferred Stock” means the Series A-1 Cumulative Convertible Preferred Stock of the Company or any successor.

“Stated Value” is an amount equal to one thousand dollars ($1,000) per share of the Series A-1 Preferred Stock plus any accrued and unpaid dividends, whether or not declared and whether or not earnings are available in respect of such dividends. In the event the Company shall declare a distribution on the Common Stock payable in securities or property other than cash, the value of such securities or property will be the fair market value. Any securities shall be valued as follows: (i) if traded on a national securities exchange or through a Nasdaq market, the value shall be deemed to be the average of the closing prices of the securities on such exchange or system over the thirty (30) Business Day period ending three (3) calendar days prior to such declaration; (ii) if actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the thirty (30) Business Day period ending three (3) calendar days prior to such declaration; and (iii) if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board.

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“Subsidiary” of a Person means (i) a corporation, a majority of whose stock with voting power, under ordinary circumstances, to elect directors is at the time of determination, directly or indirectly, owned by such Person or by one or more Subsidiaries of such Person, or (ii) any other entity (other than a corporation) in which such Person or one or more Subsidiaries of such Person, directly or indirectly, at the date of determination thereof has a least a majority ownership interest.

The foregoing definitions will be equally applicable to both the singular and plural forms of the defined terms.

3.Dividends and Distributions.

(A)Holders shall be entitled to receive out of the assets of the Company legally available for that purpose, dividends at the Dividend Rate to be paid in accordance with the terms of this Section 3. Such dividends shall be fully cumulative from the Issue Date, shall accumulate regardless of whether the Company earns a profit and shall be payable in arrears, when and as declared by the Board (or a duly appointed committee of directors), on January 1 of each year, (each such date being herein referred to as a “Dividend Payment Date”), commencing on January 1, 2008. The period from the Issue Date to January 1, 2008, and each annual period between consecutive Dividend Payment Dates shall hereinafter be referred to as a “Dividend Period.” The dividend for any Dividend Period for any share of Series A-1 Preferred Stock that is not outstanding on every calendar day of the Dividend Period shall be prorated based on the number of calendar days such share was outstanding during the period. Each such dividend shall be paid to the Holders of record of the Series A-1 Preferred Stock as their names appear on the share register of the Company on the Dividend Payment Date. Dividends on account of arrears for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date (including, without limitation, for purposes of computing the Stated Value of any shares of Series A-1 Preferred Stock in connection with the conversion or redemption thereof or any Liquidation of the Company), to Holders of record on a date designated by the Board, not exceeding thirty (30) calendar days preceding the payment date thereof, as may be fixed by the Board. For purposes of determining the amount of dividends accrued as of the first Dividend Payment Date and as of any date that is not a Dividend Payment Date, such amount shall be calculated on the basis of the Dividend Rate for the actual number of calendar days elapsed from and excluding the Issue Date (in case of the first Dividend Payment Date and any date prior to the first Dividend Payment Date) or the last preceding Dividend Payment Date (in case of any other date) to the date as of which such determination is to be made, based on a three hundred sixty-five (365) day year.

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(B)Subject to the following proviso, dividends payable on the Series A-1 Preferred Stock shall be paid, at the option of the Holder, in cash or by the issuance of Common Stock provided, however, that the Company may elect to make any payment of dividends by the issuance of Registered Common Stock on any Dividend Payment Date with 10 days’ prior written notice to the Holder, if the Company is a Qualified Public Company on the Dividend Payment Date. The number of shares of Registered Common Stock to be issued shall be determined by dividing the cash amount of the dividend otherwise payable by the Prevailing Price calculated as of such Dividend Payment Date, provided, however, except at the Company’s option, in no event shall such price be less than the price set on the Issue Date; provided, further, if the Company shall combine, subdivide or reclassify its Common Stock, or shall declare any dividend payable in shares of its Common Stock, or shall take any other action of a similar nature affecting such shares, the number of shares of Registered Common Stock to be issued shall be adjusted to the extent appropriate to reflect such event, including appropriate adjustments to account for any such event that occurs during the period used for calculating such Prevailing Price. The number of shares of Registered Common Stock to be issued as a dividend shall be rounded to the nearest whole share after aggregating all shares of Series A-1 Preferred Stock owned by a Holder.

(C) If, on any Dividend Payment Date, the Company fails to pay dividends, then until the dividends that were scheduled to be paid on such date are paid, such dividends shall cumulate, but shall not accrue additional dividends. Unpaid dividends for any period less than a full Dividend Period shall cumulate on a day to day basis and shall be computed on the basis of a three hundred sixty-five (365) day year.

(D)So long as any shares of Series A-1 Preferred Stock shall be outstanding, (i) the Company, except for the payment of dividends or other cash distributions under a joint venture agreement or other strategic alliance with respect to which the Company and/or a Subsidiary is a party, shall not and shall not allow its Subsidiaries to declare or pay any dividend whatsoever, whether in cash, property or otherwise, set aside any cash or property for the payment of dividends, or make any other distribution on any Parity Securities, except for dividends paid to the Company or any of its wholly-owned Subsidiaries and dividends paid on the Series A Preferred Shares or (ii) the Company shall not and shall not allow its Subsidiaries to repurchase, redeem or otherwise acquire for value or set aside any cash or property for the repurchase or redemption of any Junior Securities or Parity Securities, unless in each such case all dividends to which the Holders of the Series A-1 Preferred Stock shall have been entitled to receive for all previous Dividend Periods shall have been paid.

(E)Subject to the immediately following sentence, the Company shall be entitled to deduct and withhold from any dividend on the Series A-1 Preferred Stock such amounts as the Company is required to deduct and withhold with respect to such dividend under the Internal Revenue Code of 1986, as amended, or any other provision of state, local or foreign tax law. In the event the Company or the Holder elects, pursuant to Section 3(B), to pay or be paid, as the case may be, a dividend on the Series A-1 Preferred Stock by issuing Registered Common Stock or Common Stock, as the case may be, to a Holder, (i) the Company shall deliver the number of shares of Registered Common Stock or Common Stock, as the case may be, that would be delivered to a Holder pursuant to Section 3(B) in the absence of any requirement under applicable law to deduct and withhold any amount with respect to such dividend and (ii) on the Business Day following the Dividend Payment Date, Holder shall transfer to the Company by wire transfer of immediately available funds an amount equal to what the Company is required under applicable law to deduct and withhold with respect to such dividend. For purposes of determining the withholding amount, the dividend value shall be determined under Section 3(B) hereof.

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4.Liquidation Preference. In the event of any Liquidation, after payment or provision for payment by the Company of the debts and other liabilities of the Company and the liquidation preference of any Senior Securities that rank senior to the Series A-1 Preferred Stock with respect to distributions upon Liquidation, each Holder shall be entitled to receive an amount in cash for each share of the then outstanding Series A-1 Preferred Stock held by such Holder equal to the greater of (a) the Stated Value per share to and including the date full payment is tendered to the Holders with respect to such Liquidation, and (b) the amount the Holders would have received if the Holders had converted all outstanding shares of Series A-1 Preferred Stock into Common Stock in accordance with the provisions of Section 6(A) hereof, in each case as of the Business Day immediately preceding the date of such Liquidation (the “Liquidation Preference”), before any distribution shall be made to the holders of any Junior Securities (and any Senior Securities or Parity Securities that, with respect to distributions upon Liquidation, rank junior to the Series A-1 Preferred Stock) upon the Liquidation of the Company. In case the assets of the Company available for payment to the Holders are insufficient to pay the full Liquidation Preference on all outstanding shares of the Series A-1 Preferred Stock and all outstanding shares of Parity Securities and Senior Securities that, with respect to distributions upon Liquidation, are pari passu with the Series A-1 Preferred Stock in the amounts to which the holders of such shares are entitled, then the entire assets of the Company available for payment to the Holders and to the holders of such Parity Securities and Senior Securities shall be distributed ratably among the Holders of the Series A-1 Preferred Stock and the holders of such Parity Securities and Senior Securities, based upon the aggregate amount due on such shares upon Liquidation. Written notice of any Liquidation of the Company, stating a payment date and the place where the distributable amounts shall be payable, shall be given by facsimile and overnight delivery not less than ten (10) calendar days prior to the payment date stated therein, to the Holders of record of the Series A-1 Preferred Stock, if any, at their respective addresses as the same shall appear on the books of the Company.

5.Voting Rights. The Holders shall have the following voting rights with respect to the Series A-1 Preferred Stock:

(A)Each share of Series A-1 Preferred Stock shall entitle the holder thereof to the voting rights specified in Section 5(B) and no other voting rights except as required by law.

(B)The consent of the Holders of at least a Majority of the Series A-1 Preferred Stock, voting separately as a single class with one vote per share, in person or by proxy, either in writing without a meeting or at an annual or a special meeting of such Holders called for the purpose, shall be necessary to:

(i)

amend, alter or repeal, by way of merger or otherwise, any of the provisions of the Certificate of Incorporation, including this Certificate, or Bylaws of the Company so as to:

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A.

change any of the rights, preferences or privileges of Holders. Without limiting the generality of the preceding sentence, such change includes any action that would:

1.

reduce the Dividend Rate on the Series A-1 Preferred Stock, or make such dividends non-cumulative, or defer the date from which dividends will accrue, or cancel accrued and unpaid dividends, or change the relative seniority rights of the holders of Series A-1 Preferred Stock as to the payment of dividends in relation to the holders of any other capital stock of the Company;

2.

reduce the amount payable to the holders of the Series A-1 Preferred Stock upon the voluntary or involuntary liquidation, dissolution, or winding up of the Company, or change the relative seniority of the liquidation preferences of the holders of the Series A-1 Preferred Stock to the rights upon liquidation of the holders of any other capital stock of the Company;

3.

make the Series A-1 Preferred Stock redeemable at the option of the Company other than in accordance with the terms of this Certificate.

B.

authorize, create or issue any shares of Parity Securities or Senior Securities (or amend the provisions of any existing class of Capital Stock to make such class of Capital Stock a class of Parity Securities or Senior Securities).

(ii)

permit any Subsidiary of the Company to issue or sell, or obligate itself to issue or sell, except to the Company or any wholly owned Subsidiary, any security of such Subsidiaries or all or substantially all of the assets of any Subsidiary other than sales of assets on an arm's-length, fair market value basis; or

(iii)

increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series A-1 Preferred Stock or amend any provisions of any Capital Stock so as to make such Capital Stock redeemable by the Company.

6.Conversion and Call Rights.

(A)

Procedure for Conversion.

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(i)

General. Shares of Series A-1 Preferred Stock are convertible at the option of the Holder thereof at any time, from time to time, in whole or in part, as follows:

A.

The conversion of shares of Series A-1 Preferred Stock may be effected by delivering a duly executed written Series A-1 Preferred Stock Conversion Notice, in form and substance as provided by the Company (the “Conversion Notice”), to the Company, at its principal office specifying the number of shares of Series A-1 Preferred Stock to be converted and surrendering the certificate representing the shares of Series A-1 Preferred Stock to be converted.

B.

As soon as practicable after each such conversion of Series A-1 Preferred Stock, but not later than five (5) Business Days from the receipt of the Conversion Notice, the Company shall deliver to such Holder at the address specified in the Conversion Notice the Conversion Stock Amount of duly authorized, validly issued, fully paid and nonassessable shares of Registered Common Stock (or Other Securities or, with such Holder's express written consent, unregistered Common Stock).

C.

Notwithstanding anything in the Certificate to the contrary, if such Holder does not consent to accept unregistered Common Stock, then such Holder’s Notice of Conversion shall be deemed, without any further action, to have been withdrawn. Moreover, in no event, shall any conversion under the Certificate be settled in cash.

(ii)

Conversion for stock. Subject to the previous sub-paragraph, such shares of stock shall be converted into that number of shares of Registered Common Stock (or at the sole election of the Holder, unregistered Common Stock) equal to (A) the aggregate Stated Value of such shares divided by (B) the Conversion Price (the “Conversion Stock Amount”). It shall be a condition of either the Company or the converting Holder's obligation to close the conversion of the Series A-1 Preferred Stock that such conversion be in accordance with applicable federal and state securities laws and any applicable waiting period (and any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired or been terminated without litigation having been commenced that is continuing, or threat of litigation having been made that remains unresolved, by the United States Department of Justice or the United States Federal Trade Commission.

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(iii)

Holder of record. Each conversion of Series A-1 Preferred Stock shall be deemed to have been effected immediately before the close of business on the Business Day on which the Conversion Notice is delivered, and at such time the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock (or Other Securities) shall be issuable upon such conversion as provided herein shall be deemed to have become the holder or holders of record thereof.

(iv)

Partial conversion. If any conversion is for only part of the shares represented by the certificate surrendered, the Company shall send a new Series A-1 Preferred Stock certificate of like tenor via certified or registered mail RRR or reputable overnight courier to such address specified by the Holder, calling in the aggregate on the face or faces thereof for the number of shares of Series A-1 Preferred Stock which have not been converted.

(B)

Procedure for Conversion by the Company.

(i)

Conversion by the Company. Shares of Series A-1 Preferred Stock may be converted by the Company (a “Company Conversion”) in whole or in part for Common Stock as follows

A.

From and after the first anniversary of the Closing Date, the Company may require the Holders to convert, on a pro rata basis as among the holders of Series A-1 Preferred Shares, shares of Series A-1 Preferred Shares held by such holders on any of March 31, June 30, September 30 and December 31 of each year by delivering a conversion notice to the Holders, at least ten (10) days prior to such conversion and substantially in the form as provided by the Company (a “Company Conversion Notice”), provided that (x) the average of the Daily Market Prices of the Common Stock for the ninety (90) calendar days ended immediately prior to such Conversion Notice is an amount greater than two hundred twenty percent (220%) of the Conversion Price or (y) after the fifth anniversary of the Closing Date, the Prevailing Price shall be an amount greater than the Issue Date Price. The number of Series A Preferred Shares so converted under clause (x) may not exceed the number that would be converted for a quantity of shares of Common Stock greater than eight (8) times the average daily reported volume of trading in the Common Stock on all national securities exchanges, Nasdaq market, service, and/or reported through the AMEX as reported by Bloomberg L.P. (or by such other Person as the Company may select) during the ninety (90) calendar days ending one day prior to the Conversion Notice Date concerning a conversion under clause (x). The Conversion Price and the Conversion Stock Amount under clause (x) shall be determined in accordance with Section 6(A)(ii). The conversion price under clause (y) shall be the Prevailing Price, if the Prevailing Price is greater than the Conversion Price and shall be the Conversion Price if the Conversion Price is greater than the Prevailing Price. The Conversion Stock Amount under clause (y) shall be determined in accordance with Section 6(A)(ii), using the conversion price as determined in accordance with the immediately preceding sentence.

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(C)

Five Year Call Right. From and after the fifth anniversary of the date on which the Registration Requirement has been satisfied, the Company may from time-to-time issue a call notice to the holders of the Series A-1 Preferred Shares (the “Call Notice”). Such Call Notice, at the Company’s discretion, may be for all or a portion of the Series A-1 Preferred Shares. On or before the tenth (10th) Business Day following the date of the Call Notice, the holders of the Series A-1 Preferred Shares shall deliver to the Company, all, or, in the case of a Call Notice concerning a portion of the Series A-1 Preferred Shares, on a pro rata basis as provided in the Call Notice, based on the number of shares of Series A-1 Preferred Shares held by each holder, Series A-1 Preferred Shares with an aggregate Stated Value equal to the amount designated in the Call Notice. The Company shall promptly thereafter pay, by wire transfer of immediately available funds, an amount to each such holder equal to the aggregate Stated Value of all such Series A-1 Preferred Shares delivered by such holder.

(D)

 The Company shall at all times reserve for issuance such number of its shares of Common Stock as shall be required hereunder.

(E)

The Company will use its best efforts to procure, at its sole expense, the listing of the Common Stock issuable upon conversion or redemption of the Series A-1 Preferred Stock and shares issuable as dividends hereunder, subject to issuance or notice of issuance, on all stock exchanges, markets, and quotation service on which the Common Stock is then listed or quoted, no later than the date on which such Series A-1 Preferred Stock is issued to the Holder and thereafter shall use its best efforts to prevent delisting or removal from quotation of such shares. The Company will pay any and all documentary stamp or similar issue or transfer taxes that may be payable in respect of the issuance or delivery of shares of Common Stock on conversion or redemption of shares of the Series A-1 Preferred Stock. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involving the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series A-1 Preferred Stock so converted or redeemed were registered, and no such issue and delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established, to the reasonable satisfaction of the Company, that such tax has been paid.

(F)

No fractional shares or scrip representing fractional shares shall be issued upon the conversion or redemption of the Series A-1 Preferred Stock. If any such conversion or redemption would otherwise require the issuance of a fractional share of Common Stock, an amount equal to such fraction multiplied by the current Daily Market Price per share of Common Stock on the date of conversion or redemption shall be paid to the Holder in cash by the Company. If more than one share of Series A-1 Preferred Stock shall be surrendered for conversion or redemption at one time by or for the same Holder, the number of full shares of Common Stock issuable upon conversion or redemption thereof shall be computed on the basis of the aggregate number of shares of Series A-1 Preferred Stock so surrendered.

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(G)

Change of Control. In case the Company on or after the Issue Date is party to any (a) acquisition of the Company by means of merger or other form of corporate reorganization in which outstanding shares of the Company are exchanged for securities or other consideration issued, or caused to be issued, by the Acquiring Person, herein defined, or its Parent, herein defined, Subsidiary, herein defined, or affiliate, (b) a sale of all or substantially all of the assets of the Company (on a consolidated basis) in a single transaction or series of related transactions, (c) any other transaction or series of related transactions by the Company or relating to the Common Stock (including without limitation, any stock purchase or tender or exchange offer) in which the power to cast the majority of the eligible votes at a meeting of the Company's stockholders at which directors are elected is transferred to a single entity or group acting in concert, or (d) a capital reorganization or reclassification of the Common Stock or other securities (other than a reorganization or reclassification in which the Common Stock or other securities are not converted into or exchanged for cash or other property, and, immediately after consummation of such transaction, the stockholders of the Company immediately prior to such transaction own the Common Stock, other securities or other voting stock of the Company in substantially the same proportions relative to each other as such stockholders owned immediately prior to such transaction), then, and in the case of each such transaction (each of which is referred to herein as “Change in Control”), proper provision shall be made so that, at the option of the Acquiring Person and upon fifteen days’ notice to the Company and the Holder prior to the consummation of the Change of Control, either (i) the Acquiring Person expressly agrees to assume all of the Company’s obligations under the Series A-1 Preferred Stock or (ii) the Holder has fifteen (15) days in which to exercise its conversion rights under the Series A-1 Preferred Stock. If Holder does not exercise its rights during such fifteen (15) day period, all rights under the Series A-1 Preferred Stock shall terminate and the Series A-1 Preferred Stock shall be deemed cancelled. The Company, to the extent feasible, shall provide the Holder with thirty (30) days’ notice of the consummation of any Change of Control. Subject to the foregoing, on or before the closing date under the agreement entered into with an Acquiring Person resulting in a Change in Control, the Company, if applicable, shall deliver to the Holder written notice that the Acquiring Person has assumed such obligations. “Acquiring Person” means, in connection with any Change in Control, (i) the continuing or surviving corporation of a consolidation or merger with the Company (if other than the Company), (ii) the transferee of all or substantially all of the properties or assets of the Company, (iii) the corporation consolidating with or merging into the Company in a consolidation or merger in connection with which the Common Stock is changed into or exchanged for stock or other securities of any other Person or cash or any other property, (iv) the entity or group (other than Holder or any of its affiliates) acting in concert acquiring or possessing the power to cast the majority of the eligible votes at a meeting of the Company 's stockholders at which directors are elected, or, (v) in the case of a capital reorganization or reclassification, the Company, or (vi) at the Holder's election, any Person that (A) controls the Acquiring Person directly or indirectly through one or more intermediaries, (B) is required to include the Acquiring Person in the consolidated financial statements contained in such Parent's Annual Report on Form 10-K (if such Person is required to file such a report) or would be required to so include the Acquiring Person in such Person's consolidated financial statements if they were prepared in accordance with U.S. GAAP and (C) is not itself included in the consolidated financial statements of any other Person (other than its consolidated subsidiaries). “Parent” shall mean any corporation (other than the Acquiring Person) in an unbroken chain of corporations ending with the Acquiring Person, provided each corporation in the unbroken chain (other than the Acquiring Person) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. “Subsidiary” shall mean any corporation at least 50% of whose outstanding voting stock shall at the time be owned directly or indirectly by the Acquiring Person or by one or more Subsidiaries.

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(H)

Adjustments.

(i)

If the Corporation, at any time while the Series A-1 Preferred Stock is outstanding: (a) shall pay a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation pursuant to this Series A-1 Preferred Stock), (b) subdivide outstanding shares of Common Stock into a larger number of shares, (c) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (d) issue by reclassification of shares of the Common Stock any shares of Capital Stock of the Corporation, then the Preferred Conversion Price shall be adjusted by multiplying the then Preferred Conversion Price by a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to the event and the denominator of which shall be the number of shares of Common Stock outstanding immediately following the event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.

(ii)

Calculations. All calculations under this Section 6(H) shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation, and the description of any such shares of Common Stock shall be considered on issue or sale of Common Stock. For purposes of this Section 6(H), the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) actually issued and outstanding.

7.Status of Converted and Redeemed Shares; Limitations on Series A-1 Preferred Stock. The Company shall return to the status of unauthorized and undesignated shares of Series A-1 Preferred Stock each share of Series A-1 Preferred Stock which shall be converted, redeemed or for any other reason acquired by the Company, and such shares thereafter may have such characteristics and designations as the Board may determine. Without the consent of Majority of the Series A-1 Preferred Stock, the Company will not issue any further shares of Series A-1 Preferred Stock.

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Annex B

Certificate of Rights and Preferences of

 Series A-2 Cumulative Convertible Preferred Stock

1.Number. The number of shares constituting the Series A-2 Cumulative Convertible Preferred Stock shall be three thousand three hundred seventy-five (3,375).

2.Definitions. Unless the context otherwise requires, when used herein the following terms shall have the meaning indicated.

“Acquiring Person” is defined in 6(G).

“AMEX” means the American Stock Exchange, provided, however, that if the American Stock Exchange is not then the principal U.S. trading market for the Common Stock, then “AMEX” shall be deemed to mean the principal U.S. national securities exchange (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on which the Common Stock is then traded, or if such Common Stock is not then listed or admitted to trading on any national securities exchange but is designated as a Nasdaq Capital Market Security by the National Association of Securities Dealers, Inc. (“NASD”), then such market system, or if such Common Stock is not listed or quoted on any of the foregoing, then the OTC Bulletin Board.

“Board” means the Board of Directors of the Company.

“Business Day” means any day on which the Common Stock may be traded on the AMEX, or, if not admitted for trading on the AMEX, any day other than a Saturday, Sunday or holiday on which banks in New York City are required or permitted to be closed.

“Call Notice” is defined in 6(C).

“Capital Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated) of capital or capital stock of such Person and (ii) with respect to any Person that is not a corporation, any and all partnership, limited partnership, limited liability company or other equity interests of such Person.

“Certificate” means this Certificate of Rights and Preferences of the Series A-2 Cumulative Convertible Preferred Stock.

“Certificate of Incorporation” means the Certificate of Incorporation of the Company, as amended.

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“Change of Control” is defined in 6G.

“Common Stock” means the Company's common stock, par value $0.01 per share, and any Capital Stock for or into which such Common Stock hereafter is exchanged, converted, reclassified or recapitalized by the Company or pursuant to a Change of Control to which the Company is a party (or, at the election of the Acquiring Person, the capital stock of any Acquiring Person from and after the consummation of a Change of Control).

“Common Stock Equivalents” means (without duplication with any other Common Stock or common stock, as the case may be, or Common Stock Equivalents) rights, warrants, options, convertible securities or exchangeable securities, exercisable for or convertible or exchangeable into, directly or indirectly, Common Stock, or common stock, as the case may be, whether at the time of issuance or upon the passage of time or the occurrence of some future event.

“Company” means Fusion Telecommunications International, Inc., a Delaware corporation (or, if, as, and when applicable, any Acquiring Person from and after the consummation of a Change of Control).

“Company Conversion” is defined in Section 6(B)(i).

“Company Conversion Notice” is defined in Section 6(B)(i).

“Conversion Notice” is defined in Section 6(A)(i).

“Conversion Price” means $.83, subject to adjustment for stock splits, recombinations, stock dividends and the like as provided herein.

“Conversion Stock Amount” is defined in Section 6(A)(ii).

“Daily Market Price” means, on any date, the amount per share of the Common Stock equal to (i) the daily volume-weighted average price on the AMEX or, if no sale takes place on such date, the closing bid prices on the AMEX thereof on such date, in each case as reported by Bloomberg, L.P. (or by such other Person as the Company may select), or (ii) if such Common Stock is not then listed or admitted to trading on the AMEX, the higher of (x) the book value per share thereof as determined by any firm of independent public accountants of recognized standing selected by the Board as of the last calendar day of the most recent month ending before the date as of which the determination is to be made or (y) the fair value per share thereof determined in good faith by an independent, nationally recognized appraisal firm selected by the Board, subject to adjustment for stock splits, recombinations, stock dividends and the like.

“Dividend Payment Date” is defined in Section 3(A).

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“Dividend Period” is defined in Section 3(A).

“Dividend Rate” means a rate equal to the Stated Value multiplied by eight percent (8%) per annum.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Holder” shall mean a holder of the Series A-2 Preferred Stock.

“Issue Date” means with respect to shares of the Series A-2 Preferred Stock the initial date of issuance of any of such shares of the Series A-2 Preferred Stock.

 “Issue Date Price” means the price of Issuer’s Common Stock determined on the date of the initial issuance of the shares of the Series A-2 Preferred Stock.

“Junior Securities” means Capital Stock that, with respect to dividends and distributions upon Liquidation, ranks junior to the Series A Preferred Shares, including but not limited to Common Stock and any other class or series of Capital Stock issued by the Company or any Subsidiary of the Company on or after the Issue Date, but excluding any Parity Securities and Senior Securities issued (i) to Holders of the Series A-2 Preferred Stock, (ii) with the approval of the Holders of a Majority of the Series A-2 Preferred Stock or (iii) upon the conversion, redemption or exercise of securities described in clause (i) or (ii) in accordance with the terms thereof.

“Liquidation” means the voluntary or involuntary liquidation, dissolution or winding up of the Company; provided, however, that a consolidation, merger or share exchange shall not be deemed a Liquidation, nor shall a sale, assignment, conveyance, transfer, lease or other disposition by the Company of all or substantially all of its assets, which does not involve a substantial distribution by the Company of cash or other property to the holders of Common Stock, be deemed to be a Liquidation.

“Liquidation Preference” is defined in Section 4.

“Majority of the Series A-2 Preferred Stock” means more than fifty percent (50%) of the then outstanding shares of the Series A-2 Preferred Stock.

“Other Securities” means any stock (other than Common Stock) and other securities of the Company or any other Person which the Holders of the Series A-2 Preferred Stock at any time shall be entitled to receive, or shall have received, upon conversion or redemption of the Series A-2 Preferred Stock in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or in replacement of Common Stock or Other Securities.

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“Parity Securities” means any class or series of Capital Stock that, with respect to dividends or distributions upon Liquidation, is pari passu with all Series A-2 Preferred Shares. For the avoidance of doubt, each series of Series A Preferred Shares is a Parity Security with respect to each other series of Series A Preferred Shares.

“Person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.

“Prevailing Price” means, with respect to any reference date, the average of the Daily Market Prices of the Common Stock for the thirty (30) Business Days ending on and including the third (3rd) Business Day before such reference date.

“Qualified Public Company” means a corporation meeting all of the following criteria: (i) the common stock of the corporation is registered under Section 12 of the Securities Exchange Act of 1934, as amended, (ii) the Prevailing Price shall be an amount greater than one dollar ($1) per share of Common Stock, and (iii) the average daily reported volume of trading in such common stock on all national securities exchanges, markets, services, and/or reported through the AMEX as reported by Bloomberg L.P. (or by such other Person as the Company may select) during the ninety (90) calendar days preceding the reference date exceeds twenty thousand (20,000) shares of Common Stock.

“Registered Common Stock” means Common Stock the resale of which has been registered under the Securities Act and is freely tradable upon delivery.

“Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“Senior Securities” means any class or series of Capital Stock that, with respect to dividends or distributions upon Liquidation, ranks senior to the Series A-2 Preferred Stock.

“Series A-2 Preferred Stock” means the Series A-2 Cumulative Convertible Preferred Stock of the Company or any successor.

“Stated Value” is an amount equal to one thousand dollars ($1,000) per share of the Series A-2 Preferred Stock plus any accrued and unpaid dividends, whether or not declared and whether or not earnings are available in respect of such dividends. In the event the Company shall declare a distribution on the Common Stock payable in securities or property other than cash, the value of such securities or property will be the fair market value. Any securities shall be valued as follows: (i) if traded on a national securities exchange or through a Nasdaq market, the value shall be deemed to be the average of the closing prices of the securities on such exchange or system over the thirty (30) Business Day period ending three (3) calendar days prior to such declaration; (ii) if actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the thirty (30) Business Day period ending three (3) calendar days prior to such declaration; and (iii) if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board.

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“Subsidiary” of a Person means (i) a corporation, a majority of whose stock with voting power, under ordinary circumstances, to elect directors is at the time of determination, directly or indirectly, owned by such Person or by one or more Subsidiaries of such Person, or (ii) any other entity (other than a corporation) in which such Person or one or more Subsidiaries of such Person, directly or indirectly, at the date of determination thereof has a least a majority ownership interest.

The foregoing definitions will be equally applicable to both the singular and plural forms of the defined terms.

3.Dividends and Distributions.

(A)Holders shall be entitled to receive out of the assets of the Company legally available for that purpose, dividends at the Dividend Rate to be paid in accordance with the terms of this Section 3. Such dividends shall be fully cumulative from the Issue Date, shall accumulate regardless of whether the Company earns a profit and shall be payable in arrears, when and as declared by the Board (or a duly appointed committee of directors), on January 1 of each year, (each such date being herein referred to as a “Dividend Payment Date”), commencing on January 1, 2008. The period from the Issue Date to January 1, 2008, and each annual period between consecutive Dividend Payment Dates shall hereinafter be referred to as a “Dividend Period.” The dividend for any Dividend Period for any share of Series A-2 Preferred Stock that is not outstanding on every calendar day of the Dividend Period shall be prorated based on the number of calendar days such share was outstanding during the period. Each such dividend shall be paid to the Holders of record of the Series A-2 Preferred Stock as their names appear on the share register of the Company on the Dividend Payment Date. Dividends on account of arrears for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date (including, without limitation, for purposes of computing the Stated Value of any shares of Series A-2 Preferred Stock in connection with the conversion or redemption thereof or any Liquidation of the Company), to Holders of record on a date designated by the Board, not exceeding thirty (30) calendar days preceding the payment date thereof, as may be fixed by the Board. For purposes of determining the amount of dividends accrued as of the first Dividend Payment Date and as of any date that is not a Dividend Payment Date, such amount shall be calculated on the basis of the Dividend Rate for the actual number of calendar days elapsed from and excluding the Issue Date (in case of the first Dividend Payment Date and any date prior to the first Dividend Payment Date) or the last preceding Dividend Payment Date (in case of any other date) to the date as of which such determination is to be made, based on a three hundred sixty-five (365) day year.

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(B)Subject to the following proviso, dividends payable on the Series A-2 Preferred Stock shall be paid, at the option of the Holder, in cash or by the issuance of Common Stock provided, however, that the Company may elect to make any payment of dividends by the issuance of Registered Common Stock on any Dividend Payment Date with 10 days’ prior written notice to the Holder, if the Company is a Qualified Public Company on the Dividend Payment Date. The number of shares of Registered Common Stock to be issued shall be determined by dividing the cash amount of the dividend otherwise payable by the Prevailing Price calculated as of such Dividend Payment Date, provided, however, except at the Company’s option, in no event shall such price be less than the price set on the Issue Date; provided, further, if the Company shall combine, subdivide or reclassify its Common Stock, or shall declare any dividend payable in shares of its Common Stock, or shall take any other action of a similar nature affecting such shares, the number of shares of Registered Common Stock to be issued shall be adjusted to the extent appropriate to reflect such event, including appropriate adjustments to account for any such event that occurs during the period used for calculating such Prevailing Price. The number of shares of Registered Common Stock to be issued as a dividend shall be rounded to the nearest whole share after aggregating all shares of Series A-2 Preferred Stock owned by a Holder.

(C) If, on any Dividend Payment Date, the Company fails to pay dividends, then until the dividends that were scheduled to be paid on such date are paid, such dividends shall cumulate, but shall not accrue additional dividends. Unpaid dividends for any period less than a full Dividend Period shall cumulate on a day to day basis and shall be computed on the basis of a three hundred sixty-five (365) day year.

(D)So long as any shares of Series A-2 Preferred Stock shall be outstanding, (i) the Company, except for the payment of dividends or other cash distributions under a joint venture agreement or other strategic alliance with respect to which the Company and/or a Subsidiary is a party, shall not and shall not allow its Subsidiaries to declare or pay any dividend whatsoever, whether in cash, property or otherwise, set aside any cash or property for the payment of dividends, or make any other distribution on any Parity Securities, except for dividends paid to the Company or any of its wholly-owned Subsidiaries and dividends paid on the Series A Preferred Shares or (ii) the Company shall not and shall not allow its Subsidiaries to repurchase, redeem or otherwise acquire for value or set aside any cash or property for the repurchase or redemption of any Junior Securities or Parity Securities, unless in each such case all dividends to which the Holders of the Series A-2 Preferred Stock shall have been entitled to receive for all previous Dividend Periods shall have been paid.

(E)Subject to the immediately following sentence, the Company shall be entitled to deduct and withhold from any dividend on the Series A-2 Preferred Stock such amounts as the Company is required to deduct and withhold with respect to such dividend under the Internal Revenue Code of 1986, as amended, or any other provision of state, local or foreign tax law. In the event the Company or the Holder elects, pursuant to Section 3(B), to pay or be paid, as the case may be, a dividend on the Series A-2 Preferred Stock by issuing Registered Common Stock or Common Stock, as the case may be, to a Holder, (i) the Company shall deliver the number of shares of Registered Common Stock or Common Stock, as the case may be, that would be delivered to a Holder pursuant to Section 3(B) in the absence of any requirement under applicable law to deduct and withhold any amount with respect to such dividend and (ii) on the Business Day following the Dividend Payment Date, Holder shall transfer to the Company by wire transfer of immediately available funds an amount equal to what the Company is required under applicable law to deduct and withhold with respect to such dividend. For purposes of determining the withholding amount, the dividend value shall be determined under Section 3(B) hereof.

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4.Liquidation Preference. In the event of any Liquidation, after payment or provision for payment by the Company of the debts and other liabilities of the Company and the liquidation preference of any Senior Securities that rank senior to the Series A-2 Preferred Stock with respect to distributions upon Liquidation, each Holder shall be entitled to receive an amount in cash for each share of the then outstanding Series A-2 Preferred Stock held by such Holder equal to the greater of (a) the Stated Value per share to and including the date full payment is tendered to the Holders with respect to such Liquidation, and (b) the amount the Holders would have received if the Holders had converted all outstanding shares of Series A-2 Preferred Stock into Common Stock in accordance with the provisions of Section 6(A) hereof, in each case as of the Business Day immediately preceding the date of such Liquidation (the “Liquidation Preference”), before any distribution shall be made to the holders of any Junior Securities (and any Senior Securities or Parity Securities that, with respect to distributions upon Liquidation, rank junior to the Series A-2 Preferred Stock) upon the Liquidation of the Company. In case the assets of the Company available for payment to the Holders are insufficient to pay the full Liquidation Preference on all outstanding shares of the Series A-2 Preferred Stock and all outstanding shares of Parity Securities and Senior Securities that, with respect to distributions upon Liquidation, are pari passu with the Series A-2 Preferred Stock in the amounts to which the holders of such shares are entitled, then the entire assets of the Company available for payment to the Holders and to the holders of such Parity Securities and Senior Securities shall be distributed ratably among the Holders of the Series A-2 Preferred Stock and the holders of such Parity Securities and Senior Securities, based upon the aggregate amount due on such shares upon Liquidation. Written notice of any Liquidation of the Company, stating a payment date and the place where the distributable amounts shall be payable, shall be given by facsimile and overnight delivery not less than ten (10) calendar days prior to the payment date stated therein, to the Holders of record of the Series A-2 Preferred Stock, if any, at their respective addresses as the same shall appear on the books of the Company.

5.Voting Rights. The Holders shall have the following voting rights with respect to the Series A-2 Preferred Stock:

(A)Each share of Series A-2 Preferred Stock shall entitle the holder thereof to the voting rights specified in Section 5(B) and no other voting rights except as required by law.

(B)The consent of the Holders of at least a Majority of the Series A-2 Preferred Stock, voting separately as a single class with one vote per share, in person or by proxy, either in writing without a meeting or at an annual or a special meeting of such Holders called for the purpose, shall be necessary to:

(i)

amend, alter or repeal, by way of merger or otherwise, any of the provisions of the Certificate of Incorporation, including this Certificate, or Bylaws of the Company so as to:

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A.

change any of the rights, preferences or privileges of Holders. Without limiting the generality of the preceding sentence, such change includes any action that would:

1.

reduce the Dividend Rate on the Series A-2 Preferred Stock, or make such dividends non-cumulative, or defer the date from which dividends will accrue, or cancel accrued and unpaid dividends, or change the relative seniority rights of the holders of Series A-2 Preferred Stock as to the payment of dividends in relation to the holders of any other capital stock of the Company;

2.

reduce the amount payable to the holders of the Series A-2 Preferred Stock upon the voluntary or involuntary liquidation, dissolution, or winding up of the Company, or change the relative seniority of the liquidation preferences of the holders of the Series A-2 Preferred Stock to the rights upon liquidation of the holders of any other capital stock of the Company;

3.

make the Series A-2 Preferred Stock redeemable at the option of the Company other than in accordance with the terms of this Certificate.

B.

authorize, create or issue any shares of Parity Securities or Senior Securities (or amend the provisions of any existing class of Capital Stock to make such class of Capital Stock a class of Parity Securities or Senior Securities).

(ii)

permit any Subsidiary of the Company to issue or sell, or obligate itself to issue or sell, except to the Company or any wholly owned Subsidiary, any security of such Subsidiaries or all or substantially all of the assets of any Subsidiary other than sales of assets on an arm's-length, fair market value basis; or

(iii)

increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series A-2 Preferred Stock or amend any provisions of any Capital Stock so as to make such Capital Stock redeemable by the Company.

6.Conversion and Call Rights.

(A)

Procedure for Conversion.

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(i)

General. Shares of Series A-2 Preferred Stock are convertible at the option of the Holder thereof at any time, from time to time, in whole or in part, as follows:

A.

The conversion of shares of Series A-2 Preferred Stock may be effected by delivering a duly executed written Series A-2 Preferred Stock Conversion Notice, in form and substance as provided by the Company (the “Conversion Notice”), to the Company, at its principal office specifying the number of shares of Series A-2 Preferred Stock to be converted and surrendering the certificate representing the shares of Series A-2 Preferred Stock to be converted.

B.

As soon as practicable after each such conversion of Series A-2 Preferred Stock, but not later than five (5) Business Days from the receipt of the Conversion Notice, the Company shall deliver to such Holder at the address specified in the Conversion Notice the Conversion Stock Amount of duly authorized, validly issued, fully paid and nonassessable shares of Registered Common Stock (or Other Securities or, with such Holder's express written consent, unregistered Common Stock).

C.

Notwithstanding anything in the Certificate to the contrary, if such Holder does not consent to accept unregistered Common Stock, then such Holder’s Notice of Conversion shall be deemed, without any further action, to have been withdrawn. Moreover, in no event, shall any conversion under the Certificate be settled in cash.

(ii)

Conversion for stock. Subject to the previous sub-paragraph, such shares of stock shall be converted into that number of shares of Registered Common Stock (or at the sole election of the Holder, unregistered Common Stock) equal to (A) the aggregate Stated Value of such shares divided by (B) the Conversion Price (the “Conversion Stock Amount”). It shall be a condition of either the Company or the converting Holder's obligation to close the conversion of the Series A-2 Preferred Stock that such conversion be in accordance with applicable federal and state securities laws and any applicable waiting period (and any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired or been terminated without litigation having been commenced that is continuing, or threat of litigation having been made that remains unresolved, by the United States Department of Justice or the United States Federal Trade Commission.

(iii)

Holder of record. Each conversion of Series A-2 Preferred Stock shall be deemed to have been effected immediately before the close of business on the Business Day on which the Conversion Notice is delivered, and at such time the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock (or Other Securities) shall be issuable upon such conversion as provided herein shall be deemed to have become the holder or holders of record thereof.

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(iv)

Partial conversion. If any conversion is for only part of the shares represented by the certificate surrendered, the Company shall send a new Series A-2 Preferred Stock certificate of like tenor via certified or registered mail RRR or reputable overnight courier to such address specified by the Holder, calling in the aggregate on the face or faces thereof for the number of shares of Series A-2 Preferred Stock which have not been converted.

(B)

Procedure for Conversion by the Company.

(i)

Conversion by the Company. Shares of Series A-2 Preferred Stock may be converted by the Company (a “Company Conversion”) in whole or in part for Common Stock as follows

A.

From and after the first anniversary of the Closing Date, the Company may require the Holders to convert, on a pro rata basis as among the holders of Series A-2 Preferred Shares, shares of Series A-2 Preferred Shares held by such holders on any of March 31, June 30, September 30 and December 31 of each year by delivering a conversion notice to the Holders, at least ten (10) days prior to such conversion and substantially in the form as provided by the Company (a “Company Conversion Notice”), provided that (x) the average of the Daily Market Prices of the Common Stock for the ninety (90) calendar days ended immediately prior to such Conversion Notice is an amount greater than two hundred twenty percent (220%) of the Conversion Price or (y) after the fifth anniversary of the Closing Date, the Prevailing Price shall be an amount greater than the Issue Date Price. The number of Series A Preferred Shares so converted under clause (x) may not exceed the number that would be converted for a quantity of shares of Common Stock greater than eight (8) times the average daily reported volume of trading in the Common Stock on all national securities exchanges, Nasdaq market, service, and/or reported through the AMEX as reported by Bloomberg L.P. (or by such other Person as the Company may select) during the ninety (90) calendar days ending one day prior to the Conversion Notice Date concerning a conversion under clause (x). The conversion price under clause (x) shall be determined in accordance with Section 6(A)(ii). The conversion price under clause (y) shall be the Prevailing Price, provided, that the Prevailing Price is greater than the Conversion Price. In the event that the Conversion Price is greater than the Prevailing Price, then the conversion price shall be the Conversion Price.

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(C)

Five Year Call Right. From and after the fifth anniversary of the date on which the Registration Requirement has been satisfied, the Company may from time-to-time issue a call notice to the holders of the Series A-2 Preferred Shares (the “Call Notice”). Such Call Notice, at the Company’s discretion, may be for all or a portion of the Series A-2 Preferred Shares. On or before the tenth (10th) Business Day following the date of the Call Notice, the holders of the Series A-2 Preferred Shares shall deliver to the Company, all, or, in the case of a Call Notice concerning a portion of the Series A-2 Preferred Shares, on a pro rata basis as provided in the Call Notice, based on the number of shares of Series A-2 Preferred Shares held by each holder, Series A-2 Preferred Shares with an aggregate Stated Value equal to the amount designated in the Call Notice. The Company shall promptly thereafter pay, by wire transfer of immediately available funds, an amount to each such holder equal to the aggregate Stated Value of all such Series A-2 Preferred Shares delivered by such holder.

(D)

 The Company shall at all times reserve for issuance such number of its shares of Common Stock as shall be required hereunder.

(E)

The Company will use its best efforts to procure, at its sole expense, the listing of the Common Stock issuable upon conversion or redemption of the Series A-2 Preferred Stock and shares issuable as dividends hereunder, subject to issuance or notice of issuance, on all stock exchanges, markets, and quotation service on which the Common Stock is then listed or quoted, no later than the date on which such Series A-2 Preferred Stock is issued to the Holder and thereafter shall use its best efforts to prevent delisting or removal from quotation of such shares. The Company will pay any and all documentary stamp or similar issue or transfer taxes that may be payable in respect of the issuance or delivery of shares of Common Stock on conversion or redemption of shares of the Series A-2 Preferred Stock. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involving the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series A-2 Preferred Stock so converted or redeemed were registered, and no such issue and delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established, to the reasonable satisfaction of the Company, that such tax has been paid.

(F)

No fractional shares or scrip representing fractional shares shall be issued upon the conversion or redemption of the Series A-2 Preferred Stock. If any such conversion or redemption would otherwise require the issuance of a fractional share of Common Stock, an amount equal to such fraction multiplied by the current Daily Market Price per share of Common Stock on the date of conversion or redemption shall be paid to the Holder in cash by the Company. If more than one share of Series A-2 Preferred Stock shall be surrendered for conversion or redemption at one time by or for the same Holder, the number of full shares of Common Stock issuable upon conversion or redemption thereof shall be computed on the basis of the aggregate number of shares of Series A-2 Preferred Stock so surrendered.

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(G)

Change of Control. In case the Company on or after the Issue Date is party to any (a) acquisition of the Company by means of merger or other form of corporate reorganization in which outstanding shares of the Company are exchanged for securities or other consideration issued, or caused to be issued, by the Acquiring Person, herein defined, or its Parent, herein defined, Subsidiary, herein defined, or affiliate, (b) a sale of all or substantially all of the assets of the Company (on a consolidated basis) in a single transaction or series of related transactions, (c) any other transaction or series of related transactions by the Company or relating to the Common Stock (including without limitation, any stock purchase or tender or exchange offer) in which the power to cast the majority of the eligible votes at a meeting of the Company's stockholders at which directors are elected is transferred to a single entity or group acting in concert, or (d) a capital reorganization or reclassification of the Common Stock or other securities (other than a reorganization or reclassification in which the Common Stock or other securities are not converted into or exchanged for cash or other property, and, immediately after consummation of such transaction, the stockholders of the Company immediately prior to such transaction own the Common Stock, other securities or other voting stock of the Company in substantially the same proportions relative to each other as such stockholders owned immediately prior to such transaction), then, and in the case of each such transaction (each of which is referred to herein as “Change in Control”), proper provision shall be made so that, at the option of the Acquiring Person and upon fifteen days’ notice to the Company and the Holder prior to the consummation of the Change of Control, either (i) the Acquiring Person expressly agrees to assume all of the Company’s obligations under the Series A-2 Preferred Stock or (ii) the Holder has fifteen (15) days in which to exercise its conversion rights under the Series A-2 Preferred Stock. If Holder does not exercise its rights during such fifteen (15) day period, all rights under the Series A-2 Preferred Stock shall terminate and the Series A-2 Preferred Stock shall be deemed cancelled. The Company, to the extent feasible, shall provide the Holder with thirty (30) days’ notice of the consummation of any Change of Control. Subject to the foregoing, on or before the closing date under the agreement entered into with an Acquiring Person resulting in a Change in Control, the Company, if applicable, shall deliver to the Holder written notice that the Acquiring Person has assumed such obligations. “Acquiring Person” means, in connection with any Change in Control, (i) the continuing or surviving corporation of a consolidation or merger with the Company (if other than the Company), (ii) the transferee of all or substantially all of the properties or assets of the Company, (iii) the corporation consolidating with or merging into the Company in a consolidation or merger in connection with which the Common Stock is changed into or exchanged for stock or other securities of any other Person or cash or any other property, (iv) the entity or group (other than Holder or any of its affiliates) acting in concert acquiring or possessing the power to cast the majority of the eligible votes at a meeting of the Company's stockholders at which directors are elected, or, (v) in the case of a capital reorganization or reclassification, the Company, or (vi) at the Holder's election, any Person that (A) controls the Acquiring Person directly or indirectly through one or more intermediaries, (B) is required to include the Acquiring Person in the consolidated financial statements contained in such Parent's Annual Report on Form 10-K (if such Person is required to file such a report) or would be required to so include the Acquiring Person in such Person's consolidated financial statements if they were prepared in accordance with U.S. GAAP and (C) is not itself included in the consolidated financial statements of any other Person (other than its consolidated subsidiaries). “Parent” shall mean any corporation (other than the Acquiring Person) in an unbroken chain of corporations ending with the Acquiring Person, provided each corporation in the unbroken chain (other than the Acquiring Person) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. “Subsidiary” shall mean any corporation at least 50% of whose outstanding voting stock shall at the time be owned directly or indirectly by the Acquiring Person or by one or more Subsidiaries.

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(H)

Adjustments.

(i)

If the Corporation, at any time while the Series A-2 Preferred Stock is outstanding: (a) shall pay a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation pursuant to this Series A-2 Preferred Stock), (b) subdivide outstanding shares of Common Stock into a larger number of shares, (c) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (d) issue by reclassification of shares of the Common Stock any shares of Capital Stock of the Corporation, then the Preferred Conversion Price shall be adjusted by multiplying the then Preferred Conversion Price by a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to the event and the denominator of which shall be the number of shares of Common Stock outstanding immediately following the event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.

(ii)

Calculations. All calculations under this Section 6(H) shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation, and the description of any such shares of Common Stock shall be considered on issue or sale of Common Stock. For purposes of this Section 6(H), the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) actually issued and outstanding.

7.Status of Converted and Redeemed Shares; Limitations on Series A-2 Preferred Stock. The Company shall return to the status of unauthorized and undesignated shares of Series A-2 Preferred Stock each share of Series A-2 Preferred Stock which shall be converted, redeemed or for any other reason acquired by the Company, and such shares thereafter may have such characteristics and designations as the Board may determine. Without the consent of Majority of the Series A-2 Preferred Stock, the Company will not issue any further shares of Series A-2 Preferred Stock.

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Annex C

Certificate of Rights and Preferences of

Series A-4 Cumulative Convertible Preferred Stock

1.Number. The number of shares constituting the Series A-4 Cumulative Convertible Preferred Stock shall be forty-five (45).

2.Definitions. Unless the context otherwise requires, when used herein the following terms shall have the meaning indicated.

“Acquiring Person” is defined in 6(G).

“AMEX” means the American Stock Exchange, provided, however, that if the American Stock Exchange is not then the principal U.S. trading market for the Common Stock, then “AMEX” shall be deemed to mean the principal U.S. national securities exchange (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on which the Common Stock is then traded, or if such Common Stock is not then listed or admitted to trading on any national securities exchange but is designated as a Nasdaq Capital Market Security by the National Association of Securities Dealers, Inc. (“NASD”), then such market system, or if such Common Stock is not listed or quoted on any of the foregoing, then the OTC Bulletin Board.

“Board” means the Board of Directors of the Company.

“Business Day” means any day on which the Common Stock may be traded on the AMEX, or, if not admitted for trading on the AMEX, any day other than a Saturday, Sunday or holiday on which banks in New York City are required or permitted to be closed.

“Call Notice” is defined in 6(C).

“Capital Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated) of capital or capital stock of such Person and (ii) with respect to any Person that is not a corporation, any and all partnership, limited partnership, limited liability company or other equity interests of such Person.

“Certificate” means this Certificate of Rights and Preferences of the Series A-4 Cumulative Convertible Preferred Stock.

“Certificate of Incorporation” means the Certificate of Incorporation of the Company, as amended.

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“Change of Control” is defined in 6G.

“Common Stock” means the Company's common stock, par value $0.01 per share, and any Capital Stock for or into which such Common Stock hereafter is exchanged, converted, reclassified or recapitalized by the Company or pursuant to a Change of Control to which the Company is a party (or, at the election of the Acquiring Person, the capital stock of any Acquiring Person from and after the consummation of a Change of Control).

“Common Stock Equivalents” means (without duplication with any other Common Stock or common stock, as the case may be, or Common Stock Equivalents) rights, warrants, options, convertible securities or exchangeable securities, exercisable for or convertible or exchangeable into, directly or indirectly, Common Stock, or common stock, as the case may be, whether at the time of issuance or upon the passage of time or the occurrence of some future event.

“Company” means Fusion Telecommunications International, Inc., a Delaware corporation (or, if, as, and when applicable, any Acquiring Person from and after the consummation of a Change of Control).

“Company Conversion” is defined in Section 6(B)(i).

“Company Conversion Notice” is defined in Section 6(B)(i).

“Conversion Notice” is defined in Section 6(A)(i).

“Conversion Price” means $.79, subject to adjustment for stock splits, recombinations, stock dividends and the like as provided herein.

“Conversion Stock Amount” is defined in Section 6(A)(ii).

“Daily Market Price” means, on any date, the amount per share of the Common Stock equal to (i) the daily volume-weighted average price on the AMEX or, if no sale takes place on such date, the closing bid prices on the AMEX thereof on such date, in each case as reported by Bloomberg, L.P. (or by such other Person as the Company may select), or (ii) if such Common Stock is not then listed or admitted to trading on the AMEX, the higher of (x) the book value per share thereof as determined by any firm of independent public accountants of recognized standing selected by the Board as of the last calendar day of the most recent month ending before the date as of which the determination is to be made or (y) the fair value per share thereof determined in good faith by an independent, nationally recognized appraisal firm selected by the Board, subject to adjustment for stock splits, recombinations, stock dividends and the like.

“Dividend Payment Date” is defined in Section 3(A).

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“Dividend Period” is defined in Section 3(A).

“Dividend Rate” means a rate equal to the Stated Value multiplied by eight percent (8%) per annum.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Holder” shall mean a holder of the Series A-4 Preferred Stock.

“Issue Date” means with respect to shares of the Series A-4 Preferred Stock the initial date of issuance of any of such shares of the Series A-4 Preferred Stock.

 “Issue Date Price” means the price of Issuer’s Common Stock determined on the date of the initial issuance of the shares of the Series A-4 Preferred Stock.

“Junior Securities” means Capital Stock that, with respect to dividends and distributions upon Liquidation, ranks junior to the Series A Preferred Shares, including but not limited to Common Stock and any other class or series of Capital Stock issued by the Company or any Subsidiary of the Company on or after the Issue Date, but excluding any Parity Securities and Senior Securities issued (i) to Holders of the Series A-4 Preferred Stock, (ii) with the approval of the Holders of a Majority of the Series A-4 Preferred Stock or (iii) upon the conversion, redemption or exercise of securities described in clause (i) or (ii) in accordance with the terms thereof.

“Liquidation” means the voluntary or involuntary liquidation, dissolution or winding up of the Company; provided, however, that a consolidation, merger or share exchange shall not be deemed a Liquidation, nor shall a sale, assignment, conveyance, transfer, lease or other disposition by the Company of all or substantially all of its assets, which does not involve a substantial distribution by the Company of cash or other property to the holders of Common Stock, be deemed to be a Liquidation.

“Liquidation Preference” is defined in Section 4.

“Majority of the Series A-4 Preferred Stock” means more than fifty percent (50%) of the then outstanding shares of the Series A-4 Preferred Stock.

“Other Securities” means any stock (other than Common Stock) and other securities of the Company or any other Person which the Holders of the Series A-4 Preferred Stock at any time shall be entitled to receive, or shall have received, upon conversion or redemption of the Series A-4 Preferred Stock in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or in replacement of Common Stock or Other Securities.

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“Parity Securities” means any class or series of Capital Stock that, with respect to dividends or distributions upon Liquidation, is pari passu with all Series A-4 Preferred Shares. For the avoidance of doubt, each series of Series A Preferred Shares is a Parity Security with respect to each other series of Series A Preferred Shares.

“Person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.

“Prevailing Price” means, with respect to any reference date, the average of the Daily Market Prices of the Common Stock for the thirty (30) Business Days ending on and including the third (3rd) Business Day before such reference date.

“Qualified Public Company” means a corporation meeting all of the following criteria: (i) the common stock of the corporation is registered under Section 12 of the Securities Exchange Act of 1934, as amended, (ii) the Prevailing Price shall be an amount greater than one dollar ($1) per share of Common Stock, and (iii) the average daily reported volume of trading in such common stock on all national securities exchanges, markets, services, and/or reported through the AMEX as reported by Bloomberg L.P. (or by such other Person as the Company may select) during the ninety (90) calendar days preceding the reference date exceeds twenty thousand (20,000) shares of Common Stock.

“Registered Common Stock” means Common Stock the resale of which has been registered under the Securities Act and is freely tradable upon delivery.

“Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“Senior Securities” means any class or series of Capital Stock that, with respect to dividends or distributions upon Liquidation, ranks senior to the Series A-4 Preferred Stock.

“Series A-4 Preferred Stock” means the Series A-4 Cumulative Convertible Preferred Stock of the Company or any successor.

“Stated Value” is an amount equal to one thousand dollars ($1,000) per share of the Series A-4 Preferred Stock plus any accrued and unpaid dividends, whether or not declared and whether or not earnings are available in respect of such dividends. In the event the Company shall declare a distribution on the Common Stock payable in securities or property other than cash, the value of such securities or property will be the fair market value. Any securities shall be valued as follows: (i) if traded on a national securities exchange or through a Nasdaq market, the value shall be deemed to be the average of the closing prices of the securities on such exchange or system over the thirty (30) Business Day period ending three (3) calendar days prior to such declaration; (ii) if actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the thirty (30) Business Day period ending three (3) calendar days prior to such declaration; and (iii) if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board.

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“Subsidiary” of a Person means (i) a corporation, a majority of whose stock with voting power, under ordinary circumstances, to elect directors is at the time of determination, directly or indirectly, owned by such Person or by one or more Subsidiaries of such Person, or (ii) any other entity (other than a corporation) in which such Person or one or more Subsidiaries of such Person, directly or indirectly, at the date of determination thereof has a least a majority ownership interest.

The foregoing definitions will be equally applicable to both the singular and plural forms of the defined terms.

3.Dividends and Distributions.

(A)Holders shall be entitled to receive out of the assets of the Company legally available for that purpose, dividends at the Dividend Rate to be paid in accordance with the terms of this Section 3. Such dividends shall be fully cumulative from the Issue Date, shall accumulate regardless of whether the Company earns a profit and shall be payable in arrears, when and as declared by the Board (or a duly appointed committee of directors), on January 1 of each year, (each such date being herein referred to as a “Dividend Payment Date”), commencing on January 1, 2008. The period from the Issue Date to January 1, 2008, and each annual period between consecutive Dividend Payment Dates shall hereinafter be referred to as a “Dividend Period.” The dividend for any Dividend Period for any share of Series A-4 Preferred Stock that is not outstanding on every calendar day of the Dividend Period shall be prorated based on the number of calendar days such share was outstanding during the period. Each such dividend shall be paid to the Holders of record of the Series A-4 Preferred Stock as their names appear on the share register of the Company on the Dividend Payment Date. Dividends on account of arrears for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date (including, without limitation, for purposes of computing the Stated Value of any shares of Series A-4 Preferred Stock in connection with the conversion or redemption thereof or any Liquidation of the Company), to Holders of record on a date designated by the Board, not exceeding thirty (30) calendar days preceding the payment date thereof, as may be fixed by the Board. For purposes of determining the amount of dividends accrued as of the first Dividend Payment Date and as of any date that is not a Dividend Payment Date, such amount shall be calculated on the basis of the Dividend Rate for the actual number of calendar days elapsed from and excluding the Issue Date (in case of the first Dividend Payment Date and any date prior to the first Dividend Payment Date) or the last preceding Dividend Payment Date (in case of any other date) to the date as of which such determination is to be made, based on a three hundred sixty-five (365) day year.

(B)Subject to the following proviso, dividends payable on the Series A-4 Preferred Stock shall be paid, at the option of the Holder, in cash or by the issuance of Common Stock provided, however, that the Company may elect to make any payment of dividends by the issuance of Registered Common Stock on any Dividend Payment Date with 10 days’ prior written notice to the Holder, if the Company is a Qualified Public Company on the Dividend Payment Date. The number of shares of Registered Common Stock to be issued shall be determined by dividing the cash amount of the dividend otherwise payable by the Prevailing Price calculated as of such Dividend Payment Date, provided, however, except at the Company’s option, in no event shall such price be less than the price set on the Issue Date; provided, further, if the Company shall combine, subdivide or reclassify its Common Stock, or shall declare any dividend payable in shares of its Common Stock, or shall take any other action of a similar nature affecting such shares, the number of shares of Registered Common Stock to be issued shall be adjusted to the extent appropriate to reflect such event, including appropriate adjustments to account for any such event that occurs during the period used for calculating such Prevailing Price. The number of shares of Registered Common Stock to be issued as a dividend shall be rounded to the nearest whole share after aggregating all shares of Series A-4 Preferred Stock owned by a Holder.

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(C) If, on any Dividend Payment Date, the Company fails to pay dividends, then until the dividends that were scheduled to be paid on such date are paid, such dividends shall cumulate, but shall not accrue additional dividends. Unpaid dividends for any period less than a full Dividend Period shall cumulate on a day to day basis and shall be computed on the basis of a three hundred sixty-five (365) day year.

(D)So long as any shares of Series A-4 Preferred Stock shall be outstanding, (i) the Company, except for the payment of dividends or other cash distributions under a joint venture agreement or other strategic alliance with respect to which the Company and/or a Subsidiary is a party, shall not and shall not allow its Subsidiaries to declare or pay any dividend whatsoever, whether in cash, property or otherwise, set aside any cash or property for the payment of dividends, or make any other distribution on any Parity Securities, except for dividends paid to the Company or any of its wholly-owned Subsidiaries and dividends paid on the Series A Preferred Shares or (ii) the Company shall not and shall not allow its Subsidiaries to repurchase, redeem or otherwise acquire for value or set aside any cash or property for the repurchase or redemption of any Junior Securities or Parity Securities, unless in each such case all dividends to which the Holders of the Series A-4 Preferred Stock shall have been entitled to receive for all previous Dividend Periods shall have been paid.

(E)Subject to the immediately following sentence, the Company shall be entitled to deduct and withhold from any dividend on the Series A-4 Preferred Stock such amounts as the Company is required to deduct and withhold with respect to such dividend under the Internal Revenue Code of 1986, as amended, or any other provision of state, local or foreign tax law. In the event the Company or the Holder elects, pursuant to Section 3(B), to pay or be paid, as the case may be, a dividend on the Series A-4 Preferred Stock by issuing Registered Common Stock or Common Stock, as the case may be, to a Holder, (i) the Company shall deliver the number of shares of Registered Common Stock or Common Stock, as the case may be, that would be delivered to a Holder pursuant to Section 3(B) in the absence of any requirement under applicable law to deduct and withhold any amount with respect to such dividend and (ii) on the Business Day following the Dividend Payment Date, Holder shall transfer to the Company by wire transfer of immediately available funds an amount equal to what the Company is required under applicable law to deduct and withhold with respect to such dividend. For purposes of determining the withholding amount, the dividend value shall be determined under Section 3(B) hereof.

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4.Liquidation Preference. In the event of any Liquidation, after payment or provision for payment by the Company of the debts and other liabilities of the Company and the liquidation preference of any Senior Securities that rank senior to the Series A-4 Preferred Stock with respect to distributions upon Liquidation, each Holder shall be entitled to receive an amount in cash for each share of the then outstanding Series A-4 Preferred Stock held by such Holder equal to the greater of (a) the Stated Value per share to and including the date full payment is tendered to the Holders with respect to such Liquidation, and (b) the amount the Holders would have received if the Holders had converted all outstanding shares of Series A-4 Preferred Stock into Common Stock in accordance with the provisions of Section 6(A) hereof, in each case as of the Business Day immediately preceding the date of such Liquidation (the “Liquidation Preference”), before any distribution shall be made to the holders of any Junior Securities (and any Senior Securities or Parity Securities that, with respect to distributions upon Liquidation, rank junior to the Series A-4 Preferred Stock) upon the Liquidation of the Company. In case the assets of the Company available for payment to the Holders are insufficient to pay the full Liquidation Preference on all outstanding shares of the Series A-4 Preferred Stock and all outstanding shares of Parity Securities and Senior Securities that, with respect to distributions upon Liquidation, are pari passu with the Series A-4 Preferred Stock in the amounts to which the holders of such shares are entitled, then the entire assets of the Company available for payment to the Holders and to the holders of such Parity Securities and Senior Securities shall be distributed ratably among the Holders of the Series A-4 Preferred Stock and the holders of such Parity Securities and Senior Securities, based upon the aggregate amount due on such shares upon Liquidation. Written notice of any Liquidation of the Company, stating a payment date and the place where the distributable amounts shall be payable, shall be given by facsimile and overnight delivery not less than ten (10) calendar days prior to the payment date stated therein, to the Holders of record of the Series A-4 Preferred Stock, if any, at their respective addresses as the same shall appear on the books of the Company.

5.Voting Rights. The Holders shall have the following voting rights with respect to the Series A-4 Preferred Stock:

(A)Each share of Series A-4 Preferred Stock shall entitle the holder thereof to the voting rights specified in Section 5(B) and no other voting rights except as required by law.

(B)The consent of the Holders of at least a Majority of the Series A-4 Preferred Stock, voting separately as a single class with one vote per share, in person or by proxy, either in writing without a meeting or at an annual or a special meeting of such Holders called for the purpose, shall be necessary to:

(i)

amend, alter or repeal, by way of merger or otherwise, any of the provisions of the Certificate of Incorporation, including this Certificate, or Bylaws of the Company so as to:

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A.

change any of the rights, preferences or privileges of Holders. Without limiting the generality of the preceding sentence, such change includes any action that would:

1.

reduce the Dividend Rate on the Series A-4 Preferred Stock, or make such dividends non-cumulative, or defer the date from which dividends will accrue, or cancel accrued and unpaid dividends, or change the relative seniority rights of the holders of Series A-4 Preferred Stock as to the payment of dividends in relation to the holders of any other capital stock of the Company;

2.

reduce the amount payable to the holders of the Series A-4 Preferred Stock upon the voluntary or involuntary liquidation, dissolution, or winding up of the Company, or change the relative seniority of the liquidation preferences of the holders of the Series A-4 Preferred Stock to the rights upon liquidation of the holders of any other capital stock of the Company;

3.

make the Series A-4 Preferred Stock redeemable at the option of the Company other than in accordance with the terms of this Certificate.

B.

authorize, create or issue any shares of Parity Securities or Senior Securities (or amend the provisions of any existing class of Capital Stock to make such class of Capital Stock a class of Parity Securities or Senior Securities).

(ii)

permit any Subsidiary of the Company to issue or sell, or obligate itself to issue or sell, except to the Company or any wholly owned Subsidiary, any security of such Subsidiaries or all or substantially all of the assets of any Subsidiary other than sales of assets on an arm's-length, fair market value basis; or

(iii)

increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series A-4 Preferred Stock or amend any provisions of any Capital Stock so as to make such Capital Stock redeemable by the Company.

6.Conversion and Call Rights.

(A)

Procedure for Conversion.

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(i)

General. Shares of Series A-4 Preferred Stock are convertible at the option of the Holder thereof at any time, from time to time, in whole or in part, as follows:

A.

The conversion of shares of Series A-4 Preferred Stock may be effected by delivering a duly executed written Series A-4 Preferred Stock Conversion Notice, in form and substance as provided by the Company (the “Conversion Notice”), to the Company, at its principal office specifying the number of shares of Series A-4 Preferred Stock to be converted and surrendering the certificate representing the shares of Series A-4 Preferred Stock to be converted.

B.

As soon as practicable after each such conversion of Series A-4 Preferred Stock, but not later than five (5) Business Days from the receipt of the Conversion Notice, the Company shall deliver to such Holder at the address specified in the Conversion Notice the Conversion Stock Amount of duly authorized, validly issued, fully paid and nonassessable shares of Registered Common Stock (or Other Securities or, with such Holder's express written consent, unregistered Common Stock).

C.

Notwithstanding anything in the Certificate to the contrary, if such Holder does not consent to accept unregistered Common Stock, then such Holder’s Notice of Conversion shall be deemed, without any further action, to have been withdrawn. Moreover, in no event, shall any conversion under the Certificate be settled in cash.

(ii)

Conversion for stock. Subject to the previous sub-paragraph, such shares of stock shall be converted into that number of shares of Registered Common Stock (or at the sole election of the Holder, unregistered Common Stock) equal to (A) the aggregate Stated Value of such shares divided by (B) the Conversion Price (the “Conversion Stock Amount”). It shall be a condition of either the Company or the converting Holder's obligation to close the conversion of the Series A-4 Preferred Stock that such conversion be in accordance with applicable federal and state securities laws and any applicable waiting period (and any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired or been terminated without litigation having been commenced that is continuing, or threat of litigation having been made that remains unresolved, by the United States Department of Justice or the United States Federal Trade Commission.

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(iii)

Holder of record. Each conversion of Series A-4 Preferred Stock shall be deemed to have been effected immediately before the close of business on the Business Day on which the Conversion Notice is delivered, and at such time the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock (or Other Securities) shall be issuable upon such conversion as provided herein shall be deemed to have become the holder or holders of record thereof.

(iv)

Partial conversion. If any conversion is for only part of the shares represented by the certificate surrendered, the Company shall send a new Series A-4 Preferred Stock certificate of like tenor via certified or registered mail RRR or reputable overnight courier to such address specified by the Holder, calling in the aggregate on the face or faces thereof for the number of shares of Series A-4 Preferred Stock which have not been converted.

(B)

Procedure for Conversion by the Company.

(i)

Conversion by the Company. Shares of Series A-4 Preferred Stock may be converted by the Company (a “Company Conversion”) in whole or in part for Common Stock as follows

A.

From and after the first anniversary of the Closing Date, the Company may require the Holders to convert, on a pro rata basis as among the holders of Series A-4 Preferred Shares, shares of Series A-4 Preferred Shares held by such holders on any of March 31, June 30, September 30 and December 31 of each year by delivering a conversion notice to the Holders, at least ten (10) days prior to such conversion and substantially in the form as provided by the Company (a “Company Conversion Notice”), provided that (x) the average of the Daily Market Prices of the Common Stock for the ninety (90) calendar days ended immediately prior to such Conversion Notice is an amount greater than two hundred twenty percent (220%) of the Conversion Price or (y) after the fifth anniversary of the Closing Date, the Prevailing Price shall be an amount greater than the Issue Date Price. The number of Series A Preferred Shares so converted under clause (x) may not exceed the number that would be converted for a quantity of shares of Common Stock greater than eight (8) times the average daily reported volume of trading in the Common Stock on all national securities exchanges, Nasdaq market, service, and/or reported through the AMEX as reported by Bloomberg L.P. (or by such other Person as the Company may select) during the ninety (90) calendar days ending one day prior to the Conversion Notice Date concerning a conversion under clause (x). The Conversion Price and the Conversion Stock Amount under clause (x) shall be determined in accordance with Section 6(A)(ii). The conversion price under clause (y) shall be the Prevailing Price, if the Prevailing Price is greater than the Conversion Price and shall be the Conversion Price if the Conversion Price is greater than the Prevailing Price. The Conversion Stock Amount under clause (y) shall be determined in accordance with Section 6(A)(ii), using the conversion price as determined in accordance with the immediately preceding sentence.

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(C)

Five Year Call Right. From and after the fifth anniversary of the date on which the Registration Requirement has been satisfied, the Company may from time-to-time issue a call notice to the holders of the Series A-4 Preferred Shares (the “Call Notice”). Such Call Notice, at the Company’s discretion, may be for all or a portion of the Series A-4 Preferred Shares. On or before the tenth (10th) Business Day following the date of the Call Notice, the holders of the Series A-4 Preferred Shares shall deliver to the Company, all, or, in the case of a Call Notice concerning a portion of the Series A-4 Preferred Shares, on a pro rata basis as provided in the Call Notice, based on the number of shares of Series A-4 Preferred Shares held by each holder, Series A-4 Preferred Shares with an aggregate Stated Value equal to the amount designated in the Call Notice. The Company shall promptly thereafter pay, by wire transfer of immediately available funds, an amount to each such holder equal to the aggregate Stated Value of all such Series A-4 Preferred Shares delivered by such holder.

(D)

 The Company shall at all times reserve for issuance such number of its shares of Common Stock as shall be required hereunder.

(E)

The Company will use its best efforts to procure, at its sole expense, the listing of the Common Stock issuable upon conversion or redemption of the Series A-4 Preferred Stock and shares issuable as dividends hereunder, subject to issuance or notice of issuance, on all stock exchanges, markets, and quotation service on which the Common Stock is then listed or quoted, no later than the date on which such Series A-4 Preferred Stock is issued to the Holder and thereafter shall use its best efforts to prevent delisting or removal from quotation of such shares. The Company will pay any and all documentary stamp or similar issue or transfer taxes that may be payable in respect of the issuance or delivery of shares of Common Stock on conversion or redemption of shares of the Series A-4 Preferred Stock. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involving the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series A-4 Preferred Stock so converted or redeemed were registered, and no such issue and delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established, to the reasonable satisfaction of the Company, that such tax has been paid.

(F)

No fractional shares or scrip representing fractional shares shall be issued upon the conversion or redemption of the Series A-4 Preferred Stock. If any such conversion or redemption would otherwise require the issuance of a fractional share of Common Stock, an amount equal to such fraction multiplied by the current Daily Market Price per share of Common Stock on the date of conversion or redemption shall be paid to the Holder in cash by the Company. If more than one share of Series A-4 Preferred Stock shall be surrendered for conversion or redemption at one time by or for the same Holder, the number of full shares of Common Stock issuable upon conversion or redemption thereof shall be computed on the basis of the aggregate number of shares of Series A-4 Preferred Stock so surrendered.

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(G)

Change of Control. In case the Company on or after the Issue Date is party to any (a) acquisition of the Company by means of merger or other form of corporate reorganization in which outstanding shares of the Company are exchanged for securities or other consideration issued, or caused to be issued, by the Acquiring Person, herein defined, or its Parent, herein defined, Subsidiary, herein defined, or affiliate, (b) a sale of all or substantially all of the assets of the Company (on a consolidated basis) in a single transaction or series of related transactions, (c) any other transaction or series of related transactions by the Company or relating to the Common Stock (including without limitation, any stock purchase or tender or exchange offer) in which the power to cast the majority of the eligible votes at a meeting of the Company's stockholders at which directors are elected is transferred to a single entity or group acting in concert, or (d) a capital reorganization or reclassification of the Common Stock or other securities (other than a reorganization or reclassification in which the Common Stock or other securities are not converted into or exchanged for cash or other property, and, immediately after consummation of such transaction, the stockholders of the Company immediately prior to such transaction own the Common Stock, other securities or other voting stock of the Company in substantially the same proportions relative to each other as such stockholders owned immediately prior to such transaction), then, and in the case of each such transaction (each of which is referred to herein as “Change in Control”), proper provision shall be made so that, at the option of the Acquiring Person and upon fifteen days’ notice to the Company and the Holder prior to the consummation of the Change of Control, either (i) the Acquiring Person expressly agrees to assume all of the Company’s obligations under the Series A-4 Preferred Stock or (ii) the Holder has fifteen (15) days in which to exercise its conversion rights under the Series A-4 Preferred Stock. If Holder does not exercise its rights during such fifteen (15) day period, all rights under the Series A-4 Preferred Stock shall terminate and the Series A-4 Preferred Stock shall be deemed cancelled. The Company, to the extent feasible, shall provide the Holder with thirty (30) days’ notice of the consummation of any Change of Control. Subject to the foregoing, on or before the closing date under the agreement entered into with an Acquiring Person resulting in a Change in Control, the Company, if applicable, shall deliver to the Holder written notice that the Acquiring Person has assumed such obligations. “Acquiring Person” means, in connection with any Change in Control, (i) the continuing or surviving corporation of a consolidation or merger with the Company (if other than the Company), (ii) the transferee of all or substantially all of the properties or assets of the Company, (iii) the corporation consolidating with or merging into the Company in a consolidation or merger in connection with which the Common Stock is changed into or exchanged for stock or other securities of any other Person or cash or any other property, (iv) the entity or group (other than Holder or any of its affiliates) acting in concert acquiring or possessing the power to cast the majority of the eligible votes at a meeting of the Company 's stockholders at which directors are elected, or, (v) in the case of a capital reorganization or reclassification, the Company, or (vi) at the Holder's election, any Person that (A) controls the Acquiring Person directly or indirectly through one or more intermediaries, (B) is required to include the Acquiring Person in the consolidated financial statements contained in such Parent's Annual Report on Form 10-K (if such Person is required to file such a report) or would be required to so include the Acquiring Person in such Person's consolidated financial statements if they were prepared in accordance with U.S. GAAP and (C) is not itself included in the consolidated financial statements of any other Person (other than its consolidated subsidiaries). “Parent” shall mean any corporation (other than the Acquiring Person) in an unbroken chain of corporations ending with the Acquiring Person, provided each corporation in the unbroken chain (other than the Acquiring Person) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. “Subsidiary” shall mean any corporation at least 50% of whose outstanding voting stock shall at the time be owned directly or indirectly by the Acquiring Person or by one or more Subsidiaries.

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(H)

Adjustments.

(i)

If the Corporation, at any time while the Series A-4 Preferred Stock is outstanding: (a) shall pay a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation pursuant to this Series A-4 Preferred Stock), (b) subdivide outstanding shares of Common Stock into a larger number of shares, (c) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (d) issue by reclassification of shares of the Common Stock any shares of Capital Stock of the Corporation, then the Preferred Conversion Price shall be adjusted by multiplying the then Preferred Conversion Price by a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to the event and the denominator of which shall be the number of shares of Common Stock outstanding immediately following the event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.

(ii)

Calculations. All calculations under this Section 6(H) shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation, and the description of any such shares of Common Stock shall be considered on issue or sale of Common Stock. For purposes of this Section 6(H), the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) actually issued and outstanding.

7.Status of Converted and Redeemed Shares; Limitations on Series A-4 Preferred Stock. The Company shall return to the status of unauthorized and undesignated shares of Series A-4 Preferred Stock each share of Series A-4 Preferred Stock which shall be converted, redeemed or for any other reason acquired by the Company, and such shares thereafter may have such characteristics and designations as the Board may determine. Without the consent of Majority of the Series A-4 Preferred Stock, the Company will not issue any further shares of Series A-4 Preferred Stock.

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Annex D

Certificate of Designations of Preferences, Rights and Limitations of

Series B-2 Senior Cumulative Convertible Preferred Stock

[see attached]

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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

FORM OF CERTIFICATE OF DESIGNATIONS OF PREFERENCES,

RIGHTS AND LIMITATIONS

OF

SERIES B-2 SENIOR CUMULATIVE CONVERTIBLE PREFERRED STOCK

Pursuant to Section 151 of the Delaware General Corporation Law and Article Fourth Section 2 of the Certificate of Incorporation (as amended, the “Certificate of Incorporation” of Fusion Telecommunications International, Inc. (the “Corporation”), a corporation organized and existing under the laws of the State of Delaware, hereby certifies that the following resolution was duly adopted by the board of directors of the Corporation (the “Board”) effective as of December 26, 2013, pursuant to authority conferred upon the Board by the Certificate of Incorporation, which authorizes the issuance of up to ten million (10,000,000) shares of preferred stock, par value $.01 per share.

RESOLVED, that pursuant to authority expressly granted to and vested in the Board and pursuant to the provisions of the Certificate of Incorporation, the Board hereby creates a series of preferred stock, herein designated and authorized as the Series B-2 Senior Cumulative Convertible Preferred Stock, par value $0.01 per share, which shall consist of Twenty Four Thousand (24,000) of the ten million (10,000,000) shares of preferred stock (the Series B-2 Preferred Stock”) which the Corporation now has authority to issue, and the Board hereby fixes the powers, designations and preferences and the relative, participating, optional and other special rights of the shares of such series, and the qualifications, limitations and restrictions thereof as follows:

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Section 1.Definitions. For the purposes hereof, the following terms shall have the following meanings:

“Acquiring Person” has the meaning set forth in Section 7(c) hereof.

“Board” has the meaning set forth in the preamble hereof.

“Business Day” means any day on which the Common Stock may trade on a Trading Market, or, if not admitted for trading, any day other than a Saturday, Sunday or holiday on which banks in New York City are required or permitted to be closed.

“Capital Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated) of capital or capital stock of such Person and (ii) with respect to any Person that is not a corporation, any and all partnership, limited partnership, limited liability company or other equity interests of such Person.

“Certificate of Incorporation” has the meaning set forth in the Preamble hereof.

“Change In Control” has the meaning set forth in Section 7(c) hereof.

“Closing Date” means any day on which a closing of the Offering is conducted as and the proceeds from such closing are disbursed.

“Commission” means the Securities and Exchange Commission.

“Common Stock”  means the Corporation’s common stock, par value $0.01 per share, and any Capital Stock for or into which such Common Stock hereafter is exchanged, converted, reclassified or recapitalized by the Corporation or pursuant to a Change of Control to which the Corporation is a party (or, at the election of the Acquiring Person, the Capital Stock of any Acquiring Person from and after the consummation of a Change of Control).

“Corporation” means Fusion Telecommunications International, Inc., a Delaware corporation (or, if, as, and when applicable, any Acquiring Person from and after the consummation of a Change of Control).

“Company Conversion Notice” has the meaning set forth in Section 6(d).

“Company Conversion Right” has the meaning set forth in Section 6(d).

“Conversion Date” has the meaning set forth in Section 6(a).

“Conversion Shares” means, collectively, the shares of Common Stock into which the shares of Series B-2 Preferred Stock are convertible in accordance with the terms hereof.

“Conversion Shares Registration Statement” means a registration statement that meets the requirements of the Registration Rights Agreement and registers the resale of all Conversion Shares by the Holder, who shall be named as a “selling stockholder” thereunder, all as provided in the Registration Rights Agreement.

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“Effective Date” means the date that the Conversion Shares Registration Statement, if any, is declared effective by the Commission.

“Escrow Agent” means Bank of New York or any successor escrow agent for the Offering.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Final Closing” means the Closing Date after which the Corporation ceases to offer for sale the Series B-2 Preferred Stock.

“Holder” has the meaning set forth in Section 2 hereof.

“Junior Securities” means Capital Stock that, with respect to dividends and distributions upon Liquidation, ranks junior to the Series B-2 Preferred Stock, including but not limited to Common Stock and any other class or series of Capital Stock issued by the Corporation or any Subsidiary of the Corporation on or after the Original Issue Date, but excluding any Parity Securities and Senior Securities issued (i) to Holders of the Series B-2 Preferred Stock, (ii) with the approval of the Holders of a Majority of the Series B-2 Preferred Stock or (iii) upon the conversion, redemption or exercise of securities described in clause (i) or (ii) in accordance with the terms thereof.

“Liquidation” means the voluntary or involuntary liquidation, dissolution or winding up of the Corporation; provided, however, that a consolidation, merger or share exchange shall not be deemed a Liquidation, nor shall a sale, assignment, conveyance, transfer, lease or other disposition by the Corporation of all or substantially all of its assets, which does not involve a substantial distribution by the Corporation of cash or other property to the holders of Common Stock, be deemed to be a Liquidation.

“Majority of the Series B-2 Preferred Stock” means more than fifty (50%) percent of the then outstanding shares of the Series B-2 Preferred Stock.

“Memorandum” means the Corporation’s Private Placement Memorandum dated December 11, 2013

“Offering” means the Corporation’s private offering of up to $20,000,000 in units of the Corporation consisting of Series B-2 Preferred Stock and Warrants, pursuant to the Memorandum, with an over-allotment option of up to $4,000,000.

“Original Issue Date” shall mean the date of the first issuance of any shares of the Series B-2 Preferred Stock regardless of the number of transfers of any particular shares of Series B-2 Preferred Stock and regardless of the number of certificates which may be issued to evidence such Series B-2 Preferred Stock.

“Parity Securities” means any class or series of Capital Stock that, with respect to dividends or distributions upon Liquidation, is pari passu with all Series B-2 Preferred Stock. For the avoidance of doubt, each series of Series B-2 Preferred Shares is a Parity Security with respect to each other series of Series B-2 Preferred Shares.

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“Person” means a corporation, an association, a partnership, a limited liability company, a business association, an individual, a government or political subdivision thereof or a governmental agency.

“Parent” shall mean any corporation (other than the Acquiring Person) in an unbroken chain of corporations ending with the Acquiring Person, provided each corporation in the unbroken chain (other than the Acquiring Person) owns, at the time of the determination, stock possessing fifty (50%) percent or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

“Preferred Conversion Rate” has the meaning set forth in Section 6(a).

“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Closing Date, to which the Corporation and the original Holders are parties, as amended, modified or supplemented from time to time in accordance with its terms.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Senior Securities” means any class or series of Capital Stock that, with respect to dividends or distributions upon Liquidation, ranks senior to the Series B-2 Preferred Stock.

“Series B-2 Preferred Stock” shall have the meaning set forth in Section 2.

“Share Authorization Date” shall mean the effective date of the amendment to the Corporation’s Certificate of Incorporation filed with Secretary of State of the State of Delaware increasing the number of authorized shares of the Corporation’s Common Stock to such amount as shall permit all of the outstanding shares of Series B-2 Preferred Stock to be converted and all outstanding Warrants to be exercised into the Corporation’s Common Stock.

“Stated Value” is an amount equal to one thousand dollars ($1,000) per share of the Series B-2 Preferred Stock plus any accrued and unpaid dividends, whether or not declared and whether or not earnings are available in respect of such dividends.  In the event the Corporation shall declare a distribution on the Common Stock payable in securities or property other than cash, the value of such securities or property will be the fair market value. Any securities shall be valued as follows: (i) if traded on a Trading Market, the value shall be deemed to be the VWAP over the ten (10) Trading Days immediately prior to the period ending three (3) calendar days prior to such declaration; or (ii)  if the Common Stock is not then listed or quoted on a Trading Market and if prices for the Common Stock are then reported in the “OTC Markets Pink Sheets” published by OTC Markets (or a similar organization or agency succeeding to its functions of reporting prices), the VWAP of the five most recent bid prices per share of the Common Stock so reported; or (ii) in all other cases, the fair market value of a share of Common Stock as determined in good faith by the Corporation’s Board.

“Subsidiary” shall mean any corporation at least fifty (50%) percent of whose outstanding voting stock shall at the time be owned directly or indirectly by the Acquiring Person or by one or more Subsidiaries.

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“Subscription Agreement” shall mean the subscription agreement by which the initial Holders agreed to purchase the Units from the Company and the Company agreed to sell the Units to the Holders pursuant to the Offering.

“Trading Day” means a day on which the Common Stock is traded on a Trading Market.

“Trading Market” means the principal U.S. national securities exchange (as defined in the Exchange Act) on which the Common Stock is then listed or quoted for trading on the date in question, including, without limitation, the NASDAQ/OMX, NYSE/Euronext, BATS, or if such Common stock is not listed or quoted on any of the foregoing, then the OTCBB, OTCQB or such other over the counter market in which such Common Stock is principally traded.

“Transaction Documents” shall have the meaning set forth in the Subscription Agreement.

“Unit” means the unit consisting of one share of Series B-2 Preferred Stock and one Warrant.

“VWAP” means, means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. New York City time to 4:00 p.m. New York City time); (b) if the Common Stock is not then listed or quoted on a Trading Market and if prices for the Common Stock are then reported in the “OTC Markets Pink Sheets” published by OTC Markets (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported; or (c) in all other cases, the fair market value of a share of Common Stock as determined in good faith by the Corporation’s Board.

“Warrant(s)” means the warrants included in the Units being sold in the Offering.

“Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.

Section 2.Designation, Amount and Par Value. The series of preferred stock created hereby shall be designated as the Corporation’s Series B-2 Senior Cumulative Convertible Preferred Stock (the “Series B-2 Preferred Stock”) and the number of shares so designated shall be Twenty Four Thousand (24,000) shares (which shall not be subject to increase without the consent of the registered holders of a Majority of the Series B-2 Preferred Stock (each a “Holder” and collectively, the “Holders”)).  Each share of Series B-2 Preferred Stock shall have a par value of $.01 per share and a Stated Value of $1,000 per share.

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Section 3.Dividends.  The Holders shall be entitled to receive and the Corporation shall pay, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 6% per annum, payable quarterly on March 30, June 30, September 30 and December 31, beginning with March 31, 2014 and on any Conversion Date or redemption date pursuant to the terms hereunder (except that, if such date is not a Trading Day, the payment date shall be the next succeeding Trading Day) (“Dividend Payment Date”).  The form of dividend payments to each Holder shall be made at the option of the Corporation in cash or shares of Common Stock which shall be valued solely for such purpose at the average of the VWAP for the ten Trading Days immediately prior to the Dividend Payment Date.

Section 4.Voting Rights.  The Holders shall have the following voting rights with respect to the Series B-2 Preferred Stock as set forth in this Section 4 and no other voting rights except as required by law:

(A)            

The Holders shall be entitled to vote along with holders of Common Stock on each matter submitted to a vote of stockholders (at a meeting of stockholders or by written consent in lieu of meeting). The number of votes that each Holder of shares of Series B-2 Preferred Stock shall be entitled to cast as a result of such Holder’s ownership of Series B-2 Preferred Stock shall be equal to the number of shares of Common Stock into which the outstanding shares of Series B-2 Preferred Stock may be converted by the Holder in accordance with the provision of Section 6(a) hereof on the record date for determining those security holders of the Corporation entitled to notice of and to vote on the matter submitted to stockholders.

(B)            

The consent of the Holders of at least a Majority of the Series B-2 Preferred Stock, voting separately as a single class with one vote per share, in person or by proxy, either in writing without a meeting or at an annual or a special meeting of such Holders called for the purpose, shall be necessary to:

(i)amend, alter or repeal, by way of merger or otherwise, any of the provisions of the Certificate of Incorporation, including this Certificate, or Bylaws of the Corporation so as to:

A.            

Change any of the rights, preferences or privileges of Holders. Without limiting the generality of the preceding sentence, such change includes any action that would:

1.Reduce the Dividend Rate on the Series B-2 Preferred Stock, or make such dividends non-cumulative, or defer the date from which dividends will accrue, or cancel accrued and unpaid dividends, or change the relative seniority rights of the Holders of Series B-2 Preferred Stock as to the payment of dividends in relation to the holders of any other Capital Stock of the Corporation;

2.Reduce the amount payable to the Holders of the Series B-2 Preferred Stock upon the voluntary or involuntary liquidation, dissolution, or winding up of the Corporation, or change the relative seniority of the liquidation preferences of the Holders of the Series B-2 Preferred Stock to the rights upon Liquidation of the holders of any other Capital Stock of the Corporation;

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3.Make the Series B-2 Preferred Stock redeemable at the option of the Corporation other than in accordance with the terms of this Certificate.

B.            

Authorize, create or issue any shares of Parity Securities or Senior Securities (or amend the provisions of any existing class of Capital Stock to make such class of Capital Stock a class of Parity Securities or Senior Securities).

(ii)increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series B-2 Preferred Stock or amend any provisions of any Capital Stock so as to make such Capital Stock redeemable by the Corporation except as provided on the date hereof.

Section 5.Liquidation. In the event of any Liquidation, after payment or provision for payment by the Corporation of the debts and other liabilities of the Corporation and the liquidation preference for any Senior Securities that rank senior to the Series B-2 Preferred Stock with respect to distributions upon Liquidation, each Holder shall be entitled to receive an amount in cash for each share of the then outstanding Series B-2 Preferred Stock held by such Holder equal to the greater of (a) the Stated Value per share plus accrued and unpaid dividends to and including the date full payment is tendered to the Holders with respect to such Liquidation, and (b) the amount the Holders would have received if the Holders had converted all outstanding shares of the Series B-2 Preferred Stock into Common Stock plus accrued and unpaid dividends in accordance with the provisions of Section 6(a) hereof, in each case as of the Business Day immediately preceding the date of such Liquidation (the “Liquidation Preference”) before any distribution shall be made to the holders of any Junior Securities (and any Senior Securities or Parity Securities that, with respect to distributions upon Liquidation, rank junior to the Series B-2 Preferred Stock) upon the Liquidation of the Corporation. In case the assets of the Corporation available for payment to the Holders are insufficient to pay the full outstanding shares of Parity Securities and Senior Securities that, with respect to distribution upon Liquidation, are pari passu with the Series B-2 Preferred Stock in the amounts to which the holders of such shares are entitled, then the entire assets of the Company available for payment to the Holders and to the holders of such Parity Securities and Senior Securities shall be distributed ratably among the Holders of the Series B-2 Preferred Stock and the holders of such Parity Securities and Senior Securities, based upon the aggregate amount due on such shares upon Liquidation. Written notice of any Liquidation of the Corporation, stating a payment date and the place where the distributable amounts shall be payable, shall be given by facsimile and overnight delivery not less than ten (10) calendar days prior to the payment date stated therein, to the Holders of record of the Series B-2 Preferred Stock, if any, at their respective addresses as the same shall appear on the books of the Corporation. Upon any Liquidation the Holders of the Series B-2 Preferred Stock shall have liquidation rights senior to the holders of the Corporation’s Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-4 Preferred Stock.

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Section 6.Conversion.

(a)Conversions at Option of Holder. On or after the Share Authorization Date, each share of Series B-2 Preferred Stock shall be, convertible by the Holder thereof into a number of Conversion Shares of the Corporation equal to the Stated Value of the Series B-2 Preferred Stock to be converted divided by $0.10, as adjusted for stock splits, combinations, and reclassifications (“Preferred Conversion Price”). Holders shall effect conversions by providing the Corporation at its principal office conversion notice in the form attached hereto as Annex A (a “Notice of Conversion”) as fully and originally executed by the Holder, together with the delivery by the Holder to the Corporation of the stock certificate(s) representing the number of shares of Series B-2 Preferred Stock so converted, with such stock certificates being duly endorsed in full for transfer to the Corporation or with an applicable stock power duly executed by the Holder in the manner and form as deemed reasonable by the transfer agent of the Common Stock. Each Notice of Conversion shall specify the number of shares of Series B-2 Preferred Stock to be converted, the number of shares of Series B-2 Preferred Stock owned prior to the conversion at issue, the number of shares of Series B-2 Preferred Stock owned subsequent to the conversion at issue, the stock certificate number and the shares of Series B-2 Preferred Stock represented thereby which are accompanying the Notice of Conversion, and the date on which such conversion is to be effected, which date may not be prior to three (3) Trading Days after the date the Holder delivers such Notice of Conversion and the applicable stock certificates to the Corporation (the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be three (3) Trading Days immediately following the date that such Notice of Conversion and applicable stock certificates are delivered to the Corporation.

(b)Beneficial Ownership Limitation.The Corporation shall not effect any conversion of the Series B-2 Preferred Stock, and the Holder shall not have the right to convert any portion of the Series B-2 Preferred Stock to the extent that after giving effect to such conversion, the Holder (together with the Holder’s affiliates), as set forth on the applicable Notice of Conversion, would beneficially own in excess of 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to such conversion.  For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its affiliates shall include the number of shares of Common Stock issuable upon conversion of the Series B-2 Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A) conversion of the remaining, non-converted shares of Series B-2 Preferred Stock beneficially owned by the Holder or any of its affiliates, so long as such shares of Series B-2 Preferred Stock are not convertible within sixty (60) days from the date of such determination, and (B) exercise or conversion of the unexercised or non-converted portion of any other securities of the Corporation (including the Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its affiliates, so long as such other securities of the Corporation are not exercisable nor convertible within sixty (60) days from the date of such determination.  For purposes of this Section 6(b), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of this Section 6(b), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in the most recent of the following: (A) the Corporation’s most recent annual or quarterly periodic report filed with the Commission under the Exchange Act; (B) a more recent public announcement by the Corporation; or (C) any other written notice by the Corporation or the Corporation’s transfer agent setting forth the number of shares of Common Stock outstanding.  In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Series B-2 Preferred Stock, by the Holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was publicly reported by the Corporation.  The provisions of this Section 6(b) may be waived by the Holder upon, at the election of the Holder, not less than sixty one (61) days’ prior notice to the Corporation, and the provisions of this Section 6(b) shall continue to apply until such 61st day (or such later date, as determined by the Holder, as may be specified in such notice of waiver).

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(c)Mechanics of Conversion

(A)            

Delivery of Certificate Upon Conversion. At all times after the Share Authorization Date, the Corporation shall deliver to the Holder, not later than three (3) Trading Days after each Conversion Date (the “Share Delivery Date”): (1) a certificate or certificates representing the number of Conversion Shares being acquired upon the conversion of shares of Series B-2 Preferred Stock, and (2) either (1) a bank check in the amount of accrued and unpaid dividends (if the Corporation has elected or is required to pay accrued dividends in cash) or (2) such number of additional shares of Common Stock equal to (W) the amount of accrued and unpaid dividends divided by (X) the Preferred Conversion Price. At the option of the Holder, with such Holder’s express written consent, the Company shall deliver unregistered Common Stock after the Share Authorization Date but prior to the Effective Date of the Registration Statement.   At any time after the Effective Date of the Registration Statement, the Company shall deliver the Conversion Shares to Holder electronically to Holder’s applicable account at the Depository Trust Company.

(B)            

Reservation of Shares Issuable Upon Conversion.

1.At all times after the Share Authorization Date, the Corporation covenants that it will reserve and keep available out of its authorized and unissued shares of Common Stock solely for the purpose of issuance upon conversion of the Series B-2 Preferred Stock, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of persons other than the Holders, not less than such number of shares of the Common Stock as shall (subject to any additional requirements of the Corporation as to reservation of such shares set forth in the Subscription Agreement) be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of all outstanding shares of Series B-2 Preferred Stock.  The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly and validly authorized, issued and fully paid, and nonassessable.

2.The Series B-2 Preferred Stock shall not be converted at any time prior to the Share Authorization Date.

(C)            

Fractional Shares. Upon a conversion hereunder, the Corporation shall not be required to issue stock certificates representing fractions of shares of the Common Stock. The number of Conversion Shares to be issued upon conversion of the Series B-2 Preferred Stock shall be rounded up or down to the nearest whole Conversion Share.

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(D)            

Transfer Taxes.  The issuance of certificates for shares of the Common Stock on conversion of the Series B-2 Preferred Stock shall be made without charge to the Holders thereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificate, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of such shares of Series B-2 Preferred Stock so converted and the Corporation shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.

(E)            

Holder of Record. Each conversion of Series B-2 Preferred Stock shall be deemed to have been effected immediately before the close of business on the Business Day on which the Conversion Notice is delivered, and at such time the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion as provided herein shall be deemed to have become the holder or holders of record thereof.

(F)            

Partial Conversion. If any conversion is for only part of the shares represented by the certificate surrendered, the Corporation shall send a new Series B-2 Preferred Stock certificate of like tenor via certified or registered mail or reputable overnight courier to such address specified by the Holder, calling in the aggregate on the face or faces thereof for the number of shares of Series B-2 Preferred Stock which have not been converted.

(d)Conversion by the Corporation.   At any time on or after (i) the Share Authorization Date and (ii) the shares of Common Stock have traded at an average VWAP for ten (10) Trading Days at a level at least equal to 250% of the Preferred Conversion Price, the Corporation shall have the right, without the consent of or any action by or on behalf of the Holder, to cause all but not a portion of the then outstanding Series B-2 Preferred Stock, to be converted into Common Stock at the applicable Preferred Conversion Price (the “Company Conversion Right”). In the event the Corporation elects to exercise the Company Conversion Right, the Corporation shall provide each Holder of the then outstanding Series B-2 Preferred Stock with written notice of its intention to cause the conversion of the Series B-2 Preferred Stock into Common Stock, along with (i) the effective date of the Company Conversion Right, (ii) the applicable Preferred Conversion Price and (iii) the number of Conversion Shares into which the Holder’s Series B-2 Preferred Stock is to be converted (the “Company Conversion Notice”). Upon delivery to the Holder of a certificate evidencing the number of Conversion Shares set forth in the Company Conversion Notice, the Holder’s Series B-2 Preferred Stock shall be automatically cancelled and shall thereafter cease to represent any entitlement or equity interest in the Corporation. The certificates evidencing the Series B-2 Preferred Stock shall contain a legend referencing the Company Conversion Right described in this Section.

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Section 7.Certain Adjustments.

(a)Stock Dividends and Stock Splits.  If the Corporation, at any time while the Series B-2 Preferred Stock is outstanding: (A) shall pay a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation pursuant to this Series B-2 Preferred Stock), (B) subdivide outstanding shares of Common Stock into a larger number of shares, (C) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (D) issue by reclassification of shares of the Common Stock any shares of Capital Stock of the Corporation, then the Preferred Conversion Price shall be adjusted by multiplying the then Preferred Conversion Price by a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to the event and the denominator of which shall be the number of shares of Common Stock outstanding immediately following the event.  Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.

(b)Calculations.  All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be.  The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation, and the description of any such shares of Common Stock shall be considered on issue or sale of Common Stock.  For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) actually issued and outstanding.

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(c)Change of Control. In case the Corporation on or after the Original Issue Date is party to any (a) acquisition of the Corporation by means of merger or other form of corporate reorganization in which outstanding shares of the Corporation are exchanged for securities or other consideration issued, or caused to be issued, by the Acquiring Person, or its Parent, Subsidiary, herein defined, or affiliate, (b) a sale of all or substantially all of the assets of the Corporation (on a consolidated basis) in a single transaction or series of related transactions, (c) any other transaction or series of related transactions by the Corporation or relating to the Common Stock (including, without limitation, any stock purchase or tender or exchange offer) in which the power to cast the majority of the eligible votes at a meeting of the Corporation’s stockholders at which directors are elected is transferred to a single entity or group acting in concert, or (d) a capital reorganization or reclassification of the Common Stock or other securities (other than a reorganization or reclassification in which the Common Stock or other securities are not converted into or exchanged for cash or other property, and, immediately after consummation of such transaction, the stockholders of the Corporation immediately prior to such transaction own the Common Stock, other securities or other voting stock of the Corporation in substantially the same proportions relative to each other as such stockholders owned immediately prior to such transaction), then, and in the case of each such transaction (each of which is referred to herein as “Change in Control”), proper provision shall be made so that, at the option of the Acquiring Person and upon fifteen (15) days’ notice to the Corporation and the Holder prior to the consummation of the Change of Control, either (i) the Acquiring Person expressly agrees to assume all of the Corporation’s obligations under the Series B-2 Preferred Stock or (ii) the Holder has fifteen (15) days in which to exercise its conversion rights under the Series B-2 Preferred Stock. If Holder does not exercise its rights during such fifteen (15) day period, all rights under the Series B-2 Preferred Stock shall terminate and the Series B-2 Preferred Stock shall be deemed cancelled. The Corporation, to the extent feasible, shall provide the Holder with thirty (30) days’ notice of the consummation of any Change of Control. Subject to the foregoing, on or before the closing date under the agreement entered into with an Acquiring Person resulting in a Change in Control, the Corporation, if applicable, shall deliver to the Holder written notice that the Acquiring Person has assumed such obligations. “Acquiring Person” means, in connection with any Change in Control, (i) the continuing or surviving corporation of a consolidation or merger with the Corporation (if other than the Corporation), (ii) the transferee of all or substantially all of the properties or assets of the Corporation, (iii) the corporation consolidating with or merging into the Corporation in a consolidation or merger in connection with which the Common Stock is changed into or exchanged for stock or other securities of any other Person or cash or any other property, (iv) the entity or group (other than Holder or any of its affiliates) acting in concert acquiring or possessing the power to cast the majority of the eligible votes at a meeting of the Corporation ‘s stockholders at which directors are elected, or, (v) in the case of a capital reorganization or reclassification, the Corporation, or (vi) at the Holder’s election, any Person that (A) controls the Acquiring Person directly or indirectly through one or more intermediaries, (B) is required to include the Acquiring Person in the consolidated financial statements contained in such Parent’s Annual Report on Form 10-K (if such Person is required to file such a report) or would be required to so include the Acquiring Person in such Person’s consolidated financial statements if they were prepared in accordance with U.S. GAAP and (C) is not itself included in the consolidated financial statements of any other Person (other than its consolidated subsidiaries).

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Section 8.Redemption.

(a)Automatic Redemption.  In addition to all other rights of the Holders, in the event the Corporation, directly or through any subsidiary, does not complete the acquisition of assets from BroadvoxGo! LLC and Cypress Communications, LLC within 10 days after the Final Closing of the Offering (“Acquisition Failure”), the Corporation shall automatically redeem all but not a portion of the Holder’s shares of Series B-2 Preferred Stock at a price per share equal to the Stated Value (the “Redemption Price”), unless the Holder, at such Holder’s option, notifies the Corporation within 30 days after the Acquisition Failure that the Holder elects to receive the Units rather than the Redemption Price.

(b)Mechanics of Refusal of Redemption at Option of Holder.  Upon an Acquisition Failure and for a period 30 days thereafter, the Holder may require the Corporation to issue to the Holder all of the Holder’s Series B-2 Preferred Stock subscribed for by such Holder by delivering written notice thereof by-hand, via facsimile or overnight courier (“Notice of Refusal of Redemption”) to the Company.  The Company shall then be obligated to issue the Series B-2 Preferred Shares to the Holder within 10 business days from the date of delivery of the Notice of Refusal of Redemption.

Section 9.Miscellaneous.

(a)Notices.  Any and all notices or other communications or deliveries to be provided by the Holders hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, sent by a nationally recognized overnight courier service, addressed to the Corporation, at 420 Lexington Avenue, Suite 1718, New York, NY 101070, Attn: President or such other address or facsimile number as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section.  Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, sent by a nationally recognized overnight courier service addressed to each Holder at the address of such Holder appearing on the books of the Corporation, or if no such address appears, at the principal place of business of the Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earlier of (i) the second Business Day following the date of mailing, if sent by nationally recognized overnight courier service, or (ii) upon actual receipt by the party to whom such notice is required to be given.

(b)Lost or Mutilated Preferred Stock Certificate.  If a Holder’s Series B-2 Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series B-2 Preferred Stock so mutilated, lost, stolen or destroyed but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership thereof, and indemnity, if requested, all reasonably satisfactory to the Corporation.

(c)Next Business Day.  Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

(d)Headings.  The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designations and shall not be deemed to limit or affect any of the provisions hereof.

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ANNEX A

NOTICE OF CONVERSION

(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF SERIES A SENIOR CUMULATIVE CONVERTIBLE PREFERRED STOCK)

The undersigned hereby elects to convert the number of shares of Series B-2 Senior Cumulative Convertible Preferred Stock (“Series B-2 Preferred Stock”) indicated below, into shares of common stock, par value $0.01 per share (the “Common Stock”), of Fusion Telecommunications International, Inc., a Delaware corporation (the “Corporation”), according to the conditions hereof, as of the date written below. If shares are to be issued in the name of a person other than undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Corporation in accordance therewith. No fee will be charged to the Holder for any conversion, except for such transfer taxes, if any.

Conversion calculations:

Date to Effect Conversion: _______________________________________________________

Number of shares of Common Stock owned prior to Conversion: _________________________

Number of shares of Series B-2 Preferred Stock to be Converted:  ________________________

Value of shares of Series B-2 Preferred Stock to be Converted:  __________________________

Number of shares of Common Stock to be Issued: _____________________________________

Certificate Number of Series B-2 Preferred Stock attached hereto:  _______________________

Number of Shares of Series B-2 Preferred Stock represented by attached certificate: _________

Number of shares of Series B-2 Preferred Stock subsequent to Conversion: _________________

[HOLDER]

By: __________________________________

Name:

Title:

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EX-3.3

FUSION CONNECT, INC.

CERTIFICATE OF

DESIGNATION OF PREFERENCES,

RIGHTS AND LIMITATIONS

OF

SERIES D CUMULATIVE PREFERRED STOCK

Pursuant to Section 151 of the Delaware General Corporation Law and Article IV of the Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) of Fusion Connect, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), the Corporation hereby certifies that the following resolution was duly adopted by the board of directors of the Corporation (the “Board”) effective as of May 4, 2018, pursuant to the authority conferred upon the Board by the Certificate of Incorporation, which authorizes the issuance of up to 10,000,000 shares of preferred stock, par value $0.01 per share:

RESOLVED, that the designation of 100,000 shares of a new series of preferred stock of the Corporation, designated as the Series D Cumulative Preferred Stock, out of the authorized and unissued shares of preferred stock, par value $0.01 per share, of the Corporation, with the rights and preferences set forth herein, be, and hereby is, approved:

I.            

Designation and Amount

Of the 10,000,000 shares of preferred stock authorized pursuant to Article IV of the Certificate of Incorporation, 100,000 are hereby designated as Series D Cumulative Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”). Each share of Series D Preferred Stock shall have a stated value of $1,000 per share (the “Stated Value”). Subject to Article IV, such number of shares may be increased or decreased by resolution of the Board and by the filing of a certificate pursuant to the provisions of the General Corporation Law of the State of Delaware stating that such reduction or increase has been so authorized; provided, however, that no decrease will reduce the number of shares of Series D Preferred Stock to a number less than the number of shares then outstanding, plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series D Preferred Stock.

II.            

Dividends

Dividends on each share of Series D Preferred Stock shall accrue on a monthly basis at the rate of 12% per annum of the sum of the Stated Value plus all accumulated and unpaid dividends thereon from and including the date of issuance of such share to and including the date on which the Stated Value of such share (plus all accrued and unpaid dividends thereon) is paid to the holder thereof in connection with a Liquidation Event (as defined herein) or the redemption of such share by the Corporation. Such dividends shall accrue whether or not they have been declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. All accrued and unpaid dividends on each share of Series D Preferred Stock shall be paid, at the option of the Corporation, in cash or in kind with shares of Series D Preferred Stock on the last business day of each calendar month; provided that dividends may only be paid in cash after all obligations of the Corporation and its subsidiaries under each of the New Credit Facilities (excluding contingent obligations as to which no claim has been made) have been paid in full in cash, all commitments to extend credit thereunder have been terminated and no letter of credit shall be outstanding thereunder. For purposes of dividends paid in kind, (i) the number of shares of Series D Preferred Stock payable in respect thereof shall be determined using a per share price of $1,000 (adjusted appropriately for stock splits, stock dividends, recapitalizations, consolidations, mergers and the like with respect to the Series D Preferred Stock) and (ii) in lieu of a fractional share of Series D Preferred Stock as a dividend, the Corporation shall issue a whole share of Series D Preferred Stock (rounded up to the nearest whole share).

III.            

Liquidation

(a)Upon any liquidation, dissolution or winding up of the Corporation (whether voluntary or involuntary) (a “Liquidation Event”), each holder of Series D Preferred Stock shall be entitled to be paid, before any distribution or payment is made upon any shares of Common Stock or other Junior Stock, an amount in cash equal to the aggregate Stated Value of all shares of Series D Preferred Stock held by such holder (plus all accrued and unpaid dividends thereon), and the holders of Series D Preferred Stock shall thereafter not be entitled to any further payment. If upon any such liquidation, dissolution or winding up of the Corporation, the Corporation’s assets to be distributed among the holders of the Series D Preferred Stock are insufficient to permit payment to such holders of the aggregate amount that they are entitled to be paid under this Article III, then the assets available to be distributed to the holders of Series D Preferred Stock shall be distributed pro rata among such holders based upon the aggregate Stated Value (plus all accrued and unpaid dividends) of the Series D Preferred Stock held by each such holder.

(b)For purposes of this Article III, a “Liquidation Event” shall be deemed to include, (i) the acquisition of the Corporation by another entity by means of any transaction or series of related transactions to which the Corporation is party (including, without limitation, any stock transaction, reorganization, merger or consolidation) other than a transaction or series of related transactions in which the holders of the voting securities of the Corporation outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, as a result of shares in the Corporation held by such holders prior to such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Corporation or such other surviving or resulting entity (or if the Corporation or such other surviving or resulting entity is a wholly-owned subsidiary immediately following such acquisition, its parent); and (ii) a sale, lease or other disposition of all or substantially all of the assets of the Corporation and its subsidiaries taken as a whole by means of any transaction or series of related transactions, except where such sale, lease or other disposition is to a wholly-owned subsidiary of the Corporation.

IV.            

Redemptions

(a)The Corporation may at any time and from time to time, on a pro rata basis, but only after the payment in full in cash of the Deferred Fees, redeem all or any portion of the shares of Series D Preferred Stock then outstanding. Upon any such redemption, the Corporation shall pay a price per share equal to the Stated Value thereof (plus all accrued and unpaid dividends thereon). Such redemption shall take place on a date fixed by the Corporation.

(b)At any time after the date that the first share of Series D Preferred Stock is issued and at such time as any share of Series D Preferred Stock is issued and outstanding, but only after the payment in full in cash of the Deferred Fees, upon the sale by the Corporation of any of its equity securities for cash, the Corporation shall use the net cash proceeds of such sale to redeem all the shares of Series D Preferred Stock then issued and outstanding or, if such proceeds are less than the amount required to redeem all such issued and outstanding shares of Series D Preferred Stock, the maximum amount of shares of Series D Preferred Stock that can be redeemed using such proceeds, in each case, at a price per share equal to the Stated Value thereof (plus all accrued and unpaid dividends thereon).

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(c)The Corporation shall provide written notice of each redemption of shares of Series D Preferred Stock to each record holder thereof not more than 30 nor less than five days prior to the date on which such redemption is to be made.

(d)If less than all the shares of Series D Preferred Stock are to be redeemed, the number of shares of Series D Preferred Stock to be redeemed from each holder thereof shall be the number of shares determined by multiplying the total number of shares of Series D Preferred Stock to be redeemed by a fraction, the numerator of which shall be the total number of shares of Series D Preferred Stock then held by such holder and the denominator of which shall be the total number of shares of Series D Preferred Stock then outstanding.

V.            

Voting Rights

Except as otherwise provided by law or under Article VI hereof, holders of shares of Series D Preferred Stock will have no voting rights.

VI.        

Certain Restrictions

(a)Whenever dividends payable on the Series D Preferred Stock are in arrears, thereafter and until all accrued and unpaid dividends, whether or not declared, on shares of Series D Preferred Stock outstanding have been paid in full, the Corporation will not, without the written consent of holders of a majority of the then issued and outstanding shares of Series D Preferred Stock:

(i)declare or pay dividends, or make any other distributions, on any shares of Junior Stock (either as to dividends or upon a Liquidation Event);

(ii)declare or pay dividends, or make any other distributions, on any shares of stock of the Corporation ranking pari passu (either as to dividends or upon a Liquidation Event) with the shares of Series D Preferred Stock;

(iii)redeem, purchase or otherwise acquire for consideration shares of any Junior Stock; or

(iv)redeem, purchase or otherwise acquire for consideration any shares of stock of the Corporation ranking pari passu with the shares of Series D Preferred Stock.

(b)The Corporation will not, without the prior written consent of holders of a majority of the then issued and outstanding shares of Series D Preferred Stock:

(i)amend, alter or repeal the rights, preferences or privileges of the Series D Preferred Stock (including by way of amendment of the Certificate of Incorporation or this Certificate of Designation, including in connection with a merger);

(ii)increase or decrease the authorized number of shares of the Series D Preferred Stock;

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(iii)authorize, create (by reclassification or otherwise) or issue shares of any class or series of equity securities of the Corporation that is senior or pari passu to the Series D Preferred Stock;

(iv)take any action that results in the redemption of any shares of Common Stock or other equity securities of the Corporation, other than the outstanding shares of Series D Preferred Stock;

(v)issue additional shares of Series D Preferred Stock (except in respect of in kind dividends or distributions pursuant to this Certificate of Designation);

(vi)authorize, enter into an agreement with respect to, or effect any Liquidation Event that does not result in the redemption in full of the Series D Preferred Stock pursuant to the terms of this Certificate of Designation;

(vii)amend or waive any provision of the Certificate of Incorporation, the bylaws of the Corporation or this Certificate of Designation in a manner that is adverse in any respect to the holders of the Series D Preferred Stock; or

(viii)enter into any commitment to do any of the foregoing.

VII.      

Reacquired Shares

Any shares of Series D Preferred Stock redeemed or otherwise acquired by the Corporation in any manner whatsoever will be retired and canceled promptly after the acquisition thereof. All such shares will upon their cancellation become authorized but unissued shares of preferred stock and may be reissued as part of a new series of preferred stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, or in any other preferred stock Certificate of Designation creating a series of preferred stock or any similar stock or as otherwise required by law.

VIII.

Rank

The Series D Preferred Stock ranks, with respect to the payment of dividends and the distribution of assets, junior to all other series of the Corporation’s preferred stock existing on the date that the first share of Series D Preferred Stock is issued.

IX.       

Definitions

For purposes hereof, the following terms will have the following meanings:

“Deferred Fees” means $4.0 million in aggregate of fees that are (i) owed by the Corporation to Goldman Sachs Lending Partners LLC in connection with the New Credit Facilities and/or (ii) owed by BCHI to Moelis & Company in connection with financial advisory services provided by it to BCHI in connection with the Merger Agreement.

“Junior Stock” shall mean the Common Stock and any other class or series of stock of the Corporation ranking junior to the Series D Preferred Stock in respect of the right to receive dividends and distributions or in respect of the right to receive assets upon the liquidation, dissolution or winding up of the Corporation.

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“Merger Agreement” shall mean the Agreement and Plan of Merger, dated August 26, 2017, as amended, by and among the Corporation, Fusion BCHI Acquisition LLC, a wholly-owned subsidiary of the Corporation (“BCHI”), and Birch Communications Holdings, Inc.

“New Credit Facilities” shall mean the First Lien Credit and Guaranty Agreement and the Second Lien Credit and Guaranty Agreement, each dated as of the date hereof, among the Corporation, as borrower, certain subsidiaries of the Corporation party thereto, as guarantor subsidiaries, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent.

“Senior Stock” shall mean any class or series of stock of the Corporation issued after the date on which the first share of Series D Preferred Stock is issued ranking senior to the Series D Preferred Stock in respect of the right to receive dividends and distributions and in respect of the right to receive assets upon the liquidation, dissolution or winding up of the affairs of the Corporation.

X.            

Effective Time

This Certificate of Designation shall be effective on May 4, 2018 at 3:00 p.m., Eastern Time.

[Signature Page Follows]

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IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Executive Vice President and General Counsel this 4th day of May 2018.

FUSION CONNECT, INC.

By: /s/ James P. Prenetta, Jr.  

       Name: James P. Prenetta, Jr. 

       Title: Executive Vice President

            and General Counsel

EX-3.4

AMENDED AND RESTATED

BYLAWS

OF

FUSION CONNECT, INC.

ARTICLE I

Offices

SECTION 1.01  Registered Office. The registered office and registered agent of Fusion Connect, Inc. (the “Corporation”) in the State of Delaware shall be as set forth in the Certificate of Incorporation (as defined below). The Corporation may also have offices in such other places in the United States or elsewhere (and may change the Corporation’s registered agent) as the Board of Directors of the Corporation (the “Board”) may, from time to time, determine or as the business of the Corporation may require as determined by any officer of the Corporation.

ARTICLE II

Meetings of Stockholders

SECTION 2.01  Annual Meetings. Annual meetings of stockholders may be held at such place, if any, either within or without the State of Delaware, and at such time and date as the Board shall determine and state in the notice of meeting. The Board may, in its sole discretion, determine that meetings of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication as described in Section 2.11 of these Bylaws in accordance with Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”). The Board may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board.

SECTION 2.02  Special Meetings. Subject to any rights of holders, if any, of any series of preferred stock, special meetings of the stockholders may only be called in the manner provided in the Corporation’s certificate of incorporation as then in effect (as the same may be amended and/or restated from time to time, the “Certificate of Incorporation”), and may be held at such place, if any, either within or without the State of Delaware, and at such time and date as the Board, the Chairman of the Board or the Chief Executive Officer shall determine and state in the notice of such meeting. The Board may postpone, reschedule or cancel any special meeting of stockholders previously scheduled by the Board, the Chairman of the Board or the Chief Executive Officer.

SECTION 2.03  Notice of Stockholder Business and Nominations.

(A)           Annual Meetings of Stockholders.

(1)           Nominations of persons for election to the Board and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) so long as it remains in effect, as provided in the Stockholders’ Agreement, dated as of May 4, 2018, among the Corporation, BCHI Holdings, LLC, the Initial FTI Stockholders (as defined therein) and any other person that becomes a party thereto (as amended and/or restated from time to time, the “Stockholders’ Agreement”) (with respect to nominations of persons for election to the Board only), (b) pursuant to the Corporation’s notice of meeting (or any supplement thereto) delivered pursuant to Section 2.04 of Article II of these Bylaws, (c) by or at the direction of the Board or any authorized committee thereof or (d) by any stockholder of the Corporation who is entitled to vote at the meeting, who, except as provided in paragraph (C)(4) of this Section 2.03, complied with the notice procedures set forth in paragraphs (A)(2) and (A)(3) of this Section 2.03 and who was a stockholder of record at the time such notice is delivered to the Secretary of the Corporation.

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(2)           For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (d) of paragraph (A)(1) of this Section 2.03, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation, and, in the case of business other than nominations of persons for election to the Board, such other business must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred and twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than thirty (30) days, or delayed by more than seventy (70) days, from the anniversary date of the previous year’s meeting, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered not earlier than one hundred and twenty (120) days prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made. Public announcement of an adjournment or postponement of an annual meeting shall not commence a new time period (or extend any time period) for the giving of a stockholder’s notice. Notwithstanding anything in this Section 2.03(A)(2) to the contrary, if the number of directors to be elected to the Board at an annual meeting is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board at least one hundred (100) calendar days prior to the first anniversary of the prior year’s annual meeting of stockholders, then a stockholder’s notice required by this Section shall be considered timely, but only with respect to nominees for any new positions created by such increase, if it is received by the Secretary of the Corporation not later than the close of business on the tenth (10th) calendar day following the day on which such public announcement of the increase in the number of directors is first made by the Corporation.

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(3)           Such stockholder’s notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books and records, and of such beneficial owner, (ii) the class or series and number of shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially and of record by such stockholder and such beneficial owner, (iii) a representation that the stockholder is a holder of record of the stock of the Corporation at the time of the giving of the notice, will be entitled to vote at such meeting and will appear in person or by proxy at the meeting to propose such business or nomination, (iv) a representation whether the stockholder or the beneficial owner, if any, will be or is part of a group which will (x) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the voting power of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies or votes from stockholders in support of such proposal or nomination, (v) a certification regarding whether such stockholder and beneficial owner, if any, have complied with all applicable federal, state and other legal requirements in connection with the stockholder’s and/or beneficial owner’s acquisition of shares of capital stock or other securities of the Corporation and/or the stockholder’s and/or beneficial owner’s acts or omissions as a stockholder of the Corporation and (vi) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; (d) a description of any agreement, arrangement or understanding with respect to the nomination or proposal and/or the voting of shares of any class or series of stock of the Corporation between or among the stockholder giving the notice, the beneficial owner, if any, on whose behalf the nomination or proposal is made, any of their respective affiliates or associates and/or any others acting in concert with any of the foregoing (collectively, “proponent persons”); and (e) a description of any agreement, arrangement or understanding (including without limitation any contract to purchase or sell, acquisition or grant of any option, right or warrant to purchase or sell, swap or other instrument) to which any proponent person is a party, the intent or effect of which may be (i) to transfer to or from any proponent person, in whole or in part, any of the economic consequences of ownership of any security of the Corporation, (ii) to increase or decrease the voting power of any proponent person with respect to shares of any class or series of stock of the Corporation and/or (iii) to provide any proponent person, directly or indirectly, with the opportunity to profit or share in any profit derived from, or to otherwise benefit economically from, any increase or decrease in the value of any security of the Corporation. A stockholder providing notice of a proposed nomination for election to the Board or other business proposed to be brought before a meeting (whether given pursuant to this paragraph (A)(3) or paragraph (B) of this Section 2.03 of these Bylaws) shall update and supplement such notice from time to time to the extent necessary so that the information provided or required to be provided in such notice shall be true and correct (x) as of the record date for determining the stockholders entitled to notice of the meeting and (y) as of the date that is fifteen (15) days prior to the meeting or any adjournment or postponement thereof, provided that if the record date for determining the stockholders entitled to vote at the meeting is less than fifteen (15) days prior to the meeting or any adjournment or postponement thereof, the information shall be supplemented and updated as of such later date. Any such update and supplement shall be delivered in writing to the Secretary of the Corporation at the principal executive offices of the Corporation not later than five (5) days after the record date for determining the stockholders entitled to notice of the meeting (in the case of any update and supplement required to be made as of the record date for determining the stockholders entitled to notice of the meeting), not later than ten (10) days prior to the date for the meeting or any adjournment or postponement thereof (in the case of any update or supplement required to be made as of fifteen (15) days prior to the meeting or adjournment or postponement thereof) and not later than five (5) days after the record date for determining the stockholders entitled to vote at the meeting, but no later than the date prior to the meeting or any adjournment or postponement thereof (in the case of any update and supplement required to be made as of a date less than fifteen (15) days prior the date of the meeting or any adjournment or postponement thereof). The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation and to determine the independence of such director under the Exchange Act and rules and regulations thereunder and applicable stock exchange rules.

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(B)           Special Meetings of Stockholders. Only such business (including the election of specific individuals to fill vacancies or newly created directorships on the Board) shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting.  At any time that stockholders are not prohibited from filling vacancies or newly created directorships on the Board, nominations of persons for the election to the Board to fill any vacancy or unfilled newly created directorship may be made at a special meeting of stockholders at which any proposal to fill any vacancy or unfilled newly created directorship is to be presented to the stockholders (1) so long as in effect, as provided in the Stockholders’ Agreement, (2) by or at the direction of the Board or any committee thereof or (3) by any stockholder of the Corporation who is entitled to vote at the meeting on such matters, who (subject to paragraph (C)(4) of this Section 2.03) complies with the notice procedures set forth in this Section 2.03 and who is a stockholder of record at the time such notice is delivered to the Secretary of the Corporation.  In the event the Corporation calls a special meeting of stockholders for the purpose of submitting a proposal to stockholders for the election of one or more directors to fill any vacancy or newly created directorship on the Board, any such stockholder entitled to vote on such matter may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting if the stockholder’s notice as required by paragraph (A)(2) of this Section 2.03 shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the close of business on the one hundred and twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting at which directors are to be elected.  In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(C)           General.   (1) Except as provided in paragraph (C)(4) of this Section 2.03, only such persons who are nominated in accordance with the procedures set forth in this Section 2.03 or, so long as in effect, the Stockholders’ Agreement shall be eligible to serve as directors and only such business shall be conducted at an annual or special meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the chairman of the meeting shall, in addition to making any other determination that may be appropriate for the conduct of the meeting, have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective proposal or nomination shall be disregarded. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the chairman of the meeting shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting, (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants and on stockholder approvals. Notwithstanding the foregoing provisions of this Section 2.03, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.03, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders. Unless and to the extent determined by the Board or the chairman of the meeting, the meeting of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. 

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(2)           Whenever used in these Bylaws, “public announcement” shall mean disclosure (a) in a press release released by the Corporation, provided such press release is released by the Corporation following its customary procedures, is reported by the Dow Jones News Service, Associated Press or comparable national news service, or is generally available on internet news sites, or (b) in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

(3)           Notwithstanding the foregoing provisions of this Section 2.03, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.03; provided, however, that, to the fullest extent permitted by law, any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to these Bylaws (including paragraphs (A)(1)(d) and (B) hereof), and compliance with paragraphs (A)(1)(d) and (B) of this Section 2.03 of these Bylaws shall be the exclusive means for a stockholder to make nominations or submit other business. Nothing in these Bylaws shall be deemed to affect any rights of the holders of any class or series of stock having a preference over the Corporation’s common stock as to dividends or upon liquidation to elect directors under specified circumstances.

(4)           Notwithstanding anything to the contrary contained in this Section 2.03, for as long as the Stockholders’ Agreement remains in effect, any nomination of directors pursuant to and in accordance with the Stockholders’ Agreement shall not be subject to the notice procedures set forth in paragraphs (A)(2), (A)(3) or (B) of this Section 2.03 with respect to any annual or special meeting of stockholders.

SECTION 2.04  Notice of Meetings.   Whenever stockholders are required or permitted to take any action at a meeting, a timely notice in writing or by electronic transmission, in the manner provided in Section 232 of the DGCL, of the meeting, which shall state the place, if any, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purposes for which the meeting is called, shall be mailed to or transmitted electronically by the Secretary of the Corporation to each stockholder of record entitled to vote thereat as of the record date for determining the stockholders entitled to notice of the meeting. Unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting.

SECTION 2.05  Quorum.  Unless otherwise required by law, the Certificate of Incorporation or the rules of any stock exchange upon which the Corporation’s securities are listed, the holders of record of a majority of the voting power of the issued and outstanding shares of capital stock of the Corporation entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders. Notwithstanding the foregoing, where a separate vote by a class or series or classes or series is required, a majority in voting power of the outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on that matter. Once a quorum is present to organize a meeting, it shall not be broken by the subsequent withdrawal of any stockholders.

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SECTION 2.06  Voting. Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy in any manner provided by applicable law, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. Unless required by the Certificate of Incorporation or applicable law, or determined by the chairman of the meeting to be advisable, the vote on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by such stockholder’s proxy, if there be such proxy. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the voting power of the shares of stock present in person or represented by proxy and entitled to vote on the subject matter shall decide any question brought before such meeting, unless the matter is one upon which, by express provision of applicable law, of the rules or regulations of any stock exchange applicable to the Corporation, of any regulation applicable to the Corporation or its securities, of the Certificate of Incorporation or of these Bylaws, a minimum or different vote is required, in which case such minimum or different vote shall be the applicable vote on such matter. Notwithstanding the foregoing sentence and subject to the Certificate of Incorporation, all elections of directors shall be determined by a plurality of the votes cast in respect of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors.

SECTION 2.07   Chairman of Meetings. The Chairman of the Board, if one is elected, or, in his or her absence or disability, the Vice Chairman of the Board, if one is appointed, or in his or her absence of disability, the Chief Executive Officer of the Corporation, or in the absence of the Chairman of the Board, the Vice Chairman of the Board and the Chief Executive Officer, a person designated by the Board shall be the chairman of the meeting and, as such, preside at all meetings of the stockholders.

SECTION 2.08  Secretary of Meetings. The Secretary of the Corporation shall act as Secretary at all meetings of the stockholders. In the absence or disability of the Secretary,an Assistant Secretary of the Corporation shall act as Secretary at all meetings of the Stockholders. In the absence of the Secretary and all Assistant Secretaries of the Corporation, the Chairman of the Board, the Vice Chairman of the Board or the Chief Executive Officer shall appoint a person to act as Secretary at such meetings.

SECTION 2.09  Consent of Stockholders in Lieu of Meeting. Any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote only to the extent permitted by and in the manner provided in the Certificate of Incorporation and in accordance with applicable law.

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SECTION 2.10  Adjournment. At any meeting of stockholders of the Corporation, if less than a quorum be present, the chairman of the meeting or stockholders upon the vote of a majority of the votes cast, shall have the power to adjourn the meeting from time to time without notice other than announcement at the meeting until a quorum shall be present. Any business may be transacted at the adjourned meeting that might have been transacted at the meeting originally noticed. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date so fixed for notice of such adjourned meeting.

SECTION 2.11  Remote Communication. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:

(a)           participate in a meeting of stockholders; and

(b)           be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication, provided, that

(i)           the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder;

(ii)         the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and

(iii)         if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

SECTION 2.12   Inspectors of Election. The Corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment or postponement thereof and to make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the Corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

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ARTICLE III

Board of Directors

SECTION 3.01  Powers. Except as otherwise provided by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of its Board. The Board may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by the DGCL or the Certificate of Incorporation directed or required to be exercised or done by the stockholders.

SECTION 3.02   Number and Term; Chairman. Subject to the rights, if any, of holders of any series of preferred stock, and subject to the provisions of the Certificate of Incorporation and the Stockholders’ Agreement (so long as it is in effect), the number of directors shall be fixed exclusively by resolution of the Board. Directors shall be elected by the stockholders at their annual meeting, and the term of each director so elected shall be as set forth in the Certificate of Incorporation. Directors need not be stockholders. The Board shall elect a Chairman of the Board, who shall have the powers and perform such duties as provided in these Bylaws and as the Board may from time to time prescribe. The Chairman of the Board shall preside at all meetings of the Board at which he or she is present. The Board may also appoint a Vice Chairman of the Board. If the Chairman of the Board is not present at a meeting of the Board, the Vice Chairman of the Board, if one has been appointed, shall preside at such meeting. If neither the Chairman of the Board nor the Vice Chairman of the Board is present at a meeting of the Board, the Chief Executive Officer (if the Chief Executive Officer is a director and is not also the Chairman of the Board) shall preside at such meeting, and, if the Chief Executive Officer is not present at such meeting or is not a director, a majority of the directors present at such meeting shall elect one (1) of their members to preside. The Board may remove and/or replace the Chairman of the Board or the Vice Chairman of the Board at any time.

SECTION 3.03   Resignations. Any director may resign at any time upon notice given in writing or by electronic transmission to the Board, the Chairman of the Board, the Chief Executive Officer or the Secretary of the Corporation. The resignation shall take effect at the time specified therein, and if no time is specified, at the time of its receipt. The acceptance of a resignation shall not be necessary to make it effective unless otherwise expressly provided in the resignation.

SECTION 3.04   Removal. Directors of the Corporation may be removed in the manner provided by applicable law.

SECTION 3.05   Vacancies and Newly Created Directorships. Subject to the rights, if any, of the holders of any series of preferred stock, and subject to the Stockholders’ Agreement (so long as it is in effect), newly created directorships resulting from any increase in the number of directors and any vacancies on the Board resulting from death, resignation, disqualification, removal, or other cause will be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board, or by a sole remaining director. Any director elected in accordance with the preceding sentence will hold office for the remainder of the full term of the director whose seat is being filled and until such director’s successor has been elected and qualified. No decrease in the number of directors constituting the Board may shorten the term of any incumbent director.

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SECTION 3.06   Meetings. Regular meetings of the Board may be held at such places and times as shall be determined from time to time by the Board. Special meetings of the Board may be called by the Chief Executive Officer of the Corporation or the Chairman or Vice Chairman of the Board, and shall be called by the Chief Executive Officer or the Secretary of the Corporation if directed by the Board and shall be at such places and times as they or he or she shall fix. Notice need not be given of regular meetings of the Board. At least twenty four (24) hours before each special meeting of the Board, either written notice, notice by electronic transmission or oral notice (either in person or by telephone) notice of the time, date and place of the meeting shall be given to each director. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.

SECTION 3.07  Quorum, Voting and Adjournment. A majority of the total number of directors shall constitute a quorum for the transaction of business. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting to another time and place. Notice of such adjourned meeting need not be given if the time and place of such adjourned meeting are announced at the meeting so adjourned.

SECTION 3.08   Committees; Committee Rules. The Board may designate one or more committees, including but not limited to an Audit Committee and a Nominations and Compensation Committee, each such committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee to replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board establishing such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval or (b) adopting, amending or repealing any Bylaw or the Bylaws of the Corporation. All committees of the Board shall keep minutes of their meetings and shall report their proceedings to the Board when requested or required by the Board. Each committee of the Board may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the Board designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum unless the committee shall consist of one or two members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present at a meeting of the committee at which a quorum is present. Unless otherwise provided in such a resolution, in the event that a member and that member’s alternate, if alternates are designated by the Board, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member.

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SECTION 3.09   Action Without a Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or any committee thereof, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed in the minutes of proceedings of the Board or committee, as applicable. Such filing shall be in paper form if the minutes are maintained in paper form or shall be in electronic form if the minutes are maintained in electronic form.

SECTION 3.10   Remote Meeting. Unless otherwise restricted by the Certificate of Incorporation, members of the Board, or any committee designated by the Board, may participate in a meeting by means of conference telephone or other communications equipment in which all persons participating in the meeting can hear each other. Participation in a meeting by means of conference telephone or other communications equipment shall constitute presence in person at such meeting.

SECTION 3.11  Compensation. The Board shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity.

SECTION 3.12 Reliance on Books and Records. A member of the Board, or a member of any committee designated by the Board shall, in the performance of such person’s duties, be fully protected in relying in good faith upon records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board, or by any other person as to matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.

ARTICLE IV

Officers

SECTION 4.01  Number. The officers of the Corporation shall include a Chief Executive Officer, a President and a Secretary, each of whom shall be elected by the Board and who shall hold office for such terms as shall be determined by the Board and until their successors are elected and qualify or until their earlier resignation or removal. In addition, the Board may elect one or more Vice Presidents, including one or more Executive Vice Presidents, Senior Vice Presidents, a Chief Operating Officer, a Chief Financial Officer, a Treasurer and one or more Assistant Treasurers and one or more Assistant Secretaries, who shall hold their office for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. Any number of offices may be held by the same person. The Chairman of the Board and Vice Chairman of the Board shall not be officers of the Corporation unless the Board by resolution determines otherwise.

SECTION 4.02   Other Officers and Agents. The Board may appoint such other officers and agents as it deems advisable, who shall hold their office for such terms and shall exercise and perform such powers and duties as shall be determined from time to time by the Board.

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SECTION 4.03   Chief Executive Officer. The Chief Executive Officer, subject to the control of the Board, shall have general responsibility for the business and affairs of the Corporation and shall be the chief policy making officer of the Corporation. The Chief Executive Officer shall preside at all meetings of the stockholders, and in the absence of the Chairman of the Board and the Vice Chairman of the Board, shall preside at all meetings of the Board and he or she shall have such other powers and duties as may be assigned to, or required of, such officer from time to time by the Board or these Bylaws.

SECTION 4.04   President. The President, subject to the powers of the Board and the Chief Executive Officer, shall have the general powers and duties incident to the office of the president of a corporation, shall perform such duties and services and shall have such other powers and duties as may be assigned to, or required of, such officer from time to time by the Chief Executive Officer or these Bylaws. In the absence of the Chairman of the Board, the Vice Chairman of the Board and the Chief Executive Officer, he shall preside at all meetings of the Board.

SECTION 4.05   Chief Operating Officer. The Chief Operating Officer, subject to the powers of the Board and the Chief Executive Officer, shall have direct responsibility for the business and affairs of the Corporation, including supervisory responsibility for the officers, agents, employees and properties of the Corporation and shall have such other powers and duties as may be assigned to or required of such officer from time to time by the Board, the Chief Executive Officer or these Bylaws. In the absence of the Chairman of the Board, the Vice Chairman of the Board, the Chief Executive Officer and the President, he shall preside at all meetings of the Board.

SECTION 4.06  Vice Presidents. Each Vice President, including any Executive Vice President and any Senior Vice President, shall have such powers and perform such duties incident to the office of the vice president of a corporation, and shall have such other powers and duties as may be assigned to or required of such officer from time to time by the Board, the Chief Executive Officer or these Bylaws.

SECTION 4.07  Chief Financial Officer. The Chief Financial Officer shall have responsibility for all financial and accounting matters, including supervisory responsibilities for the Treasurer, any Assistant Treasurer or any Vice President of Finance of the Corporation. The Chief Financial Officer shall have the general powers and duties incident to the office of the chief financial officer of a corporation and shall have such other powers and duties as may be assigned to, or required of, such officer from time to time by the Board, the Chief Executive Officer or these Bylaws.

SECTION 4.08  Treasurer. The Treasurer shall have custody of the corporate funds, securities, evidences of indebtedness and other valuables of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation. The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the Corporation in such depositories as may be designated by the Board or its designees selected for such purposes. The Treasurer shall disburse the funds of the Corporation, taking proper vouchers therefor. The Treasurer shall render to the Chief Executive Officer, the Chief Financial Officer and the Board, upon their request, a report of the financial condition of the Corporation. The Treasurer shall, in the absence or disability of the Chief Financial Officer, act with all of the powers and have the responsibilities assigned to the Chief Financial Officer. In addition, the Treasurer shall have such further powers and perform such other duties incident to the office of Treasurer as from time to time are assigned to him or her by the Chief Executive Officer, the Chief Financial Officer or the Board. If required by the Board, the Treasurer shall give the Corporation a bond for the faithful discharge of his or her duties in such amount and with such surety as the Board shall prescribe.

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SECTION 4.09   Secretary. The Secretary shall (a) record the proceedings of the meetings of the stockholders and the Board in a minute book to be kept for that purpose; (b) cause notices to be duly given in accordance with the provisions of these Bylaws and as required by law; (c) be the custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter provided) and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal; (d) cause the books, reports, statements, certificates and other documents and records required by law to be kept and filed to be properly kept and filed; and (e) in general, have all the powers and perform all the duties incident to the office of secretary of a corporation and shall have such other powers and duties as may be assigned to or required of such officer from time to time by the Board, the Chief Executive Officer or these Bylaws.

SECTION 4.10   Assistant Treasurers and Assistant Secretaries. Each Assistant Treasurer and each Assistant Secretary, if any are elected, shall be vested with all the powers and shall perform all the duties of the Treasurer and Secretary, respectively, in the absence or disability of such officer, unless or until the Chief Executive Officer or the Board shall otherwise determine. In addition, Assistant Treasurers and Assistant Secretaries shall have such powers and shall perform such duties as shall be assigned to them by the Chief Executive Officer, the President or the Board.

SECTION 4.11   Corporate Funds and Checks. The funds of the Corporation shall be kept in such depositories as shall from time to time be prescribed by the Board or its designees selected for such purposes. All checks or other orders for the payment of money shall be signed by the Chief Executive Officer, the Chief Financial Officer and such other persons as may from time to time be authorized by the Board.

SECTION 4.12  Contracts and Other Documents. The Chief Executive Officer, the President, the Chief Operating Officer and any such other officer or officers as may from time to time be authorized by the Board, shall have power to sign and execute on behalf of the Corporation deeds, conveyances and contracts, and any and all other documents requiring execution by the Corporation.

SECTION 4.13  Ownership of Stock of Another Corporation. Unless otherwise directed by the Board, the Chief Executive Officer, the President, the Chief Operating Officer, and any such other person as shall be authorized by the Board, shall have the power and authority, on behalf of the Corporation, to attend and to vote at any meeting of securityholders of any entity in which the Corporation holds securities or equity interests and may exercise, on behalf of the Corporation, any and all of the rights and powers incident to the ownership of such securities or equity interests at any such meeting, including the authority to execute and deliver proxies and consents on behalf of the Corporation.

SECTION 4.14  Delegation of Duties. In the absence, disability or refusal of any officer to exercise and perform his or her duties, the Board may delegate to another officer such powers or duties.

SECTION 4.15   Resignation and Removal. Any officer of the Corporation may be removed from office for or without cause at any time by the Board. Any officer may resign at any time in the same manner prescribed under Section 3.03 of these Bylaws.

SECTION 4.16   Vacancies. The Board shall have the power to fill vacancies occurring in any office.

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ARTICLE V

Stock

SECTION 5.01  Shares With Certificates. The shares of stock of the Corporation shall be represented by certificates, provided that the Board may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of stock in the Corporation represented by certificates shall be entitled to have a certificate signed by, or in the name of the Corporation by any two authorized officers of the Corporation, certifying the number and class of shares of stock of the Corporation owned by such holder. Any or all of the signatures on the certificate may be a facsimile. The Board shall have the power to appoint one or more transfer agents and/or registrars for the transfer or registration of certificates of stock of any class, and may require stock certificates to be countersigned or registered by one or more of such transfer agents and/or registrars.

SECTION 5.02  Shares Without Certificates. If the Board chooses to issue shares of stock without certificates, notice of the information required by the DGCL shall be furnished in accordance with the DGCL within a reasonable time after the issue or transfer of shares without certificates. The Corporation may adopt a system of issuance, recordation and transfer of its shares of stock by electronic or other means not involving the issuance of certificates, provided the use of such system by the Corporation is permitted in accordance with applicable law.

SECTION 5.03  Transfer of Shares.  Shares of stock of the Corporation shall be transferable upon its books by the holders thereof, in person or by their duly authorized attorneys or legal representatives, upon surrender to the Corporation by delivery thereof (to the extent evidenced by a physical stock certificate) to the person in charge of the stock and transfer books and ledgers. Certificates representing such shares, if any, shall be cancelled and new certificates, if the shares are to be certificated, shall thereupon be issued. Shares of capital stock of the Corporation that are not represented by a certificate shall be transferred in accordance with applicable law. A record shall be made of each transfer. Whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented, both the transferor and transferee request the Corporation to do so. The Board shall have power and authority to make such rules and regulations as it may deem necessary or proper concerning the issue, transfer and registration of certificates for shares of stock of the Corporation.

SECTION 5.04  Lost, Stolen, Destroyed or Mutilated Certificates. A new certificate of stock or uncertificated shares may be issued in the place of any certificate previously issued by the Corporation alleged to have been lost, stolen or destroyed, and the Corporation may, in its discretion, require the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to give the Corporation a bond or an agreement of indemnity, in such sum as the Corporation may direct, in order to indemnify the Corporation against any claims that may be made against it in connection therewith. A new certificate or uncertificated shares of stock may be issued in the place of any certificate previously issued by the Corporation that has become mutilated upon the surrender by such owner of such mutilated certificate and, if required by the Corporation, the posting of a bond or delivering an agreement of indemnity by such owner to indemnify the Corporation against any claim that may be made against it in connection therewith.

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SECTION 5.05  List of Stockholders Entitled To Vote. The Corporation shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (a) on a reasonably accessible electronic network; provided that the information required to gain access to such list is provided with the notice of meeting or (b) during ordinary business hours at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 5.05 or to vote in person or by proxy at any meeting of stockholders.

SECTION 5.06  Fixing Date for Determination of Stockholders of Record. 

(A) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.

(B) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall not be more than sixty (60) days prior to such action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

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(C) Unless otherwise restricted by the Certificate of Incorporation, in order that the Corporation may determine the stockholders entitled to express consent to corporate action in writing without a meeting, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board. If no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting is fixed by the Board, (i) when no prior action of the Board is required by law, the record date for such purpose shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, and (ii) if prior action by the Board is required by law, the record date for such purpose shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.

SECTION 5.07  Registered Stockholders. Prior to the surrender to the Corporation of the certificate or certificates for a share or shares of stock or notification to the Corporation of the transfer of uncertificated shares with a request to record the transfer of such share or shares, the Corporation may treat the registered owner of such share or shares as the person entitled to receive dividends, to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner of such share or shares. To the fullest extent permitted by law, the Corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.

ARTICLE VI

Notice and Waiver of Notice

SECTION 6.01  Notice. Notice may be given in any manner permitted by law. If mailed, notice to stockholders shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the DGCL.

SECTION 6.02  Waiver of Notice. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any meeting (in person or by remote communication) shall constitute waiver of notice except attendance for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

ARTICLE VII

Indemnification and Advancement

SECTION 7.01  Right to Indemnification. The rights, if any, of directors, officers, employees and agents of the Corporation with respect to indemnification shall be as set forth in the Certificate of Incorporation.

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SECTION 7.02  Right to Advancement of Expenses. The rights, if any, of directors, officers, employees and agents of the Corporation with respect to advancement of expenses shall be as set forth in the Certificate of Incorporation.

ARTICLE VIII

Miscellaneous

SECTION 8.01  Electronic Transmission. For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

SECTION 8.02   Corporate Seal. The Board may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board or a committee thereof, duplicates of the seal may be kept and used by the Chief Financial Officer or by an Assistant Secretary or Assistant Treasurer.

SECTION 8.03  Fiscal Year. The fiscal year of the Corporation shall end on December 31, or such other day as the Board may designate.

SECTION 8.04  Section Headings. Section headings in these Bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

SECTION 8.05  Inconsistent Provisions. In the event that any provision of these Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation, the DGCL any other applicable law, or the Stockholders’ Agreement (so long as it is in effect), such provision of these Bylaws shall not be given effect to the extent of such inconsistency but shall otherwise be given full force and effect.

ARTICLE IX

Amendments

SECTION 9.01   Amendments.   Subject to the provisions of the Certificate of Incorporation, these Bylaws may be altered, amended or repealed, or new Bylaws adopted or enacted, by the Board or by the stockholders by, in the case of the stockholders, the affirmative vote of shares representing a majority of the voting power of the shares entitled to vote on such matter.

ARTICLE X

Forum Selection

SECTION 10.01  Forum Selection Bylaw. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of the Corporation, (2) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, other employee or stockholder of the Corporation to the Corporation or the Corporation's stockholders, (3) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or these Bylaws or as to which the DGLC confers jurisdiction on the Court of Chancery of the State of Delaware, or (4) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 10.01.

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EX-10.1

AGREEMENT AND PLAN OF MERGER

BY

AND

AMONG

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.,

FUSION MPHC ACQUISITION CORP.,

MEGAPATH HOLDING CORPORATION

AND

SHAREHOLDER REPRESENTATIVE SERVICES LLC, AS STOCKHOLDER REPRESENTATIVE

DATED MAY 4, 2018

ARTICLE I	THE MERGER	1
Section 1.1	The Merger	1
Section 1.2	Closing	2
Section 1.3	Effective Time	2
Section 1.4	Effects	2
Section 1.5	Conversion of Securities	3
Section 1.6	Certificates of Incorporation; Bylaws	4
Section 1.7	Directors	4
Section 1.8	Officers	4
ARTICLE II	DELIVERY OF MERGER CONSIDERATION	4
Section 2.1	Exchange of Shares	4
Section 2.2	Stock Transfer Books	7
Section 2.3	Treatment of Options	7
Section 2.4	Appraisal Rights	7
Section 2.5	Closing Statement	8
Section 2.6	Transactions to Be Effected at the Closing	8
Section 2.7	Merger Consideration Adjustment	8
Section 2.8	Payments from the Holdback Account	10
ARTICLE III	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	10
Section 3.1	Corporate Organization	11
Section 3.2	Capitalization	12
Section 3.3	Authority; No Violation	13
Section 3.4	Consents and Approvals	14
Section 3.5	Financial Statements	14
Section 3.6	Absence of Company Material Adverse Effect	15
Section 3.7	Legal Proceedings	15
Section 3.8	Taxes and Tax Returns	16
Section 3.9	Employee Benefit Plans; Labor	17
Section 3.10	Compliance with Law	20
Section 3.11	Environmental Matters	20
Section 3.12	Material Contracts	21
Section 3.13	Intellectual Property; Data Privacy	22
Section 3.14	Title to Properties; Assets	25
Section 3.15	Real Property	25
Section 3.16	Regulatory Matters	25
Section 3.17	Interconnection Agreements	27
Section 3.18	Network Facilities	27
Section 3.19	Insurance	28
Section 3.20	Application of Takeover Laws	28
Section 3.21	Affiliate Transactions	29
Section 3.22	Customers and Suppliers	29
Section 3.23	Directors, Officers, Managers	29
Section 3.24	Books and Records	29
Section 3.25	Broker’s Fees	30
ARTICLE IV	REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB	30
Section 4.1	Parent Corporate Organization	30
Section 4.2	Merger Sub Corporate Organization	30
Section 4.3	Authority; No Violation	30
Section 4.4	Consents and Approvals	31
Section 4.5	Financing	31
Section 4.6	Legal Proceedings	31
Section 4.7	SEC Reports	31
Section 4.8	Parent Common Stock	31

Section 4.9	Investment Intent	32
Section 4.10	Broker’s Fees	32
ARTICLE V	PRE-CLOSING COVENANTS	32
Section 5.1	Conduct of Businesses by the Company Prior to the Effective Time	32
Section 5.2	Company Forbearances	32
ARTICLE VI	ADDITIONAL AGREEMENTS	35
Section 6.1	Filings; Other Actions; Notification	35
Section 6.2	Written Consent	37
Section 6.3	No Solicitation of Other Bids	37
Section 6.4	Access to Information	38
Section 6.5	Employee Matters	39
Section 6.6	Advice of Changes	40
Section 6.7	Transaction Litigation	40
Section 6.8	Control of the Other Party’s Business	40
Section 6.9	Subsidiary Compliance	41
Section 6.10	Publicity	41
Section 6.11	Takeover Laws	41
Section 6.12	Indemnification of Officers and Directors	41
Section 6.13	Related Party Agreements	42
Section 6.14	Organizational Integration	42
Section 6.15	Resignations	43
Section 6.16	Rule 144 Reporting	43
ARTICLE VII	CLOSING CONDITIONS	43
Section 7.1	Conditions to Each Party’s Obligation to Effect the Merger	43
Section 7.2	Conditions to Obligations of Parent and Merger Sub	43
Section 7.3	Conditions to Obligations of the Company	45
Section 7.4	Frustration of Closing Conditions	45
ARTICLE VIII	TERMINATION AND AMENDMENT	45
Section 8.1	Termination	45
Section 8.2	Effect of Termination	46
ARTICLE IX	INDEMNIFICATION	46
Section 9.1	Survival	46
Section 9.2	Indemnification By Stockholders and Optionholders	46
Section 9.3	Indemnification By Parent	47
Section 9.4	Certain Limitations	47
Section 9.5	Indemnification Procedures	49
Section 9.6	Payments; Escrow Fund	52
Section 9.7	Tax Treatment of Indemnification Payments	53
Section 9.8	Effect of Investigation	53
Section 9.9	Exclusive Remedies	53
ARTICLE X	GENERAL PROVISIONS	53
Section 10.1	Notices	53
Section 10.2	Interpretation	54
Section 10.3	Counterparts	55
Section 10.4	Entire Agreement; Third Party Beneficiaries	55
Section 10.5	Amendment	55
Section 10.6	Extension; Waiver	56
Section 10.7	Governing Law	56
Section 10.8	Jurisdiction	56
Section 10.9	Fees and Expenses	58
Section 10.10	Assignment	58
Section 10.11	Specific Performance	58
Section 10.12	Waivers	58

Section 10.13	Severability	58
Section 10.14	Stockholder Representative	59
Section 10.15	Tax Matters	61
Section 10.16	Definitions	62
Section 10.17	Liability of Financing Source Parties	77

Exhibits

Exhibit A 

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Form of Merger Certificate

Exhibit B    

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Amended and Restated Certificate of Incorporation

Exhibit C      

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Amended and Restated Bylaws

Exhibit D       

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Letter of Transmittal

Exhibit E       

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Form of Escrow Agreement

Exhibit F      

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Example of Working Capital Calculation

Disclosure Schedules

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER, dated May 4, 2018 (as may be amended, supplemented or otherwise modified from time to time in accordance with its terms, this “Agreement”), by and among Fusion Telecommunications International, Inc., a Delaware corporation (“Parent”), Fusion MPHC Acquisition Corp., a Delaware corporation (“Merger Sub”), MegaPath Holding Corporation, a Delaware corporation (the “Company”) and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative of the Stockholders and Optionholders (the “Stockholder Representative”). Parent, Merger Sub and the Company are hereinafter sometimes referred to as a “Party” and collectively as the “Parties.” Capitalized terms used but not otherwise defined herein have the meanings set forth in Section 10.16.

RECITALS

A.           The Boards of Directors of each of the Company and Merger Sub have (1) approved and adopted, and declared advisable and in the best interests of their respective corporations and stockholders, this Agreement and the transactions contemplated hereby, including the merger of Merger Sub with and into the Company (the “Merger”), with the Company being the survivor in the Merger, as more fully provided for in this Agreement, directed that this Agreement be submitted to such corporation’s stockholders for approval and adoption, and (3) recommended that their stockholders approve and adopt this Agreement.

B.           The board of directors of Parent has approved and adopted this Agreement and the transactions contemplated hereby, and Parent, in its capacity as the sole stockholder of Merger Sub, will approve and adopt this Agreement promptly following the execution of this Agreement.

C.           It is anticipated that, following the execution and delivery of this Agreement, the required stockholders of the Company will execute and deliver to Parent and Merger Sub a written consent approving and adopting this Agreement.

Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE I

THE MERGER

Section 1.1The Merger. On the terms and subject to the conditions set forth in this Agreement, and in accordance with the Delaware General Corporation Law (the “DGCL”), Merger Sub will be merged with and into the Company at the Effective Time. At the Effective Time, the separate corporate existence of Merger Sub will cease, and the Company will continue as the surviving corporation (the “Surviving Corporation”) and will succeed to and assume all the rights and obligations of Merger Sub in accordance with the DGCL.

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Section 1.2Closing. Subject to the terms and conditions of this Agreement, the closing (the “Closing”) of the Merger shall take place (i) on the final day of the calendar month in which the satisfaction or, to the extent permitted by Law, waiver of the conditions set forth in Article VII occurs (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by Law, waiver of those conditions at Closing), or (ii) such other time and place as Parent and the Company may mutually agree, provided that if the Closing occurs on any day other than the last day of a calendar month, then the Working Capital as of 11:59 p.m. on the last day of the calendar month preceding the Closing shall be deemed to be the Closing Working Capital. The date on which the Closing occurs is hereinafter referred to as the “Closing Date.”

Section 1.3Effective Time. On the Closing Date, Parent and the Company will cause to be filed with the Secretary of State of Delaware a certificate of merger, substantially in the form attached hereto as Exhibit A to effect the Merger (collectively, the “Certificate of Merger”) executed in accordance with the relevant provisions of the DGCL and will make all other filings or recordings required under the DGCL to effect the Merger. The Merger will become effective at such time as the Certificate of Merger is duly filed with such Secretary of State of Delaware, or at such later time as Parent and the Company shall agree and specify in the Certificate of Merger (the time the Merger becomes effective being the “Effective Time”).

Section 1.4Effects. The Merger will have the effects provided in this Agreement and in the applicable provisions of the DGCL.

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Section 1.5Conversion of Securities.

(a)At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of the Company Capital Stock, each share of Company Capital Stock (each, a “Share”) issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares and any Shares to be cancelled pursuant to Section 1.5(b)) will be converted automatically into the right to receive, in accordance with the terms of this Agreement, (i) the Initial Per Share Merger Consideration, without interest, to be paid as contemplated by Section 2.1, (ii) the Additional Per Share Merger Consideration, without interest, payable in the manner set forth in Section 2.7, (iii) a pro-rata portion of any funds remaining in the Escrow Fund after the satisfaction of obligations payable therefrom in accordance with this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein, and (iv) a pro-rata portion of any funds remaining in the Holdback Account after the satisfaction of obligations payable therefrom in accordance with this Agreement, calculated and payable in the manner set forth in Section 2.8. Parent, in its sole discretion, may elect to pay up to an aggregate of $10.0 million of the Initial Merger Consideration in shares of Parent Common Stock; provided, however, that the Initial Merger Consideration paid to any Stockholder surrendering Shares shall not be paid in shares of Parent Common Stock with a value (based on the formula below) that constitutes more than such Stockholder’s Individual Share Percentage of such aggregate elected dollar amount; and provided, further, that the Initial Merger Consideration paid to any Stockholder surrendering Shares that does not represent in the Letter of Transmittal that such Stockholder is an Accredited Investor shall be paid only in cash. If Parent elects to pay up to $10.0 million of the Initial Merger Consideration in shares of Parent Common Stock, the number of shares of Parent Common Stock shall be calculated based on the greater of (i) $3.85 per share; or (ii) the weighted average closing price of the Parent Common Stock during the ten (10) trading day period occurring three (3) Business Days prior to the date of the public announcement regarding the execution of this Agreement, in each case as adjusted to give appropriate effect to any stock split or reverse stock split effectuated by Parent. Except for Dissenting Shares and any Shares to be cancelled pursuant to Section 1.5(b), as a result of the Merger, each holder of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (“Certificates”) and each holder of Shares outstanding immediately prior to the Effective Time that are not represented by Certificates (“Book-Entry Shares”) will thereafter cease to have any rights with respect to such Shares except the right to receive the applicable Merger Consideration, to be paid, without interest, in consideration therefor upon surrender of such Certificate or Book-Entry Shares in accordance with Section 2.1(b) (or in the case of a lost, stolen or destroyed Certificate, Section 2.1(f)).

(b)At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub or the Company, each share of Company Capital Stock held in the treasury of the Company or owned of record by any Company Subsidiary immediately prior to the Effective Time will automatically be cancelled without any conversion thereof and no payment or distribution will be made with respect thereto.

(c)Each issued and outstanding share of common stock of Merger Sub will be converted into and become one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation.

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Section 1.6Certificates of Incorporation; Bylaws.

(a)At the Effective Time, the Company’s certificate of incorporation will, by virtue of the Merger, be amended and restated in its entirety in the form attached hereto as Exhibit B, and as so amended and restated will be the certificate of incorporation of the Surviving Corporation until thereafter amended as provided therein or by applicable Law.

(b)At the Effective Time, the Company Bylaws will, by virtue of the Merger, be amended and restated in their entirety in the form attached hereto as Exhibit C, and as so amended and restated will be the bylaws of the Surviving Corporation, until thereafter amended as provided therein or by applicable Law.

Section 1.7Directors. The parties will take all necessary action such that, from and after the Effective Time, the directors of Merger Sub immediately prior to the Effective Time will be the directors of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be.

Section 1.8Officers. The parties will take all necessary action such that, from and after the Effective Time, the officers of Merger Sub immediately prior to the Effective Time will be the officers of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be.

ARTICLE II

DELIVERY OF MERGER CONSIDERATION

Section 2.1Exchange of Shares.

(a)Exchange Procedures.

(i)Prior to the Closing Date, the Company shall distribute to each Person who is expected to be, at the Effective Time, a holder of record of Shares entitled to receive the Merger Consideration pursuant to Section 1.5(a): (A) a letter of transmittal, in substantially the form attached hereto as Exhibit D (the “Letter of Transmittal”) and containing such provisions as Parent may reasonably specify (including a provision confirming that delivery will be effected, and risk of loss and title will pass, only upon proper delivery of the Certificates to Parent or, in the case of Book-Entry Shares, upon adherence to the procedures set forth in the Letter of Transmittal; each Stockholder’s agreement to accept their indemnification obligations set forth in Article IX, the choice of law provisions in Section 10.7 and the exclusive forum provisions in Section 10.8; each Stockholder’s representation as to whether or not such Stockholder is an Accredited Investor; customary investment representations with respect to any receipt of Parent Common Stock; and an acknowledgement that any certificates received representing Parent Common Stock will bear legends customary for unregistered shares), and (B) instructions for use in effecting the surrender of such holder’s Certificates or Book-Entry Shares in exchange for payment of the their portion of the Merger Consideration issuable and payable in respect thereof pursuant to such Letter of Transmittal.

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(ii)Each holder of Shares who has, prior to the Effective Time, properly completed, executed and delivered to the Company (who shall have thereafter delivered a copy of such documents to Parent at or prior to the Closing) a Letter of Transmittal and any and all Certificate(s) evidencing such holder’s Shares (or an Affidavit of Loss in lieu thereof) shall be entitled to receive from Parent at the Closing, and Parent shall pay or cause to be paid to each such Stockholder at the Closing, (i) an amount in cash and shares of Parent Common Stock (to the extent permitted by this Agreement and if such holder is an Accredited Investor) equal to the product (rounded to the nearest cent) of (A) the number of Shares represented by such holder’s properly surrendered Certificates plus the number, if any, of such holders Book-Entry Shares and (B) the Initial Per Share Merger Consideration.

(iii)With respect to each holder of Shares who has not properly completed, executed and delivered a Letter of Transmittal to the Company, or who has failed to deliver the Certificate(s) evidencing such Shares (or an Affidavit of Loss in lieu thereof) to the Company, in each case prior to the Effective Time, Parent shall (x) deliver or cause to be delivered at the Closing to an account of the Payments Administrator specified by the Stockholder Representative not less than two (2) Business Days prior to the Closing Date (the “Stockholder Payment Account”) an amount in cash equal to (I) the product (rounded to the nearest cent) of (A) the number of Shares held by all such holders (other than Dissenting Shares) and (B) the Initial Per Share Merger Consideration, less (II) the aggregate cash value (based on the formula in Section 1.5(a)) of the shares of Parent Common Stock to be included in the Initial Merger Consideration that are to be issued to such holders assuming that all such holders are Accredited Investors, and (y) cause its transfer agent to issue at the Closing all such shares of Parent Common Stock and hold such shares deliverable to each such holder pending such holder’s delivery of the items set forth in the following sentence. Such cash shall be held in the Stockholder Payment Account and such shares shall be held by Parent’s transfer agent (in each case, subject to applicable abandoned property, escheat and similar Laws) for distribution to each such holder when and as such holder delivers a properly completed and executed Letter of Transmittal and the Certificate(s) evidencing such holder’s Shares (or an Affidavit of Loss in lieu thereof) to the Payments Administrator (who shall promptly thereafter deliver such documents to Parent), at which time the Payments Administrator shall distribute or cause to be distributed to such holder from the funds held in the Stockholder Payment Account the same cash amount (payable in the same manner) as such holder would have received from Parent under Section 2.1(a)(ii) if such Letter of Transmittal and Certificate(s) (or Affidavit of Loss in lieu thereof) had been delivered to the Company prior to the Effective Time and Parent shall cause its transfer agent to deliver to such holder such shares issued in such holder’s name and held by such transfer agent. Notwithstanding the foregoing, if any such holder is not an Accredited Investor (based on such holder’s Letter of Transmittal), then the shares of Parent Common Stock issued in such holder’s name and held by Parent’s transfer agent shall be cancelled and, in lieu of delivery of such shares to such holder, Parent shall deliver to such holder a cash amount equal to the value of such cancelled shares, as determined in accordance with the formula set forth in Section 1.5(a) of this Agreement.

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(iv)Following the Closing, (A) any holder to which Section 2.1(a)(iii) applies shall be entitled to look only to the funds in the Stockholder Payment Account and, if such holder is not an Accredited Investor, only to Parent for any cash payable in lieu of shares of Parent Common Stock (in each case, subject to applicable abandoned property, escheat or similar Laws) and only as general creditors thereof with respect to the cash amount that such holder is entitled to receive pursuant to Section 2.1(a)(iii) upon delivery to the Payments Administrator of a properly completed and executed Letter of Transmittal and the Certificate(s) evidencing such holder’s Shares (or an Affidavit of Loss in lieu thereof), without any interest thereon, and (B) none of Parent, the Surviving Corporation or the Stockholder Representative shall be liable to any Stockholder for any amounts and shares of Parent Common Stock delivered to a public official pursuant to any applicable abandoned property, escheat or similar Laws.

(b)Escrow Fund. In accordance with the Escrow Agreement, Parent shall deposit into the Escrow Fund the Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Escrow Fund”), to be held for the purpose of securing the indemnification and other obligations of the Stockholders set forth in this Agreement.

(c)No Further Rights in Company Capital Stock. All Merger Consideration issued or paid upon surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms of this Article II will be deemed to have been issued or paid, as the case may be, in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares.

(d)Adjustments. If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of Company Capital Stock occurs as a result of any reclassification, recapitalization, stock split (including a reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period, the Initial Per Share Merger Consideration will be equitably adjusted to reflect such change.

(e)Withholding Rights. Each of the Surviving Corporation, Parent and Merger Sub will be entitled to deduct and withhold from any consideration otherwise payable pursuant to this Agreement such amount as it is required to deduct and withhold with respect to the making of such payment under the Code, the Treasury Regulations, any provision of applicable state, local or foreign Tax Law or any other Law. To the extent that amounts are so withheld, such withheld amounts will be treated for purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

(f)Lost Certificates. In the event that any Certificate has been lost, stolen or destroyed, the holder of such Certificate may, in lieu of delivering such Certificate with the Letter of Transmittal delivered in accordance with Section 2.1(a)(ii) or Section 2.1(a)(iii), complete, execute and deliver to the Payments Administrator, an affidavit of loss and indemnity in a form reasonably satisfactory to Parent (an “Affidavit of Loss”).

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(g)Termination of Stockholder Payment Account. Any funds remaining in the Stockholder Payment Account on the date that is six (6) months after the Closing Date will be delivered to Parent, and any holders of Shares who have not theretofore complied with this Section 2.1 will thereafter look only to Parent for the Merger Consideration to which they are entitled pursuant to Section 1.5.

Section 2.2Stock Transfer Books. At the Effective Time, the stock transfer books of the Company will be closed and there will be no further registration of transfers of Shares thereafter on the records of the Company. On or after the Effective Time, any Certificates or Book-Entry Shares presented to Parent for any reason will be cancelled and exchanged for the applicable portion of the Merger Consideration with respect to the Shares formerly represented by such Certificates or Book-Entry Shares to which the holders thereof are entitled pursuant to Section 1.5(a).

Section 2.3Treatment of Options. Prior to the Closing, the Company will take all actions necessary in accordance with the Company Stock Option Plan so that all Options outstanding immediately prior to the Effective Time will become fully vested and exercisable (whether or not currently exercisable) and, immediately prior to the Effective Time, each Option will be cancelled without any future liability to the Company or any other Person after the Effective Time in exchange for the right to receive from the Company the payment described in the following sentence (such amount payable pursuant to clause (a) in the following sentence with respect to each Optionholder, such holder’s “Option Consideration”), subject to applicable withholding. Each holder of an Option that is cancelled pursuant to the preceding sentence shall, in respect of such Option and subject to the terms and conditions of this Agreement, be entitled to (a) a cash payment in an amount equal to the product of (i) the excess, if any, of the Initial Per Share Merger Consideration over the applicable Exercise Price of such Option, and (ii) the number of shares of Company Common Stock underlying such Option, and (b) any amounts payable to such Optionholder pursuant to Section 2.7 and Section 2.8 (in the case of this clause (b), if, as and when payable in accordance with Section 2.7 and Section 2.8). Parent will cause the Company to pay to each Optionholder such Optionholder’s Option Consideration via payroll less applicable withholding Taxes on the Closing Date.

Section 2.4Appraisal Rights. Notwithstanding anything in this Agreement to the contrary, any Shares that are issued and outstanding immediately prior to the Effective Time and are held by a Stockholder who is entitled to exercise, and properly complied with the provisions of Section 262 of the DGCL to demand appraisal rights with respect to such Shares (each, a “Dissenting Stockholder”) and not effectively withdrawn or lost its right to appraisal (collectively, the “Dissenting Shares”), such Dissenting Shares will not be converted into or exchangeable for or represent the right to receive the applicable Merger Consideration (except as provided in this Section 2.4) and will entitle such Dissenting Stockholder only to payment of the fair value of such Dissenting Shares as may be determined to be due to the holder of such Dissenting Shares in accordance with the DGCL, unless and until such Dissenting Stockholder effectively waives such appraisal rights or is otherwise no longer entitled to payment for such Dissenting Shares in accordance with Section 262 of the DGCL. If any such Dissenting Stockholder effectively waives such appraisal rights or is otherwise no longer entitled to payment for the Dissenting Shares held by such Dissenting Stockholder in accordance with the Section 262 of DGCL, then as of the later of the Effective Time or the occurrence of such event, the Dissenting Shares held by such Dissenting Stockholder will be cancelled and converted into and represent the right to receive, without any interest thereon, the applicable Merger Consideration in accordance with Article I and this Article II, less applicable withholding taxes, if any, required to be withheld. The Company will not, except with the prior written consent of Parent, voluntarily make (or cause or permit to be made on its behalf) any payment with respect to, or settle or make a binding offer to settle, or otherwise negotiate with, any Dissenting Stockholder regarding its exercise of appraisal rights prior to the Effective Time. The Company will give Parent notice of any such demands prior to the Effective Time.

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Section 2.5Closing Statement. At least three (3) Business Days prior to the Closing Date, the Company will deliver to Parent a statement setting forth a good faith estimate of (a) Closing Working Capital prepared in accordance with GAAP (the “Working Capital Estimate”) and the resulting Estimated Working Capital Overage or Estimated Working Capital Underage, if any, (b) Closing Cash prepared in accordance with GAAP (the “Closing Cash Estimate”), (c) the Transaction Expenses Payoff Amount, (d) the amount of Closing Indebtedness and the Indebtedness Payoff Amount, (e) the number of Shares issued and outstanding as of immediately prior to the Effective Time, (f) the Share Percentage and the Individual Share Percentage for each Stockholder, (g) with respect to each Option, the holder of such Option, the number of shares of Company Common Stock underlying such Option and the Exercise Price of such Option, in each case immediately prior to the Effective Time, and (h) the Option Percentage and the Individual Option Percentage for each Optionholder.

Section 2.6Transactions to Be Effected at the Closing. At the Closing, the following transactions shall be effected by the Parties:

(a)Parent will pay the Initial Merger Consideration to the Payments Administrator and the holders of Shares in accordance with Section 2.1(a);

(b)Parent will transfer the Escrow Amount to the Escrow Fund;

(c)Parent will transfer the Holdback Amount to an account of the Escrow Agent (the “Holdback Account”);

(d)Parent will pay the Indebtedness Payoff Amount to such parties and in such amounts as designated in writing (such designation to be made at least two (2) Business Days prior to the Closing Date) in the Payoff Letters;

(e)Parent will pay the Transaction Expenses Payoff Amount, other than such amount related to Transaction Bonuses, to such parties and in such amounts as designated by the Company in writing (such designation to be made at least two (2) Business Days prior to the Closing Date); and

(f)Parent will pay the Transaction Expenses Payoff Amount related to Transaction Bonuses to the Company and cause the Company to pay to each recipient of a Transaction Bonus via the Company’s payroll system on the Closing Date an amount equal to such Transaction Bonus less applicable withholding Taxes.

Section 2.7Merger Consideration Adjustment.

(a)Within 60 days after the Closing Date, Parent will deliver to the Stockholder Representative a statement (the “Statement”) of (i) the Closing Working Capital and the resulting Working Capital Overage or Working Capital Underage, if any, (ii) the Closing Cash and the resulting Closing Cash Overage or Closing Cash Underage, if any, (iii) any Transaction Expenses not included in the Transaction Expenses Payoff Amount (the “Additional Transaction Expenses”), and (iv) any Closing Indebtedness of the Company and Company Subsidiaries not included in the calculation of the Initial Merger Consideration (the “Additional Indebtedness”)

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(b)The Statement will become final and binding upon all of the Parties at 5:00 p.m. in New York, New York on the 60th day following the date on which the Statement was delivered by Parent to the Stockholder Representative, unless the Stockholder Representative delivers written notice of its disagreement with the Statement (a “Notice of Disagreement”) to Parent prior to such time. During such 60-day period, Parent shall cause the Surviving Corporation and its Subsidiaries to provide the Stockholder Representative and the Stockholder Representative’s advisors with reasonable access (including on-site access and electronic access to the extent available) during regular business hours and upon reasonable notice to all relevant books and records and employees (including key accounting and finance personnel) of the Surviving Corporation and its Subsidiaries to the extent reasonably necessary to review the matters and information used to prepare and to support the Statement, all in a manner not unreasonably interfering with the business of the Surviving Corporation and its Subsidiaries. All fees, costs and expenses of the Stockholder Representative relating to the review of the Statement shall be borne by the holders of Shares and Options out of the Holdback Account and all fees, costs and expenses of Parent or the Surviving Corporation relating thereto shall be borne by Parent. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is received by Parent in a timely manner, then the Statement (as revised in accordance with this Section 2.7(b)) will become final and binding upon Parent and the Stockholder Representative on the earlier of (i) the date Stockholder Representative and Parent resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) the date any disputed matters are finally resolved in writing by an independent accounting firm (the “Accounting Firm”). During the 14-day period following the delivery of a Notice of Disagreement, the Stockholder Representative and Parent will seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. If at the end of such 14-day period the Stockholder Representative and Parent have not resolved in writing the matters specified in the Notice of Disagreement, then, no later than ten (10) days following such 14-day period, the Stockholder Representative and Parent will submit to the Accounting Firm for resolution, in accordance with the standards set forth in this Section 2.7, only matters that remain in dispute. The Accounting Firm will be UHY, LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by the Stockholder Representative and Parent in writing. The Stockholder Representative and Parent will use commercially reasonable efforts to cause the Accounting Firm to render a written decision resolving the matters submitted to the Accounting Firm within 30 days of the receipt of such submission. The Accounting Firm may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the party against which such determination is to be enforced. The fees, costs and expenses of the Accounting Firm incurred pursuant to this Section 2.7(b) (the “Accounting Fees”) shall be borne pro rata as between the Stockholder Representative (solely on behalf of the Stockholders and Optionholders), on the one hand, and Parent, on the other hand, in proportion to the final allocation made by the Accounting Firm of the disputed items weighted in relation to the claims made by the Stockholder Representative and Parent, such that the prevailing party pays the lesser proportion of such fees, costs and expenses. For example, if the Parent claims that the appropriate adjustments are, in the aggregate, $1,000 greater than the amount determined by the Stockholder Representative and if the Accounting Firm ultimately resolves the dispute by awarding to the Parent an aggregate of $300 of the $1,000 contested, then the fees, costs and expenses of the Accounting Firm will be allocated 30% (i.e., 300 ÷ 1,000) to the Stockholder Representative and 70% (i.e., 700 ÷ 1,000) to Parent. For the avoidance of doubt, the fees, costs and expenses of any Party incurred in connection with this Section 2.7 (other than the Accounting Fees, which shall be allocated in accordance with this Section 2.7(b)) shall be paid by the Party incurring such fees, costs and expenses; provided, that the Stockholder Representative’s fees, costs and expenses shall be paid by the Stockholders and Optionholders.

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(c)If the Stockholder Adjustment Amount exceeds the Parent Adjustment Amount (the amount of such excess, the “Excess Amount”), (i) within five (5) Business Days after a final determination Parent will make payment by wire transfer of immediately available funds to the Stockholder Representative, or upon written instruction of the Stockholder Representative, to the Payments Administrator, for distribution to each holder of Shares, contingent upon such holder’s delivery of a Letter of Transmittal and Certificates evidencing such holder’s Shares (or an Affidavit of Loss in lieu thereof) and in accordance with such holder’s Individual Share Percentage, subject to applicable withholding, an amount equal to the Share Percentage of any such Excess Amount, and (ii) Parent will cause the Company to pay to the Optionholders via payroll in accordance with their respective Individual Option Percentage, and subject to applicable withholding, an amount equal to the Option Percentage, the applicable portion of any such Excess Amount.

(d)If the Parent Adjustment Amount exceeds the Stockholder Adjustment Amount (the amount of such excess, the “Deficiency Amount”), within five (5) Business Days after a final determination in accordance with Section 2.7(b), the Stockholder Representative shall cause the Escrow Agent to make payment to Parent by wire transfer of immediately available funds from the Escrow Fund, the total amount of the Deficiency Amount.

Section 2.8Payments from the Holdback Account. The Holdback Account will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and any agreements ancillary hereto. The Stockholder Representative shall retain control over the funds in the Holdback Account and shall, promptly following completion of the Stockholder Representative’s duties, direct the Escrow Agent to pay all or a portion of any funds that remain in the Holdback Account to the Payments Administrator for further distribution to (i) the Stockholders, contingent with respect to each such holder upon such holder’s delivery of a Letter of Transmittal and Certificates evidencing such holder’s Shares (or an Affidavit of Loss in lieu thereof), in accordance with such holders’ respective Individual Share Percentages, and subject to applicable withholding, an aggregate amount equal to the Share Percentage of any such funds, and (ii) the Company, for further payment to the Optionholders via payroll in accordance with their respective Individual Option Percentages, and subject to applicable withholding, an aggregate amount equal to the Option Percentage of any such funds.

ARTIVLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as disclosed in the disclosure letter delivered by the Company to Parent immediately prior to the execution of this Agreement (it being agreed that any information set forth in one section of such disclosure letter will be deemed to apply to each other section thereof to which its relevance as an exception to (or disclosure for the purposes of) such other section is reasonably apparent) (the “Company Disclosure Letter”), the Company represents and warrants to Parent as follows:

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Section 3.1Corporate Organization.

(a)The Company is a corporation duly formed, validly existing and in good standing under the Laws of the State of Delaware. The Company has the corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except for such jurisdictions where the failure to be so licensed or qualified would not reasonably be expected to have a Material Adverse Effect.

(b)Copies of the certificate of incorporation of the Company, as amended and restated (the “Company Charter”), and the bylaws of the Company, as amended and restated (the “Company Bylaws”), as in effect as of the date of this Agreement, have previously been made available to Parent. The Company is not in default under or in violation of any provision of the Company Charter or the Company Bylaws.

(c)Section 3.1(c) of the Company Disclosure Letter sets forth a list of each Company Subsidiary, together with the jurisdiction of organization or incorporation, as the case may be, and the jurisdictions in which each Company Subsidiary is authorized to conduct business. Each Company Subsidiary (i) is duly organized/formed and validly existing under the Laws of its jurisdiction of organization, (ii) is duly qualified to do business and, where such concept is recognized, in good standing in all jurisdictions in which the conduct of its business requires it to be so qualified, except for such jurisdictions where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect, and (iii) has all the corporate or limited liability company power and authority to carry on its business as now conducted. As used in this Agreement, the word “Subsidiary” when used with respect to any Person means another Person, any amount of the voting securities, other voting rights or voting partnership interests of which is sufficient to elect at least a majority of its board of directors or other governing body or, more than 40% of the Equity Interests of which is owned directly or indirectly by such first Person; the terms “Company Subsidiary” and “Parent Subsidiary” mean any direct or indirect Subsidiary of the Company or Parent, respectively, and, in the case of Parent, will include (A) Merger Sub prior to the Effective Time and (B) the Surviving Corporation as of and after the Effective Time.

(d)Copies of the certificate of incorporation, or similar organizational document, as applicable, of each Company Subsidiary, as amended and restated, and the bylaws or operating agreement, or other similar governing document, as applicable, of each Company Subsidiary, as amended and restated, as in effect as of the date of this Agreement, have previously been provided to Parent. No Company Subsidiary is in default under or in violation of any such governing document.

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Section 3.2Capitalization.

(a)The authorized capital stock of the Company consists of (i) 23,030,000 shares of common stock, $0.001 par value per share (“Company Common Stock”), of which 2,082,961 shares are issued and outstanding, and (ii) 20,035,000 shares of Series B preferred stock, $0.001 par value per share (“Company Preferred Stock”), of which 19,999,874 shares are issued and outstanding (collectively, the “Company Capital Stock”). No shares of Company Capital Stock are held in the Company’s treasury. All of the issued and outstanding shares of Company Capital Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.

(b)The Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase, issuance or registration of any shares of Company Capital Stock or any other equity securities of the Company or any securities representing the right to purchase or otherwise receive any shares of Company Capital Stock, except for Options issued pursuant to the Company Stock Option Plan. 2,988,549 shares of Company Common Stock were originally reserved for issuance under the Company Stock Option Plan. No Company Stock Option has an Exercise Price in excess of $0.01. The Company does not have any “phantom equity” plans, agreements or awards.

(c)There are no bonds, debentures, notes or other Indebtedness having the right to vote on any matters on which stockholders of the Company may vote are issued or outstanding as of the date of this Agreement.

(d)All of the issued and outstanding shares of capital stock or other equity ownership interests of each Company Subsidiary are owned by the Company, directly or indirectly, free and clear of any Liens (other than transfer restrictions under applicable federal and state securities Laws), and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. No Company Subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity security of such Company Subsidiary or any securities representing the right to purchase or otherwise receive any shares of capital stock or any other equity security of such Company Subsidiary. There are no outstanding obligations to which the Company or any Company Subsidiary is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Equity Interest in any Company Subsidiary.

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Section 3.3Authority; No Violation.

(a)The Company has all necessary corporate power and authority to enter into this Agreement and to consummate the Merger. The execution, delivery and performance of this Agreement by the Company have been duly and validly adopted by the Company Board and, except for (i) the Written Consent and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement or for the Company to consummate the Merger and the other transactions contemplated by this Agreement (the “Transactions”). The holders of Company Capital Stock are authorized to act by the Written Consent and the Written Consent is the only vote or consent of the holders of any of the Company Capital Stock necessary to adopt this Agreement and to approve the Merger and the other Transactions contemplated by this Agreement. There are no Contracts to which the Company or any Company Subsidiary is a party defining or governing the rights of the holders of any Company Capital Stock or any of its other equity holders in their capacities as such, and there are no Contracts between or among the Company or any Company Subsidiary and the holders of Company Capital Stock defining or governing the rights of the Company Capital Stock, as applicable. The Company Board has (i) determined that this Agreement and the Merger are advisable and fair to and in the best interests of the Company’s stockholders, and (ii) recommend that the Company’s stockholders that they adopt this Agreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability (A) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally and (B) is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding at Law or in equity)

(b)Neither the execution and delivery of this Agreement by the Company nor the consummation of the Transactions, nor compliance by the Company with any of the terms or provisions of this Agreement, will (i) violate any provision of the certificate of incorporation or bylaws or other equivalent organizational document, in each case, as amended, of the Company or any of the Company Subsidiaries or (ii) assuming that the consents, approvals and filings referred to in Section 3.4 are duly obtained and/or made and subject to obtaining the Written Consent, (A) violate any Order or other legal restraint or prohibition (an “Injunction”), any Law applicable to the Company, any of the Company Subsidiaries or any of their respective material properties or assets, or any material Permit of the Company or a Company Subsidiary or by which any of the assets of the Company or a Company Subsidiary are bound or subject, or (B) result in a breach of any provision of, or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of, or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien (other than a Permitted Lien) upon any of the respective properties or assets of the Company or any of the Company Subsidiaries under, any Company Material Contract.

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Section 3.4Consents and Approvals. Except for (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL, (b) receipt of such consents from, or registrations, declarations, notices or filings made to or with State PSCs as are required in order to effect the transfer of control of the Company Licenses or as are otherwise necessary to consummate the Merger and other Transactions, including any related financings by Parent (the “State Approvals”), and (c) receipt of such consents from, or registrations, declarations, notices or filings made to or with the FCC as are required in order to effect the transfer of control of the Company Licenses or as are otherwise necessary to consummate the Merger and the other Transactions, including any related financings by Parent (the “FCC Approval”), no consents or approvals of, or filings or registrations with, any Governmental Entity are necessary in connection with (i) the execution and delivery by the Company of this Agreement and (ii) the consummation by the Company of the Transactions.

Section 3.5Financial Statements.

(a)The audited consolidated financial statements of the Company and the Company Subsidiaries for the years ended December 31, 2016 and 2015 and the unaudited consolidated financial statements of the Company and the Company Subsidiaries for the year ended December 31, 2017 (including in each case, any related notes and schedules thereto, where applicable) (collectively, the “Company Financial Statements”), fairly present in all material respects the consolidated financial position of the Company and the Company Subsidiaries as of the date thereof, and fairly present in all material respects the results of the consolidated operations, changes in stockholders’ equity, cash flows and consolidated financial position of the Company and the Company Subsidiaries for the respective fiscal periods or as of the date therein set forth, except the Company Financial Statements for the year ended December 31, 2017 are subject to normal year-end audit adjustments which, in the aggregate, would not be material in amount. Each of the Company Financial Statements have been prepared in accordance with GAAP consistently applied during the periods involved, except as indicated in such statements or in the notes thereto. Each of the representations and warranties in this Section 3.5(a) is qualified as follows: for the period from January 1, 2015 through March 31, 2015, the Company Financial Statements reflect only the assets, liabilities, revenue and expenses of the Company directly attributable to its Cloud Operations division, as well as allocations deemed reasonable by management to present the Company Financial Statements for such period on a carve-out basis in accordance with GAAP standards, and do not necessarily reflect the Company Financial Statements as they would have been presented for such Cloud Operations division had it been a separate, stand-alone entity during such period.

(b)Except for those liabilities and obligations that are (i) reflected or reserved against on the December 31, 2017 unaudited consolidated balance sheet of the Company and the Company Subsidiaries or disclosed in the notes thereto, or (ii) incurred in the ordinary course of business consistent with past practice since December 31, 2017, neither the Company nor any of the Company Subsidiaries has incurred any Indebtedness or liability, obligation or claim of a type required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP (excluding immaterial liabilities, obligations and claims to the extent that, if they were not so reflected, would not cause such balance sheet, taken as a whole, to not be prepared in accordance with GAAP).

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(c)The Company and Company Subsidiaries make and keep and, for all periods covered by the Company Financial Statements, have made and kept books, records and accounts which, in reasonable detail, accurately and fairly reflect in all material respects the transactions and dispositions of the assets of the Company and Company Subsidiaries. The Company and Company Subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the actual levels at reasonable intervals and appropriate action is taken with respect to any differences.

Section 3.6Absence of Company Material Adverse Effect

. Since January 1, 2017 through the date of this Agreement, no event or events have occurred that have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.7Legal Proceedings.

(a)Except as set forth on Section 3.7(a) of the Company Disclosure Letter, neither the Company nor any of the Company Subsidiaries is a party to any, and there are no pending or, to the knowledge of the Company, threatened, legal, administrative, arbitral or other proceedings, claims, actions, suits or governmental or regulatory investigations of any nature (each, an “Action”), against the Company or any of the Company Subsidiaries.

(b)There is no Injunction or judgment imposed upon the Company, any of the Company Subsidiaries or the assets of the Company or any of the Company Subsidiaries.

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Section 3.8 Taxes and Tax Returns. Each of the Company and the Company Subsidiaries has duly and timely filed all federal, state, foreign and local Tax Returns required to be filed by any of them (all such returns being accurate and complete in all respects) and has duly and timely paid all Taxes (whether or not such Taxes were shown as due and payable on such Tax Returns) other than Taxes that are not yet delinquent or that are being contested in good faith, have not been finally determined and have been adequately reserved against. Any liability with respect to deficiencies asserted as a result of any audit, examination or similar proceeding of the Company or any Company Subsidiary Tax Return by the IRS or any other taxing authority is covered by adequate reserves in accordance with GAAP in the Company Financial Statements. There are no disputes pending, or claims asserted (in writing or otherwise), for Taxes or assessments upon the Company or any of the Company Subsidiaries for which the Company does not have adequate reserves. Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax, allocation or indemnification agreement or arrangement the primary subject matter of which is Taxes (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries). Neither the Company nor any of the Company Subsidiaries has agreed to or granted any extension or waiver of the limitation period applicable to any Taxes or Tax Returns. Neither the Company nor any of the Company Subsidiaries has distributed the stock of any corporation, or had its stock distributed, in a transaction described in or intended to satisfy the requirements of Section 355 of the Code. Each of the Company and the Company Subsidiaries has in all material respects properly and timely withheld or collected and timely paid over to the appropriate taxing authority (or each is properly holding for such timely payment) all Taxes required to be withheld, collected and paid over by applicable Law. There are no Liens for Taxes upon any asset of the Company or any Company Subsidiary other than Permitted Liens (within the meaning of clause (c) of such term). Neither the Company nor any of the Company Subsidiaries is a party to or bound by any advance pricing agreement, closing agreement or other similar material agreement or ruling relating to Taxes nor are there any pending requests for such rulings or similar agreements by or before a taxing authority. Neither the Company nor any of the Company Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date, as a result of any: (i) change in method of accounting for a taxable period (or any portion thereof) ending on or prior to the Closing Date, including under Section 481(a) of the Code or any similar provision of applicable Law; (ii) installment sale or other open transaction disposition made on or prior to the Closing Date; (iii) prepaid amount received on or prior to the Closing Date; (iv) closing agreement described in Section 7121 of the Code or any similar provision of applicable Law executed on or prior to the Closing Date; (v) intercompany transaction or excess loss account described in Treasury Regulations Section 1.1502 (or any similar provision of applicable Law); or (vi) indebtedness discharged in connection with any election under Section 108(i) of the Code. Other than the affiliated group of which the Company is the common parent, neither the Company nor any of the Company Subsidiaries has any liability under Treasury Regulations Section 1.1502-6 or any similar provision of applicable Law, as a transferee or successor, or as a result of any contractual obligation for any Taxes of any other Person. Neither the Company nor any of the Company Subsidiaries has obtained any consent or clearance from or entered into any settlement or arrangement with any taxing authority that would be binding on Parent or any of its Affiliates or result in a material Tax liability for Parent or any of its Affiliates for any Tax period (or portion thereof) ending after the Closing Date. Neither the Company nor any Company Subsidiary has engaged in a “reportable transaction,” as defined in Section 6707A(c)(1) of the Code or Treasury Regulations Section 1.6011-4(b), or any transaction requiring disclosure under a similar provision of applicable Law. Since December 31, 2013, no written claim or nexus inquiry has been made by a taxing authority in a jurisdiction where the Company or any Company Subsidiary does not file Tax Returns that any of them is or may be subject to tax by that jurisdiction or that any of them has a duty to collect Taxes. Each of the Company and the Company Subsidiaries is in compliance in all material respects with all terms and conditions of any applicable material Tax exemption, Tax holiday, or other Tax reduction agreement, and no such applicable material Tax exemption, Tax holiday, or other Tax reduction agreement will be adversely affected by the Transactions. None of the Company nor any Company Subsidiary has elected to relinquish the carryback of any of its respective net operating losses pursuant to Treasury Regulations Sections 1.502 21(b)(3)(ii)(B) or Section 172(b)(3) of the Code, or any similar provision of applicable Law.

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Section 3.9Employee Benefit Plans; Labor.

(a)Section 3.9(a) of the Company Disclosure Letter contains a true and complete list of (i) each nonqualified deferred compensation or retirement plan for employees located in the United States, (ii) each qualified “defined contribution plan” (as such term is defined under Section 3(34) of ERISA), (iii) each qualified “defined benefit plan” (as such term is defined under Section 3(35) of ERISA) (the plans set forth in clauses (ii) and (iii) are collectively referred to herein as the “Pension Plans”), (iv) each “welfare benefit plan” (as such term is defined under Section 3(1) of ERISA) (the “Welfare Plans”), and (v) each compensatory or benefit plan or program, or stock option plan, including written individual contract, employee agreement, plan, program, or arrangement, in each case, whether funded or unfunded, that currently are maintained or sponsored in whole or in part, or contributed to by any of the Company, the Company Subsidiaries or any Company Commonly Controlled Entities, for the benefit of, providing any remuneration or benefits to, or covering any current or former employee or retiree, any dependent, spouse or other family member or beneficiary of such employee or retiree, or any director, independent contractor, member, officer, consultant of any of the Company or the Company Subsidiaries, or the Company Commonly Controlled Entities, or under (or in connection with) which the Company or any Company Subsidiary or any of the Company Commonly Controlled Entities may have any liability (collectively clauses (i) through (v) are referred to as “Company Benefit Plans”).

(b)Each Pension Plan that is intended to meet the requirements of a “qualified plan” under Sections 401(a) and 501(a) of the Code has either received a favorable determination letter from the IRS that such Pension Plan is so qualified or has requested such a favorable determination letter within the remedial amendment period of Section 401(b) of the Code, or in the case of a Pension Plan that is maintained pursuant to the adoption of a master, prototype, or volume submitter plan document, the sponsor of such master or prototype or volume submitter plan document has obtained from the National Office of the IRS an opinion or notification letter stating that the form of the master, prototype or volume submitter document is acceptable for the establishment of a qualified retirement plan. The Company Benefit Plans comply in all respects in both form and in operation with the requirements of the Code, ERISA and all other applicable Laws.

(c)To the knowledge of the Company, there have been no “prohibited transactions” (as that term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any of the Company Benefit Plans. Except as set forth in Section 3.9(c) of the Company Disclosure Letter, none of the assets of any Pension Plan or Welfare Plan trust is an “employer security” (within the meaning of Section 407(d)(1) of ERISA) or “employer real property” (within the meaning of Section 407(d)(2) of ERISA).

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(d)(i) Neither the Company nor any other Person that, together with the Company or any Company Subsidiary, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code (a “Company Commonly Controlled Entity”) (A) sponsors, maintains or contributes to, or is obligated to maintain or contribute to, or has any liability under, or has in the preceding seven (7) years sponsored, maintained, or contributed to, or had any obligation to maintain or contribute to, any Pension Plan or any “pension plan” (as defined in Section 3(2) of ERISA) that is subject to Title IV of ERISA, Section 412 or Section 430 of the Code, or any “multiemployer plan” (as defined in Section 3(37) of ERISA) or (B) has any unsatisfied liability imposed under Title IV of ERISA or Section 412 or Section 430 of the Code and (ii) all contributions (including all employer contributions and employee salary reduction contributions) or insurance premiums that are due have been paid with respect to each Company Benefit Plan, and all contributions or insurance premiums for any period ending on or before the Closing Date that are not yet due have been paid with respect to each such Company Benefit Plan or accrued, in each case in accordance with the past custom and practice of the Company, and with applicable Law and guidance. No Pension Plan or related trust has been terminated during the last seven years. No assets of the Company or any Company Subsidiary are subject to any Lien under Section 412(n) or 430(k) of the Code or Section 302(f) or 302(k) or Title IV of ERISA.

(e)Neither the Company nor any Company Subsidiary has communicated a commitment, whether orally or in writing, generally to employees or specifically to any employee regarding (i) any future increase of benefit levels (or creation of new benefits) with respect to the Company Benefit Plans beyond those reflected in such plans, or (ii) the adoption or creation of any new benefit plan.

(f)Except as set forth in Section 3.9(f) of the Company Disclosure Letter, none of the Welfare Plans obligates the Company or any Company Subsidiary to provide any current employee or former employee (or any dependent thereof) any life insurance or health benefits or other welfare benefits after his or her termination of employment with the Company or any Company Subsidiary, other than as required under COBRA or any similar state Law.

(g)No Company Benefit Plan (excluding for this purpose any individual employment agreement or arrangement) has a provision, and no commitment (whether oral or in writing) has been made, that restricts the Company or Company Subsidiaries from amending or terminating such Company Benefit Plan with respect to the accrual of future benefits; except that the legal obligation to bargain over mandatory subjects of bargaining under any Law will not be considered such a restriction.

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(h)Except as set forth in Section 3.9(h)(i) of the Company Disclosure Letter, no payment or benefit under any Company Benefit Plan that will or may be made by the Company or any Company Subsidiary in connection with the Merger to any current employee of the Company or Company Subsidiaries could reasonably be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(2) of the Code. Except as set forth in Section 3.9(h)(ii) of the Company Disclosure Letter, as provided in this Agreement or as required by applicable Law, consummation of the Transactions will not (i) entitle any current employee, or former employee (or spouse, dependent or other family member of such employee) of the Company or Company Subsidiaries to severance pay, unemployment compensation, or any payment contingent upon a change in control or ownership of the Company or Company Subsidiaries or (ii) accelerate the time of payment or vesting, or increase the amount, of any compensation due to any such Company Employee, current employee, or former employee (or any spouse, dependent, or other family member of such employee), in each case under any Company Benefit Plan. Except as set forth in Section 3.9(h)(iii) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary has any obligation to provide, and no Company Benefit Plan or other agreement provides any Person with any amount of additional compensation or gross-up if such Person is provided with amounts subject to excise or additional taxes, interest or penalties incurred pursuant to Sections 4999 or 409A of the Code or due to the failure of any payment to be deductible under Section 280G of the Code.

(i)The Company and the Company Subsidiaries have correctly classified Persons engaged as consultants or independent contractors for employment purposes under applicable Law.

(j)Except as would not reasonably be expected to result in a Tax or penalty, each Company Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) subject to Section 409A of the Code is and has been in documentary and operational compliance with Section 409A of the Code and any guidance issued with respect thereto.

(k)The Company has complied in all material respects with all applicable Laws concerning employment rights and obligations. Neither the Company nor any Company Subsidiary is a party to a collective bargaining agreement in respect of the employees of the Company or a Company Subsidiary on the date of this Agreement, or a member in any employers’ organization which is entitled to conclude a collective bargaining agreement on behalf of its member companies, and there is no collective bargaining agreement which, although the Company or Company Subsidiary is not a party to it, applies due to standard reference in employment agreements or by state decree as a generally applicable collective bargaining agreement. No collective bargaining agreement or shop agreement is being negotiated or renegotiated in any material respect by the Company or any of the Company Subsidiaries. There is no labor dispute, work stoppage, slow down or strike against the Company or any of the Company Subsidiaries pending or, to the knowledge of the Company, threatened which would reasonably be expected to interfere with the respective business activities of the Company or any of the Company Subsidiaries (and no work stoppages, slow downs, labor disputes or strikes occurred during the last five years). As of the date of this Agreement, to the knowledge of the Company, there is no charge or complaint against the Company or any of the Company Subsidiaries by the National Labor Relations Board or any comparable Governmental Entity or in relation to any labor rules and regulations or any other competent labor authority pending or threatened in writing.

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(l)There is no liability under ERISA or otherwise with respect to any Company Benefit Plan other than for the payment or provision of the benefits due thereunder in accordance with its terms, which has been incurred or, based upon such facts as exist on the date hereof, may reasonably be expected to be incurred. There are no unresolved claims or disputes under the terms of, or in connection with, the Company Benefit Plans (other than routine undisputed claims for benefits under the Company Benefit Plans or other immaterial claims or disputes that are being handled in the normal course of plan administration), and no action, legal or otherwise, has been commenced with respect to any claim (including claims for benefits under Company Benefit Plans). To the knowledge of the Company, no facts exist which could give rise to any actions, audits, suits or claims (other than in the ordinary course).

(m)No Welfare Plan is or at any time in the past seven years was funded through a “welfare benefit fund,” as defined in Section 419(e) of the Code, and no benefits under any Company Benefit Plan are or at any time have within the past seven years been provided through a “voluntary employees’ beneficiary association” (within the meaning of Section 501(c)(9) of the Code) or a “supplemental unemployment benefit plan” (within the meaning of Section 501(c)(17) of the Code).

Section 3.10Compliance with Law. At all times since December 31, 2013, the Company and each of the Company Subsidiaries have complied in all material respects with and are not in default under any Law or Order relating to the Company or any of the Company Subsidiaries or by which any material property or asset of the Company or any Company Subsidiary is bound. As of the date hereof, no investigation by any Governmental Entity with respect to the Company or any Company Subsidiary is pending, nor, to the knowledge of the Company, has any Governmental Entity indicated to the Company an intention to conduct any such investigation.

Section 3.11Environmental Matters. The Company and each of the Company Subsidiaries is, and at all times has been, in compliance in all material respects with all Environmental Laws. The Company and the Company Subsidiaries hold all Permits required under applicable Environmental Laws to permit the Company and the Company Subsidiaries to conduct their businesses as currently conducted. The business and operations of the Company and the Company Subsidiaries are in compliance with all such Permits. No notice of violation, notification of liability, demand, request for information, citation, summons or order has been received by the Company or any Company Subsidiary, no complaint has been filed, no penalty or fine has been assessed, and no investigation, action, claim, suit or proceeding is pending or, to the knowledge of the Company, threatened by any Person involving the Company or any Company Subsidiary relating to or arising out of any Environmental Law. There have been no Releases of Hazardous Substances by the Company or any Company Subsidiary at, on, above, under or from any properties currently or formerly owned, leased or operated by the Company, any Company Subsidiary or any predecessors in interest that, in each case, has resulted in or would reasonably be expected to result in any material cost, liability or obligation of the Company or any Company Subsidiary under any Environmental Law. The Company has provided to Parent all material environmental site assessments, audits, investigations and studies in their possession, custody or control relating to property or assets currently or formerly owned, leased, operated or used by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has been in business other than those related to the provision of communication services that would reasonably be expected to present environmental issues of a materially different scope or magnitude than those presented in the provision of communication services. Without limiting the generality of the foregoing, neither the Company nor any Company Subsidiary has operated or currently operates (i) any manufacturing facilities, (ii) any facilities that are or have been permitted under the Resource Conservation and Recovery Act or (iii) any business that manages the hazardous wastes of any unrelated party. The representations contained in the immediately prior sentence of this Section 3.11 shall not be deemed to be breached unless the operation or ownership of such other business or businesses has resulted in any material cost, liability or obligation of the Company or any Company Subsidiary under any Environmental Law.

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Section 3.12Material Contracts.

(a)Except as listed in Section 3.12(a) of the Company Disclosure Letter, or any Company Benefit Plan that is listed in Section 3.9(a) of the Company Disclosure Letter, as of the date of this Agreement, neither the Company nor any of the Company Subsidiaries is a party to or bound by any Contract that is:

(i)a “non-compete” or similar agreement that restricts or purports to restrict the geographic area in which the Company or any of the Company Subsidiaries may conduct any line of business, or that requires the referral of business opportunities by the Company or any of the Company Subsidiaries;

(ii)a joint venture, partnership or limited liability company agreement or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such agreement or arrangement solely between or among the Company and/or the Company Subsidiaries;

(iii)an agreement (other than a future contract, option contract or other derivative transaction) that involves future expenditures or receipts by the Company or any Company Subsidiary of more than $150,000 in any one year period that cannot be terminated on less than 90 days’ notice without material payment or penalty;

(iv)an acquisition agreement that contains “earn-out” or other contingent payment obligations that would reasonably be expected to result in future payments by the Company or a Company Subsidiary in excess of $150,000;

(v)an agreement relating to indebtedness for borrowed money or any financial guaranty, in each case pertaining to indebtedness in excess of $150,000 individually;

(vi)a lease or sublease with respect to real property;

(vii)an agreement pursuant to which the Company or any Company Subsidiary (1) is granted or obtains any right to use any Intellectual Property (excluding standard form Contracts granting rights to use readily available shrink wrap or click wrap software), (2) is restricted in its right to use or register any Company Intellectual Property, or (c) permits any other Person to use, enforce, or register any Company Intellectual Property, in each case including any license agreements, coexistence agreements, and covenants not to sue (other than the ordinary course limited license granted pursuant to the Company’s standard form of customer agreement);

(viii)an employment agreement with an employee of the Company or a Company Subsidiary, or an agreement with an independent contractor requiring payments in excess of $75,000 in any calendar year;

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(ix)a capital lease;

(x)an agreement that involves a forward, future, hedge, swap, collar, put, call, option or similar derivative transaction;

(xi)an agreement of guaranty, surety or indemnification;

(xii)an agreement for severance or retention payments or under which the Company or a Company Subsidiary is obligated to make any payment of Transaction Bonuses; or

(xiii)a Contract relating to (A) the sale, outbound license or outbound lease by the Company or any Company Subsidiary of any material indefeasible rights of use of capacity infrastructure or peering arrangements or (B) the purchase, inbound license or inbound lease by the Company or any Company Subsidiary of any material indefeasible rights of use of capacity infrastructure or peering arrangements;

(xiv)a collective bargaining agreement; or

(xv)an agreement that has not been fully satisfied or terminated in accordance with its terms relating to the disposition or acquisition by the Company or any Company Subsidiary of assets or properties in excess of $100,000, not made in the ordinary course of business consistent with past practice.

(all contracts of the type described in this Section 3.12(a), being referred to herein as a “Company Material Contract”).

(b)Neither the Company nor any of the Company Subsidiaries is in material breach of or default under the terms of any Company Material Contract. To the knowledge of the Company, no other party to any Company Material Contract is in any material respect in breach of or default under the terms of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company or the Company Subsidiary that is a party thereto and is in full force and effect; except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally; and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. True, correct and complete copies of each Company Material Contract (including all modifications and amendments thereto and waivers thereunder) have been made available to Parent.

Section 3.13Intellectual Property; Data Privacy.

(a)Either the Company or a Company Subsidiary owns, or is licensed or otherwise possesses all rights necessary to use, all Intellectual Property used in their respective businesses as currently conducted (collectively, the “Company Intellectual Property”).

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(b)Section 3.13(b)(i) of the Company Disclosure Letter sets forth all Company Registered Intellectual Property. All required filings and fees related to such Company Registered Intellectual Property have been timely filed with and paid to the relevant Governmental Entities and authorized registrars. Section 3.13(b)(ii) of the Company Disclosure Letter sets forth all Intellectual Property owned or purported to be owned by the Company or any Company Subsidiary that is not Company Registered Intellectual Property and which is material to the businesses of the Company and Company Subsidiaries as currently conducted (collectively, together with the Company Registered Intellectual Property, the “Company Owned Intellectual Property”).

(c)There are no pending or, to the knowledge of the Company, threatened claims in writing by any Person alleging infringement or misappropriation by the Company or any Company Subsidiary arising from their use of the Company Intellectual Property, and to the knowledge of the Company, the conduct of the businesses of the Company and Company Subsidiaries and their products and services do not infringe, misappropriate, dilute or otherwise violate any Intellectual Property rights of any Person.

(d)Neither the Company nor any Company Subsidiary has made any claim during the past three (3) years of any misappropriation or infringement by any third party of its rights to or in connection with the use of any Company Intellectual Property; and (ii) to the knowledge of the Company, no Person is infringing or misappropriating any Company Intellectual Property.

(e)The Company and the Company Subsidiaries have taken reasonable measures to protect the confidentiality of their material Trade Secrets including requiring employees, contractors and other Persons having access thereto to execute written nondisclosure agreements. To the knowledge of the Company, none of the material Trade Secrets of the Company and the Company Subsidiaries have been disclosed or authorized to be disclosed by the Company or the Company Subsidiaries to any third party other than pursuant to a valid and enforceable nondisclosure agreement. To the knowledge of the Company, no third party to any nondisclosure agreement with the Company or any Company Subsidiary is in material breach, violation or default.

(f)Each Person who contributed, developed or conceived any Company Owned Intellectual Property has done so pursuant to a valid and enforceable written agreement that (i) protects the confidential information disclosed by the Company and its Subsidiaries and (ii) grants the Company and its Subsidiaries exclusive ownership of the Person’s contribution, development or conception and waives any non-assignable interests in such contribution, development or conception, such as moral rights.

(g)During the three (3) years prior to the date hereof, to the knowledge of the Company, there has been no act or omission in respect of the use or enforcement of the Company Owned Intellectual Property that would reasonably be expected to result in the abandonment, cancellation or unenforceability of any such Intellectual Property.

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(h)No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other Person who is not an employee of the Company or a Company Subsidiary. Neither the Company nor any Company Subsidiary has any duty or obligation to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other Person who is not an employee of the Company or any Company Subsidiary.

(i)No Company Proprietary Software is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that has been or is used in the businesses of the Company and its Subsidiaries in a manner that would (i) require or condition the use or distribution of such Company Proprietary Software on the disclosure, licensing, or distribution of any source code for any portion of such Company Proprietary Software or (ii) otherwise impose any limitation, restriction, or condition on the right or ability of the Company or any Company Subsidiary to use or distribute any Company Proprietary Software.

(j)To the knowledge of the Company, the Company Proprietary Software does not contain any program routine, device, code or instructions (including any code or instructions provided by third parties) or other undisclosed feature, including, without limitation, a time bomb, virus, lock-out device, drop-dead device, malicious logic, worm, Trojan horse, bug, error, defect or trap door, that is designed to access, modify, delete, damage, disable, deactivate, interfere with, or otherwise harm the Company Proprietary Software or any of the Company’s information technology systems, data or other electronically stored information, or computer programs or systems.

(k)The Company and the Company Subsidiaries, and to the knowledge of the Company all of its and their providers of information technology services, have (i) complied in all material respects with their respective published privacy policies and internal privacy policies and guidelines and all applicable Laws relating to privacy, data protection, user data or Personal Data, including Personal Data of customers, employees, contractors and third parties who have provided information to the Company or any Company Subsidiary; and (ii) implemented and maintained, in all material respects, a comprehensive security plan that includes industry standard administrative, technical and physical safeguards to ensure that Personal Data is protected against loss, damage, unauthorized access, unauthorized use, unauthorized modification, or other misuse. To the knowledge of the Company, within the past five (5) years there has been no material loss, damage, unauthorized access, unauthorized use, unauthorized modification, or other breach of security of Personal Data maintained by or on behalf of the Company and the Company Subsidiaries. Within the past three (3) years, no Person has made any material claim or commenced any Action with respect to, and the Company and the Company Subsidiaries have not, to the knowledge of the Company, experienced any incident relating to, any actual or suspected loss, damage, unauthorized access, unauthorized use, unauthorized modification, or breach of security of Personal Data maintained or processed by or on behalf of the Company and the Company Subsidiaries. Except for disclosures of information permitted or required by privacy Laws or authorized by the provider of Personal Data, to the knowledge of the Company, neither the Company nor any of the Company Subsidiaries has shared, sold, rented or otherwise made available, and does not share, sell, rent or otherwise make available, to third parties any Personal Data.

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(l)The Company and the Company Subsidiaries have implemented business continuity and disaster recovery plans and have arranged for back-up data processing services adequate to meet their data processing needs in the event that the computer systems, networks, hardware, software, databases, websites, and equipment of the Company or the Company Subsidiaries or any of their material components is rendered temporarily or permanently inoperative as a result of a natural or other disaster. The computer systems, networks, hardware, software, databases, websites, and equipment of the Company or the Company Subsidiaries have not suffered any failures, errors or breakdowns within the past three years that have caused any material disruption or interruption in the business of the Company and the Company Subsidiaries. The computer systems, networks, hardware, software, databases, websites, and equipment of the Company or the Company Subsidiaries have not suffered any failures, errors or breakdowns within the past three (3) years that have caused any material disruption or interruption in the business of the Company or the Company Subsidiaries.

Section 3.14Title to Properties; Assets. The Company and each of the Company Subsidiaries have good and valid fee simple title to its owned properties and tangible assets or good and valid leasehold interests in all of its leasehold properties and tangible assets except for such as are no longer used or useful in the conduct of its business or as have been disposed of in the ordinary course of business consistent with past practices. All properties and assets, other than properties and assets in which the Company or any Company Subsidiary have a leasehold interest, are free and clear of all Liens other than Permitted Liens. The equipment and other tangible assets of the Company and the Company Subsidiaries are in all material respects in good operating condition, normal wear and tear and ordinary maintenance requirements excepted.

Section 3.15Real Property. Section 3.15 of the Company Disclosure Letter sets forth a list of all real property currently owned or leased by the Company or any Company Subsidiaries. The Company or one of the Company Subsidiaries has good and fee simple title to all real property owned by the Company or any such Company Subsidiary as of the date of this Agreement (the “Company Owned Real Property”) and valid leasehold estates in all real property leased or subleased (whether as tenant or subtenant) by the Company or any Company Subsidiary as of the date of this Agreement (including improvements thereon, the “Company Leased Real Property”). The Company Subsidiaries have exclusive possession of each Company Leased Real Property and Company Owned Real Property, other than any Permitted Liens and use and occupancy rights granted to third-party owners, tenants, guests, hosts or licensees pursuant to agreements with respect to such real property.

Section 3.16Regulatory Matters.

(a)The Company and the Company Subsidiaries hold all Permits issued by the FCC or the state public service or public utility commissions or other similar state regulatory bodies (“State PSCs”), and all other material regulatory Permits, including franchises, ordinances and other agreements granting access to public rights of way, issued or granted to the Company or any Company Subsidiary by a Governmental Entity (the “Company Licenses”) that are required for the Company and each Company Subsidiary to conduct its business, as presently conducted. Section 3.16(a) of the Company Disclosure Letter sets forth a list of all Company Licenses, together with the name of the entity holding such Company License. True correct and complete copies of each Company License (including all modifications and amendments thereto and waivers thereunder) have been made available to Parent.

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(b)Each Company License is valid and in full force and effect and has not been suspended, revoked, cancelled or adversely modified. No Company License is subject to (i) any conditions or requirements that have not been imposed generally upon licenses in the same jurisdictions, or (ii) any pending proceeding by or before the FCC or State PSCs to suspend, revoke or cancel such Company License, or any judicial review of a decision by the FCC or State PSCs with respect thereto. To the knowledge of the Company, there has not been any event, condition or circumstance that would preclude any Company License from being renewed in the ordinary course (to the extent that such Company License is renewable by its terms).

(c)Company License is in compliance in all material respects with such Company License and has fulfilled and performed all of its obligations with respect thereto, including all reports, notifications and applications required by the Communications Act of 1934, as amended (the “Communications Act”), or the rules, regulations, written policies and orders of the FCC (together with the Communications Act, the “FCC Rules”) or similar state telecommunications laws (the “State Telecommunications Laws”) and the rules, regulations, written policies and Orders of State PSCs (collectively with the State Telecommunications Laws, the, “PSC Rules”), and the payment of all regulatory fees and contributions, except for exemptions, waivers or similar concessions or allowances. Without limiting the foregoing, the licensee of each Company License is in material compliance with the applicable requirements of the Federal and state Universal Service Fund programs, the Federal Telecommunications Relay Service programs, the Federal North American Numbering Plan Administration program, the Federal Local Number Portability Administration program (collectively, the “USF Programs”), the Communications Assistance to Law Enforcement Act (“CALEA”), and the FCC’s regulations concerning treatment and protection of Customer Proprietary Network Information (“CPNI”). All reports and other submissions required in connection with the USF Programs, CALEA, CPNI regulations, including contribution remittances, have been timely filed in materially true, correct and complete form. To the knowledge of the Company and the Company Subsidiaries, there are no pending or threatened investigations, inquiries, audits, examinations or other proceedings in connection with the performance of the Company and the Company Subsidiaries of their USF Programs, CALEA and CPNI obligations.

(d)Except as set forth in Section 3.16(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary has (i) implemented, or been alleged or found to have implemented, an unauthorized change of an end user’s carrier (“Slamming”) or (ii) placed or been alleged or found to have placed an unauthorized charge on customer billing (“Cramming”).

(e)Except as set forth in Section 3.16(e) of the Company Disclosure Letter, the Company and all Company Subsidiaries have timely complied with any compensation, restoration, reimbursement, reporting, or other obligations arising in connection with public and private right-of-way access and pole attachment agreements.

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(f)Except as set forth in Section 3.16(f) of the Company Disclosure Letter, the Company and all Company Subsidiaries have timely submitted all required international traffic and circuit status reports in materially true, correct and complete form. Except as set forth in Section 3.16(f) of the Company Disclosure Letter, the licensee of each Company License is in material compliance with the applicable requirements of federal and state network outage reporting (“NOR”) requirements. All reports and other submissions required in connection with federal and state NOR requirements have been timely filed in materially true, correct and complete form. To the knowledge of the Company and the Company Subsidiaries, there are no pending or threatened investigations, inquiries, audits, examinations or other proceedings in connection with the performance of the Company and the Company Subsidiaries of their NOR requirements.

(g)The Company or a wholly-owned Subsidiary of the Company directly or indirectly owns 100% of the Equity Interests and controls 100% of the voting power and decision-making authority of each holder of the Company Licenses. No Company License, Order or other agreement, obtained from, issued by or concluded with any State PSC would impose restrictions on the ability of any Company Subsidiary to make payments, dividends or other distributions to the Company or any Company Subsidiary that limits, or would reasonably be expected to limit, the cash funding and management alternatives of the Company on a consolidated basis in a manner disproportionate to restrictions applied by other State PSCs.

Section 3.17Interconnection Agreements. The Company or a Company Subsidiary has entered into, with incumbent local exchange carriers or other non-incumbent carriers, all interconnection agreements, line sharing agreements, line splitting agreements and other Contracts (the “Company Interconnection Agreements”), that are necessary to conduct their respective businesses as currently conducted. All Company Interconnection Agreements entered into pursuant to Sections 251 and 252 of the Telecommunications Act of 1996 (the “Telecommunications Act”), including amendments to implement the FCC’s Triennial Review Remand Order, to the extent such amendments have been adopted, include the general terms, conditions and pricing for any unbundled network elements (“UNEs”), collocation or other network facilities or services provided under Sections 251 and 252 of the Telecommunications Act. All Company Interconnection Agreements have been approved by the applicable State PSC. The Company and any Company Subsidiary, as applicable, that is a party to a Company Interconnection Agreement has performed in all material respects all obligations required to be performed by it under such Company Interconnection Agreement.

Section 3.18Network Facilities. Except as set forth in Section 3.18 of the Company Disclosure Letter:

(a)All Company Owned Network Facilities and, to the knowledge of the Company, all Company leased Network Facilities: (i) are in all material respects in good working order and condition and are without any material defects individually and in the aggregate; (ii) are, individually and in the aggregate, operated, installed, and maintained by the Company, a Company Subsidiary, or their contractors in a manner that is in compliance in all material respects with (x) generally accepted industry standards for the United States industry, (y) performance requirements in service agreements with customers of the Company and the Company Subsidiaries, and (z) all Laws, and (iii) comply, individually and in the aggregate, in all material respects with applicable performance standards.

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(b)The Company or a Company Subsidiary owns, free and clear of all Liens (other than Permitted Liens and Liens to be discharged at the Closing), all right, title and interest in Company Owned Network Facilities. No third party may revoke or otherwise encumber or interfere in any material respect with such right, title, and interest.

(c)(i) Each Contract under which any third party provides Network Facilities, including leases, licenses, indefeasible rights of use of capacity or infrastructure, pole attachment agreements and Right-of-Way Agreements (a “Company Network Facility Agreement”), to which the Company or any Company Subsidiary is a party, is a valid, legally binding and enforceable agreement and is in full force and effect, and neither the Company nor any Company Subsidiary is in material breach of or material default under any Company Network Facility Agreement, (ii) no event has occurred which, with notice or lapse of time, would constitute a material breach or material default by the Company or any Company Subsidiary or permit termination, revocation, other interference with performance of, modification or acceleration by any third party of any Company Network Facility Agreement, and (iii) as of the date hereof, no third party has repudiated, revoked, terminated, or otherwise materially interfered with performance of or has the right to terminate, repudiate, revoke, or otherwise materially interfere with the performance of any Company Network Facility Agreement. Any notices or other actions required to be taken to renew the term of a Company Network Facility Agreement for any upcoming renewal term have been taken or given in the manner and within the time provided in such Company Network Facility Agreement (or the time period provided for giving of such notice or to undertake such action has not expired) to effectively renew the term of such Company Network Facility Agreement for the upcoming term thereof to the extent that such Company Network Facility Agreement is renewable by its terms and the Company or the applicable Company Subsidiary intends to renew such Company Network Facility Agreement. To the knowledge of the Company, as of the date of this Agreement, the Company and the Company Subsidiaries hold all Company Network Facility Agreements necessary to conduct the Company’s business and no event has occurred, or circumstance exists, that, but for the passage of time or giving of notice, would preclude any Company Network Facility Agreement from being renewed in accordance with the terms thereof to the extent the Company or the applicable Company Subsidiary intends to renew such Company Network Facility Agreement.

Section 3.19Insurance. The Company and the Company Subsidiaries maintain insurance in such amounts and against such risks as the Company believes to be customary for the industries in which it and the Company Subsidiaries operate. Neither the Company nor any of the Company Subsidiaries has received notice of any pending or threatened cancellation with respect to any such material insurance policy, and each of the Company and the Company Subsidiaries is in compliance in all material respects with all conditions contained therein.

Section 3.20Application of Takeover Laws. The Company and the Stockholders have taken all necessary action, if any, in order to render inapplicable to the Transactions any restriction on business combinations contained in any applicable Takeover Law which is or would reasonably be expected to become applicable to Parent or Merger Sub as a result of the Transactions, including the conversion of Company Capital Stock pursuant to Section 1.5(a).

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Section 3.21Affiliate Transactions. There are not any transactions, agreements, arrangements or understandings between the Company or the Company Subsidiaries, on the one hand, and the Company’s Affiliates (other than wholly-owned Subsidiaries of the Company) or other Persons on the other hand.

Section 3.22Customers and Suppliers.

(a)Section 3.22(a) of the Company Disclosure Letter sets forth (i) the top thirty customers of the Company based on aggregate consideration paid to the Company for each of the two (2) most recent fiscal years (collectively, the “Material Customers”); and (ii) the amount of consideration paid by each Material Customer during such periods. Except as set forth in Section 3.22(a) of the Company Disclosure Letter, the Company has not received any notice (in writing, including by e-mail to the Company’s legal department, or otherwise in accordance with the terms of any applicable contract with the Material Customer), that any of its Material Customers has ceased, or intends to cease after the Closing, to use its goods or services or to otherwise terminate or materially reduce its relationship with the Company.

(b)Section 3.22(b) of the Company Disclosure Letter sets forth (i) each supplier to whom the Company has paid consideration for goods or services rendered in an amount greater than or equal to $50,000 for each of the two (2) most recent fiscal years (collectively, the “Material Suppliers”); and (ii) the amount of purchases from each Material Supplier during such periods. Except as set forth in Section 3.22(b) of the Company Disclosure Letter, the Company has not received any notice (in writing, including by e-mail to the Company’s legal department, or otherwise in accordance with the terms of any applicable contract with the Material Supplier), that any of its Material Suppliers has ceased, or intends to cease, to supply goods or services to the Company or to otherwise terminate or materially reduce its relationship with the Company.

Section 3.23Directors, Officers, Managers. Section 3.23 of the Company Disclosure Letter sets forth a list of all officers, directors, partners and/or managers of the Company and each Company Subsidiary as of the date hereof.

Section 3.24Books and Records. The minute books and stock record books of the Company and the Company Subsidiaries, all of which have been made available to Parent, are complete and correct and have been maintained in accordance with sound business practices. The minute books of the Company and the Company Subsidiaries contain accurate and complete records of all meetings, and actions taken by written consent of, the stockholders, the members, the board of directors, any committee of the board, or the manager, as applicable, and no meeting, or action taken by written consent, of any such stockholders, members, board, committee or manager has been held for which minutes have not been prepared and are not contained in such minute books. At the Closing, all of those books and records will be in the possession of the Company.

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Section 3.25Broker’s Fees. None of the Company, any Company Subsidiary or any of their respective officers or directors has employed any broker or finder or incurred any liability for any broker’s fees, commissions or finder’s fees in connection with the Transactions, other than as set forth on Section 3.25 of the Company Disclosure Letter. The Company has heretofore provided to Parent a correct and complete copy of the Company’s engagement letters with the entities set forth on Section 3.25 of the Company Disclosure Letter, which letters describe all fees payable to the entities set forth on Section 3.25 of the Company Disclosure Letter, in connection with the Transactions and all Contracts under which any such fees or any expenses are payable and all indemnification and other Contracts with the entities set forth on Section 3.25 of the Company Disclosure Letter, entered into in connection with the Transactions.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Parent and Merger Sub represent and warrant to the Company as follows:

Section 4.1Parent Corporate Organization. Parent is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. Parent has the corporate power and corporate authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

Section 4.2Merger Sub Corporate Organization. Merger Sub is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by Parent. Merger Sub has not conducted any business prior to the date hereof and has, and prior to the Effective Time will have, no assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and the Transactions.

Section 4.3Authority; No Violation.

(a)Each of Parent and Merger Sub has all requisite corporate power and authority to enter into this Agreement and to consummate the Transactions. The execution and delivery of this Agreement and the consummation of the Transactions have been duly and validly authorized by the Board of Directors of Parent and the sole stockholder of Merger Sub, and, except for the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of Parent or Merger Sub are necessary to authorize the consummation of the Transactions. This Agreement has been duly and validly executed and delivered by Parent and Merger Sub and, assuming this Agreement constitutes the valid and binding agreement of the Company, this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, except as such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally and (ii) is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding at Law or in equity).

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(b)None of the execution and delivery of this Agreement by Parent or Merger Sub, the consummation of the Transactions, nor compliance by Parent or Merger Sub, as applicable, with any of the terms or provisions of this Agreement, will (i) violate any provision of the Parent Charter, the Parent Bylaws, the Merger Sub Charter or the Merger Sub Bylaws or (ii) assuming that the consents, approvals and filings referred to in Section 4.4 are duly obtained and/or made, violate any Injunction or Law applicable to Parent, Merger Sub, any of the Parent Subsidiaries or any of their respective properties or assets.

Section 4.4Consents and Approvals. Except for (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL, (b) the State Approvals and (c) the FCC Approval, no consents or approvals of or filings or registrations with any Governmental Entity are necessary in connection with (i) the execution and delivery by Parent or Merger Sub of this Agreement and (ii) the consummation by Parent and Merger Sub, as applicable, of the Transactions except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

Section 4.5Financing. Parent will have at the Effective Time access to immediately available funds sufficient to pay the amounts required to be paid by Parent hereunder and to pay all related fees and expenses to be paid by Parent at the Closing. Parent’s and Merger Sub’s obligations under this Agreement are not subject to any condition regarding Parent’s or Merger Sub’s ability to obtain financing to enable Parent to meet its obligations hereunder.

Section 4.6Legal Proceedings.

(a)Neither Parent nor any of the Parent Subsidiaries is a party to any, and there are no pending or, to the knowledge of Parent, threatened, Actions, against Parent or any Parent Subsidiary except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

(b)There is no Injunction or judgment imposed upon Parent, any of the Parent Subsidiaries or the assets of Parent or any Parent Subsidiary that would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

Section 4.7SEC Reports. No report on Form 10-K, Form 10-Q or Form 8-K (including exhibits and all other information incorporated therein) filed by Parent with, or furnished by Parent to, the SEC during the twenty-four month period prior to the date hereof contained any untrue statement of material fact or omitted any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case determined as of the date of such filing or furnishing of such item.

Section 4.8Parent Common Stock. The shares of Parent Common Stock to be issued to the Stockholders pursuant to the terms of this Agreement have been duly authorized, and when issued in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and non-assessable, will not be issued in violation of the preemptive or similar rights of any stockholder, and will be listed for trading on the principal stock exchange on which the shares of common stock of Parent are traded as of the date of this Agreement.

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Section 4.9Investment Intent. Parent is acquiring all of the shares of the Company Capital Stock for its own account and not with a view to the distribution of those interests within the meaning of Section 2(11) of the Securities Act.

Section 4.10Broker’s Fees. None of Parent, any Parent Subsidiary or any of their respective officers or directors has employed any broker or finder or incurred any liability for any broker’s fees, commissions or finder’s fees in connection with the Merger.

ARTILCE V

PRE-CLOSING COVENANTS

Section 5.1Conduct of Businesses by the Company Prior to the Effective Time. During the period from the date of this Agreement to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time (except as contemplated or permitted by this Agreement, as required by a Governmental Entity or applicable Law or as Parent may otherwise consent in writing (which consent will not be unreasonably withheld, conditioned or delayed)), the Company will, and will cause each of the Company Subsidiaries to use commercially reasonable efforts to (a) conduct, in all material respects, its business in the ordinary course, including the timely payment in accordance with historical practice of all Taxes, accounts payable and other liabilities, (b) preserve intact its business organization and its significant business relationships and to preserve satisfactory relationships with its employees, (c) maintain insurance upon all of the material assets of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement, and (d) maintain all Permits and timely pay all material fees, charges and other amounts to Governmental Entities.

Section 5.2Company Forbearances. Without limiting the generality of Section 5.1, during the period from the date of this Agreement to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, except as set forth on Section 5.2 of the Company Disclosure Letter or as contemplated or permitted by this Agreement or as required by applicable Law, the Company will not, and will not permit any of the Company Subsidiaries to, without the prior written consent of Parent (which consent will not be unreasonably withheld, conditioned or delayed):

(a)incur any Indebtedness;

(b) (i) adjust, split, combine or reclassify any of its capital stock;

(ii)make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock (other than from employees that have ceased to be employed by the Company or a Company Subsidiary pursuant to Contracts in effect on the date of this Agreement) or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock except dividends paid by any of the Company Subsidiaries to the Company or to any of its wholly owned Subsidiaries; provided that nothing in this Agreement shall restrict the Company from declaring and paying a cash dividend or making a cash distribution to its stockholders prior to the Closing Date; or

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(iii)issue, sell, grant or authorize the issuance, sale or grant of any shares of Company Capital Stock or other ownership interest in the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, options, or warrants with respect to any such shares of Company Capital Stock, ownership interests or convertible or exchangeable securities;

(c)except as required by Law or an agreement (including, any Company Benefit Plan) in effect on the date of this Agreement, or as otherwise set forth in Section 5.2(c) of the Company Disclosure Letter:

(i)increase any wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any director, executive officer or employee other than ordinary course annual wage and salary increases for employees (other than employees with a title of Vice President or a title senior to Vice President) that do not increase the aggregate amount of such wages and salaries for all such affected employees by more than $125,000;

(ii)enter into or amend any employment or severance agreements with any director or executive officer;

(iii)establish any bonus or incentive plan;

(iv)pay any pension or retirement allowance not allowed by any existing plan or agreement or by applicable Law;

(v)pay any bonus to any director or executive officer other than pursuant to the 2017 Annual Bonus Plans in effect on the date of this Agreement; or

(d)become a party to, amend or commit itself to, any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee of the Company or a Company Subsidiary;

(e)sell, lease, transfer or otherwise dispose of any of its material properties or assets to any Person other than a Company Subsidiary, except for the disposal of obsolete assets or assets sold in the ordinary course of business;

(f)compromise, settle or agree to settle any Action in which damages are being sought against the Company or any Company Subsidiary, other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that (i) involve only the payment of monetary damages not in excess of $50,000 individually or $250,000 in the aggregate, and (ii) do not involve any imposition of equitable relief on, or any admission of wrongdoing or, in the context of any actual or potential violation of any criminal Law, any nolo contendere or similar plea by, the Company or any Company Subsidiaries;

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(g)make any acquisition (including by merger) of the capital stock or a material portion of the assets of any other Person;

(h)purchase or otherwise acquire any real property;

(i)enter into or renew any contract with a term greater than one year and annual payments by the Company or any Company Subsidiary greater than $250,000;

(j)enter into any new line of business that is material to the Company and the Company Subsidiaries, taken as a whole, or materially change any of its technology or operating policies that are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole, except in the ordinary course of business or as required by applicable Law;

(k)amend the Company Charter or the Company Bylaws, except as otherwise required by Law;

(l)except as required by GAAP as concurred in by its independent auditors or in the ordinary course of business, make any material change in its methods or principles of accounting;

(m)except as required by applicable Law, make, change or rescind any material Tax election, change any Tax accounting period, adopt or change any Tax accounting method, amend any material Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company or any of the Company Subsidiaries, obtain any Tax ruling, surrender any right to claim a refund of material Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of the Company Subsidiaries;

(n)waive or amend in any material respect any of its material rights under any Company Material Contract;

(o)adopt or recommend a plan of complete or partial dissolution, liquidation, recapitalization, restructuring or other reorganization;

(p)fail to maintain, or allow to lapse or abandon, any material foreign or U.S. registrations in connection with any Company Intellectual Property;

(q)except as required by Law, enter into or amend in any material respect any collective bargaining agreement;

(r)make any discretionary contributions to pension or retirement plans in excess of the minimum required contributions as required by the Pension Protection Act of 2006 or similar legal requirements for plans outside the United States;

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(s)conduct the businesses of the Company or any Company Subsidiary in a manner that would cause the Company or any Company Subsidiary to become an “investment company” subject to registration under the Investment Company Act;

(t)terminate or permit any material Permit of the Company to lapse, other than in accordance with the terms and regular expiration of any such Permit, or fail to apply on a timely basis for any renewal of any renewable material Permit of the Company;

(u)change recurring or non-recurring rates, promotions, credit policies or collections procedures, or sales incentives and commission plans for employees of the Company or a Company Subsidiary or any other agent of the Company or a Company Subsidiary;

(v)accelerate the billing, collection or other realization of accounts receivable or other sums payable to the Company or any of the Company Subsidiary;

(w)fail to pay or satisfy, or delay the payment or satisfaction of, any accounts payable or other obligations;

(x)take any action outside the ordinary course of business consistent with past practices that would materially impact the Working Capital of the Company and the Company Subsidiaries; or

(y)agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2.

ARTICLE VI

ADDITIONAL AGREEMENTS

Section 6.1Filings; Other Actions; Notification.

(a)The Company, Parent and Merger Sub will use their respective commercially reasonable efforts to (i) take, or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable under applicable Law, or otherwise to consummate and make effective the Transactions as promptly as practicable, (ii) obtain from any Governmental Entity any consents, licenses, permits, waivers, approvals, authorizations or Orders, including the FCC Approval and State Approvals, required to be obtained by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, or to avoid any Action by any Governmental Entity, in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions and (iii) (A) as promptly as reasonably practicable, and in any event within ten (10) Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required in order to obtain the FCC Approval, (B) as promptly as reasonably practicable, and in any event within seven (7) Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required in order to obtain the State Approvals, and (C) as promptly as reasonably practicable after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required under any other applicable Law. The Company and Parent will furnish to each other all information required for any application or other filing under the rules and regulations of any applicable Law in connection with the Transactions.

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(b)The Company will give (or will cause the Company Subsidiaries to give) any notices to third parties, and use, and cause the Company Subsidiaries to use, their commercially reasonable efforts to obtain any third party consents (i) required under the terms of any Company Material Contract or Permit of the Company or any Company Subsidiary to consummate the Transactions, or (ii) required to prevent a Company Material Adverse Effect from occurring prior to or after the Effective Time.

(c)Without limiting the generality of anything contained in this Section 6.1, each Party hereto will: (i) give the other Parties prompt notice of the making or commencement of any Action with respect to the Merger or any of the other Transactions; (ii) keep the other Parties informed as to the status of any such request or Action; (iii) promptly inform the other Parties of any communication to or from any Governmental Entity regarding the Merger or any of the other Transactions; (iv) respond as promptly as practicable to any additional requests for information received by any Party from any Governmental Entity with respect to the Transactions or filings contemplated by Section 6.1(a); and (v) use commercially reasonable efforts to prevent the entry in any Action brought by a Governmental Entity or any other Person of any Injunction which would prohibit, make unlawful or delay the consummation of the Transactions. Each Party hereto will consult and cooperate with the other Parties and will consider in good faith the views of the other Parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other Transactions. In addition, except as may be prohibited by any Governmental Entity or by applicable Law, in connection with any such request or Action, each Party will permit Representatives of the other Parties to be present at each meeting or conference relating to such request or Action and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request or Action.

(d)Without limiting the generality of the foregoing, each of Parent, Merger Sub and the Company agrees to (and the Company will cause each Company Subsidiary to) use commercially reasonable efforts to: (A) promptly provide all information requested by any Governmental Entity in connection with the Transactions; (B) obtain such approvals, consents and clearances as may be necessary, proper or advisable under any applicable Laws; (C) promptly provide all notifications required by, and file all applications with, the FCC seeking the consent of the FCC that are necessary or appropriate to consummate the Transactions, including the FCC Approvals listed on Section 6.1(d) of the Company Disclosure Letter; and (D) promptly provide all notifications and registrations required by, and file all applications with, each applicable State PSC that are necessary or appropriate to consummate the Transactions, including the State Approvals listed on Section 6.1(d) of the Company Disclosure Letter.

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Section 6.2Written Consent. Immediately following the execution and delivery of this Agreement by the Parties, the Company will, in accordance with the DGCL, the Company Charter, the Company Bylaws and any applicable Contract to which the Company is a party, use commercially reasonable efforts to seek and obtain a written consent (the “Written Consent”) approving all of the Transactions contemplated by this Agreement and executed by the holders of at least 95% of the Company Capital Stock, determined on an as-converted basis. If the duly executed Written Consent executed by such holders of Company Capital Stock is not delivered to Parent within two (2) Business Days following the date of this Agreement, Parent will have the right to terminate this Agreement pursuant to Section 8.1. In the event the Written Consent is executed by the holders of a majority of the outstanding shares of each class of Company Capital Stock but not the requisite holders of Company Capital Stock described above and Parent does not elect to terminate this Agreement, the Company will comply with the DGCL, the Company Charter and the Company Bylaws in connection with the Written Consent, including giving written notice no later than ten days after the execution of the Written Consent, in accordance with Section 228 of the DGCL, of the taking of the actions described in the Written Consent to all other holders of Company Capital Stock and providing a description of any appraisal rights of holders of Company Capital Stock available under Section 262 of the DGCL and providing all other information and disclosures with respect to appraisal rights required by the DGCL. The Company will provide a copy of such notice to Parent prior to mailing such notice to holders of Company Capital Stock for Parent’s reasonable review and comment.

Section 6.3No Solicitation of Other Bids.

(a)The Company shall not, and shall not authorize or permit any of its Affiliates or any of its or their Representatives to, directly or indirectly, (i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. The Company shall immediately cease and cause to be terminated, and shall cause its Affiliates and all of its and their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. For purposes hereof, “Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person (other than Parent or any of its Affiliates) concerning (i) a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving the Company; (ii) the issuance or acquisition of shares of capital stock or other equity securities of the Company; or (iii) the sale, lease, exchange or other disposition of any significant portion of the Company’s properties or assets.

(b)In addition to the other obligations under this Section 6.3, the Company shall promptly (and in any event within three (3) Business Days after receipt thereof by the Company or its Representatives) advise Parent orally and in writing of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making the same.

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(c)The Company agrees that the rights and remedies for noncompliance with this Section 6.3 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to Parent and that money damages would not provide an adequate remedy to Parent.

Section 6.4Access to Information.

(a)Upon reasonable notice the Company will, and will cause each Company Subsidiary to, afford to Parent and to the officers, employees, accountants, counsel, lenders, financial advisors and other Representatives of Parent reasonable access during normal business hours during the period prior to the Effective Time to all the Company’s and the Company Subsidiaries’ owned or leased properties, books, Contracts, commitments, personnel (including contractors and distributors), records, Tax Returns, work papers and all other information concerning its business, operations, status of compliance with Laws, properties, personnel, accountants, Tax Return preparers and Tax advisors as Parent may reasonably request; except that Parent and its Representatives will conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company and the Company Subsidiaries; except further that the Company and the Company Subsidiaries will not be required to provide any access or disclose any information if such access or disclosure would contravene any applicable Law or where such access or disclosure would jeopardize the attorney-client privilege of the institution in possession or control of such information or contravene any fiduciary duty or binding agreement entered into prior to the date of this Agreement. The foregoing notwithstanding, neither Parent nor any of its Representatives shall contact any of the employees (other than the senior officers identified by the Company to Parent), landlords, customers or suppliers of the Company or its Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed; it being acknowledged that any and all such contacts will be arranged by and coordinated with the Company.

(b)All information and materials provided pursuant to this Agreement will be subject to the provisions of the Confidentiality Agreement entered into between the Company and Parent as of April 11, 2017 (the “Confidentiality Agreement”). Notwithstanding anything to the contrary set forth in this Agreement or in the Confidentiality Agreement, Parent, the Parent Subsidiaries and their respective Representatives may disclose information of the Company and the Company Subsidiaries and their respective Affiliates to the Debt Financing Sources and the Debt Financing Source Related Parties (in each case, without any obligation on the part of the Debt Financing Sources or the Debt Financing Source Related Parties to comply with the terms of the Confidentiality Agreement) provided, that the Debt Financing Sources are subject to confidentiality undertakings that are at least as restrictive as those applicable to the Debt Financing Sources under the Debt Engagement Letter or the Definitive Debt Financing Agreements.

(c)No investigation by either of the Parties or their respective Representatives will affect the representations and warranties of the other set forth in this Agreement.

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Section 6.5Employee Matters.

(a)After the Closing Date, Parent will provide, or will cause its Affiliates to provide, each employee of the Company or any Company Subsidiary as of the Closing Date (the “Company Employees”) with such employee compensation and benefits as Parent or the Company or the Company Subsidiary (as applicable), in its sole discretion, considers to be appropriate, provided that for six months following the Closing Date Parent will not, and will cause the Surviving Corporation and each Company Subsidiary to not, decrease the base salary of any Company Employee in effect immediately prior to the Closing.

(b)Parent (i) will give, and cause its Affiliates to give, each Company Employee service credit granted by the Company prior to Closing under any comparable Company Benefit Plan for all purposes (including eligibility to participate, vesting in eligible benefits, levels of benefits) other than for benefit accrual purposes under a defined benefit pension plan, (ii) will give, and cause its Affiliates to give, each Company Employee service credit granted by the Company prior to Closing under any comparable personnel policies (including any severance policies) that cover such Company Employee after the Closing Date, for purposes of entitlement to benefits thereunder, (iii) will allow, and cause its Affiliates to allow, such Company Employees to participate in each Company Benefit Plan providing welfare benefits (including medical, life insurance, long-term disability insurance and long-term care insurance) in the plan year in which the Closing occurs without regard to preexisting-condition limitations, waiting periods, evidence of insurability or other exclusions or limitations, and (iv) will credit, and cause its Affiliates to credit, the Company Employee with any expenses that were covered by the Company Benefit Plans for purposes of determining deductibles, co-pays and other applicable limits under the Company Benefit Plan in which they participate and any similar replacement plans.

(c)Parent will continue, and cause its Affiliates to continue, to credit to each Company Employee all vacation and personal holiday pay that the Company Employee is entitled to use but has not used as of the Closing Date (including any earned vacation or personal holiday pay to be used in future years), subject to Parent’s vacation day carryover policy.

(d)Nothing in this Agreement will create any right or obligation which is enforceable by any employee, former employee, Company Employee or any other Person with respect to any terms or conditions of employment, including, but not limited to, the benefits and compensation described in this Section 6.5. For the avoidance of doubt, any amendments to the Company’s, the Company Subsidiaries’, Parent’s and the Surviving Corporation’s benefit and compensation plans, programs or arrangements will occur only in accordance with their respective terms and will be pursuant to action taken by the Company, the Company Subsidiaries, Parent or the Surviving Corporation which are independent of the consummation of this Agreement or any continuing obligations hereunder.

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Section 6.6Advice of Changes. Each of the Company and Parent will promptly advise the other of any change or event, of which it has knowledge, (a) having or reasonably likely to have a Company Material Adverse Effect or a Parent Material Adverse Effect, as the case may be, or (b) that would or would be reasonably likely to cause or constitute a material breach of any of its representations, warranties or covenants contained in this Agreement if it would result in the failure of closing conditions in Section 7.3(a) or Section 7.3(b) or Section 7.2(a) or Section 7.2(b), respectively, by the Outside Date, except that (i) no such notification will affect the representations, warranties or covenants of the Parties (or remedies with respect thereto) or the conditions to the obligations of the Parties under this Agreement and (ii) a failure to comply with this Section 6.6 will not constitute the failure of any condition set forth in Article VII to be satisfied unless the underlying Company Material Adverse Effect, Parent Material Adverse Effect or material breach would independently result in the failure of a condition set forth in Article VII to be satisfied.

Section 6.7Transaction Litigation. Each Party will give the other Party prompt notice of any Action commenced or, to the knowledge of the Company or to the knowledge of Parent, as the case may be, threatened, against the such Party or its directors, officers, managers, partners or Affiliates relating to this Agreement or the Transactions (collectively, “Transaction Litigation”). The Parties will consult with each other regarding the defense or settlement of any Transaction Litigation and neither Party will compromise, settle, come to an arrangement regarding or agree to compromise, settle or come to an arrangement regarding any Transaction Litigation or consent to the same, without the prior written consent of the other Party (which consent will not be unreasonably withheld, conditioned or delayed). In connection with any Transaction Litigation and the Parties’ performance of their obligations under this Section 6.7, the Company and Parent will enter into a customary common interest or joint defense agreement or implement such other techniques as reasonably required to preserve any attorney-client privilege or other applicable legal privilege; except that no Party will be required to provide information if doing so, in the opinion of its legal counsel, would cause the loss of any attorney-client privilege or other applicable legal privilege; except that, if any information is withheld pursuant to the foregoing exception, such Party will inform the other Party as to the general nature of what is being withheld and the Parties will use reasonable best efforts to enable the informing Party to provide such information without causing the loss of any attorney-client or other applicable legal privilege.

Section 6.8Control of the Other Party’s Business. Nothing contained in this Agreement will give Parent, directly or indirectly, the right to control or direct the operations of the Company or the Company Subsidiaries or will give the Company, directly or indirectly, the right to control or direct the operations of Parent or its Subsidiaries prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

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Section 6.9Subsidiary Compliance. Parent will cause Merger Sub to comply with and perform all of Merger Sub’s obligations under or relating to this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement. Merger Sub will not engage in any business which is not in connection with the Merger

Section 6.10Publicity. The initial press release with respect to the execution of this Agreement will be a joint press release to be reasonably agreed upon by the Parent and the Company. Following such initial press release, none of the Company, Parent or Merger Sub will, and neither the Company nor Parent will permit any of its Subsidiaries to, issue or cause the publication of any press release or similar public announcement with respect to, or otherwise make any public statement concerning, the Transactions without the prior consent (which consent will not be unreasonably withheld, conditioned or delayed) of Parent, in the case of a proposed announcement or statement by the Company, or the Company, in the case of a proposed announcement or statement by Parent or Merger Sub; except that either Party may, without the prior consent of the other Party (but after prior consultation with the other Party to the extent practicable under the circumstances) issue or cause the publication of any press release or other public announcement to the extent such Party may reasonably conclude may be required by applicable Law. The restrictions set forth in this Section 6.10 will not apply to any release or public statement in connection with any dispute between the Parties regarding this Agreement or the Transactions, or limit the ability of any Party hereto to make internal announcements to their respective employees and other stockholders that are not inconsistent in any material respects with the prior public disclosures regarding the Transactions.

Section 6.11Takeover Laws. If any Takeover Law is or may become applicable to the Transactions, the Company and Parent, including the Company Board and the board of directors of Parent, will grant such approvals and take such actions as are necessary so that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and the Parties will otherwise act to eliminate or minimize the effects of such Takeover Law on the Merger.

Section 6.12Indemnification of Officers and Directors.

(a)All rights to indemnification by the Company existing in favor of all current and former directors and officers of the Company (the “Covered Persons”) for their acts and omissions occurring prior to the Effective Time, as provided in the Company Charter and Company Bylaws (as in effect as of the date of this Agreement) and as provided in any indemnification agreements between the Company and the Covered Persons (as in effect as of the date of this Agreement) in the forms made available by the Company to Parent prior to the date of this Agreement, shall survive the Merger and shall be observed by the Surviving Corporation for a period of six years from the Effective Time, and any claim made requesting indemnification pursuant to such indemnification rights within such six-year period shall continue to be subject to this Section 6.12(a) until disposition of such claim.

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(b)In the event the Company or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall ensure that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.12.

(c)Prior to the Effective Time, the Company shall purchase, at its expense (which shall constitute a Transaction Expense), in effect for six years after the Effective Time, insurance “tail” or other insurance policies with respect to directors’ and officers’ liability insurance with respect to acts or omissions existing or occurring at or prior to the Effective Time in an amount and scope at least as favorable as the coverage applicable to directors and officers as of immediately prior to the Effective Time under the Company’s directors’ and officers’ liability insurance policy (the “D&O Tail Policy”). The Surviving Corporation shall maintain such policy for its duration.

(d)The provisions of this Section 6.12 shall survive the consummation of the Merger and are (i) intended to be for the benefit of, and will be enforceable by, each of the Covered Persons and their successors, assigns and heirs, and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. This Section 6.12 may not be amended, altered or repealed after the Effective Time without the prior written consent of the affected Covered Persons

Section 6.13Related Party Agreements. Prior to Closing, the Company will terminate all Contracts between the Company or any Company Subsidiary, on the one hand, and any stockholder of the Company or any of such stockholder’s respective Affiliates, on the other hand

Section 6.14Organizational Integration. From the date of this Agreement and until the Closing, the Parties shall work together in good faith to develop effective plans for the integration of the Company with the operations of Parent and its subsidiaries (the “Integration Plan”), which Integration Plan shall not be implemented until Closing. Furthermore, the Integration Plan shall be considered confidential information. Parent shall advise the Company at least fifteen (15) days prior to Closing of any employee(s) of Company and any Company Subsidiary who are not included in the Integration Plan and who, therefore, will not be retained following Closing. Nothing in the foregoing shall guarantee any employee of the Company continued employment following the Closing, and Parent reserves the right to make all decisions affecting personnel of the Company form and after the Closing.

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Section 6.15Resignations. The Company shall deliver to Parent written resignations, effective as of the Closing Date, of the managers, officers and directors, as applicable, of the Company and each Company Subsidiary set forth on Section 6.15 of the Company Disclosure Letter at least three (3) Business Days prior to the Closing. The total severance costs associated with the resignation or termination of the Chief Executive Officer and the Chief Financial Officer and fifty percent (50%) of the severance costs associated with any other employees of the Company who have a change of control agreement and that are terminated within sixty (60) days following the Closing (subject to a cap of $250,000) shall constitute Transaction Expenses.

Section 6.16Rule 144 Reporting. Parent will use its commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Exchange Act and the rules and regulations adopted by the SEC thereunder, and will, upon request of any holder of Parent Common Stock following the expiration of the applicable Rule 144 holding period, use commercially reasonable efforts to cause its transfer agent to remove restrictive legends from the certificates evidencing such shares of Parent Common Stock, including by providing such opinions of counsel as may be required by the transfer agent.

ARTICLE VII

CLOSING CONDITIONS

Section 7.1Conditions to Each Party’s Obligation to Effect the Merger. The respective obligations of the Parties to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions:

(a)Written Consent. The Written Consent will have been executed and delivered to Parent within the time frame specified in Section 6.2.

(b)Regulatory Consents. Each of the State Approvals and the FCC Approval have been obtained and are in effect, and any waiting period prescribed by Law with respect to such approvals before the Merger may be consummated have expired (the “Regulatory Approvals”).

(c)No Injunctions or Restraints; Illegality. No Injunction preventing the consummation of the Transactions will be in effect. No statute, rule, regulation, Order, Injunction or decree will have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Merger.

Section 7.2Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, on behalf of itself and Merger Sub, at or prior to the Effective Time, of the following conditions:

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(a)Representations and Warranties. The representations and warranties of the Company set forth in Article III of this Agreement (except for representations and warranties that are Fundamental Representations will be true and correct as of the date of this Agreement and as of the Effective Time as though made on and as of the Effective Time (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or another date will be true and correct as of such date), provided that this condition will be deemed satisfied unless all inaccuracies in such representations and warranties in the aggregate constitute a Company Material Adverse Effect at the Closing Date (ignoring solely for purposes of this proviso any reference to Company Material Adverse Effect or other materiality qualifiers contained in such representations and warranties or contained in any defined terms used in such representations and warranties). The representations and warranties of the Company set forth in Section 3.1(a), Section 3.1(c), Section 3.2, Section 3.3(a) and (b)(i) and Section 3.20 (the “Fundamental Representations”) will be true and correct in all material respects as of the date of this Agreement and as of the Effective Time as though made on and as of the Effective Time.

(b)Performance of Obligations of the Company. The Company will have performed in all material respects all covenants and agreements required to be performed by it under this Agreement at or prior to the Closing Date.

(c)Company Material Adverse Effect. There will not have occurred at any time after the date of this Agreement any Company Material Adverse Effect.

(d)FIRPTA Certificate. The Company will have delivered to Parent an executed notice to the IRS prepared in accordance with the requirements of Treasury Regulations Sections 1.897-2(h)(2) and 1.1445-2(c)(3) that is reasonably acceptable to Parent and dated as of the Closing Date (the “FIRPTA Certificate”), along with written authorization for Parent to deliver such FIRPTA Certificate to the IRS on behalf of the Company following the Closing.

(e)Dissenting Shares. No more than one percent (1.0%) of the Shares shall be Dissenting Shares.

(f)Indebtedness.

(i)Parent will have received payoff letters (the “Payoff Letters”) reasonably acceptable to it from each creditor of the Company and Company Subsidiaries to whom Indebtedness is owed with respect to the payment of the Indebtedness Payoff Amount and the release of all Liens related thereto; and

(ii)Except for the Indebtedness described in the Payoff Letters that is being paid off at the Closing, the Company and the Company Subsidiaries will have no Indebtedness;

(g)Closing Certificate. Parent will have received a certificate signed on behalf of the Company by the Chief Executive Officer of the Company certifying that the conditions set forth in Section 7.2(a), Section 7.2(b), Section 7.2(c), Section 7.2(e) and Section 7.2(f)(ii) are satisfied as of the Effective Time;

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Section 7.3Conditions to Obligations of the Company. The obligation of the Company to effect the Merger is also subject to the satisfaction or waiver by the Company at or prior to the Effective Time of the following conditions:

(a)Representations and Warranties. The representations and warranties of Parent and Merger Sub set forth in Article IV of this Agreement will be true and correct as of the date of this Agreement and as of the Effective Time as though made on and as of the Effective Time (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or another date will be true and correct as of such date), except that this condition will be deemed satisfied unless all inaccuracies in such representations and warranties in the aggregate constitute a Parent Material Adverse Effect at the Closing Date (ignoring solely for purposes of this exception any reference to Parent Material Adverse Effect or other materiality qualifiers contained in such representations and warranties), and the Company will have received a certificate signed on behalf of Parent and Merger Sub by the President and Chief Operating Officer of Parent to the foregoing effect.

(b)Performance of Obligations of Parent. Parent and Merger Sub will have performed in all material respects all covenants and agreements required to be performed by them under this Agreement at or prior to the Closing Date, and the Company will have received a certificate signed on behalf of Parent and Merger Sub by the President and Chief Operating Officer of Parent to such effect.

Section 7.4Frustration of Closing Conditions. No Party may rely on the failure of any condition set forth in Section 7.1, Section 7.2, or Section 7.3, as the case may be, to be satisfied, if such Party’s failure to perform any material obligation required to be performed by it has been the primary cause of, or primarily results in, such failure.

ARTICLE VIII

TERMINATION AND AMENDMENT

Section 8.1Termination. This Agreement may be terminated and the Transactions abandoned at any time prior to the Effective Time:

(a)by the mutual written consent of the Company and Parent duly authorized by each of the Company Board and the board of directors of Parent, respectively;

(b)by either of the Company or Parent by written notice to the other Party at any time after the Outside Date, if the Closing has not been consummated on or before the Outside Date; except that, if on the Outside Date (A) the condition set forth in Section 7.1(b) is not satisfied but all of the other conditions to Closing have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing) and the condition set forth in Section 7.1(b) remains capable of being satisfied and (B) no final and non-appealable order imposed by any Governmental Entity preventing the consummation of the Transactions is in effect as of such date of determination, then the Outside Date may be extended by the mutual written agreement of Parent and the Company at or before 11:59 p.m. New York, New York time on the Outside Date; and except that the right to terminate this Agreement under this Section 8.1(b) will not be available (x) to a Party if the inability to satisfy such conditions was due to the failure of such Party to perform any of its obligations under this Agreement or (y) to a Party if the other Party has filed (and is then pursuing) an action seeking specific performance as permitted by Section 11.11;

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(c)by either of the Company or Parent by written notice to the other Party if any Injunction having the effect set forth in Section 7.1(c) is in effect and has become final and nonappealable; or

(d)by Parent as described in Section 6.2.

Section 8.2Effect of Termination. In the event of the termination of this Agreement as provided in Section 8.1, written notice thereof will be given to the other Party or Parties, specifying the provision of this Agreement pursuant to which such termination is made, and this Agreement will become null and void (other than the provisions of this Section 8.2 and the provisions in Article X (General Provisions), all of which will survive termination of this Agreement). Upon termination pursuant to this Article VIII, there will be no liability on the part of Parent, Merger Sub, the Company or their respective directors, managers, officers and Affiliates; except that, upon the termination of this Agreement nothing will be deemed to (i) release any Party from any liability to any other Party for any intentional breach by such Party of this Agreement prior to such termination or (ii) impair the right of any Party to compel specific performance by the Party terminating this Agreement of such terminating Party’s obligations under this Agreement as provided in Section 10.11 of this Agreement

ARTICLE IX

INDEMNIFICATION

Section 9.1Survival. All representations and warranties in this Agreement shall expire on the first anniversary of the Closing; provided, however, that (a) Fundamental Representations shall survive for a period of two (2) years after the Closing, and (b) the representations in Section 3.8 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) plus 60 days. All covenants and agreements of the Parties contained herein shall survive the Closing for the applicable statute of limitations or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the Indemnified Party to the Indemnifying Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.

Section 9.2Indemnification By Stockholders and Optionholders. Subject to the other terms and conditions of this Article IX, (i) each of the Stockholders, severally and not jointly (in accordance with their respective Individual Share Percentages), and (ii) each of the Optionholders, severally and not jointly (in accordance with their respective Individual Option Percentages), shall indemnify and defend each of Parent and its Affiliates (including the Company) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of:

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(a)any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); and

(b)any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company pursuant to this Agreement.

Subject to the foregoing, the Stockholders shall be liable for the Share Percentage of, and the Optionholders shall be liable for the Option Percentage of, the foregoing indemnification obligations.

Section 9.3Indemnification By Parent. Subject to the other terms and conditions of this Article IX, Parent shall indemnify and defend each of the Stockholders and the Optionholders and their Affiliates and their respective Representatives (collectively, the “Stockholder Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Stockholder Indemnitees based upon, arising out of, with respect to or by reason of:

(a)any inaccuracy in or breach of any of the representations or warranties of Parent and Merger Sub contained in this Agreement or in any certificate or instrument delivered by or on behalf of Parent or Merger Sub pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); or

(b)any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Parent or Merger Sub pursuant to this Agreement.

Section 9.4Certain Limitations. The indemnification provided for in Section 9.2 and Section 9.3 shall be subject to the following limitations:

(a)The Stockholders and the Optionholders shall not be liable to the Parent Indemnitees for indemnification under Section 9.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.2(a) exceeds $500,000 (the “Basket”), in which event the Stockholders and Optionholders shall be required to pay or be liable for all such Losses from the first dollar in accordance with the provisions, and subject to the limitations, of this Agreement. Except for Losses arising from a breach of a Fundamental Representations or a breach of the representations and warranties set forth in Section 3.8, a claim by Parent hereunder shall be limited to the amount of the remaining Escrow Fund. Losses arising from a breach of the Fundamental Representations and a breach of Sections 3.8, shall not be so limited but the aggregate amount of all Losses for which any Stockholder or Optionholder shall be liable pursuant to Section 9.2 shall not exceed the overall consideration received by such Stockholder or Optionholder under this Agreement.

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(b)Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Basket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.3(a) shall not exceed $2,500,000.

(c)The amount of any Loss subject to indemnification shall be calculated net of (a) any Tax Benefit inuring to the Indemnified Party on account of such Loss and (b) any insurance proceeds or any indemnity, contribution or other similar payment recoverable by the Indemnified Party from any third party with respect thereto. If the Indemnified Party receives such insurance proceeds, contribution or similar payments after being indemnified with respect to some or all of such Loss, such Indemnified Party shall pay to the Indemnifying Party the lesser of (i) the amount of such insurance proceeds or indemnity, contribution or similar payment, less reasonable out-of-pocket expenses incurred in connection with such recovery and (ii) the aggregate amount paid to such Indemnified Party with respect to such Loss. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in each case computed at the highest marginal tax rates applicable to the recipient of such benefit. The Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder.

(d)Each Person entitled to indemnification hereunder shall take all reasonable steps to mitigate all losses, costs, expenses and damages after becoming aware of any event which could reasonably be expected to give rise to any losses, costs, expenses and damages that are indemnifiable or recoverable hereunder or in connection herewith.

(e)Notwithstanding the fact that any Indemnified Party may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Party shall be entitled to recover the amount of any Losses suffered by such Indemnified Party more than once, regardless of whether such Losses may be as a result of a breach of more than one representation, warranty or covenant. Without limiting the generality of the foregoing, the Parent Indemnitees shall have no right to indemnification hereunder with respect to any Loss to the extent such Loss is included in the calculation of the Indebtedness, Working Capital or Transaction Expenses as finally determined hereunder.

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(f)Parent and Merger Sub acknowledge that the representations and warranties of the Company contained herein constitute the sole and exclusive representations and warranties of the Company, the Stockholders and the Optionholders in connection with the transactions contemplated hereby, and Parent and Merger Sub understand, acknowledge and agree that all other representations and warranties of any kind or nature expressed or implied (including any relating to the future or historical financial condition, results of operations, assets or liabilities of the Company, or the quality, quantity or condition of the Company’s or its Subsidiaries’ assets) are specifically disclaimed by the Company, the Stockholders and the Optionholders. Except as expressly provided in this Agreement, the Company, the Subsidiaries, the Stockholders and the Optionholders do not make or provide, and Parent and Merger Sub hereby waive, any warranty or representation, express or implied, as to the quality, merchantability, as for a particular purpose, conformity to samples, or condition of the Company’s and its Subsidiaries’ assets or any part thereto.

(g)For purposes of this Article IX, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.

Section 9.5Indemnification Procedures. The Party making a claim under this Article IX is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article IX is referred to as the “Indemnifying Party”. For purposes of this Article IX, (i) if Parent (or any other Parent Indemnitee) comprises the Indemnified Party, any references to Indemnifying Party (except provisions relating to an obligation to make payments) shall be deemed to refer to the Stockholder Representative acting on behalf of the Stockholders and Optionholders, and (ii) if Parent comprises the Indemnifying Party, any references to the Indemnified Party (except provisions relating to a right to receive payments) shall be deemed to refer to Stockholder Representative acting on behalf of the Stockholders and Optionholders. Any payment due to the Stockholders and Optionholders as the Indemnified Party shall be distributed to the Stockholder Representative, or upon written instruction of the Stockholder Representative, the Payments Administrator for further distribution to Stockholders and Optionholders in accordance with this Agreement.

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(a)Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses or is otherwise materially prejudiced by reason of such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, however, that if the Indemnifying Party is a Stockholder, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Company, or (y) seeks an Injunction or other equitable relief against the Indemnified Parties. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 9.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party; provided, however, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to notify the Indemnified Party in writing of its election to defend as provided in this Agreement within 30 days of its receipt of notice of such Third Party Claim, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may defend such Third Party Claim, provided that the Indemnified Party shall not settle such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned. The Stockholder Representative and Parent shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

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(b)Settlement of Third Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section 9.5(b). If a firm offer is made to settle a Third Party Claim and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 9.5(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

(c)Direct Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Company’s premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such thirty (30) day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.

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Section 9.6Payments; Escrow Fund.

(a)Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Article IX, the Indemnifying Party shall satisfy its obligations within ten (10) Business Days of such final, non-appealable adjudication by wire transfer of immediately available funds. The Parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such ten (10) Business Day period, any amount payable shall accrue interest from and including the date of agreement of the Indemnifying Party or final, non-appealable adjudication to and including the date such payment has been made at a rate per annum equal to one and one half percent (1.5%) per month. Such interest shall be calculated daily on the basis of a 365-day year and the actual number of days elapsed

(b)Any Losses payable to a Parent Indemnitee pursuant to this Article IX shall be satisfied: (i) first from the Escrow Fund; and (ii) solely in the case of Losses exceeding the amount in the Escrow Fund that arise from a breach of a Fundamental Representation or a breach of Section 3.8, from (i) each of the Stockholders, severally and not jointly (in accordance with their respective Individual Share Percentages), and (ii) each of the Optionholders, severally and not jointly (in accordance with their respective Individual Option Percentages); provided, however, that such direct indemnification obligations of any Stockholder or Optionholder shall be satisfied first from any funds remaining in the Escrow Fund that would otherwise be payable to such Stockholder or Optionholder pursuant to Section 2.8, and any indemnification obligations of a Stockholder or Optionholder in excess of such funds shall be paid directly by such Stockholder or Optionholder.

(c)If Parent or any of its Affiliates or the Stockholder Representative receives notice from any Governmental Entity of any proposed or actual audit, examination, adjustment, claim, assessment or demand concerning the Taxes of the Company or any or its Subsidiaries that are subject to indemnification under Section 9.2(a), such Party shall inform the other Party thereof within ten (10) Business Days after receipt of such notice. No failure or delay in providing such notice shall reduce or otherwise affect the obligations or liabilities of any Party, except to the extent such failure or delay adversely affects the recipient Party’s ability to defend against any liability or claim with respect to such Taxes. Any notice shall be accompanied by a copy of any written notice or other document received from the applicable Governmental Entity with respect to such matter. The Stockholder Representative shall have the sole right to control, at the expense of the Stockholders and the Optionholders, the contest of any audit, dispute or administrative, judicial or other proceeding relating to such Taxes of the Company or any of its Subsidiaries, provided that Parent may, at its expense, participate in such contest. No such audit, dispute or administrative, judicial or other proceeding may be settled by the Stockholder Representative without Parent’s prior written consent if such settlement would have an adverse impact on Parent or any of its Affiliates, provided that such consent shall not be unreasonably withheld, delayed or conditioned.

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Section 9.7Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the Merger Consideration for Tax purposes, unless otherwise required by Law.

Section 9.8Effect of Investigation. The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party’s waiver of any condition set forth in Section 7.1 or Section 7.2, as the case may be.

Section 9.9Exclusive Remedies. Subject to Section 10.11 the Parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud, criminal activity or willful misconduct on the part of a Party hereto in connection with the Transactions) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article IX. In furtherance of the foregoing, each Party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other Parties and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article IX. Nothing in this Section 9.9 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled or to seek any remedy on account of any Party’s fraudulent, criminal or intentional misconduct.

ARTICLE X

GENERAL PROVISIONS

Section 10.1Notices. All notices and other communications in connection with this Agreement will be in writing and will be deemed given to a Party when delivered personally, mailed by registered or certified mail (return receipt requested) or delivered by an express courier at the following addresses (or at such other address for a Party as will be specified by like notice):

(a)if to the Company, to:

MegaPath Holding Corporation

6800 Koll Center Parkway, Suite 200

Pleasanton, California 94566

Attention: Birch Blair

with a copy to (which will not constitute notice):

Morgan, Lewis & Bockius LLP

600 Anton Drive, Suite 1800

Costa Mesa, CA 92626

Attention: Tim Rupp, Esq.

Email: timothy.rupp@morganlewis.com

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(b)if to Parent, Merger Sub or the Surviving Corporation, to:

Fusion Connect, Inc.

420 Lexington Avenue, Suite 1718

New York, New York 10170

Attention: James P. Prenetta, Jr., Executive Vice President and General Counsel

Email: jprenetta@fusionconnect.com

with a copy to (which will not constitute notice):

Kelley Drye & Warren, LLP

101 Park Avenue

New York, New York 10171

Attention: Jack Miles, Esq.

Email: jmiles@kelleydrye.com

(c)if to the Stockholders Representative, to:

Shareholder Representative Services LLC

950 17th Street, Suite 1400

Denver, CO 80202

Attention: Deals@srsacquiom.com

Facsimile: (303) 623-0294

Telephone: (303) 648-4085

with a copy to (which will not constitute notice):

Morgan, Lewis & Bockius LLP

600 Anton Drive, Suite 1800

Costa Mesa, CA 92626

Attention: Tim Rupp

Section 10.2Interpretation.

(a)When a reference is made in this Agreement to Articles, Sections, Exhibits, Schedules or Disclosure Letters, such reference will be to an Article or Section of or Exhibit, Schedule or Disclosure Letter to this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Unless the context otherwise requires, (i) “or” is disjunctive but not necessarily exclusive, (ii) words in the singular include the plural and vice versa, and (iii) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter, as the context may require. The Company Disclosure Letter as well as all other schedules and all exhibits hereto, will be deemed part of this Agreement and included in any reference to this Agreement. The representations and warranties of the Company are made and given, and the covenants are agreed to, subject to the disclosures and exceptions set forth in the Company Disclosure Letter. In no event will the listing of any matter in the Company Disclosure Letter be deemed or interpreted to expand the scope the Company’s representations, warranties and/or covenants set forth in this Agreement. All attachments to the Company Disclosure Letter are incorporated by reference into the Company Disclosure Letter. Notwithstanding anything in this Agreement to the contrary, the mere inclusion of an item therein as an exception to a representation or warranty will not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item has had or would, individually or in the aggregate, have a Company Material Adverse Effect.

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(b)The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

Section 10.3Counterparts. This Agreement may be executed in two or more counterparts, all of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the Parties and delivered to the other Party, it being understood that each Party need not sign the same counterpart.

Section 10.4Entire Agreement; Third Party Beneficiaries. This Agreement (including the documents and the instruments referred to in this Agreement), together with the Confidentiality Agreement, (a) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter of this Agreement, (b) is not intended to confer on any Person, other than the Parties hereto and their respective successors and permitted assigns, any rights or remedies hereunder; provided that the Debt Financing Sources and the Debt Financing Source Related Parties shall be third-party beneficiaries of, and shall be entitled to rely on, the third sentence of Section 10.5, Sections 10.7, 10.8(b), 10.8(c) and 10.17 and this Section 10.4.

Section 10.5Amendment. Subject to compliance with applicable Law, this Agreement may be amended prior to the Effective Time by the Company and Parent (on behalf of itself and Merger Sub) and after the Effective Time by the Stockholder Representative and Parent, by action taken or authorized by the Stockholder Representative and by Parent, provided that, after any approval of the Transactions by the stockholders of the Company, there may not be, without further approval of such stockholders, any amendment of this Agreement that changes the amount or the form of the consideration to be delivered under this Agreement to the holders of Shares, other than (i) to correct manifest errors, (ii) in connection with settlements entered into between Parent and the Stockholder Representative or (iii) as otherwise contemplated by this Agreement. This Agreement may not be amended except by an instrument in writing. Notwithstanding anything to the contrary contained in this Agreement, the proviso to Section 10.4, Sections 10.7, 10.8(b), 10.8(c) and 10.17 and this sentence (and any provision of this Agreement to the extent that any amendment, waiver or other modification of such provision would modify the substance of any such Sections) may not be amended, waived or otherwise modified in any manner that is adverse in any material respect to any Debt Financing Source or any of its Debt Financing Source Related Parties without the prior written consent of such Debt Financing Source.

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Section 10.6Extension; Waiver. At any time prior to the Effective Time, the Company and Parent (on behalf of itself and Merger Sub), by action taken or authorized by the Company Board and the board of directors of Parent, may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies in the representations and warranties contained in this Agreement, and (c) waive compliance with any of the agreements or conditions contained in this Agreement, except that, after any approval of the Transactions by the stockholders of the Company, there may not be, without further approval of such stockholders, any extension or waiver of this Agreement or any portion hereof that reduces the amount or changes the form of the consideration to be delivered to the holders of Shares under this Agreement, other than as contemplated by this Agreement. Any agreement on the part of a Party to any such extension or waiver will be valid only if set forth in a written instrument signed on behalf of such Party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

Section 10.7Governing Law. This Agreement will be governed by, and construed and enforced in accordance with, the internal Laws of the State of Delaware, without regard to any applicable conflict of laws principles (whether of the State of Delaware or any other jurisdiction); provided that any action, suit, claim, investigation, or proceeding of any kind whatsoever against the Debt Financing Sources or any of the Debt Financing Source Related Parties, including a counterclaim, cross-claim, or defense, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise under any legal or equitable theory, that may be based upon, arising out of or related to this Agreement or the negotiation, execution or performance of this Agreement or the Transactions, including any dispute relating to the Debt Financing, will be governed by and construed in accordance with the internal Laws of the State of New York applicable to agreements executed and performed entirely within such State without regard to conflicts of law principles of the State of New York or any other jurisdiction that would cause the Laws of any jurisdiction other than the State of New York to apply.

Section 10.8Jurisdiction.

(a)Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction and venue of the Chancery Court of the State of Delaware and, in the absence of such jurisdiction, the United States District Court for the District of Delaware, and, in the absence of such federal jurisdiction, the parties consent to be subject to the exclusive jurisdiction of any Delaware state court sitting in New Castle County (together, the “Chosen Courts”), in any action or proceeding arising out of or relating to this Agreement or the Transactions or for recognition or enforcement of any judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in the Chosen Courts, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Chosen Courts, and any appellate court hearing actions or proceedings therefrom, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in the Chosen Courts, and (iv) waives, to the fullest extent it may legally and effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding in the Chosen Courts. Each of the Parties agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

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(b)Notwithstanding anything to the contrary contained in this Agreement, each of the Parties and the Stockholder Representative, on behalf of itself and each of the Stockholders and Optionholders, irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction and venue of the United States federal court located in, or if that court does not have subject matter jurisdiction, in any New York state court located in, the Borough of Manhattan in the City of New York, New York (together, the “Debt Financing Chosen Courts”), in any action or proceeding against the Debt Financing Sources or any of the Debt Financing Source Related Parties arising out of or relating to this Agreement or the Transactions or for recognition or enforcement of any judgment relating thereto, including any dispute relating to the Debt Financing, and each of the Parties and the Stockholder Representative, on behalf of itself and each of the Stockholders and Optionholders, hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding against the Debt Financing Sources or any of the Debt Financing Source Related Parties, including any dispute relating to the Debt Financing, except in the Debt Financing Chosen Courts, (ii) agrees that any claim in respect of any such action or proceeding against the Debt Financing Sources or any of the Debt Financing Source Related Parties, including any dispute relating to the Debt Financing, may be heard and determined in the Debt Financing Chosen Courts, and any appellate court hearing actions or proceedings therefrom, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding against the Debt Financing Sources or any of the Debt Financing Source Related Parties, including any dispute relating to the Debt Financing, in the Debt Financing Chosen Courts and (iv) waives, to the fullest extent it may legally and effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding against the Debt Financing Sources or any of the Debt Financing Source Related Parties, including any dispute relating to the Debt Financing, in the Debt Financing Chosen Courts.

(c)EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY LITIGATION AGAINST ANY DEBT FINANCING SOURCE OR ANY DEBT FINANCING SOURCE RELATED PARTIES IN RESPECT OF THE DEBT FINANCING). EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.8(c).

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Section 10.9Fees and Expenses. Except as expressly provided in this Agreement, whether or not the Merger is consummated, all fees and expenses incurred in connection with this Agreement and the Transactions will be paid by the Party incurring or required to incur such fees or expenses

Section 10.10Assignment. Neither this Agreement nor any rights, interest or obligations hereunder will be assigned by any of the Parties (whether by operation of law or otherwise) without the prior written consent of the other Parties and any attempt to do so will be null and void; except that each of Parent and Merger Sub may assign (a) its rights, but not its obligations, hereunder to any person providing financing pursuant to the terms thereof to the extent necessary for purposes of creating a security interest herein or otherwise assigning as collateral in respect of such financing and (b) its rights and obligations to any Affiliate of Parent, but no such assignment will release any assigning Party from its obligations hereunder. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective permitted successors and assigns.

Section 10.11Specific Performance. The Parties agree that immediate, extensive and irreparable damage, for which monetary damages would not be an adequate remedy, would occur in the event that the Parties do not perform their obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. Accordingly, the Parties acknowledge and agree that the Parties will be entitled, in addition to any other remedy to which they are entitled at law or in equity to seek an Injunction or Injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including the obligation of the Parties hereto to consummate the Merger) in the Chosen Courts without proof of damages or otherwise, and that such explicit rights of specific enforcement are an integral part of the Transactions and, without such rights, neither the Company nor Parent would have entered into this Agreement. Each of the Parties agrees that it will not oppose the granting of an Injunction, specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or in equity. The Parties hereto acknowledge and agree that any Party seeking an Injunction or Injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement will not be required to provide any bond or other security in connection with any such Order or Injunction.

Section 10.12Waivers. Any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party or Parties entitled to the benefits thereof, 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 will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

Section 10.13Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable, such term, provision, covenant or restriction will be deemed to be modified to the extent necessary to render it valid, effective and enforceable, and the remainder of the terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect and will in no way be affected, impaired or invalidated.

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Section 10.14Stockholder Representative.

(a)By approving this Agreement and the transactions contemplated hereby, by executing and delivering a Letter of Transmittal, or by the acceptance of consideration paid pursuant to this Agreement, each Stockholder and Optionholder has irrevocably authorized and appointed the Stockholder Representative as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement, the Escrow Agreement and any other agreements ancillary hereto and to take any and all actions and make any decisions required or permitted to be taken by the Stockholder Representative pursuant to this Agreement, the Escrow Agreement or any other agreements ancillary hereto, including the exercise of the power to:

(i)give and receive notices and communications;

(ii)authorize delivery to Parent of cash from the Escrow Fund in satisfaction of claims for indemnification made by Parent pursuant to Article IX;

(iii)agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.7;

(iv)agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Parent pursuant to pursuant to Article IX;

(v)litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to pursuant to Article IX;

(vi)execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any ancillary document (including the Escrow Agreement and the Payments Agreement);

(vii)make all elections or decisions contemplated by this Agreement and any ancillary document (including the Escrow Agreement and the Payments Agreement);

(viii)engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Stockholder Representative in complying with its duties and obligations; and

(ix)take all actions necessary or appropriate in the good faith judgment of the Stockholder Representative for the accomplishment of the foregoing.

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Parent shall be entitled to deal exclusively with the Stockholder Representative on all matters relating to this Agreement (including Article IX) (except with respect to Parent’s collection of funds from the Stockholders and Optionholders directly) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Stockholder or Optionholder by the Stockholder Representative, and on any other action taken or purported to be taken on behalf of any Stockholder or Optionholder by the Stockholder Representative, as being fully binding upon such Person. After the Closing, notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Stockholders and Optionholders. Any decision or action by the Stockholder Representative hereunder, including any agreement between the Stockholder Representative and Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Stockholders and Optionholders and shall be final, binding and conclusive upon each such Person. No Stockholder or Optionholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Stockholders or Optionholders, or by operation of Law, whether by death or other event.

(b)The Stockholder Representative may resign at any time upon twenty (20) days prior written notice to Parent. The Stockholder Representative may be removed for any reason or no reason by the vote or written consent of the Stockholders who held a majority of the shares of the Company Capital Stock immediately prior to the Effective Time (the “Majority Holders”); provided, however, in no event shall the Stockholder Representative be removed without the Majority Holders having first appointed a new Stockholder Representative who shall assume such duties immediately upon the removal of the Stockholder Representative. If the Stockholder Representative resigns, the Majority Holders shall appoint a successor within twenty (20) days of such notice of resignation. In the event of the death, incapacity, resignation or removal of the Stockholder Representative, a new Stockholder Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided, that until such notice is received, Parent, Merger Sub and the Surviving Corporation shall be entitled to rely on the decisions and actions of the prior Stockholder Representative as described in Section 10.14(a) above

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(c)The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with its services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Stockholder Representative’s gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders and Optionholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Stockholders and Optionholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Stockholders and Optionholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Holdback Account and (ii) the amounts in the Escrow Fund at such time as any such remaining amounts would otherwise be distributable to the Stockholders and Optionholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Stockholders and Optionholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders and Optionholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnity obligations of the Stockholders or Optionholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative in this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement.

Section 10.15Tax Matters.

(a)For the avoidance of doubt, all legally permitted Tax deductions related to the payment of Transaction Expenses or Indebtedness on the Closing Date shall be attributable to the Pre-Closing Tax Period.

(b)The Stockholders and the Optionholders shall be entitled to receive any refund of Taxes (including refunds paid by credit against Taxes of Parent, the Company or any Company Subsidiary) attributable to any Pre-Closing Tax Period and any overpayment of estimated Pre-Closing Taxes by the Company or any Company Subsidiary, plus any interest on any such refund or credits received from the applicable Tax authority. Parent shall, and shall cause the Company and the Company Subsidiaries to, cooperate with the Stockholder Representative in obtaining any such refunds or credits. Such cooperation shall include (i) informing the Stockholder Representative if and the extent that Parent becomes aware of the availability of any such refund or credit, (ii) filing claims or amended Tax returns at the request of the Stockholder Representative to obtain any such refund or credit and (iii) paying the amount of such credit or refund over to the Stockholder Representative, or upon a written instruction of the Stockholder Representative, to the Payments Administrator (for further distribution to the Stockholders) or to the Surviving Corporation (for further distribution to the Optionholders), as applicable, by wire transfer within five (5) Business Days after the receipt thereof.

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(c)If Parent, any of its Affiliates or any Stockholder receives notice from any Governmental Entity of any proposed or actual audit, examination, adjustment, claim, assessment or demand concerning the amount of Taxes of the Company or any Company Subsidiary with respect to any Pre-Closing Tax Period, such Party shall inform the other Party thereof within ten (10) Business Days after receipt of such notice. No failure or delay in providing such notice shall reduce or otherwise affect the obligations or liabilities of any Party, except to the extent such failure or delay adversely affects the recipient Party’s ability to defend against any liability or claim with respect to such Taxes. Any notice shall be accompanied by a copy of any written notice or other document received from the applicable Governmental Entity with respect to such matter.

(d)The Stockholder Representative shall have the sole right to control, at the expense of the Stockholders and Optionholders, the contest of any audit, dispute or administrative, judicial or other proceeding relating to the Taxes of the Company or any Company Subsidiary for any Pre-Closing Tax Period. If the Stockholder Representative elects to control any such contest, Parent may, at its expense, participate in such contest. No such audit, dispute or administrative, judicial or other proceeding may be settled by the Stockholder Representative without Parent’s prior written consent if such settlement would have an adverse impact on Parent or any of its Affiliates; provided, however, that no such consent shall be unreasonably withheld, conditioned or delayed.

(e)Parent shall furnish or cause to be furnished to the Stockholder Representative, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the Company and the Company Subsidiaries as is reasonably requested in connection with the filing of any Tax returns or for the prosecution or defense of any Tax audit or claim. Parent shall, and shall cause the Company and the Company Subsidiaries to, preserve and keep all books and records with respect to Taxes and Tax returns of the Company and the Company Subsidiaries until the expiration of the applicable statute of limitations. Any information obtained under this Section 10.15(e) shall be kept confidential except (i) as required by applicable Law, (ii) as may be otherwise necessary in connection with the filing of Tax Returns or for the prosecution or defense of any Tax audit or claim or (iii) with the consent of Parent; provided that the Stockholder Representative may communicate such information to its advisors and representatives and to the Stockholders and Optionholders, in each case on a need-to-know basis.

Section 10.16Definitions. For the purposes of this Agreement:

“Accounting Fees” has the meaning set forth in Section 2.7(b).

“Accounting Firm” has the meaning set forth in Section 2.7(b).

“Accredited Investor” has the meaning set forth for such term in Rule 501 of Regulation D promulgated under the Securities Act.

“Acquisition Proposal” has the meaning set forth in Section 6.3.

“Action” has the meaning set forth in Section 3.7(a).

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“Additional Indebtedness” has the meaning set forth in Section 2.7(a).

“Additional Per Share Merger Consideration” means the quotient of (a) the Additional Merger Consideration, divided by (b) the Fully Diluted Share Number.

“Additional Merger Consideration” means the aggregate of all payments to the Stockholders and Optionholders pursuant to Section 2.7.

“Additional Transaction Expenses” has the meaning set forth in Section 2.7(a).

“Affidavit of Loss” has the meaning set forth in Section 2.1(f).

“Affiliate” means a Person that directly or indirectly, through one or more intermediaries, control, is controlled by, or is under common control with, the first-mentioned Person. For this purpose, “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of stock, by Contract or otherwise.

“Agreement” has the meaning set forth in the Preamble.

“Basket” has the meaning set forth in Section 9.4(a).

“Book-Entry Shares” has the meaning set forth in Section 1.5(a).

“Business Day” means a day other than a Saturday, a Sunday or another day on which commercial banking institutions in New York, New York are authorized or required by Law to be closed.

“CALEA” has the meaning set forth in Section 3.16(c).

“Certificate of Merger” has the meaning set forth in Section 1.3.

“Certificates” has the meaning set forth in Section 1.5(a).

“Chosen Courts” has the meaning set forth in Section 10.8(a).

“Closing” has the meaning set forth in Section 1.2.

“Closing Cash” means the cash and cash equivalents of the Company and the Company Subsidiaries, determined in accordance with GAAP, as of 11:59 p.m. on the Closing Date (without giving effect to the Transactions).

“Closing Cash Estimate” has the meaning set forth in Section 2.5.

“Closing Cash Overage” shall exist when (and shall be equal to the amount by which) the Closing Cash exceeds the Closing Cash Estimate.

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“Closing Cash Underage” shall exist when (and shall be equal to the amount by which) the Closing Cash Estimate exceeds the Closing Cash.

“Closing Date” has the meaning set forth in Section 1.2.

“Closing Indebtedness” means the Indebtedness of the Company and the Company subsidiaries as of 11:59 p.m. on the Closing Date (without giving effect to the Transactions).

“Closing Working Capital” means the Working Capital as of 11:59 p.m. on the Closing Date (without giving effect to the Transactions).

“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and as codified in Section 4980B of the Code and Section 601 et. seq. of ERISA.

“Code” means the Internal Revenue Code of 1986, as amended.

“Communications Act” has the meaning set forth in Section 3.16(c).

“Company” has the meaning set forth in the Preamble.

“Company Benefit Plans” has the meaning set forth in Section 3.9(a).

“Company Board” means the Board of Directors of the Company.

“Company Bylaws” has the meaning set forth in Section 3.1(b).

“Company Capital Stock” has the meaning set forth in Section 3.2(a).

“Company Charter” has the meaning set forth in Section 3.1(b).

“Company Common Stock” has the meaning set forth in Section 3.2(a).

“Company Commonly Controlled Entity” has the meaning set forth in Section 3.9(d).

“Company Disclosure Letter” has the meaning set forth in the preamble to Article III.

“Company Employees” has the meaning set forth in Section 6.4(a).

“Company Financial Statements” has the meaning set forth in Section 3.5(a).

“Company Intellectual Property” has the meaning set forth in Section 3.13(a).

“Company Interconnection Agreements” has the meaning set forth in Section 3.17.

“Company Leased Network Facilities” means Network Facilities that are leased by the Company or any Company Subsidiary.

“Company Leased Real Property” has the meaning set forth in Section 3.15.

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“Company Licenses” has the meaning set forth in Section 3.16(a).

“Company Material Adverse Effect” means any change, event, effect, occurrence, state of facts or development that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the business, results of operations, assets, liabilities or condition (financial or otherwise) of the Company and the Company Subsidiaries, taken as a whole, provided, however, that in no event would any of the following, alone or in combination, be deemed to constitute, nor shall any of the following (including the effect of any of the following) be taken into account in determining whether there has been or will be, a “Company Material Adverse Effect”: (a) changes, events, effects, occurrences, states of facts or developments generally affecting the United States economy; (b) changes in GAAP or Law or the interpretation thereof; (c) changes, events, effects, occurrences, states of facts or developments generally affecting the industries in which the Company and the Subsidiaries operate in the geographies in which they operate; (d) changes, events, effects, occurrences, states of facts or developments arising from the announcement of this Agreement; (e) changes, events, effects, occurrences, states of facts or developments resulting from any action or omission of the Company or any of the Company Subsidiaries prior to the Closing Date contemplated by this Agreement or taken with the prior written consent of Parent; and (f) any failure to meet internal or published projections, forecasts or revenue or earnings predictions for any period, except that the underlying causes of such change or failure will not be excluded by this clause (f), except, in the case of clauses (a), (b), and (c) to the extent disproportionately affecting the Company and the Company Subsidiaries when compared to other Persons operating in the same industries.

“Company Network Facility Agreement” has the meaning set forth in Section 3.18(c).

“Company Material Contract” has the meaning set forth in Section 3.12(a).

“Company Owned Intellectual Property” has the meaning set forth in Section 3.13(b).

“Company Owned Network Facilities” means Network Facilities that are owned by the Company or any Company Subsidiary.

“Company Owned Real Property” has the meaning set forth in Section 3.15.

“Company Preferred Stock” has the meaning set forth in Section 3.2(a).

“Company Proprietary Software” means all Software owned or purported to be owned by the Company or a Company Subsidiary.

“Company Registered Intellectual Property” means Company Intellectual Property owned or purported to be owned by the Company or any Company Subsidiary that is registered or for which an application for registration has been submitted by the Company or any Company Subsidiary.

“Company Stock Option Plan” means the MegaPath Holding Corporation 2015 Equity Incentive Plan, as amended.

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“Company Subsidiary” has the meaning set forth in Section 3.1(c).

“Confidentiality Agreement” has the meaning set forth in Section 6.3(b).

“Contracts” means any contracts, agreements, licenses (or sublicenses), notes, bonds, mortgages, indentures, commitments, leases (or subleases) or other instruments or obligations, whether written or oral.

“Covered Persons” has the meaning set forth in Section 6.11(a).

“CPNI” has the meaning set forth in Section 3.16(c).

“Cramming” has the meaning set forth in Section 3.16(d).

“Current Assets” means, as of any date of determination hereunder, the current assets of the Company and the Company Subsidiaries, determined in accordance with GAAP, excluding cash, cash equivalents and Tax receivables (other than sales tax receivables).

“Current Liabilities” means, as of any date of determination hereunder, the current liabilities of the Company and the Company Subsidiaries determined in accordance with GAAP excluding (i) Tax liabilities arising from periods prior to January 1, 2018 and reserves associated therewith, (ii) customer credit balances, (iii) Indebtedness and Transaction Expenses, and (iv) a percentage of deferred revenue equal to the lower of (x) 70% of the deferred revenue, and (y) 100% of the deferred revenue minus the average recurring margin percentage derived from the Company’s Financial Statements for the six most recent calendar months ended prior to the date of this Agreement.

“D&O Tail Policy” has the meaning set forth in Section 6.11(c).

“Debt Engagement Letter” means the Engagement Letter, dated February 13, 2018, among Parent, Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc. and The Bank of Tokyo-Mitsubishi UFJ, Ltd.

“Debt Financing” means any debt financing by Parent or any of its Subsidiaries entered into or incurred, or to be entered into or incurred, in connection with the Transactions contemplated by this Agreement, including the debt financing contemplated by the Definitive Debt Financing Agreements.

“Debt Financing Chosen Courts” has the meaning set forth in Section 10.8(b).

“Debt Financing Sources” means the parties to the Debt Engagement Letter, the parties to the Definitive Debt Financing Agreements and each other Person that has committed to provide or otherwise entered into any commitment letter, engagement letter, credit agreement, underwriting agreement, purchase agreement, indenture or other agreement with Parent or any of its Subsidiaries in connection with, or that is otherwise acting as an arranger, bookrunner, underwriter, initial purchaser, placement agent, administrative agent, trustee or a similar representative in respect of, all or any part of the Debt Financing.

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“Debt Financing Source Related Parties” means the Debt Financing Sources' respective Affiliates and any of the Debt Financing Sources’ or their respective Affiliates’ respective former, current or future general or limited partners, shareholders, managers, members, agents, officers, directors, employees, accountants, advisors, or representatives or any of their respective successors or assigns.

“Deficiency Amount” has the meaning set forth in Section 2.7(d).

“Definitive Debt Financing Agreements” means the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018, among Parent, certain of Parent’s subsidiaries, Wilmington Trust, National Association, as administrative agent and collateral agent, and the lenders from time to time party thereto, and any other definitive agreements with respect to any Debt Financing.

“DGCL” has the meaning set forth in Section 1.1.

“Direct Claim” has the meaning set forth in Section 9.5(c).

“Dissenting Shares” has the meaning set forth in Section 2.4.

“Dissenting Stockholder” has the meaning set forth in Section 2.4.

“Effective Time” has the meaning set forth in Section 1.3.

“Environment” means soil, soil vapor, surface water, groundwater, land, sediment, surface or subsurface structures or strata or ambient air.

“Environmental Law” means any Law regulating or relating to the protection of human health, safety (as it relates to Releases of Hazardous Substances), natural resources or the Environment, including, without limitation, laws relating to wetlands, pollution, contamination or the use, generation, management, handling, transport, treatment, disposal, storage, Release or threatened Release of Hazardous Substances.

“Equity Interest” means any share, capital stock, partnership, limited liability company, membership or similar interest in any Person.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Escrow Agent” means Citibank, N.A.

“Escrow Agreement” means the escrow agreement to be entered into by Parent, the Stockholder Representative and the Escrow Agent at the Closing, substantially in the form of Exhibit E.

“Escrow Amount” means $2.5 million in cash.

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“Escrow Fund” has the meaning set forth in Section 2.1(b).

“Estimated Working Capital Overage” shall exist when (and shall be equal to the amount by which) the Working Capital Estimate exceeds the Target Working Capital Amount.

“Estimated Working Capital Underage” shall exist when (and, subject to the limitations set forth in Section 2.7(e), shall be equal to the amount by which) the Target Working Capital Amount exceeds the Working Capital Estimate.

“Excess Amount” has the meaning set forth in Section 2.7(c).

“Exercise Price” means, with respect to any Option, the applicable exercise price payable to the Company by the Optionholder upon the exercise of such Option.

“FCC” means the Federal Communications Commission.

“FCC Approval” has the meaning set forth in Section 3.4.

“FCC Rules” has the meaning set forth in Section 3.16(c).

“Final Closing Cash Overage” means the Closing Cash Overage as finally agreed or determined in accordance with Section 2.7(b).

“Final Closing Cash Underage” means the Closing Cash Underage as finally agreed or determined in accordance with Section 2.7(b).

“Final Working Capital Overage” means the Working Capital Overage as finally agreed or determined in accordance with Section 2.7(b).

“Final Working Capital Underage” means the Working Capital Underage as finally agreed or determined in accordance with Section 2.7(b).

“FIRPTA Certificate” has the meaning set forth in Section 7.2(d).

“Fully Diluted Share Number” means (i) the aggregate number of Shares of Company Common Stock issuable upon exercise of all Options that are outstanding as of immediately prior to the Effective Time, plus (ii) the aggregate number of shares of Company Capital Stock outstanding as of immediately prior to the Effective Time.

“Fundamental Representations” has the meaning set forth in Section 7.2(a).

“GAAP” means U.S. generally accepted accounting principles.

“Governmental Entity” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court or tribunal, arbitration or mediation body or appointing authority, or self-regulatory organization.

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“Hazardous Substances” means any substance that: (i) is or contains asbestos, urea formaldehyde insulation, polychlorinated biphenyls, petroleum, petroleum products or petroleum-derived substances or wastes, radon gas, microbial or microbiological contamination or related materials, (ii) requires investigation or remedial action pursuant to any Environmental Law or (iii) is defined, listed or identified as a “hazardous waste,” “hazardous substance,” “toxic substance” or words of similar import thereunder or (iv) is regulated under any Environmental Law.

“Holdback Account” has the meaning set forth in Section 2.6(c).

“Holdback Amount” means $850,000.

“Indebtedness” means, with respect to any Person at any date, without duplication: (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures or notes (other than any surety bonds or similar instruments issued in the ordinary course of business), (c) all obligations in respect of letters of credit, to the extent drawn, and bankers’ acceptances issued for the account of such Person, (d) any indebtedness guaranteed in any manner by such Person (including guaranties in the form of an agreement to repurchase or reimburse), (e) obligations of such Person under or pursuant to any capital leases, (f) any liability with respect to interest rate swaps, collars, caps and similar hedging arrangements, (g) obligations for the deferred purchase price of property or services (other than trade accounts payable and accrued liabilities), and (h) any accrued and unpaid interest related to any of the foregoing and prepayment premiums or penalties related to any of the foregoing that are due or become due as a result of the consummation of the Merger or the prepayment of such Indebtedness; provided that in no event will Indebtedness of any Party include Indebtedness of such Party owing to any of its Subsidiaries or Indebtedness of any of its Subsidiaries owing to it or any of its other Subsidiaries.

“Indebtedness Payoff Amount” means the aggregate amount of Indebtedness of the Company and Company Subsidiaries as of the Effective Time as evidenced by the Payoff Letters.

“Individual Option Percentage” means, for any Optionholder, the quotient (expressed as a percentage) obtained by dividing (a) the aggregate number of shares of Company Common Stock issuable upon exercise of all Options held by such holder that are outstanding as of immediately prior to the Effective Time, by (b) the aggregate number of shares of Company Common Stock issuable upon exercise of all Options that are outstanding as of immediately prior to the Effective Time.

“Indemnified Party” has the meaning set forth in Section 9.5.

“Indemnifying Party” has the meaning set forth in Section 9.5.

“Individual Share Percentage” means for any Stockholder, the quotient (expressed as a percentage) obtained by dividing (a) the aggregate number of shares of Company Capital Stock held by such holder that are outstanding immediately prior to the Effective Time, by (b) the aggregate number of shares of Company Capital Stock that are outstanding immediately prior to the Effective Time.

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“Initial Merger Consideration” means (a) $71.5 million (of which up to $10.0 million may be paid by Parent in shares of Parent Common Stock in accordance with Section 1.5(a)), plus (b) any Estimated Working Capital Overage, plus (c) the amount of the Closing Cash Estimate, plus (d) the aggregate amount of the Exercise Prices all Options that are outstanding as of immediately prior to the Effective Time, minus (e) the amount of Closing Indebtedness, as determined prior to the Closing, minus (f) the Transaction Expenses Payoff Amount, as determined prior to the Closing, minus (g) the Escrow Amount, minus (h) the Holdback Amount, and minus (i) any Estimated Working Capital Underage.

“Initial Per Share Merger Consideration” means the quotient of (a) the Initial Merger Consideration, divided by (b) the Fully Diluted Share Number.

“Injunction” has the meaning set forth in Section 3.3(b).

“Integration Plan” has the meaning set forth in Section 6.13.

“Intellectual Property” means all of the following anywhere in the world and all legal rights, title or interest in, under or in respect of the following arising under Law, whether or not filed, perfected, registered or recorded and whether now or later existing, filed, issued or acquired, including all renewals: (a) all patents and applications for patents (including all invention disclosures) and all related reissues, reexaminations, divisions, renewals, extensions, provisionals, continuations and continuations in part, (b) all copyrights, copyright registrations and copyright applications, copyrightable works and all other corresponding rights, (c) all trade dress and trade names, logos, Internet addresses and domain names, trademarks and service marks and related registrations and applications, including any intent to use applications, supplemental registrations and any renewals or extensions, all other indicia of commercial source or origin and all goodwill associated with any of the foregoing, (d) all computer software (including source and object code), firmware, development tools, proprietary languages, algorithms, files, records, technical drawings and related documentation, data and manuals, (e) all inventions (whether patentable or unpatentable and whether or not reduced to practice), know how, technology, technical data, (f) trade secrets, confidential business information, financial, marketing and business data, pricing and cost information, business and marketing plans, advertising and promotional materials, customer, distributor, reseller and supplier lists and information, correspondence, records, and other documentation, and other proprietary information of every kind (collectively, if and to the extent proprietary, held as confidential and protectable as a “trade secret” under applicable Law, “Trade Secrets”), (g) all databases and data collections, (h) all other proprietary rights (including moral rights) and (i) all copies and tangible embodiments of any of the foregoing (in whatever form or medium).

“IRS” means the Internal Revenue Service or any successor agency.

“knowledge of the Company” means the actual knowledge of D. Craig Young, Dan Foster, Paul Milley, Mike Perusse and Birch Blair after reasonable inquiry of employees that ordinarily report directly to them.

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“knowledge of Parent” means the actual knowledge of Gordon Hutchins, Jr., Michael R. Bauer and James P. Prenetta, Jr., after reasonable inquiry of employees that ordinarily report directly to them.

“Law” means any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, order, writ, edict, decree, rule, regulation, judgment, ruling, policy, guideline or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.

“Letter of Transmittal” has the meaning set forth in Section 2.1(a)(i).

“Liens” means any lien, mortgage, pledge, conditional or installment sale agreement, encumbrance, covenant, restriction, option, right of first refusal, easement, security interest, deed of trust, right-of-way, encroachment, community property interest or other claim or restriction of any nature, whether voluntarily incurred or arising by operation of Law.

“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 damages calculated on multiples of earnings or cash flow, lost profits, indirect damages, consequential damages, incidental damages, exemplary damages or punitive damages, except to the extent actually recovered from and Indemnified Party pursuant to a Third Party Claim.

“Majority Holders” has the meaning set forth in Section 10.14(b).

“Material Customer” has the meaning set forth in Section 3.22(a).

“Material Supplier” has the meaning set forth in Section 3.22(b).

“Merger” has the meaning set forth in the Recitals.

“Merger Consideration” means the aggregate consideration that the holders of Shares are entitled to receive pursuant to the Merger and the terms of this Agreement.

“Merger Sub” has the meaning set forth in the Preamble.

“Merger Sub Bylaws” means the bylaws of Merger Sub.

“Merger Sub Charter” means the articles of incorporation of Merger Sub.

“Network Facilities” means all material network facilities (including cables, wires, conduits, switches, and other equipment and facilities) and related material operating support systems, network operations centers, and land and buildings associated therewith.

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“NOR” has the meaning set forth in Section 3.16(g).

“Notice of Disagreement” has the meaning set forth in Section 2.7(b).

“Option” means any option to purchase shares of Company Common Stock issued pursuant to the Company Stock Option Plan and still outstanding immediately prior to the Effective Time.

“Option Percentage” means the quotient (expressed as a percentage) obtained by dividing (a) the aggregate number of shares of Company Common Stock issuable upon exercise of all Options that are outstanding as of immediately prior to the Effective Time by (b) the Fully Diluted Share Number.

“Optionholder” means a holder of an Option.

“Order” means any judgment, order, decision, writ, Injunction, decree, stipulation, award, ruling, or other finding or agency requirement of a Governmental Entity, or arbitration award.

“Outside Date” means June 30, 2018, or if extended to a later date pursuant to and in accordance with Section 8.1(b)(ii), any such later date.

“Parent” has the meaning set forth in the Preamble.

“Parent Adjustment Amount” means the sum of (i) the Final Working Capital Underage, if any, plus (ii) the Final Closing Cash Underage, if any, plus (iii) the Additional Transaction Expenses, if any, plus (iv) the Additional Indebtedness, if any.

“Parent Bylaws” means the bylaws of Parent, as amended and restated.

“Parent Charter” means the certificate of incorporation of Parent, as amended and restated.

“Parent Common Stock” means shares of common stock, $0.01 par value per share, of Parent.

“Parent Material Adverse Effect” means any change, event, development, conditions, occurrence or effect that (a) has a material adverse effect on the ability of either Parent or Merger Sub to consummate the Transactions or perform their respective obligations under this Agreement or (b) would prevent or materially delay the consummation of the Transactions by Parent.

“Parent Subsidiary” has the meaning set forth in Section 3.1(c).

“Party” has the meaning set forth in the Preamble.

“Payments Administrator” means Acquiom Financial LLC, a Colorado limited liability company.

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“Payments Agreement” means that certain Acquiom Payments Administration Agreement to be entered into at or prior to Closing by and between the Stockholder Representative and the Payments Administrator.

“Payoff Letter” has the meaning set forth in Section 7.2(f).

“Pension Plans” has the meaning set forth in Section 3.9(a).

“Permits” means all licenses, franchises, permits, variances, Orders, approvals, certificates, authorizations, registrations and rights of or with all Governmental Entities.

“Permitted Lien” means (a) Liens in respect of any liabilities and obligations reflected in the Company Financial Statements, (b) with respect to the owned real property and leased real property of the Company and the Company Subsidiaries, (i) defects, exceptions, restrictions, rights of way, easements, covenants, encroachments and other imperfections of title, none of which materially impair or interfere with the present users of such property, and (ii) zoning, entitlement, land use, environmental regulations, and building restrictions, none of which materially impair or interfere with the present uses of such property, (c) Liens for current Taxes not yet delinquent or being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP on the Company Financial Statements, (d) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens that arise or are incurred in the ordinary course of business for amounts not yet due and payable, and (e) Liens to be released on or prior to the Closing Date.

“Person” means any individual (in any capacity) or legal entity, including a Governmental Entity.

“Personal Data” means any data or information from, about, or related to an identified or identifiable individual that (i) alone or in combination with other data information could be used, directly or indirectly, to identify an individual or otherwise facilitate decisions regarding individuals, (ii) constitutes personal data or personal information under any applicable Law or any applicable privacy policy, including, individual’s combined first and last name, home address, telephone number, fax number, email address, Social Security number or other Government Entity-issued identifier (including state identification number, driver’s license number, or passport number), geolocation information of an individual or device, biometric data, medical or health information, credit card or other financial information (including bank account information), cookie identifiers associated with registration information, or any other browser- or device-specific number or identifier not controllable by the end user, and web or mobile browsing or usage information that is linked to the foregoing.

“Pre-Closing Tax Period” means any taxable period (or portion thereof) ending prior to or on (and including) the Closing Date.

“Pre-Closing Taxes” means all Taxes imposed on the Company and the Company Subsidiaries for the Pre-Closing Tax Period other than the Uncollected Sales Taxes.

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“PSC Rules” has the meaning set forth in Section 3.16(c).

“Regulatory Approvals” has the meaning set forth in Section 7.1(a).

“Release” means any releasing, disposing, discharging, injecting, spilling, leaking, leaching, pumping, dumping, emitting, emptying, seeping, dispersal, migration, transporting, placing and the like, including, without limitation, the moving of any materials through, into or upon, any land, soil, surface water, groundwater or air, or otherwise entering into the indoor or outdoor environment.

“Representative Losses” has the meaning set forth in Section 10.14(c).

“Representatives” means any officer, director, employee, investment banks, accountant, attorney or other advisor or representative of a Person.

“Right-of-Way Agreement” means a right-of-way agreement, license agreement or other agreement permitting or requiring a Person to lay, build, operate, maintain or place cable, wires, conduits or other equipment and facilities over land, underwater or underground.

“SEC” means the U.S. Securities and Exchange Commission.

“Securities Act” means the U.S. Securities Act of 1933, as amended.

“Share” has the meaning set forth in Section 1.5(a).

“Share Percentage” means the quotient (expressed as a percentage) obtained by dividing (a) the aggregate number of shares of Company Capital Stock that are outstanding as of immediately prior to the Effective Time, by (b) the Fully Diluted Share Number.

“Slamming” has the meaning set forth in Section 3.16(d).

“Software” means any computer software program, together with any error corrections, updates, modifications, or enhancements thereto, in both machine-readable form and human readable form, including all comments and any procedural code.

“State Approvals” has the meaning set forth in Section 3.4.

“Statement” has the meaning set forth in Section 2.7(a).

“State PSCs” has the meaning set forth in Section 3.16(a).

“State Telecommunications Laws” has the meaning set forth in Section 3.16(c).

“Stockholder” means a holder of a Share.

“Stockholder Adjustment Amount” means (i) the Final Working Capital Overage, if any, plus (ii) the Final Closing Cash Overage, if any.

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“Stockholder Payment Account” has the meaning set forth in Section 2.1(a)(iii).

“Stockholder Representative” has the meaning set forth in the Preamble.

“Subsidiary” has the meaning set forth in Section 3.1(c).

“Surviving Corporation” has the meaning set forth in Section 1.1.

“Target Working Capital Amount” means $0.00.

“Takeover Laws” means any state takeover Law or other state Law that purports to limit or restrict business combinations or the ability to acquire or vote Company Common Stock, including any “business combination,” “control share acquisition,” “fair price,” “moratorium” or other similar anti-takeover Law.

“Tax Benefit” has the meaning set forth in Section 9.4(c).

“Tax” or “Taxes” means any (a) federal, state, local and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property, estimated, capital, sales, transfer, use, value added, payroll, employment, unemployment, workers’ compensation, severance, withholding, duties, intangibles, franchise, backup withholding and other taxes of any kind, charges, levies or like assessments, including escheat, together with all penalties, and additions and interest thereto, whether disputed or not, and whether liability is imposed directly or by virtue of an obligation to indemnify or otherwise assume or succeed to the Taxes of another Person and (b) liability for the payment of any amounts of the type described in clause (a) of this sentence as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group for any taxable period.

“Tax Return” includes all returns, reports, claims for refund and forms (including elections, attachments, declarations, disclosures, schedules, estimates, information returns and TD Form 90 22.1, and its successor form FinCEN Form 114) relating to Taxes, including any amendment thereof and any document with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such return, report, document or declaration.

“Telecommunications Act” has the meaning set forth in Section 3.17.

“Third Party Claim” has the meaning set forth in Section 9.5(a).

“Trade Secrets” has the meaning set forth in the definition of Intellectual Property.

“Transaction Bonuses” means any bonuses, success fees, change of control or other similar payments paid or payable to any Person by the Company or any of its Subsidiaries solely as a result of the Transactions.

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“Transaction Expenses” means, (a) any legal, accounting, financial advisory or other third party advisory or consulting fees or expenses incurred by the Company or any Company Subsidiaries (i) in connection with the Transactions at or prior to the Closing or (ii) in connection with the audit of the Company Financial Statements for the fiscal year ended December 31, 2017, whether prior to or after the Closing, and in each case which remain unpaid as of the Closing, including any broker’s fees described in the engagement letters with the entities set forth in Section 3.25 of the Company Disclosure Letter, (b) the costs and expenses of the D&O Tail Policy, (c) any Transaction Bonuses, (d) the severance costs specified in Section 6.15.

“Transaction Expenses Payoff Amount” means the aggregate amount of Transaction Expenses that are unpaid as of the Effective Time as evidenced by final invoices or other applicable documentation.

“Transaction Litigation” has the meaning set forth in Section 6.6.

“Transactions” has the meaning set forth in Section 3.3(a).

“Treasury Regulations” means the regulations promulgated under the Code by the U.S. Department of the Treasury.

“Uncollected Sales Taxes” means sales Taxes for which the corresponding receivables in respect of such Taxes have not been collected from the customers of the Company and the Company Subsidiaries prior to the Closing Date.

“UNEs” has the meaning set forth in Section 3.17.

“USF Programs” has the meaning set forth in Section 3.16(c).

“Welfare Plans” has the meaning set forth in Section 3.9(a).

“Working Capital” means, at any date, all Current Assets minus all Current Liabilities as of such date. An illustrative example of the calculation of Working Capital as of December 31, 2017 is attached as Exhibit F.

“Working Capital Estimate” has the meaning set forth in Section 2.5.

“Working Capital Overage” shall exist when (and shall be equal to the amount by which) the Closing Working Capital exceeds the Working Capital Estimate.

“Working Capital Underage” shall exist when the Working Capital Estimate exceeds the Closing Working Capital.

“Written Consent” has the meaning set forth in Section 6.2.

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Section 10.17Liability of Financing Source Parties. Without limiting the rights of Parent under the Debt Financing Agreements, notwithstanding anything to the contrary contained in this Agreement, each Party hereto (in the case of the Stockholder Representative, on behalf of itself and each of the Stockholders and Optionholders) irrevocably agrees that none of the Debt Financing Sources or the Debt Financing Source Related Parties shall have any liability or obligation to the Parties, any Stockholder, any Optionholder or any Affiliate of any of the foregoing relating to this Agreement or the negotiation, execution or performance of this Agreement or the Transactions, including any dispute relating to the Debt Financing, whether sounding in contract or tort, or whether at law or in equity, or otherwise under any legal or equitable theory.

 [Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the Company, Parent and Merger Sub have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.

MEGAPATH HOLDING CORPORATION

By: /s/ D. Craig Young

Name: D. Craig Young

Title: CEO

FUSION MPHC ACQUISITION CORP..

By: /s/ James P. Prenetta, Jr.

Name: James P. Prenetta, Jr.

Title: Executive Vice President and General Counsel

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

By: /s/ James P. Prenetta, Jr.

Name: James P. Prenetta, Jr.

Title: Executive Vice President and General Counsel

For the purposes of Section 2.1, Section 2.7, Section 2.8, Article IX and Section 10.14 only:

SHAREHOLDER REPRESENTATIVE SERVICES LLC, solely in its capacity as the Stockholder Representative

By: /s/ Sam Riffe

Name: Sam Riffe

Title: Executive Director

[Signature page to Agreement and Plan of Merger]

EX-10.2

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into effective as of May 4, 2017, by and among Fusion Connect, Inc., a Delaware corporation (the “Company”), BCHI Holdings, LLC, a Georgia limited liability company (the “Initial Stockholder”), and each Person (as defined below) that becomes a party to this Agreement by delivering to the Company a duly executed joinder to this Agreement in the form attached hereto as Exhibit A or such other form approved by the Company having the same effect thereof pursuant to Section 6.1 (together with Initial Stockholder, each, a “Stockholder,” and, collectively, the “Stockholders”).

RECITALS

A. The Company is party to a Merger Agreement, dated as of August 26, 2017, by and among Birch Communications Holdings, Inc., Fusion BCHI Acquisition LLC and the Company (the “Merger Agreement”).

B. Pursuant to the terms of the Merger Agreement, the Initial Stockholder will acquire shares (the “Closing Shares”) of the Company’s common stock, $0.01 par value per share (the “Company Common Stock”).

C. In connection with the transactions contemplated by the Merger Agreement, the Company has agreed to provide the registration rights provided in this Agreement.

D. The Company and the Stockholders are entering into this Agreement to set forth the terms and conditions applicable to such registration rights.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Company and the Initial Stockholder agree as follows:

ARTICLE I

DEFINITIONS

Capitalized terms not otherwise defined herein have the meaning set forth in the Merger Agreement. As used in this Agreement, the following terms have the following meanings:

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities or otherwise.

“Agreement” has the meaning set forth in the preamble.

“Business Day” means any day other than a weekend or public holiday.

“Closing Shares” has the meaning set forth in the recitals.

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“Closing Shares Registration Statement” means the Company’s Registration Statement on Form S-1 or S-3 (or a successor form) that covers the resale, to be made on a delayed or continuous basis, of Closing Shares representing no greater than 25% of the total number of all Closing Shares that constitute Registrable Securities (and may include other Registrable Securities held by the other Stockholders, as set forth herein), under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

“Closing Shares Shelf Expiration” has the meaning set forth in Section 2.1.

“Company” has the meaning set forth in the preamble and shall include the Company’s successors.

“Company Common Stock” has the meaning set forth in the recitals.

“Controlling Person” has the meaning set forth in Section 5.1.

“Demand Registration” has the meaning set forth in Section 2.2.

“Demand Registration Request” has the meaning set forth in Section 2.2.

“Demand Registration Statement” means a Registration Statement filed by the Company with the SEC pursuant to Section 2.2 hereof, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as amended from time to time.

“Immediate Family” means, with respect to any individual, such individual’s spouse, parents, parents-in-law, descendants, brothers, sisters, brothers-in-law, sisters-in-law and children-in-law.

“Initiating Stockholder” has the meaning set forth in Section 2.2.

“Merger Agreement” has the meaning set forth in the recitals.

“NASDAQ” means The NASDAQ Stock Market, LLC.

“Partner Distribution”has the meaning set forth in Section 2.2.

“Permitted Interruption”has the meaning set forth in Section 2.6(c).

“Permitted Transferee” means, (a) with respect to any Stockholder that is an individual, (i) members of the Immediate Family of such Stockholder or (ii) any trust or partnership established solely for the benefit of the Immediate Family Member of such Stockholder, or (b) with respect to any Stockholder that is not an individual, an Affiliate (other than any “portfolio company” described below) of such Stockholder; provided, however, that in no event shall any “portfolio company” (as such term is customarily used among institutional investors) of any Stockholder or any entity controlled by any portfolio company of any Stockholder constitute a “Permitted Transferee” of such Stockholder.

“Person” means an individual, limited liability company, association, joint stock company, partnership, corporation, trust, estate or unincorporated organization.

“Piggyback Registration” has the meaning set forth in Section 2.3.

“Piggyback Stockholders” has the meaning set forth in Section 2.3.

“Registrable Securities” means all shares of Company Common Stock held by the Stockholders at any time, including the Closing Shares, and any shares of Company Common Stock issued or issuable to any Stockholder with respect thereto by way of stock dividend or distribution, stock split, or in connection with any combination of shares, recapitalization, merger, share exchange, conversion, consolidation or similar transaction (including pursuant to Article I of the Merger Agreement), whether now owned or acquired by Stockholders or acquired at a later time; provided, however, that any such shares of Company Common Stock shall cease to be Registrable Securities (i) when they have been sold pursuant to a Registration Statement, (ii) when they have been sold pursuant to Rule 144 of the Securities Act, (iii) with respect to any Stockholder, at such time as the entire amount of such Stockholder’s Registrable Securities may be sold in a single sale, in the opinion of counsel satisfactory to the Company and such holder, each in their reasonable judgment, without any limitation as to volume pursuant to Rule 144 of the Securities Act, (iv) when they have been transferred to any Person other than a Permitted Transferee to whom registration rights are assigned in accordance with Section 6.1 hereof, or (v) when they have ceased to be outstanding.

“Registration Expenses” has the meaning set forth in Section 3.7.

“Registration Statement” means the Closing Shares Registration Statement, a Demand Registration Statement and any other registration statement prepared and filed with the SEC pursuant to Article II hereof, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

“Required Stockholders” means the holders of at least a majority of the Registrable Securities held by the Stockholders.

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as amended from time to time.

“Shelf Takedown” has the meaning set forth in Section 2.1.

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“Stockholder(s)” has the meaning set forth in the preamble, and such term shall include any transferee to whom registration rights granted pursuant to this Agreement are validly assigned pursuant to Section 6.1 hereof.

“Underwritten Offering” means a registered underwritten offering in which securities of the Company are sold to one or more underwriters for reoffering to the public.

“WKSI” means a “well-known seasoned issuer” as defined in Rule 405 promulgated by the SEC.

ARTICLE II

CLOSING SHARES REGISTRATION STATEMENT;

Demand and Piggyback Rights

Section 2.1Closing Shares Registration Statement. The Company shall prepare the Closing Shares Registration Statement and file it with the SEC, and shall use reasonable best efforts to cause the Closing Shares Registration Statement to be declared effective by the SEC no later than 120 days from the date hereof. The Company shall use reasonable best efforts to cause the Closing Shares Registration Statement to remain effective (subject to Section 2.6(c)) until the earlier to occur of (i) the date on which all Registrable Securities included within the Closing Shares Registration Statement have been sold (other than to a Permitted Transferee to whom registration rights are effectively assigned in accordance with Section 6.1 hereof) or (ii) the fifth (5th) anniversary of the date that the Closing Shares Registration Statement is declared effective by the SEC (the end of such period, the “Closing Shares Shelf Expiration”). The Stockholders who hold Registrable Securities each shall be entitled, at any time and from time to time when the Closing Shares Registration Statement is effective, to sell such Registrable Securities pursuant to such Closing Shares Registration Statement (a “Shelf Takedown”). The resale of shares of Registrable Securities pursuant to the Closing Shares Registration Statement may from time to time from and after the date the Closing Shares Registration Statement is declared effective by the SEC and until the Closing Shelf Expiration, upon the written request of any Stockholder that holds, together with its Affiliates, at least a simple majority of the Registrable Securities issued pursuant to the transactions contemplated by the Merger Agreement to such Stockholder and its Affiliates and included under the Closing Shares Registration Statement, be an underwritten offering; provided, however, that the Company shall not be required to effect an underwritten Shelf Takedown unless the gross proceeds from the sale of Registrable Securities in such offering are reasonably expected to be at least $10,000,000 (without regard to any underwriting discount or commission); and provided, further, that the Company shall not be required to effect more than one (1) underwritten Shelf Takedown in any 90-day period or more than three (3) underwritten Shelf Takedowns in any 365-day period. In the event that any Stockholder requests an underwritten Shelf Takedown pursuant to this Section 2.1 (the “Requesting Stockholder”), then the other Stockholders, if any, in each of such Stockholder’s discretion, shall have the right to participate in such underwritten Shelf Takedown of Registrable Securities registered under the Closing Shares Registration Statement, subject to this Section 2.1, and (ii) the Company shall promptly notify each of the Stockholders (other than the Requesting Stockholder) of such underwritten Shelf Takedown, and such Stockholders shall have five (5) Business Days after receipt of such notice to request, by written notice to the Company and the Requesting Stockholder,that Registrable Securities held by such Stockholder and registered

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pursuant to the Closing Shares Registration Statement be sold pursuant to such proposed underwritten Shelf Takedown. The Company and the Stockholders shall use their reasonable best efforts to cooperate in taking any customary actions necessary or appropriate, including making necessary filings with the SEC, to permit any such Stockholder to participate in such proposed underwritten Shelf Takedown in such circumstances. If the Closing Shares Registration Statement ceases to be effective for any reason at any time prior to the Closing Shares Shelf Expiration, the Company shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within 45 days of such cessation of effectiveness amend the Closing Shares Registration Statement in a manner to obtain the withdrawal of the order suspending the effectiveness thereof. In any underwritten Shelf Takedown, the majority of the Stockholders requesting such underwritten Shelf Takedown shall have the right to select the plan of distribution, to select one counsel for the selling Stockholders and to designate the lead managing underwriter in connection with any underwritten Shelf Takedown pursuant to such registration and each other managing underwriter for any such underwritten Shelf Takedown; provided, that in each case, each such underwriter is reasonably satisfactory to the Company, which approval shall not be unreasonably withheld or delayed. If the managing underwriters advise the Requesting Stockholder and the Company that, in their opinion, the number of shares of Common Stock requested to be included in such underwritten Shelf Takedown exceeds the amount that can be sold in such underwritten Shelf Takedown without adversely affecting the distribution (including the timing and/or price at which the Registrable Securities can be sold) of the shares of Company Common Stock being offered, such underwritten offering will include only the number of shares of Company Common Stock that the underwriters advise can be sold in such underwritten offering without having an adverse effect on the distribution (including the timing and/or price at which the Registrable Securities can be sold) of the shares of Company Common Stock being offered. The Company will include in such underwritten Shelf Takedown pursuant to the Closing Shares Registration Statement, to the extent of the number of shares of Company Common Stock which the Requesting Stockholder and the Company are so advised can be sold in such underwritten Shelf Takedown, the Registrable Securities of the Stockholders, pro rata, on the basis of the number of shares of Company Common Stock requested to be included by such Stockholders.

Section 2.2Demand Registration Rights. As of and after the Closing Shares Shelf Expiration, each Stockholder shall have the right to require the Company to file one or more registration statements under the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities (a “Demand Registration”) by delivering a written request (the “Demand Registration Request”) therefor to the Company specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof (each such Stockholder so requesting a Demand Registration, an “Initiating Stockholder”). Any Demand Registration Request may request that the Company register Registrable Securities on an appropriate form, including a long-form registration statement on Form S-1 (or any similar long-form registration statement), a shelf registration statement, and, if the Company is a WKSI, an automatic shelf registration statement; provided, however, that the Company shall only be obligated to register such Registrable Securities if the sale of the Registrable Securities requested to be registered by such Stockholder is reasonably expected to result in aggregate gross cash proceeds of at least $20,000,000 (without regard to any underwriting discount or commission); and provided, further, that unless otherwise approved by the Board, the Company shall not be obligated to file a Registration Statement relating to any registration request under this Section 2.2 within a period of 180 days after the effective date of any other Registration Statement. The Company shall, as promptly as reasonably practicable (subject to Section 2.6(c)), use its reasonable best efforts to file with the SEC (no later than forty five (45) days from the Company’s receipt of the applicable Demand Request) and cause to be declared effective such registration under the Securities Act of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the members or partners of the Initial Stockholder (a “Partner Distribution”), and (y) if requested by the Stockholders, obtain acceleration of the effective date of the registration statement relating to such registration. The Company shall use reasonable best efforts to cause any Registration Statement filed pursuant to this Section 2.2 (subject to Section 2.6(c) hereof) to remain effective until the earlier of (i) the date on which all Registrable Securities included within such Registration Statement have been sold (other than to a Permitted Transferee to whom registration rights are effectively assigned in accordance with Section 6.1 hereof) and (ii) the expiration of 180 days (or, if such registration is a shelf-registration statement that permits sales of Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, one (1) year) from the date such Registration Statement first becomes effective (exclusive of any period during which the holders of Registrable Securities are prohibited or impaired from disposition of Registrable Securities by reason of the occurrence of a Permitted Interruption), at which time the Company shall have the right to deregister any of such securities that remain unsold. The Company shall, at the request of any Stockholder (including to effect a Partner Distribution), file any prospectus supplement or post-effective amendments, or include in the initial Registration Statement any disclosure or language, or include in any prospectus supplement or post-effective amendment any disclosure or language, and otherwise take any action, reasonably deemed necessary or advisable by such Stockholder (including to effect a Partner Distribution). Notwithstanding anything contained herein to the contrary, the Company shall not be required to effect more than five (5) Demand Registrations pursuant to this Section 2.2.

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Section 2.3Piggyback Registration Rights. If the Company at any time proposes to register any securities (whether pursuant to the exercise of Demand Registration rights by a Stockholder of the Company or at the initiative of the Company) under the Securities Act (other than the Closing Shares Registration Statement solely as provided in Section 2.1) in connection with a public offering of such securities for cash, whether for its own account or for the account of other securityholders, and the form of registration statement to be used may be used for the registration of Registrable Securities held by the Stockholders, the Company shall give prompt written notice of its intention to do to each Stockholder at least fifteen (15) Business Days prior to filing any registration statement, and the Stockholders (“Piggyback Stockholders”), may, by written notice to the Company, request that any or all Registrable Securities not otherwise registered pursuant to a Registration Statement (other than the Closing Shares Registration Statement solely as provided in Section 2.1) be included in such proposed registration of securities by the Company under the Securities Act (a “Piggyback Registration”). Upon the written request of any such Piggyback Stockholder, made within ten (10) Business Days following the receipt of any such written notice (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Piggyback Stockholder and the intended method of distribution thereof), the Company shall, subject to this Section 2.3, use its reasonable best efforts to cause all such Registrable Securities, the Piggyback Stockholders of which have so requested the registration thereof, to be registered under the Securities Act with the securities which the Company at the time proposes to register to permit the sale or other disposition by the Piggyback Stockholders (in accordance with the intended method of distribution thereof) of the Registrable Securities to be so registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the registration statement filed by the Company or the prospectus related thereto. There is no limitation on the number of such Piggyback Registrations pursuant to the preceding sentence which the Company is obligated to effect. No registration of Registrable Securities effected under this Section 2.3 shall relieve the Company of its obligations to effect Demand Registrations under Section 2.2 hereof.

Section 2.4Additional Demand Registrations. If the Company effects the registration of less than all of the Registrable Securities requested to be included by the Initiating Stockholder in a Demand Registration under Section 2.2, then the Stockholders shall be entitled to request an additional Demand Registration with respect to such Registrable Securities that were not so registered. If the Company withdraws or suspends any Demand Registration pursuant to Section 2.6(c) before the expiration of such Demand Registration pursuant to Section 2.2, and before all of the Registrable Securities covered by such Demand Registration have been sold pursuant thereto, the Initiating Stockholder shall be entitled to request an additional Demand Registration with respect to such Registrable Securities that were not so sold. Any such additional Demand Registration shall be requested and effected in the manner and subject to the procedures that applied with respect to the Demand Registration that was the subject of the cutback in Section 3.4.

Section 2.5Effective Registration Statement. A Demand Registration pursuant to Section 2.2 shall not be deemed to have been effected unless (i) a Registration Statement with respect thereto has become effective and, after it has become effective, such Demand Registration is not interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason, and (ii) the sale of Registrable Securities contemplated thereby (if underwritten) has been consummated.

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Section 2.6Limitations on Demand and Piggyback Rights.

(a)With respect to any registrations requested pursuant to Section 2.2 or Section 2.3, the Company may include in such registration any other equity securities of the Company. Notwithstanding anything in this Agreement to the contrary, the Stockholders will not have piggyback or other registration rights with respect to registered primary offerings by the Company (i) covered by a Form S-8 Registration Statement (or a successor form) applicable to employee benefit-related offers and sales, (ii) where the securities are not being sold for cash, (iii) covered by a registration statement on Form S-4 (or successor form) or (iv) relating to a corporate reorganization pursuant to Rule 145 promulgated by the SEC.

(b)Any demand for the filing of a Registration Statement will be subject to the constraints of any customary and reasonable lockup arrangements entered into by the Company in connection with a then pending underwritten offering, and such demand must be deferred until such lockup arrangements no longer apply. If a demand has been made under this Article II, no further demands may be made so long as the related offering is still being pursued in good faith.

(c)The Company may postpone the filing of any Registration Statement or suspend the effectiveness of any Registration Statement (including, without limitation, the Closing Shares Registration Statement), any amendment or post-effective amendment thereto or prospectus supplement for a reasonable “blackout period” not in excess of 60 days if the board of directors of the Company determines in good faith that such registration, offering, amendment or supplement (i) would materially interfere with a bona fide business, financing or acquisition (including any merger, reorganization, consolidation, tender offer or similar transaction) transaction of the Company because it would be reasonably likely to require premature disclosure of material, nonpublic information, the premature disclosure of which the board of directors reasonably determines in the exercise of its good faith judgment (and not for the avoidance of its obligations under this Agreement) would not be in the best interests of the Company, or (ii) could not be effected by the Company in compliance with the applicable financial statement requirements under the Securities Act or Exchange Act (such event described in this Section 2.6(c) during which the Company is not required to make such filing, amendment or supplement is herein referred to as a “Permitted Interruption”); provided, however, that the Company shall not postpone the filing of a demanded Registration Statement or suspend the effectiveness of any Registration Statement pursuant to this Section 2.6 more than once in any 90-day period. If a Permitted Interruption affects a Registration Statement during the period such Registration Statement remains effective, the Company agrees to notify each of the Stockholders so affected by a Permitted Interruption in writing as promptly as practicable upon each of the commencement and the termination of each Permitted Interruption. The Company shall not be required in such notice of a Permitted Interruption to disclose the cause for such Permitted Interruption, and each Stockholder agrees, subject to applicable law, that it will not disclose receipt of such notice of Permitted Interruption to any Person. Each Stockholder agrees that, upon receipt of any such notice from the Company, such Stockholder will forthwith discontinue disposition of Registrable Securities pursuant to the applicable Registration Statement until the earlier of (i) such Stockholder’s receipt of the Company’s notice as to the termination of the Permitted Interruption and (ii) 90 days after receipt of the original notice of a Permitted Interruption. In the event of a Permitted Interruption, the duration of the applicable period in which a Registration Statement is to remain effective shall be extended by the number of days of such period. The Company shall reimburse each holder of Registrable Securities for all reasonable and documented out-of pocket costs and expenses incurred by such Stockholder in connection with the postponement or withdrawal of such a filing.

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ARTICLE III

Notices, Cutbacks and Other Matters

Section 3.1Notifications Regarding Registration Statements. In order for one or more Initiating Stockholders to exercise their right to demand that a Registration Statement be filed, they must so notify the Company in writing indicating the number of shares sought to be registered. The Company will keep the Stockholders contemporaneously apprised of all pertinent aspects of its pursuit of any registration, whether pursuant to a Demand Registration or otherwise, with respect to which a Piggyback Registration opportunity is available. Pending any required public disclosure and subject to applicable legal requirements, the parties will maintain the confidentiality of these discussions.

Section 3.2Notifications Regarding Registration Piggyback Rights. Subject to Section 2.3, in the event that any sale of shares pursuant to a Registration Statement is underwritten, the Company shall promptly notify each Piggyback Stockholder of such development and the Piggyback Stockholders shall have fifteen (15) days after receipt of such notice to request the registration by the Company under the Securities Act of Registrable Securities not otherwise registered pursuant to a Registration Statement (other than the Closing Shares Registration Statement) in connection with such proposed registration of securities.

Section 3.3Plan of Distribution; Underwriters. In connection with any Demand Registration, the majority of the Initiating Stockholders participating in such Demand Registration shall have the right to select the plan of distribution, to select one counsel for the selling Stockholders and to designate the lead managing underwriter in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided, that in each case, each such underwriter is reasonably satisfactory to the Company, which approval shall not be unreasonably withheld or delayed.

Section 3.4Cutbacks. If the managing underwriters advise the Company and the selling Stockholders that, in their opinion, the number of shares requested to be included in an underwritten offering (other than any resale of Registrable Securities pursuant to the Closing Shares Registration Statement that is an underwritten offering, which shall be subject to Section 2.1) exceeds the amount that can be sold in such offering without adversely affecting the distribution (including the timing and/or price at which the Registrable Securities can be sold) of the shares being offered, such offering will include only the number of shares that the underwriters advise can be sold in such offering without having an adverse effect on the distribution (including the timing and/or price at which the Registrable Securities can be sold) of the shares being offered. The Company will include in such Registration Statement (other than any resale of Registrable Securities pursuant to the Closing Shares Registration Statement that is an underwritten offering, which shall be subject to Section 2.1), to the extent of the number which the Company is so advised can be sold in such offering, first, all securities proposed by the Company, if any, to be sold for its own account; second, Registrable Securities requested by the Stockholders to be included in such Registration Statement, pro rata, on the basis of the number of shares of Company Common Stock requested to be included in such Registration Statement.

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Section 3.5Withdrawals. Even if shares held by a Stockholder have been part of a registered underwritten offering, such Stockholder may, no later than the time at which the public offering price and underwriters’ discount are determined with the managing underwriter, decline to sell all or any portion of the shares being offered for its account. In the event of such a withdrawal, the Company and any Stockholder having the right to participate in such offering may, in their discretion, include additional shares in such offering in replacement of any shares so withdrawn without requiring any further notice or piggyback registration rights with respect to the Stockholder that has withdrawn its shares.

Section 3.6Lockups. In connection with any underwritten offering of Registrable Securities, (a) the Company (and each of its executive officers and directors) and (b) each Stockholder which is selling shares of Company Common Stock pursuant to its rights hereunder will agree to be bound by the underwriting agreement’s lockup restrictions (which must apply, and continue to apply, in like manner to each of the Company (and each of its executive officers and directors) and Stockholders participating in the underwritten offering) that are agreed to (i) by the Company (if a majority of the shares being sold in such underwritten offering are being sold for its account) or (ii) by Stockholders holding a majority of shares being sold by all Stockholders in such underwritten offering (if a majority of the shares being sold in such underwritten offering are being sold by Stockholders), as applicable.

Section 3.7Expenses. All costs and expenses incurred in connection with any Registration Statement or registered offering that includes shares held by Stockholders, whether or not a Registration Statement becomes effective or the offering is consummated, including all registration and filing fees, printing expenses, reasonable fees and disbursements of counsel (including the fees and disbursements of one outside counsel for the Stockholders (selected by the holders of the majority of the Registrable Securities to be included in such Registration Statement) and of the independent certified public accountants), and the expense of qualifying such shares under state blue sky laws (all such expenses, the “Registration Expenses”), will be borne by the Company. However, any underwriters’, brokers’ and dealers’ discounts and commissions, or similar fees of securities industry professionals, and applicable transfer taxes, if any, in each case relating to shares sold for the account of a Stockholder will be borne by such Stockholder. Notwithstanding anything herein to the contrary, the Company shall not be required to pay fees and disbursements of any outside counsel retained by any Stockholder or by any underwriter in connection with any Registration Statement or registered offering, except as expressly set forth above in this Section 3.7.

ARTICLE IV

FACILITATING REGISTRATIONS AND OFFERINGS

Section 4.1General. If the Company becomes obligated under this Agreement to facilitate a registration and offering of shares on behalf of Stockholders, the Company will do so with the same degree of care and dispatch as would reasonably be expected in the case of a registration and offering by the Company of shares for its own account. Without limiting this general obligation, the Company will fulfill its specific obligations as described in this Article IV.

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Section 4.2Registration Statements. In connection with each Registration Statement (including the Closing Shares Registration Statement and any other Registration Statement that is demanded by Stockholders or as to which piggyback rights otherwise apply), the Company will:

(a)prepare and file with the SEC a Registration Statement (or an amendment or supplement to the Closing Shares Registration Statement) covering the applicable shares, (ii) file amendments thereto as warranted, (iii) seek the effectiveness thereof, and (iv) file with the SEC prospectuses and prospectus supplements as may be required, all in consultation with the Stockholders and as reasonably necessary in order to permit the offer and sale of such shares in accordance with the applicable plan of distribution;

(b)within a reasonable time prior to the filing of any Registration Statement, any prospectus, any amendment to a Registration Statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the selling Stockholders and to the underwriter or underwriters of an underwritten offering, if applicable, and to their respective counsel; fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the Stockholders or the underwriter or the underwriters may request; and make such of the representatives of the Company as shall be reasonably requested by the selling Stockholders or any underwriter available for discussion of such documents;

(i)within a reasonable time prior to the filing of any document which is to be incorporated by reference into a Registration Statement or a prospectus, provide copies of such document to counsel for the Stockholders and underwriters; fairly consider such reasonable changes in such document prior to or after the filing thereof as counsel for such Stockholders or such underwriter shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;

(c)cause each Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of such Registration Statement, amendment or supplement and during the distribution of the registered shares (x) to comply in all material respects with the requirements of the Securities Act and the rules and regulations of the SEC and (y) not to 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;

(d)notify each Stockholder promptly, and, if requested by such Stockholder, confirm such advice in writing, (i) when a Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective if such Registration Statement or post-effective amendment is not automatically effective upon filing pursuant to Rule 462 promulgated by the Securities Act, (ii) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iii) if, between the effective date of a Registration Statement and the closing of any sale of securities covered thereby pursuant to any agreement to which the Company is a party, the representations and warranties of the Company contained in such agreement cease to be true and correct in all material respects or if the Company receives any notification with respect to the suspension of the qualification of the shares for sale in any jurisdiction or the initiation of any proceeding for such purpose, and (iv) of the happening of any event during the period a Registration Statement is effective as a result of which such Registration Statement or the related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading;

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(e)promptly furnish to counsel for each underwriter, if any, and for the respective Stockholders copies of any correspondence with the SEC or any state securities authority relating to the Registration Statement or prospectus;

(f)otherwise comply with all applicable rules and regulations of the SEC, including making available to its security holders an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar provision then in force); and

(g)use all reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible time.

Section 4.3Due Diligence. In connection with each registration and offering of shares to be sold by Stockholders, the Company will, in accordance with customary practice, make available for inspection by representatives of the Stockholders and underwriters and any counsel or accountant retained by such Stockholder or underwriters all relevant financial and other records, pertinent corporate documents and properties of the Company and cause appropriate officers, managers and employees of the Company to supply all information reasonably requested by any such representative, underwriter, counsel or accountant in connection with their due diligence exercise.

Section 4.4Information from Stockholders. Each Stockholder that holds shares covered by any Registration Statement will furnish to the Company such information regarding itself as is required to be included in the Registration Statement, the ownership of shares by such Stockholder and the proposed distribution by such Stockholder of such shares, and make such customary representations to the Company, as the Company may from time to time reasonably request in writing. Each Stockholder authorizes the Company to include such information in the applicable Registration Statement or other documents prepared or filed in connection therewith. Each Stockholder further agrees to promptly notify the Company of any inaccuracies or changes in the information provided to the Company that it becomes aware of that may occur subsequent to the date hereof at any time while a Registration Statement including shares owned by such Stockholder remains effective. Each Stockholder agrees to distribute Registrable Securities included in the Registration Statement only in the manner described in the applicable Registration Statement.

Section 4.5Additional Agreements of Stockholders.

(a)Each Stockholder agrees to, following such time that such Stockholder becomes aware, as expeditiously as possible, notify the Company of the occurrence of any event that makes any statement made in any Registration Statement or any related prospectus regarding such Stockholder untrue in any material respect or that requires the making of any changes in either a Registration Statement or prospectus regarding such Stockholder.

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(b)Each Stockholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4.2(d)(ii) or Section 4.2(d)(iv) hereof, such Stockholder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement until such Stockholder’s receipt of the copies of any necessary supplements or amendments to such Registration Statement or applicable prospectus, and, if so directed by the Company, such Stockholder will deliver to the Company all copies in its possession, other than permanent file copies then in such Stockholder’s possession, of the Registration Statement or applicable prospectus covering such Registrable Securities at the time of receipt of such notice. Each Stockholder agrees that in the event it receives any notice from the Company under Section 4.2(d)(ii) or Section 4.2(d)(iv), it will not disclose such fact to any person.

Section 4.6Non-Closing Shares Registration Statements. In connection with any non-shelf registered offering or shelf registration that is demanded by Stockholders in accordance with Section 2.2 or as to which piggyback rights apply pursuant to Section 2.3, the Company will:

(a)cooperate with the Stockholders selling shares and the sole underwriter or managing underwriter of an underwritten offering shares, if any, to facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the selling Stockholders or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least five (5) Business Days prior to any sale of such shares;

(b)furnish to each Stockholder and to each underwriter, if any, participating in the relevant offering, without charge, as many copies of the applicable prospectus, including each preliminary prospectus, and any amendment or supplement thereto and such other documents as such Stockholder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the shares; the Company hereby consents to the use of the prospectus, including each preliminary prospectus, by each such Stockholder and underwriter in connection with the offering and sale of the shares covered by the prospectus or the preliminary prospectus;

(c) (i) use all reasonable efforts to register or qualify the shares being offered and sold, no later than the time the applicable registration statement becomes effective, under all applicable state securities or “blue sky” laws of such jurisdictions as each underwriter, if any, or any Stockholder holding shares covered by a registration statement, shall reasonably request; (ii) use all reasonable efforts to keep each such registration or qualification effective during the period such registration statement is required to be kept effective; and (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable each such underwriter, if any, and Stockholder to consummate the disposition in each such jurisdiction of such shares owned by such Stockholder; provided, however, that the Company shall not be obligated to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to consent to be subject to general service of process (other than service of process in connection with such registration or qualification or any sale of shares in connection therewith) in any such jurisdiction;

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(d)use all reasonable efforts to cause all shares being sold to be qualified for inclusion in or listed on NASDAQ or any other U.S. securities exchange on which shares issued by the Company are then so qualified or listed if so requested by the Stockholders, or if so requested by the underwriter or underwriters of an underwritten offering of shares, if any;

(e)cooperate and assist in any filings required to be made with Financial Industry Regulatory Authority and in the performance of any due diligence investigation by any underwriter in an underwritten offering;

(f)use all reasonable efforts to facilitate the distribution and sale of any shares being offered, including by making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be requested by the lead managing underwriter of an underwritten offering; and

(g)enter into customary agreements (including, in the case of an underwritten offering, underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to indemnification and contribution contained herein) and take all other customary and appropriate actions in order to expedite or facilitate the disposition of such shares and in connection therewith:

(i)make such representations and warranties to the selling Stockholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings;

(ii)obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter, if any) addressed to each selling Stockholder and the underwriters, if any, covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Stockholders and underwriters;

(iii)obtain “cold comfort” letters and updates thereof from the Company’s independent certified public accountants addressed to the selling Stockholders, if permissible, and the underwriters, if any, which letters shall be customary in form and shall cover matters of the type customarily covered in “cold comfort” letters to underwriters in connection with primary underwritten offerings;

(iv)to the extent requested and customary for the relevant transaction, enter into a securities sales agreement with the Stockholders providing for, among other things, the appointment of such representative as agent for the selling Stockholders for the purpose of soliciting purchases of shares, which agreement shall be customary in form, substance and scope and shall contain customary representations, warranties and covenants

The above shall be done at such times as customarily occur in similar non-shelf registered offerings or shelf registrations, as applicable.

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ARTICLE V

INDEMNIFICATION

Section 5.1Indemnification by the Company. In the event of any registration under the Securities Act by any Registration Statement, pursuant to rights granted in this Agreement, of shares held by Stockholders, the Company will hold harmless Stockholders, each director, officer, employee and Affiliate of the Stockholders and each other person, if any, who controls any Stockholder within the meaning of the Securities Act (each, a “Controlling Person”), against any losses, claims, damages, or liabilities (including legal fees and costs of court), joint or several, to which Stockholders or such Controlling Person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, or liabilities (or any actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact (a) contained, on its effective date, in any Registration Statement under which such securities were registered under the Securities Act or any amendment or supplement to any of the foregoing, or which arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (b) contained in any preliminary prospectus, if used prior to the effective date of such Registration Statement, or in the final prospectus (as amended or supplemented if the Company shall have filed with the SEC any amendment or supplement to the final prospectus), or which arise out of or are based upon the omission or alleged omission (if so used) to state a material fact required to be stated in such prospectus or necessary to make the statements in such prospectus not misleading; and will reimburse Stockholders and each such Controlling Person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, or liability; provided, however, that the Company shall not be liable to any Stockholder or Controlling Persons in any such case to the extent that any such loss, claim, damage, or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement or such amendment or supplement, solely in reliance upon and in conformity with information furnished to the Company through a written instrument duly executed by such Stockholder specifically for use in the preparation thereof. In connection with any underwritten public offering effected under a Registration Statement, the Company will agree to indemnify the underwriters on terms and conditions customary for such an offering. This indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party, and shall survive the transfer (in accordance with the terms hereof) of such Registrable Securities by the seller thereof.

Section 5.2Indemnification by Stockholders. Each Stockholder will, severally and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 5.1) the Company, each director, officer, employee and Affiliate of the Company and any Person who controls the Company within the meaning of the Securities Act with respect to any statement or omission from such Registration Statement, or any amendment or supplement to it, if such statement or omission was made solely in reliance upon and in conformity with information furnished to the Company through a written instrument duly executed by such Stockholder specifically regarding such Stockholder for use in the preparation of such Registration Statement or amendment or supplement; provided, however, that such Stockholder shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement amendment or supplement, such Stockholder has furnished in writing to the Company information expressly for use in such Registration Statement or prospectus or any amendment or supplement which corrected or made not misleading information previously furnished to the Company. This indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company, its directors, officers or controlling Persons, and shall survive the transfer of such Registrable Securities by the seller thereof. Notwithstanding the foregoing, the liability of any such Stockholder shall not exceed an amount equal to the net proceeds realized by such Stockholder from the sale of Registrable Securities pursuant to such Registration Statement.

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Section 5.3Indemnification Procedures. Promptly after receipt by an indemnified party of notice of the commencement of any action involving a claim referred to in the preceding Sections of this Article V, the indemnified party will, if a resulting claim is to be made or may be made against and indemnifying party, give written notice to the indemnifying party of the commencement of the action. The failure of any indemnified party to give notice shall not relieve the indemnifying party of its obligations in this Article V, except to the extent that the indemnifying party is actually prejudiced by the failure to give notice. If any such action is brought against an indemnified party, the indemnifying party will be entitled to participate in and to assume the defense of the action with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to such indemnified party of its election to assume defense of the action, the indemnifying party will not be liable to such indemnified party for any legal or other expenses incurred by the latter in connection with the action’s defense. An indemnified party shall have the right to employ separate counsel in any action or proceeding and participate in the defense thereof, but the fees and expenses of such counsel shall be at such indemnified party’s expense unless (a) the employment of such counsel has been specifically authorized in writing by the indemnifying party, which authorization shall not be unreasonably withheld, (b) the indemnifying party has not assumed the defense and employed counsel reasonably satisfactory to the indemnified party within 60 days after notice of any such action or proceeding, or (c) the named parties to any such action or proceeding (including any impleaded parties) include the indemnified party and the indemnifying party and the indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to the indemnified party that are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of the indemnified party), it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to all local counsel which is necessary, in the good faith opinion of both counsel for the indemnifying party and counsel for the indemnified party in order to adequately represent the indemnified parties) for the indemnified party and that all such fees and expenses shall be reimbursed as they are incurred upon written request and presentation of invoices. Whether or not a defense is assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its consent. No indemnifying party will consent to entry of any judgment or enter into any settlement which (i) does not include as an unconditional term the giving by the claimant or plaintiff, to the indemnified party, of a release from all liability in respect of such claim or litigation or (ii) involves the imposition of equitable remedies or the imposition of any non-financial obligations on the indemnified party.

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Section 5.4Contribution. If the indemnification required by this Article V from the indemnifying party is unavailable to or insufficient to hold harmless an indemnified party in respect of any indemnifiable losses, claims, damages, liabilities, or expenses, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities, or expenses in such proportion as is appropriate to reflect (a) the relative benefit of the indemnifying and indemnified parties and (b) if the allocation in clause (a) is not permitted by applicable law, in such proportion as is appropriate to reflect the relative benefit referred to in clause (a) and also the relative fault of the indemnified and indemnifying parties, in connection with the actions which resulted in such losses, claims, damages, liabilities, or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and the indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact, has been made by, or relates to information supplied by, such indemnifying party or parties, and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damage, liabilities, and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The Company and Stockholders agree that it would not be just and equitable if contribution pursuant to this Section 5.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the prior provisions of this Section 5.4. Notwithstanding the provisions of this Section 5.4, no indemnifying or contributing party shall be required to contribute any amount in excess of the amount by which the total price at which the securities were offered to the public by such party exceeds the amount of any damages which such party has otherwise been required to pay by reason of an untrue statement or omission. 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 a fraudulent misrepresentation.

ARTICLE VI

OTHER AGREEMENTS

Section 6.1Transfer of Rights.

(a)This Agreement is personal to the parties hereto and not assignable or transferable; provided, however, that notwithstanding the foregoing, a Stockholder may assign and transfer its rights and obligations under this Agreement to a Permitted Transferee in connection with a transfer or sale of Registrable Securities to such Person, which assignment or transfer shall only be effective upon receipt by the Company of a duly executed commitment by such Permitted Transferee to be bound by the terms of this Agreement, in the form attached hereto as Exhibit A, in which case this Agreement shall be assigned to, and may be enforced by, such Permitted Transferee, and such Permitted Transferee shall thereupon have all of the rights and obligations of its transferor hereunder.

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(b)In the event the Company engages in a merger or consolidation in which the Registrable Securities are converted into securities of another company, and which securities are not tradable without registration under the Securities Act, appropriate arrangements will be made so that the registration rights provided under this Agreement continue to be provided to Stockholders by the issuer of such securities. To the extent such new issuer, or any other company acquired by the Company in a merger or consolidation, was bound by registration rights obligations that would conflict with the provisions of this Agreement, the Company will, unless the Required Stockholders otherwise agree, use its best efforts to modify any such “inherited” registration rights obligations so as not to interfere in any material respects with the rights provided under this Agreement.

Section 6.2Limited Liability. Notwithstanding any other provision of this Agreement, neither the members, general partners, limited partners or managing directors, or any directors or officers of any members, general or limited partner, advisory director, nor any future members, general partners, limited partners, advisory directors, or managing directors, if any, of any Stockholder shall have any personal liability for performance of any obligation of such Stockholder under this Agreement in excess of the respective capital contributions of such members, general partners, limited partners, advisory directors or managing directors to such Stockholder.

Section 6.3Rule 144. If the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act, the Company covenants that it will file any reports required to be filed by it under the Securities Act and the Exchange Act (or, if the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act but is not required to file such reports, it will, upon the request of any Stockholder, make such information available) and it will take such further action as any Stockholder may reasonably request, so as to enable such Stockholder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Stockholder, the Company will deliver to such Stockholder a written statement as to whether it has complied with such requirements.

Section 6.4In-Kind Distributions. If any Stockholder seeks to effectuate an in-kind distribution of all or part of its Registrable Securities to its direct or indirect equityholders, the Company will work with such Stockholder and the Company’s transfer agent to facilitate such in-kind distribution in the manner reasonably requested by such Stockholder.

Section 6.5No Inconsistent Agreements. The Company has not entered into, and on or after the date of this Agreement will not enter into, any agreement that conflicts with the provisions hereof.

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ARTICLE VII

MISCELLANEOUS

Section 7.1Notices. All notices, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) on the date so given, if delivered personally, (ii) on the date sent, if delivered by facsimile with telephone confirmation of receipt, (iii) on the second Business Day following the date deposited in the mail if mailed via an internationally recognized overnight courier and (iv) on the fourth (4th) Business Day following the date deposited in the mail if mailed via registered or certified mail, return receipt requested, postage prepaid, in each case, to the other party at the following addresses:

if to any Stockholder, to the address listed on Annex A, with copies (which shall not constitute notice) to the respective persons listed on Annex A.

if to the Company, to:

Fusion Connect, Inc.

420 Lexington Avenue, Suite 17

New York, New York 10170

Attention: James P. Prenetta, Jr., Executive Vice President and General Counsel

Email: jprenetta@fusionconnect.com

Section 7.2Section Headings. The article and section headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. References in this Agreement to a designated “Article” or “Section” refer to an Article or Section of this Agreement unless otherwise specifically indicated.

Section 7.3Use of Terms. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. Whenever the words “include”, “included” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof. When used in this Agreement, words such as “herein”, “hereinafter”, “hereof”, “hereto”, and “hereunder” shall refer to this Agreement as a whole, unless the context clearly requires otherwise. The use of the words “or,” “either” and “any” shall not be exclusive. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, 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.

Section 7.4Governing Law. This Agreement will be governed and construed in accordance with the internal Laws of the State of Delaware, without regard to any applicable conflict of laws principles (whether of the State of Delaware or any other jurisdiction).

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Section 7.5Consent to Jurisdiction and Service of Process. Each of the parties to this Agreement hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction and venue of the Chancery Court of the State of Delaware and, in the absence of such jurisdiction, the United States District Court for the District of Delaware, and, in the absence of such federal jurisdiction, the parties consent to be subject to the exclusive jurisdiction of any Delaware state court sitting in New Castle County (together, the “Chosen Courts”), in any action or proceeding arising out of or relating to this Agreement or the Transactions or for recognition or enforcement of any judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in the Chosen Courts, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Chosen Courts, and any appellate court hearing actions or proceedings therefrom, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in the Chosen Courts, and (iv) waives, to the fullest extent it may legally and effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding in the Chosen Courts. Each of the parties to this Agreement agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

Section 7.6WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.6.

Section 7.7Amendments; Termination. This Agreement may be amended or modified only by an instrument in writing executed by the Company and the Required Stockholders. Any such amendment and modification will apply to all Stockholders equally, without distinguishing between them. This Agreement will terminate as to any Stockholder when it no longer holds any Registrable Securities. This Agreement will no longer be applicable to Registrable Securities that are registered in a public offering on NASDAQ or any other U.S. securities exchange on which Registrable Securities issued by the Company are then so qualified or listed.

Section 7.8Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the transactions contemplated hereby and thereby. The registration rights granted under this Agreement supersede any registration, qualification or similar rights with respect to any of the shares of Company Common Stock granted under any other agreement to the parties hereto.

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Section 7.9Severability. The invalidity or unenforceability of any specific provision of this Agreement shall not invalidate or render unenforceable any of its other provisions. Any provision of this Agreement held invalid or unenforceable shall be deemed reformed, if practicable, to the extent necessary to render it valid and enforceable and to the extent permitted by law and consistent with the intent of the parties to this Agreement.

Section 7.10Counterparts. This Agreement may be executed in multiple counterparts, including by means of facsimile, each of which shall be deemed an original, but all of which together shall constitute the same instrument.

[Remainder of page intentionally blank]

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IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as of the date first written above.

FUSION CONNECT, INC.

By: /s/ James P. Prenetta, Jr.  

Name: James P. Prenetta, Jr.

Title: Executive Vice President and

          General Counsel

[Signature Page to Registration Rights Agreement]

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BCHI HOLDINGS, LLC

By: /s/ Holcombe T. Green, Jr.  

Name: Holcombe T. Green, Jr.

Title: Manager

Notices:

[Signature Page to Registration Rights Agreement]

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EXHIBIT A

FORM OF JOINDER TO

REGISTRATION RIGHTS AGREEMENT

This JOINDER to the Registration Rights Agreement, dated as of __________, 2017 (the “Registration Rights Agreement”), of Fusion Connect, Inc., a Delaware corporation (the “Company”), is executed on behalf of the undersigned (“Stockholder”), effective as of the date set forth on the signature page below, with reference to the following facts:

A. Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Registration Rights Agreement.

B. Stockholder has acquired Registrable Securities from a Stockholder (in this instance, as defined in the Registration Rights Agreement) (the “Original Stockholder”), is the Permitted Transferee of the Original Stockholder and, in connection with such transfer, the registration rights of such Original Stockholder are being assigned to Stockholder in accordance with the terms of Section 6.1 of the Registration Rights Agreement, and the Registration Rights Agreement requires Stockholder to become a party thereto if Stockholder desires to avail itself of the registration rights therein, and Stockholder agrees to do so in accordance with the terms thereof.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:

1. Agreement to be Bound. Stockholder hereby agrees that upon execution of this Joinder, Stockholder shall become a party to the Registration Rights Agreement as a “Stockholder” and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Registration Rights Agreement applicable to Stockholder and the Registrable Securities held by Stockholder as though an original party thereto.

2. Counterparts. This Joinder may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement.

3. Notices. For purposes of Section 7.1 of the Registration Rights Agreement, all notices, demands or other communications to Stockholder shall be directed to Stockholder’s address set forth below Stockholder’s signature below.

[Signature Page Follows]

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IN WITNESS WHEREOF, Stockholder has executed this Joinder effective as of the date set forth below.

STOCKHOLDER:

By: _________________________

Name:

Title:

ADDRESS:

Date:

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EX-10.3

STOCKHOLDERS’ AGREEMENT

This STOCKHOLDERS’ AGREEMENT (this “Agreement”) is entered into as of May 4, 2018 among Fusion Connect, Inc. , a Delaware corporation (the “Company”), BCHI Holdings, LLC, a Georgia limited liability company (“Holding LLC”), the other Persons set forth on Schedule I hereto (the “Initial FTI Stockholders”) and each Person that becomes a party to this Agreement by delivering to the Company and Holding LLC a duly executed joinder to this Agreement in the form attached hereto as Exhibit A hereto or such other form approved by Holding LLC and the Company (together, with the Initial FTI Stockholders, the “FTI Stockholders” and each an “FTI Stockholder).

RECITALS

A.           This Agreement is being entered into in connection with the consummation of the transactions contemplated by the Merger Agreement, dated as of August 26, 2017 (as amended or modified from time to time, the “Merger Agreement”), by and among the Company, Birch Communications Holdings, Inc., a Georgia corporation, andFusion BCHI Acquisition LLC, a Delaware limited liability company.

B.           After giving effect to the transactions contemplated by the Merger Agreement, Holding LLC and the Initial FTI Stockholders own the equity securities of the Company in the respective amounts indicated on Schedule I hereto.

C.           Holding LLC, the FTI Stockholders and the Company wish to set forth certain agreements regarding the relationships among them and the governance of the Company.

In consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, the Company and each Stockholder agree as follows:

ARTICLE I

DEFINITIONS

  Section 1.1  Certain Defined Terms. As used herein, the following terms shall have the following meanings:

“Affiliate” means (i) with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with, such Person, (ii) with respect to Holding LLC, any member of Holding LLC or any trust therefor, and (iii) with respect to any natural person, any spouse or lineal descendant of such person, and in each case, any trust therefor.

“Agreement” has the meaning set forth in the preamble.

“beneficial owner” or “beneficially own” has the meaning given such term in Rule 13d-3 under the Exchange Act, and a Person’s beneficial ownership of Common Stock or other Equity Securities of the Company shall be calculated in accordance with the provisions of such rule. For the avoidance of doubt, no Person shall be deemed to beneficially own any security solely as a result of such Person’s execution of this Agreement.

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“Board” means the Board of Directors of the Company.

“Business Day” means any day that is not a Saturday, Sunday or other day on which banks are required or authorized by law to be closed in New York City.

“Bylaws” means the Bylaws of the Company, as in effect on the date hereof and as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Cause” shall mean the occurrence of any of the following:

(A)any action or omission by the applicable Director that constitutes (1) a criminal act committed in connection with or related to the activities of the Company or (2) fraud, willful misconduct or gross negligence in the performance of such Director’s duties as a director of the Company or otherwise relating to the activities of the Company;

(B)the conviction of the applicable Director of any criminal offense unrelated to the activities of the Company that constitutes a felony or for which a term of imprisonment of any duration is imposed (other than an offense under any road traffic legislation, not accompanied by any other criminal offense that constitutes a felony);

(C)a breach by the applicable Director of a material securities law or regulation or a material rule of any securities exchange of the Securities and Exchange Commission; or

(D)if such Director also is a party to a consulting, services, severance or employment agreement with the Company and such term is defined therein, the meaning as set forth in such agreement.

“Charter” means the Certificate of Incorporation of the Company, as in effect on the date hereof and as the same may be amended, supplemented or otherwise modified from time to time.

“Closing” means the closing of the Transaction as defined in and as contemplated by the Merger Agreement.

“Common Stock” means the common stock, par value $.01 per share, of the Company, and any securities issued in respect thereof, or in substitution therefor, in connection with any stock split, dividend or combination, or any reclassification, recapitalization, merger, consolidation, exchange or other similar reorganization.

“Communications Act” means the Communications Act of 1934.

“Company” has the meaning set forth in the preamble.

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“Control” (including the terms “controlling”, “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.

“Covered Claims” has the meaning set forth in Section 4.16(a).

“Director” means any member of the Board.

“Equity Securities” means any and all shares of Common Stock or other equity securities of the Company, securities of the Company convertible into, or exchangeable or exercisable for (whether presently convertible, exchangeable or exercisable or not), such shares, and options, warrants or other rights (whether presently convertible, exchangeable or exercisable or not) to acquire such shares of Common Stock or other equity securities of the Company.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“FCC Regulations” means the rules, regulations, published decisions, published orders and policies promulgated by the Federal Communications Commission and in effect from time to time.

“FTI Director” means, as of any date, each Person who is a director of the Company on such date and who was designated as a director nominee in accordance with the provisions of Section 2.1(b)(ii) and elected to the Board at an annual or special meeting of the stockholders of the Company.

“FTI Stockholders” has the meaning set forth in the preamble.

“FTI Nominating Committee” means, as of any date on which an action or decision of the FTI Nominating Committee is required or permitted to be taken pursuant to this Agreement, the FTI Directors serving on the Board on such date.

“Group” has the meaning set forth in Section 13(d)(3) of the Exchange Act.

“Holding LLC” has the meaning set forth in the preamble.

“Information” means all confidential information about the Company or any of its Subsidiaries that is or has been furnished to any Stockholder or any of its Representatives by or on behalf of the Company or any of its Subsidiaries, or any of their respective Representatives (whether written or oral or in electronic or other form and whether prepared by the Company or any of its Subsidiaries or their respective Representatives), together with that portion of all written or electronically stored documentation prepared by such Stockholder or its Representatives based on or reflecting, in whole or in part, such information; provided, however, that the term “Information” shall not include any information that (i) is or becomes generally available to the public through no action or omission by such Stockholder or its Representatives in violation of this Agreement, (ii) is or becomes available to such Stockholder on a non-confidential basis from a source, other than the Company or any of its Subsidiaries, or any of their respective Representatives, that, to such Stockholder’s knowledge, after reasonable inquiry, is not prohibited from disclosing to such Stockholder by a contractual, legal or fiduciary obligation or (iii) is independently developed by a Stockholder or its Representatives or Affiliates without use of any Information.

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“Initial FTI Stockholders” has the meaning set forth in the preamble.

“Law” means the law of any jurisdiction, whether international, multilateral, multinational, national, federal, state, provincial, local or common law, or an order, act, statute, ordinance, regulation, rule, extension order or code promulgated by a governmental authority (including any department, court, agency or official, or non-governmental self-regulatory organization, agency or authority and any political subdivision or instrumentality thereof).

“Merger Agreement” has the meaning provided in the first recital.

“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivisions thereof or any Group comprised of two or more of the foregoing.

“Representatives” means with respect to any Person, any of such Person’s, or its Affiliates’, directors, officers, employees, general partners, Affiliates, direct or indirect shareholders, members or limited partners, attorneys, accountants, financial and other advisers, and other agents and representatives, including, in the case of any Stockholder, any designee nominated for election to the Board or a committee thereof by such Stockholder.

“Sale of the Company” means, in any one or more related transactions, a merger (other than a merger solely for the purpose of forming a holding company with no change in indirect ownership or to effect a change in the Company’s state of incorporation), business combination or sale of all or substantially all of the Company’s assets, in each case, as a result of which the Directors immediately prior to such transaction do not represent a majority of the Board immediately following the consummation of such transaction (or series of transactions), or the stockholders of the Company immediately prior to such transaction do not, immediately following the consummation of such transaction (or series of transactions), continue to own equity securities representing more than 50% of the vote and of the equity of the Company, of the ultimate controlling Person (in the case of a merger or business combination) or Person succeeding to ownership of all or substantially all of the Company’s assets (in the case of a sale of assets).

“Secondary Indemnitors” has the meaning assigned to such term in Section 4.16.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Specified Indemnitee” has the meaning set forth in Section 4.16.

“Stockholder” means each of Holding LLC and the FTI Stockholders.

“Subsidiary” means, with respect to any Person, (i) any corporation of which a majority of the securities entitled to vote generally in the election of directors thereof, at the time as of which any determination is being made, or a majority of the economic interests in such Person’s equity, are owned by such Person, either directly or indirectly, and (ii) any joint venture, general or limited partnership, limited liability company or other legal entity in which such Person is the record or beneficial owner, directly or indirectly, of a majority of the voting or equity interests or of which such Person is the general partner or managing member.

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 “Transfer” means, directly or indirectly, to sell, transfer, assign, hypothecate or similarly dispose of (by merger, operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to, the sale, transfer, assignment, hypothecation or similar disposition of (by merger, operation of law or otherwise), any shares of Equity Securities beneficially owned by a Person.

“Transferee” means any Person to whom any Stockholder or any transferee thereof Transfers Equity Securities in accordance with the terms hereof.

“Voting Securities” means at any time the then-issued and outstanding Common Stock and any other securities of the Company of any kind or class having power generally to vote for the election of Directors.

Section 1.2   Other Definitional Provisions. Unless otherwise expressly provided, for the purposes of this Agreement, the following rules of interpretation shall apply:

(a)When a reference is made in this Agreement to an article or a section, paragraph, exhibit or schedule, such reference will be to an article or a section, paragraph, exhibit or schedule hereof unless otherwise clearly indicated to the contrary.

(b)Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.”

(c)The words “hereof,” “herein” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement.

(d)The meaning assigned to each term defined herein will be equally applicable to both the singular and the plural forms of such term, and words denoting any gender will include all genders. Where a word or phrase is defined herein, each of its other grammatical forms will have a corresponding meaning.

(e)A reference to any period of days will be deemed to be to the relevant number of calendar days, unless otherwise specified.

(f)The word “dollars” and symbol “$” mean U.S. dollars.

(g)References herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and assigns.

(h)The word “or” shall be disjunctive but not exclusive.

(i)The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any provisions hereof.

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(j)Any statute or rule defined or referred to herein or in any agreement or instrument that is referred to herein means such statute or rule as from time to time amended, modified or supplemented, including by succession of comparable successor statutes or rules and references to all attachments thereto and instruments incorporated therein.

ARTICLE II

CORPORATE GOVERNANCE

Section 2.1    Board of Directors Matters.

(a)Board Size and Composition. Effective as of the Closing, in accordance with Section 3.02 of the Bylaws, the size of the Board has initially been fixed at seven Directors.

(b)Nomination of Directors. Subject to Section 2.1(e), each Stockholder agrees with the Company that it shall: (i) appear in person or by proxy at each annual meeting or special meeting of the stockholders of the Company at which Directors are to be elected for the purposes of obtaining a quorum; (ii) at each such stockholders’ meeting, vote, in person or by proxy, all of the Voting Securities owned by it on the date of such meeting in favor of election of the following designees nominated for election to the Board pursuant to this Section 2.1(b) and in accordance with the Bylaws and the nomination procedures of the Company; and (iii) in any action by written consent of the holders of Voting Securities for the purpose of electing Directors, consent to election of the following designees nominated for election to the Board pursuant to this Section 2.1(b) and in accordance with the Bylaws and the nomination procedures of the Company:

(i)three (3) Persons (at least one (1) of whom shall be an independent director within the meaning of the NASDAQ listing standards) designated as nominees for election to the Board by Holding LLC;

(ii)three (3) Persons (at least one (1) of whom shall be an independent director within the meaning of the NASDAQ listing standards) designated as nominees for election to the Board by the FTI Nominating Committee; and

(iii)one (1) Person designated as a nominee for election to the Board (who shall be an independent director within the meaning of the NASDAQ listing standards) by Holding LLC with the prior written approval (not to be unreasonably withheld, conditioned or delayed) of the FTI Nominating Committee.

In the event that either Holding LLC or the FTI Nominating Committee fails to designate any nominee that it is entitled to designate pursuant to this Section 2.1(b), then the Company will provide written notice of such failure to Holding LLC or the FTI Nominating Committee, as applicable. If such failure is not cured within ten (10) Business Days following the transmission of such notice by the Company, then the Board will be entitled to designate a nominee for such position. The rights of each of Holdings LLC and the FTI Nominating Committee to designate nominees for election to the Board as set forth in this Section 2.1(b) are personal to each of Holdings LLC and the FTI Nominating Committee and may not be exercised by any Transferee, except that in the event Holding LLC no longer holds any Common Stock but its Affiliates continue to hold Common Stock Transferred by Holding LLC to such Affiliates (whether directly or by Transfers through other Affiliates of Holding LLC), and such rights have not been terminated pursuant to Section 2.1(e), the rights of Holdings LLC to designate nominees pursuant to this Section 2.1(b) may be exercised by the Affiliates of Holding LLC to which such Common Stock was Transferred.

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(c)Chairman and Vice Chairman of the Board. Matthew D. Rosen will be the initial Chairman of the Board and Holcombe T. Green, Jr. will be the initial Vice Chairman of the Board.

(d)Removal and Replacement; Vacancies.

(i)In the event that a vacancy is created at any time by (i) the death, disability, retirement, resignation or removal of any Director nominated for election to the Board pursuant to Section 2.1(b), or (ii) there is an increase in the size of the Board, which increase must be in increments of two (2) Directors, the Company, by action of the remaining Directors, shall, and the Stockholders agree with the Company to use their reasonable best efforts to cause the remaining Directors to, in the case of clause (i), fill the vacancy created thereby with a replacement nominee designated by the entity (i.e., either Holding LLC or the FTI Nominating Committee, as the case may be) that had designated such Director for nomination pursuant to Section 2.1(b) as promptly as practicable or, in the case of clause (ii), fill the vacancies created thereby as required to maintain the proportionate allocation of Directors contemplated by Section 2.1(b) above. In addition, if such vacant position had been held by a Person nominated under Section 2.1(b)(iii), then the nomination of the replacement nominee shall be subject to the prior written approval of the FTI Nominating Committee, in accordance with Section 2.1(b)(iii).

(ii)In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of any Director nominated for election to the Board pursuant to Section 2.1(b) and the remaining Directors have not caused the vacancy created thereby to be filled pursuant to Section 2.1(d)(i) by a new designee of the appropriate Person promptly after both Holding LLC and the FTI Nominating Committee have been notified of such vacancy, then in such case the Company shall take all such actions as and when requested by whichever of Holding LLC or the FTI Nominating Committee is entitled, pursuant to Section 2.1(b) to designate a Person to fill such vacancy (the “Designating Stockholder”), and each other Stockholder hereby agrees with the Company to vote, or act by written consent with respect to, all Voting Securities beneficially owned by it on the date of the relevant vote or action to act to fill the vacancy with a Person designated as a replacement by the Designating Stockholder in accordance with Section 2.1(b). Upon the written request of any Person having rights under Section 2.1(b), each other Stockholder agrees with the Company to vote, or act by written consent with respect to, all Voting Securities beneficially owned by it on the date of the relevant action to, remove any Director nominated by such Person for election to the Board pursuant to Section 2.1(b) and to elect any replacement Director designated for nomination by such Person pursuant to this Section 2.1(d).

(iii)Subject to Section 2.1(e), unless otherwise requested in writing by the Person entitled to nominate such Person for election to the Board under Section 2.1(b), no other Stockholder shall take any action to cause the removal of any Directors nominated by such Person for election to the Board pursuant to Section 2.1(b); provided, that any Director may be removed by the Board for Cause and, in such case, the resulting vacancy will be filled with a Person designated as a replacement by the Designating Stockholder in accordance with Section 2.1(b).

(iv)Any vacancy on the Board that results from the termination of rights of nomination pursuant to Section 2.1(e) may be filled by action of a majority of the Board, in accordance with the Bylaws and applicable nomination procedures of the Company.

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(e)Termination of Rights of Nomination.

(i)Upon such time as Holding LLC and its Affiliates cease to beneficially own, collectively, at least 20% of the number of shares of Common Stock they collectively beneficially own immediately following the Closing,Holding LLC shall cease to have the right to designate any nominee for election to the Board pursuant to Section 2.1(b).

(ii)Unless otherwise mutually agreed by Holding LLC and the FTI Nominating Committee, upon such time as the aggregate number of issued and outstanding shares of Common Stock beneficially owned by Marvin Rosen and Matt Rosen is less than that number of shares of Common Stock equal to 1.5% of the then issued and outstanding shares of Common Stock, the FTI Nominating Committee shall cease to have the right to designate any nominee for election to the Board pursuant to Section 2.1(b).

Section 2.2  Company Cooperation. The Company shall take such action as may be required under applicable Law, the Charter and the Bylaws (subject to such vote of the Board as may be required) (a) to cause the Board to consist of the number of Directors specified in Section 2.1(a) and (b) to cause one of the Directors to be appointed and serve as the Chairman of the Board and another of the Directors to be appointed and serve as the Vice Chairman of the Board in accordance with Section 2.1(c). The Company agrees to include in the slate of nominees to be voted upon by stockholders of the Company the Persons designated for nomination to the Board in accordance with Section 2.1(b). The Company agrees that no modification or amendment of the Charter or the Bylaws that is inconsistent with the provisions of this Agreement shall be effective without the approval of Holding LLC and the FTI Nominating Committee.

Section 2.3  FTI Nominating Committee. The FTI Nominating Committee will only take such actions under this Agreement as authorized in writing (email being sufficient), including the nomination of individuals for election to the Board by the FTI Nominating Committee pursuant to Section 2.1(b)(ii), by a majority of the FTI Nominating Committee.

Section 2.4  FTI Stockholders. Notwithstanding anything to the contrary herein, at such time as any Person shall cease to serve as an FTI Director for any reason, such Person shall no longer be an FTI Stockholder within the meaning of this Agreement and the rights and obligations of such Person under this Agreement shall terminate at such time. At such time as any Person shall be elected as an FTI Director such Person shall become an FTI Stockholder within the meaning of this Agreement but only upon execution and delivery, to the Company and Holding LLC, of a duly executed joinder to this Agreement in the form attached hereto as Exhibit A hereto or such other form approved by Holding LLC and the Company.

Section 2.5  Affiliate Transactions. Except for such transactions as are contemplated by agreements to which the Company is a party on the date hereof or to be entered into on the date hereof, any transaction between the Company or any Subsidiary of the Company, on the one hand, and a Stockholder or any Affiliate of such Stockholder, on the other, shall require the approval of a majority of the disinterested members of the Board.

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ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1    Representations and Warranties of the Company. The Company represents and warrants to each Stockholder as follows:

(a)the Company has all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder, and to consummate the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that the enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity; and

(b)the execution and delivery of this Agreement by the Company, the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby will not violate, conflict with or result in a breach, or constitute a default (with or without notice or lapse of time or both) under any provision of the Charter or Bylaws.

Section 3.2    Representations and Warranties of the Stockholders. Each Stockholder, severally and not jointly, represents and warrants, solely with respect to itself, to each other Stockholder and to the Company as follows:

(a)such Stockholder has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder, and to consummate the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by such Stockholder and constitutes a valid and binding obligation of such Stockholder enforceable against such Stockholder in accordance with its terms, except to the extent that the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity; and

(b)the execution and delivery of this Agreement by such Stockholder, the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby will not violate, conflict with or result in a breach, or constitute a default (with or without notice or lapse of time or both) under any provision of its charter, bylaws or other similar organizational documents.

ARTICLE IV

MISCELLANEOUS

Section 4.1    Not A “Group”. The Stockholders and the Company acknowledge that the arrangements contemplated by this Agreement are not intended to constitute the formation of a Group. Each Stockholder agrees that, for purposes of determining beneficial ownership of such Stockholder, it shall disclaim any beneficial ownership by virtue of this Agreement of the Company’s securities owned by the other Stockholders, and the Company agrees to recognize such disclaimer in its Exchange Act and Securities Act reports.

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Section 4.2    Termination. This Agreement shall terminate upon the earliest of (a) a Sale of the Company or (b) the date on which the rights of Holding LLC or the FTI Nominating Committee pursuant to Section 2.1(b) to nominate individuals for election to the Board have terminated in accordance with the terms of Section 2.1(e); provided, however, that, notwithstanding anything in this Section 4.2 to the contrary, the rights and obligations of any particular Stockholder (other than an FTI Stockholder) under this Agreement shall terminate on the date on which such Stockholder no longer beneficially owns any Equity Securities; provided, further, that, notwithstanding anything in this Section 4.2 to the contrary, the termination of the rights and obligations of any Person who ceases to serve as an FTI Director for any reason shall be governed by Section 2.4.

Section 4.3    Confidentiality. Each Stockholder agrees with the Company to, and agrees with the Company to use commercially reasonable efforts to cause its Representatives to, keep confidential and not divulge any Information; provided, however, that nothing herein shall prevent any Stockholder from disclosing such Information (a) upon the order of any court or administrative agency, (b) upon the request or demand of any regulatory agency or authority having jurisdiction over such Stockholder or Representative, (c) to the extent required by Law or legal process or required or requested pursuant to subpoena, interrogatories or other discovery requests, (d) to the extent necessary in connection with the exercise of any remedy hereunder, (e) to other Stockholders, or (f) to such Stockholder’s Representatives that in the reasonable judgment of such Stockholder need to know such Information; provided, further, that, in the case of clause (a), (b) or (c), such Stockholder shall notify the Company of the proposed disclosure as far in advance of such disclosure as reasonably practicable and, if requested by the Company, use commercially reasonable efforts (but at the sole expense of the Company) to ensure that any Information so disclosed is accorded confidential treatment, when and to the extent available.

Section 4.4    Amendments and Waivers. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement shall be effective without the approval of the Company, Holding LLC and the FTI Nominating Committee; provided, however, that (a) this Agreement may not be amended, modified or waived in any manner adversely affecting the rights or obligations of any Stockholder without the prior written consent of such Stockholder, (b) no amendment, modification or waiver to Section 2.1 (directly or by amendment of the definitions used therein) shall adversely affect the rights of Holding LLC or the FTI Nominating Committee to designate nominee(s) for election to the Board in accordance with this Agreement without the consent of Holding LLC or the FTI Nominating Committee, as the case may be, (c) amendment, modification or waiver of this Section 4.4 shall require the prior written consent of each Stockholder, and (d) any Stockholder may terminate or waive (in writing) the benefit of any provision of this Agreement with respect to itself for any purpose.

Section 4.5    Successors, Assigns and Transferees. Except as expressly set forth herein, this Agreement shall bind and inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.

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Section 4.6    Notices. All notices and other communications to be given to any party hereunder shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service, or when received in the form of an email or other electronic transmission (receipt confirmation requested), and shall be directed to the address set forth below (or at such other address or email address as such party shall designate by like notice):

if to the Company, to:

Fusion Connect, Inc.

420 Lexington Avenue, Suite 1718

New York, New York 10170

Attention: James P. Prenetta, Jr. Executive Vice President and General Counsel

Email: jprenetta@fusionconnect.com

if to any Stockholder, to the address of such Stockholder as shown in Schedule I hereto.

Section 4.7    Further Assurances. At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.

Section 4.8    Entire Agreement; Third Party Beneficiaries. Except as otherwise expressly set forth herein, this Agreement embodies the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, that they may have related to the subject matter hereof in any way. This Agreement is not intended to confer in or on behalf of any Person not a party to this Agreement any rights, benefits, causes of action or remedies with respect to the subject matter or any provision thereof.

Section 4.9    Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character on the part of any party hereto of any breach, default or noncompliance under this Agreement or any waiver on such party’s part 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, by Law, or otherwise afforded to any party, shall be cumulative and not alternative.

Section 4.10    Governing Law. This Agreement will be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts made and to be performed within the State of Delaware, without giving effect to conflicts of law rules that would require or permit the application of the Laws of another jurisdiction.

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Section 4.11    Specific Performance; Jurisdiction.

(a)The parties agree that irreparable damage would occur for which money damages would not suffice in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that the parties would not have any adequate remedy at law. It is accordingly agreed that any non-breaching party shall be entitled to seek an injunction, temporary restraining order or other equitable relief exclusively in the Delaware Court of Chancery enjoining any such breach and enforcing specifically the terms and provisions hereof, or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, in the United States District Court for the District of Delaware or another court sitting in the state of Delaware. Each party agrees not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such party under this Agreement. The provisions of this Section 4.11(a) are in addition to any other remedy to which any party is entitled at law, in equity or otherwise.

(b)Each of the parties hereto irrevocably agrees that any legal action or proceeding in connection with or with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be brought and determined exclusively in the Delaware Court of Chancery, or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, in the United States District Court for the District of Delaware or another court sitting in the state of Delaware. The parties hereto further agree that any dispute between the parties regarding the approval by the FTI Nominating Committee of any Person designated by Holding LLC pursuant to Section 2.1(b)(iii) will be submitted to the Delaware Court of Chancery with a request to rule on an expedited basis. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action in connection with or relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding in connection with or with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to serve in accordance with this Section 4.11, (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by the applicable Law, any claim that (A) the suit, action or proceeding in such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.

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(c)Each of the parties hereto irrevocably consents to the service of any summons and complaint and any other process in any other action in connection with or relating to this Agreement, on behalf of itself or its property, by the personal delivery of copies of such process to such party or by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Section 4.6. Nothing in this Section 4.11 shall affect the right of any party hereto to serve legal process in any other manner permitted by Law.

Section 4.12    Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by applicable Law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each party (i) certifies and acknowledges that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver, and (ii) acknowledges that it understands and has considered the implications of this waiver and makes this waiver voluntarily, and that it and the other parties have been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this Section 4.12.

Section 4.13    Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 4.14    Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and will not affect the meaning or interpretation of this Agreement.

Section 4.15    Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. Signatures provided by electronic transmission in “pdf” or equivalent format will be deemed to be original signatures.

Section 4.16    Certain Indemnification Matters. The Company hereby acknowledges that an Indemnitee (as defined in the Charter) who is an officer, director, partner, member, manager, employee, managing director or Affiliate of, or a Director nominee pursuant to Section 2.1 of, a Stockholder (each such Indemnitee, a “Specified Indemnitee”) may have certain rights to indemnification, advancement of expenses and/or insurance pursuant to charter documents, constitutive agreements or other agreements with such Stockholder or Affiliates of such Stockholder or other Person (other than the Company and its Affiliates) of which such Specified Indemnitee is an officer, director, partner, member, manager, employee, managing director or Affiliate (collectively, the “Secondary Indemnitors”). In furtherance of the foregoing, the Company hereby covenants and agrees as follows:

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(a)The Company shall be the indemnitor of first resort for any claims or proceedings (collectively, “Covered Claims”) for which any Specified Indemnitee is entitled, under the Charter or otherwise, to indemnification by the Company (i.e., the Company’s obligations to each such Specified Indemnitee with respect to any Covered Claim are primary and any obligations of any Secondary Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any such Specified Indemnitee with respect Covered Claims are secondary).

(b)Subject to Sections 1 and 2of Article IXof the Charter, the Company shall pay the expenses (including attorneys’ fees and expenses) incurred by any Specified Indemnitee in defending any Covered Claim in advance of such Covered Claim’s final disposition, without regard to any rights any such Specified Indemnitee may have against any Secondary Indemnitor.

(c)The Company hereby irrevocably waives, relinquishes and releases each Secondary Indemnitor from any and all claims against such Secondary Indemnitor for contribution, subrogation or any other recovery of any kind in respect of any Covered Claim.

The Company further agrees that no advancement or payment by any Secondary Indemnitor on behalf of any such Specified Indemnitee with respect to any Covered Claim for which any such Specified Indemnitee has sought indemnification from the Company shall affect the foregoing and any such Secondary Indemnitor shall have a right of contribution and/or subrogation to the extent of such advancement or payment to all of the rights of recovery of such Specified Indemnitee against the Company. Any amendment, repeal or modification of this Section 4.16 shall not adversely affect any right or protection of a Specified Indemnitee or Secondary Indemnitor existing prior to such repeal or modification.

Section 4.17    Rights and Obligations of Transferees. No Stockholder shall Transfer any Equity Securities except in compliance with the Securities Act, the Charter (as defined in the Merger Agreement), any applicable state or foreign securities Laws and this Agreement, or if such Transfer would violate the Communications Act or FCC Regulations and such Stockholder has been so advised by the Company. Without limiting the generality of the foregoing, no such Transfer shall be made or recognized in the books and records of the Company if such Transfer would result in a violation of the Communications Act or FCC Regulations. Any Transfers in violation of this Agreement shall be null and void.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Stockholders’ Agreement to be executed effective as of the date set forth in the first paragraph hereof.

FUSION CONNECT, INC.

By:   /s/ James P. Prenetta, Jr.  

Name: James P. Prenetta, Jr.

Title: Executive Vice President and General Counsel

BCHI HOLDINGS, LLC

By:   /s/ Holcombe T. Green, Jr.  

Name: Holcombe T. Green, Jr.

Title: Manager

FTI STOCKHOLDERS:

By:   /s/ Marvin S. Rosen  

By:   /s/ Matthew S. Rosen  

By:   /s/ Philip D. Turits  

By: /s/ Michal J. Del Giudice  

By:   /s/ Jack Rosen  

By:   /s/ William Rubin  

By:   /s/ Paul C. O’Brien  

By:   /s/ Larry Blum  

EXHIBIT A

FORM OF JOINDER TO

STOCKHOLDERS’ AGREEMENT

This JOINDER to the Stockholders’ Agreement, dated as of __________, 2018 (the “Stockholders’ Agreement”), of Fusion Connect, Inc., a Delaware corporation (the “Company”), BCHI Holdings, LLC, a Georgia limited liability company (“Holding LLC”) and the other Persons set forth on Schedule I of the Stockholders’ Agreement (the “Initial FTI Stockholders”) is executed on behalf of the undersigned (“FTI Stockholder”), effective as of the date set forth on the signature page below, with reference to the following facts:

A.           Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Stockholders’ Agreement.

B.           FTI Stockholder is, as of the date set forth below, an FTI Director.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:

1.           Agreement to be Bound. FTI Stockholder hereby agrees that upon execution of this Joinder, FTI Stockholder shall become a party to the Stockholders’ Agreement as an “FTI Stockholder” and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Stockholders’ Agreement applicable to FTI Stockholder.

2.           Equity Securities. As of the date of this Agreement, the FTI Stockholder owns [INSERT AMOUNT AND TYPE OF COMPANY EQUITY SECURITIES OWNED BY STOCKHOLDER.]

3.           Counterparts. This Joinder may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement.

4.           Notices. For purposes of Section 4.6 of the Stockholders’ Agreement, all notices, demands or other communications to FTI Stockholder shall be directed to FTI Stockholder’s address set forth below FTI Stockholder’s signature below.

[Signature Page Follows]

IN WITNESS WHEREOF, Stockholder has executed this Joinder effective as of the date set forth below.

FTI STOCKHOLDER:

By:                                                                       

Name:                                                                       

Title:                                                                       

ADDRESS:

Date:                                                                       

EX-10.4

TRANSITION SERVICES AGREEMENT

by and among

FUSION CONNECT, INC.

(f/k/a Fusion Telecommunications International, Inc.

and

LINGO MANAGEMENT, LLC

dated as of

 May 4, 2018

TRANSITION SERVICES AGREEMENT

This Transition Services Agreement (this "Agreement"), dated as of May 4, 2018, is entered into by and between Fusion Connect, Inc. (f/k/a Fusion Telecommunications International, Inc.), a Delaware corporation with its principal place of business at 420 Lexington Avenue, Suite 1718, New York, NY 10170 (“Fusion”) and Lingo Management, LLC, a Georgia limited liability company with its principal place of business at 3060 Peachtree Road NW, Suite 1065, Atlanta, GA 30305 (“Lingo”). Each of Fusion and Lingo may be referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, Fusion, Fusion BCHI Acquisition, LLC (“Merger Sub”), and Birch Holdings, Inc. (“Birch Holdings”) have entered into that certain Agreement and Plan of Merger, dated August 26, 2017, as amended (the “Merger Agreement”), under the terms of which Merger Sub will merge with and into Birch Holdings, with Merger Sub being the survivor of that merger (the “Merger”);

WHEREAS, one of the conditions to closing the Merger is the requirement that Birch Communications, LLC (“Birch”), a wholly-owned subsidiary of Birch Holdings, spin-off to the existing shareholders of Birch Holdings, the Consumer/SMB Business; and

WHEREAS, in order to facilitate the transition of the Consumer/SMB Business to Lingo as well as to facilitate the transfer of the remaining business of Birch to Fusion (the “Birch Business/Cloud Business”), the Parties have agreed to provide the other Party with certain services, including administrative and support services, until such time as any remaining state approvals (as defined) are obtained, network facilities and other assets have been appropriately transferred, and the Parties can operate their respective businesses without the need for the services specified contemplated by this Agreement (collectively “Services”); and

WHEREAS, capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in the Merger Agreement.

NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth, the Parties hereby agree as follows:

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ARTICLE I.

SERVICES; SYSTEM MAINTENANCE; END USERS

Section 1.01Provision of Services.

(a)The Party providing any Services (the “Providing Party”) agrees to use commercially reasonable efforts to provide, or to cause its one or more of its subsidiaries to provide, the Services set forth on the exhibits attached hereto (as such exhibits may be amended or supplemented pursuant to the terms of this Agreement, collectively, the "Service Schedules") to the Party receiving the Services (the “Receiving Party”) for the respective periods and on the other terms and conditions set forth in this Agreement and in the respective Service Schedules. As used in this Agreement and the Service Schedules when describing the rights and obligations of the Providing Parties, the “Providing Parties” shall include the Providing Parties and its subsidiaries.

(b)Notwithstanding the contents of the Service Schedules, the Providing Parties agree to respond in good faith to any reasonable request by the Receiving Parties for access to any additional services that are necessary for the operation of their business and which are not currently contemplated in the Service Schedules, at a price to be agreed upon after good faith negotiations between the Parties. Unless otherwise agreed to by the Parties, any such additional services so provided by the Providing Parties shall constitute Services under this Agreement and be subject in all respect to the provisions of this Agreement as if fully set forth on a Service Schedule as of the date hereof.

(c)The Providing Party shall ensure that all personnel who provide Services hereunder on its behalf have appropriate professional, technical, and skills, training, and experience to enable them to perform their duties in an efficient manner. Each Providing Party shall make commercially reasonable efforts to provide sufficient staffing to enable the Services to be performed in accordance with this Agreement and shall reasonably maintain the continuity of the personnel assigned to perform the Services hereunder. Any replacement personnel shall have substantially equivalent or better qualifications than the personnel being replaced.

(d)The Parties acknowledge the transitional nature of the Services. Accordingly, as promptly as practicable following the execution of this Agreement, the Receiving Parties agree to use commercially reasonable efforts to make a transition of each Service to its own internal organization or to obtain alternate third-party sources to provide the Services so that the Services are transitioned no later than the respective expiration dates in the Service Schedules.

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(e)In the event and to the extent that there is an inconsistency between the terms of this Agreement and the Service Schedules, the Service Schedules shall govern.

Section 1.02Standard of Service.TheProviding Partyrepresents, warrants and agrees with the Receiving Party that the Services shall be provided in a professional and workmanlike manner with promptness and diligence in accordance with the requirements of this Agreement and applicable law and, except as specifically provided in the Service Schedules, in a manner generally consistent with the historical provision of the Services and with at least the same standard of care as historically provided in connection with its business.

Section 1.03Disclaimer of Warranties. Except as expressly contemplated by Section 1.02 or set forth in any contract entered into hereunder, including in any Service Schedules or attachment thereto, each Party provides the Services on an as-is and where-is basis, using commercially reasonable efforts, and makes no representations and warranties of any kind, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE, OF ANY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY EACH PARTY ARE HEREBY EXCLUDED AND DISCLAIMED. The Receiving Parties acknowledge and agree that this Agreement does not create a fiduciary relationship, partnership, joint venture or relationships of trust or agency between the Parties and that all Services are provided by the Providing Parties as independent contractors. To further clarify the foregoing, wherever this Agreement or any schedule states that the Providing Parties shall provide a particular Service or function, or perform or fulfill a particular obligation, or make something available, the Providing Parties shall do so using commercially reasonable efforts, and shall neither guarantee nor insure any particular result.

Section 1.04Third-Party Service Providers. It is understood and agreed that the Providing Parties have been retaining, and will continue to retain, third-party service providers to provide some of the Services to the Receiving Parties. In addition, the Providing Parties shall have the right to hire other third-party subcontractors to provide all or part of any Service hereunder. The Providing Parties shall in all cases retain responsibility for the provision to the Receiving Parties of Services to be performed by any third-party service provider or subcontractor or by the Receiving Party’s subsidiaries. Notwithstanding the foregoing, (a) in all cases where a Party changes its then-current practice from either (i) providing a Service itself to providing it through a third-party, or (ii) providing it by one third-party to another third-party, it shall promptly notify the other Party of such change, and (b) the Providing Parties will disallow the new or continued Services of any of the Providing Parties of its third-party subcontractors upon a showing of reasonable cause and no undue hardship to the Providing Parties.

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Section 1.05Extension of Services. The Parties agree that the Providing Parties shall not be obligated to perform any Service after the applicable end date (the “End Date”) specified for that Service in the applicable Service Schedule; provided, however, that if the Receiving Parties desire and the Providing Parties agree to continue to perform any of the Services after the applicable End Date, the Parties shall negotiate in good faith to determine an amount that compensates the Providing Parties for its on-going provision of such Services. The Services so performed by the Providing Parties after the applicable End Date shall continue to constitute Services under this Agreement and be subject in all respects to the provisions of this Agreement for the duration of the agreed-upon extension period.

Section 1.06Terminated Services. Upon termination or expiration of any or all Services pursuant to this Agreement, or upon the termination of this Agreement in its entirety, the Providing Parties shall have no further obligation to provide the applicable terminated Services and the Receiving Parties will have no obligation to pay any future compensation or out-of-pocket costs relating to such Services (other than for or in respect of Services already provided in accordance with the terms of this Agreement and received by the Receiving Parties prior to such termination), or Services provided by the Providing Parties at the Receiving Parties’ request after such termination.

Section 1.07

(a) Access to Premises and Assets. In order to enable the provision of the Services by the Providing Parties, the Receiving Parties agree that for a period of six (6) months after the execution of this Agreement, that they shall provide to the Providing Parties and each of their subsidiaries' employees and any third-party service providers or subcontractors who provide Services, at no cost to the Providing Parties, access to the facilities in all cases only upon prior written notice during normal business hours to the extent necessary for the Providing Parties to fulfill each of its obligations under this Agreement. Notwithstanding the above, prior written notice shall not be required for the Providing Party to grant access to those employees of the Receiving Party who work on a day to day basis in the Providing Party’s premise during normal business hours. All third-party subcontractors shall at all times be under the direct supervision of a supervisory-level employee of the Providing Parties. The Providing Parties’ access to facilities of the other Party shall at all times be subject to the approval and direction of the senior executive officer of the Receiving Parties then present at the facilities. The Parties agree that the Providing Parties will indemnify, defend and hold harmless, the Receiving Parties for any third party claims resulting from bodily injury or property damage incurred by the Receiving Parties employees, third party service providers or subcontractors who are granted access to the premises of the Providing Party

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(b) Access to Books and Records. In order to enable the provision of the Services by the Providing Parties, the Receiving Parties agree that for a period of thirty six (36) months after execution of this Agreement, they shall provide to the Providing Parties and each of their respective subsidiaries' employees and any third-party service providers or subcontractors retained by such Party to review billing matters on its behalf, at no cost to the Providing Parties, access to the books and records of the other Party relevant to the Services in question along with the underlying details and invoices for the Services provided by the Providing Party pursuant this Agreement.

Section 1.08System Maintenance. In the event that a Providing Party determines that it is necessary to interrupt Services or that there is a potential for Services to be interrupted for the performance of system maintenance (“Planned Interruption”), the Providing Party will use good-faith efforts to notify the Receiving Party prior to the performance of such maintenance and will schedule such maintenance during non-peak hours (midnight to 6 a.m. local time). In no event shall the Planned Interruption for system maintenance constitute a failure of performance by the Providing Party.

ARTICLE II. 

COMPENSATION

Section 2.01Responsibility for Wages and Fees. Except as otherwise contemplated in a schedule to this Agreement, for such time as any employees of the Providing Parties or any of its subsidiaries are providing the Services to the Receiving Parties under this Agreement, (a) such employees will remain employees of the Providing Parties or such subsidiaries, as applicable, and shall not be deemed to be employees of the Receiving Parties for any purpose, (b) the Providing Parties or such subsidiaries, as applicable, shall be solely responsible for the payment and provision of all wages, bonuses and commissions, employee benefits, including severance and worker's compensation, and the withholding and payment of applicable taxes relating to such employment, and (c) the Providing Parties shall retain the sole and exclusive right to manage said employees, including but not limited to the ability and right to hire, terminate, promote, demote and/or discipline said employees.

Section 2.02Terms of Payment and Related Matters.

(a)As consideration for provision of the Services, the Receiving Parties shall pay the Providing Parties the amount specified for each Service on such Service's respective Service Schedule. For any costs incurred for Services that are not already set forth in any Service Schedule, in the event that the Providing Parties or any of their subsidiaries incur pre-approved (where possible) reasonable and documented expenses necessary to provide any Service, including, without limitation payments to third-party service providers or subcontractors retained in accordance with Section 1.04 (such included expenses, collectively, "Additional Costs"), the Receiving Parties then shall reimburse the Providing Parties for all such Additional Costs in accordance with the invoicing procedures set forth in ‎Section 2.02(b).

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(b)As more fully provided in the Service Schedules and subject to the terms and conditions therein:

(i)the Providing Parties shall provide, no later than ten (10) days after the end of each calendar month, the Receiving Parties, in accordance with ‎Section 6.01 of this Agreement, with monthly invoices dated the first of each month ("Invoices"), which shall set forth in reasonable detail, for each Service covered by a Service Schedule, with such supporting documentation as the Receiving Parties may reasonably request with respect to any out-of-pocket costs incurred on behalf of the other Party, amounts payable under this Agreement; and

(ii)unless otherwise provided for in the schedules hereto, payments pursuant to this Agreement shall be made within thirty (30) days of the date of an Invoice.

(c)The Providing Parties reserve the right to charge interest on any amount not paid by the Receiving Parties by the due dates set forth herein that is not being contested by the Receiving Parties in good faith at a rate of one and one-half percent (1-1/2%) per month. Such interest shall accrue from the thirty-first (31th) day after the original Invoice due date through the date payment is made.

Section 2.03Invoice Disputes. The Receiving Party may raise a good faith dispute with respect to an Invoice by delivering a written statement to the Providing Party within ninety (90) days of the Receiving Party’s receipt of the applicable Invoice. To be valid, the required written statement must include a reasonably detailed description of each disputed item. Amounts not disputed within such ninety (90) day period shall be deemed accepted. In the event that the Receiving Party raises a good faith dispute prior to the due date of the applicable Invoice and submits the required written statement, the Receiving Party may withhold the disputed amount from the applicable Invoice payment and pay solely the undisputed balance The Parties shall seek to resolve all such disputes expeditiously and in good faith. Parties shall seek to resolve all such disputes expeditiously and in good faith. All undisputed portions of invoices shall be paid notwithstanding any dispute. Any disputed amounts resolved in favor of a disputing Party shall be credited to that Party’s account on the next Invoice following resolution of the dispute. Any dispute arising out of or relating to this Agreement that has not been resolved by the good-faith efforts of the Parties shall be settled pursuant to Section 2.04 of this Agreement.

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Section 2.04Mandatory Arbitration of Disputes. ANY BILLING DISPUTE OF ANY KIND BETWEEN THE PARTIES, WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION AS PRESCRIBED IN THIS SECTION. THE FEDERAL ARBITRATION ACT, NOT STATE LAW, WILL GOVERN THIS PROCESS. The arbitration will be conducted by and under the then-applicable commercial arbitration rules of the American Arbitration Association (“AAA”) through the AAA Case Management Center located in Washington, DC or other location as may be mutually agreed by Parties. A single neutral arbitrator engaged in the practice of law will conduct the arbitration. The arbitrator will be selected according to the rules of the AAA or, alternatively, may be selected by agreement of the Parties, who will cooperate in good faith to select the arbitrator. All expedited procedures prescribed by the applicable rules will apply. All required fees and costs will be paid equally by the Parties as set forth in the AAA commercial arbitration rules. The arbitrator’s decision and award will be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court with jurisdiction.No dispute may be joined with another lawsuit, claim, dispute, or arbitration brought by any other person. The arbitrator may not award punitive damages. If any Party files a judicial or administrative action to resolve a billing dispute without first complying with the provisions of this Section and another Party successfully stays such action and/or compels arbitration, the Party filing that judicial or administrative action must pay the other Party’s costs and expenses incurred in seeking such stay and/or compelling arbitration, including attorney’s fees.

Section 2.05No Right of Setoff. Each of the Parties hereby acknowledges that it shall have no right under this Agreement to offset any amounts owed (or to become due and owing) to the other Party, whether under this Agreement, or otherwise, against any other amount owed (or to become due and owing) to it by the other Party.

Section 2.06Taxes. The Receiving Parties shall be responsible for all fees, taxes or surcharges properly assessed by regulatory or Governmental Entities on the Services or amounts due or payable under this Agreement (excluding taxes on the Providing Party’s net income), including but not limited to gross receipts taxes, surcharges, franchise fees, business licenses, occupational, excise, universal service fund, and other taxes (and penalties and interest thereon), which shall be passed through to the Receiving Party. Upon written request, the Providing Party will furnish documentation to support the fees or charges payable by the Receiving Party pursuant to this Section.

Section 2.07Additional Assurances. If at any time during the term of this Agreement there is a material and adverse change in a Party’s financial condition, business prospects or payment history, the invoicing Party may demand a security deposit or increase the amount of the Security Deposit, as the case may be, as security for the full and faithful performance of the terms, conditions, and covenants of this Agreement; provided, however, in no event shall the amount of the security deposit exceed 45 days’ estimated or actual usage charges, monthly recurring charges, and/or other amounts payable by the Receiving Party to the Providing Party hereunder.

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ARTICLE III.

LIMITATION OF LIABILITY; INDEMNIFICATION

Section 3.01Limitation on Liability. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, ) ARISING OUT OF OR RELATING TO A BREACH OF THIS AGREEMENT ANDWHETHER BASED ON STATUTE, CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT ARISING FROM THE OTHER PARTY'S SOLE, JOINT, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, CRIMINAL LIABILITY OR OTHER FAULT .. FURTHERMORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, EITHER IN CONTRACT OR IN TORT, FOR PROTECTION FROM UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER DATA FILES NOT CONTROLLED BY THE OTHER PARTY. In no event shall the Providing Parties’ aggregate liability for direct damages to the Receiving Party that arise out of or are related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed $10,000.00; except insofar as liability is predicated on the Providing Parties’ gross negligence or willful misconduct.

Section 3.02Indemnity. Each Party hereby agrees to defend, indemnify and hold the other Party and its Representatives, from and against any and all losses, liabilities, claims, litigation, damages, penalties, actions, demands and expenses incurred by such Party and arising out of this Agreement to the extent attributable solely to: (i) the gross negligence or wilful misconduct of such Party, (ii) the performance or non-performance of such Party’s obligations under this Agreement, or (iii) the negligence of such Party in its performance or non-performance of its obligations under this Agreement. This obligation to indemnify shall include reasonable attorneys’ fees and investigation costs and all other reasonable costs, expenses and liabilities incurred by a Party or its counsel from the first notice that any claim or demand is to be made or may be made.

Section 3.03Indemnification Procedures. The Party seeking indemnification under this Section must: (a) promptly notify the other Party in writing of any claim, and in connection with third party claims: (a) give the indemnifying Party full and complete authority to resolve the matter, and (b) provide information and assistance for the claim’s defense; provided further, in the event of third party claims, the indemnifying Party will retain the right, at its option, to settle or defend the claim, at its own expense and with its own counsel and will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying Party will retain sole control of the claim’s settlement or defense. To be indemnified under this Section, the Party seeking indemnification must not by any act, including any admission or acknowledgement, materially impair or compromise a claim’s defence.

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Section 3.04Survival. The indemnification obligations and covenants of this Article III shall survive the termination of this Agreement provided that the indemnified Person provides notice to the indemnifying Party of any claim for indemnification under this Agreement in writing setting forth the specific claim and the basis therefore in reasonable detail prior to the six (6) month anniversary of such date of termination.

Section 3.05Special Indemnity – Shared Agreements. Each Party recognizes that there are instances in which both Parties and/or their respective subsidiaries or affiliates are utilizing shared services performed by a third party provider. The Parties acknowledge that in these instances each Party is obligated to pay the portion of the invoice for the services procured by such Party from the third party provider under the respective agreement. If a Party fails to pay its portion of the invoice (whether to the third party provider or other Party receiving the shared service) by the invoice due date, such Party shall be required to indemnify the other Party for any amounts paid by the other Party on the nonpaying Party’s behalf. The Parties agree that all indemnity obligations shall be satisfied within five (5) days of receipt of written demand for payment with all payments being made via electronic transfer of available funds. Nothing in this Section 3.05 shall prevent a Party from reserving its rights to dispute any invoice or payment.

ARTICLE IV. 

TERMINATION

Section 4.01Termination of this Agreement. Subject to ‎Section 4.04, this Agreement shall terminate in its entirety (i) on the date upon which the Providing Parties shall have no continuing obligation to perform any Services as a result of each of their expiration or termination in accordance with ‎Section 4.02, or (ii) in accordance with ‎Section 4.02.

Section 4.02Breach. Except as otherwise set forth in a Service Schedule,any Party (the "Non-Breaching Party") may terminate this Agreement with respect to any Service, in whole but not in part, at any time upon prior written notice to the other Party (the "Breaching Party") if the Breaching Party has failed (other than pursuant to ‎Section 4.05) to perform any of its material obligations under this Agreement relating to such Service, and such failure shall have continued without cure for a period of thirty (30) days (ten (10) days for non-payment by the Receiving Parties, provided that the Receiving Parties shall not be entitled to cure a non-payment breach more than once) after receipt by the Breaching Party of a written notice of such failure from the Non-Breaching Party seeking to terminate such Service. For the avoidance of doubt, non-payment by the Receiving Parties for a Service provided by the Providing Parties in accordance with this Agreement that is not the subject of a good-faith dispute shall be deemed a breach for purposes of this ‎Section 4.02.

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Section 4.03Insolvency. In the event that either Party or one or more of its subsidiaries shall (i) file a petition in bankruptcy, (ii) become or be declared insolvent, or become the subject of any proceedings (not dismissed within sixty (60) days) related to its liquidation, insolvency or the appointment of a receiver, (iii) make an assignment on behalf of all or substantially all of its creditors, or (iv) take any corporate action for its winding up or dissolution, then the other Party shall have the right to terminate this Agreement by providing written notice in accordance with ‎Section 6.01.

Section 4.04Effect of Termination. Upon termination of this Agreement in its entirety pursuant to ‎Section 4.01, all obligations of the Parties shall terminate, except for the provisions of Article III, ‎Article V and VIand Section 3.05, which shall survive any termination or expiration of this Agreement.

Section 4.05Force Majeure. The obligations of the Providing Parties under this Agreement with respect to any Service shall be suspended during the period and to the extent that the Providing Parties are prevented or hindered from providing such Service, or the Receiving Parties are prevented or hindered from receiving such Service, due to any of the following causes beyond such Party's reasonable control (such causes, "Force Majeure Events"): (i) acts of God, (ii) flood, fire or explosion, (iii) war, invasion, riot or other civil unrest, (iv) governmental order or law, (v) actions, embargoes or blockades in effect on or after the date of this Agreement, (vi) action by any governmental entity, (vii) national or regional emergency, (viii) strikes, labor stoppages or slowdowns or other industrial disturbances, (ix) shortage of adequate power or transportation facilities, or (x) any other similar event which is beyond the reasonable control of such Party. The Party suffering a Force Majeure Event shall give notice of suspension as soon as reasonably practicable to the other Party stating the date and extent of such suspension and the cause thereof, and the Providing Parties shall resume the performance of each of its obligations as soon as reasonably practicable after the removal of the cause. Neither the Receiving Parties nor the Providing Parties shall be liable for the nonperformance or delay in performance of its respective obligations under this Agreement when such failure is due to a Force Majeure Event. The applicable End Date for any Service so suspended shall be automatically extended for a period of time equal to the time lost by reason of the suspension.

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ARTICLE V. 

CONFIDENTIALITY; DATA PROTECTION

Section 5.01Confidentiality.

(a)During the term of this Agreement and thereafter, the Parties shall, and shall instruct, and take reasonable precautions to ensure that, they and their respective officers, directors, managers, members, shareholders, employees, agents, third-party contractors and other representatives (collectively, “Representatives”) to, maintain in confidence and not disclose the other Party's financial, technical, sales, marketing, development, personnel, and other information, records, or data, including, without limitation, customer lists, supplier lists, trade secrets, designs, product formulations, product specifications or any other proprietary or confidential information, however recorded or preserved, whether written or oral (any such information, "Confidential Information"). This Agreement and all schedules, exhibits and annexes attached hereto, and the Parties’ non-public performance thereof, shall be deemed Confidential Information. Each Party shall use the same degree of care, but no less than reasonable care, to protect the other Party's Confidential Information as it uses to protect its own Confidential Information of like nature. Unless otherwise authorized in any other agreement between the Parties, any Party receiving any Confidential Information of the other Party (the “Recipient”) may use Confidential Information only for the purposes of fulfilling its obligations under this Agreement (the "Permitted Purpose"). The Recipient may disclose such Confidential Information only to its Representatives who have a need to know such information for the Permitted Purpose and who have been advised of the terms of this ‎Section 5.01 and the Recipient shall be liable for any breach of these confidentiality provisions by such persons; provided, however, that any Recipient may disclose such Confidential Information to the extent such Confidential Information is required to be disclosed by an order issued by, or a rule or regulation of, a Governmental Entity (“Governmental Order”), and, in the case of an order issued by a Governmental Entity, the Recipient shall promptly notify, to the extent legally permitted, the disclosing Party (the "Disclosing Party"), and take (at the expense of the Disclosing Party) reasonable steps to assist in contesting such Governmental Order or in protecting the Disclosing Party's rights prior to disclosure, and in which case the Recipient shall only disclose such Confidential Information that it is advised by its counsel it is legally bound to disclose under such Governmental Order.

(b)Notwithstanding the foregoing, Confidential Information shall not include any information that the Recipient can demonstrate: (i) was publicly known at the time of disclosure to it or its Representatives, or has become publicly known through no act of the Recipient or its Representatives in breach of this ‎Section 5.01; (ii) was rightfully received from a third party without a duty of confidentiality; or (iii) was developed by it or its Representatives without any reliance on the Confidential Information.

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(c)Within five (5) days written demand by the Disclosing Party at any time, or upon expiration or termination of this Agreement with respect to any Service, the Recipient agrees promptly to return or destroy, at its option, all Confidential Information. If such Confidential Information is destroyed, an authorized officer of the Receiving Party shall certify as to such destruction.

(d)Because money damages may be insufficient in the event of a breach or threatened breach of this Section 5.01, the affected Party may be entitled to seek an injunction or restraining order in addition to such other rights or remedies as may be available under this Agreement, at law or in equity, including but not limited to money damages.

Section 5.02Data Ownership and Protection. Notwithstanding anything to the contrary, all data or information provided by, accessed from or through a Party and all data resulting from the other Party processing or aggregation of any such data or performing Services for the other Party is, or will be, and will remain, the property of such Party, and will be deemed Confidential Information of such Party. Both Parties shall employ adequate and commercially reasonable, industry standard physical and software security measures to maintain the security (and prevent the disclosure) of any Confidential Information of the other Party in its possession and adhere to applicable policies relating to security of and access to Confidential Information of the other Party as may be communicated by the other Party from time to time.

ARTICLE VI. 

 MISCELLANEOUS

Section 6.01Notices. All Invoices, 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); or (c) on the third (3rd) 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 6.01):

(a) if to Lingo:

Lingo Management, LLC

3060 Peachtree Road NW, Suite 1065,

Atlanta, GA 30305

Attention: Vinnie Oddo

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with a copy to:

Lingo Management, LLC

3060 Peachtree Road NW, Suite 1065,

Atlanta, GA 30305                               

Attention: Michelle Ansley

(b) if to Fusion

Fusion Connect, Inc. (f/k/a Fusion Telecommunications International, Inc.)

420 Lexington Avenue, Suite 1718

New York, NY 10170

Attention: General Counsel

with a copy to:

Fusion LLC

695 Route 46 West, Suite 200

Fairfield, New Jersey 07004

Attention: Jon Kaufman

Section 6.02Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

Section 6.03Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Section 6.04Entire Agreement. This Agreement, including all Service Schedules, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.

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Section 6.05Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Subject to the following sentence, neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. Other than where consent is granted or deemed granted under this Section 6.05, no assignment shall relieve the assigning Party of any of its obligations hereunder. The foregoing notwithstanding, in the event of a transfer, directly or indirectly, sale of a controlling interest in, or the transfer, directly or indirectly, sale of all or substantially all of the assets of, Lingo and/or one or more of its subsidiaries, taken as a whole, the third-party acquiring such controlling interest in, or all or substantially all of such assets, must assume all obligations and responsibilities of the Party /or its subsidiaries under this Agreement.

Section 6.06No 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 any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

Section 6.07Amendment and Modification; Waiver. This Agreement and the schedules and exhibits attached hereto may only be amended, modified or supplemented by an agreement in writing signed by both Parties. No waiver by a Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 6.08Change in Law; Compliance with Law.

(a)This Agreement is subject to all present and future valid orders and regulations of any governmental or regulatory body having jurisdiction over the subject matter hereof and to the laws of the United States of America, any of its states, or any foreign governmental agency having jurisdiction over the Parties. In the event this Agreement shall be found contrary to or in conflict with any such order, rule, regulation, or law, the Parties agree to modify and amend this Agreement to the extent necessary to comply with any such order, rule, regulation, or law consistent with the form, intent, and purpose hereof.

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(b)In the event the Federal Communications Commission (“FCC”), Congress, a state legislature or regulatory body (such as a utilities commission) or a court of competent jurisdiction issues a rule, regulation, law or order that has the effect of increasing the cost to provide the Services hereunder or canceling, changing or superseding any material term or provision of this Agreement (each a “Regulatory Requirement”), then the Parties shall modify this Agreement in such a way as the Parties mutually agree is consistent with the form, intent, and purpose of this Agreement and is necessary to comply with the Regulatory Requirement. In the event the Parties fail to reach agreement on an amendment to reflect the Regulatory Requirement, then any Party may, to the extent practicable, terminate, in writing, that portion of this Agreement impacted by the Regulatory Requirement, or the entire Agreement.

(c)Each Party shall comply with all applicable laws, rules and regulations concerning the provision and use of the Services provided hereunder. Each Party represents and warrants that it has obtained, and will maintain at its own cost throughout the term of this Agreement, all certifications and other authorizations necessary for use and provision of the Services. No Party shall use the Services in a manner inconsistent with applicable law or use the Services, or permit the Services to be used, for any illegal purpose or in any unlawful manner. Any transmission of material in violation of any federal, state or local law, order or regulation is prohibited, and shall constitute grounds for termination of this Agreement.

Section 6.09Escalation Lists; Dispute Resolution; Governing Law; Submission to Jurisdiction.

(a)Escalation Lists. Within three (3) days of the date of this Agreement, the Providing Parties will provide to the Receiving Parties a written escalation contact list and associated escalation procedures (together, the “Escalation Procedures”). The Escalation Procedures will be designed to allow the rapid escalation and resolution of any “Service Affecting Issue” (as hereinafter defined) experienced by the Receiving Parties in their use (or their customers’ use) of the network and Services provided hereunder, and the Providing Parties will utilize reasonable commercial efforts to assure the resolution of any Service Affecting Issue within a period of twelve (12) hours or less (the “Escalation Period”) from the time such Service Affecting Issue is reported by the Receiving Parties to the Providing Parties. In the event that any Service Affecting Issue is not resolved to the reasonable satisfaction of the Providing Parties within the Escalation Period, then the Receiving Parties may immediately resort to any equitable remedies to which they are entitled under New York law as described in Section 6.09(c), without regard to the provisions of Section 6.09(a). The parties acknowledge that any service issues caused by underlying carrier network or circuit issues will be handled as provided for herein but do not give rise to equitable remedies as such issues are beyond the reasonable control of the Providing Parties.

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(b)Dispute Resolution.  Except with respect to a billing dispute, if at any time there is a dispute between the Parties regarding this Agreement and performance hereunder, and such dispute cannot be resolved pursuant to Subsection (a) above, the Parties agree that they will within ten (10) days following receipt of written notice of a dispute, engage in face-to-face negotiations in an attempt to resolve the dispute and shall, upon failing to negotiate a resolution, choose a mutually agreeable third party neutral, who shall mediate the dispute between the Parties. Mediation shall be non-binding and shall be confidential. The Parties shall refrain from court and arbitration proceedings during the mediation process insofar as they can do so without prejudicing their legal rights. The Parties shall participate in good faith in accordance with the recommendations of the mediator and shall follow the procedures for mediation as suggested by the mediator. All expenses of mediation except expenses of the individual Parties, shall be shared equally by the Parties. Each Party shall be represented in the mediation by a person with authority to settle the dispute. If the Parties are unable to resolve the dispute in good faith within three (3) months of the date of the initial demand by either Party then the dispute shall be finally determined in accordance with the procedures set forth in Section 6.09(c) below.

(c)Governing Law; Jurisdiction.  This Agreement shall be governed by and construed 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) that would cause the application of laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby 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 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. Notwithstanding the foregoing, either Party may seek equitable relief in any appropriate court of competent jurisdiction to enjoin violations or threatened violations, or compel specific performance of breaches or threatened breaches, of this Agreement for which there is no adequate remedy at law.

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Section 6.10Waiver of Jury Trial. Each 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 or the Services to be provided hereunder. Each Party certifies and acknowledges that (a) no Representative of the 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 6.10.

Section 6.11Interpretation. Any reference to this “Agreement” shall include the body of this Agreement together with all attachments hereto, including all Service Schedules. The terms defined in this Agreement include the plural as well as the singular. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection or other subdivision. The words “include” and “including” and the abbreviation “e.g.” shall not be construed as terms of limitation. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year. All fees, expenses, charges and other amounts stated in this Agreement are references to United States Dollars unless otherwise specifically indicated.

Section 6.12Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile or other electronic transmission), each of which shall be deemed an original but all of which together will constitute one and the same instrument. This Agreement, to the extent signed and delivered by means of a facsimile machine or by other electronic transmission of a manual signature (by portable document format (pdf) or other method that enables the recipient to reproduce a copy of the manual signature), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.

[signatures appear on the next page]

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

FUSION CONNECT, INC.

(f/k/a Fusion Telecommunications International, Inc.)

By /s/ James P. Prenetta, Jr.

Name: James P. Prenetta, Jr.

Title: Executive Vice President and

           General Counsel

LINGO MANAGEMENT, LLC

By /s/ Gordon P. Williams, Jr.

Name: Gordon P. Williams, Jr.

Title: Manager

EX-10.5

NON-SOLICITATION AND RIGHT OF FIRST REFUSAL AGREEMENT

This Non-Solicitation and Right of First Refusal Agreement (the “Agreement”), dated as of May 4,2018 (the “Effective Date”), is made and entered into by and between Fusion Connect, Inc. (f/k/a Fusion Telecommunications International, Inc.), a Delaware corporation (“Fusion”), and Lingo Management, LLC, a Georgia limited liability company (“Lingo”). Fusion and Lingo are sometimes hereinafter referred to collectively as the “Parties” and individually as a “Party.” Capitalized terms used in this Agreement and not otherwise defined shall have the meaning assigned to each such term in the Merger Agreement (as defined below).

WHEREAS, Fusion, Birch Communications Holdings, Inc., a Georgia corporation (“BCHI”), and Fusion BCHI Acquisition LLC, a Delaware limited liability company, previously entered into that certain Merger Agreement, dated as of August 25, 2017, as amended (the “Merger Agreement”); and

WHEREAS, as a condition to closing the Merger, BCHIwas obligated to spin-off its Consumer/SMB Business to BCHI Holding LLC, in accordance with the Merger Agreement and as further agreed by the Fusion and BCHI (the “Spin-Off”); and

WHEREAS, the Spin-Off was accomplished by BCHI through the formation of Lingo, the transfer of certain assets (including the stock of certain Subsidiaries of BCHI) to Lingo and the distribution of the membership interests in Lingo to BCHI Holding LLC; and

WHEREAS, the Parties acknowledge that the execution of this Agreement is a condition precedent to the closing of the Merger.

NOW, THEREFORE, in consideration of the covenants and mutual promises and agreements contained in this Agreement, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.           

Non-Solicitation.

a.           For a period of three (3) years from the Effective Date, each Party agrees that it will not, either directly or indirectly (including through its Affiliates (which, for purposes of this provision, does not include Fusion and its Subsidiaries)) or as an agent on behalf of, or in conjunction with any Person: (A) solicit for employment or in any way induce or attempt to induce to leave the employ of, or engagement by, the other Party, any individual who is, on the date of the solicitation or attempted inducement, a director, officer, employee or consultant to the other Party; or (B) induce or attempt to induce any Person who is a director, officer, employee or consultant to the other Party to leave the employ of, or terminate or breach their respective agreements with, the other Party, or in any other way deliberately interfere with the relationship between the other Party and any such Person; provided, however, that no general advertisement or general solicitation of employment not targeted to the directors, officers, employees or consultants of the other Party shall be deemed to be a solicitation of such Persons in violation of this Section; and provided further that the foregoing restrictions shall not apply to the hiring of employees by a Party from the other Party as contemplated by the terms of the Transition Services Agreement, date the date hereof, by and between Fusion and Lingo.

b.          In recognition of the various services to be performed by Lingo and Fusion for each other pursuant to the Transition Services Agreement of even date herewith, including the sharing of computer systems that include customer records (the period of time during which such sharing of systems and records continues being referred to herein as the “Shared Records Period”), each Party agrees that it will not, either directly or indirectly (including through Affiliates (provided, that for purposes of this Agreement, Lingo and its Subsidiaries are not deemed to be Affiliates of Fusion and its Subsidiaries)) or as an agent on behalf of, or in conjunction with any Person, during the Specified Period (as defined below), (A) solicit, attempt to solicit, or assist any other Person in soliciting or attempting to solicit, any customer of the other Party as of the date hereof or that is subsequently acquired by the other Party after the date of this Agreement and prior to the end of the Shared Records Period, or (B) take any action to deliberately interfere with the relationship between the other Party and any Person who is a lessor, licensor, customer, supplier, licensee or other business associate or relation of the other Party. As used hereinabove, Specified Period shall mean the period ending 24 months after the end of the Shared Records Period, but in no event ending later than the 3rd anniversary of the Effective Date.

2.           

Right of First Refusal.

a.          Until the sooner to occur of the 3rd anniversary of the Effective Date, or a Change of Control (defined below) as to Lingo, neither Lingo nor any of its Subsidiaries shall enter into a binding agreement with any third party that either owns or is the provider, either directly or indirectly, of communications services (whether regulated or unregulated) or cloud services, in each case to business customers (each such Person, a “Third Party”), relating to an Acquisition without first offering Fusion the opportunity to effect the Acquisition on the same economic terms as Lingo or its Subsidiary, as the case may be, is prepared to effect that Acquisition as reflected in a written letter of intent between Lingo or its Subsidiary, as applicable, and that Third Party. The offer to Fusion shall remain open for a period of twenty (20) days from Lingo’s submission of a copy of the offer to Fusion (the “Right of First Refusal Period”). The offer to Fusion shall set forth substantially all of the material terms of the proposed Acquisition that would be included in a customary letter of intent, including, but not limited to, price (including any earnouts our other contingent consideration), whether payable in cash or securities or other consideration, and whether the transaction is structured as a tax free transaction and, such offer shall be accompanied by a copy of any letter of intent signed by Lingo or its Subsidiary with the Third Party and, if available, the current draft of proposed agreement for the Acquisition. If, during the Right of First Refusal Period, Fusion elects to proceed with the Acquisition, for such election to be effective, it must include a confirmation that such acquisition is permitted under is credit facilities or that it has obtained an amendment or waiver in this regard. Upon such an election, Lingo, or its Subsidiary, as applicable, shall (i) advise the Third Party of Fusion’s election, (ii) assign any existing letter of intent to Fusion, (iii) provide Fusion with all applicable contact details for the Third Party and its counsel, if known, and (iv) forward Fusion any draft acquisition agreement. If, during the Right of First Refusal Period, Fusion elects not to proceed with the Acquisition, or fails to timely notify Lingo as to its election, Lingo or its Subsidiary, as the case may be, may proceed with the Acquisition on terms substantially consistent with the terms notified to Fusion. In the event that Lingo or its Subsidiary subsequently negotiate terms that are materially more beneficial to it than those previously notified to Fusion, Lingo shall be obligated to reoffer the opportunity to Fusion and the Right of First Refusal Period shall commence once again. For purposes of this paragraph, the term “Acquisition” means any transaction in which Lingo or any of its Subsidiaries will acquire, either directly or indirectly, all or substantially all of the assets of a Third Party, whether by purchase of assets, shares or other equity securities, or through a proposed merger or similar transaction with such Third Party. A “Change of Control” as to Lingo shall be deemed to have occurred should Holcombe T. Green, Jr. and R. Kirby Godsey no longer own, directly or indirectly, at least a majority of the equity interests of Lingo.

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b.          In the event that Lingo enters into an Acquisition permitted under Section 3a, such acquired Third Party (an “Acquired Entity”) shall become subject to the terms of this Agreement. Neither Lingo nor any of its Affiliates shall disclose Confidential Information of Fusion or its Subsidiaries to any Acquired Entity or its officers, directors, employees, managers, agents or representatives who are not already privy to such Confidential Information (without being in breach of this Section 3b), or use any such Confidential Information to compete with Fusion or its Subsidiaries or in a manner that is in any way detrimental to Fusion or its Subsidiaries. For purposes of this Agreement “Confidential Information” shall include any financial, technical, sales, marketing, development, personnel, and other confidential or proprietary information, records, or data, however recorded or preserved, whether written or oral, including, without limitation, customer lists, supplier lists, trade secrets, designs, product formulations, product specifications, and personnel information. Notwithstanding the foregoing, “Confidential Information” shall not include information to the extent that the recipient thereof can demonstrate: (i) was publicly known at the time of disclosure to it, or has become publicly known through no act of the recipient in breach of this Section 3b, or (ii) was rightfully received from a third party without a duty of confidentiality.

3.            Authority for Judicial Enforcement. The Parties acknowledge and agree that the covenants of each Party set forth above in paragraphs 1 through 4 are reasonable in geographic and temporal scope and in all other respects, and (ii) have been made in order to induce Fusion and BCHI to consummate the transactions contemplated by the Merger Agreement, and that Fusion and BCHI would not have consummated the transactions contemplated by the Merger Agreement, but for such covenants. If, at any time of enforcement of the provisions of paragraphs 1 through 3, a Governmental Entity determines that the duration, scope or area restrictions stated herein are not enforceable under applicable Law, the Parties agree that the maximum duration, scope or area (as applicable) permitted by applicable Law shall be substituted for the duration, area or scope (as applicable) stated herein and the Governmental Entity shall be authorized by the Parties to revise the restrictions contained herein to cover such maximum duration, area or scope.

4.            Remedies Upon Breach. It is expressly agreed by the Parties that monetary damages would be inadequate to compensate a Party for a breach by the other Party of its covenants and agreements in this Agreement. Accordingly, the Parties acknowledge and agree that any such violation or threatened violation will cause irreparable injury to the other and that, in addition to any other remedies which may be available, such Party shall be entitled to seek injunctive relief against any threatened breach of this Agreement or the continuation of any such breach without the necessity of providing actual damages and without posting any bond or other security, and may seek to specifically enforce the terms of this Agreement.

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5.           Notices. 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; or (c) on the third (3rd) 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:

if to Lingo:

Lingo Management, LLC

3060 Peachtree Road NW, Suite 1065,

Atlanta, GA 30305

Attention: Holcombe T. Green, Jr.

if to Fusion:

Fusion Connect, Inc. (f/k/a Fusion Telecommunications International, Inc.)

420 Lexington Avenue, Suite 1718

New York, NY 10170

Attention: General Counsel

6.           Assignability and Binding Effect. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement.

7.           Waivers/Remedies. Failure of either Party to insist upon the strict compliance by the other Party with any of the terms, covenants or conditions of this Agreement shall not be construed as a waiver of any subsequent breach. The election by either Party of any right or remedy contained in this Agreement is not exclusive of any other rights or remedies at law or in equity other than as may be limited explicitly in this Agreement.

8.           Severability. The provisions of this Agreement are severable. If any provision of this Agreement is held, by a court of competent jurisdiction, to be invalid or unenforceable or to conflict with any federal, state or local law, such portion or portions of this Agreement are hereby declared to be of no force or effect in such jurisdiction, and this Agreement shall otherwise remain in full force and effect and be construed as if such portion had not been included. In the event that any provision of this Agreement is held to be unenforceable for being unduly broad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and shall be enforced as amended to the maximum legal and equitable extent.

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9.           Entire Agreement. This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and this Agreement supersedes and replaces any and all prior and contemporaneous agreements, representations, promises or understandings of any kind between the Parties with respect thereto. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by both Parties.

10.           Interpretation of Agreement. The Parties acknowledge and agree that (1) this Agreement and its reduction to final written form are the result of good faith negotiations between the Parties through their respective counsel; (ii) said counsel have carefully reviewed and examined this Agreement before execution by said Parties; and (iii) any statute or rule of construction that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

11.           Governing Law/Waiver of Trial By Jury Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to its conflict of law principles. Each Party hereby voluntarily and irrevocably waives trial by jury in any action or other proceeding brought in connection with this Agreement.

12.           Counterparts/Electronic Signatures. This Agreement may be executed in one or more counterparts with the same effect as if both Parties had signed the same document. Each counterpart shall be construed together and shall constitute one and the same Agreement. Electronic signatures shall have the same force and effect as originals, for all purposes.

13.           Third Party Beneficiaries. None of the provisions of this Agreement is for the benefit of, or enforceable by, any third-party beneficiary.

14.           Further Assurances. The Parties agree to give such further assurances and to execute such documents as may be necessary to correct, confirm and effectuate the intent and purpose of this Agreement.

15.           Headings. The captions of the paragraphs of this Agreement are for convenience only and shall not be considered or referenced in resolving questions of construction or interpretation.

[signatures appear on the following page]

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

FUSION CONNECT, INC.

By:  /s/ James P. Prenetta, Jr. 

Name: James P. Prenetta, Jr.

Title: Executive Vice President and General Counsel

LINGO MANAGEMENT, LLC

By:  /s/ Gordon P. Williams, Jr. 

Name: Gordon P. Williams, Jr.

Title: Manager

[Lingo Non-Solicitation Agreement]

EX-10.6

MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT

by and among

FUSION TELECOMMUNICATIONS INTERNATIONAL INC.

(“Seller”)

and

XCOMIP LLC

(“Purchaser”)

and

FUSION GLOBAL SERVICES LLC

(the “Company”)

dated as of May 4, 2018

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MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT

THIS MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of this 4th day of May 2018 (the “Effective Date”) by and between Fusion Telecommunications International, Inc. (to be renamed Fusion Connect, Inc.), a corporation formed under the laws of the state of Delaware (the “Seller”), XcomIP LLC, a limited liability company formed under the laws of the state of Delaware (the “Purchaser”), and Fusion Global Services LLC, a limited liability company formed under the laws of the state of Delaware (the “Company”). Seller, Purchaser and the Company are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.” Capitalized terms used herein and not otherwise defined have the meanings set forth in Section One hereof.

RECITALS

A.           Seller currently owns sixty percent (60%) of the issued and outstanding Membership Interests (the “Fusion Membership Interests”) in the Company;

B.           Purchaser currently owns forty percent (40%) of the issued and outstanding Membership Interests in the Company; and

C.           Seller wishes to sell to Purchaser, and Purchaser wishes to purchase from Seller, the Fusion Membership Interests pursuant to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the covenants, agreements, representations and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE ONE

DEFINITIONS

As used in this Agreement, the following terms shall have the meaning set forth after each such term.

1.1“Additional Purchase Price Consideration” has the meaning set forth in Section 2.2.

1.2“Affiliate” means with respect to any Person, any other Person that is controlling, controlled by, or under common control with (directly or indirectly through any Person) the Person referred to. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) as used with respect to any Person, means the possession, directly or indirectly, of fifty one (51%) percent or more of the voting power to direct or cause the direction of the management and policies of such Person.

1.3

Agreement” has the meaning set forth in the preamble.

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1.4 “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.

1.5 “Capital Securities” means (a) as to any Person that is a company or corporation, the authorized shares of such Person’s capital securities, including all classes of common, preferred, voting and nonvoting capital securities, and, as to any Person that is not a corporation or an individual, the ownership or membership interests in such Person, including, without limitation, the right to share in profits and losses, the right to receive distributions of cash and property, and the right to receive allocations of items of income, gain, loss, deduction and credit and similar items from such Person, whether or not such interests include voting or similar rights entitling the holder thereof to exercise control over such Person, and (b) warrants, options or other securities, evidences of indebtedness or other obligations of a Person that are, directly or indirectly, convertible into or exercisable or exchangeable for securities of or other interest in such Person as described in clause (a) of this definition.

1.6           “Certificate of Amendment” has the meaning set forth in Section 4.2.

1.7           “Closing” means the closing of the purchase of the Fusion Membership Interests by the Purchaser, which shall occur simultaneously upon the execution of this Agreement and the Amended and Restated Secured Promissory Note (the “Note”) of even date hereof issued by the Company to the Seller.

1.8           “Closing Date” means the date of the Closing.

1.9           “Company” has the meaning given such term in Preamble.

1.10         “Effective Date” has the meaning specified in the Preamble.

1.11         “ERISA” means the Employees Retirement Income Security Act of 1974.

1.12         “Fusion Membership Interests” has the meaning given such term in Recital A.

1.13         “Governmental Entity” means any court, arbitrator, administrative or other governmental department, agency, commission, authority or instrumentality, domestic or foreign.

1.14         “Initial Purchase Price” has the meaning set forth in Section 2.2.

1.15         “Law” means any applicable federal, state, local or foreign law, statute, ordinance, rule, regulation, judgment, order, injunction, decree or agency requirement of any Governmental Entity.

1.16         “Lien” means any security interest, mortgage, pledge, hypothecation, charge, claim, option, right to acquire, adverse interest, encumbrance, restriction, lien (statutory or other), or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease involving substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable Law of any jurisdiction).

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1.17           “Material Adverse Effect” means any event reasonably expected to (i) result in a material adverse effect on the properties, business, results of operations, condition (financial or otherwise), or affairs of the Company, or (ii) in any manner, draw into question the validity of this Agreement.

1.18            “Member” or “Members” mean the holders of any Membership Interests.

1.19           “Membership Interests” means the common membership interests of the Company and all other securities of the Company that may be exchangeable for, convertible into or issued in exchange for or in respect of the membership interest (combination, reclassification, reorganization or any other means).

1.20           “Net Profits” means the net positive income as reflected in the Company’s annual statements (i.e. gross revenue minus salaries, expenses, cost of sales, all operating costs, and minus any distributions previously made in any given year) as reflected in information delivered to Seller in accordance with Section 6.3(d), minus excess cash required as working capital for Company’s ongoing operations as determined by Company’s Manager.

1.21           “New Membership Interests” means (a) any Capital Securities of the Company or any Subsidiary issued after the date hereof, (b) Capital Securities of the Company or any Subsidiary issued to the manager or other officers or employees of, or other service providers to, the Company or the Subsidiaries pursuant to any form of incentive compensation plan authorized by the Members, (c) Capital Securities of the Company or any Subsidiary issued in connection with a split, dividend or the like, (d) Capital Securities of the Company or any Subsidiary issued in conjunction with equipment financing or debt financing authorized by the Members, (e) Capital Securities of the Company or any Subsidiary issued in connection with acquisitions of the Capital Securities or assets of other entities, including, without limitation, by way of merger, consolidation or purchase authorized by the Members, (f) Capital Securities of a Subsidiary issued by such Subsidiary to the Company or any other Subsidiary, (g) Capital Securities of the Company or any Subsidiary issued in connection with any strategic alliance, joint venture or similar arrangement authorized by the Members, and (h) Capital Securities of the Company or any Subsidiary subsequently issued on conversion, exercise or exchange of those Capital Securities.

1.22           “Person” includes any individual, company, corporation, association, partnership (general or limited), joint venture, trust, estate, limited liability company, or other legal entity or organization, including any governmental entity

1.23           “Plan” or “Plans” means any plan or arrangements of the Company which constitutes an “employee benefit plan,” as defined in Section 3 (3) of ERISA.

1.24           “Proceeding” has the meaning provided in Section 9.8(b).

1.25           “Purchase Price” has the meaning set forth in Section 2.2.

1.26           “Subsidiary” or “Subsidiaries” means as of any time any Person of which Company at such time owns, directly or indirectly, at least a majority of the outstanding Capital Securities of such Person entitled to vote on matters involving such Person.

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ARTICLE II

PURCHASE/SALE OF THE FUSION MEMBERSHIP INTERESTS

Section 2.1. Purchase and Sale of Fusion Membership Interests. At the Closing, the Seller will sell, convey, transfer and deliver to the Purchaser, and the Purchaser will purchase and receive from the Seller the Fusion Membership Interests, which Membership Interests shall represent all of the issued and outstanding Membership Interests in the Company owned by the Seller as of Closing.

Section 2.2. Purchase Price. At the Closing, the Purchaser shall pay the Seller, in cash, the sum of One US Dollar (US$1.00) for the Fusion Membership Interests (the “Initial Purchase Price”). In addition, Purchaser agrees to pay Seller the following: (i) sixty percent (60%) of the Net Profits of the Company; (ii) sixty percent (60%) of any distributions being made by the Company to its Members only to the extent such amounts are not distributed as part of the distribution of Net Profits set forth in (i); and (iii) sixty percent (60%) of the net proceeds received by the Members from a sale of the Company to a third party (collectively, the “Additional Purchase Price Consideration” and together with the Initial Purchase Price, collectively, the “Purchase Price”). Purchaser agrees to remit each payment of Additional Purchase Price Consideration as follows: (a) any payments made pursuant to (ii) above shall be made to the Seller within fifteen (15) calendar days following the applicable event; and (b) any payments made pursuant to (iii) above shall be made to the Seller within thirty (30) calendar days of receipt of the net proceeds received by Purchaser. In the case of amounts to be remitted under (i) above, the Company agrees to remit the required amount to Seller on no less than an annual basis within thirty (30) days of the end of the fiscal year, and may, in its sole discretion, remit such payments on a quarterly basis during the relevant year. Failure to remit payments due under this Section 2.2 within the required period shall be deemed a material breach of this Agreement.

Section 2.3 Net Loss Recapture. It is expressly understood by the Parties hereto that at the end of each fiscal year the distribution of Net Profits set forth above shall take into account the prior year’s profits and losses to determine the current year’s distribution amount. For example, Year 1, the Company has losses of $5,000.00; Year 2, the Company has net income of $8,000.00; the distribution of Net Profits would be based upon an overall gain of $3,000.00 for Year 2.

Section 2.4   Adjustments to Additional Purchase Price Consideration Percentages. In the event of a sale of Membership Interests in accordance with Section 7.4(iii), the Additional Purchase Price Consideration to which Seller shall be entitled to receive shall be appropriately adjusted downward on a pro rata basis to give effect to each such sale.

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ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1 Representations and Warranties of the Seller. The Seller represents and warrants to the Purchaser that:

3.1.1 Due Incorporation/Good Standing. The Seller has been duly organized, and is validly existing and is in good standing under the Laws of the state of Delaware.

3.1.2 Power and Authority. Seller has all requisite corporate power and corporate authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby and thereby.

3.1.3 Membership Interests. Seller owns the Fusion Membership Interests and at the Closing the Fusion Membership Interests will be free and clear of all Liens.

3.1.4 Validity of Agreement. This Agreement has been duly and validly authorized, executed, and delivered by the Seller and constitutes a valid and legally binding agreement of the Seller, enforceable against it in accordance with its terms, except as such enforceability may be limited by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law) and, as to rights of indemnification, by principles of public policy or federal or state securities Laws relating thereto.

3.1.5 No Conflict. The execution, delivery, and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby will not violate, conflict with, or result in a breach or violation of the organizational documents of Seller or any of the terms or provisions thereof, or constitute a default or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a Lien with respect to the organizational documents of the Seller; any bond, note, debenture, or other evidence of indebtedness or any indenture, mortgage, deed of trust, or other agreement or instrument to which Seller is a party or by which it is bound, or to which any properties of the Seller is or may be subject; or contravene any order of any court or governmental agency or body having jurisdiction over the Seller or any of its properties; or violate or conflict with any statute, rule or regulation, or administrative or court decree applicable to the Seller or any of its properties; except for any such violations, conflicts, breaches, or defaults which, singularly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

3.1.6 No Broker. Seller has not incurred any liability for finder’s, agent’s or brokerage fees, commissions or compensation in connection with this Agreement or the transactions contemplated hereby.

3.2  Representations and Warranties of the Purchaser. The Purchaser represents and warrants to Seller that:

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3.2.1  Due Incorporation/Good Standing. The Purchaser has been duly formed, is validly existing as a limited liability company and is in good standing under the Laws of the state of Delaware.

3.2.2  Power and Authority. The Purchaser has all requisite corporate power and corporate authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.

3.2.3  Validity of Agreement. This Agreement has been duly and validly authorized, executed, and delivered by the Purchaser and constitutes a valid and legally binding agreement of the Purchaser, enforceable against it in accordance with its terms, except as such enforceability may be limited by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law) and, as to rights of indemnification, by principles of public policy or federal or state securities Laws relating thereto.

3.2.4  No Conflict. The execution, delivery, and performance of this Agreement by the Purchaser and the consummation of the transactions contemplated hereby and thereby will not violate, conflict with, or result in a breach or violation of the organizational documents of the Purchaser or any of the terms or provisions thereof, or constitute a default or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a Lien with respect to the organizational documents of the Seller; any bond, note, debenture, or other evidence of indebtedness or any indenture, mortgage, deed of trust, or other agreement or instrument to which the Purchaser is a party or by which it is bound, or to which any properties of the Purchaser is or may be subject; or contravene any order of any court or governmental agency or body having jurisdiction over the Purchaser or any of its properties; or violate or conflict with any statute, rule or regulation, or administrative or court decree applicable to the Purchaser or any of its properties; except for any such violations, conflicts, breaches, or defaults which, singularly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

3.2.5  Investment Intent. The Purchaser is acquiring the Fusion Membership Interests for its own account and not with a view to the distribution of those interests within the meaning of Section 2(11) of the Securities Act of 1933, as amended.

3.2.6  No Broker. Purchaser has not incurred any liability for finder’s, agent’s or brokerage fees, commissions or compensation in connection with this Agreement or the transactions contemplated hereby.

3.3     Representations and Warranties of the Company. The Company represents and warrants to the Seller and Purchaser that:

3.3.1  Due Incorporation/Good Standing. The Company has been duly formed, is validly existing as a limited liability company and is in good standing under the Laws of the state of Delaware.

3.3.2  Power and Authority. The Company has all requisite limited liability power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.

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3.3.3  Validity of Agreement. This Agreement has been duly and validly authorized, executed, and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against it in accordance with its terms, except as such enforceability may be limited by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law) and, as to rights of indemnification, by principles of public policy or federal or state securities Laws relating thereto.

3.3.4  No Conflict. The execution, delivery, and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby will not violate, conflict with, or result in a breach or violation of the certificate of formation or operating agreement of the Company or any of the terms or provisions thereof, or constitute a default or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a Lien with respect to its certificate of formation or operating agreement or any bond, note, debenture, or other evidence of indebtedness or any indenture, mortgage, deed of trust, or other agreement or instrument to which the Company is a party or by which it is bound, or to which any properties of the Company is or may be subject; or contravene any order of any court or governmental agency or body having jurisdiction over the Company or any of its properties; or violate or conflict with any statute, rule or regulation, or administrative or court decree applicable to the Company or any of its properties; except for any such violations, conflicts, breaches, or defaults which, singularly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 3.4   Survival of Representation and Warranties. The representation and warranties given by the Purchaser, the Seller and the Company do not survive the Closing.

ARTICLE IV

CLOSING DELIVERIES OF SELLER

Section 4.1.  At Closing, the Seller shall deliver to Purchaser the following:

(a)           the Fusion Membership Interests, duly endorsed for transfer to Purchaser, or if uncertificated, an assignment of the Fusion Membership Interests in form and substance reasonably satisfactory to Purchaser;

(b)           a certificate of the Seller (i) listing the officers of Seller authorized to execute this Agreement and any documents contemplated by this Agreement, and (ii) confirming that, as of the Closing, Seller has duly performed each applicable covenant set forth herein, and that all of Seller’s representations and warranties herein are true and correct as of the Closing;

(c)           a copy of the Non-Solicitation Agreement attached hereto as Exhibit A executed by the Seller; and

(d)           such other documents as may reasonably be requested by the Purchaser.

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ARTICLE V

CLOSING DELIVERIES OF PURCHASER

Section 5.1.   At Closing, the Purchaser shall deliver to the Seller the following:

(a)           a certificate of the Purchaser (i) listing the officers/manager of Purchaser authorized to execute this Agreement and any documents contemplated by this Agreement, and (ii) confirming that, as of the Closing, the Purchaser has duly performed each applicable covenant set forth herein, and that all of Purchaser’s representations and warranties herein are true and correct as of the Closing;

(b)           a copy of Exhibit A hereto duly executed and delivered by Fusion Global Services, LLC and XcomIP, LLC;

(c)           a duly authorized, executed and signed Note; and

(d)           such other documents as may reasonably be requested by the Seller.

ARTICLE VI

POST-CLOING COVENANTS

Section 6.1.   Further Assurances; Access to Information. Each Party agrees to execute and deliver any and all further agreements, documents or instruments reasonably necessary or convenient to effectuate this Agreement and the transactions referred to herein or contemplated hereby or reasonably requested by the another Party to perfect or evidence its rights hereunder. Each Party will promptly notify the other Parties of any information delivered to, or obtained by, such Party which would prevent the consummation of the transactions contemplated by this Agreement, or would indicate a breach of the representations or warranties of any of the Parties or as to which any Party intends to seek indemnity under any of the terms of this Agreement.

Section 6.2. Delivery of Minutes; Execution and Delivery of the Certificate of Amendment to the Company’s Certificate of Formation; Use of Fusion Name. Within thirty (30) days of the date hereof, the Purchaser shall deliver to the Seller (i) resolutions adopted by the Members and manager (if required) authorizing the Company to change its name from Fusion Global Services LLC to a name selected by the Manager that does not include the name “Fusion” (the “Certificate of Amendment”), and (ii) execute and deliver to Seller, for filing by Seller, the Certificate of Amendment, substantially in the form of Exhibit B hereto with the Secretary of State of the State of Delaware, which Certificate of Amendment will be filed by Seller at its expense and confirmation of such name change shall be promptly sent to Company and Purchaser. Within sixty (60) days of the date of this Agreement, the Company shall cease using any marketing materials that reference the “Fusion” name and/or logo and within twelve (12) months from the date of this Agreement shall have used reasonable efforts to amend all existing contracts (both customer and vendor) to reflect the new name of the Company and provided its customers and vendors with written notice of such name change.

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Section 6.3 Information Rights. The Purchaser agrees to cause the Company to provide each of the Seller’s Chief Executive Officer and President (at their respective offices) with the following, and such being provided for informational purposes only:

(a)Annual Statements. Within one hundred and twenty (120)days after the close of each fiscal year of the Company, commencing with the fiscal year ending on December 31, 2018, the Company will deliver to the Seller internally prepared (unaudited) financial statements of the Company and any consolidated Subsidiaries, including without limitation unaudited consolidated balance sheets and statements of income and retained earnings and of cash flows of the Company and its Subsidiaries and any related materials, which annual financial statements shall show the financial condition of the Company and any consolidated Subsidiaries as of the close of such fiscal year and the results of the Company’s operations during such fiscal year.

(b)Quarterly Statements. Within forty-five (45) days after the end of each fiscal quarter, the Company will deliver to the Seller an unaudited consolidated and consolidating balance sheet of the Company and any consolidated Subsidiaries and the related consolidated and consolidating statements of income, retained earnings and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year ended as of such fiscal quarter, setting forth in comparative form, the figures for the corresponding fiscal quarter of the prior year (if any), the corresponding portion of the Company’s previous fiscal year and the Company’s budget for the current fiscal year.

(c)Monthly Statements. Within thirty (30) days after the end of each month, the Company will use reasonable efforts to deliver to the Seller a management report of the Company and any consolidated subsidiaries, including profit and loss reports and statements of outstanding intercompany indebtedness, however, any failure to do so within the time set forth herein shall not be considered a material breach of this Agreement.

(d)Budget; Other Information. As soon as available but in any event no later than thirty (30) days after the end of the prior fiscal year, the Company shall deliver to the Seller a projected income statement for the Company and any consolidated Subsidiaries for the upcoming fiscal year on a quarter-by-quarter basis that has been approved by a majority of the Membership Interest.

(e)Member and Manager Written Consents; Meeting Minutes. Within thirty (30) calendar days following the adoption of a written consent of the Members or the Manager of the Company, the Company shall provide via email a copy of that written consent to the Seller. In addition, within thirty (30) calendar days following the occurrence of a meeting of the Members, a copy of any meeting minutes generated as a result of such meeting shall also be provided to the Seller via email.

Section 6.4. Approval Requirements.As a significant inducement to Seller entering into this Agreement and selling the Fusion Membership Interests to the Purchaser, the Purchaser and the Company agree that the Company may not take any of the following actions without the prior written consent of the Seller:

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(i)     replace Yehuda “Jay” Adams as the sole Manager;

(ii) increase the salary, bonus or other compensation paid to the Manager, except that the Manager’s salary may be increased to $300,000.00 as of the Effective Date of this Agreement and may be increased on an annual basis thereafter by two percent (2%) annually, after the Note is paid back in full and so long as the Company is profitable (profitability to be measured by net profit of the Company at the end of the prior fiscal year of the Company).

(iii)  until such time as the Company has paid the Note in full, issue any New Membership Interests that would constitute more that fifteen percent (15%) of the Membership Interests outstanding on the date of this Agreement (it being expressly understood that any sale of all or substantially all of the Company’s Membership Interests, subject to Section 6.9 herein, that results in Company receiving net proceeds that allow for the full repayment of the outstanding balance due under the Note is permitted at any time without Seller’s consent);

(iv)     comingle its assets with those of a Member, or hold any assets in a name other than its own; or

(v)  fail to maintain its books and records accurately and separate from those of its Members.

Section 6.5  Observer Rights; General Rights to Interact with Manager. The Company and the Purchaser each agree that the Seller shall have the right to advance written notice of, and the right to send a representative to attend and observe, each meeting of its Members; Seller to bear the costs of attending any such meeting(s). Notice of each such meeting must be provided by the Company at least five (5) Business Days prior to the scheduled meeting date. The Seller’s initial representative shall be Gordon Hutchins, Jr. The Seller may appoint a replacement representative at any time and from time to time, but shall provide the Company with written notice of any change in its designated representative, and such designated representative shall be subject to Company’s reasonable consent and not a familial relation of Manager. The Company also agrees that the Seller’s representative shall have the right to regularly communicate with the Manager either by phone or through in person meetings in order to obtain regular updates regarding the Company’s business activities and the Company agrees to cause the Manager to engage in these regular communications. So long as Mr. Hutchins is employed by Seller, Seller agrees to make Mr. Hutchins available to the Company from time to time to provide consultation and/or business advice. These services will be provided by Mr. Hutchins at no cost to the Company.

Section 6.6 Right of Transfer. Notwithstanding any other provision in this Agreement to the contrary, the Purchaser, as a Member of the Company, may transfer all or any portion of the Membership Interests acquired from the Seller hereunder to any partnership, corporation, limited liability company, Affiliate, or other entity in which the Purchaser owns a controlling interest.

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Section 6.7  Non-Solicitation. As partial consideration for the transfer of the Fusion Membership Interests and as a material inducement to the Seller and Purchaser to consummate the transactions contemplated hereby, the Seller, the Purchaser and the Company will enter into a non-solicitation agreement in the form attached hereto as Exhibit A.

Section 6.8  Working Capital Adjustment. Within thirty (30) days following the execution of this Agreement by the Parties, the Parties agree to complete the working capital analysis contemplated by Section 6 of that certain Members Agreement, dated as of September 1, 2017, by and among the Seller, the Company (the “Members Agreement”) and, within five (5) Business Days following the completion of that analysis, for the “owing” Party to make any required payment to the other Party in cash. In the event the Parties are unable to agree on the amount of the working capital adjustment, if any is required, the Parties shall submit the matter to an independent accounting firm or other qualified valuation firm, mutually agreed upon by the Parties, for a final decision to be rendered within ten (10) Business Days following retention of such accounting or valuation firm. In the event that any monies required to be paid under this Section are not timely paid, then if Purchaser is the owing Party the Seller may add any amounts owed it to the principal under the Note; and if Seller is the owing Party, then the Seller shall deduct the amount so owed by it from the principal amount outstanding under the Note.

Section 6.9. Right of First Refusal. In the event of a proposed sale of the Company to an unaffiliated bona fide third party purchaser, whether such sale is accomplished through the sale of all or substantially all of the Company’s assets, all of the Company’s Membership Interests or through the merger of the Company with another entity, the Seller shall have a right of first refusal to timely complete that transaction on the same terms offered by the bona fide purchaser. The Company must provide Seller with written notice of the proposed transaction and must include with that notice a copy of the proposed offer and a draft of any negotiated agreement with respect to that transaction. Seller shall have ten (10) Business Days from the date of receipt of the proposed offer to determine whether it wishes to exercise this right of first refusal. Should Seller not respond within the required ten-day period, then the Purchaser and the Company may proceed with the proposed transaction on the terms indicated. In the event there is any material change in the offer received by the Company and Purchaser then the Purchaser must reoffer the opportunity to Seller and the above procedures shall apply once again. In addition, in the event the Members of the Company decide to voluntarily dissolve or otherwise winddown the Company, within five (5) Business Days of any such decision the Members of the Company shall offer Seller the right to take over ownership of Company and to continue to operate the Company as a going concern. The Seller shall have five (5) Business Days of receipt of written notice of such a decision by the Members to determine whether it wishes to assume the operation of the Company and take over the Members interests therein.

Section 6.10  Use of Switch. The Company shall have the right to continue to use the Switches (as defined in that certain Asset Contribution Agreement, dated as of the 20th day of July, 2017 by and between the Seller and the Company) and associated billing systems, free of charge, so long as customers of the Company continue to be serviced through the Switches but in no event for a period of more twelve (12) months from the date of this Agreement.

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Section 6.11  Additional Profit Share.  The Company and Purchaser agree that the terms of this Agreement only pertain to the Company’s engagement in the wholesale carrier business (the “Business”).  Should the Purchaser choose to enter the cellular business or any other communications or technology business, it may do so through the Company, an Affiliate of the Company, or an independent entity controlled by the Manager (the “New Business”).  In such event and only if the New Business uses any equipment, software, or personnel (other than the Manager, who may engage in other business activities other than the Business) of the Company, then Purchaser’s sole obligation will be to remit fifty (50%) percent of the Net Profits of any such New Business to Seller on an annual basis within thirty (30) days of the end of the fiscal year.

Section 6.12  Seller Support. In recognition of the on-going profit share arrangement contemplated by this Agreement, Seller agrees to provide the Manager and other senior level personnel of the Company, as well as the manager and senior level personnel of any New Business, with reasonable access to Matthew D. Rosen, Gordon Hutchins and James P. Prenetta (for so long as such individuals are employed by the Seller), for the purpose of seeking general business advice and in the case of Mr. Prenetta, general legal advice and counsel, In addition, the Seller agrees to provide access to, and use of, one office and the conference room (on an as available basis) at the Seller’s office located at 420 Lexington Avenue, Suite 1718, New York New York.

Section 6.13  Company Services. To the extent that Seller has future requirements as to any current or future services offered by the Company or by any New Business (including, but not limited to, cellular services), Seller agrees to provide the Company with a reasonable opportunity to compete for the provision of those services and agrees to provide management of the Company with access to appropriate personnel at Seller to discuss and understand Seller’s requirements and Seller further agrees to provide the Company with due consideration during such procurement process.

ARTICLE VII

MISCELLANEOUS

Section 7.1. Notices.

(a)           All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (1) upon personal delivery to the Party to be notified; (2) upon two (2) Business Days when sent by email followed by certified or registered mail; or (3) upon two (2) Business Days after being sent by nationally recognized overnight carrier to the addresses below as follows:

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Notices to the Purchaser:                

XcomIP, LLC

Yehuda “Jay” Adams

c/o Meryl Ravitz

303 West 66th Street, Suite 18BW

New York, NY 10023

Email: jay@xcomip.com

Notices to Seller:              

Fusion Telecommunications International, Inc.

Attn.: General Counsel

420 Lexington Avenue, Suite 1718

New York, NY 10170

E-mail: legal@fusionconnect.com

Notices to the Company:                                                Fusion Global Services LLC

              Yehuda “Jay” Adams

              c/o Meryl Ravitz

              303 West 66th Street, Suite 18BW

              New York, NY 10023

                                                                                        E-mail: jay@xcomip.com

(b)           

Notwithstanding the foregoing, notices to Purchaser and the Company (and required copies thereof) may be contained in a single notice to all of them, respectively.

(c)           

It is expressly understood that the above addresses may change in the future and each Party will provide the other Party with its updated address in a timely manner.

Section 7.2.  Entire Agreement. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof, and supersedes all prior agreements and understandings, oral and written, between the Parties with respect to the subject matter hereof except for the provisions, which, by their terms, survive termination. In the event of any conflict between the terms of the Members Agreement and this Agreement, the terms of this Agreement shall prevail.

Section 7.3.  Amendments. Any amendment hereof must be in writing. Any provision hereof may be waived in writing by the Party entitled to the benefit of such provision. No waiver of the breach of any provision shall be deemed or construed to be a waiver of other or subsequent breaches. Nothing herein is intended to confer any rights or remedies upon any Person not a party hereto, except as expressly provided to the contrary herein.

Section 7.4.  Delays and Omissions; Waiver. No delay or omission to exercise any right, power or remedy accruing to either Party under this Agreement, upon any breach or default of any other Party under this Agreement, 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 either Party of any breach or default under this Agreement, or any waiver on the part of either 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.

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Section 7.5. Severability.  The provisions of this Agreement shall be deemed severable and the invalidity, illegality or unenforceability of any provision shall not affect the validity, legality or enforceability of the other provisions hereof. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Section 7.6. Successors; Assignment. Neither this Agreement nor any of the rights, benefits, or obligations hereunder may be assigned by any Party (whether by operation of Law or otherwise) without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by a Party and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 7.7. Counterparts; Email Signatures. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. This Agreement may be executed and delivered by email signature.

Section 7.8.  Choice of Law and Enforcement.

(a)           This Agreement and any and all matters arising directly or indirectly here from shall be governed by, and construed and enforced in accordance with, the internal Laws of the state of New York, without giving effect to the conflict or choice of Law principles thereof.

(b)           The Parties hereby irrevocably:

(i) 

consent and submit to the sole exclusive jurisdiction of the United States District Court for the Southern District of New York and/or the state court in New York City (and of the appropriate appellate courts from any of the foregoing) in connection with any legal action, lawsuit, arbitration, mediation, or other legal or quasi legal proceeding directly or indirectly arising out of, or relating to, this Agreement (“Proceeding”);

(ii) 

waive, to the fullest extent permitted by Law, any objection a Party may now or hereafter have to the venue of any such Proceeding in any such court or that any such Proceeding which is brought in any such court has been brought in an inconvenient forum;

(iii) 

waive, to the fullest extent permitted by Law, any immunity from jurisdiction of any such court or from any legal process therein;

(iv) 

waive, to the fullest extent permitted by Law, any right to a trial by jury in connection with a Proceeding;

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(v) 

agree not to commence any Proceeding other than in such court; and

(vi)  

agree that service of any summons, complaint, notice or other process relating to such Proceeding may be effected in the manner provided for the giving of notice as set forth herein.

Section 7.9.  Specific Enforcement. The Parties agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise materially breached. It is accordingly agreed that any of the Parties shall be entitled to seek an injunction or injunctions to prevent material breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with the provisions of Article IV and Article VII. The provisions of this Section shall be in addition to any other remedy to which they are entitled at Law or in equity.

Section 7.10. Joint Participation in the Drafting. The Parties acknowledge and confirm that each of their respective attorneys has participated jointly in the drafting, review and revision of this Agreement and that it has not been written solely by counsel for any 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.

Section 7.11.  No Third Party Beneficiaries. No Person not a party hereto shall have any rights hereunder, it being the intent of the Parties that there shall be no third party beneficiaries.

Section 7.12.  Gender; Number. Except where the context otherwise requires, words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular.

Section 7.13.  Expenses. Seller agrees to reimburse Purchaser for its reasonable and documented expenses incurred in connection with the negotiation, execution and delivery of this Agreement and the completion of the transactions contemplated hereby including (i) its legal fees directly incurred in connection with this Agreement and in the preparation of a new operating agreement for the Company, (ii) invoiced fees and expenses of UHY directly associated with their analysis of the tax implications of the sale of Seller’s Membership Interests hereunder to Purchaser, (iii) fees and expenses associated with the filing of the Certificate of Amendment (to the extent not handled by Seller), and associated with the transfer or abandonment of any 214 License, (iv) any taxes or other costs, such as FCC fees, imposed or incurred as a direct result of the consummation of the transaction contemplated herein; (v) for a period of up to 12 months from the date of this Agreement, the costs associated with the Company’s existing corporate email service that is hosted by Google, and (vi) all preapproved, such approval not to be unreasonably withheld, costs associated with the name change including any costs incurred to change websites, URLs, marketing and printed materials and contracts. In the event that Seller fails to promptly reimburse Purchaser for any of the foregoing costs and expense, Purchaser shall be entitled to off-set such amounts against amounts owed by it to the Seller under the Note of even date hereof.

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Section 7.14  Indemnification. It is the Purchaser’s understanding that the Company has been advised by UHY that due to any profit sharing arrangement contemplated by this Agreement, the Company (or any New Business) will be required to issue the Seller a K-1 at the end of each fiscal year to reflect any profits that are paid to the Seller under this Agreement. Seller agree that it shall indemnify and hold harmless Purchaser and any Affiliate or other New Business for any costs, expenses, or losses incurred as a result of any filings or reporting made or omitted by Seller, or any failure to pay taxes to the Internal Revenue Service or any state taxing authority, in connection with amounts reported by the Company to Seller hereunder.

[Signatures appear on the following page]

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

By: __/s/ James P. Prenetta, Jr.  

Name: James P. Prenetta, Jr.

Title: EVP and General Counsel

XCOMIP LLC

By: /s/ Yehuda “Jay” Adams  

 Name: Yehuda “Jay” Adams

 Title: Manager

FUSION GLOBAL SERVICES LLC

By: /s/ Yehuda “Jay” Adams  

Name: Yehuda “Jay” Adams

Title: Manager

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Exhibit A

NON-SOLICITATION AGREEMENT

              This Non-Solicitation Agreement, dated as of May 4, 2018 (the “Agreement”), is made and entered into by and between Fusion Telecommunications International, Inc., a Delaware corporation (“Fusion”) and Fusion Global Services, LLC, and XcomIP, LLC (collectively, the “Counterparty”). As used herein, “the parties to this Agreement” or “the parties” shall refer collectively to Fusion and the Counterparty. Capitalized terms used herein and not defined shall have the meaning assigned each such term in the Membership Interest Agreement (as defined below).

WHEREAS, on the date hereof, Fusion, XcomIP, LLC (“Xcom”) and Fusion Global Services, LLC (“Fusion Global”), are entering into a Membership Interest Purchase and Sale Agreement (the “Membership Interest Agreement”) by and among Fusion, Xcom and Fusion Global under which Xcom will purchase from Fusion and Fusion will sell and transfer to Xcom, all of its membership interests in Fusion Global); and

WHEREAS, the execution and delivery of this Agreement by Fusion and Counterparty is a condition precedent to the closing of the transactions contemplated by the Membership Interest Agreement.

NOW, THEREFORE, in consideration of the covenants and mutual promises and agreements contained in this Agreement, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1.Non-Solicitation. For a period of three (3) years from the date hereof, each of Fusion and Counterparty agrees that it will not, either directly or indirectly (including through its Affiliates) or as an agent on behalf of, or in conjunction with any Person: (A) solicit for employment or in any way induce or attempt to induce to leave the employ of, or engagement by, the other party hereto, any individual who is, on the date of the solicitation or attempted inducement, a director, officer, employee or consultant to the other party hereto; or (B) induce or attempt to induce any Person who is a director, officer, employee or consultant to the other party to leave the employ of, or terminate or breach their respective agreements with, the other party, or in any other way deliberately interfere with the relationship between the other party and any such Person;  provided, however, that no general advertisement or general solicitation of employment not targeted to the directors, officers, employees or consultants of the other party shall be deemed to be a solicitation of such Persons in violation of this Section.

2.            Acknowledgment. Each of Fusion and the Counterparty acknowledges that this Agreement and the obligations contained herein are essential to the protection of the business of the other party and its subsidiaries and is a material inducement to the other party to enter into the Membership Interest Agreement and to closing the transactions contemplated thereby.

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3.            Remedies Upon Breach. The parties acknowledge and agree that, in the event of a material breach of any of the terms or provisions of this Agreement, nothing in this Agreement shall be construed to preclude or limit any party from asserting claims or filing a lawsuit for the purpose of enforcing their rights under this Agreement, or pursuing any other rights and remedies available to them under law, including equitable relief, injunctive relief, and damages.

4.           Assignability and Binding Effect. The rights and obligations of the parties shall be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and permitted assigns.

5.            Waiver of Breach. A waiver by any party of a breach of any of the provisions of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or of any subsequent breach of the same or any other provision of this Agreement. The understandings and representations of the parties set forth in this Agreement shall survive any breach of this Agreement and be enforceable by the non-breaching party.

6.            Severability.  The provisions of this Agreement are severable. If any portion of this Agreement (other than Section 1) is held, by a court of competent jurisdiction, to be invalid or unenforceable or to conflict with any federal, state or local law, such portion or portions of this Agreement are hereby declared to be of no force or effect in such jurisdiction, and this Agreement shall otherwise remain in full force and effect and be construed as if such portion had not been included. In the event that any provision of this Agreement is held to be unenforceable for being unduly broad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and shall be enforced as amended to the maximum legal and equitable extent.

7.            Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and this Agreement supersedes and replaces any and all prior and contemporaneous agreements, representations, promises or understandings of any kind between the parties with respect thereto. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by both parties.

8.            Interpretation of Agreement. The parties acknowledge and agree that (i) this Agreement and its reduction to final written form are the result of good faith negotiations between the parties through their respective counsel; (ii) said counsel have carefully reviewed and examined this Agreement before execution by said parties, or any of them; and (iii) any statute or rule of construction that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

9.            Governing Law. This Agreement and any disputes arising under or in connection with it shall be construed and governed in accordance with the laws of the State of New York.

10.          Counterparts. This Agreement may be executed in one or more counterparts with the same effect as if both parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same Agreement. This Agreement, to the extent signed and delivered via email, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.

-20-

               11.           Further Assurances. The parties agree to give such further assurances and to execute such documents as may be necessary to correct, confirm and effectuate the intent and purpose of this Agreement  

12.            Captions. The captions of the paragraphs of this Agreement are for convenience only and shall not be considered or referenced in resolving questions of construction or interpretation.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year set forth below.

Fusion Telecommunications International, Inc.

By:

Name:  Gordon Hutchins, Jr.

Title: President

XcomIP, LLC

By:

Name: Yehuda “Jay” Adams.

Title: Manager

Fusion Global Services, LLC

By: 

Name: Yehuda “Jay” Adams.

Title: Manager

-21-

Exhibit B

Form of Certificate of Amendment

CERTIFICATE OF AMENDMENT

TO THE

CERTIFICATE OF FORMATION

OF

FUSION GLOBAL SERVICES LLC

The undersigned, for the purpose of amending a certificate of formation of a limited liability company pursuant to Section 18-202 of the Delaware Limited Liability Company Act, certifies that:

1.

The name of the limited liability company is Fusion Global Services, LLC (the “Company”).

2.

Article 1 of the Certificate of Formation of the Company is hereby amended to read as follows:

“1. The name of the limited liability company is “[                  ]”.

3. The aforesaid amendment was duly adopted by the sole Member of the Company.

IN WITNESS WHEREOF, the Company has caused this Certificate of Amendment to be signed on its behalf by the duly authorized person on this ___ day of _______, 2018.

FUSION GLOBAL SERVICES, LLC

By: ______________________________

Name: Yehuda “Jay” Adams

Title: Manager

-22-

EX-10.7

May 4, 2018

PRIVATE & CONFIDENTIAL

Fusion Connect, Inc. (f/k/a Fusion Telecommunications International, Inc.)

420 Lexington Avenue, Suite 1718

New York, New York 10170

Ladies and Gentlemen:

Reference is made to the Agreement and Plan of Merger, dated as of August 26, 2017 (as it may be amended or modified from time to time in the future, the “Merger Agreement”), by and among Fusion Telecommunications International, Inc., a Delaware corporation (the “Company”), Birch Communications Holdings, Inc., a Georgia corporation, and Fusion BCHI Acquisition LLC, a Delaware limited liability company. Capitalized terms used but not defined herein have the meaning given to them in the Merger Agreement. This letter agreement amends and restates the indemnification letter agreement delivered by BCHI Holdings, LLC, a Georgia limited liability company (“Holdings”), to the Company, dated August 26, 2017, in its entirety.

Subject to the occurrence of the Closing, for a period of eighteen (18) months following the Closing (the “Indemnity Period”), Holdings agrees to indemnify and hold harmless the Company for and against any and all losses in excess of $500,000 that are related to, or arise from, any of the pending matters listed below that are incurred during the Indemnity Period; provided, that in no event will Holdings be responsible for any such losses exceeding $25,000,000 in the aggregate (the “Cap”). Holdings shall have the right to assume the defense of these matters and shall have the right to settle such matters so long as such settlement does not involve any monetary payment by the Company and/or its Subsidiaries and does not otherwise have a material adverse effect on the business of the Company and its Subsidiaries. Amounts owed by Holdings under this indemnity may be paid in cash or through the transfer to the Company of a number of shares of Company Common Stock equal to (rounded up or down to the nearest whole share) (1) the amount of such obligation divided by (2) the greater of (A) $2.00, or (B) the weighted average daily closing bid price of the Company Common Stock, as reported by NASDAQ (or any successor to such exchange), for five (5) consecutive trading days ending immediately prior to the third (3rd) Business Day preceding the date of such transfer. Any cash payment and/or return of shares of Company Common Stock shall be completed within five (5) Business Days of the date that the Company’s (or its subsidiary’s) liability has been determined. During the Indemnity Period, Holdings shall, at all times, maintain in its name liquid assets and shares of Company Common Stock with an aggregate value of no less than the Cap; provided, that for the purposes of determining the value of shares of Company Common Stock, such shares will not be deemed to have a value of less than $2.00 per share, regardless of the then-current market price for such shares.

1.

EB-IHD-17-00023706, Federal Communications Commission Letter of Inquiry to Birch Communications, Inc. (dated May 2, 2017).

2.

California Public Utilities Commission Data Request No. 1 (dated October 1, 2015), Data Request No. 2 (dated March 8, 2016), Data Request No. 3 (dated March 7, 2017); Data Request No. 4 (dated July 27, 2017) to Birch Telecom of the West, Inc. and Cbeyond Communications, LLC.

3.

Wyoming Universal Service Fund Audit Notification Letter (dated August 1, 2017).

4.

Kansas Corporation Commission Docket No. 18-BTKT-033-KSF, Audit of Birch Telecom of Kansas, Inc. by the Kansas Universal Service Fund (KUSF) Administrator Pursuant to K.S.A. 2016 Supp. 66-2010(b) for KUSF Operating Year 20, Fiscal Year March 2016-February 2017.

5.

Kansas Corporation Commission Docket No. 18-TEMT-043-KSF, Audit of Tempo Telecom, LLC by the Kansas Universal Service Fund (KUSF) Administrator Pursuant to K.S.A. 2016 Supp. 66-2010(b) for KUSF Operating Year 20, Fiscal Year March 2016-February 2017.

-1-

6.

Kansas Corporation Commission Docket No. 18-ICIT-041-KSF, Audit of Ionex Communications, Inc. by the Kansas Universal Service Fund (KUSF) Administrator Pursuant to K.S.A. 2016 Supp. 66-2010(b) for KUSF Operating Year 20, Fiscal Year March 2016-February 2017.

7.

Richard W. Huskey v. Birch Communications, Inc., Ionex Communications, Inc., Birch Telecom of Missouri, Inc and certain named individual defendants (Circuit Court of St. Louis County, Missouri)

8.

Riepen v. Cbeyond, Inc. et al

9.

EB-TCD-15-00020193, Federal Communications Commission Letter of Inquiry to Birch Communications, Inc. (dated February 23, 2018).

10.

CenturyLink Communications, LLC, and Level 3 Communications, LLC, v. Birch Communications, Inc., Formal Complaint, Proceeding No. 18-73, Bureau ID No. EB-18-MD-002 (filed with Federal Communications Commission on March 23, 2018).

11. Attorney General of the State of Illinois, People of the State of Illinois v. Birch Telecom of the Great Lakes, Inc., Subpoena Duces Tecum (ref: Document #2018005), served via U.S. Mail April 17, 2018.

12. State of Oklahoma Office of Attorney General, Investigation of Birch Telecom of Oklahoma, LLC, Investigative Demand to Produce Documentary Material or Physical Evidence and Furnish a Report (issued April 25, 2018).

This letter agreement will be governed by, and construed and enforced in accordance with, the internal Laws of the State of Delaware, without regard to any applicable conflict of laws principles (whether of the State of Delaware or any other jurisdiction). This letter agreement may be executed in two or more counterparts, all of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the parties hereto and delivered to the other party, it being understood that each party need not sign the same counterpart.

-2-

If you agree with the foregoing, please sign and return a copy of this letter agreement, which will constitute our agreement with respect to the subject matter hereof.

Very truly yours,

BCHI HOLDINGS, LLC

By: /s/ Holcombe T. Green, Jr.                   

Name: Holcombe T. Green, Jr.

Title: Manager

AGREED AND ACCEPTED:

FUSION CONNECT, INC.

(f/k/a Fusion Telecommunications International, Inc.)

By: /s/ James P. Prenetta, Jr.                 

Name: James P. Prenetta, Jr.

Title: Executive Vice President and

         General Counsel

-3-

EX-10.8

May 4, 2018

PRIVATE & CONFIDENTIAL

Fusion Connect, Inc.

420 Lexington Avenue, Suite 1718

New York, New York 10170

Attention: General Counsel

Ladies and Gentlemen:

Reference is made to the Merger Agreement, dated as of August 25, 2017, as amended (the “Merger Agreement”), by and among the Fusion Connect, Inc. (formerly known as Fusion Telecommunications International, Inc.), a Delaware corporation (“Fusion”), Birch Communications Holdings, Inc., a Georgia corporation, and Fusion BCHI Acquisition LLC, a Delaware limited liability company (“Fusion BCHI”). Capitalized terms used but not defined herein have the meaning given to them in the Merger Agreement.

For a period of twenty four (24) months following the Closing (the “Indemnity Period”), BCHI Holdings, LLC, a Georgia limited liability company (“Holdings”), agrees to indemnify and hold harmless Birch Communications, LLC (“BCLLC'') and each other subsidiary that remained a subsidiary of BCLLC after the Closing (BCLLC and each such other subsidiary of BCLLC hereinafter collectively referred to as a “Covered Subsidiary”) from and against any and all asserted and/or actual liabilities for unpaid state income or franchise taxes, late fees and penalties and interest owed for 2017 and prior years and paid by BCLLC after the Closing. Notwithstanding the foregoing, Fusion BCHI agrees that Fusion BCHI shall cover the initial $1,000,000 of any actual tax liabilities (but not any late fees, penalties and interest associated therewith). Holdings shall have the right to assume the defense of these matters and shall have the right to settle such matters so long as such settlement does not involve any monetary payment by the Company and/or its Subsidiaries and does not otherwise have a material adverse effect on the business of the Company and its Subsidiaries with respect to any state taxes.

Amounts owed by Holdings under the foregoing indemnity may be paid in cash or through the transfer to Fusion of a number of shares of Fusion common stock equal to (rounded up or down to the nearest whole share) (1) the amount of such obligation divided by (2) the greater of (A) $3.00, or (B) the weighted average daily closing bid price of the Fusion common stock, as reported by NASDAQ (or any successor to such exchange), for five (5) consecutive trading days ending immediately prior to the third (3rd) business day preceding the date of such transfer. Any cash payment and/or return of shares of Fusion common stock shall be completed within five (5) business days of the date that the Covered Subsidiary's liability has been determined. During the Indemnity Period, Holdings shall, at all times, maintain in its name liquid assets and shares of Fusion common stock with an aggregate value of no less than $5.0 million; provided, that for the purposes of determining the value of shares of Fusion common stock, such shares will not be deemed to have a value of less than $3.00 per share, regardless of the then-current market price for such shares. Amounts owed by Holdings under this indemnity shall be settled within ten (10) days of the liability being incurred.

This letter agreement shall be governed by, and construed and enforced in accordance with, the internal Laws of the State of Delaware, without regard to any applicable conflict of laws principles (whether of the State of Delaware or any other jurisdiction). This letter agreement may be executed in two or more counterparts, each of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the parties and delivered to the other party, it being understood that each party need not sign the same counterpart.

[Signatures are on the following page]

If you agree with the foregoing, please sign and return a copy of this letter agreement, which will constitute our agreement with respect to the subject matter hereof.

Very truly yours,

BCHI HOLDINGS, LLC

By:  /s/ Holcombe T. Green. Jr. 

Name: Holcombe T. Green, Jr.

Title: Manager

ACKNOWLEDGED AND AGREED to

as of this 4th day of May, 2018:

FUSION CONNECT, INC.

By:  /s/ James P. Prenetta, Jr. 

Name: James P. Prenetta, Jr.

Title: Executive Vice President and General Counsel

[Signature Page to Side Letter]

EX-10.9

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

dated as of May 4, 2018,

among

FUSION CONNECT, INC.,

as Borrower,

CERTAIN SUBSIDIARIES OF FUSION CONNECT, INC.,

as Guarantor Subsidiaries,

THE LENDERS PARTY HERETO

and

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Administrative Agent and Collateral Agent

________________________________________________________

GOLDMAN SACHS LENDING PARTNERS LLC,

MORGAN STANLEY SENIOR FUNDING, INC.

and

MUFG UNION BANK, N.A.,

as Joint Lead Arrangers and Joint Bookrunners,

GOLDMAN SACHS LENDING PARTNERS LLC,

as Syndication Agent

________________________________________________________

$595,000,000 Senior Secured First Lien Credit Facilities

________________________________________________________

THE TRANCHE B TERM LOANS ISSUED PURSUANT TO THIS AGREEMENT WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED FROM TIME TO TIME. BEGINNING NO LATER THAN 10 DAYS AFTER THE CLOSING DATE, A LENDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY OF THE TRANCHE B TERM LOANS BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE BORROWER AT THE ADDRESS SET FORTH IN SCHEDULE 10.01.

TABLE OF CONTENTS

Page

SECTION 1.	DEFINITIONS AND INTERPRETATION	1
1.1.	Definitions	1
1.2.	Accounting Terms; Pro Forma Calculations	70
1.3.	Interpretation, Etc	71
1.4.	Classification of Loans and Borrowings	72
1.5.	Conditionality Testing Date	72
1.6.	Effectuation of Transactions	72
SECTION 2.	LOANS AND LETTERS OF CREDIT	73
2.1.	Term Loans	73
2.2.	Revolving Loans	74
2.3.	Letters of Credit	75
2.4.	Pro Rata Shares; Obligations Several; Availability of Funds	81
2.5.	Use of Proceeds	82
2.6.	Evidence of Debt; Register; Notes	82
2.7.	Interest on Loans and Letter of Credit Disbursements	83
2.8.	Conversion/Continuation	84
2.9.	Default Interest	85
2.10.	Fees	85
2.11.	Scheduled Installments; Repayment on Maturity Date	86
2.12.	Voluntary Prepayments/Commitment Reductions; Call Protection	87
2.13.	Mandatory Prepayments/Commitment Reductions	89
2.14.	Application of Prepayments; Waivable Mandatory Prepayments	93
2.15.	General Provisions Regarding Payments	94
2.16.	Ratable Sharing	95
2.17.	Making or Maintaining Eurodollar Rate Loans	96
2.18.	Increased Costs; Capital Adequacy and Liquidity	98
2.19.	Taxes; Withholding, Etc	100
2.20.	Obligation to Mitigate	103
2.21.	Defaulting Lenders	103
2.22.	Replacement of Lenders	107
2.23.	Incremental Facilities	107
2.24.	Extension/Modification Offers	111
2.25.	Refinancing Facilities	113
SECTION 3.	CONDITIONS PRECEDENT	115
3.1.	Closing Date	115
3.2.	Each Credit Extension	118
SECTION 4.	REPRESENTATIONS AND WARRANTIES	118
4.1.	Organization; Requisite Power and Authority; Qualification	119
4.2.	Equity Interests and Ownership	119
4.3.	Due Authorization	119
4.4.	No Conflict	119
4.5.	Governmental Approvals	119
4.6.	Binding Obligation	120
4.7.	Historical Financial Statements; Projections; Pro Forma Financial Statements	120
4.8.	No Material Adverse Effect	120
4.9.	Adverse Proceedings	120

i

4.10.	Payment of Taxes	121
4.11.	Properties	121
4.12.	Environmental Matters	121
4.13.	No Defaults	121
4.14.	Investment Company Act	122
4.15.	Federal Reserve Regulations	122
4.16.	Employee Benefit Plans	122
4.17.	Solvency	123
4.18.	Compliance with Laws	123
4.19.	Disclosure	123
4.20.	Collateral Matters	123
4.21.	Sanctioned Persons; Anti-Corruption Laws; PATRIOT Act	124
4.22.	Communications Regulatory Matters	124
SECTION 5.	AFFIRMATIVE COVENANTS	125
5.1.	Financial Statements and Other Reports	125
5.2.	Existence, Licenses, Etc	129
5.3.	Payment of Taxes	129
5.4.	Maintenance of Properties	129
5.5.	Insurance	129
5.6.	Books and Records; Inspections	130
5.7.	Lenders Meetings	130
5.8.	Compliance with Laws	130
5.9.	Environmental Matters	130
5.10.	Subsidiaries	131
5.11.	Additional Collateral	131
5.12.	Further Assurances	131
5.13.	Maintenance of Ratings	131
5.14.	Use of Proceeds	131
5.15.	Post-Closing Matters	132
5.16.	Vector Subordinated Note Cash Collateral Account	132
SECTION 6.	NEGATIVE COVENANTS	132
6.1.	Indebtedness	132
6.2.	Liens	138
6.3.	No Further Negative Pledges	141
6.4.	Restricted Junior Payments	142
6.5.	Restrictions on Subsidiary Distributions	144
6.6.	Investments	145
6.7.	Financial Covenants	148
6.8.	Fundamental Changes; Disposition of Assets; Equity Interests of Subsidiaries	150
6.9.	Sales and Leasebacks	151
6.10.	Transactions with Affiliates	152
6.11.	Conduct of Business	152
6.12.	Hedge Agreements	152
6.13.	Amendments or Waivers of Organizational Documents and Certain Agreements	152
6.14.	Fiscal Year	152
SECTION 7.	GUARANTEE	153
7.1.	Guarantee of the Obligations	153
7.2.	Indemnity by the Borrower; Contribution by the Guarantors	153
7.3.	Liability of Guarantors Absolute	154

ii

7.4.	Waivers by the Guarantors	155
7.5.	Guarantors’ Rights of Subrogation, Contribution, Etc	156
7.6.	Continuing Guarantee	156
7.7.	Authority of the Guarantors or the Borrower	156
7.8.	Financial Condition of the Credit Parties	157
7.9.	Bankruptcy, Etc	157
7.10.	Keepwell	158
SECTION 8.	EVENTS OF DEFAULT	158
8.1.	Events of Default	158
SECTION 9.	AGENTS	161
9.1.	Appointment of Agents	161
9.2.	Powers and Duties	161
9.3.	General Immunity	162
9.4.	Acts in Individual Capacity	164
9.5.	Lenders’ and Issuing Banks’ Representations, Warranties and Acknowledgments	164
9.6.	Right to Indemnity	165
9.7.	Successor Administrative Agent and Collateral Agent	166
9.8.	Collateral Documents and Obligations Guarantee	167
9.9.	Withholding Taxes	170
9.10.	Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim	170
9.11.	Certain ERISA Matters	171
9.12.	Concerning the Vector Facility Arrangements	173
SECTION 10.	MISCELLANEOUS	174
10.1.	Notices	174
10.2.	Expenses	176
10.3.	Indemnity	176
10.4.	Set-Off	177
10.5.	Amendments and Waivers	178
10.6.	Successors and Assigns; Participations	182
10.7.	Independence of Covenants	188
10.8.	Survival of Representations, Warranties and Agreements	189
10.9.	No Waiver; Remedies Cumulative	189
10.10.	Marshalling; Payments Set Aside	189
10.11.	Severability	190
10.12.	Independent Nature of Lenders’ Rights	190
10.13.	Headings	190
10.14.	APPLICABLE LAW	190
10.15.	CONSENT TO JURISDICTION	190
10.16.	WAIVER OF JURY TRIAL	191
10.17.	Confidentiality	192
10.18.	Usury Savings Clause	193
10.19.	Counterparts	193
10.20.	Effectiveness; Entire Agreement	193
10.21.	PATRIOT Act	193
10.22.	Electronic Execution of Assignments	193
10.23.	No Fiduciary Duty	194
10.24.	Permitted Intercreditor Agreements	194
10.25.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	195

iii

SCHEDULES:           

2.1            

Commitments

2.3            Letter of Credit Issuing Commitments

4.2            Equity Interests and Ownership

4.11(b)     Real Estate

6.1            Indebtedness

6.2            Liens

6.3            Negative Pledges

6.5            Restrictions on Subsidiary Distributions

6.6            Investments

6.10          Affiliate Transactions

10.1          Notices

EXHIBITS:        

A            

Assignment Agreement

B

Closing Date Certificate

C

Compliance Certificate

D

Conversion/Continuation Notice

E

Counterpart Agreement

F

Funding Notice

G

Intercompany Indebtedness Subordination Agreement

H

Intercompany Note

I

Intercreditor Agreement

J

Issuance Notice

K

Pledge and Security Agreement

L

Solvency Certificate

M

Supplemental Collateral Questionnaire

N

Form of Note

O-1

Form of US Tax Certificate For Foreign Lenders That Are Not Partnerships For US Federal Income Tax Purposes

O-2

Form of US Tax Certificate For Foreign Participants That Are Not Partnerships For US Federal Income Tax Purposes

O-3

Form of US Tax Certificate For Foreign Participants That Are Partnerships For US Federal Income Tax Purposes

O-4

Form of US Tax Certificate For Foreign Lenders That Are Partnerships For US Federal Income Tax Purposes

iv

FIRST LIEN CREDIT AND GUARANTY AGREEMENT dated as of May 4, 2018, among FUSION CONNECT, INC., a Delaware corporation (the“Borrower”), CERTAIN SUBSIDIARIES OF THE BORROWER party hereto, as Guarantor Subsidiaries, the LENDERS party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Administrative Agent and Collateral Agent.

The Lenders have agreed to extend credit facilities to the Borrower in an aggregate principal amount of $595,000,000, consisting of Tranche A Term Loans in an aggregate principal amount of $45,000,000, Tranche B Term Loans in an aggregate principal amount of $510,000,000 and Revolving Commitments in an aggregate initial amount of $40,000,000.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1.DEFINITIONS AND INTERPRETATION

1.1.Definitions.As used in this Agreement (including the recitals hereto), the following terms have the meanings specified below:

“Acquired Company” means Birch Communications Holdings, Inc., a Georgia corporation.

“Acquired Company Indemnity Letter Agreement” means the letter agreement dated August 26, 2017, pursuant to which BCHI Holdings, LLC, a Georgia limited liability company, agreed to indemnify the Borrower and its Subsidiaries with respect to certain Adverse Proceedings, as such letter agreement is in effect on the Closing Date.

“Acquisition” means the purchase or other acquisition (in one transaction or a series of transactions, including pursuant to any merger or consolidation) of all or substantially all the issued and outstanding Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person.

“Acquisition Consideration” means, with respect to any Acquisition, the purchase consideration for such Acquisition, whether paid in Cash or other property (valued at the fair value thereof, as determined reasonably and in good faith by an Authorized Officer of the Borrower), but excluding any component thereof consisting of Equity Interests in the Borrower (other than any Disqualified Equity Interests) and whether payable at or prior to the consummation of such Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and including (a) any earnouts and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flows or profits (or the like) of the Person or assets being acquired, provided that any such future payment that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve, if any, required under GAAP to be established by the Borrower or any Restricted Subsidiary in respect thereof at the time of the consummation of such Acquisition, and (b) the aggregate amount of Indebtedness assumed by the Borrower or any Restricted Subsidiary in connection with such Acquisition.

“Adjusted Eurodollar Rate” means, for any Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (a) (i) the rate per annum determined by the Administrative Agent to be the rate that appears on the page of the Reuters Screen that displays the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) (such page currently being LIBOR01 page) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London time) on the Interest Rate Determination Date for such Interest Period, or (ii) in the event the rate referred to in the preceding clause (i) does not appear on such page or if the Reuters Screen shall cease to be available, the rate per annum determined by the Administrative Agent to be the offered rate on such other page or other service that displays the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London time) on such Interest Rate Determination Date, by (b) an amount equal to one minus the Applicable Reserve Requirement; provided that, notwithstanding the foregoing, (A) if the Adjusted Eurodollar Rate, determined as provided above, would otherwise be less than zero, then the Adjusted Eurodollar Rate shall be deemed to be zero and (B) in the case of Tranche A Term Loans and Tranche B Term Loans, the Adjusted Eurodollar Rate shall at no time be less than 1.00% per annum.

“Administrative Agent” means Wilmington Trust, in its capacity as administrative agent for the Lenders hereunder and under the other Credit Documents, and its successors in such capacity as provided in Section 9.

“Administrative Agent Fee Letter” means the Fee Letter, dated as of the Closing Date, between Wilmington Trust and the Borrower.

“Adverse Proceeding” means any action, suit, proceeding, hearing or investigation, in each case whether administrative, judicial or otherwise, by or before any Governmental Authority or any arbitrator, that is pending or, to the knowledge of the Borrower or any Subsidiary, threatened in writing against or affecting the Borrower or any Subsidiary or any property of the Borrower or any Subsidiary.

“Affected Lender” as defined in Section 2.17(b).

“Affected Loans” as defined in Section 2.17(b).

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with the Person specified; provided that for purposes of Section 6.10, the term “Affiliate” also means any Person that directly or indirectly beneficially owns Equity Interests in the Person specified representing 10% or more of the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding Equity Interests in the Person specified and any Person that would be an Affiliate of any such beneficial owner pursuant to this definition (but without giving effect to this proviso).

“Agent” means each of (a) the Administrative Agent, (b) the Collateral Agent, (c) the Syndication Agent, (d) the Arrangers and (e) any other Person appointed under the Credit Documents to serve in an agent or similar capacity, including any Auction Manager.

“Aggregate Amounts Due” as defined in Section 2.16.

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“Aggregate Payments” as defined in Section 7.2(b).

“Agreement” means this First Lien Credit and Guaranty Agreement dated as of May 4, 2018.

“Anti-Corruption Laws”as defined in Section 4.21.

“Applicable ECF Percentage” means, with respect to any Fiscal Year, (a) 50% if the Total Net Leverage Ratio as of the last day of such Fiscal Year is greater than 2.90:1.00, (b) 25% if the Total Net Leverage Ratio as of the last day of such Fiscal Year is equal to or less than 2.90:1.00 but greater than 2.40:1.00 and (c) 0% if the Total Net Leverage Ratio as of the last day of such Fiscal Year is equal to or less than 2.40:1.00.

“Applicable Rate” means, on any day, (a) with respect to any Tranche A Term Loan, (i) 4.00% per annum, in the case of a Base Rate Loan, and (ii) 5.00% per annum, in the case of a Eurodollar Rate Loan, (b) with respect to any Tranche B Term Loan, (i) 6.50% per annum, in the case of a Base Rate Loan, and (ii) 7.50% per annum, in the case of a Eurodollar Rate Loan, (c) with respect to any Revolving Loan, (i) from the Closing Date until the third Business Day following the date of the delivery of the financial statements pursuant to Section 5.1(b) for the Fiscal Quarter ending June 30, 2018, and of the related Compliance Certificate pursuant to Section 5.1(c), (A) 4.00% per annum, in the case of a Base Rate Loan, and (B) 5.00% per annum, in the case of a Eurodollar Rate Loan and (ii) thereafter, as set forth in the table below, as determined based on the First Lien Net Leverage Ratio as of the end of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) and the related Compliance Certificate has been delivered pursuant to Section 5.1(c), in each case, at least three Business Days prior to such day, and (d) with respect to Loans of any other Class, the rate per annum specified in the Incremental Facility Agreement, the Extension/Modification Agreement or the Refinancing Facility Agreement, as the case may be, establishing Loans of such Class.

Pricing Level	First Lien Net Leverage Ratio	Applicable Rate for Revolving Loans that are Eurodollar Rate Loans	Applicable Rate for Revolving Loans that are Base Rate Loans
1	> 2.45:1.00	5.00%	4.00%
2	≤  2.45:1.00 but > 1.70:1.00	4.75%	3.75%
3	≤  1.70:1.00	4.50%	3.50%

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Any increase or decrease in the Applicable Rate for Revolving Loans resulting from a change in the First Lien Net Leverage Ratio shall become effective as of the third Business Day following the date the financial statements and the related Compliance Certificate are delivered to the Administrative Agent pursuant to Section 5.1(a) or 5.1(b) and Section 5.1(c); provided that if the Borrower has not delivered to the Administrative Agent any financial statements or Compliance Certificate required to have been delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(c), from and after the date such financial statements or Compliance Certificate were required to have been so delivered the Applicable Rate for Revolving Loans shall be determined by reference to Pricing Level 1 in the table above and shall continue to so apply to and including the third Business Day following the date such financial statements and related Compliance Certificate are so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (b) as of the first Business Day after an Event of Default under Section 8.1(a), 8.1(f) or 8.1(g) shall have occurred and be continuing, the Applicable Rate for Revolving Loans shall be determined by reference to Pricing Level 1 in the table above, and shall continue to so apply to but excluding the date on which such Event of Default shall cease to be continuing (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).

If any financial statements or Compliance Certificate delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(c) shall prove to have been inaccurate, and such inaccuracy shall have resulted in the payment of interest hereunder at lower rates than those that would have been paid but for such inaccuracy, then (i) the Borrower shall promptly deliver to the Administrative Agent corrected financial statements and a corrected Compliance Certificate for such period and (ii) the Borrower shall promptly pay to the Administrative Agent, for the account of the Revolving Lenders, the interest that should have been paid but were not paid as a result of such inaccuracy. Nothing in this paragraph shall limit the rights of the Administrative Agent or any Lender under Section 2.9 or 8.

“Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic, marginal, special, supplemental, emergency or other reserves) are required to be maintained by member banks of the United States Federal Reserve System against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (a) any category of liabilities that includes deposits by reference to which the applicable Adjusted Eurodollar Rate or any other interest rate for a Loan is to be determined or (b) any category of extensions of credit or other assets that includes Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without the benefit of credits for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.

“Approved Cost Savings” means “run rate” net cost savings, operating expense reductions and other operating improvements and synergies attributable to (a) the Transactions and reflected in the model delivered to the Arrangers prior to the Closing Date or (b) the Specified Acquisition and reflected in the quality of earnings report delivered to the Arrangers in respect of the Specified Acquisition prior to the Closing Date; provided that, in the case of this clause (b), (i) such Acquisition is consummated on or prior to December 31, 2018 and (ii) the Approved Cost Savings permitted by this clause (b) shall not exceed $16,700,000 in the aggregate.

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“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Credit Party, or its counsel or advisors, provides to any Agent that is distributed to any Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to Section 10.1(b).

“Arrangers” means Goldman Sachs, MSSF and MUFG, each in its capacity as a joint lead arranger and joint bookrunner for the credit facilities established under this Agreement.

“Asset Sale” means any Disposition of assets (other than Dispositions made in reliance on Section 6.8(b)(i), (ii), (iii), (iv), (vi), (vii) or (viii)), other than any such Disposition (or series of related Dispositions) resulting in aggregate Net Proceeds not exceeding $5,000,000 during any Fiscal Year.

“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit A, with such amendments or modifications thereto as may be approved by the Administrative Agent.

“Assignment Effective Date”as defined in Section 10.6(b).

“Auction” as defined in Section 10.6(i)(i).

“Auction Manager” means (a) the Administrative Agent or (b) any other financial institution agreed to by the Borrower and the Administrative Agent (whether or not an Affiliate of the Administrative Agent) to act as an auction manager in connection with any Auction; provided that the Borrower shall not designate the Administrative Agent as the Auction Manager without the prior written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Manager).

“Authorized Officer” means, with respect to any Person, any individual holding the position of chief executive officer, president, chief operating officer, chief financial officer, principal accounting officer, treasurer, secretary, assistant secretary, executive vice president or senior vice president of such Person; provided that, when such term is used in reference to any document executed by, or a certification of, an Authorized Officer, the secretary or assistant secretary of such Person shall have delivered an incumbency certificate to the Administrative Agent as to the authority of such individual.

“Available Basket Amount” means, as of any date:

(a)  the Available Excess Cash Flow Amount as of such date; plus

(b)  the Declined Mandatory Prepayment Retained Amount as of such date; plus

(c)  [reserved]; plus

(d)  the aggregate amount of Returns and, without duplication, dividends, distributions and other returns on capital received in Cash or Cash Equivalents as of such date in respect of any Acquisition or other Investments made (or deemed made pursuant to the definition of the term “Unrestricted Subsidiary”) using the Available Basket Amount, provided that the aggregate amount by which the Available Basket Amount is increased pursuant to this clause (d) in respect of any Acquisition or other Investment shall not exceed the amount by which the Available Basket Amount shall have been reduced on account of the Acquisition Consideration with respect to such Acquisition or the original amount of any such other Investment; plus

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(e)  without duplication of amounts otherwise increasing the Available Basket Amount pursuant to clause (d) above, in the event any Unrestricted Subsidiary has been designated as a Restricted Subsidiary, or has been merged or consolidated with the Borrower or a Restricted Subsidiary (where the surviving entity in such merger or consolidation is the Borrower or a Restricted Subsidiary), or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, on or prior to such date, the lesser of (i) the amount of all Investments made using the Available Basket Amount in such Unrestricted Subsidiary (including any such Investment deemed made pursuant to the definition of the term “Unrestricted Subsidiary”), net of the aggregate amount, if any, by which the Available Basket Amount shall have been increased prior to such time in respect of such Investments pursuant to clause (d) above, and (ii) the fair value of such Unrestricted Subsidiary (as determined reasonably and in good faith by an Authorized Officer of the Borrower) at the time it is designated as a Restricted Subsidiary or the time of such merger, consolidation, transfer, conveyance or liquidation, as applicable; minus

(f)  the portion of the Available Basket Amount utilized after the Closing Date and on or prior to such date pursuant to Section 6.4(j) or 6.6(n), with the utilization pursuant to Section 6.6(n) for any Acquisition being the Acquisition Consideration in respect thereof and the utilization pursuant to Section 6.6(n) for any other Investment (or any deemed Investment in respect of any designation of an Unrestricted Subsidiary) being the amount thereof as of the date the applicable Investment is made, determined in accordance with the definition of “Investment” (or the definition of “Unrestricted Subsidiary”).

“Available Excess Cash Flow Amount” means, as of any date, an amount equal to the sum, for the Fiscal Years of the Borrower in respect of which financial statements and the related Compliance Certificate have been delivered in accordance with Sections 5.1(a) and 5.1(c), and for which prepayments required by Section 2.13(e) (if any) have been made, in each case on or prior to such date (commencing with the Fiscal Year ending December 31, 2019), of the products of (a) the amount of Consolidated Excess Cash Flow (to the extent such amount exceeds zero) for each such Fiscal Year multiplied by (b) the Retained ECF Percentage for such Fiscal Year (it being understood that the Retained ECF Percentage of Consolidated Excess Cash Flow for any such Fiscal Year shall be included in the Available Excess Cash Flow Amount regardless of whether a prepayment is required for such Fiscal Year under Section 2.13(e)).

“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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

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

“Base Rate” means, for any day, the rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% per annum and (c) the Adjusted Eurodollar Rate that would be applicable to a Eurodollar Rate Loan with an Interest Period of one month commencing on such day plus 1%; provided that, notwithstanding the foregoing, (i) if the Base Rate, determined as provided above, would otherwise be less than 1.00% per annum, then the Base Rate shall be deemed to be 1.00% per annum and (ii) in the case of Tranche A Term Loans and Tranche B Term Loans, the Base Rate shall at no time be less than 2.00% per annum. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate shall be effective on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate, as the case may be.

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“Base Rate Borrowing” means a Borrowing comprised of Base Rate Loans.

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

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

“Borrower” as defined in the preamble hereto.

“Borrowing”means Loans of the same Class and Type made, converted or continued on the same date and, in the case of Eurodollar Rate Loans, as to which a single Interest Period is in effect.

“Business Day” means any day other than a Saturday or Sunday, a day that is a legal holiday under the laws of the State of New York or a day on which banking institutions located in such State are authorized or required by law to remain closed; provided that, with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loan, such day is also a day for trading by and between banks in Dollar deposits in the London interbank market.

“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person in conformity with GAAP, subject to Section 1.2(a). The amount of such obligations shall be the capitalized amount thereof determined in conformity with GAAP, subject to Section 1.2(a), and the final maturity of such obligations shall be the date of the last payment due under such lease (or other arrangement) before such lease (or other arrangement) may be terminated by the lessee without payment of a premium or penalty. For purposes of Section 6.2, a Capital Lease Obligation shall be deemed to be secured by a Lien on the property being leased and such property shall be deemed to be owned by the lessee.

“Cash” means money, currency or a credit balance in any demand or deposit account.

“Cash Collateralize” means, with respect to any Obligation, to provide and pledge (as a first priority perfected security interest) cash collateral or Cash Equivalents in Dollars, at a location and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable Issuing Bank. The term “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Cash Equivalents” means, as at any date of determination, any of the following: (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States of America or (ii) issued by any agency of the United States of America and backed by the full faith and credit of the United States of America, in each case maturing within one year after such date; (b) marketable direct obligations issued by any State of the United States of America or the District of Columbia or any political subdivision of any such State or District or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (c) commercial paper maturing no more than 270 days from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) time deposits, certificates of deposit or bankers’ acceptances maturing within 270 days after such date and issued or accepted by any Revolving Lender or by any commercial bank organized or licensed to conduct a banking business under the laws of the United States of America, any State thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $500,000,000; (e) fully collateralized repurchase agreements with a term of not more than 30 days from such date for securities described in clause (a) or clause (b) above and entered into with a financial institution satisfying the criteria described in clause (d) above; (f) shares of any money market mutual fund that (i) has substantially all its assets invested continuously in the types of investments referred to in clauses (a) through (e) above, (ii) has net assets of not less than $5,000,000,000 and (iii) has ratings of at least AA+ from S&P or at least Aa1 from Moody’s; and (g) in the case of any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.

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“Cash Management Services” means cash management and related services provided to the Borrower or any Restricted Subsidiary, including treasury, depository, return items, overdraft, controlled disbursement, cash sweeps, zero balance arrangements, merchant stored value cards, e-payables, electronic funds transfer, interstate depository network and automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) services and credit cards, credit card processing services, debit cards, stored value cards and commercial cards (including so-called “‘purchase cards”, “procurement cards” or “p-cards”) arrangements.

“Cash Management Services Provider” means any Person that (a) is, or was on the Closing Date, an Agent, an Arranger, an Issuing Bank or any Affiliate of any of the foregoing, whether or not such Person shall have been an Agent, an Arranger or any Affiliate of any of the foregoing at the time the applicable agreement in respect of Cash Management Services was entered into, (b) is a counterparty to an agreement in respect of Cash Management Services in effect on the Closing Date and is a Lender or an Affiliate of a Lender as of the Closing Date or (c) becomes a counterparty after the Closing Date to an agreement in respect of Cash Management Services at a time when such Person is a Lender or an Affiliate of a Lender.

“CFC” means (a) any Person that is a “controlled foreign corporation” (within the meaning of Section 957 of the Internal Revenue Code), but only if a Credit Party or a “United States person” (within the meaning of Section 7701(a)(30) of the Internal Revenue Code) that is an Affiliate of a Credit Party is, with respect to such Person, a “United States shareholder” (within the meaning of Section 951(b) of the Internal Revenue Code) described in Section 951(a)(1) of the Internal Revenue Code and (b) each Subsidiary of any Person described in clause (a).

“CFC Holding Company” means each Subsidiary that is treated as a partnership or a disregarded entity for United States federal income tax purposes and that has no material assets other than assets that consist (directly or indirectly through disregarded entities or partnerships) of Equity Interests or indebtedness (as determined for United States tax purposes) in one or more CFCs or CFC Holding Companies.

“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any rule, regulation, treaty or other law, (b) any change in any rule, regulation, treaty or other 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, promulgated or issued.

“Change of Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder), other than Permitted Holders, of Equity Interests in the Borrower representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in the Borrower, or (b) the occurrence of any “change of control” (or similar event, however denominated) with respect to the Borrower under and as defined in any Permitted Second Lien Indebtedness Document, any Permitted Incremental Equivalent Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Subordinated Indebtedness or in any indenture or other agreement or instrument evidencing, governing the rights of the holders of or otherwise relating to any other Material Indebtedness of the Borrower or any Restricted Subsidiary.

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“Claiming Guarantor” as defined in Section 7.2(b).

“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche A Term Loans or Tranche B Term Loans or Loans of another “Class” established pursuant to Section 2.23, 2.24 or 2.25 as contemplated below, (b) any Commitment, refers to whether such Commitment is a Revolving Commitment, a Tranche A Term Loan Commitment or a Tranche B Term Loan Commitment or a Commitment of another “Class” established pursuant to Section 2.23, 2.24 or 2.25 as contemplated below and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class. Additional Classes of Loans, Borrowings, Commitments and Lenders may be created pursuant to Section 2.23, 2.24 or 2.25 and, as provided in Section 2.23, 2.24 or 2.25, any Incremental Term Loans, any Extended/Modified Term Loans or any Refinancing Term Loans may be treated as a single Class with any other Class of Term Loans having the same terms as such Incremental Term Loans, Extended/Modified Term Loans or Refinancing Term Loans, as applicable.

“Closing Date” means the date on which the conditions specified in Section 3.1 have been satisfied (or waived in accordance with Section 10.5).

“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit B.

“Closing Date Common Equity Issuance” means the issuance and sale, on the Closing Date, by the Borrower of shares of its common stock, par value $0.01 per share, for gross cash proceeds of $4,999,998.50.

“Closing Date Preferred Stock” means a new series of preferred stock of the Borrower, designated as Series D Cumulative Preferred Stock, par value $0.01 per share, issued and sold on the Closing Date by the Borrower to Holcombe T. Green, Jr. (or an entity majority-owned and Controlled by Holcombe T. Green, Jr.), for gross cash proceeds of $14,700,000.

“Closing Date Prepayment” means the prepayment on or prior to the Closing Date of a portion of the Existing Subordinated Notes in an aggregate principal amount of $3,000,000, plus a further reduction on the Closing Date in the aggregate principal amount of the Existing Subordinated Notes resulting from the set-off against the aggregate principal amount thereof on the Closing Date of a $920,000 receivable owed by one or more of the holders of the Existing Subordinated Notes.

“Closing Date Refinancing” means (a) the payment and discharge of the principal of and interest accrued on all outstanding Indebtedness and all other amounts outstanding or accrued, including all prepayment premium, under the Existing Debt Documents, the termination of the commitments thereunder and the cancellation or termination, or the cash collateralizing or backstopping with Letters of Credit in a manner reasonably satisfactory to the Administrative Agent, of all letters of credit outstanding thereunder, (b) the termination and release of all Guarantees and Liens supporting or securing any of the Indebtedness or other obligations referred to in the foregoing clause (a) or created under the documentation governing any such Indebtedness and (c) the making of the Closing Date Prepayment.

“Collateral” means, collectively, all of the property (including Equity Interests) on which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.

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“Collateral Agent”means Wilmington Trust, in its capacity as collateral agent for the Secured Parties under the Credit Documents, and its successors in such capacity as provided in Section 9.

“Collateral and Guarantee Requirement” means, at any time, the requirement that:

(a)  the Administrative Agent shall have received from the Borrower and each Designated Subsidiary either (i) a counterpart of this Agreement duly executed and delivered on behalf of such Person, or (ii) in the case of any Person that becomes a Designated Subsidiary after the Closing Date, a Counterpart Agreement duly executed and delivered on behalf of such Person;

(b)  the Collateral Agent shall have received from the Borrower and each Designated Subsidiary (i) either (A) a counterpart of the Pledge and Security Agreement, duly executed and delivered on behalf of such Person, or (B) in the case of any Person that becomes a Designated Subsidiary after the Closing Date, a supplement to the Pledge and Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, and (ii) an acknowledgment of the Intercreditor Agreement and, if then in effect, each other Permitted Intercreditor Agreement, in each case, in the form specified therein, duly executed and delivered on behalf of such Person;

(c)  in the case of any Person that becomes a Designated Subsidiary after the Closing Date, the Administrative Agent shall have received, to the extent requested by the Administrative Agent, documents, opinions and certificates of the type referred to in Sections 3.1(b), 3.1(d), 3.1(e), 3.1(f) and 3.1(k) with respect to such Designated Subsidiary;

(d)  all Equity Interests owned by or on behalf of any Credit Party shall have been pledged pursuant to the Pledge and Security Agreement (provided that the Credit Parties shall not be required to pledge (i) more than 65% of the outstanding voting Equity Interests in any CFC or CFC Holding Company or (ii) Equity Interests that constitute Excluded Property), and the Collateral Agent shall, to the extent required by the Pledge and Security Agreement, have received certificates or other instruments representing all such Equity Interests, together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;

(e)  (i) the Borrower and each Restricted Subsidiary shall have duly executed and delivered a counterpart of each of the Intercompany Note and the Intercompany Indebtedness Subordination Agreement and (ii) all Indebtedness of any other Person in a principal amount of $1,000,000 or more that is owing to any Credit Party shall be evidenced by a promissory note, and the Intercompany Note, each other promissory note (if any) evidencing Indebtedness of the Borrower or any Restricted Subsidiary to any Credit Party and each promissory note referred to in clause (ii) above shall, in each case, have been pledged pursuant to the Pledge and Security Agreement and the Collateral Agent shall have received the Intercompany Note and all such other promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;

(f)  all instruments and documents, including UCC financing statements (including transmitting utility financing statements), required by applicable law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Collateral Documents and to perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents shall have been filed, registered or recorded; and

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(g)  the Collateral Agent shall have received (i) a Mortgage with respect to each Material Real Estate Asset, if any, duly executed and delivered by the record owner of such Material Real Estate Asset, (ii) a fully paid policy or policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each Mortgage as a valid and enforceable Lien on the Material Real Estate Asset described therein, free of any other Liens other than Permitted Liens, which policies shall be in form and substance reasonably satisfactory to the Collateral Agent, together with such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request, (iii) a completed Flood Certificate with respect to each Material Real Estate Asset, which Flood Certificate shall be addressed to the Collateral Agent and shall otherwise comply with the Flood Program and if the Flood Certificate with respect to any Material Real Estate Asset states that any “Building” (as defined in 12 CFR Chapter III, Section 339.2) included as part of such Material Real Estate Asset is located in a Flood Zone, (A) a written notification from the applicable Credit Party to the Collateral Agent as to the existence of such Material Real Estate Asset and as to whether the community in which such Material Real Estate Asset is located is participating in the Flood Program and (B) if such Material Real Estate Asset is located in a community that participates in the Flood Program, evidence that the applicable Credit Party has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program and other applicable law (including as to the amount of insurance coverage required thereunder), provided that the foregoing requirements of this clause (iii) shall be completed (and copies of such Flood Certificate and, if applicable, such acknowledgement and evidence of flood insurance shall have been made available to the Lenders) at least 20 Business Days (or such shorter period within which each of the Revolving Lenders shall have advised the Collateral Agent that its flood insurance due diligence and flood insurance compliance have been completed) prior to the execution and delivery of a Mortgage with respect to such Material Real Estate Asset, (iv) with respect to any Material Real Estate Asset encumbered by a Lien that is to be subordinated to the Lien created in accordance with this Agreement and the other Credit Documents, an amendment or agreement of subordination duly executed and delivered with respect to any Lien or encumbrance that, but for such subordination, would have priority over the Mortgage delivered to the Collateral Agent and (v) such surveys, abstracts, appraisals, legal opinions and other documents as the Collateral Agent may reasonably request with respect to any such Mortgage or Material Real Estate Asset.

The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions, consents, approvals or other deliverables with respect to, any particular assets of the Credit Parties if and for so long as the Collateral Agent, in consultation with the Borrower, determines that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such deliverables shall be excessive in relation to the benefit that would be afforded to the Lenders therefrom. The Collateral Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Obligations Guarantee by any Restricted Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents.

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary:

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(aa) the Collateral and Guarantee Requirement shall not apply to any of the following assets (collectively, the “Excluded Property”; each capitalized term used in this clause (aa) but not defined in this Agreement having the meaning given to it in the Pledge and Security Agreement): (i) any Leasehold Property and any Real Estate Asset that is not a Material Real Estate Asset, (ii) any motor vehicles and other assets subject to certificates of title, except to the extent perfection of a security interest therein may be accomplished by the filing of UCC financing statements or an equivalent thereof in appropriate form in the applicable jurisdiction, (iii) any Commercial Tort Claim as to which the claim thereunder is less than $2,000,000, (iv) (A) any assets if, for so long as and to the extent a security interest may not be granted in such assets as a matter of applicable law, (B) any lease, license (including any License), contract or other agreement or any rights or interests thereunder if, for so long as and to the extent the grant of a security interest therein would (x) constitute or result in (1) the unenforceability of any right, title or interest of the applicable Credit Party in or (2) a breach or termination pursuant to the terms of, or a default under, such lease, license, contract or other agreement or (y) require a consent, approval, license or authorization not obtained from a Governmental Authority or third party, except, in each case under this clause (B), to the extent that such breach or default is ineffective under the UCC or other applicable law or principles of equity, and (C) any property subject to a Lien securing any purchase money obligation or Capital Lease Obligation (or any Refinancing Indebtedness in respect thereof) if, for so long as and to the extent the grant of a security interest therein would constitute or result in a breach or a default under the related agreements, provided that this clause (C) shall apply only if such Lien and such purchase money obligation or Capital Lease Obligation are permitted hereunder, except, in each case under this clause (iv) to the extent that such law or the terms in such lease, license, contract or other agreement providing for such prohibition, breach, right of termination or default or requiring such consent, approval, license or authorization is ineffective under the UCC or other applicable law or principles of equity, provided further that this clause (iv) shall not exclude Proceeds thereof and Accounts and Payment Intangibles arising therefrom the assignment of which is deemed effective under the UCC, (v) any governmental licenses or state or local franchises, charters and authorizations of a Governmental Authority if, for so long as and to the extent the grant of a security interest therein is prohibited or restricted by applicable law (including the CPCN issued in Colorado to Cbeyond Communications LLC and to Fusion LLC (formerly known as Network Billing Systems, LLC)), except, in each case under this clause (v), to the extent that such prohibition or restriction is ineffective under the UCC or other applicable law or principles of equity, provided that this clause (v) shall not exclude Proceeds thereof and Accounts and Payment Intangibles arising therefrom the assignment of which is deemed effective under the UCC, (vi) Equity Interests in any Person that is not a wholly owned Restricted Subsidiary if, for so long as and to the extent (A) the Organizational Documents of such Person or any related joint venture, shareholders’ or similar agreement prohibits or restricts such pledge without the consent of any Person other than the Borrower or a Restricted Subsidiary (it being understood that none of the Credit Parties shall be required to seek the consent of third parties thereunder), or (B) in the case of any Person that is not a Restricted Subsidiary (including any Unrestricted Subsidiary), such Equity Interests have been pledged in connection with any Indebtedness of such Person (but only to the extent that such Equity Interests remain pledged in connection with such Indebtedness), (vii) any “intent to use” trademark application for which a statement of use has not been filed with the United States Patent and Trademark Office, but only to the extent that the grant of a security interest therein would invalidate such trademark application, (viii) any Letter-of-Credit Rights (except to the extent constituting a Supporting Obligation of other Collateral as to which perfection of a security interest therein may be accomplished solely by the filing of a UCC financing statement in the applicable jurisdiction (it being understood that no actions shall be required to perfect a security interest in a Letter-of-Credit Rights, other than the filing of a UCC financing statement)), and (ix) the deposit account, and all Cash on deposit therein, pledged or assigned as collateral to East West Bank to secure the Existing EWB Letter of Credit, and in each case of this clause (aa) other than any Proceeds, substitutions or replacements of the foregoing (unless such Proceeds, substitutions or replacements themselves would constitute assets described in clauses (i) through (ix) above); provided, in each case, that such assets shall constitute Excluded Property only if they are not subject to any Lien securing any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness; and

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(bb)  (i) no delivery of certificates or other instruments representing Equity Interests in any Subsidiaries that are not Material Subsidiaries shall be required, (ii) other than with respect to the Escrow Cash Collateral as provided in Section 3.1(r) and the Vector Subordinated Note Cash Collateral Account as required by Section 5.16, there shall be no requirement to obtain any control agreements with respect to any deposit accounts or securities accounts, (iii) there shall be no requirement to obtain any landlord waivers, estoppels, collateral access letters or similar third party agreements and (iv) no security or pledge agreements governed under the laws of any non-US jurisdiction shall be required, and no actions in any non-US jurisdiction shall be required in order to create or perfect any security interest in assets located or titled outside the United States.

“Collateral Documents” means the Pledge and Security Agreement, the Mortgages, if any, the Intellectual Property Security Agreements, the Escrow Cash Collateral Control Agreement, the Vector Subordinated Note Cash Collateral Control Agreement, and all other instruments, documents and agreements delivered by or on behalf of any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to, or perfect in favor of, the Collateral Agent, for the benefit of the Secured Parties, a Lien on any property of such Credit Party as security for the Obligations.

“Collateral Questionnaire” means the Collateral Questionnaire delivered by the Borrower pursuant to Section 3.1(d).

“Commitment” means a Revolving Commitment or a Term Loan Commitment.

“Commitment Fee Rate” means, on any day, (a) with respect to the Revolving Commitments, the applicable rate per annum set forth below based on the First Lien Net Leverage Ratio as of the end of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) and the related Compliance Certificate has been delivered pursuant to Section 5.1(c), in each case, at least three Business Days prior to such day, provided that, for purposes of this clause (a), until the third Business Day following the date of the delivery of the financial statements pursuant to Section 5.1(b) for the Fiscal Quarter ending June 30, 2018, and of the related Compliance Certificate pursuant to Section 5.1(c), the Commitment Fee Rate shall be determined by reference to Pricing Level 1 in the table below, and (b) with respect to any Extended/Modified Commitments or Refinancing Revolving Commitments of any Class, the rate or rates per annum specified in the applicable Extension/Modification Agreement or Refinancing Facility Agreement.

Pricing Level	First Lien Net Leverage Ratio	Commitment Fee Rate
1	> 1.70:1.00	0.500%
2	≤ 1.70:1.00	0.375%

Any increase or decrease in the Commitment Fee Rate resulting from a change in the First Lien Net Leverage Ratio shall become effective as of the third Business Day following the date the financial statements and the related Compliance Certificate are delivered to the Administrative Agent pursuant to Section 5.1(a) or 5.1(b) and Section 5.1(c); provided that if the Borrower has not delivered to the Administrative Agent any financial statements or Compliance Certificate required to have been delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(c), from and after the date such financial statements or Compliance Certificate were required to have been so delivered the Commitment Fee Rate shall be determined by reference to Pricing Level 1 in the table above and shall continue to so apply to and including the third Business Day following the date such financial statements and related Compliance Certificate are so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (b) as of the first Business Day after an Event of Default under Section 8.1(a), 8.1(f) or 8.1(g) shall have occurred and be continuing, the Commitment Fee Rate shall be determined by reference to Pricing Level 1 in the table above, and shall continue to so apply to but excluding the date on which such Event of Default shall cease to be continuing (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).

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If any financial statements or Compliance Certificate delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(c) shall prove to have been inaccurate, and such inaccuracy shall have resulted in the payment of fees hereunder at lower rates than those that would have been paid but for such inaccuracy, then (i) the Borrower shall promptly deliver to the Administrative Agent corrected financial statements and a corrected Compliance Certificate for such period and (ii) the Borrower shall promptly pay to the Administrative Agent, for the account of the Revolving Lenders, the fees that should have been paid but were not paid as a result of such inaccuracy. Nothing in this paragraph shall limit the rights of the Administrative Agent or any Lender under Section 2.9 or 8.

“Commodity Exchange Act” means the Commodity Exchange Act (7 USC. § 1 et seq.).

“Communications Laws” means (a) the Communications Act of 1934, (b) the rules and regulations of the FCC promulgated under Title 47 of the U.S. Code of Federal Regulations, as they 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) the Communications Assistance for Law Enforcement Act, codified at 47 U.S.C. §1001, et. seq., (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 Borrower and the Restricted Subsidiaries, (e) any other law of any Governmental Authority with jurisdiction over telecommunications related matters, including all laws administered by any State PUC, and (f) the terms and conditions of any License granted or issued to the Borrower or any Restricted Subsidiaries.

“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.

“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.

“Consolidated Adjusted EBITDA” means, for any period, Consolidated Net Income for such period, plus

(a)without duplication and to the extent deducted (and not added back) in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to clause (viii) or (xvii) below, to the extent not already included in Consolidated Net Income), the sum for the Borrower and the Restricted Subsidiaries of the following amounts for such period:

(i)total interest expense and, to the extent not reflected in such total interest expense, any losses on Hedge Agreements entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Hedge Agreements, and bank and letter of credit fees and costs of surety bonds in connection with financing activities,

(ii)provision for Federal, state and foreign taxes based on income, profits or capital gains, including in respect of repatriated funds,

(iii)depreciation and amortization, including amortization of intangible assets established through purchase accounting and amortization of deferred financing fees or costs, but excluding amortization of any other prepaid cash expense that was paid and not expensed in a prior period,

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(iv)non-cash charges, including impairment charges and any other write-down or write-off of assets, noncash fair value adjustments of Investments and noncash stock-based and similar incentive-based compensation (including with respect to any profits interest relating to membership interests in any partnership or limited liability company), but excluding any such noncash charge or loss to the extent that it represents an amortization of a prepaid cash expense that was paid and not expensed in a prior period or write-down or write-off with respect to accounts receivable (including any addition to bad debt reserves or bad debt expense) or inventory,

(v)extraordinary losses, determined in conformity with GAAP,

(vi)unusual or non-recurring charges, including, in each case, to the extent unusual or non-recurring, operating expenses directly attributable to the implementation of cost savings initiatives, merger costs, severance costs, relocation costs, integration and facilities’ opening costs, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of facilities, costs associated with tax projects/audits and costs consisting of professional, consulting or other fees relating to any of the foregoing; provided that the aggregate amount added back pursuant to this clause (vi) and pursuant to clauses (vii), (xiii) and, other than with respect to the Approved Cost Savings, (viii) of this definition for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B), calculated prior to giving effect to any addback pursuant to this clause (vi) or pursuant to clause (vii), (viii) or (xiii) of this definition,

(vii)restructuring charges, accruals and reserves (including restructuring charges related to the Merger or to Acquisitions consummated after the Closing Date); provided that the aggregate amount added back pursuant to this clause (vii) and pursuant to clauses (vi), (xiii) and, other than with respect to the Approved Cost Savings, (viii) of this definition for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B), calculated prior to giving effect to any addback pursuant to this clause (vii) or pursuant to clause (vi), (viii) or (xiii) of this definition,

(viii)the amount of “run rate” net cost savings, operating expense reductions and other operating improvements and synergies reasonably projected by the Borrower in good faith to be realized in connection with the Transactions or any other Pro Forma Event or the implementation of any operational initiative, including the termination, abandonment or discontinuance of operations and product lines (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of the applicable Test Period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings, operating expense reductions and other operating improvements and synergies are reasonably identifiable, factually supportable and reasonably expected to be realized within 12 months after the Closing Date or within 12 months after the consummation of such other Pro Forma Event or the adoption of such initiative, as applicable, (B) no cost savings, operating expense reductions and other operating improvements and synergies shall be added pursuant to this clause (viii) to the extent duplicative of any items otherwise added in calculating Consolidated Adjusted EBITDA, whether pursuant to the requirement of Section 1.2(b) or otherwise, for such period and (C) other than with respect to the Approved Cost Savings, the aggregate amount added back pursuant to this clause (viii) and pursuant to clauses (vi), (vii) and (xiii) of this definition for any Test Period shall not exceed (x) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (y) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (x) and (y), calculated prior to giving effect to any addback pursuant to this clause (viii) or pursuant to clause (vi), (vii) or (xiii) of this definition,

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(ix)the amount of any noncontrolling interest consisting of income of any Restricted Subsidiary that is not wholly owned by the Borrower attributable to noncontrolling Equity Interests of third parties in such Restricted Subsidiary,

(x)after-tax losses attributable to any Disposition of assets (other than Dispositions in the ordinary course of business),

(xi)the amount of any net losses from discontinued operations, determined in conformity with GAAP,

(xii)(A) transaction fees, costs and expenses incurred in connection with the Transactions prior to the Closing Date, (B) transaction fees, costs and expenses in an aggregate amount not to exceed $1,500,000 incurred in connection with the Transactions after the Closing Date but prior to the one year anniversary of the Closing Date and (C) transaction fees, costs and expenses in an aggregate amount not to exceed $1,000,000 incurred on or prior to December 31, 2018 in connection with the Specified Acquisition (whether or not the Specified Acquisition is consummated),

(xiii)transaction fees, costs and expenses incurred during such period, or any amortization thereof for such period, in connection with any Acquisition, any Investment (other than intercompany Investments in the ordinary course of business), any Disposition (other than Dispositions in the ordinary course of business), any incurrence, repayment or refinancing of Indebtedness (or any amendment or other modification of any Indebtedness) or any issuance of Equity Interests, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed; provided that the aggregate amount added back pursuant to this clause (xiii) and pursuant to clauses (vi), (vii) and, other than with respect to the Approved Cost Savings, (viii) of this definition for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B), calculated prior to giving effect to any addback pursuant to this clause (xiii) or pursuant to clause (vi), (vii) or (viii) of this definition,

(xiv)any loss attributable to the early extinguishment of Indebtedness or obligations under any Hedge Agreement,

(xv)any unrealized loss attributable to the mark-to-market movement in the valuation of obligations under any Hedge Agreement pursuant to FASB Accounting Standards Codification 815, as amended,

(xvi)any unrealized loss attributable to the mark-to-market movement in the valuation of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830,

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(xvii)any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Acquisition or Disposition (other than in the ordinary course of business) permitted under the Credit Documents or in connection with any Insurance/Condemnation Event (disregarding the exception in the definition of such term), including lost profits covered by business interruption insurance, in each case, to the extent (A) actually reimbursed by the applicable third party insurer or other third party during such period or (B) (1) the Borrower has received notification from the applicable third party insurer or other third party that it intends to reimburse such expenses, charges or losses or such lost profits and (2) there exists reasonable evidence that such expenses, charges or losses or lost profits will in fact be reimbursed by such insurer or other third party within 270 days after the related amount is first added to Consolidated Adjusted EBITDA pursuant to this clause (xvii), provided that no amount may be added pursuant to this clause (xvii) to the extent that (x) such insurer or other third party shall have denied in writing reimbursement for such amount and (y) such amount has not actually been reimbursed within 270 days after it is first added to Consolidated Adjusted EBITDA pursuant to this clause (xvii) (with a deduction for any amount so added back to the extent not so reimbursed within such 270 days),

(xviii)any contingent or deferred payments (including earnout payments, noncompete payments and consulting payments) actually made to sellers during such period in connection with any Acquisition, and any losses for such period arising from the remeasurement of the fair value of any liability recorded with respect to any earnout or other contingent or deferred consideration arising from any Acquisition, less

(b)without duplication and to the extent included in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to clause (ix) below, to the extent not already deducted from Consolidated Net Income), the sum for the Borrower and the Restricted Subsidiaries of the following amounts for such period:

(i)non-cash gains or items of income (other than the accrual of revenue in the ordinary course), excluding any non-cash items of income in respect of which Cash was received in a prior period or will be received in a future period,

(ii)extraordinary gains or items of income, determined in conformity with GAAP,

(iii)unusual or non-recurring gains or items of income,

(iv)gains attributable to any Disposition of assets (other than Dispositions in the ordinary course of business),

(v)the amount of any net income from discontinued operations, determined in conformity with GAAP,

(vi)any gain attributable to the early extinguishment of Indebtedness or obligations under any Hedge Agreement,

(vii)any unrealized gain attributable to the mark-to-market movement in the valuation of obligations under any Hedge Agreement pursuant to FASB Accounting Standards Codification 815, as amended,

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(viii)any unrealized gain attributable to the mark-to-market movement in the valuation of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830, and

(ix)the amount of any noncontrolling interest consisting of losses of any Restricted Subsidiary that is not wholly owned by the Borrower attributable to noncontrolling Equity Interests of third parties in such Restricted Subsidiary.

For purposes of calculating Consolidated Adjusted EBITDA for any period, if during such period the Borrower or any Restricted Subsidiary shall have consummated a Material Acquisition or a Material Disposition, Consolidated Adjusted EBITDA for such period shall be calculated after giving Pro Forma Effect thereto in accordance with Section 1.2(b).

Notwithstanding the foregoing, but subject to the immediately preceding paragraph, Consolidated Adjusted EBITDA for (A) the Fiscal Quarter ended March 31, 2017, shall be deemed to be equal to $37,350,000, (B) the Fiscal Quarter ended June 30, 2017, shall be deemed to be equal to $40,745,000, (C) the Fiscal Quarter ended September 30, 2017, shall be deemed to be equal to $39,783,000 and (D) the Fiscal Quarter ended December 31, 2017, shall be deemed to be equal to $43,778,000.

“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures made by the Borrower and the Restricted Subsidiaries during such period that are required to be included in “purchase of property, plant and equipment” or similar items on a consolidated statement of cash flows, or that are otherwise required to be capitalized on a consolidated balance sheet, of the Borrower and the Restricted Subsidiaries for such period prepared in conformity with GAAP; provided that Consolidated Capital Expenditures shall not include any expenditures (a) to the extent made with Net Proceeds reinvested pursuant to Section 2.13(a) or 2.13(b) or (b) that constitute an Acquisition permitted under Section 6.6; provided further that, except for purposes of calculating Consolidated Excess Cash Flow for any period, in the event the Borrower or any Restricted Subsidiary consummates an Acquisition, Consolidated Capital Expenditures shall not include any such expenditures made by any Person, business unit, division, product line or line of business acquired pursuant to such Acquisition, in each case, prior to the date of the consummation of such Acquisition.

“Consolidated Excess Cash Flow” means, for any period, an amount equal to:

(a)the sum, without duplication, of:

(i)Consolidated Net Income for such period;

(ii)the aggregate amount of all non-cash charges (including depreciation expense, amortization expense and deferred tax expense), to the extent deducted in arriving at Consolidated Net Income;

(iii)the sum of (A) the amount, if any, by which Consolidated Working Capital decreased during such period (except as a result of the reclassification of items from short-term to long-term or vice versa) and (B) the net amount, if any, by which the consolidated deferred revenues of the Borrower and the Restricted Subsidiaries increased during such period, in each case, other than any such decreases or increases, as applicable, arising from an Acquisition or from a Disposition of assets (other than in the ordinary course of business) by the Borrower or any of the Restricted Subsidiaries completed during such period;

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(iv)the aggregate amount of net non-cash loss on any Disposition of assets by the Borrower and the Restricted Subsidiaries (other than Dispositions in the ordinary course of business), to the extent deducted in arriving at Consolidated Net Income;

(v)the aggregate amount of cash payments received in respect of Hedge Agreements during such period, to the extent not included in arriving at Consolidated Net Income;

(vi)the aggregate amount of any non-cash loss for such period attributable to the early extinguishment of Indebtedness or Hedge Agreements, to the extent deducted in arriving at such Consolidated Net Income;

(vii)income tax expense, to the extent deducted in arriving at such Consolidated Net Income; minus

(b)the sum, without duplication, of:

(i)the aggregate amount of all non-cash credits included in arriving at Consolidated Net Income;

(ii)without duplication of amounts deducted pursuant to clause (xi) below in any prior period, the Consolidated Capital Expenditures made by the Borrower and the Restricted Subsidiaries in Cash during such period, except to the extent financed with Excluded Sources;

(iii)the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries repaid or prepaid (including, to the extent of Cash spent, through repurchases and redemptions) by the Borrower and the Restricted Subsidiaries in Cash during such period (including (A) the principal component of payments in respect of Capital Lease Obligations, (B) scheduled Installments of Term Loans made pursuant to Section 2.11, (C) the amount of any mandatory prepayment of Term Loans or any Permitted Pari Passu Secured Indebtedness actually made with the Net Proceeds of an Asset Sale or an Insurance/Condemnation Event, in each case, to the extent such Net Proceeds resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, and (D) to the extent of Cash spent, repurchases by the Borrower of Term Loans pursuant to Section 10.6(i)(ii), but excluding (1) all other repayments or prepayments (including repurchases and redemptions) of Term Loans and Permitted Pari Passu Secured Indebtedness, (2) all repayments or prepayments (including repurchases and redemptions) of any revolving credit loans (other than in respect of any revolving credit facility to the extent there is an equivalent permanent reduction in commitments thereunder, other than in connection with a refinancing thereof) and (3) repayments or prepayments (including repurchases and redemptions) of Permitted Second Lien Indebtedness or any other Junior Indebtedness (it being understood and agreed that any amount excluded pursuant to clauses (1) through (3) above may not be deducted under any other clause of this definition)), except to the extent financed with Excluded Sources;

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(iv)the aggregate amount of net non-cash gain on any Disposition of assets by the Borrower and the Restricted Subsidiaries (other than Dispositions in the ordinary course of business), to the extent included in arriving at Consolidated Net Income;

(v)the sum of (i) the amount, if any, by which Consolidated Working Capital increased during such period (except as a result of the reclassification of items from short-term to long-term or vice versa) and (ii) the net amount, if any, by which the consolidated deferred revenues of the Borrower and the Restricted Subsidiaries decreased during such period, in each case, other than any such increases or decreases, as applicable, arising from an Acquisition or from a Disposition of assets (other than in the ordinary course of business) by the Borrower or any of the Restricted Subsidiaries completed during such period;

(vi)the aggregate amount of any non-cash gain for such period attributable to the early extinguishment of Indebtedness, Hedge Agreements or other derivative instruments, to the extent included in arriving at Consolidated Net Income;

(vii)the aggregate amount of Cash payments made by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, except to the extent financed with Excluded Sources;

(viii)without duplication of amounts deducted pursuant to clause (xi) below in any prior period, the aggregate amount of Cash paid by the Borrower and the Restricted Subsidiaries during such period to consummate any Acquisition or Investment (other than intercompany Investments) permitted under Section 6.6(l), 6.6(m) or 6.6(o), except to the extent financed with Excluded Sources;

(ix)the aggregate amount of Restricted Junior Payments permitted by Section 6.4(e), 6.4(g)(i) or 6.4(i) paid by the Borrower and the Restricted Subsidiaries in Cash during such period, except to the extent financed with Excluded Sources;

(x)the aggregate amount of any premium, make-whole or penalty payments actually paid in Cash by the Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, except to the extent financed with Excluded Sources;

(xi)without duplication of amounts deducted from Excess Cash Flow in any prior period, the aggregate consideration required to be paid in Cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Acquisitions or Consolidated Capital Expenditures, in each case, to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrower following the end of such period; provided that to the extent that the aggregate amount of Cash actually utilized to finance such Acquisitions or Consolidated Capital Expenditures during such period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Consolidated Excess Cash Flow at the end of such period of four consecutive Fiscal Quarters;

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(xii)to the extent not deducted in arriving at Consolidated Net Income, directors’ fees (including salary and bonus) and board consulting fees and related reimbursement of reasonable out-of-pocket expenses paid by the Borrower and the Restricted Subsidiaries in Cash in such period;

(xiii)to the extent not deducted in arriving at Consolidated Net Income, transaction fees, costs and expenses incurred in connection with the Transactions or any Acquisition paid by the Borrower and the Restricted Subsidiaries in Cash in such period;

(xiv)to the extent not deducted in arriving at Consolidated Net Income, income taxes, including penalties and interest, paid by the Borrower and the Restricted Subsidiaries in Cash in such period; and

(xv)to the extent not deducted in arriving at Consolidated Net Income, the aggregate amount of Cash payments made by the Borrower and the Restricted Subsidiaries in respect of Hedge Agreements during such period.

“Consolidated First Lien Net Debt” means, as of any date, without duplication:

(a)  the sum of the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding as of such date that is secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents), in the amount that would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), consisting solely of Indebtedness for borrowed money, obligations evidenced by bonds, debentures, notes or similar instruments and purchase money indebtedness, plus

(b)  the aggregate amount of Capital Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding as of such date, plus

(c) to the extent the amount thereof would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), the aggregate amount of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred by the Borrower and the Restricted Subsidiaries in connection with any Acquisition, in each case, that are secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents), plus

(d)  the aggregate amount outstanding as of such date of unreimbursed drawings or other disbursements under all letters of credit and letters of guaranty in respect of which the Borrower or any Restricted Subsidiary is an account party, in each case that are secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents), plus

(e)  all obligations, contingent or otherwise, of the Borrower or any Restricted Subsidiary in respect of bankers’ acceptances outstanding as of such date that are secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents), plus

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(f)  Guarantees outstanding as of such date by the Borrower or any Restricted Subsidiary of Indebtedness of the type described in clauses (a) through (e) above of any Person other than the Borrower or any Restricted Subsidiary (whether or not such Indebtedness is secured) if such Guarantees (including letters of credit providing for such Guarantees) are secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents), minus

(g)  the aggregate amount of Unrestricted Cash as of such date (but disregarding the proceeds of Indebtedness that is incurred on such date).

“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of (a) Consolidated Interest Expense for such period, (b) the aggregate amount of scheduled principal payments made during such period in respect of Long-Term Indebtedness of the Borrower and the Restricted Subsidiaries (other than payments made by the Borrower or any Restricted Subsidiary to the Borrower or a Restricted Subsidiary), (c) the aggregate amount of principal payments (other than scheduled principal payments) made during such period in respect of Long-Term Indebtedness of the Borrower and the Restricted Subsidiaries (other than payments made by the Borrower or any Restricted Subsidiary to the Borrower or a Restricted Subsidiary), to the extent that such payments reduced any scheduled principal payments that would have become due within one year after the date of the applicable payment, (d) the aggregate amount of principal payments on Capital Lease Obligations, determined in conformity with GAAP, made by the Borrower and the Restricted Subsidiaries during such period and (e) Consolidated Capital Expenditures for such period (except to the extent financed by incurring Long-Term Indebtedness).

“Consolidated Interest Expense” means, for any period:

(a) the sum, without duplication, of (i) the total interest expense (including imputed interest expense in respect of Capital Lease Obligations) for the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in conformity with GAAP, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net payments, if any, made (less net payments, if any, received) pursuant to obligations under Hedge Agreements in respect of any Indebtedness, and (ii) any interest or other financing costs becoming payable during such period in respect of Indebtedness of the Borrower or any Restricted Subsidiary to the extent such interest or other financing costs shall have been capitalized rather than included in total interest expense for such period in accordance with GAAP, minus

(b) cash interest income of the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, minus

(c) to the extent included in clause (a) for such period, the sum, without duplication, of (i) amortization or write-down of capitalized interest, deferred financing costs or debt issuance costs, commissions, fees and expenses, pay-in-kind interest expense, the amortization of original issue discount resulting from the issuance of Indebtedness below par and any other amounts of non-cash interest (including as a result of the effects of purchase accounting), (ii) the accretion or accrual of discounted liabilities during such period, (iii) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedge Agreements or other derivative instruments pursuant to FASB Accounting Standards Codification 815, (iv) any one-time cash costs associated with breakage in respect of Hedge Agreements for interest rates, (v) all additional interest or liquidated damages then owing pursuant to any registration rights agreement and any comparable “additional interest” or liquidated damages with respect to any securities designed to compensate the holders thereof for a failure to publicly register such securities, (vi) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting, (vii) fees and expenses associated with the consummation of the Transactions and (viii) commitment and other financing fees (excluding, for the avoidance of doubt, the commitment fees in respect of the Revolving Commitments).

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For purposes of calculating Consolidated Interest Expense for any period, if during such period the Borrower or any Restricted Subsidiary shall have consummated a Material Acquisition (other than the Transactions) or a Material Disposition, Consolidated Interest Expense for such period shall be calculated after giving Pro Forma Effect thereto in accordance with Section 1.2(b).

Notwithstanding the foregoing (but subject to the immediately preceding paragraph), Consolidated Interest Expense shall be deemed to be (A) for the four Fiscal Quarter period ended on the last day of the first Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for such Fiscal Quarter multiplied by four, (B) for the four Fiscal Quarter period ended on the last day of the second Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for the two Fiscal Quarters then most recently ended multiplied by two, and (C) for the four Fiscal Quarter period ended on the last day of the third Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for the three Fiscal Quarters then most recently ended multiplied by 4/3; provided that, in the event the Closing Date shall have occurred after the first day of the first Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for such Fiscal Quarter shall be deemed, for purposes of clauses (A), (B) and (C) above, to be Consolidated Interest Expense for the period from and including the Closing Date to and including the last day of such Fiscal Quarter, multiplied by a fraction equal to (x) 90 divided by (y) the number of days actually elapsed from and including the Closing Date to and including the last day of such Fiscal Quarter.

“Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in conformity with GAAP; provided that there shall be excluded, without duplication, (a) the cumulative effect of a change in accounting principles during such period and (b) the net income (or loss) of any Person (including any Unrestricted Subsidiary or any Person accounted for under the equity method of accounting) that is not the Borrower or a Restricted Subsidiary except, in the case of net income, to the extent of the amount of Cash dividends or similar Cash distributions actually paid by such Person to the Borrower or any Restricted Subsidiary during such period.

“Consolidated Total Assets” means, as of any date, the consolidated total assets of the Borrower and the Restricted Subsidiaries as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the first such delivery, for which financial statements are included in the Historical Financial Statements), determined on a consolidated basis in conformity with GAAP, but excluding therefrom any Escrow Cash Collateral. Consolidated Total Assets as of any date prior to the Closing Date shall be determined on a Pro Forma basis to give effect to the Merger and the other Transactions to occur on the Closing Date.

“Consolidated Total Debt” means, as of any date, without duplication:

(a)  the sum of the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding as of such date, in the amount that would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), consisting solely of Indebtedness for borrowed money, obligations evidenced by bonds, debentures, notes or similar instruments and purchase money indebtedness, plus

(b)  the aggregate amount of Capital Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding as of such date, plus

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(c) to the extent the amount thereof would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), the aggregate amount of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred by the Borrower and the Restricted Subsidiaries in connection with any Acquisition, plus

(d)  the aggregate amount outstanding as of such date of unreimbursed drawings or other disbursements under all letters of credit and letters of guaranty in respect of which the Borrower or any Restricted Subsidiary is an account party, plus

(e)  all obligations, contingent or otherwise, of the Borrower or any Restricted Subsidiary in respect of bankers’ acceptances outstanding as of such date, plus

(f)  Guarantees outstanding as of such date by the Borrower or any Restricted Subsidiary of Indebtedness of the type described in clauses (a) through (e) above of any Person other than the Borrower or any Restricted Subsidiary.

“Consolidated Total Net Debt” means, as of any date, without duplication:

(a)  the sum of the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding as of such date, in the amount that would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), consisting solely of Indebtedness for borrowed money, obligations evidenced by bonds, debentures, notes or similar instruments and purchase money indebtedness, plus

(b)  the aggregate amount of Capital Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding as of such date, plus

(c) to the extent the amount thereof would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), the aggregate amount of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred by the Borrower and the Restricted Subsidiaries in connection with any Acquisition, plus

(d)  the aggregate amount outstanding as of such date of unreimbursed drawings or other disbursements under all letters of credit and letters of guaranty in respect of which the Borrower or any Restricted Subsidiary is an account party, plus

(e)  all obligations, contingent or otherwise, of the Borrower or any Restricted Subsidiary in respect of bankers’ acceptances outstanding as of such date, plus

(f)  Guarantees outstanding as of such date by the Borrower or any Restricted Subsidiary of Indebtedness of the type described in clauses (a) through (e) above of any Person other than the Borrower or any Restricted Subsidiary, minus

(g)  the aggregate amount of Unrestricted Cash as of such date (but disregarding the proceeds of Indebtedness that is incurred on such date); provided that, with respect to the calculation of Consolidated Total Net Debt for purposes of testing the covenant set forth in Section 6.7(a) (including any such testing to determine compliance therewith on a Pro Forma Basis as required by any other provision hereof), the aggregate amount of such Unrestricted Cash deducted pursuant to this clause (g) shall not exceed $30,000,000.

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“Consolidated Working Capital” means, as of any date, the excess of (a) the sum of all amounts (other than Cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date (excluding all amounts attributable to Unrestricted Subsidiaries), but excluding, without duplication, (i) assets relating to current and deferred income taxes and (ii) the effects from applying purchase accounting, less (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date (excluding all amounts attributable to Unrestricted Subsidiaries), excluding, without duplication, (i) the current portion of any Long-Term Indebtedness, (ii) all Indebtedness (including letter of credit obligations) under any revolving credit facility, to the extent otherwise included therein, (iii) the current portion of interest, (iv) the current portion of current and deferred income Taxes, (v) non-cash compensation liabilities and (vi) the effects from applying purchase accounting.

“Consumer/SMB Business” means the “Consumer/SMB Business” as defined in the Merger Agreement as in effect on the Closing Date.

“Contractual Obligation” means, with respect to any Person, any provision of any Security issued by such Person or any indenture, mortgage, deed of trust, contract, undertaking or other agreement or instrument to which such Person is a party or by which such Person or any of its properties is bound or to which such Person or any of its properties is subject.

“Control” means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies, or the dismissal or appointment of the management, of such Person, whether through the ability to exercise voting power, the ownership of Securities, by contract, or otherwise. The words “Controlling”, “Controlled by” and “under common Control with” have correlative meanings.

“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 D.

“Counterpart Agreement” means a First Lien Counterpart Agreement substantially in the form of Exhibit E.

“Credit Date” means the date of any Credit Extension.

“Credit Document” means each of this Agreement, the Collateral Documents, the Post-Closing Letter Agreement, the Counterpart Agreements, the Extension/Modification Agreements, the Incremental Facility Agreements, the Refinancing Facility Agreements, the Permitted Intercreditor Agreements and, except for purposes of Section 10.5, the Notes, if any, any documents or certificates executed by the Borrower in favor of any Issuing Bank relating to Letters of Credit (including any fee letter relating to the fees payable to such Issuing Bank pursuant to Section 2.10(b)), the Collateral Questionnaire and all other documents, certificates, instruments or agreements executed and delivered by or on behalf of any Credit Party for the benefit of any Agent, any Issuing Bank or any Lender in connection herewith on or after the date hereof and which are designated as “Credit Documents” pursuant to an agreement between the Borrower and the Administrative Agent.

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“Credit Extension” means the making of a Loan or the issuance, amendment (if increasing the face amount thereof) or extension of a Letter of Credit.

“Credit Parties” means the Borrower and the Guarantor Subsidiaries.

“Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement (including under corporate statutes), 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.

“Declined Mandatory Prepayment Retained Amount” means any portion of the amount of any mandatory prepayment of Loans required pursuant to Section 2.13(a), 2.13(b) or 2.13(e) that has been declined by the Lenders in accordance with Section 2.14(c), but only to the extent retained by the Borrower in accordance with Section 2.14(c).

“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

“Defaulting Lender” means, subject to Section 2.21(b), any Lender that (a) has failed (i) to fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder, unless such Lender notifies the Administrative Agent and the Borrower in good faith in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable Default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) to pay to the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any 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 the applicable Default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the 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 the Administrative Agent and the Borrower), or (d) is, or a direct or indirect parent company of such Lender is, (i)  the subject of a Bail-In Action, (ii) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors or (iii) the subject of a proceeding under any Debtor Relief Laws, or a receiver, trustee, conservator, intervenor or sequestrator or the like (including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in a like capacity with respect to such Lender) has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such 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 the 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 such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank and each Lender.

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“Designated Subsidiary” means each Restricted Subsidiary of the Borrower, including the Acquired Company and its Restricted Subsidiaries, other than (a) any Subsidiary that is not a wholly owned Subsidiary, (b) any Subsidiary that is a CFC or a CFC Holding Company, (c) any Subsidiary of a CFC or CFC Holding Company, (d) any Subsidiary that is not a Material Subsidiary, (e) any Subsidiary that is prohibited by applicable law or, in the case of any Subsidiary acquired after the Closing Date, any Contractual Obligation in effect at the time such Subsidiary is acquired (and not entered into in contemplation of or in connection with such acquisition) from providing an Obligations Guarantee (including any such prohibition arising from any requirement to obtain a consent, approval (including regulatory approval), license or authorization of any Governmental Authority that has not been obtained in order to provide such Obligations Guarantee); provided that to the extent any such consent, approval, license or authorization is required from the FCC or any State PUC, the Borrower and the Restricted Subsidiaries shall use commercially reasonable efforts (including by making all applicable filings and submitting all applicable notices) to obtain the same promptly after such Restricted Subsidiary is otherwise required to become a Designated Subsidiary, (f) any captive insurance company, (g) any not-for-profit Subsidiary or (h) any Subsidiary where the burden or cost of providing an Obligations Guarantee by such Subsidiary is excessive in relation to the benefit that would be afforded to the Lenders thereby, as determined by the Administrative Agent in consultation with the Borrower; provided that, notwithstanding the foregoing, a Subsidiary shall be a Designated Subsidiary if such Subsidiary shall be an obligor (including pursuant to a Guarantee) in respect of any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Indebtedness or any Permitted Subordinated Indebtedness. Notwithstanding the foregoing, neither Primus Management ULC, a British Columbia unlimited liability company, nor Bircan Management ULC, a British Columbia unlimited liability company, shall be a “Designated Subsidiary” unless so designated by the Borrower in writing to the Administrative Agent.

“Disposition” means any sale, transfer, lease or other disposition (including any sale or issuance of Equity Interests in a Subsidiary) of any property by any Person, including any sale, transfer or other disposition, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. “Dispose” has the meaning correlative thereto.

“Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such Person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the occurrence of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person that are not Disqualified Equity Interests and Cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and Cash in lieu of fractional shares of such Equity Interests), in whole or in part, or is required to be repurchased by the Borrower or any Restricted Subsidiary, in whole or in part, at the option of the holder thereof (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and Cash in lieu of fractional shares of such Equity Interests) or (c) is or becomes convertible into or exchangeable for, either mandatorily or at the option of the holder thereof, Indebtedness or any other Equity Interests (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and Cash in lieu of fractional shares of such Equity Interests), in each case, prior to the date that is 91 days after the latest Maturity Date (determined as of the date of issuance thereof or, in the case of any such Equity Interests outstanding on the date hereof, the date hereof), except, in the case of clauses (a) and (b), as a result of a “change of control” or “asset sale”, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior payment in full of all Obligations described in clause (a) of the definition of “Obligations”, the cancelation or expiration of all Letters of Credit and the termination of the Commitments; provided that an Equity Interest in any Person that is issued to any employee or to any plan for the benefit of employees or by any such plan to such employees shall not constitute a Disqualified Equity Interest solely because it may be required to be repurchased by such Person or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided further that the Closing Date Preferred Stock shall not constitute a Disqualified Equity Interest.

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“Disqualified Institution” means (a) such competitors of the Borrower and its Subsidiaries as have been identified by name in writing by the Borrower to the Administrative Agent from time to time and (b) any Affiliate of any such Person identified pursuant to clause (a) above (i) that has been identified by name in writing by the Borrower to the Administrative Agent from time to time or (ii) where such Affiliate’s relationship to such Person is readily apparent on its face on the basis of the name of such Affiliate, in each case under this clause (b), other than any such Affiliate that is a bona fide fixed income investor or debt fund that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds or similar extensions of credit in the ordinary course of business; provided that no Person shall be a Disqualified Institution until the date on which the list of Disqualified Institutions that have been so identified by name pursuant to this definition shall have been made available to the Lenders on the Platform. It is understood and agreed that any identification by the Borrower pursuant to this definition shall not apply retroactively to disqualify any assignment or participation to any Person that shall have become a Lender or a participant prior thereto (but that no further assignments or delegations to, or sales of participations by, may be made to any such Person thereafter and such Person shall thereafter for all other purposes be a Disqualified Institution). The Administrative Agent will promptly make such list available on the Platform upon the written request of the Borrower that it do so. Notwithstanding anything to the contrary in this Agreement, each of the parties hereto acknowledges and agrees that the Administrative Agent shall not have any duty to ascertain, monitor or enforce compliance with the list of Disqualified Institutions and shall not have any liability with respect to any assignment or participation made to a Disqualified Institution.

“Dollars” and the sign “$” mean the lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country 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) above, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clause (a) or (b) above and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, 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 (a) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related Funds of any Lender being treated as a single Eligible Assignee for all purposes hereof) and (b) any commercial bank, insurance company, investment or mutual fund or other Person that is an “accredited investor” (as defined in Regulation D under the Securities Act) and that extends credit or buys loans in the ordinary course of business; provided that in no event shall any natural person (or any holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), any Defaulting Lender, any Disqualified Institution, the Borrower, any Subsidiary or any other Affiliate of the Borrower be an Eligible Assignee.

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“Employee Benefit Plan” means any of (a) an “employee benefit plan”, as defined in Section 3(3) of ERISA, that is subject to Parts II, III or IV of Title I of ERISA or Title IV of ERISA and that is or was sponsored, maintained or contributed to by, or required to be contributed to by, the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”, in each case, other than a Foreign Plan.

“Engagement Letter”means the Engagement Letter dated February 13, 2018, among Goldman Sachs Bank USA, MSSF, The Bank of Tokyo-Mitsubishi UFJ, Ltd. and the Borrower.

“Environmental Laws” means all applicable laws (including common law), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations or any other requirements of Governmental Authorities relating to pollution or to the protection of the environment, natural resources, threatened or endangered species or human health and safety.

“Environmental Liability” means all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs, (including administrative oversight costs, natural resource damages, monitoring and remediation costs and reasonable fees and expenses of attorneys and consultants), whether contingent or otherwise, arising out of or relating to: (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment, recycling, disposal (or arrangement for such activities) of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the presence or Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or acquire any of the foregoing (other than, prior to the date of such conversion, Indebtedness that is convertible into any such Equity Interests).

“ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means, with respect to any Person, (a) any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which such Person is a member, (b) any trade or business (whether or not incorporated) that is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which such Person is a member and (c) any member of an affiliated service group within the meaning of Section 414(m) or 414(o) of the Internal Revenue Code of which such Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member. Any Person that was, but has since ceased to be, an ERISA Affiliate (within the meaning of the previous sentence) of the Borrower or any Restricted Subsidiary shall continue to be considered an ERISA Affiliate of the Borrower or such Restricted Subsidiary within the meaning of this definition with respect to the period such Person was an ERISA Affiliate of the Borrower or such Restricted Subsidiary and with respect to liabilities arising after such period for which the Borrower or such Restricted Subsidiary could be liable under the Internal Revenue Code or ERISA.

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“ERISA Event” means (a) the occurrence of a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30 day notice to the PBGC has been waived by regulation), (b) the failure of the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates to meet the minimum funding standard of Section 412 of the Internal Revenue Code or Section 302 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure of the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates to make any required contribution to a Multiemployer Plan, (c) the filing pursuant to Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, (d) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA, (e) the withdrawal by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Borrower, any Restricted Subsidiary or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (f) the institution by the PBGC of proceedings to terminate any Pension Plan, or the appointment of a trustee to administer, any Pension Plan, (g) the incurrence by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan, (h) the imposition of liability on the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA, (i) the withdrawal of the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any liability therefor, (j) the receipt by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates of notice from any Multiemployer Plan (i) that such Multiemployer Plan is in insolvency pursuant to Section 4245 of ERISA, (ii) that such Multiemployer Plan is in “endangered” or “critical” status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA) or (iii) that such Multiemployer Plan intends to terminate or has terminated under Section 4041A or 4042 of ERISA, (k) a determination that any Pension Plan is in “at risk” status (as defined in Section 430(i)(4) of the Internal Revenue Code or Section 303(i)(4) of ERISA) with respect to any plan year, (l) the occurrence of an act or omission that could reasonably be expected to give rise to the imposition on the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), 502(i) or 502(l), or Section 4071 of ERISA in respect of any Employee Benefit Plan, (m) the assertion of a claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan, (n) receipt from the IRS of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code, (o) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA or a violation of Section 436 of the Internal Revenue Code or (p) the occurrence of a non-exempt “prohibited transaction” (as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA) with respect to which the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates is a “disqualified person” (within the meaning of Section 4975 of the Internal Revenue Code) or a “party in interest” (within the meaning of Section 406 of ERISA).

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“Escrow Cash Amount” means $62,000,000.

“Escrow Cash Collateral” means Cash proceeds from the borrowing of the Tranche B Term Borrowings in an aggregate amount equal to the Escrow Cash Amount that has been deposited into the Escrow Cash Collateral Account, together with any interest or profits thereon.

“Escrow Cash Collateral Account” as defined in Section 3.1(r).

“Escrow Cash Collateral Control Agreement” as defined in Section 3.1(r).

“Escrow Cash Collateral Outside Date” as defined in Section 2.13(d).

“Escrow Cash Collateral Termination Date” as defined in Section 2.13(d).

“Escrow Cash Release Conditions” means:

(a) (i) the Arrangers shall have received a copy of the definitive Specified Acquisition Agreement, together with all closing deliverables thereunder, certified by an Authorized Officer of the Borrower as complete and correct; (ii) the Specified Acquisition shall have been (or substantially concurrently with the release of the Escrow Cash Collateral from the Escrow Cash Collateral Account shall be) consummated in accordance with and on the terms set forth in the draft of the Specified Acquisition Agreement provided to the Arrangers via email at 5:43 p.m. (New York City time) on May 1, 2018, and without giving effect to amendments, supplements, waivers or other modifications to (including any consents under) the Specified Acquisition Agreement from the draft so provided to the Arrangers that are adverse in any material respect to the Lenders and that have not been approved by the Arrangers (such approval not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that any increase in or reduction of the purchase price in respect of the Specified Acquisition (other than in accordance with the terms of the draft Specified Acquisition Agreement so provided to the Arrangers (including, without limitation, working capital adjustments)) will, in each case, be deemed to be adverse in a material respect to the Lenders; provided that (A) any such increase, when taken together with all prior such increases, of 5.0% or less in the purchase price in respect of the Specified Acquisition from the amount set forth in the draft Specified Acquisition Agreement so provided to the Arrangers will be deemed not to be adverse in a material respect to the Lenders so long as such increase is in the form of Equity Interests in the Borrower (other than any Disqualified Equity Interests) or is funded with the Net Proceeds received (and not otherwise applied) by the Borrower after the Closing Date but on or prior to the date of consummation of the Specified Acquisition from any issuance and sale of Equity Interests in the Borrower (other than any Disqualified Equity Interests and other than any Equity Interests issued or sold to any Subsidiary of the Borrower) and (B) any such decrease, when taken together with all prior such decreases, of 5.0% or less in the purchase price in respect of the Specified Acquisition from the amount set forth in the draft Specified Acquisition Agreement so provided to the Arrangers will be deemed not to be adverse in a material respect to the Lenders); and (iii) not less than $10,000,000 of the consideration for the Specified Acquisition shall have been funded with Equity Interests in the Borrower (other than any Disqualified Equity Interests) or the Net Proceeds received (and not otherwise applied) by the Borrower after the Closing Date but on or prior to the date of consummation of the Specified Acquisition from any issuance and sale of Equity Interests in the Borrower (other than any Disqualified Equity Interests and other than any Equity Interests issued or sold to any Subsidiary of the Borrower);

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(b) (i) since January 1, 2017, no event or events shall have occurred that have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (as defined in the Specified Acquisition Agreement provided to the Arrangers as described in clause (a)(ii) above); and (ii) the Specified Acquisition Agreement Representations shall be true and correct as and to the extent required by the definition of such term;

(c) if requested by the Arrangers, the Arrangers shall have received (i) solely to the extent available to the Borrower, (A) audited consolidated financial statements of the Person to be acquired pursuant to the Specified Acquisition and its consolidated Subsidiaries for the fiscal year most recently ended at least 90 days prior to the date of consummation of the Specified Acquisition (and the related audit report) and (B) unaudited consolidated financial statements of the Person to be acquired pursuant to the Specified Acquisition and its consolidated Subsidiaries for each subsequent fiscal quarter ended at least 45 days prior to the date of consummation of the Specified Acquisition, and (ii) a customary pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower, as of the end of or for the latest period of four consecutive fiscal quarters ended at least 45 days prior to the date of consummation of the Specified Acquisition (90 days prior to the date of consummation of the Specified Acquisition in the case the last such fiscal quarter is the fourth fiscal quarter of the fiscal year), prepared after giving effect to the transactions contemplated by the Specified Acquisition Agreement and this Agreement in respect of the Specified Acquisition as if they had occurred as of the end of such period (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of operations); and

(d) at least five days prior to the date of consummation of the Specified Acquisition, the Lenders shall have received all documentation and other information with respect to the Person to be acquired pursuant to the Specified Acquisition and its Subsidiaries required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.

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

“Eurodollar Rate Borrowing” means a Borrowing comprised of Eurodollar Rate Loans.

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

“Event of Default” means any condition or event set forth in Section 8.1.

“Exchange Act” means the Securities Exchange Act of 1934.

“Excluded Property” as defined in the definition of the term “Collateral and Guarantee Requirement”.

“Excluded Sources” means the proceeds of any issuance or incurrence of Indebtedness by, or the issuance of any Equity Interests by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries, the proceeds of any Disposition outside the ordinary course of business and any other proceeds not included in Consolidated Net Income.

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“Excluded Swap Obligation” means, with respect to any Guarantor at any time, any obligation (a “Swap 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, if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is illegal at such time 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 at the time such guarantee or grant of a security interest becomes effective with respect to such related Swap Obligation.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, US federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment requested by the Borrower under Section 2.22) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.19, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in such Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.19(g) and (d) any US federal withholding Taxes imposed under FATCA.

“Existing Debt Documents” means (a) the Credit Agreement, dated as of November 14, 2016, as amended, among Fusion NBS Acquisition Corp., East West Bank, as Administrative Agent, Swingline Lender, an Issuing Bank and a Lender, and the other lenders party thereto, (b) the Fifth Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of November 14, 2016, as amended, among Fusion NBS Acquisition Corp., the Borrower, the subsidiaries of the Borrower guarantors thereto, Praesidian Capital Opportunity Fund III, LP, as Agent, and the lenders party thereto, (c) that certain Second Amended and Restated Unsecured Promissory Note, dated November 14, 2016, payable by the Borrower to Marvin Rosen and (d) the Credit Agreement, dated as of July 18, 2014, as amended, among the Acquired Company, Birch Communications, Inc., Cbeyond, Inc., the other guarantors party thereto, the lenders party thereto and PNC Bank, National Association, as Administrative Agent.

“Existing EWB Letter of Credit” means the Irrevocable Standby Letter of Credit No. 17OSL03973 in the amount of $450,000 issued on August 23, 2017 by East West Bank.

“Existing Subordinated Notes” means the subordinated notes, each dated October 28, 2016, as amended and restated as of May 4, 2018, in favor of Holcombe T. Green, Jr., R. Kirby Godsey and the Holcombe T. Green, Jr. 2013 Five-Year Annuity Trust.

“Extended/Modified Commitments”as defined in the definition of “Extension/Modification Permitted Amendment”.

“Extended/Modified Loans” as defined in the definition of “Extension/Modification Permitted Amendment”.

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“Extended/Modified Term Loans” as defined in the definition of “Extension/Modification Permitted Amendment”.

“Extended/Modified Term Loan Maturity Date” means, with respect to Extended/Modified Term Loans of any Class, the scheduled date on which such Extended/Modified Term Loans shall become due and payable in full hereunder, as specified in the applicable Extension/Modification Agreement.

“Extending/Modifying Lenders” as defined in Section 2.24(a).

“Extension/Modification Agreement” means an Extension/Modification Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Extending/Modifying Lenders, effecting one or more Extension/Modification Permitted Amendments and such other amendments hereto and to the other Credit Documents as are contemplated by Section 2.24.

“Extension/Modification Offer” as defined in Section 2.24(a).

“Extension/Modification Permitted Amendment” means an amendment to this Agreement and the other Credit Documents, effected in connection with an Extension/Modification Offer pursuant to Section 2.24, providing for (a) an extension of the Maturity Date and/or (b) an increase or decrease in the yield (including any increase or decrease in, or an introduction of, interest margins, benchmark rate floors, fixed interest rates or fees or premiums), in each case, applicable to the Loans and/or Commitments of the Extending/Modifying Lenders of the applicable Extension/Modification Request Class (such Loans or Commitments being referred to as the “Extended/Modified Loans” or “Extended/Modified Commitments”, as applicable) and, in connection therewith:

(i)  in the case of any Extended/Modified Loans that are Term Loans of any Class (such Extended/Modified Loans being referred to as the “Extended/Modified Term Loans”), any modification of the scheduled amortization applicable thereto, provided that the weighted average life to maturity of such Extended/Modified Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term Loans of the applicable Extension/Modification Request Class, determined at the time of such Extension/Modification Offer (and, for purposes of determining the weighted average life to maturity of any such Term Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded),

(ii)  a modification of voluntary or mandatory prepayments applicable to such Extended/Modified Term Loans (including prepayment premiums, “no call” terms and other restrictions thereon), provided that in the case of any Extended/Modified Term Loans, such requirements may provide that such Extended/Modified Term Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than pro rata) with the Term Loans of the applicable Extension/Modification Request Class, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the Term Loans of the applicable Extension/Modification Request Class, and/or

(iii)  any addition of any affirmative or negative covenants applicable to the Borrower and/or any Subsidiary, provided that to the extent such covenants are not consistent with those applicable to the Loans or Commitments of the applicable Extension/Modification Request Class, such differences shall be reasonably acceptable to the Administrative Agent (except for covenants (A) beneficial to the Lenders where this Agreement is amended to include such covenants for the benefit of all Lenders (or, in the case of Extended/Modified Term Loans that are TLA Term Loans, all Lenders holding TLA Term Loans or Revolving Commitments) or (B) applicable only to periods after the latest Maturity Date in effect at the time of effectiveness of the applicable Extension/Modification Agreement).

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“Extension/Modification Request Class” as defined in Section 2.24(a).

“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by the Borrower or any Restricted Subsidiary or any of their respective predecessors or Affiliates.

“Fair Share” as defined in Section 7.2(b).

“Fair Share Contribution Amount” as defined in Section 7.2(b).

“FATCA”means Sections 1471 through 1474 of the Internal Revenue Code, effective as of the date hereof (or any amended or successor version that is 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 Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.

“FCC” means the Federal Communications Commission, or any Governmental Authority succeeding to the functions thereof.

“Federal Funds Effective Rate” means, for any day, the rate per annum 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 that (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 quoted to the Administrative Agent on such day on such transactions by major financial institutions selected by the Administrative Agent. Notwithstanding the foregoing, if the Federal Funds Effective Rate, determined as above, would otherwise be less than zero, then the Federal Funds Effective Rate shall be deemed to be zero for all purposes of this Agreement.

“Fee Letters” means (a) the Fee Letter, dated April 30, 2018, between Goldman Sachs and the Borrower, (b) the Amended and Restated Arranger Fee Letter, dated May 4, 2018, among Goldman Sachs, MSSF, MUFG and the Borrower, (c) the Administrative Agent Fee Letter and (d) the Vector Letter, dated May 4, 2018, between Vector SPV and the Borrower.

“Financial Officer Certification” means (a) with respect to any consolidated financial statements of any Person, a certificate of the chief financial officer of such Person stating that such financial statements present fairly, in all material respects, the consolidated financial position of such Person and its Subsidiaries as of the dates indicated and the consolidated results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a consistent basis (except as otherwise disclosed in such financial statements), subject to changes resulting from normal year-end audit adjustments and the absence of footnotes, and (b) with respect to any Unrestricted Subsidiary Reconciliation Statement, a certificate of the chief financial officer of the Borrower stating that such reconciliation statement accurately reflects all adjustments necessary to treat the Unrestricted Subsidiaries as if they were not consolidated with the Borrower and to otherwise eliminate all accounts of the Unrestricted Subsidiaries and reflects no other adjustment from the related GAAP financial statement (except as otherwise disclosed in such reconciliation statement).

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“Financing Transactions” means (a) the execution, delivery and performance by each Credit Party of the Credit Documents to which it is to be a party, the creation of the Liens provided for in the Collateral Documents and, in the case of the Borrower, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder and (b) the execution, delivery and performance by each Credit Party of the Second Lien Credit Documents to which it is to be a party, the creation of the Liens provided for in the Second Lien Credit Documents and, in the case of the Borrower, the borrowing of the loans under the Second Lien Credit Agreement and the use of the proceeds thereof.

“First Lien Net Leverage Ratio” means the ratio, as of any date, of (a) Consolidated First Lien Net Debt as of such date to (b) Consolidated Adjusted EBITDA for the period of four consecutive Fiscal Quarters of the Borrower ended on such date (or, if such date is not the last day of a Fiscal Quarter, most recently prior to such date).

“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.

“Fiscal Year” means the fiscal year of the Borrower and the Subsidiaries ending on December 31 of each calendar year.

“Fixed Charge Coverage Ratio” means the ratio, as of the last day of any period of four consecutive Fiscal Quarters, of (a) Consolidated Adjusted EBITDA for such period to (b) Consolidated Fixed Charges for such period.

“Fixed Charge Coverage Ratio Covenant” means the covenant of the Borrower set forth in Section 6.7(c).

“Fixed Charge Coverage Ratio Covenant Period” means the period commencing on the Closing Date and terminating on the first date on which the aggregate outstanding principal amount of the Tranche A Term Loans shall be zero.

“Flood Hazard Property” means any Real Estate Asset subject to a Mortgage or required pursuant to the terms hereof to become subject to a Mortgage in favor of the Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

“Flood Certificate” means a life of loan “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency.

“Flood Program”means the National Flood Insurance Program created by the US Congress pursuant to (a) the National Flood Insurance Act of 1968, as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973, as now or hereafter in effect or any successor statute thereto, (c) the National Flood Insurance Reform Act of 1994, as now or hereafter in effect or any successor statute thereto, (d) the Flood Insurance Reform Act of 2004, as now or hereafter in effect or any successor statute thereto and (e) the Biggert-Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute thereto, including any and all rules and regulations promulgated thereunder.

“Flood Zone”means areas having special flood hazards as described in the National Flood Insurance Act of 1968, as now or hereafter in effect or any successor statute thereto.

“Foreign Lender” means a Lender that is not a US Person.

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“Foreign Plan” means any plan that would be an Employee Benefit Plan but for the fact that is not subject to United States law and that is maintained or contributed to by the Borrower, any Restricted Subsidiary or, to the extent that the Borrower or any Restricted Subsidiary shall have liability with respect to such Pension Plan, any of their respective ERISA Affiliates for or on behalf of its employees whose principal place of employment is outside of the United States.

“Foreign Plan Event” means, with respect to any Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable laws or by the terms of such Foreign Plan, (b) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from the applicable Governmental Authority, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, or alleging the insolvency of the Borrower or any Restricted Subsidiary that sponsors, contributes to or participates in such Foreign Plan, (d) the initiation of any action or filing by the Borrower or any Restricted Subsidiary to voluntarily terminate or wind up in whole or in part any Foreign Plan where any such Foreign Plan is not fully funded and that would result in the incurrence of a liability by the Borrower or any Restricted Subsidiary, (e) the incurrence of liability by the Borrower or any Restricted Subsidiary under applicable law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, (f) the failure to timely register or loss of good standing with applicable Governmental Authorities of any such Foreign Plan required to be so registered or maintain such standing if such failure to register or loss of such standing would result in the incurrence of a liability by the Borrower or any Restricted Subsidiary or (g) the failure of any Foreign Plan to comply with any material provisions of applicable laws or with the material terms of such Foreign Plan if such failure would result in the incurrence of a liability by the Borrower or any Restricted Subsidiary.

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

“Fronting Exposure” means, at any time there is a Revolving Lender that is a Defaulting Lender, with respect to any Issuing Bank, such Defaulting Lender’s applicable Pro Rata Share of the Letter of Credit Usage attributable to Letters of Credit issued by such Issuing Bank, other than any portion of such Pro Rata Share that has been reallocated to other Revolving Lenders in accordance with the terms of Section 2.21(a)(iii) or Cash Collateralized in accordance with the terms hereof.

“Funding Notice” means a notice substantially in the form of Exhibit F.

“Fusion Global Arrangement” means the “Fusion Global Arrangement” as defined in the Merger Agreement as in effect on the Closing Date.

“GAAP” means, at any time, subject to Section 1.2(a), United States generally accepted accounting principles as in effect at such time, applied in accordance with the consistency requirements thereof.

“Goldman Sachs” means Goldman Sachs Lending Partners LLC.

“Governmental Act” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.

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“Governmental Authority” means any federal, state, municipal, national, supranational or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the United States of America, any State thereof or the District of Columbia or a foreign entity or government (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).

“Governmental Authorization” means any permit, license, registration, approval, exemption, authorization, plan, directive, binding agreement, consent order or consent decree made to, or issued, promulgated or entered into by or with, any Governmental Authority.

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, Securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation; provided that the term “Guarantee” shall not include (i) endorsements for collection or deposit in the ordinary course of business or (ii) customary indemnity obligations entered into in connection with any Acquisition or any Disposition permitted hereunder (other than any such obligations with respect to Indebtedness). The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on such date of Indebtedness or other obligation guaranteed thereby (or, in the case of (A) any Guarantee the terms of which limit the monetary exposure of the guarantor or (B) any Guarantee of an obligation that does not have a principal amount, the maximum monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause (A), pursuant to such terms or, in the case of clause (B), reasonably and in good faith by the chief financial officer of the Borrower)).

“Guarantor Subsidiary” means each Restricted Subsidiary that is a party hereto as a “Guarantor” and a party to the Pledge and Security Agreement as a “Grantor” thereunder.

“Guarantors” means each Guarantor Subsidiary; provided that the term “Guarantors” shall also include the Borrower solely for purposes of the Guarantee of Obligations of the other Credit Parties pursuant to Section 7.

“Hazardous Materials” means any petroleum or petroleum products, radioactive materials or wastes, asbestos in any form, polychlorinated biphenyls, hazardous or toxic substances and any other chemical, material, waste or substance that is prohibited, limited or regulated, or that could result in liability, under any Environmental Law.

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“Hedge Agreement” means any agreement with respect to any swap, forward, future or derivative transaction, or any option or similar agreement, involving, or settled by reference to, one or more rates, currencies, commodities, prices of equity or debt securities or instruments, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or any similar transaction or combination of the foregoing transactions; provided that no phantom stock, stock option, stock appreciation right or similar plan or right providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Hedge Agreement.

“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 laws applicable to any Lender that are presently in effect or, to the extent allowed by law, under such applicable laws that may hereafter be in effect and that allow a higher maximum nonusurious interest rate than applicable laws now allow.

“Historical Acquired Company Financial Statements” means the audited consolidated balance sheets and related audited consolidated statements of operations and comprehensive income, stockholders’ equity and cash flows, in each case prepared in conformity with GAAP, of the Acquired Company and its consolidated Subsidiaries for the fiscal year ended December 31, 2017.

“Historical Borrower Financial Statements” means the audited consolidated balance sheets and related consolidated statements of operations, changes in stockholders’ equity and cash flows, in each case prepared in conformity with GAAP, of the Borrower and its consolidated Subsidiaries for the Fiscal Year ended December 31, 2017.

“Incremental Amount” means, as of any date of determination, an amount not in excess of (a) (i) the sum of (A) $50,000,000 and (B) the aggregate principal amount of Tranche A Term Loans and Tranche B Term Loans prepaid prior to such date pursuant to Section 2.12(a) and the aggregate amount of reductions of the Revolving Commitments made, prior to such date, pursuant to Section 2.12(b), in each case, to the extent not financed with the proceeds of any Long-Term Indebtedness and excluding any such reduction in connection with a refinancing thereof (and, in each case, excluding any prepayments or reductions thereof in excess of the amount thereof outstanding as of the Closing Date (less the aggregate principal amount of Tranche B Term Loans prepaid pursuant to Section 2.13(d)) or incurred in reliance on this clause (a)), minus (ii) the sum of (A) the aggregate amount of Incremental Commitments established prior to such date in reliance on this clause (a), (B) the aggregate principal amount of any Permitted Incremental Equivalent Indebtedness incurred prior to such date in reliance on this clause (a) and (C) the aggregate principal amount of any Permitted Second Lien Indebtedness incurred in reliance on clause (a)(i)(A) of the definition of “Incremental Amount” under the Second Lien Credit Agreement (or any comparable successor provision) (the amounts available on such date under this clause (a) above being referred to as the “Unrestricted Incremental Amount”), plus (b) an additional amount so long as, in the case of this clause (b), after giving Pro Forma Effect to the incurrence of Indebtedness with respect to which the Incremental Amount is being determined and the use of proceeds thereof (but without netting the Cash proceeds of such Indebtedness (and any other Indebtedness incurred substantially concurrently therewith), and assuming, solely for purposes of this determination, that the entire amount of the Incremental Commitments with respect to which the Incremental Amount is being determined are fully funded as Loans), (i) in the case of the establishment of any Incremental Commitments or the incurrence of any Permitted Incremental Equivalent Indebtedness that is Permitted Pari Passu Secured Indebtedness, the First Lien Net Leverage Ratio, determined as of the last day of the Test Period most recently ended on or prior to such date, shall not exceed 3.20:1.00 (the “First Lien Incremental Leverage Limit”), (ii) in the case of the incurrence of any other Permitted Incremental Equivalent Indebtedness, the Total Net Leverage Ratio, determined as of the last day of the Test Period most recently ended on or prior to such date, shall not exceed 3.65:1.00 (the “Total Incremental Leverage Limit”) and (iii) the Borrower shall be in compliance with Sections 6.7(a) and, during the Fixed Charge Coverage Ratio Covenant Period, 6.7(c), determined as of the last day of or for, as applicable, the Test Period most recently ended on or prior to such date; provided that (I) if, for purposes of determining capacity under clause (b) above, Pro Forma Effect is given to the entire committed amount of any Indebtedness with respect to which the Incremental Amount is being determined, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without any further testing under this definition (provided that such committed amount shall, solely for purposes of calculating availability under clause (b) above, at all times thereafter be deemed to be fully funded as Indebtedness for borrowed money), (II) in the case of any Incremental Commitments or Permitted Incremental Equivalent Indebtedness established or incurred concurrently in reliance on the Unrestricted Incremental Amount and in reliance on clause (b) above, the First Lien Net Leverage Ratio or the Total Net Leverage Ratio, as the case may be, shall be permitted to exceed the First Lien Incremental Leverage Limit or the Total Incremental Leverage Limit, as applicable, to the extent of the amounts of such Incremental Commitments or Permitted Incremental Equivalent Indebtedness established or incurred in reliance on the Unrestricted Incremental Amount, (III) in the case of any Incremental Commitments or Permitted Incremental Equivalent Indebtedness established or incurred in reliance on clause (b) above, any Revolving Loans incurred concurrently therewith or any other Indebtedness incurred concurrently therewith pursuant to and in accordance with any clause of Section 6.1 that does not require observance of the First Lien Net Leverage Ratio or the Total Net Leverage Ratio shall, solely in the case of subclauses (i) and (ii) of clause (b) above, be disregarded for purposes of calculating the First Lien Net Leverage Ratio or the Total Net Leverage Ratio, as applicable, under such subclauses of clause (b) above, (IV) in the case of any Incremental Term Loan Commitment or Permitted Incremental Equivalent Indebtedness established or incurred in reliance on clause (b) above, to the extent the proceeds thereof are intended to be applied to finance a Limited Conditionality Transaction, at the election of the Borrower, Pro Forma Compliance with the First Lien Net Leverage Ratio or the Total Net Leverage Ratio, as applicable, and Sections 6.7(a) and, during the Fixed Charge Coverage Ratio Covenant Period, 6.7(c) as required under clause (b) above (but not, for the avoidance of doubt, actual compliance with Section 6.7(a) or, during the Fixed Charge Coverage Ratio Covenant Period, 6.7(c)) may be tested in accordance with the provisions of Section 1.5, and (V) any Incremental Commitments and Permitted Incremental Equivalent Indebtedness may be established or incurred in reliance on clause (a) or (b) above regardless of whether there is capacity under any such other clause above, or may be established or incurred in reliance in part on clause (a) or (b) above and in part on any such other clause above, all as determined by the Borrower in its sole discretion, provided that absent an election by the Borrower, to the extent that the applicable requirements have been satisfied, such incurrence shall be deemed to have been made pursuant to clause (b) above.

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“Incremental Commitment” means an Incremental Revolving Commitment or an Incremental Term Loan Commitment.

“Incremental Facility Agreement” means an Incremental Facility Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Incremental Lenders, establishing Incremental Commitments of any Class, specifying the purposes for which the proceeds of the Loans made pursuant thereto will be used and effecting such other amendments hereto and to the other Credit Documents as are contemplated by Section 2.23.

“Incremental Lender” means an Incremental Revolving Lender or an Incremental Term Lender.

“Incremental Revolving Commitment” means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Facility Agreement and Section 2.23, to make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure under such Incremental Facility Agreement.

“Incremental Revolving Lender” means a Lender with an Incremental Revolving Commitment.

“Incremental Term Borrowing” means a Borrowing comprised of Incremental Term Loans of a single Class.

“Incremental Term Lender” means a Lender with an Incremental Term Loan Commitment or an Incremental Term Loan.

“Incremental Term Loan” means a term loan made by an Incremental Term Lender to the Borrower pursuant to Section 2.23.

“Incremental Term Loan Commitment” means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Facility Agreement and Section 2.23, to make Incremental Term Loans of any Class hereunder, expressed as an amount representing the maximum principal amount of the Incremental Term Loans of such Class to be made by such Lender, subject to any increase or reduction pursuant to the terms and conditions hereof. The initial amount of each Lender’s Incremental Term Loan Commitment of any Class, if any, is set forth in the Incremental Facility Agreement or Assignment Agreement pursuant to which such Lender shall have established or assumed its Incremental Term Loan Commitment of such Class.

“Incremental Term Loan Maturity Date” means, with respect to Incremental Term Loans of any Class, the scheduled date on which such Incremental Term Loans shall become due and payable in full hereunder, as specified in the applicable Incremental Facility Agreement.

“Incremental Tranche A Term Loans” means Incremental Term Loans that have scheduled amortization of 5.00% or more per annum, a final maturity of five years or less from the date of incurrence and are primarily syndicated to or otherwise provided by commercial banks (as reasonably determined by the Borrower in good faith).

“incur” means to create, incur, assume or, in the case of any Indebtedness, otherwise become liable with respect to such Indebtedness.

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“Indebtedness” means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person (excluding trade accounts payable incurred in the ordinary course of business), (d) all obligations of such Person in respect of deferred purchase price of property or services (excluding (i) current accounts payable incurred in the ordinary course of business, (ii) deferred compensation payable to directors, officers, employees or consultants of such Person or any of its Subsidiaries and (iii) purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred in connection with any Acquisition, except to the extent that the amount payable pursuant to such purchase price adjustment, earnout, deferred compensation or similar arrangement is reflected on such Person’s consolidated balance sheet in conformity with GAAP), (e) all Capital Lease Obligations of such Person, (f) the maximum aggregate amount (determined after giving effect to any prior drawings or reductions that have been reimbursed) of all letters of credit and letters of guaranty in respect of which such Person is an account party, (g) the principal component of all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (h) all Indebtedness of others secured by any Lien on any property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed by such Person, valued, as of any date of determination, at the lesser of (i) the principal amount of such Indebtedness and (ii) the fair value of such property (as determined in good faith by such Person), (i) all Guarantees by such Person of Indebtedness of others and (j) all Disqualified Equity Interests in such Person, valued, as of the date of determination, at the greater of (i) the maximum aggregate amount that would be payable upon maturity, redemption, repayment or repurchase thereof (or of Disqualified Equity Interests or Indebtedness into which such Disqualified Equity Interests are convertible or exchangeable) and (ii) the maximum liquidation preference of such Disqualified Equity Interests. The Indebtedness of any Person shall include the Indebtedness of any other Person (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such other Person, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

“Indemnified Liabilities” means any and all liabilities (including Environmental Liabilities), obligations, losses, damages (including natural resource damages), penalties, claims, actions, judgments, suits, costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials), expenses and disbursements of any kind or nature whatsoever (including the reasonable out-of-pocket fees, expenses and other charges of counsel and consultants for the Indemnitees in connection with any investigative, administrative or judicial proceeding or hearing commenced or threatened by any Person (including by any Credit Party or any Affiliate thereof), whether or not any such Indemnitee shall be designated as a party or a potential party thereto (but limited, in the case of any one such proceeding or hearing, to fees, expenses and other charges of one firm of primary counsel, one firm of regulatory counsel, and, if reasonably necessary, one firm of local counsel in each applicable jurisdiction for all the Indemnitees (and, if any Indemnitee shall have advised the Borrower that there is an actual or perceived conflict of interest, one additional firm of primary counsel, one additional firm of regulatory counsel and, if reasonably necessary, one additional firm of local counsel in each applicable jurisdiction for each group of affected Indemnitees that are similarly situated (in each case, excluding allocated costs of in-house counsel)), and any fees or expenses incurred by the Indemnitees in enforcing this indemnity), whether direct, indirect, special, consequential or otherwise and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable causes of action or on contract or otherwise, that may be imposed on, incurred by or asserted against any such Indemnitee, in any manner relating to or arising out of (a) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions, the issuance, amendment, extension or renewal of any Letter of Credit by any Issuing Bank (including the failure of any Issuing Bank to honor a drawing under any Letter of Credit as a result of any Governmental Act), the syndication of the credit facilities provided for herein or the use or intended use of the proceeds thereof, the Vector Facility Arrangements, any amendments, waivers or consents with respect to any provision of this Agreement or any of the other Credit Documents, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Obligations Guarantee)), (b) any commitment letter, engagement letter, fee letter or other letter or agreement delivered by any Agent, any Arranger, any Issuing Bank or any Lender to the Borrower or any of its Affiliates in connection with the arrangement of the credit facilities provided for herein or in connection with the transactions contemplated by this Agreement or (c) any actual or alleged presence or Release of Hazardous Materials on, at or under or from any property currently or formerly owned, leased or operated by the Borrower or any Affiliate or any Environmental Liability related in any way to the Borrower or any Affiliate.

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“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Indemnitee” as defined in Section 10.3.

“Installment” means (a) when used in respect of the Tranche A Term Loans or Tranche A Term Borrowings, each payment of the principal amount thereof due under Section 2.11(a) (including the payment due on the Tranche A Term Loan Maturity Date), (b) when used in respect of the Tranche B Term Loans or Tranche B Term Borrowings, each payment of the principal amount thereof due under Section 2.11(b) (including the payment due on the Tranche B Term Loan Maturity Date) and (c) when used in respect of any Term Loans or Term Borrowings of any other Class, each payment of the principal amount thereof due under Section 2.11(c) (including the payment due on the Maturity Date applicable to the Term Loans of such Class).

“Insurance/Condemnation Event” means any casualty or other insured damage to, or any taking under the power of eminent domain or by condemnation or similar proceeding of, or any Disposition under a threat of such taking of, all or any part of any assets of the Borrower or any Restricted Subsidiary, other than any of the foregoing resulting in aggregate Net Proceeds not exceeding $5,000,000 during any Fiscal Year.

“Intellectual Property” as defined in the Pledge and Security Agreement.

“Intellectual Property Security Agreements” as defined in the Pledge and Security Agreement.

“Intercompany Indebtedness Subordination Agreement” means a First Lien Intercompany Indebtedness Subordination Agreement substantially in the form of Exhibit G.

“Intercompany Note” means a promissory note substantially in the form of Exhibit H.

“Intercreditor Agreement” means the Intercreditor Agreement in substantially the form set forth in Exhibit I, with such changes therefrom as may be agreed to by the Administrative Agent and the Borrower or as are contemplated by Section 10.24.

“Interest Payment Date” means (a) with respect to any Base Rate Loan, the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date, and (b) with respect to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and, in the case of any such Loan with an Interest Period of longer than three months’ duration, each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period.

“Interest Period” means, with respect to any Eurodollar Rate Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one month, two months, three months or six months thereafter (or, in the case of any Eurodollar Rate Borrowing of any Class, such longer period thereafter as shall have been consented to by each Lender of such Class and notified in writing to the Administrative Agent), as selected by the Borrower in the applicable Funding Notice or Conversion/Continuation Notice; provided that (a) if an Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless no succeeding Business Day occurs in such month, in which case such Interest Period shall end on the immediately preceding Business Day, (b) any Interest Period that commences 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 (c) below, end on the last Business Day of the last calendar month of such Interest Period and (c) notwithstanding anything to the contrary in this Agreement, no Interest Period for a Eurodollar Rate Borrowing of any Class may extend beyond the Maturity Date for Borrowings of such Class. For purposes hereof, the date of a Eurodollar Rate Borrowing shall initially be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

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

“Internal Revenue Code” means the Internal Revenue Code of 1986.

“Investment” means, with respect to a specified Person, any Equity Interests, evidences of Indebtedness or other Securities (including any option, warrant or other right to acquire any of the foregoing) of, or any capital contribution or loans or advances (other than trade advances made in the ordinary course of business that would be recorded as accounts receivable on the balance sheet of the specified Person prepared in conformity with GAAP) to, Guarantees of any Indebtedness of (including any such Guarantees arising as a result of the specified Person being a co-maker of any note or other instrument or a joint and several co-applicant with respect to any letter of credit or letter of guaranty), or any other investments in (including any investment in the form of transfer of property for consideration that is less than the fair value thereof (as determined reasonably and in good faith by the chief financial officer of the Borrower)), any other Person that are held or made by the specified Person. The amount, as of any date of determination, of (a) any Investment in the form of a loan or an advance shall be the aggregate principal amount thereof made on or prior to such date of determination, minus the amount, as of such date of determination, of any Returns with respect thereto, but without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (b) any Investment in the form of a Guarantee shall be determined in accordance with the definition of the term “Guarantee”, (c) any Investment in the form of a purchase or other acquisition for value of any Equity Interests, evidences of Indebtedness or other Securities of any Person shall be the fair value (as determined reasonably and in good faith by the chief financial officer of the Borrower) of the consideration therefor (including any Indebtedness assumed in connection therewith), plus the fair value (as so determined) of all additions, as of such date of determination, thereto, and minus the amount, as of such date of determination, of any Returns with respect thereto, but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the time of such Investment, (d) any Investment (other than any Investment referred to in clause (a), (b) or (c) above) in the form of a transfer of Equity Interests or other property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the fair value (as determined reasonably and in good faith by the chief financial officer of the Borrower) of such Equity Interests or other property as of the time of such transfer (less, in the case of any investment in the form of transfer of property for consideration that is less than the fair value thereof, the fair value (as so determined) of such consideration as of the time of the transfer), minus the amount, as of such date of determination, of any Returns with respect thereto, but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the time of such transfer, and (e) any Investment (other than any Investment referred to in clause (a), (b), (c) or (d) above) in any Person resulting from the issuance by such Person of its Equity Interests to the investor shall be the fair value (as determined reasonably and in good faith by the chief financial officer of the Borrower) of such Equity Interests at the time of the issuance thereof.

“Iqmax Disposition” means the Disposition by the Borrower and the Restricted Subsidiaries of the assets acquired pursuant to that certain Asset Purchase Agreement, dated as of January 24, 2018, by and between Network Billing Systems, LLC and Iqmax, Inc., such Disposition to be consummated in accordance with the terms of such Asset Purchase Agreement.

“IRS” means the United States Internal Revenue Service.

“Issuance Notice” means an Issuance Notice substantially in the form of Exhibit J.

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“Issuing Bank” means (a) each of Goldman Sachs, MSSF and MUFG and (b) any other Revolving Lender (or an Affiliate thereof) that shall have become an Issuing Bank as provided herein, other than any such Person that shall have ceased to be an Issuing Bank as provided herein, each in its capacity as an issuer of Letters of Credit hereunder.

“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 version thereof as may be in effect at the time of issuance).

“Junior Indebtedness” means (a) any Permitted Second Lien Indebtedness, (b) any Permitted Credit Agreement Refinancing Indebtedness and any Permitted Incremental Equivalent Indebtedness that, in each case, is Permitted Junior Lien Secured Indebtedness or Permitted Unsecured Indebtedness and (c) the Subordinated Notes, any other Permitted Subordinated Indebtedness or any other Subordinated Indebtedness, other than any Subordinated Indebtedness owing to the Borrower or any Restricted Subsidiary.

“Junior Lien Intercreditor Agreement” means, with respect to any Permitted Junior Lien Secured Indebtedness, the Intercreditor Agreement or any other intercreditor agreement, in form and substance reasonably satisfactory to the Collateral Agent and the Borrower, that contains terms and conditions that are within the range of terms and conditions customary for intercreditor agreements that are of the type that govern intercreditor relationships between holders of senior secured credit facilities and holders of the same type of Indebtedness as such Permitted Junior Lien Secured Indebtedness.

“LCT Test Date” as defined in Section 1.5.

“Leasehold Property” means, as of any time of determination, any leasehold interest then owned by any Credit Party in any leased real property.

“Lender” means each Person listed on the signature pages hereto as a Lender, and any other Person that shall have become a party hereto in accordance with the terms hereof pursuant to an Assignment Agreement, an Incremental Facility Agreement or a Refinancing Facility Agreement, other than any such Person that shall have ceased to be a party hereto pursuant to an Assignment Agreement.

“Lender Presentation” means the Lender Presentation dated February 2018 and the Transaction Update dated April 2018, relating to this Agreement and the credit facilities provided for herein.

“Letter of Credit” means a letter of credit issued or to be issued by any Issuing Bank pursuant to this Agreement, in each case other than any Letter of Credit that ceases to be a “Letter of Credit” outstanding hereunder pursuant to Section 10.8.

“Letter of Credit Issuing Commitment” means, with respect to any Issuing Bank, the commitment, if any, of such Issuing Bank to issue Letters of Credit, expressed as an amount representing the maximum aggregate Letter of Credit Usage attributable to Letters of Credit issued by such Issuing Bank. The initial amount of each Issuing Bank’s Letter of Credit Issuing Commitment on the Closing Date, if any, is set forth on Schedule 2.3. The aggregate amount of the Letter of Credit Issuing Commitments as of the Closing Date is $15,000,000.

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“Letter of Credit Sublimit” means $15,000,000; provided that the Letter of Credit Sublimit may be increased at any time by the written agreement of the Borrower, the Administrative Agent and each Issuing Bank that will provide a Letter of Credit Issuing Commitment to the Borrower in an aggregate amount for the Issuing Banks party to such agreement that is not less than the amount of such increase.

“Letter of Credit Usage” means, at any time, the sum of (a) the maximum aggregate amount that is, or at any time thereafter pursuant to the terms thereof may become, available for drawing under all Letters of Credit outstanding at such time (regardless of whether any conditions for drawing could then be met) and (b) the aggregate amount of all drawings under Letters of Credit honored by the Issuing Banks and not theretofore reimbursed by or on behalf of the Borrower. 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 3.13 or Rule 3.14 of the ISP, Article 29 of the UCP, or any similar provisions in applicable law or the express terms of such Letter of Credit, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“License” means any license, permit, consent, certificate, franchise approval, waiver, registration or authorization granted or issued by the FCC, any State PUC or any other Governmental Authority with authority to regulate the provision of telecommunications services.

“Lien” means any lien, mortgage, pledge, assignment, security interest, hypothecation, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing.

“Limited Conditionality Transaction” means an Acquisition or Investment (other than an intercompany Investment) permitted by this Agreement that the Borrower or a Restricted Subsidiary is contractually committed to consummate (it being understood that such commitment may be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in accordance with the terms of the applicable agreement) and the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.

“Loan” means a Revolving Loan, a Tranche A Term Loan, a Tranche B Term Loan, an Incremental Term Loan of any Class, an Extended/Modified Term Loan of any Class or a Refinancing Term Loan of any Class.

“Long-Term Indebtedness” means any Indebtedness that, in conformity with GAAP, constitutes (or, when incurred, constituted) a long-term liability.

“Majority in Interest”, when used in reference to Lenders of any Class, means, at any time, (a) in the case of the Revolving Lenders, Lenders having Revolving Exposures and unused Revolving Commitments representing more than 50% of the sum of the Revolving Exposures and unused Revolving Commitments of all the Revolving Lenders at such time and (b) in the case of the Term Lenders of any Class, Lenders having Term Loan Exposure of such Class representing more than 50% of the Term Loan Exposure of all the Term Lenders of such Class at such time. For purposes of this definition, the amount of Revolving Exposures, unused Revolving Commitments and Term Loan Exposures of any Class shall be determined by excluding the Revolving Exposure, unused Revolving Commitment and Term Loan Exposure of such Class of any Defaulting Lender.

“Margin Stock” as defined in Regulation U.

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“Material Acquisition” means any Acquisition, or a series of related Acquisitions, by the Borrower or any Restricted Subsidiary; provided that the portion of the Consolidated Adjusted EBITDA, calculated on a Pro Forma Basis for such Acquisition or Acquisitions, attributable to the Persons or the assets so acquired for the most recent period of 12 consecutive months for which financial statements are available at the time of the consummation thereof exceeds $10,000,000; provided further that the Specified Acquisition shall in any event constitute a Material Acquisition.

“Material Adverse Effect” means a material adverse effect on (a) the business, results of operations, assets or financial condition of the Borrower and the Restricted Subsidiaries, taken as a whole, (b) the ability of the Credit Parties to fully and timely perform their obligations under the Credit Documents, taken as a whole, (c) the legality, validity, binding effect or enforceability against the Credit Parties of any Credit Documents to which they are party or (d) the rights, remedies and benefits available to, or conferred upon, any Agent, any Arranger, any Issuing Bank, any Lender or any Secured Party under the Credit Documents, taken as a whole.

“Material Disposition” means any Disposition, or a series of related Dispositions, by the Borrower or any Restricted Subsidiary of (a) all or substantially all the issued and outstanding Equity Interests in any Person or (b) assets comprising all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person; provided that the portion of the Consolidated Adjusted EBITDA for the most recent Test Period attributable to the Persons or assets so Disposed exceeds $10,000,000.

“Material Indebtedness” means Indebtedness (other than the Loans and Guarantees under the Credit Documents), or obligations in respect of one or more Hedge Agreements, of any one or more of the Borrower and the Restricted Subsidiaries in an aggregate principal amount of $10,000,000 or more, provided that any Permitted Second Lien Indebtedness, Permitted Incremental Equivalent Indebtedness, Permitted Credit Agreement Refinancing Indebtedness and Permitted Subordinated Indebtedness shall at all times constitute “Material Indebtedness”. In the case of any Material Indebtedness that is a Guarantee of any other Indebtedness, each reference to “Material Indebtedness” shall be deemed to include a reference to such Guaranteed Indebtedness. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Restricted Subsidiary in respect of any Hedge Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if such Hedge Agreement were terminated at such time.

“Material Real Estate Asset” means each Real Estate Asset owned in fee by a Credit Party that, together with the improvements thereon and all contiguous and all related parcels and the improvements thereon forming part of such Real Estate Asset, has a fair value, as of the Closing Date or as of the time of the acquisition thereof, of greater than $5,000,000 in the aggregate.

“Material Subsidiary” means each Restricted Subsidiary (a) the consolidated total assets of which (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) equal 5.0% or more of the Consolidated Total Assets or (b) the consolidated revenues of which (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) equal 5.0% or more of the consolidated revenues of the Borrower and the Restricted Subsidiaries, in each case as of the end of or for the most recent period of four consecutive Fiscal Quarters of the Borrower for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the delivery of any such financial statements, as of the end of or for the period of four consecutive Fiscal Quarters ending with the last Fiscal Quarter included in the Historical Borrower Financial Statements); provided that if at the end of or for any such most recent period of four consecutive Fiscal Quarters the combined consolidated total assets or combined consolidated revenues of all Restricted Subsidiaries that under clauses (a) and (b) above would not constitute Material Subsidiaries would, but for this proviso, exceed 10.0% of the Consolidated Total Assets or 10.0% of the consolidated revenues of the Borrower and the Restricted Subsidiaries, then one or more of such excluded Restricted Subsidiaries shall for all purposes of this Agreement be deemed to be Material Subsidiaries in descending order based on the amounts (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) of their consolidated total assets or consolidated revenues, as the case may be, until such excess shall have been eliminated; provided further that the Borrower may specify any wholly owned Domestic Subsidiary to be a Material Subsidiary, irrespective of whether such Subsidiary meets the requirements set forth under clause (a) or (b) above. For purposes of this definition, the Consolidated Total Assets and consolidated revenues of the Borrower as of any date prior to, or for any period that commenced prior to, the Closing Date shall be determined on a Pro Forma Basis to give effect to the Merger and the other Transactions to occur on the Closing Date.

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“Maturity Date” means the Revolving Maturity Date, the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date, the Incremental Term Loan Maturity Date with respect to the Incremental Term Loans of any Class, the Extended/Modified Term Loan Maturity Date with respect to the Extended/Modified Term Loans of any Class or the Refinancing Term Loan Maturity Date with respect to the Refinancing Term Loans of any Class, as the context requires.

“Merger” means the merger of the Acquired Company with and into Merger Sub, with Merger Sub surviving such merger as a wholly owned Subsidiary of the Borrower, pursuant to the Merger Agreement.

“Merger Agreement” means the Agreement and Plan of Merger dated as of August 26, 2017, as amended by the First Amendment to Agreement and Plan of Merger dated as of September 15, 2017, the Second Amendment to Agreement and Plan of Merger dated as of September 29, 2017, the Amended and Restated Third Amendment to Agreement and Plan of Merger dated as of October 27, 2017, the Fourth Amendment to Agreement and Plan of Merger, dated as of January 24, 2018, the Fifth Amendment to Agreement and Plan of Merger, dated as of January 25, 2018, the Sixth Amendment to Agreement and Plan of Merger, dated as of March 12, 2018, the Seventh Amendment to Agreement and Plan of Merger, dated as of April 4, 2018, the Eighth Amendment to Agreement and Plan of Merger, dated as of April 26, 2018, and the Ninth Amendment to Agreement and Plan of Merger, dated as of April 27, 2018, by and among the Borrower, Merger Sub and the Acquired Company, together with the exhibits (including the forms of the stockholders’ agreement and the registration rights agreement), disclosure letters and other documents relating thereto.

“Merger Sub” means Fusion BCHI Acquisition LLC, a Delaware limited liability company.

“Moody’s” means Moody’s Investors Service, Inc., or any successor to its rating agency business.

“Mortgage” means a mortgage, deed of trust, assignment of leases and rents or other security document granting a Lien on any Material Real Estate Asset in favor of the Collateral Agent, for the benefit of the Secured Parties, as security for the Obligations. Each Mortgage shall be in form and substance reasonably satisfactory to the Collateral Agent.

“MSSF” means Morgan Stanley Senior Funding, Inc.

“MUFG” means MUFG Union Bank, N.A.

“Multiemployer Plan” means any Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) of ERISA.

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“Net Proceeds” means, with respect to any event, (a) the Cash (which term, for purposes of this definition, shall include Cash Equivalents) proceeds received in respect of such event, including any Cash received in respect of any noncash proceeds, but only as and when received, net of (b) the sum, without duplication, of (i) all reasonable fees and out-of-pocket expenses (including any underwriting discounts and commissions) paid in connection with such event by the Borrower or any Restricted Subsidiary to Persons that are not Affiliates of the Borrower or any Restricted Subsidiary, (ii) in the case of any Asset Sale or Insurance/Condemnation Event, (A) the amount of all payments (including in respect of principal, accrued interest and premiums) required to be made by the Borrower and the Restricted Subsidiaries as a result of such event to repay Indebtedness of the Borrower or the Restricted Subsidiaries of the types referred to in clauses (a) through (e) of the definition of “Indebtedness” (other than Loans, Permitted Second Lien Indebtedness, Permitted Credit Agreement Refinancing Indebtedness, Permitted Incremental Equivalent Indebtedness, Permitted Subordinated Indebtedness and any Indebtedness owed to the Borrower or any Subsidiary) secured by the assets subject thereto, (B) the amount of all Taxes paid (or reasonably estimated to be payable) by the Borrower or any Restricted Subsidiary, and the amount of any reserves established by the Borrower or any Restricted Subsidiary in conformity with GAAP to fund purchase price adjustment, indemnification and similar contingent liabilities reasonably estimated to be payable that are directly attributable to the occurrence of such event and (C) the repayment of customer deposits required upon such Asset Sale or Insurance/Condemnation Event and (iii) in the case of any proceeds from any Asset Sale or Insurance/Condemnation Event affecting the assets of a Restricted Subsidiary that is not a wholly owned Subsidiary, the portion of such proceeds received by such Restricted Subsidiary attributable to the noncontrolling interests in such Restricted Subsidiary, in each case as determined reasonably and in good faith by the chief financial officer of the Borrower. For purposes of this definition, in the event any contingent liability reserve established with respect to any event as described in clause (b)(ii)(B) above shall be reduced, the amount of such reduction shall, except to the extent such reduction is made as a result of a payment having been made in respect of the contingent liabilities for which such reserve has been established, be deemed to be receipt, on the date of such reduction, of Cash proceeds in respect of such event.

“New Subordinated Note” means the subordinated unsecured note issued by the Borrower on the Closing Date to Holcombe T. Green, Jr. (or an entity majority-owned and Controlled by Holcombe T. Green, Jr. or his heirs, beneficiaries, trusts or estate) in an aggregate principal amount of $10,000,000.

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

“Note” means a promissory note issued to any Lender pursuant to Section 2.6(c).

“Obligations” means (a) all obligations of every nature of each Credit Party under this Agreement and the other Credit Documents, whether for principal, interest (including default interest accruing pursuant to Section 2.9 and interest (including such default interest) that would continue to accrue pursuant to the Credit Documents on any such obligation after the commencement of any proceeding under the Debtor Relief Laws with respect to any Credit Party, whether or not such interest is allowed or allowable against such Credit Party in any such proceeding), reimbursement of amounts drawn under Letters of Credit, fees (including prepayment fees), expenses, indemnification or otherwise, (b) all Specified Hedge Obligations, excluding, with respect to any Guarantor, Excluded Swap Obligations with respect to such Guarantor, and (c) all Specified Cash Management Services Obligations.

“Obligations Guarantee” means the Guarantee of the Obligations created under Section 7.

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“OFAC” means the United States Treasury Department Office of Foreign Assets Control.

“Open Market Purchases” as defined in Section 10.6(i)(ii).

“Organizational Documents” means (a) with respect to any corporation or company, its certificate or articles of incorporation, organization or association, as amended, and its bylaws, as amended, (b) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any limited liability company, its certificate of formation or articles of organization, as amended, and its operating agreement, as amended. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.

“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 Credit Document, or sold or assigned an interest in any Loan or Credit Document).

“Other Taxes”means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.22).

“Pari Passu Intercreditor Agreement” means, with respect to any Permitted Pari Passu Secured Indebtedness, an intercreditor agreement, in form and substance reasonably satisfactory to the Collateral Agent and the Borrower, that contains terms and conditions that are within the range of terms and conditions customary for intercreditor agreements that are of the type that govern intercreditor relationships between holders of senior secured credit facilities and holders of the same type of Indebtedness as such Permitted Pari Passu Secured Indebtedness.

“Participant Register” as defined in Section 10.6(g).

“PATRIOT Act”means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56).

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.

“Permitted Acquisition” means any Acquisition by the Borrower or any Restricted Subsidiary; provided that:

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(a)  (i) in the case of any Acquisition of Equity Interests in a Person, each of such Person and its Subsidiaries will become a Restricted Subsidiary (or will be merged or consolidated with or into the Borrower or any Restricted Subsidiary, with the continuing or surviving Person being the Borrower (in the case of any such transaction involving the Borrower) or a Restricted Subsidiary) and (ii) in the case of any Acquisition of other assets, such assets will be owned by the Borrower or any Restricted Subsidiary;

(b)  all actions required to be taken with respect to such Person or such assets, as the case may be, in order to satisfy the requirements set forth in clauses (a), (b), (c) and (d) of the definition of the term “Collateral and Guarantee Requirement” (subject to the discretion of the Collateral Agent set forth in such definition) shall have been taken (or arrangements for the taking of such actions satisfactory to the Collateral Agent shall have been made) (it being understood that all other requirements set forth in such definition that are applicable to such Acquisition shall be required to be satisfied in accordance with (and within the time periods provided in) Sections 5.10 and 5.11);

(c)  (i) the Total Net Leverage Ratio, determined as of the last day of the Test Period most recently ended prior to the consummation thereof (giving Pro Forma Effect to such Acquisition and any other Pro Forma Events in connection therewith (including incurrence of Indebtedness)), shall not be greater than the lesser of (A) the greater of (x) 3.65:1.00 and (y) the Total Net Leverage Ratio as of such last day (but determined prior to giving Pro Forma Effect to such Acquisition or any other Pro Forma Events in connection therewith (including incurrence of Indebtedness)) and (B) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a) and (ii) in the case of any such Acquisition consummated during the Fixed Charge Coverage Ratio Covenant Period, the Fixed Charge Coverage Ratio, determined for the Test Period most recently ended prior to the consummation thereof (giving Pro Forma Effect to such Acquisition and any other Pro Forma Events in connection therewith (including incurrence of Indebtedness)), shall not be less than the minimum Fixed Charge Coverage Ratio permitted under the financial covenant set forth in Section 6.7(c); provided that the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower demonstrating that the condition set forth in this clause (c) have been satisfied; provided, further, that, in the case of any Limited Conditionality Transaction, at the election of the Borrower, the condition set forth in this clause (c) may be tested in accordance with Section 1.5;

(d)  the business of any such acquired Person, or such acquired assets, as the case may be, constitute a business permitted under Section 6.11;

(e)  immediately prior and after giving effect thereto, no Event of Default shall have occurred and be continuing or would result therefrom; provided that, in the case of any Limited Conditionality Transaction, at the election of the Borrower, the condition set forth in this clause (e) may be tested in accordance with Section 1.5; and

(f)  the Acquisition Consideration paid in respect of such Acquisition shall not be in the form of Cash or Cash Equivalents unless the Fixed Charge Coverage Ratio, determined as of the last day of the Test Period most recently ended prior to the consummation thereof (giving Pro Forma Effect to such Acquisition and any other Pro Forma Events in connection therewith (including incurrence of Indebtedness)), (i) in the case of any such Acquisition consummated on or prior to the third anniversary of the Closing Date, shall be greater than or equal to 1.40:1.00 and (ii) in the case of any such Acquisition consummated at any time thereafter, shall be greater than or equal to 1.50:1.00; provided that the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower demonstrating that the condition set forth in this clause (f) has been satisfied; provided, further, that, in the case of any Limited Conditionality Transaction, at the election of the Borrower, the condition set forth in this clause (f) may be tested in accordance with Section 1.5.

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“Permitted Credit Agreement Refinancing Indebtedness” means Indebtedness permitted under Section 6.1(i).

“Permitted Encumbrances” means:

(a)  Liens imposed by law for Taxes that are not overdue by more than 30 days or are being contested in compliance with Section 5.3, if adequate reserves with respect thereto are maintained by the applicable Person in conformity with GAAP;

(b)  carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law (other than any Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA), arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or are being contested in good faith by appropriate proceedings promptly and diligently conducted, if adequate reserves with respect thereto are maintained by the applicable Person in conformity with GAAP;

(c)  pledges and deposits made (i) in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws (other than any Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA) and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above;

(d)  pledges and deposits made (i) in the ordinary course of business to secure the performance of bids, trade contracts (other than for payment of Indebtedness), leases (other than capital leases), statutory obligations (other than any Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA), public utility services provided to the Borrower or a Restricted Subsidiary, surety, litigation and appeal bonds, performance bonds and other obligations of a like nature and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above;

(e)  judgment liens in respect of judgments that do not constitute an Event of Default under Section 8.1(h);

(f)  easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower and the Restricted Subsidiaries, taken as a whole;

(g)  any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that is not violated by the current use and operation of the affected real property;

(h)  ground leases in respect of real property on which facilities owned or leased by the Borrower or any Restricted Subsidiary are located;

(i) Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon;

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(j)  banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with depository institutions; provided that such deposit accounts or funds are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions on access by the Borrower or any Restricted Subsidiary in excess of those required by applicable banking regulations;

(k)  Liens arising by virtue of precautionary UCC financing statement filings (or similar filings under applicable law) regarding operating leases entered into by the Borrower and the Restricted Subsidiaries in the ordinary course of business;

(l)  Liens representing any interest or title of a licensor, lessor or sublicensor or sublessor, or a licensee, lessee or sublicensee or sublessee, in the property subject to any lease (other than any capital lease), license or sublicense or concession agreement permitted by this Agreement;

(m)  Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(n)  deposits of Cash with the owner or lessor of premises leased and operated by the Borrower or any Restricted Subsidiary to secure the performance of its obligations under the lease for such premises, in each case in the ordinary course of business;

(o)  Liens that are contractual rights of set-off; and

(p) Liens on Cash and Cash Equivalents securing obligations in respect of Hedge Agreements permitted under Section 6.12;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, other than Liens referred to in clauses (c) and (d) above securing letters of credit, bank guarantees and similar instruments.

“Permitted Holders” means (a) Holcombe T. Green, Jr., R. Kirby Godsey, Holcombe Green, III, Marvin S. Rosen and Matthew D. Rosen and their respective heirs, beneficiaries, trusts, estates and controlled Affiliates (including, for so long as such Person constitutes such a controlled Affiliate, BCHI Holdings, LLC, a Georgia limited liability company) and (b) any employee benefit plan of the Borrower or any Subsidiary, or any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.

“Permitted Incremental Equivalent Indebtedness” means Indebtedness permitted under Section 6.1(h).

“Permitted Intercreditor Agreement” means the Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Pari Passu Intercreditor Agreement.

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“Permitted Junior Lien Secured Indebtedness” means any secured Indebtedness of the Borrower and/or any other Credit Party in the form of one or more series of junior lien secured bona fide “high yield” notes, bonds or debentures or junior lien secured term loans, and the Guarantees thereof by any Credit Party; provided that (a) such Indebtedness is secured by Liens on all or a portion of the Collateral on a junior priority basis with the Liens on the Collateral securing the Obligations and is not secured by any assets of the Borrower or any Subsidiary other than the Collateral, (b) such Indebtedness is not Guaranteed by any Person other than the Credit Parties and (c) the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of the holders of such Indebtedness shall have become party to a Junior Lien Intercreditor Agreement, providing that the Liens on the Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral securing the Obligations; provided that if such Indebtedness is the initial Permitted Junior Lien Secured Indebtedness incurred by the Borrower and the other Credit Parties, then the Borrower and the other Credit Parties shall have executed and delivered the Junior Lien Intercreditor Agreement (or an acknowledgement thereof in the form specified therein) and the Collateral Agent agrees to execute and deliver, on behalf of the Lenders and the other Secured Parties, the Junior Lien Intercreditor Agreement. It is understood and agreed that, notwithstanding the final paragraph of Section 6.1, Permitted Junior Lien Secured Indebtedness may only be incurred and outstanding in reliance on Section 6.1(e), 6.1(h) or 6.1(i).

“Permitted Lien” means any Lien permitted by Section 6.2.

“Permitted Pari Passu Secured Indebtedness” means any secured Indebtedness of the Borrower and/or any other Credit Party in the form of one or more series of senior secured bona fide “high yield” notes, bonds or debentures (but not loans), and the Guarantees thereof by any Credit Party; provided that (a) such Indebtedness is secured by Liens on all or a portion of the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations (it being understood that the determination as to whether such Liens are on a pari passu basis shall be made without regard to control of remedies) and is not secured by any assets of the Borrower or any Subsidiary other than the Collateral, (b) such Indebtedness is not Guaranteed by any Person other than the Credit Parties and (c) the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of the holders of such Indebtedness shall have become party to a Pari Passu Intercreditor Agreement providing that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Obligations (it being understood that the determination as to whether such Liens rank equal in priority shall be made without regard to control of remedies); provided that if such Indebtedness is the initial Permitted Pari Passu Secured Indebtedness incurred by the Borrower and the other Credit Parties, then the Borrower and the other Credit Parties shall have executed and delivered the Pari Passu Intercreditor Agreement (or an acknowledgement thereof in the form specified therein) and the Collateral Agent agrees to execute and deliver, on behalf of the Lenders and the other Secured Parties, the Pari Passu Intercreditor Agreement. It is understood and agreed that, notwithstanding the final paragraph of Section 6.1, Permitted Pari Passu Secured Indebtedness may only be incurred and outstanding in reliance on Section 6.1(h) or 6.1(i).

“Permitted Second Lien Indebtedness” means Indebtedness permitted under Section 6.1(e). As of the date hereof, Indebtedness under the Second Lien Credit Agreement constitutes Permitted Second Lien Indebtedness.

“Permitted Second Lien Indebtedness Documents” means the Second Lien Credit Agreement and the other Second Lien Credit Documents and any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Permitted Second Lien Indebtedness.

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“Permitted Subordinated Indebtedness” means Indebtedness permitted under Section 6.1(q). As of the date hereof, the Subordinated Notes constitute Permitted Subordinated Indebtedness.

“Permitted Subordinated Indebtedness Document” means the Subordinated Notes and any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Permitted Subordinated Indebtedness.

“Permitted Unsecured Indebtedness” means any Indebtedness of the Borrower and/or any other Credit Party in the form of one or more series of unsecured, senior or subordinated bona fide “high yield” notes, bonds or debentures or unsecured, senior or subordinated term loans; provided that (a) such Indebtedness is not secured by any Liens on any assets of the Borrower or any Subsidiary and (b) such Indebtedness is not Guaranteed by any Person other than the Credit Parties.

“Person” means any natural person, corporation, limited partnership, general partnership, limited liability company, limited liability partnership, joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and any Governmental Authority.

“Platform” means Debtdomain, IntraLinks/IntraAgency, SyndTrak or another similar website or other information platform.

“Pledge and Security Agreement” means the First Lien Pledge and Security Agreement dated as of the date hereof, among the Borrower, the other Credit Parties and the Collateral Agent, substantially in the form of Exhibit K.

“Post-Closing Letter Agreement” means the First Lien Post-Closing Letter Agreement dated as of the date hereof, among the Borrower, the Administrative Agent and the Collateral Agent.

“Previously Absent Financial Maintenance Covenant” means, at any time, (a) any financial maintenance covenant that is not included in this Agreement at such time for the benefit of all Lenders and (b) any financial maintenance covenant that is included in this Agreement at such time for the benefit of all Lenders but has covenant levels or effectiveness triggers that are more restrictive on the Borrower and the Restricted Subsidiaries than the covenant levels or effectiveness triggers set forth in this Agreement at such time.

“Prime Rate” means the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 70% of the nation’s 10 largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Any Agent and any Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

“Private Lenders” means Lenders that wish to receive Private-Side Information.

“Private-Side Information” means any information with respect to the Borrower and the Subsidiaries that is not Public-Side Information.

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“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to any Pro Forma Event, that such Pro Forma Event and the following transactions in connection therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable period of measurement for the applicable covenant or requirement: (a) historical income statement items (whether positive or negative) attributable to the property or Person, if any, subject to such Pro Forma Event, (i) in the case of a Disposition of a business unit, division, product line or line of business of the Borrower or any Restricted Subsidiary, a Disposition that otherwise results in a Restricted Subsidiary ceasing to be a Subsidiary or a designation of a Subsidiary as an Unrestricted Subsidiary, shall be excluded, and (ii) in the case of an Acquisition by the Borrower or a Restricted Subsidiary, whether by merger, consolidation or otherwise, or any other Investment that results in a Person becoming a Restricted Subsidiary or a designation of a Subsidiary as a Restricted Subsidiary, shall be included, (b) any repayment, retirement, redemption, satisfaction and discharge or defeasance of Indebtedness in connection therewith and (c) any Indebtedness incurred or assumed by the Borrower or any of the Restricted Subsidiaries in connection therewith, and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination (taking into account any hedging obligations applicable to such Indebtedness if such hedging obligation has a remaining term in excess of 12 months). “Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” in respect of any Pro Forma Event shall be calculated in a reasonable and factually supportable manner by the Borrower and in the manner that is consistent with the definition of Consolidated Adjusted EBITDA. For the avoidance of doubt, the amount of net cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrower in good faith to be realized as a result of actions taken or to be taken in connection with any Pro Forma Event may be included in Consolidated Adjusted EBITDA in the manner, and subject to the limitations, set forth in the definition of such term.

“Pro Forma Event” means (a) any Acquisition by the Borrower or a Restricted Subsidiary, whether by merger, consolidation or otherwise, or any other Investment (other than intercompany Investments), (b) any Disposition of a business unit, division, product line or line of business of the Borrower or a Restricted Subsidiary and any other Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary, (c) any designation of a Subsidiary as a Restricted Subsidiary or as an Unrestricted Subsidiary, (d) any incurrence or repayment, retirement, redemption, satisfaction and discharge or defeasance of Indebtedness, (e) any Restricted Junior Payment and (f) any other transaction where the consummation thereof, or the determination of whether such transaction is permitted to be consummated under this Agreement, requires that a financial covenant or test be calculated on a Pro Forma Basis after giving Pro Forma Effect to such transaction.

“Pro Forma Financial Statements” means pro forma condensed combined balance sheet as of September 30, 2017 and the pro forma condensed consolidated statements of operations for the Fiscal Year ended December 31, 2016, in each case, of the Borrower and its consolidated Subsidiaries, prepared after giving effect to the Transactions as contemplated by such pro forma financial statements as if they had occurred as of the end of such period (in the case of such balance sheet) or on January 1, 2016 (in the case of such statement of operations), in each case as included in the Definitive Proxy Statement (Form DEF 14A) for the Borrower filed with the SEC on December 28, 2017, as amended by the Borrower’s Form 8-K filed with the SEC on February 13, 2018.

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“Pro Rata Share” means, with respect to any Lender, at any time, (a) when used in reference to payments, computations and other matters relating to the Tranche A Term Loans or Tranche A Term Borrowings, the percentage obtained by dividing (i) the Tranche A Term Loan Exposure of such Lender at such time by (ii) the aggregate Tranche A Term Loan Exposure of all the Lenders at such time, (b) when used in reference to payments, computations and other matters relating to the Tranche B Term Loans or Tranche B Term Borrowings, the percentage obtained by dividing (i) the Tranche B Term Loan Exposure of such Lender at such time by (ii) the aggregate Tranche B Term Loan Exposure of all the Lenders at such time, (c) when used in reference to payments, computations and other matters relating to Term Loan Commitments, Term Loans or Term Borrowings of any other Class, the percentage obtained by dividing (i) the Term Loan Exposure of such Lender with respect to such Class at such time by (ii) the aggregate Term Loan Exposure of all the Lenders with respect to such Class at such time, (d) when used in reference to payments, computations and other matters relating to the Revolving Commitments, Revolving Loans, Revolving Borrowings or Letters of Credit or participations therein or Letter of Credit Usage, the percentage obtained by dividing (i) the Revolving Commitment of such Lender at such time by (ii) the aggregate Revolving Commitments of all the Lenders at such time, provided that if the Revolving Commitments have terminated or expired, the Pro Rata Share under this clause (d) shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments, and (e) when used for any other purpose (including under Section 9.6), the percentage obtained by dividing (i) an amount equal to the sum of the Tranche A Term Loan Exposure, the Tranche B Term Loan Exposure, the Term Loan Exposure of each such other Class and the Revolving Commitments of such Lender at such time by (ii) an amount equal to the sum of the aggregate Tranche A Term Loan Exposure, the aggregate Tranche B Term Loan Exposure, the aggregate Term Loan Exposure of each such other Class and the aggregate Revolving Commitments of all the Lenders at such time; provided that if the Revolving Commitments have terminated or expired, the Pro Rata Share under this clause (e) shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments.

“Projections” means the projections of the Borrower and the Restricted Subsidiaries for each Fiscal Quarter of Fiscal Year 2018 and for each Fiscal Year thereafter through and including Fiscal Year 2025 heretofore provided to the Lenders.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“Public Lenders” means Lenders that do not wish to receive Private-Side Information.

“Public-Side Information” means information that is either (a) available to all holders of Traded Securities of the Borrower or any Subsidiary or (b) not material non-public information (for purposes of United States federal, state or other applicable securities laws).

“Qualified ECP Guarantor”means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred 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 under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Real Estate Asset” means any interest (fee, leasehold or otherwise) owned by any Credit Party in any real property.

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

“Refinancing Commitment” means a Refinancing Revolving Commitment or a Refinancing Term Loan Commitment.

“Refinancing Facility Agreement” means a Refinancing Facility Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Refinancing Lenders, establishing Refinancing Commitments and effecting such other amendments hereto and to the other Credit Documents as are contemplated by Section 2.25.

“Refinancing Indebtedness” means, in respect of any Indebtedness (the “Original Indebtedness”), any Indebtedness that extends, renews or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that (a) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Original Indebtedness except by an amount not greater than accrued and unpaid interest on such Original Indebtedness, any original issue discount applicable to such Refinancing Indebtedness, any unused commitments in respect of such Original Indebtedness (only if and to the extent that, had such Original Indebtedness been incurred under such commitments at the time such Refinancing Indebtedness is incurred, it would have been permitted hereunder) and any reasonable fees, premiums and expenses relating to such extension, renewal or refinancing; (b) the stated final maturity of such Refinancing Indebtedness shall not be earlier than that of such Original Indebtedness, and such stated final maturity shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the stated final maturity of such Original Indebtedness (other than as a result of an acceleration of any such stated maturity upon an event of default or a voluntary termination by the Borrower or any Restricted Subsidiary of any commitments to extend credit in respect thereof); (c) the weighted average life to maturity of such Refinancing Indebtedness shall not be shorter than the remaining weighted average life to maturity of such Original Indebtedness (and, for purposes of determining the weighted average life to maturity of such Original Indebtedness, the effects of any prepayments made prior to the date of the determination shall be disregarded); (d) such Refinancing Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of any Restricted Subsidiary that shall not have been (or, in the case of after-acquired Restricted Subsidiaries, shall not have been required to become) an obligor in respect of such Original Indebtedness; (e) if such Original Indebtedness shall have been subordinated to the Obligations, such Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Lenders, provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent (with the Administrative Agent agreeing to provide a copy thereof, together with the drafts referred to below, to the Lenders promptly upon receipt) at least five Business Days prior to the incurrence of such Refinancing Indebtedness, together with drafts of the subordination terms to be applicable thereto, stating that the Borrower has determined in good faith that such subordination terms satisfy the requirement of this clause (e) shall be conclusive evidence that such terms satisfy such requirement unless the Administrative Agent, the Requisite Tranche A/Revolving Lenders or the Requisite Lenders notify the Borrower in writing within such five Business Day period that it or they disagree with such determination (including a reasonably detailed description of the basis upon which it or they disagree); (f) if such Original Indebtedness shall be Permitted Credit Agreement Refinancing Indebtedness or Permitted Incremental Equivalent Indebtedness, then (i) such Refinancing Indebtedness satisfies the Specified Permitted Indebtedness Documentation Requirements, (ii) if such Original Indebtedness was Permitted Pari Passu Secured Indebtedness, such Refinancing Indebtedness, if secured, shall be Permitted Pari Passu Secured Indebtedness or Permitted Junior Lien Secured Indebtedness and (iii) if such Original Indebtedness was Permitted Junior Lien Secured Indebtedness, such Refinancing Indebtedness, if secured, shall be Permitted Junior Lien Secured Indebtedness; (g) if such Original Indebtedness was Permitted Second Lien Indebtedness, then such Refinancing Indebtedness shall satisfy the Specified Permitted Indebtedness Documentation Requirements and shall be Permitted Junior Lien Secured Indebtedness or Permitted Unsecured Indebtedness; and (h) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured (or, in the case of after-acquired assets, would be required to secure pursuant to the terms thereof) such Original Indebtedness or, to the extent such assets would have been required to secure such Original Indebtedness pursuant to the terms thereof, that are proceeds and products of, or after-acquired property that is affixed or incorporated into, the assets that secured such Original Indebtedness.

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“Refinancing Lenders” means the Refinancing Revolving Lenders and the Refinancing Term Lenders.

“Refinancing Loans” means the Refinancing Revolving Loans and the Refinancing Term Loans.

“Refinancing Revolving Commitments” as defined in Section 2.25(a).

“Refinancing Revolving Lender” as defined in Section 2.25(a).

“Refinancing Revolving Loans” as defined in Section 2.25(a).

“Refinancing Term Lender” as defined in Section 2.25(a).

“Refinancing Term Loans” as defined in Section 2.25(a).

“Refinancing Term Loan Commitments” as defined in Section 2.25(a).

“Refinancing Term Loan Maturity Date” means, with respect to Refinancing Term Loans of any Class, the scheduled date on which such Refinancing Term Loans shall become due and payable in full hereunder, as specified in the applicable Refinancing Facility Agreement.

“Register” as defined in Section 2.6(b).

“Regulation D” means Regulation D of the Board of Governors.

“Regulation T” means Regulation T of the Board of Governors.

“Regulation U” means Regulation U of the Board of Governors.

“Regulation X” means Regulation X of the Board of Governors.

“Reimbursement Date” as defined in Section 2.3(d).

“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

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

“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or from, under, within or upon any building, structure, facility or fixture.

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“Repricing Event” means, with respect to any Tranche A Term Loan or Tranche B Term Loan, (a) any prepayment or repayment of such Tranche A Term Loan or Tranche B Term Loan, as applicable, with the proceeds of, or made in connection with the incurrence of, any Indebtedness secured by any Lien on any asset of any Credit Party (other than any Permitted Junior Lien Secured Indebtedness) that has a Weighted Average Yield lower than the Weighted Average Yield of such Tranche A Term Loan or Tranche B Term Loan, as applicable, at the time of such prepayment or repayment and (b) any amendment or other modification of this Agreement that, directly or indirectly, reduces the Weighted Average Yield of such Tranche A Term Loan or Tranche B Term Loan, as applicable; provided the primary purpose of such prepayment, repayment, amendment or other modification was to reduce the Weighted Average Yield applicable to the Tranche A Term Loans or Tranche B Term Loans, as applicable.

“Requisite Lenders” means, at any time, Lenders having or holding Revolving Exposure, unused Revolving Commitments, Tranche A Term Loan Exposure, Tranche B Term Loan Exposure and Term Loan Exposure of any other Class representing more than 50% of the sum of the Revolving Exposure, unused Revolving Commitments, Tranche A Term Loan Exposure, Tranche B Term Loan Exposure and Term Loan Exposure of each such other Class of all the Lenders at such time. For purposes of this definition, the amount of Revolving Exposure, unused Revolving Commitment, Tranche A Term Loan Exposure, Tranche B Term Loan Exposure and Term Loan Exposure of any other Class shall be determined by excluding the Revolving Exposure, unused Revolving Commitment, Tranche A Term Loan Exposure, Tranche B Term Loan Exposure and Term Loan Exposure of each such other Class of any Defaulting Lender.

“Requisite Tranche A/Revolving Lenders” means, at any time, Lenders having or holding Revolving Exposure, unused Revolving Commitments and Tranche A Term Loan Exposure representing more than 50% of the sum of the Revolving Exposure, unused Revolving Commitments and Tranche A Term Loan Exposure of all the Lenders at such time. For purposes of this definition, the amount of Revolving Exposure, unused Revolving Commitment and Tranche A Term Loan Exposure shall be determined by excluding the Revolving Exposure, unused Revolving Commitment and Tranche A Term Loan Exposure of any Defaulting Lender.

“Restricted Junior Payment” means (a) any dividend or other distribution, direct or indirect (whether in Cash, Securities or other property), with respect to any Equity Interests in the Borrower or any Restricted Subsidiary, (b) any payment or distribution, direct or indirect (whether in Cash, Securities or other property), including any sinking fund or similar deposit, on account of any redemption, retirement, purchase, acquisition, exchange, conversion, cancelation or termination of, or any other return of capital with respect to, any Equity Interests in the Borrower or any Restricted Subsidiary, and (c) any payment or other distribution, direct or indirect (whether in Cash, Securities or other property) of or in respect of principal of or interest or premium on any Junior Indebtedness, or any payment or other distribution (whether in Cash, Securities or other property), including any sinking fund or similar deposit, on account of the redemption, retirement, purchase, acquisition, defeasance (including in-substance or legal defeasance), exchange, conversion, cancelation or termination of any Junior Indebtedness.

“Restricted Subsidiary” means any Subsidiary that is not an Unrestricted Subsidiary.

“Retained ECF Percentage” means, with respect to any Fiscal Year, (a) 100% minus (b) the Applicable ECF Percentage with respect to such Fiscal Year.

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“Returns” means (a) with respect to any Investment in the form of a loan or advance, the repayment to the investor in Cash or Cash Equivalents of principal thereof and (b) with respect to any other Investment, any return of capital received by the investor in Cash or Cash Equivalents in respect of such Investment.

“Revolving Borrowing” means a Borrowing comprised of Revolving Loans.

“Revolving Commitment” means, with respect to any Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure hereunder. The initial amount of each Lender’s Revolving Commitment, if any, is set forth on Schedule 2.1 or in the applicable Assignment Agreement or an Incremental Facility Agreement, as applicable, subject to any increase or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Revolving Commitments as of the Closing Date is $40,000,000.

“Revolving Commitment Period” means the period from the Closing Date to but excluding the Revolving Commitment Termination Date.

“Revolving Commitment Termination Date” means the earlier to occur of (a) the Revolving Maturity Date and (b) the date on which all the Revolving Commitments are terminated or permanently reduced to zero pursuant hereto.

“Revolving Exposure” means, with respect to any Lender at any time, the sum of (a) the aggregate principal amount of the Revolving Loans of such Lender outstanding at such time and (b) such Lender’s applicable Pro Rata Share of the Letter of Credit Usage at such time.

“Revolving Lender” means a Lender with a Revolving Commitment or Revolving Exposure.

“Revolving Loan” means a loan made by a Lender to the Borrower pursuant to Section 2.2(a).

“Revolving Maturity Date” means the date that is four years after the Closing Date (or, if such date is not a Business Day, the immediately preceding Business Day).

“Rollover Indebtedness” means Indebtedness of any Credit Party issued to any Lender in lieu of such Lender’s applicable Pro Rata Share of any prepayment of any Borrowing made pursuant to Section 2.12(a)(i).

“S&P” means S&P Global Ratings, or any successor to its rating agency business.

“Sale/Leaseback Transaction” means an arrangement relating to property owned by the Borrower or any Restricted Subsidiary whereby the Borrower or such Restricted Subsidiary Disposes of such property to any Person and the Borrower or any Restricted Subsidiary leases such property, or other property that it intends to use for substantially the same purpose or purposes as the property Disposed of, from such Person or its Affiliates.

“Sanctioned Country” means, at any time, a country, region or territory that is itself the subject or target of any Sanctions (at the date of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

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“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the US Department of State, the US Department of Treasury (including OFAC), the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or the Department of Foreign Affairs, Trade and Development (Canada), (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled or 50% or more owned by any such Person or Persons described in clause (a) or (b) above.

“Sanctions” as defined in Section 4.21.

“Sanctions Laws” as defined in Section 4.21.

“SEC”means the United States Securities and Exchange Commission.

“Second Lien Credit Agreement” means the Second Lien Credit and Guaranty Agreement, dated as of the date hereof, among the Borrower, the Guarantor Subsidiaries, the lenders party thereto and Wilmington Trust, as administrative agent and collateral agent thereunder.

“Second Lien Credit Documents” means the “Credit Documents” as defined in the Second Lien Credit Agreement.

“Second Lien Permitted Incremental Equivalent Indebtedness” has the meaning assigned to the term “Permitted Incremental Equivalent Indebtedness” (or any comparable successor provision) in the Second Lien Credit Agreement.

“Secured Parties” as defined in the Pledge and Security Agreement.

“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Securities Act” means the Securities Act of 1933.

“Solvency Certificate”means a Solvency Certificate executed by the chief financial officer of the Borrower substantially in the form of Exhibit L.

“Solvent” means, with respect to the Borrower and the Subsidiaries, on a consolidated basis, that as of the date of determination, (a) the sum of the debt and other liabilities (including contingent liabilities) of the Borrower and the Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present assets of the Borrower and the Subsidiaries, on a consolidated basis, (b) the capital of the Borrower and the Subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as conducted or proposed to be conducted, on a consolidated basis, (c) the Borrower and the Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that they will incur, debts and liabilities (including contingent liabilities), on a consolidated basis, beyond the ability of the Borrower and the Subsidiaries, on a consolidated basis, to pay such debts and liabilities as they become due (whether at maturity or otherwise) and (d) the Borrower and the Subsidiaries, on a consolidated basis, are “solvent” within the meaning given to that term and similar terms under any applicable Debtor Relief Laws and other applicable laws relating to preferences, fraudulent transfers and conveyances or transfers undervalue. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under GAAP).

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“Specified Acquisition” means an Acquisition identified to the Arrangers prior to the Closing Date (for the avoidance of doubt, not constituting the Acquisition of the Acquired Company), the business of which constitutes a business engaged in (or any business that is similar, complementary or related to, or a reasonable extension of, the business engaged in) by the Borrower and the Restricted Subsidiaries (excluding, for purposes of this definition, the Acquired Company and its Subsidiaries) on the Closing Date; provided that such Acquisition (a) if such Acquisition is consummated prior to the Escrow Cash Collateral Outside Date, to the extent of the Acquisition Consideration therefor (other than any portion thereof funded with Net Proceeds received (and not otherwise applied) by the Borrower after the Closing Date but on or prior to the date of consummation of such Acquisition from any issuance and sale of Equity Interests in the Borrower (other than any Disqualified Equity Interests and other than any Equity Interests issued or sold to any Subsidiary of the Borrower)), is consummated solely in reliance on Section 6.6(w) and (b) in any event, is consummated on or prior to December 31, 2018.

“Specified Acquisition Agreement” means the Agreement and Plan of Merger to be entered into by the Borrower and the other parties thereto in respect of the Specified Acquisition, together with all exhibits, disclosure schedules and other documents relating thereto.

“Specified Acquisition Agreement Representations” means such of the representations and warranties made by or with respect to the Person to be acquired pursuant to the Specified Acquisition and its Subsidiaries in the Specified Acquisition Agreement as are material to the interests of the Lenders (but only to the extent that the Borrower or any of its Affiliates has the right under the Specified Acquisition Agreement not to consummate the Specified Acquisition, or to terminate its obligations under the Specified Acquisition Agreement, as a result of a failure of such representations and warranties in the Specified Acquisition Agreement to be true and correct).

“Specified Cash Management Services Agreement” means any agreement relating to Cash Management Services that is entered into between the Borrower or any Restricted Subsidiary and a Cash Management Services Provider.

“Specified Cash Management Services Obligations” means all obligations of every nature of the Borrower and each Restricted Subsidiary (whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) arising in respect of Cash Management Services provided under any Specified Cash Management Services Agreement, including obligations for interest (including interest that would continue to accrue pursuant to such Specified Cash Management Services Agreement on any such obligation after the commencement of any proceeding under the Debtor Relief Laws with respect to the Borrower or any Restricted Subsidiary, whether or not such interest is allowed or allowable against the Borrower or such Restricted Subsidiary in any such proceeding), fees, expenses, indemnification or otherwise.

“Specified Hedge Obligations” means, with respect to each Hedge Agreement in respect of interest rates or foreign currency exchange rates that (a) is with a counterparty that is, or was on the Closing Date, an Agent, an Arranger, an Issuing Bank or any Affiliate of any of the foregoing, whether or not such counterparty shall have been an Agent, an Arranger, an Issuing Bank or any Affiliate of any of the foregoing at the time such Hedge Agreement was entered into, (b) is in effect on the Closing Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Closing Date or (c) is entered into after the Closing Date with a counterparty that is a Lender or an Affiliate of a Lender at the time such Hedge Agreement is entered into, all obligations of every nature of the Borrower or any Restricted Subsidiary under such Hedge Agreement (whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)), including obligations for interest (including interest that would continue to accrue pursuant to such Hedge Agreement on any such obligation after the commencement of any proceeding under the Debtor Relief Laws with respect to the Borrower or any Restricted Subsidiary, whether or not such interest is allowed or allowable against the Borrower or such Restricted Subsidiary in any such proceeding), payments for early termination of such Hedge Agreement, fees, expenses, indemnification or otherwise.

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“Specified Permitted Indebtedness Documentation Requirements” means, with respect to any Indebtedness, the requirements that the terms of such Indebtedness (excluding interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment or redemption terms (including “no call” terms and other restrictions thereunder) and premiums) are, when taken as a whole, either (a) not materially more favorable to the lenders or holders providing such Indebtedness than those applicable under this Agreement when taken as a whole (other than terms benefitting such lenders or holders (i) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders or (ii) applicable only to periods after the latest Maturity Date in effect at the time of incurrence of such Indebtedness) or (b) solely in the case of Permitted Pari Passu Secured Indebtedness, otherwise on current market terms for such type of Indebtedness; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent (with the Administrative Agent agreeing to provide a copy thereof, together with any drafts referred to below, to the Lenders promptly upon receipt) at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this definition shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent, the Requisite Tranche A/Revolving Lenders or the Requisite Lenders notify the Borrower in writing within such five Business Day period that it or they disagree with such determination (including a reasonably detailed description of the basis upon which it or they disagree); provided further that such Indebtedness shall not include any Previously Absent Financial Maintenance Covenant unless such Previously Absent Financial Maintenance Covenant applies only to periods after the latest Maturity Date in effect at the time of incurrence of such Indebtedness or this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of all Lenders.

“State PUC” means any Governmental Authority of any State that exercises authority over intrastate telecommunications rates or provision of telecommunications services or the ownership, construction or operation of any intrastate network facility or telecommunications systems or over Persons that own, construct or operate an intrastate network facility or telecommunications systems, in each case by reason of the nature or type of the business subject to regulation and not pursuant to laws and regulations of general applicability to Persons conducting business in such state.

“Subordinated Indebtedness” of any Person means Indebtedness of such Person that is contractually subordinated in right of payment to any other Indebtedness of such Person, including, for the avoidance of doubt, the Subordinated Notes.

“Subordinated Notes” means the Existing Subordinated Notes and the New Subordinated Note.

“Subsidiary” means, with respect to any Person (the “parent”) at any date, (a) any Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in conformity with GAAP as of such date and (b) any other Person  of which Equity Interests representing more than 50% of the equity value or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise specified, all references herein to Subsidiaries shall be deemed to refer to Subsidiaries of the Borrower.

“Supplemental Collateral Questionnaire” means a certificate in the form of Exhibit M or any other form approved by the Collateral Agent.

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“Swap Obligation” as defined in “Excluded Swap Obligation”.

“Syndication Agent” means Goldman Sachs, in its capacity as syndication agent for the credit facilities established under this Agreement.

“Tax” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term Borrowing” means a Borrowing comprised of Term Loans.

“Term Lender” means a Lender with a Term Loan Commitment or a Term Loan.

“Term Loan” means a Tranche A Term Loan, a Tranche B Term Loan, an Incremental Term Loan of any Class, an Extended/Modified Term Loan of any Class or a Refinancing Term Loan of any Class.

“Term Loan Commitment” means a Tranche A Term Loan Commitment, a Tranche B Term Loan Commitment, an Incremental Term Loan Commitment of any Class or a Refinancing Term Loan Commitment of any Class.

“Term Loan Exposure” means, with respect to any Lender, for any Class of Term Loan Commitments or Term Loans at any time, (a) prior to the making of the Term Loans of such Class, the Term Loan Commitment of such Class of such Lender at such time and (b) after the making of the Term Loans of such Class, the aggregate principal amount of the Term Loans of such Class of such Lender at such time.

“Test Period” means, for any date of determination, the most recent period of four consecutive Fiscal Quarters of the Borrower for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the first delivery of any such financial statements, the period of four consecutive Fiscal Quarters of the Borrower ended December 31, 2017).

“TLA Term Loans” means (a) the Tranche A Term Loans, (b) the Incremental Tranche A Term Loans and (c) any other Class of Term Loans that have scheduled amortization of 5.00% or more per annum, a final maturity of five years or less from the date of incurrence and are primarily syndicated to or otherwise provided by commercial banks (as reasonably determined by the Borrower in good faith).

“Total Leverage Ratio” means the ratio, as of any date, of (a) Consolidated Total Debt as of such date to (b) Consolidated Adjusted EBITDA for the period of four consecutive Fiscal Quarters of the Borrower ended on such date (or, if such date is not the last day of a Fiscal Quarter, most recently prior to such date).

“Total Net Leverage Ratio” means the ratio, as of any date, of (a) Consolidated Total Net Debt as of such date to (b) Consolidated Adjusted EBITDA for the period of four consecutive Fiscal Quarters of the Borrower ended on such date (or, if such date is not the last day of a Fiscal Quarter, most recently prior to such date).

“Total Revolving Commitments” means, at any time, the sum of the Revolving Commitments of all the Revolving Lenders in effect at such time.

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“Total Utilization of Revolving Commitments” means, at any time, the sum of (a) the aggregate principal amount of all Revolving Loans outstanding at such time and (b) the Letter of Credit Usage at such time.

“Traded Securities” means any debt or equity Securities issued pursuant to a public offering registered under the Securities Act or Rule 144A offering or other similar private placement.

“Tranche A Term Borrowing” means a Borrowing comprised of Tranche A Term Loans.

“Tranche A Term Loan” means a term loan made by a Lender to the Borrower pursuant to Section 2.1(a)(i).

“Tranche A Term Loan Commitment” means, with respect to any Lender, the commitment, if any, of such Lender to make a Tranche A Term Loan hereunder, expressed as an amount representing the maximum principal amount of the Tranche A Term Loan to be made by such Lender, subject to any increase or reduction pursuant to the terms and conditions hereof. The initial amount of each Lender’s Tranche A Term Loan Commitment, if any, is set forth on Schedule 2.1 or in the Assignment Agreement pursuant to which such Lender shall have assumed its Tranche A Term Loan Commitment. The aggregate amount of the Tranche A Term Loan Commitments as of the Closing Date is $45,000,000.

“Tranche A Term Loan Exposure” means, with respect to any Lender at any time, (a) prior to the making of Tranche A Term Loans hereunder, the Tranche A Term Loan Commitment of such Lender at such time and (b) after the making of Tranche A Term Loans hereunder, the aggregate principal amount of the Tranche A Term Loans of such Lender outstanding at such time.

“Tranche A Term Loan Maturity Date” means the date that is four years after the Closing Date (or, if such date is not a Business Day, the immediately preceding Business Day).

“Tranche B Term Borrowing” means a Borrowing comprised of Tranche B Term Loans.

“Tranche B Term Loan” means a term loan made by a Lender to the Borrower pursuant to Section 2.1(a)(ii).

“Tranche B Term Loan Commitment” means, with respect to any Lender, the commitment, if any, of such Lender to make a Tranche B Term Loan hereunder, expressed as an amount representing the maximum principal amount of the Tranche B Term Loan to be made by such Lender, subject to any increase or reduction pursuant to the terms and conditions hereof. The initial amount of each Lender’s Tranche B Term Loan Commitment, if any, is set forth on Schedule 2.1 or in the Assignment Agreement pursuant to which such Lender shall have assumed its Tranche B Term Loan Commitment. The aggregate amount of the Tranche B Term Loan Commitments as of the Closing Date is $510,000,000.

“Tranche B Term Loan Exposure” means, with respect to any Lender at any time, (a) prior to the making of Tranche B Term Loans hereunder, the Tranche B Term Loan Commitment of such Lender at such time and (b) after the making of Tranche B Term Loans hereunder, the aggregate principal amount of the Tranche B Term Loans of such Lender outstanding at such time.

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“Tranche B Term Loan Maturity Date” means the date that is five years after the Closing Date (or, if such date is not a Business Day, the immediately preceding Business Day).

“Transactions” means (a) the Financing Transactions, (b) the Closing Date Refinancing, (c) the Merger and the other transactions contemplated by the Merger Agreement, including the distribution of the Consumer/SMB Business and the consummation of the Fusion Global Arrangement or the dissolution of Fusion Global Services LLC, (d) the issuance of the New Subordinated Note, (e) the Closing Date Common Equity Issuance, (f) the issuance and sale of the Closing Date Preferred Stock and (g) the payment of fees and expenses in connection with the foregoing.

“Treasury Rate” means, as of any date of determination of the Yield Maintenance Amount, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Business Days prior to such date of determination (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date of determination to but excluding the date that is 12 months after the Closing Date; provided, however, that if the period from such date of determination to but excluding the date that is 12 months after the Closing Date is not equal to the constant maturity of the United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by using the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year.

“Type” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted Eurodollar Rate or the Base Rate.

“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.

“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

“Unrestricted Cash” means, on any date, Cash and Cash Equivalents (excluding, for the avoidance of doubt, security deposits held by the Borrower or any Restricted Subsidiary) owned on such date by the Borrower or any Restricted Subsidiary, as reflected on a balance sheet prepared as of such date in conformity with GAAP (but only to the extent the number reflected is a positive number); provided that (a) except in the case of any Cash or Cash Equivalents consisting of Vector Subordinated Note Collateral, such Cash and Cash Equivalents do not appear (and would not be required to appear) as “restricted” on a consolidated balance sheet of such Person prepared in conformity with GAAP, (b) such Cash and Cash Equivalents are free and clear of all Liens, other than (i) nonconsensual Liens permitted by Section 6.2 (including clause (a) of the definition of the term “Permitted Encumbrances”), (ii) Liens referred to in clause (i) of the definition of the term “Permitted Encumbrances”, (iii) Liens created under the Credit Documents and (iv) Liens securing any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, and (c) except in the case of contractual restrictions in respect of any Vector Subordinated Note Collateral pursuant to the Vector Subordinated Note Cash Collateral Control Agreement or this Agreement, the use of such Cash and Cash Equivalents for application to the payment of Indebtedness is not prohibited in any material respect by applicable law or any material Contractual Obligation and such Cash and Cash Equivalents are not contractually restricted in any material respect from being distributed to the Borrower; provided further that the Escrow Cash Collateral shall not constitute Unrestricted Cash.

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“Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower that is designated as an Unrestricted Subsidiary in the manner provided below and not subsequently redesignated as a “Restricted Subsidiary” in the manner provided below and (b) each Subsidiary of an Unrestricted Subsidiary.

The Borrower may designate any Subsidiary to be an “Unrestricted Subsidiary” by delivering to the Administrative Agent a certificate of the chief financial officer of the Borrower specifying such designation and certifying that such designated Subsidiary satisfies the requirements set forth in this definition; provided that no Subsidiary may be designated as an Unrestricted Subsidiary unless (a) immediately after giving Pro Forma Effect to such designation, no Default or Event of Default has occurred and is continuing or would result therefrom, (b) immediately after giving Pro Forma Effect to such designation, (i) the Total Net Leverage Ratio shall not be greater than the lesser of (A) 4.00:1.00 and (B) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a), in each case, determined as of the last day of the then most recently ended Test Period, (ii) in the case of any such designation during the Fixed Charge Coverage Ratio Covenant Period, the Fixed Charge Coverage Ratio shall not be less than the minimum Fixed Charge Coverage Ratio permitted under the financial covenant set forth in Section 6.7(c), determined for the then most recently ended Test Period, and (iii) the combined “EBITDA” of all the Unrestricted Subsidiaries (calculated in accordance with the definition of the term Consolidated Adjusted EBITDA, mutatis mutandis) for the most recent period Test Period then ended shall not exceed 5% of the Consolidated Adjusted EBITDA for such Test Period, (c) such Subsidiary does not own any Equity Interests in any of the Restricted Subsidiaries, (d) neither such Subsidiary nor any of its Subsidiaries owns or holds any License that is required for the conduct of business in the ordinary course by the Borrower and the Restricted Subsidiaries or is otherwise material to the Borrower and the Restricted Subsidiaries, (e) each Subsidiary of such Subsidiary has been designated as (and, for so long as it is a Subsidiary of the Borrower, continues as) an “Unrestricted Subsidiary” in accordance with this definition, (f) the Investments in such Unrestricted Subsidiary by the Borrower and the Restricted Subsidiaries (including, after giving effect to the next sentence, those resulting from such designation) are permitted under Section 6.6, (g) such Subsidiary shall have been or will promptly be designated an “unrestricted subsidiary” (or otherwise not be subject to the covenants) under any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Indebtedness and any Permitted Subordinated Indebtedness and (h) no Subsidiary may be designated as an Unrestricted Subsidiary if it was previously an Unrestricted Subsidiary that has been redesignated as a Restricted Subsidiary. Upon the designation of any Subsidiary as an Unrestricted Subsidiary, the Borrower and the Restricted Subsidiaries shall be deemed to have made an Investment in such Unrestricted Subsidiary in an amount equal at the time of such designation to the fair value of such Subsidiary (as determined reasonably and in good faith by the chief financial officer of the Borrower). The Borrower shall cause each Unrestricted Subsidiary to satisfy at all times the requirements set forth in clauses (c), (d) and (g) above.

The Borrower may designate any Unrestricted Subsidiary as a “Restricted Subsidiary” by delivering to the Administrative Agent a certificate of the chief financial officer of the Borrower specifying such redesignation and certifying that such redesignation satisfies the requirements set forth in this paragraph; provided that (a) immediately after giving Pro Forma Effect to such redesignation, no Default or Event of Default has occurred and is continuing or would result therefrom and (b) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence, at the time of such redesignation, of any Indebtedness, Liens and Investments of such Subsidiary existing at such time.

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“Unrestricted Subsidiary Reconciliation Statement” means, with respect to any balance sheet or statement of comprehensive income, shareholders’ equity or cash flows of the Borrower, such financial statement (in substantially the same form) prepared on the basis of consolidating the accounts of the Borrower and the Restricted Subsidiaries and treating Unrestricted Subsidiaries as if they were not consolidated with the Borrower and otherwise eliminating all accounts of Unrestricted Subsidiaries, together with an explanation of reconciliation adjustments in reasonable detail.

“US Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code and a disregarded entity (for US federal income tax purposes) owned by such Person.

“US Tax Compliance Certificate” as defined in Section 2.19(g)(ii)(B)(3).

“Vector Collateral” means any assets of any Vector Lender provided as collateral to secure obligations of the Vector Lenders under the Vector Senior Loan Facility (including any such assets in the form of Tranche B Term Loans held by any Vector Lender).

“Vector Facility Arrangements” means the Vector Senior Loan Facility and the Vector Subordinated Note.

“Vector Lender” means Vector SPV or any Affiliate thereof that holds Term Loans and is an obligor under the Vector Senior Loan Facility.

“Vector Senior Loan Facility Lender” means Goldman Sachs or any of its Affiliates.

“Vector Senior Loan Facility” means the Credit Agreement dated as of May 4, 2018, among Vector SPV, as borrower, the Vector Senior Loan Facility Lender, Goldman Sachs, as administrative agent, and U.S. Bank National Association, as collateral agent and collateral custodian, pursuant to which, and on the terms and conditions set forth therein, the Vector Senior Loan Facility Lender shall make a senior secured loan to Vector SPV, which loan shall be secured by, among other things, the Tranche B Term Loans held by Vector SPV and a cash reserve funded in part with the proceeds of the Vector Subordinated Note.

“Vector SPV” means Vector Fusion Holdings (Cayman) Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands that is a subsidiary of Vector Capital V, L.P.

“Vector Subordinated Note” means the Subordinated Note dated May 4, 2018, and in a principal amount of $25,000,000, issued by Vector SPV to the Borrower for cash consideration of $25,000,000.

“Vector Subordinated Note Cash Collateral Account” means a blocked deposit account maintained with East West Bank or another depository institution reasonably acceptable to the Majority in Interest of the Revolving Lenders (a) in which any prepayment or repayment or other amount or value received by the Borrower or any of its Subsidiaries in respect of the Vector Subordinated Note shall be deposited in accordance with Section 5.16 to be held as cash collateral securing the Obligations and (b) that is subject to a control agreement in favor of the Collateral Agent, in form and substance reasonably satisfactory to the Majority in Interest of the Revolving Lenders (the “Vector Subordinated Note Cash Collateral Control Agreement”), pursuant to which the amounts on deposit in the Vector Subordinated Note Cash Collateral Account shall be subject to the sole control and dominion of the Collateral Agent, to be released by the Collateral Agent solely in accordance with the provisions of Section 9.8(d)(ii)(D).

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“Vector Subordinated Note Cash Collateral Control Agreement” as defined in the definition of the term “Vector Subordinated Note Cash Collateral Account”.

“Vector Subordinated Note Collateral” means all right, title and interest in, to and under any and all of the following assets and properties now owned or at any time hereafter acquired by any Credit Party or in which any Credit Party now has or at any time in the future may acquire any right, title or interest: (a) the Vector Subordinated Note, all rights of the Credit Parties under the Vector Subordinated Note, including such rights in respect of all Accounts and Payment Intangibles arising from, and all other amounts or value received by any Credit Party in respect of, the foregoing, (b) the Vector Subordinated Note Cash Collateral Account and all Cash and Cash Equivalents on deposit therein, including all interest and profits thereon, and (c) all Proceeds, substitutions or replacements of the foregoing; provided that any Cash or Cash Equivalents released to the Borrower from the Vector Subordinated Note Cash Collateral Account in accordance with Section 9.8(d)(ii)(D) shall, upon such release, no longer constitute Vector Subordinated Note Collateral or Proceeds thereof.

“Weighted Average Yield” means, at any time, with respect to any Loan or other Indebtedness, the weighted average yield to stated maturity of such Loan or other Indebtedness based on the interest rate or rates applicable thereto and giving effect to all upfront or similar fees or original issue discount payable by the Borrower or any of its Affiliates to the Lenders or other applicable creditors advancing such Loan or other Indebtedness with respect thereto (but not any arrangement fees, structuring fees, commitment fees, underwriting fees or other fees not paid generally to all such Lenders or other applicable creditors, and excluding any ticking or amendment fees previously paid with respect to such Loans or other Indebtedness) (in each case, with upfront or similar fees or original issue discount being deemed to constitute like amounts of original issue discount, and such fees and original discount being equated to interest margins in a manner consistent with generally accepted financial practice based on an assumed life to maturity of the lesser of four years and the tenor of such Loan or other Indebtedness) and to any interest rate “floor”. It is agreed that, for purposes of determining the Weighted Average Yield of the Tranche B Term Loans, subject to adjustment for any fees payable by the Borrower or any of its Affiliates after the Closing Date in accordance with the foregoing provisions of this definition, the upfront or similar fees or original issue discount applicable to all the Tranche B Term Loans outstanding on the Closing Date shall be deemed to be 4.00%). For purposes of determining the Weighted Average Yield of any floating rate Indebtedness at any time, the rate of interest applicable to such Indebtedness at such time shall be assumed to be the rate applicable at all times prior to maturity; provided that appropriate adjustments shall be made for any scheduled changes in rates of interest provided for in the documents governing such Indebtedness. Determinations of the Weighted Average Yield shall be made in a manner consistent with accepted financial practice.

“wholly owned”, when used in reference to a Subsidiary of any Person, means that all the Equity Interests in such Subsidiary (other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under applicable law) are owned, beneficially and of record, by such Person, another wholly owned Subsidiary of such Person or any combination thereof.

“Wilmington Trust” as defined in the preamble hereto.

“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.

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“Yield Maintenance Amount” means, with respect to any Tranche B Term Loan that is prepaid pursuant to Section 2.12(a)(i) (for the avoidance of doubt, including on account of the requirements set forth in Section 2.25) or 2.13(c) or is subject to any amendment or other modification of this Agreement that, directly or indirectly, reduces the Weighted Average Yield of such Tranche B Term Loan (or is required to be assigned pursuant to Section 2.22 in connection with such amendment or modification), an amount equal to the present value of the sum of (a) the aggregate amount of interest that would have otherwise been payable on the principal amount of such Tranche B Term Loan so prepaid or subject to such amendment or modification (or assignment) (assuming that such Tranche B Term Loan will bear interest at a rate per annum equal to the sum of (i) the Adjusted Eurodollar Rate for an Interest Period of three months (giving effect to any floor rate) as of the date of such prepayment or amendment or modification (or assignment) plus (ii) the Applicable Rate with respect to Tranche B Term Loans that are Eurodollar Rate Loans) from the date of such prepayment or amendment or modification (or assignment) through the date that is 12 months after the Closing Date, plus (b) 1.00% of the principal amount of such Tranche B Term Loan so prepaid or subject to such amendment or modification (or assignment), discounted in accordance with accepted financial practice at a discount rate (applied on the same periodic basis as that on which interest on the Tranche B Term Loans is payable) equal to the Treasury Rate plus 50 basis points per annum. Determinations of the Yield Maintenance Amount shall be made in a manner consistent with accepted financial practice.

1.2.Accounting Terms; Pro Forma Calculations. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature used herein shall be construed in conformity with GAAP as in effect from time to time; provided that (i) if the Borrower, by notice to the Administrative Agent, shall request an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent or the Requisite Lenders, by notice to the Borrower, shall request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith and (ii) notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, (A) without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) (and related interpretations) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein, (B) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof, and (C) without giving effect to any change to GAAP occurring after the date hereof as a result of the adoption of any proposals set forth in the Proposed Accounting Standards Update, Leases (Topic 842), issued by the Financial Accounting Standards Board on May 16, 2013, or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on December 31, 2015. It is understood and agreed that when any term of an accounting or financial nature refers to a determination being made on a “consolidated basis”, when such reference is made with respect to the Borrower and the Restricted Subsidiaries (or any Restricted Subsidiary and its Restricted Subsidiaries), such determination shall exclude from such consolidation the accounts of the Unrestricted Subsidiaries.

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(b) All computations required to be made hereunder giving effect to any Acquisition, Disposition or other Pro Forma Event shall be calculated after giving Pro Forma Effect thereto (and, in the case of any computations made hereunder to determine whether such Acquisition, Disposition or other Pro Forma Event is permitted to be consummated hereunder, to any other such Pro Forma Event consummated since the first day of the period covered by any component of such Pro Forma computation and on or prior to the date of such computation) as if such Pro Forma Event occurred on the first day of the most recent Test Period. It is understood that, prior to the last day of the Test Period ending on June 30, 2018, for purposes of any provision hereof that requires compliance with Section 6.7(a) or 6.7(c) on a Pro Forma Basis, such compliance will be determined based on the ratio set forth in Section 6.7(a) or 6.7(c), as applicable, that would be first applicable under such Section.

(c)Prior to the release of the Escrow Cash Collateral in accordance with the terms of the Escrow Cash Collateral Control Agreement and Section 9.8(d)(ii), Tranche B Term Loans in an aggregate principal amount equal to the amount of Escrow Cash Collateral on deposit in the Escrow Cash Collateral Account at any time, but in no event in excess of the Escrow Cash Amount, shall be deemed not to be outstanding solely for purposes of determining actual compliance by the Borrower with Section 6.7(a) or 6.7(c).

1.3.Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Article, Section, Schedule or Exhibit shall be to an Article or a Section of, or a Schedule or an Exhibit to, this Agreement, unless otherwise specifically provided. 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”. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal, tangible and intangible assets and properties, including Cash, Securities, accounts and contract rights. The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders, writs and decrees, of all Governmental Authorities. The words “not otherwise applied”, and words of similar import, when used with reference to any amount of Net Proceeds of any issuance or sale of Equity Interests that is proposed to be applied to any particular use, payment or transaction, shall be construed to mean that such amount was not previously applied, or is not simultaneously being applied, to any other use, payment or transaction other than such particular use, payment or transaction. Except as otherwise expressly provided herein and unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document (including this Agreement and the other Credit Documents) 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 definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), and all references to any statute shall be construed as referring to all rules, regulations, rulings and official interpretations promulgated or issued thereunder, (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority or any self-regulating entity, any other Governmental Authority or entity that shall have succeeded to any or all functions thereof, and (d) 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. Terms defined in the UCC as in effect in the State of New York on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those definitions.

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1.4.Classification of Loans and Borrowings.For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a “Revolving Loan” or “Revolving Borrowing”) or by Type (e.g., a “Eurodollar Rate Loan” or “Eurodollar Rate Borrowing”) or by Class and Type (e.g., a “Eurodollar Rate Revolving Loan” or “Eurodollar Rate Revolving Borrowing”).

1.5.Conditionality Testing Date. Solely for purposes of determining compliance with any provision of this Agreement (including compliance with the First Lien Net Leverage Ratio, the Fixed Charge Coverage Ratio, the Total Leverage Ratio, the Total Net Leverage Ratio or any other financial metric, the absence of any Default or Event of Default and the accuracy of any representation or warranty) that expressly permits such compliance to be determined or tested in accordance with the provisions of this Section 1.5 in connection with a Limited Conditionality Transaction (but, for the avoidance of doubt, not for purposes of determining whether the Borrower has actually complied with Section 6.7 itself), the date of determination of whether such provision has been satisfied shall, at the option of the Borrower and upon delivery by the Borrower on or prior to the applicable LCT Test Date of a written notice to that effect to the Administrative Agent, be the date on which the definitive agreements for such Limited Conditionality Transaction are entered into (the “LCT Test Date”), with such determination to give effect on a Pro Forma Basis to such Limited Conditionality Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date. For the avoidance of doubt, if the Borrower has exercised such option and any of the ratios, financial metrics or amounts for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, financial metric or amount, including due to fluctuations in Consolidated Adjusted EBITDA, at or prior to the consummation of the Limited Conditionality Transaction, such ratio, financial metric or amount will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether such provision has been satisfied in connection with such Limited Conditionality Transaction. If the Borrower has exercised such option in connection with any Limited Conditionality Transaction, then, in connection with any subsequent calculation of ratios, financial metrics or amounts (but, for the avoidance of doubt, not for purposes of determining whether the Borrower has actually complied with Section 6.7 itself) on or following the relevant LCT Test Date and prior to the earlier of (a) the date on which such Limited Conditionality Transaction is consummated and (b) the date that the definitive agreements for such Limited Conditionality Transaction are terminated or expire without consummation of such Limited Conditionality Transaction (with the Borrower agreeing to provide the Administrative Agent with prompt notice thereof), any such ratio, financial metric or basket shall be calculated on a Pro Forma Basis assuming such Limited Conditionality Transaction and the other transactions in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) have been consummated.

1.6.Effectuation of Transactions. All references herein to the Borrower and the Subsidiaries or the Restricted Subsidiaries shall be deemed to be (unless the context otherwise requires) references to such Persons, and all the representations and warranties of the Borrower and the other Credit Parties contained in this Agreement and the other Credit Documents shall be deemed made, in each case, after giving effect to the Merger and the other Transactions to occur on the Closing Date.

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SECTION 2.LOANS AND LETTERS OF CREDIT

2.1.Term Loans. (a) Term Loan Commitments. (i) Subject to the terms and conditions hereof, each Lender agrees to make, on the Closing Date, a term loan to the Borrower in Dollars in a principal amount not to exceed such Lender’s Tranche A Term Loan Commitment. Amounts borrowed pursuant to this Section 2.1(a)(i) that are repaid or prepaid may not be reborrowed. Each Lender’s Tranche A Term Loan Commitment shall terminate immediately and without any further action upon the making of a Tranche A Term Loan, as applicable, by such Lender or, if earlier, at 5:00 p.m. (New York City time) on the Closing Date.

(ii)Subject to the terms and conditions hereof, each Lender agrees to make, on the Closing Date, a term loan to the Borrower in Dollars in a principal amount not to exceed such Lender’s Tranche B Term Loan Commitment. Amounts borrowed pursuant to this Section 2.1(a)(ii) that are repaid or prepaid may not be reborrowed. Each Lender’s Tranche B Term Loan Commitment shall terminate immediately and without any further action upon the making of a Tranche B Term Loan, as applicable, by such Lender or, if earlier, at 5:00 p.m. (New York City time) on the Closing Date.

(iii)Additional Classes of Term Loan Commitments may be established as provided in Section 2.23 or 2.25, and the Term Loans thereunder shall be made in accordance with, and subject to the terms and conditions set forth in, such Section.

(b)Borrowing Mechanics for Term Loans.

(i)Each Term Loan shall be made as part of a Borrowing consisting of Term Loans of the same Class and Type made by the Lenders of such Class proportionately to their applicable Pro Rata Shares. At the commencement of each Interest Period for any Eurodollar Rate Term Borrowing, such Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess of such amount; provided that a Eurodollar Rate Term Borrowing that results from a continuation of an outstanding Eurodollar Rate Term Borrowing may be in an aggregate amount that is equal to the amount of such outstanding Borrowing.

(ii)To request a Term Borrowing, the Borrower shall deliver to the Administrative Agent a fully completed and executed Funding Notice (A) in the case of a Eurodollar Rate Term Borrowing, not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Credit Date (which shall be a Business Day) and (B) in the case of a Base Rate Term Borrowing, not later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date (which shall be a Business Day) (or, in each case, with respect to any Borrowing of Incremental Term Loans or Refinancing Term Loans, not later than such other time as shall be specified therefor in the applicable Incremental Facility Agreement or Refinancing Facility Agreement). Promptly upon receipt by the Administrative Agent of a Funding Notice in accordance with this paragraph, the Administrative Agent shall notify each Term Lender of the applicable Class of the details thereof and of the amount of such Lender’s Term Loan to be made as part of the requested Term Borrowing. Following delivery of a Funding Notice for a Eurodollar Rate Term Borrowing, any failure to make such Borrowing shall be subject to Section 2.17(c).

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(iii)Each Lender shall make the principal amount of each Term Loan required to be made by it hereunder on any Credit Date available to the Administrative Agent not later than 1:00 p.m. (New York City time) on such Credit Date (or, with respect to any Borrowing of Incremental Term Loans or Refinancing Term Loans, not later than such other time as shall be specified therefor in the applicable Incremental Facility Agreement or Refinancing Facility Agreement) by wire transfer of same day funds in Dollars to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make each such Term Loan available to the Borrower by promptly remitting the amounts so received, in like funds, to the account specified by the Borrower in the applicable Funding Notice (it being agreed that, in the case of the Tranche B Term Loans made on the Closing Date, an amount of the proceeds thereof equal to the Escrow Cash Amount shall be remitted, in like funds, by the Administrative Agent to the Escrow Cash Collateral Account).

2.2.Revolving Loans. (a) Revolving Commitments. During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender agrees to make loans to the Borrower in Dollars in an aggregate principal amount at any one time outstanding that will not result in (i) such Lender’s Revolving Exposure exceeding its Revolving Commitment or (ii) the Total Utilization of Revolving Commitments exceeding the Total Revolving Commitments. Amounts borrowed pursuant to this Section 2.2(a) that are repaid or prepaid may, subject to the terms and conditions hereof, be reborrowed during the Revolving Commitment Period. Each Lender’s Revolving Commitment shall terminate on the Revolving Commitment Termination Date.

(b)Borrowing Mechanics for Revolving Loans.

(i)Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans of the same Type made by the Revolving Lenders proportionately to their applicable Pro Rata Shares. At the commencement of each Interest Period for any Eurodollar Rate Revolving Borrowing, such Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000in excess of such amount; provided that a Eurodollar Rate Revolving Borrowing that results from a continuation of an outstanding Eurodollar Rate Revolving Borrowing may be in an aggregate amount that is equal to the amount of such outstanding Borrowing. At the time each Base Rate Revolving Borrowing is made, such Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000in excess of such amount; provided that such Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Total Revolving Commitments or that is required to finance the reimbursement of a drawing under a Letter of Credit as contemplated by Section 2.3(d).

(ii)To request a Revolving Borrowing, the Borrower shall deliver to the Administrative Agent a fully completed and executed Funding Notice (A) in the case of a Eurodollar Rate Revolving Borrowing, not later than 2:00p.m. (New York City time) at least three Business Days in advance of the proposed Credit Date (which shall be a Business Day) and (B) in the case of a Base Rate Revolving Borrowing, not later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date (which shall be a Business Day). In lieu of delivering a Funding Notice, the Borrower may give the Administrative Agent, not later than the applicable time set forth above, telephonic notice of any proposed Revolving Borrowing; provided that such telephonic notice shall be promptly confirmed in writing by delivery to the Administrative Agent of a fully completed and executed Funding Notice. Promptly upon receipt by the Administrative Agent of a Funding Notice or a telephonic notice in accordance with this paragraph, the Administrative Agent shall notify each Revolving Lender of the details thereof and of the amount of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing. Following delivery of a Funding Notice or a telephonic notice for a Eurodollar Rate Revolving Borrowing, any failure to make such Borrowing shall be subject to Section 2.17(c).

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(iii)Each Lender shall make the principal amount of the Revolving Loan required to be made by it hereunder on any Credit Date available to the Administrative Agent not later than 1:00 p.m. (New York City time) on such Credit Date by wire transfer of same day funds in Dollars to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make each such Revolving Loan available to the Borrower by promptly remitting the amounts so received, in like funds, to the account specified by the Borrower in the applicable Funding Notice (or, in the case of a Base Rate Revolving Borrowing specified by the Borrower in the applicable Funding Notice as made to finance reimbursement of a drawing under a Letter of Credit as contemplated by Section 2.3(d), to the applicable Issuing Bank).

2.3.Letters of Credit. (a) General. During the Revolving Commitment Period, subject to the terms and conditions hereof, each Issuing Bank agrees to issue Letters of Credit for the account of the Borrower; provided that no Letter of Credit shall be, or shall be required to be, issued (or shall be amended or extended) by any Issuing Bank unless (i) such Issuing Bank (if other than the Person serving as the Administrative Agent) shall have given written notice thereof to the Administrative Agent pursuant to Section 2.3(g), (ii) after giving effect thereto (A) the Total Utilization of Revolving Commitments shall not exceed the Total Revolving Commitments, (B) the Letter of Credit Usage shall not exceed the Letter of Credit Sublimit and (C) the Letter of Credit Usage attributable to Letters of Credit issued by such Issuing Bank shall not exceed the Letter of Credit Issuing Commitment of such Issuing Bank, (iii) such Letter of Credit shall be denominated in Dollars, (iv) such Letter of Credit shall have an expiration date that is not later than the earlier of (A) five Business Days prior to the Revolving Maturity Date and (B) the date that is one year after the date of issuance of such Letter of Credit (or, in the case of an extension of any Letter of Credit, one year after the then-current expiration date at the time of such extension), provided that, in the case of any Letter of Credit, such Issuing Bank may agree that such Letter of Credit will automatically extend for one or more successive periods not to exceed one year each (but in any event to a date not later than five Business Days prior to the Revolving Maturity Date) unless such Issuing Bank elects not to extend for any such additional period and (v) such issuance (or amendment or extension) is in accordance with such Issuing Bank’s standard operating procedures. Each Letter of Credit shall be in a form acceptable to the applicable Issuing Bank in its discretion and shall be of the type approved for issuance by such Issuing Bank (it being understood that standby Letters of Credit are deemed to be approved).

(b)Request for Issuance, Amendment, Renewal or Extension. To request the issuance of a Letter of Credit (or the amendment or extension (other than an automatic extension permitted under Section 2.3(a)) of an outstanding Letter of Credit), the Borrower shall deliver to the Administrative Agent and the applicable Issuing Bank a fully completed and executed Issuance Notice not later than 11:00 a.m. (New York City time)at least two Business Days, or such shorter period as may be agreed to by such Issuing Bank in any particular instance, in advance of the proposed date of issuance, amendment or extension. If requested by the applicable Issuing Bank, the Borrower also shall submit, not later than the time set forth above, a completed and executed letter of credit application on such Issuing Bank’s standard form in connection with any such request; provided that in the event of any inconsistency or conflict between the terms and conditions of such letter of credit application and the terms and conditions of this Agreement or any other Loan Document, the terms and conditions of this Agreement or such Loan Document shall govern and control.

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(c)Responsibility of the Issuing Banks. In determining whether to honor any drawing under any Letter of Credit, the Issuing Banks shall not have any responsibility to obtain any document (other than any sight 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, it being agreed that, with respect to such documents that appear on their face to be in substantial compliance, but are not in strict compliance, with the terms of such Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents. None of the Issuing Banks, the Agents, any of their respective Related Parties or any correspondent, participant or assignee of any Issuing Bank shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Requisite Lenders or the Majority in Interest of the Revolving Lenders, as applicable, (ii) any action taken or omitted in the absence of gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction, (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or entered into in connection with any Letter of Credit, (iv) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged, (v) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason, (vi) failure of the beneficiary of any Letter of Credit to comply with any conditions required in order to draw upon such Letter of Credit, (vii) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, facsimile or otherwise, (viii) errors in interpretation of technical terms, (ix) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit, (x) the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit or (xi) any consequences arising from causes beyond the control of the applicable Issuing Bank, including any Governmental Acts. The 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 that this assumption is not intended to, and shall not, preclude the 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 the Issuing Banks, the Agents, any of their respective Related Parties or any correspondent, participant or assignee of any Issuing Bank shall be liable or responsible for any of the matters described in Section 2.3(k); provided that anything in such Section to the contrary notwithstanding, the Borrower may have a claim against an Issuing Bank, and such Issuing Bank may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to indirect, consequential, special, punitive or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such Issuing Bank’s willful misconduct or gross negligence, as determined by a final, non-appealable judgment of a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, the Issuing Banks 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 the Issuing Banks 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. The Issuing Banks may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

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(d)Reimbursement by the Borrower. In the event an Issuing Bank shall have determined to honor a drawing under any Letter of Credit, it shall promptly notify the Borrower and the Administrative Agent in writing thereof, and the Borrower shall reimburse such Issuing Bank for such drawing by paying to such Issuing Bank an amount in Dollars in same day funds equal to the amount of such drawing not later than (i) if the Borrower shall have received notice of such drawing prior to 10:00 a.m. (New York City time) on any Business Day, then 2:00 p.m. (New York City time) on such Business Day or (ii) otherwise, 2:00 p.m. (New York City time) on the Business Day next following the day that the Borrower receives such notice (the date on which the Borrower is required to reimburse a drawing under any Letter of Credit being referred to herein as the “Reimbursement Date” in respect of such drawing); provided that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.2(b) that such reimbursement payment be financed with a Base Rate Revolving Borrowing and, to the extent the applicable Issuing Bank shall have received the proceeds thereof, the Borrower’s obligation to make such reimbursement payment shall be discharged and replaced by the resulting Base Rate Revolving Borrowing.

(e)Revolving Lenders’ Participations in Letters of Credit. Immediately upon the issuance of any Letter of Credit, each Revolving Lender shall be deemed to have purchased from the applicable Issuing Bank, and agrees to fund as set forth herein, a participation in such Letter of Credit and any drawings thereunder in an amount equal to such Lender’s applicable Pro Rata Share of the maximum amount that is or at any time may become available to be drawn under such Letter of Credit. In the event the Borrower shall fail for any reason to fully reimburse the applicable Issuing Bank for any drawing under a Letter of Credit, such Issuing Bank shall promptly notify the Administrative Agent in writing thereof and of the unreimbursed amount of such drawing and, promptly upon receipt of such notice, the Administrative Agent shall notify each Revolving Lender of the details of such notice and of such Lender’s applicable Pro Rata Share of such unreimbursed amount. Each Revolving Lender shall make available an amount equal to such Lender’s applicable Pro Rata Share of such unreimbursed amount to the Administrative Agent not later than 12:00 p.m. (New York City time) on the first Business Day following the date of receipt of such notice, by wire transfer of same day funds in Dollars to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, and the Administrative Agent shall promptly remit the amounts so received, in like funds, to the applicable Issuing Bank. In the event that any Revolving Lender fails to make available, for the account of any Issuing Bank, any payment referred to in the immediately preceding sentence, such Issuing Bank shall be entitled to recover such amount on demand from such Lender, together with interest thereon for three Business Days at the rate customarily used by such Issuing Bank for the correction of errors among banks and thereafter at the Base Rate. Each Revolving Lender agrees that, in issuing, amending or extending any Letter of Credit, the applicable Issuing Bank shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made pursuant to Section 3.2, unless, at least one Business Day prior to the time such Letter of Credit is issued, amended or extended (or, in the case of any Letter of Credit subject to automatic extension provisions, at least three Business Days prior to the time by which the election not to extend must be made by the applicable Issuing Bank), the Borrower, a Majority in Interest of the Revolving Lenders or the Requisite Lenders shall have notified the applicable Issuing Bank (with a copy to the Administrative Agent and, if the notice is not sent by the Borrower, the Borrower) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 3.2 would not be satisfied if such Letter of Credit were then issued, amended or extended (it being understood and agreed that, in the event any Issuing Bank shall have received any such notice, or shall otherwise believe in good faith that such conditions would not be satisfied, it shall have no obligation to (and, in the event it shall have received any such notice, shall not) issue, amend or extend any Letter of Credit until and unless it shall be satisfied that the events and circumstances giving rise thereto shall have been cured or otherwise shall have ceased to exist). In the event an Issuing Bank shall have been reimbursed by the Revolving Lenders pursuant to this Section 2.3(e) for all or any portion of any drawing honored by such Issuing Bank under a Letter of Credit, such Issuing Bank shall distribute to each Revolving Lender that has paid all amounts payable by it under this Section 2.3(e) with respect to such drawing such Lender’s applicable Pro Rata Share of all payments subsequently received by such Issuing Bank by or on behalf of the Borrower in reimbursement of such drawing when such payments are received; provided that any such payment so distributed shall be repaid to such Issuing Bank if and to the extent such payment is required to be refunded to the Borrower for any reason. Any payment made by a Revolving Lender pursuant to this Section 2.3(e) to reimburse an Issuing Bank for a drawing under a Letter of Credit (other than the funding of a Base Rate Revolving Borrowing as contemplated by Section 2.3(d)) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such drawing.

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(f)Obligations Absolute. The obligation of the Borrower to reimburse each Issuing Bank for drawings honored under the Letters of Credit issued by such Issuing Bank and the obligations of the Revolving Lenders under Section 2.3(e) shall be absolute, unconditional and irrevocable and shall be paid and performed strictly in accordance with the terms hereof under all circumstances, notwithstanding (i) any lack of validity or enforceability of any Letter of Credit, (ii) the existence of any claim, set-off, defense or other right that the Borrower or any Lender may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), the applicable Issuing Bank or any other Person or, in the case of any Lender, against the Borrower, whether in connection herewith, with the transactions contemplated herein or with any unrelated transaction (including any underlying transaction between the Borrower or any Subsidiary and the beneficiary under any Letter of Credit), (iii) any draft or other document presented under any 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) payment by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (v) any adverse change in the business, operations, properties, condition (financial or otherwise) or prospects of the Borrower or any Subsidiary, (vi) any breach hereof or of any other Credit Document by any party thereto, (vii) any Default or Event of Default having occurred and continuing, (viii) any force majeure or other event that under any rule of law or uniform practices to which any Letter of Credit is subject (including Rule 3.14 of the ISP or any successor publication) permits a drawing to be made under such Letter of Credit after the expiration thereof or after the Revolving Maturity Date, (ix) waiver by such Issuing Bank of any requirement that exists for the protection of such Issuing Bank and not the protection of the Borrower or any waiver by any Issuing Bank which does not in fact materially prejudice the Borrower, (x) honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft, (xi) any payment made by any Issuing Bank in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable, and (xii) any other event, condition, 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, the Borrower or any Guarantor Subsidiary; provided that, subject to Section 10.3(b) and the other provisions hereof, the Borrower and each Revolving Lender shall retain any and all rights it may have against an Issuing Bank for any liability arising solely out of the gross negligence or willful misconduct of such Issuing Bank, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

(g)Issuing Bank Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section 2.3, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all honored drawings and reimbursements thereof, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment or extension, and the face amount of the Letters of Credit to be issued, amended or extended by such Issuing Bank and outstanding after giving effect to such issuance, amendment or extension (and whether the amounts thereof shall have changed), (iii) on each day on which such Issuing Bank honors any drawing under any Letter of Credit, the date and amount of the drawing so honored, (iv) on any Business Day on which the Borrower reimburses or fails to reimburse any drawing under a Letter of Credit as required hereunder, the date of such reimbursement or such failure and the amount of such reimbursed or unreimbursed drawing and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.

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(h)Cash Collateralization. If any Event of Default shall occur and be continuing, on the day that the Borrower receives a request from an Issuing Bank or notice from the Administrative Agent referred to in Section 8.1, the Borrower shall deposit in a deposit account in the name of the Administrative Agent, for the benefit of the Issuing Banks and the Lenders, an amount in Dollars equal to 103% of the Letter of Credit Usage as of such date; provided that the obligation to deposit such Cash Collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default specified in Section 8.1(f) or 8.1(g). The Borrower also shall deposit Cash Collateral in accordance with this Section 2.3(h) as and to the extent required by Section 2.13(e) or 2.21. Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such deposit account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and discretion of the Administrative Agent with the Borrower’s consent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Funds in such account shall, notwithstanding anything to the contrary in the Collateral Documents, be applied by the Administrative Agent to reimburse the Issuing Banks for honored drawings under Letters of Credit for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the Letter of Credit Usage at such time or, if the maturity of the Loans has been accelerated (but subject to (i) the consent of a Majority in Interest of the Revolving Lenders and (ii) in the case of any such application at a time when any Revolving Lender is a Defaulting Lender (but only if, after giving effect thereto, the remaining Cash Collateral shall be less than the aggregate Fronting Exposure), the consent of each Issuing Bank), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide Cash Collateral as a result of the occurrence of an Event of Default, such Cash Collateral (to the extent not applied as aforesaid) shall be returned to the Borrower promptly after all Events of Default have been cured or waived and the Administrative Agent shall have received a certificate from an Authorized Officer of the Borrower to that effect. If the Borrower is required to provide Cash Collateral pursuant to Section 2.13(e), such Cash Collateral (to the extent not applied as aforesaid) shall be returned to the Borrower to the extent that, after giving effect to such return, the Total Utilization of Revolving Commitments would not exceed the Total Revolving Commitments and no Default or Event of Default shall have occurred and be continuing. If the Borrower is required to provide Cash Collateral pursuant to Section 2.21, such Cash Collateral (to the extent not applied as aforesaid) shall be returned to the Borrower to the extent that, after giving effect to such return, no Issuing Bank shall have any Fronting Exposure and no Default or Event of Default shall have occurred and be continuing.

(i)Termination of any Issuing Bank; Designation of Additional Issuing Banks.

(i)The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing written notice thereof to such Issuing Bank, with a copy to the Administrative Agent, and terminating such Issuing Bank’s Letter of Credit Issuing Commitment. Any such termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the 10th Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Letter of Credit Usage attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to zero. Any Issuing Bank may resign at any time by giving 30 days’ prior written notice to the Administrative Agent and the Borrower. At the time any such termination or resignation shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated or resigning Issuing Bank pursuant to Section 2.10(b). Notwithstanding the effectiveness of any such termination or resignation, the terminated or resigning Issuing Bank shall continue to have all the rights of an Issuing Bank under this Agreement and the other Credit Documents with respect to Letters of Credit issued by it prior to such termination or resignation, but shall not issue any additional Letters of Credit.

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(ii)The Borrower may, at any time and from time to time, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed), designate as additional Issuing Banks one or more Revolving Lenders (or an Affiliate thereof) that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender (or such Affiliate) of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent, executed by the Borrower, the Administrative Agent and such designated Revolving Lender (or such Affiliate) and, from and after the effective date of such agreement, (i) such Revolving Lender (or such Affiliate) shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to include such Revolving Lender (or such Affiliate) in its capacity as an issuer of Letters of Credit hereunder.

(j)Letter of Credit Amounts. Unless otherwise specified herein, the amount of any Letter of Credit at any time shall be deemed to be the amount available to be drawn under such Letter of Credit as in effect at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of any letter of credit application relating thereto (or of any other document, agreement or instrument entered into by the applicable Issuing Bank and the Borrower and relating to such Letter of Credit), provides for one or more automatic increases prior to the expiration thereof (without giving effect to any automatic extension provisions therein or the reinstatement of an amount previously drawn thereunder and reimbursed) in the face amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum amount available to be drawn under such Letter of Credit after giving effect to all such increases, whether or not such maximum amount is in effect at such time.

(k)Concerning the Issuing Banks. Notwithstanding any other provision of this Agreement:

(i)No Issuing Bank shall be under any obligation to issue any Letter of Credit if:

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

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

(C)any Revolving Lender is at that time a Defaulting Lender, except in accordance with the terms of Section 2.21(c).

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

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(iii)Each Issuing Bank shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such Issuing Bank shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 9 with respect to any acts taken or omissions suffered by such Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” or “Agent” as used in Section 9 included such Issuing Bank with respect to such acts or omissions, provided that no Lender shall have any obligation to any Issuing Bank (except, in the case of any Issuing Bank that is also an Agent, in its capacity as such Agent) under Section 9.6, and (B) as additionally provided herein with respect to Issuing Banks.

(l)Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when such Letter of Credit is issued, the rules of the ISP or UCP, as applicable, shall be stated therein to apply to each Letter of Credit. Notwithstanding the foregoing, an Issuing Bank shall not be responsible to the Borrower for, and an Issuing Bank’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of such Issuing Bank required or permitted under any law, order or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the law or any order of a jurisdiction where such Issuing Bank or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade (BAFT), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

2.4.Pro Rata Shares; Obligations Several; Availability of Funds. (a) All Loans on the occasion of any Borrowing shall be made, and all participations in Letters of Credit purchased, by the Lenders in proportion to their applicable Pro Rata Shares. The failure of any Lender to make any Loan or fund any participation required hereunder shall not relieve any other Lender of its obligations hereunder; provided that the Commitments and other obligations of the Lenders hereunder are several, and no Lender shall be responsible for the failure of any other Lender to make any Loan or fund any participation required hereunder or to satisfy any of its other obligations hereunder.

(b)Unless the Administrative Agent shall have been notified by a Lender prior to the applicable Credit Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested to be made on such Credit Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Credit Date and may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made the amount of its Loan available to the Administrative Agent, then such Lender and the Borrower severally agree to pay to the 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 the Borrower to but excluding the date of such payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, (A) at any time prior to the third Business Day following the date such amount is made available to the Borrower, the customary rate set by the Administrative Agent for the correction of errors among banks and (B) thereafter, the Base Rate or (ii) in the case of a payment to be made by the Borrower, the interest rate applicable hereunder to Base Rate Loans of the applicable Class. If the Borrower and such Lender shall both pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing.

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2.5. Use of Proceeds. The Borrower will use the proceeds of the Tranche A Term Loans and the Tranche B Term Loans made on the Closing Date, together with the proceeds of the loans made under the Second Lien Credit Agreement on the Closing Date, the proceeds of the New Subordinated Note and the Closing Date Common Equity Issuance, (a) to consummate the Closing Date Refinancing, (b) to pay fees and expenses in connection with the Transactions, (c) in the case of the proceeds of the Tranche B Term Loans constituting Escrow Cash Collateral, solely to (i) consummate the Specified Acquisition, provided that if the Specified Acquisition is consummated and the proceeds of the Tranche B Term Loans constituting Escrow Cash Collateral (prior to giving effect to any release thereof) exceed an amount equal to (A) the Acquisition Consideration paid in Cash to consummate the Specified Acquisition plus (B) the customary fees and expenses paid in Cash in connection with the Specified Acquisition, by $10,000,000 or less, the Borrower shall be permitted to use such excess proceeds in accordance with Section 2.5(d) or (ii) make the mandatory prepayment of Tranche B Term Loans pursuant Section 2.13(d), and (d) to the extent any excess proceeds of the Tranche A Term Loans or the Tranche B Term Loans remain after the application of proceeds under clauses (a), (b) and (c) above, for working capital and other general corporate purposes of the Borrower and the Restricted Subsidiaries. The Borrower will use the proceeds of the Revolving Loans solely for working capital requirements and other general corporate purposes of the Borrower and the Restricted Subsidiaries, including Acquisitions permitted by this Agreement. Letters of Credit will be used by the Borrower solely for general corporate purposes of the Borrower and the Restricted Subsidiaries. The Borrower will use the proceeds of any Incremental Term Loan for the purposes specified in the applicable Incremental Facility Agreement, and the proceeds of any Refinancing Term Loan solely for the repayment or prepayment of Term Borrowings as set forth in Section 2.25(c) and the payment of any related fees, premiums and expenses.

2.6.Evidence of Debt; Register; Notes. (a) Lenders’ Evidence of Debt. Each Lender shall maintain records evidencing the Obligations of the Borrower owing to such Lender, including the principal amount of the Loans made by such Lender and each repayment and prepayment in respect thereof. Such records maintained by any Lender shall be prima facie evidence thereof, absent manifest error; provided that the failure to maintain any such records, or any error therein, shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance with the terms hereof; provided further that in the event of any inconsistency between the records maintained by any Lender and the records maintained by the Administrative Agent, the records maintained by the Administrative Agent shall govern and control.

(b)Register. The Administrative Agent shall maintain records of the name and address of, and the Commitments of and the principal amount of and stated interest on the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be prima facie evidence thereof, absent manifest error; provided that the failure to maintain the Register, or any error therein, shall not in any manner affect the obligation of any Lender to make a Loan or other payment hereunder or the obligation of the Borrower to pay any amounts due hereunder, in each case in accordance with the terms of this Agreement. The Register shall be available for inspection by the Borrower or any Lender (but, in the case of a Lender, only with respect to (i) any entry relating to such Lender’s Commitments or Loans and (ii) the identity of the other Lenders (but not information as to such other Lenders’ Commitments or Loans)) at any reasonable time and from time to time upon reasonable prior notice. The Borrower hereby designates the Person serving as the Administrative Agent to serve as the Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.6(b) and agrees that, in consideration of such Person serving in such capacity, such Person and its Related Parties shall constitute “Indemnitees”.

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(c)Notes. Upon the request of any Lender by written notice to the Borrower (with a copy to the Administrative Agent), the Borrower shall promptly prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) to evidence such Lender’s Loans of any Class, which shall be substantially in the form attached hereto as Exhibit N.

2.7.Interest on Loans and Letter of Credit Disbursements. (a) Subject to Section 2.9, each Loan of any Class shall bear interest on the outstanding principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:

(i)if a Base Rate Loan, at the Base Rate plus the Applicable Rate with respect to Loans of such Class; or

(ii)if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable Rate with respect to Loans of such Class.

The applicable Base Rate or Adjusted Eurodollar Rate shall be determined by the Administrative Agent, and such determination shall be conclusive and binding on the parties hereto, absent manifest error.

(b)The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any Eurodollar Rate Borrowing, shall be selected by the Borrower pursuant to the applicable Funding Notice or Conversion/Continuation Notice delivered in accordance herewith; provided that there shall be no more than 10 (or such greater number as may be agreed to by the Administrative Agent) Eurodollar Rate Borrowings outstanding at any time. In the event the Borrower fails to specify in any Funding Notice the Type of the requested Borrowing, then the requested Borrowing shall be made as a Base Rate Borrowing. In the event the Borrower fails to deliver in accordance with Section 2.8 a Conversion/Continuation Notice with respect to any Eurodollar Rate Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Base Rate Borrowing. In the event the Borrower requests the making of, or the conversion to or continuation of, any Eurodollar Rate Borrowing but fails to specify in the applicable Funding Notice or Conversion/Continuation Notice the Interest Period to be applicable thereto, the Borrower shall be deemed to have specified an Interest Period of one month. No Borrowing of any Class may be converted into a Borrowing of another Class.

(c)Interest payable pursuant to Section 2.7(a) shall be computed (i) in the case of Base Rate Loans, on the basis of a 360-day year (or, in the case of Base Rate Loans determined by reference to the Prime Rate, a 365-day or 366-day year, as applicable), and (ii) in the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which such interest accrues. In computing interest on any Loan, 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 Eurodollar Rate Loan, the date of conversion of such Eurodollar 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 Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one day’s interest shall accrue on such Loan.

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(d)Except as otherwise set forth herein, accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment Date applicable to such Loan, (ii) upon any voluntary or mandatory repayment or prepayment of such Loan (other than any voluntary prepayment of any Base Rate Revolving Loans), to the extent accrued on the amount being repaid or prepaid, (iii) if such Loan is a Revolving Loan, on the Revolving Commitment Termination Date, (iv) on the Maturity Date applicable to such Loan and (v) in the event of any conversion of a Eurodollar Rate Loan prior to the end of the Interest Period then applicable thereto, on the effective date of such conversion.

(e)The Borrower agrees to pay to each Issuing Bank, with respect to drawings honored under any Letter of Credit issued by such Issuing Bank, interest on the amount paid by such Issuing Bank in respect of each such drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by or on behalf of the Borrower at a rate equal to (i) for the period from the date such drawing is honored to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Base Rate Revolving Loans and (ii) thereafter, the rate determined in accordance with Section 2.9. Interest payable pursuant to this Section 2.7(e) shall be computed on the basis of a year of 365 days (or 366 days in a leap year) for the actual number of days elapsed in the period during which it accrues, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full. In the event the applicable Issuing Bank shall have been reimbursed by the Revolving Lenders for all or any portion of such drawing, such Issuing Bank shall distribute to each Revolving Lender that has paid all amounts payable by it under Section 2.3(e) with respect to such drawing such Revolving Lender’s applicable Pro Rata Share of any interest received by such Issuing Bank in respect of the portion of such drawing so reimbursed by the Revolving Lenders for the period from the date on which such Issuing Bank was so reimbursed by the Revolving Lenders to but excluding the date on which such portion of such drawing is reimbursed by the Borrower.

2.8.Conversion/Continuation. (a) Subject to Section 2.17, the Borrower shall have the option:

(i)to convert at any time all or any part of any Borrowing from one Type to the other Type; and

(ii)to continue, at the end of the Interest Period applicable to any Eurodollar Rate Borrowing, all or any part of such Borrowing as a Eurodollar Rate Borrowing and to elect an Interest Period therefor;

provided, in each case, that at the commencement of each Interest Period for any Eurodollar Rate Borrowing, such Borrowing shall be in an amount that complies with Section 2.1(b) or 2.2(b), as applicable.

In the event any Borrowing shall have been converted or continued in accordance with this Section 2.8 in part, such conversion or continuation shall be allocated ratably, in accordance with their applicable Pro Rata Shares, among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each part of such Borrowing resulting from such conversion or continuation shall be considered a separate Borrowing.

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(b)To exercise its option pursuant to this Section 2.8, the Borrower shall deliver a fully completed and executed Conversion/Continuation Notice to the Administrative Agent (i) not later than 11:00 a.m. (New York City time) one Business Day in advance of the proposed Conversion/Continuation Date, in the case of a conversion to a Base Rate Borrowing, and (ii) not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Conversion/Continuation Date, in the case of a conversion to, or a continuation of, a Eurodollar Rate Borrowing. In lieu of delivering a Conversion/Continuation Notice, the Borrower may give the Administrative Agent, not later than the applicable time set forth above, telephonic notice of any proposed conversion or continuation; provided that such telephonic notice shall be promptly confirmed in writing by delivery to the Administrative Agent of a fully completed and executed Conversion/‌Continuation Notice. Except as otherwise provided herein, a Conversion/Continuation Notice for a conversion to, or a continuation of, any Eurodollar Rate Borrowing shall be irrevocable on and after the related Interest Rate Determination Date, and the Borrower shall be bound to effect a conversion or continuation in accordance therewith; any failure to effect such conversion or continuation in accordance therewith shall be subject to Section 2.17(c).

(c)Notwithstanding anything to the contrary herein, if an Event of Default under Section 8.1(a), 8.1(f) or 8.1(g) or, at the request of the Requisite Lenders (or a Majority in Interest of Lenders of any Class), any other Event of Default shall have occurred and be continuing, then no outstanding Borrowing (of the applicable Class, in the case of such a request by a Majority in Interest of Lenders of any Class) may be converted to or continued as a Eurodollar Rate Borrowing.

2.9.Default Interest. Notwithstanding anything to the contrary herein, upon the occurrence and during the continuance of any Event of Default under Section 8.1(a), 8.1(f) or 8.1(g), any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder shall bear interest (in the case of an Event of Default under Section 8.1(a), only on overdue amounts), payable on demand, after as well as before judgment, at a rate per annum equal to (a) in the case of the principal of any Loan, 2.00% per annum in excess of the interest rate otherwise applicable hereunder to such Loan or (b) in the case of any other amount, a rate (computed on the basis of a year of 360 days for the actual number of days elapsed) that is 2.00% per annum in excess of the highest interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.9 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 the Administrative Agent, any Issuing Bank or any Lender.

2.10.Fees. (a) The Borrower agrees to pay to the Administrative Agent, for the account of each Revolving Lender, for each day:

(i)a commitment fee equal to such Lender’s applicable Pro Rata Share of (A) the excess, determined as of the close of business on such day, of (1) the Total Revolving Commitments over (2) the aggregate principal amount of all outstanding Revolving Loans and the Letter of Credit Usage, multiplied by (B) the Commitment Fee Rate on such day; and

(ii)a letter of credit fee equal to such Lender’s applicable Pro Rata Share of (A) the Letter of Credit Usage (excluding any portion thereof attributable to unreimbursed drawings under the Letters of Credit), determined as of the close of business on such day, multiplied by (B) the Applicable Rate for Eurodollar Rate Revolving Loans on such day.

        (b)The Borrower agrees to pay directly to each Issuing Bank, for its own account, the following fees:

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(i)for each day, a fronting fee equal to 0.125% multiplied by the Letter of Credit Usage attributable to Letters of Credit issued by such Issuing Bank (excluding any portion thereof attributable to unreimbursed drawings under such Letters of Credit), determined as of the close of business on any such day; and

(ii)such documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance with such Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be.

(c)All fees referred to in Sections 2.10(a) and 2.10(b)(i) shall be calculated on the basis of a year of 360 days and the actual number of days elapsed and shall be payable quarterly in arrears on the last Business Day of March, June, September and December of each year, (i) in the case of the fees referred to in Section 2.10(a)(i), during the Revolving Commitment Period and (ii) in the case of the fees referred to in Section 2.10(a)(ii) or 2.10(b)(i), during the period from and including the Closing Date to but excluding the later of the Revolving Commitment Termination Date and the date on which the Letter of Credit Usage shall have been reduced to zero; provided that all such fees shall be payable on the Revolving Commitment Termination Date and any such fees accruing after such date shall be payable on demand.

(d)The Borrower agrees to pay on the Closing Date to Goldman Sachs, as an Arranger, for the account of each Lender, closing fees in the amounts separately agreed among the Borrower and the Arrangers.

(e)The Borrower agrees to pay to the Administrative Agent, the Collateral Agent and the Arrangers, as applicable, such other fees in the amounts and at the times separately agreed upon (including pursuant to the Administrative Agent Fee Letter) in respect of the credit facilities provided herein.

(f)Fees paid hereunder shall not be refundable or creditable under any circumstances.

2.11.Scheduled Installments; Repayment on Maturity Date. (a) Subject to Section 2.11(d), the Borrower shall repay Tranche A Term Borrowings on March 31, June 30, September 30 and December 31 of each year, commencing with June 30, 2018 and ending with the last such day to occur prior to the Tranche A Term Loan Maturity Date, in an aggregate principal amount for each such date ending (i) on or prior to March 31, 2020, equal to 1.25% and (ii) on June 30, 2020 or thereafter, equal to 1.875%, in each case, of the aggregate principal amount of the Tranche A Term Borrowings made on the Closing Date. To the extent not previously paid, all Tranche A Term Loans shall be due and payable on the Tranche A Term Loan Maturity Date.

(b)Subject to Section 2.11(d), the Borrower shall repay Tranche B Term Borrowings on March 31, June 30, September 30 and December 31 of each year, commencing with June 30, 2018 and ending with the last such day to occur prior to the Tranche B Term Loan Maturity Date, in an aggregate principal amount for each such date ending (i) on or prior to March 31, 2020, equal to 1.25% and (ii) on June 30, 2020 or thereafter, equal to 1.875%, in each case, of the aggregate principal amount of the Tranche B Term Borrowings made on the Closing Date. To the extent not previously paid, all Tranche B Term Loans shall be due and payable on the Tranche B Term Loan Maturity Date.

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(c)Subject to Section 2.11(d), the Borrower shall repay Term Loans of any Class established under Section 2.23, 2.24 or 2.25 in such amounts and on such date or dates as shall be specified therefor in the applicable Incremental Facility Agreement, Extension/Modification Agreement or Refinancing Facility Agreement. To the extent not previously paid, all Term Loans of any such Class shall be due and payable on the Maturity Date applicable to the Term Loans of such Class.

(d)The Installments shall be reduced in connection with any voluntary or mandatory prepayments of, or any repurchases by the Borrower of, the Tranche A Term Loans, the Tranche B Term Loans or the Term Loans of any other Class, as the case may be, in accordance with Section 2.14.

(e)Prior to any repayment of any Term Borrowings of any Class under this Section 2.11, the Borrower shall select the Term Borrowing or Term Borrowings of the applicable Class to be repaid and shall notify the Administrative Agent of such selection at least one Business Day in advance of such repayment. Each such notice may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Each repayment of a Term Borrowing shall be allocated among the Lenders holding Loans comprising such Term Borrowing in accordance with their applicable Pro Rata Shares.

(f)The Borrower shall repay to the Administrative Agent, for the account of the Revolving Lenders, the then unpaid principal amount of each Revolving Loan on the Revolving Maturity Date.

2.12.Voluntary Prepayments/Commitment Reductions; Call Protection.

(a) Voluntary Prepayments. (i) At any time and from time to time, the Borrower may, without premium or penalty (except as applicable under Section 2.12(c) or 2.12(d)) but subject to compliance with the conditions set forth in this Section 2.12(a) and with Section 2.17(c), prepay any Borrowing in whole or in part; provided that each such partial voluntary prepayment of any Borrowing shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess of such amount.

(ii)To make a voluntary prepayment pursuant to Section 2.12(a)(i), the Borrower shall notify the Administrative Agent not later than 11:00 a.m. (New York City time) (A) at least one Business Day prior to the date of prepayment, in the case of prepayment of Base Rate Borrowings, or (B) at least three Business Days prior to the date of prepayment, in the case of prepayment of Eurodollar Rate Borrowings. Each such notice shall specify the prepayment date (which shall be a Business Day) and the principal amount of each Borrowing or portion thereof to be prepaid, and may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Each such notice shall be irrevocable, and the principal amount of each Borrowing specified therein shall become due and payable on the prepayment date specified therein; provided that a notice of prepayment of any Borrowing pursuant to Section 2.12(a)(i) may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be rescinded by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the details thereof. Each voluntary prepayment of a Borrowing shall be allocated among the Lenders holding Loans comprising such Borrowing in accordance with their applicable Pro Rata Shares.

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(iii)Notwithstanding any other provision of this Section 2.12 to the contrary, in connection with a refinancing in full of the credit facilities established hereunder, any Lender may, with the consent of the Borrower, elect, by written agreement executed by the Borrower, such Lender and the Administrative Agent, to accept Rollover Indebtedness in lieu of all or any part of such Lender’s applicable Pro Rata Share of any prepayment of any Borrowing made pursuant to Section 2.12(a)(i).

(b)Voluntary Commitment Reductions. (i) At any time and from time to time, the Borrower may, without premium or penalty but subject to compliance with the conditions set forth in this Section 2.12(b), terminate in whole or permanently reduce in part the Revolving Commitments in an amount up to the amount by which the Total Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; provided that each such partial reduction of the Revolving Commitments shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess of such amount.

(ii)To make a voluntary termination or reduction of the Revolving Commitments pursuant to Section 2.12(b)(i), the Borrower shall notify the Administrative Agent not later than 11:00 a.m. (New York City time) at least three Business Days prior to the date of effectiveness of such termination or reduction. Each such notice shall specify the termination or reduction date (which shall be a Business Day) and the amount of any partial reduction, and may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Each such notice shall be irrevocable, and the termination or reduction of the Revolving Commitments specified therein shall become effective on the date specified therein; provided that a notice of termination or reduction of the Revolving Commitments under Section 2.12(b)(i) may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be rescinded by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Revolving Lenders of the details thereof. Each voluntary reduction of the Revolving Commitments shall reduce the Revolving Commitments of the Revolving Lenders in accordance with their applicable Pro Rata Shares.

(c)Tranche A Term Loan Call Protection. In the event that on or prior to the date that is six months after the Closing Date (i) all or any portion of the Tranche A Term Borrowings are subject to a Repricing Event or (ii) a Lender is required to assign any of its Tranche A Term Loans pursuant to Section 2.22 in connection with such Repricing Event, then each Lender whose Tranche A Term Loans are subject to such Repricing Event or which is required to assign any of its Tranche A Term Loans pursuant to Section 2.22 in connection with such Repricing Event shall be paid a fee equal to 1.00% of the aggregate principal amount of such Lender’s Tranche A Term Loans subject to such Repricing Event or such assignment; provided that such fee shall not apply if such Repricing Event is in connection with (A) the occurrence of a Change of Control or (B) the consummation of an Acquisition not permitted by this Agreement.

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(d)Tranche B Term Loan Call Protection. In the event that (i) on or prior to the date that is 12 months after the Closing Date, all or any portion of the Tranche B Term Borrowings (A) are prepaid pursuant to Section 2.12(a)(i) (for the avoidance of doubt, including on account of the requirements set forth in Section 2.25) or 2.13(c) or (B) are subject to any amendment or other modification of this Agreement that, directly or indirectly, reduces the Weighted Average Yield of any Tranche B Term Loans, then each Lender whose Tranche B Term Loans are so prepaid or subject to such amendment or modification, or which is required to assign any of its Tranche B Term Loans pursuant to Section 2.22 in connection with such amendment or modification, shall be paid a fee equal to the Yield Maintenance Amount with respect to the principal amount of such Lender’s Tranche B Term Loans so prepaid or subject to such amendment or modification (or such assignment), and (ii) after the date that is 12 months after the Closing Date and on or prior to the date that is 24 months after the Closing Date (A) all or any portion of the Tranche B Term Borrowings are subject to a Repricing Event or (B) a Lender is required to assign any of its Tranche B Term Loans pursuant to Section 2.22 in connection with such Repricing Event, then each Lender whose Tranche B Term Loans are subject to such Repricing Event or which is required to assign any of its Tranche B Term Loans pursuant to Section 2.22 in connection with such Repricing Event shall be paid a fee equal to 1.00% of the aggregate principal amount of such Lender’s Tranche B Term Loans subject to such Repricing Event or such assignment; provided that the fee set forth in clause (ii) of this Section 2.12(d) shall not apply if such Repricing Event is in connection with (A) the occurrence of a Change of Control or (B) the consummation of an Acquisition not permitted by this Agreement; provided further that no fee shall be due and payable under this Section 2.12(d) if such prepayment or amendment or modification (or such assignment) or such Repricing Event occurs after the date that is 24 months after the Closing Date.

2.13.Mandatory Prepayments/Commitment Reductions. (a) Asset Sales. Not later than the fifth Business Day following the date of receipt by the Borrower or any Restricted Subsidiary of any Net Proceeds in respect of any Asset Sale, the Borrower shall prepay the Term Borrowings in an aggregate amount equal to 100% of such Net Proceeds; provided that the Borrower may, at least one Business Day prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be reinvested in non-current assets useful in the business of the Borrower and its Restricted Subsidiaries or in Permitted Acquisitions or other Acquisitions, in each case, within 365 days after the receipt of such Net Proceeds, and certifying that, as of the date thereof, no Event of Default has occurred and is continuing, in which case during such period the Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested by the end of such period (or within a period of 270 days thereafter if by the end of such initial 365-day period the Borrower or any of its Restricted Subsidiaries shall have entered into a binding agreement with a third party to so reinvest such Net Proceeds) shall be applied to prepay the Term Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Asset Sale that would otherwise be required pursuant to this Section 2.13(a) to be applied to prepay the Term Borrowings to prepay, repurchase or redeem any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Asset Sale (with the amount of the prepayment of the Term Borrowings that would otherwise have been required pursuant to this Section 2.13(a) being reduced accordingly), provided that (i) such portion shall not exceed the product of (A) the amount of such Net Proceeds multiplied by (B) a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Term Borrowings, in each case at the time of occurrence of such Asset Sale, and (ii) in the event the holders of such Permitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or redemption, the declined amount shall promptly (and in any event within 10 Business Days after the date of rejection) be applied to prepay the Term Borrowings.

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(b)Insurance/Condemnation Events. Not later than the fifth Business Day following the date of receipt by the Borrower or any Restricted Subsidiary, or by the Collateral Agent as loss payee, of any Net Proceeds in respect of any Insurance/Condemnation Event, the Borrower shall prepay the Term Borrowings in an aggregate amount equal to 100% of such Net Proceeds; provided that the Borrower may, at least one Business Day prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be reinvested in replacement assets (including through the repair, restoration or replacement of the damaged, destroyed or condemned assets) or other non-current assets useful in the business of the Borrower and its Restricted Subsidiaries or in Permitted Acquisitions or other Acquisitions, in each case, within 365 days after the receipt of such Net Proceeds, and certifying that, as of the date thereof, no Event of Default has occurred and is continuing, in which case during such period the Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested by the end of such period (or within a period of 270 days thereafter if by the end of such initial 365-day period the Borrower or any of its Restricted Subsidiaries shall have entered into a binding agreement with a third party to so reinvest such Net Proceeds) shall be applied to prepay the Term Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Insurance/Condemnation Event that would otherwise be required pursuant to this Section 2.13(b) to be applied to prepay the Term Borrowings to prepay, repurchase or redeem any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Insurance/Condemnation Event (with the amount of the prepayment of the Term Borrowings that would otherwise have been required pursuant to this Section 2.13(b) being reduced accordingly), provided that (i) such portion shall not exceed the product of (A) the amount of such Net Proceeds multiplied by (B) a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Term Borrowings, in each case at the time of occurrence of such Insurance/Condemnation Event, and (ii) in the event the holders of such Permitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or redemption, the declined amount shall promptly (and in any event within 10 Business Days after the date of rejection) be applied to prepay the Term Borrowings.

(c)Issuance of Debt. On the date of receipt by the Borrower or any Restricted Subsidiary of any Net Proceeds from the incurrence of any Indebtedness (other than any Indebtedness permitted to be incurred pursuant to Section 6.1), the Borrower shall prepay the Term Borrowings in an aggregate amount equal to 100% of such Net Proceeds.

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(d)Escrow Cash Collateral. In the event that (i) on or prior to the date that is three months after the Closing Date (the “Escrow Cash Collateral Outside Date”), the Escrow Cash Collateral has not been released to the Borrower from the Escrow Cash Collateral Account in accordance with the terms of the Escrow Cash Collateral Control Agreement and Section 9.8(d)(ii) for the purpose of the consummation of the Specified Acquisition and the other purposes permitted by Section 2.5(c)(i), (ii) the Borrower determines, in its sole discretion, that the Specified Acquisition will not be consummated on or prior to the Escrow Cash Collateral Outside Date, (iii) the definitive acquisition agreement for the Specified Acquisition, after the execution thereof, terminates at any time on or prior to the Escrow Cash Collateral Outside Date, (iv) an Event of Default pursuant to Section 8.1(a), 8.1(f) or 8.1(g) shall have occurred on or prior to the Escrow Cash Collateral Outside Date (the date of any event referred to in clauses (i) through (iv) being referred to as the “Escrow Cash Collateral Termination Date”) or (v) the Specified Acquisition is consummated and the proceeds of the Tranche B Term Loans constituting Escrow Cash Collateral (prior to giving effect to any release thereof) exceed an amount equal to (A) the Acquisition Consideration paid in Cash to consummate the Specified Acquisition plus (B) the customary fees and expenses paid in Cash in connection with the Specified Acquisition, by more than $10,000,000, the Borrower shall (x) not later than one Business Day after the Escrow Cash Collateral Termination Date, if applicable, deliver written notice to the Administrative Agent of the occurrence of the Escrow Cash Collateral Termination Date and (y) not later than the fifth Business Day after the Escrow Cash Collateral Termination Date or, in the case of clause (v) above, after the consummation of the Specified Acquisition (and solely to the extent the Escrow Cash Collateral or, in the case of clause (v) above, the applicable portion thereof has been released to the Administrative Agent, on behalf of the Borrower, from the Escrow Cash Collateral Account in accordance with the terms of the Escrow Cash Collateral Control Agreement and Section 9.8(d)(ii), it being understood that any such release to the Administrative Agent shall be deemed to be a prepayment by the Borrower in accordance with this Section 2.13(d)) prepay the Tranche B Term Borrowings in an aggregate amount equal to the Escrow Cash Amount or, in the case of clause (v) above, in an aggregate amount equal to the portion of the Escrow Cash Amount in excess of the amount of (I) the Acquisition Consideration paid in Cash to consummate the Specified Acquisition plus (II) the customary fees and expenses paid in Cash in connection with the Specified Acquisition.

(e)Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2019), the Borrower shall, not later than the earlier of (x) 95 days after the end of such Fiscal Year and (y) five Business Days after the delivery of the financial statements with respect to such Fiscal Year pursuant to Section 5.1(a), prepay the Term Borrowings of each Class in an aggregate principal amount equal to (i) the product of (A) the Applicable ECF Percentage for such Fiscal Year multiplied by (B) the Consolidated Excess Cash Flow for such Fiscal Year multiplied by (C) the percentage of the aggregate principal amount of the Term Borrowings of all Classes outstanding as of the end of such Fiscal Year represented by the Term Borrowings of such Class (but, in each case, disregarding for purposes of determining such percentage any prepayments or repurchases referred to in clause (ii) below) minus (ii) the sum of the aggregate principal amount of the Term Borrowings of such Class voluntarily prepaid by the Borrower pursuant to Section 2.12 or, to the extent of Cash spent, repurchased by the Borrower pursuant to Section 10.6(i)(i), minus (iii) the product of (A) the percentage of the aggregate principal amount of the Term Borrowings of all Classes outstanding as of the end of such Fiscal Year represented by the Term Borrowings of such Class (but, in each case, disregarding for purposes of determining such percentage any prepayments or repurchases referred to in clause (ii) above) multiplied by (B) the sum of (x) the aggregate principal amount of any optional prepayments, repurchases or redemptions of any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness plus (y) the aggregate principal amount of any optional prepayments of any Revolving Loans but solely to the extent the Revolving Commitments are permanently reduced in connection therewith (and solely to the extent of the amount of such permanent reduction and excluding any reduction in connection with a refinancing thereof), in each case under clauses (ii) and (iii) above, (I) to the extent such prepayments, repurchases or redemptions have not been financed with the proceeds of incurrences of Long-Term Indebtedness and (II) if such prepayments, repurchases or redemptions occurred (1) during such Fiscal Year (to the extent not applied to reduce any mandatory prepayment required under this Section 2.13(e) in respect of any prior Fiscal Year pursuant to clause (2) below) or (2) at the option of the Borrower, after the end of such Fiscal Year and prior to the time that the mandatory prepayment required under this Section 2.13(e) in respect of such Fiscal Year is due as provided above; provided that no prepayment shall be required under this Section 2.13(e) unless the amount thereof would equal or exceed $1,000,000.

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(f)Reductions of Revolving Exposure. In the event and on each occasion that the Total Utilization of Revolving Commitments exceeds the Total Revolving Commitments, the Borrower shall prepay Revolving Borrowings (or, if no such Loans or Borrowings are outstanding, deposit Cash Collateral in accordance with Section 2.3(h)) in an aggregate amount equal to such excess.

(g)Notice and Certificate. At least one Business Day prior to any mandatory prepayment or reduction pursuant to this Section 2.13, the Borrower (i) shall notify the Administrative Agent in writing of such prepayment or reduction and (ii) shall deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower setting forth the calculation of the amount of the applicable prepayment or reduction. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid (with such specification to be in accordance with Section 2.14(b)), or the effective date and the amount of any such reduction, as applicable, and may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the details thereof. Each mandatory prepayment of any Borrowing shall be allocated among the Lenders holding Loans comprising such Borrowing in accordance with their applicable Pro Rata Shares and shall be subject to compliance with Section 2.17(c).

(h)Foreign Restrictions and Taxes. Notwithstanding any other provisions of this Section 2.13 to the contrary, if the Borrower determines in good faith that (i) any Net Proceeds in respect of any Asset Sale by, or any Insurance/Condemnation Event affecting the assets of, a Restricted Subsidiary that is a CFC or a CFC Holding Company, or any portion of Consolidated Excess Cash Flow attributable to a Restricted Subsidiary that is a CFC or a CFC Holding Company, are prohibited, restricted or delayed by applicable foreign law (including currency controls) from being repatriated to the United States (and that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not CFCs or CFC Holding Companies (as determined by the Borrower in good faith, with such determination being permitted to disregard availability under the Revolving Commitments (it being understood that the Borrower shall not be required to make a Borrowing of Revolving Loans to make any such mandatory prepayment required under Section 2.13(a), 2.13(b) or 2.13(e))), such repatriation is reasonably required in order to provide the Borrower with the funds with which to make such prepayment as would otherwise be required hereunder), then the amount thereof so affected will not be required to be applied to prepay Term Borrowings as otherwise required under Section 2.13(a), 2.13(b) or 2.13(e), as applicable, provided that (A) the Borrower shall, and shall cause such CFC or CFC Holding Company to, use commercially reasonable efforts to take actions reasonably required by the applicable foreign law to permit such repatriation and (B) the Borrower shall prepay Term Borrowings in accordance with such applicable Section in a principal amount equal to such affected amount (or a portion thereof) at such time as (x) the repatriation of such amount (or such portion thereof) becomes permitted under applicable foreign law or (y) the Borrower determines in good faith that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not CFCs or CFC Holding Companies (taking into account the foregoing considerations), funds are available in the United States to make such prepayment (or such portion thereof), provided further that any such prepayment shall no longer be required to be made with respect to any such amounts that, after the use of such commercially reasonable efforts, have not been repatriated prior to the date that is one year after the date the original prepayment was required to be made under Section 2.13(a), 2.13(b) or 2.13(e), as applicable, or (ii) that repatriation of any Net Proceeds in respect of any Asset Sale by, or any Insurance/Condemnation Event affecting the assets of, a Restricted Subsidiary that is a CFC or a CFC Holding Company, or any portion of Consolidated Excess Cash Flow attributable to a Restricted Subsidiary that is a CFC or a CFC Holding Company, would have a material adverse tax consequence (taking into account any withholding tax, any Subpart F inclusion and any foreign tax credit or benefit actually realized in connection with such repatriation) to the Borrower and the Restricted Subsidiaries (and that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not CFCs or CFC Holding Companies (as determined by the Borrower in good faith, with such determination being permitted to disregard availability under the Revolving Commitments (it being understood that the Borrower shall not be required to make a Borrowing of Revolving Loans to make any such mandatory prepayment required under Section 2.13(a), 2.13(b) or 2.13(e))), such repatriation is reasonably required in order to provide the Borrower with the funds with which to make such prepayment as would otherwise be required hereunder), then the amount thereof so affected will not be required to be applied to prepay Term Borrowings as otherwise required under Section 2.13(a), 2.13(b) or 2.13(e), as applicable, provided that the Borrower shall prepay Term Borrowings in accordance with such applicable Section in a principal amount equal to such affected amount (or a portion thereof) at such time as (A) the repatriation of such amount (or such portion thereof) would no longer result in a material adverse tax consequence or (B) the Borrower determines in good faith that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not CFCs or CFC Holding Companies (taking into account the foregoing considerations), funds are available in the United States to make such prepayment (or such portion thereof), provided further that any such prepayment shall no longer be required to be made after the date that is one year after the date the original prepayment was required to be made under Section 2.13(a), 2.13(b) or 2.13(e), as applicable.

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(i)Notwithstanding anything in this Section 2.13 to the contrary, in the event and on each occasion that the Borrower or any other Credit Party would be required by the terms of any Permitted Second Lien Indebtedness Documents or any agreements or instruments governing or evidencing any other Permitted Junior Lien Secured Indebtedness or any Subordinated Notes to repay or prepay, or to make an offer to repay or prepay, any Permitted Second Lien Indebtedness or any such other Indebtedness as a result of the receipt of any Cash proceeds by the Borrower or any Restricted Subsidiary in connection with any sale, transfer or other Disposition of any asset or any other mandatory prepayment event or requirement (in each case, excluding any such repayment or prepayment, or any such offer to repay or prepay, not in excess of any Declined Mandatory Prepayment Retained Amount relating to such Disposition or such other mandatory prepayment event or requirement), then, prior to the time at which the Borrower or such other Credit Party would be required to make such repayment or prepayment, or to make such offer, the Borrower shall prepay Term Borrowings in an amount that would be needed to eliminate such requirement.

2.14.Application of Prepayments; Waivable Mandatory Prepayments.

(a) Application of Voluntary Prepayments and Repurchases. Any voluntary prepayment of Term Borrowings of any Class pursuant to Section 2.12(a) shall be applied to reduce the subsequent Installments to be paid pursuant to Section 2.11 with respect to Term Borrowings of such Class in the manner specified by the Borrower in the notice of prepayment relating thereto (or, if no such manner is specified in such notice, in direct order of maturity); provided that any prepayment of Term Borrowings of any Class as contemplated by Section 2.25(b) shall be applied to reduce the subsequent Installments to be paid pursuant to Section 2.11 with respect to Term Borrowings of such Class in the manner specified in Section 2.25(c). Any repurchase of Term Loans of any Class as contemplated by Section 10.6(i) shall be applied to reduce the subsequent Installments to be paid pursuant to Section 2.11 with respect to Term Borrowings of such Class in the manner specified in Section 10.6(i).

(b)Application of Mandatory Prepayments. Any mandatory prepayment of Term Borrowings pursuant to Section 2.13 shall (i) be allocated among the Classes of Term Borrowings on a pro rata basis (in accordance with the aggregate principal amount of outstanding Borrowings of each such Class), provided that (A) any prepayment of Term Borrowings pursuant to Section 2.13(d) shall be allocated solely to the Tranche B Term Borrowings, (B) any prepayment of Term Borrowings pursuant to Section 2.13(e) shall be allocated to each Class of Term Borrowings as set forth therein and (C) the amounts so allocable to Incremental Term Loans, Extended/Modified Term Loans or Refinancing Term Loans of any Class may be applied to other Term Borrowings as provided in the applicable Incremental Facility Agreement, Extension/Modification Agreement or Refinancing Facility Agreement, and (ii) be applied to reduce the subsequent Installments to be made pursuant to Section 2.11 with respect to Term Borrowings of any Class, (x) except in the case of any prepayment of Tranche B Term Borrowings pursuant to Section 2.13(d), in the case of Tranche A Term Borrowings or Tranche B Term Borrowings, in the manner specified by the Borrower in the notice of prepayment relating thereto (or, if no such manner is specified in such notice, in direct order of maturity), (y) in the case of any prepayment of Tranche B Term Borrowings pursuant to Section 2.13(d), ratably to the remaining Installments to be made pursuant to Section 2.11 with respect to the Tranche B Term Borrowings and (z) in the case of Borrowings of any other Class, as provided in the applicable Incremental Facility Agreement, Extension/Modification Agreement or Refinancing Facility Agreement.

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(c)Waivable Mandatory Prepayments. Notwithstanding anything herein to the contrary, any Term Lender may elect, by notice to the Administrative Agent (which may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing)) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to Section 2.13 (other than Section 2.13(c), 2.13(d) or 2.13(i)), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined shall be, first, applied by the Borrower on the required prepayment date to prepay or offer to redeem any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness to the extent required thereby and, second, to the extent of the remainder thereof that is not so applied to prepay or redeem such Indebtedness, shall be retained by the Borrower.

2.15.General Provisions Regarding Payments. (a) All payments by the Borrower or any other Credit Party of principal, interest, fees and other amounts required to be made hereunder or under any other Credit Document shall be made by wire transfer of same day funds in Dollars, without defense, recoupment, set-off or counterclaim, free of any restriction or condition, to the account of the Administrative Agent in the United States of America most recently designated by it for such purpose and received by the Administrative Agent not later than 2:00 p.m. (New York City time) on the date due for the account of the Persons entitled thereto; provided that payments required to be made directly to an Issuing Bank shall be so made and payments made pursuant to Sections 2.17(c), 2.18, 2.19, 10.2 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any payment received by it hereunder for the account of any other Person to the appropriate recipient promptly following receipt thereof.

(b)All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Base Rate Revolving Loans) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest then due and payable before application to principal.

(c)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 applicable Pro Rata Share of any Eurodollar Rate Borrowing, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.

(d)Subject to the proviso set forth in the definition of “Interest Period”, whenever any payment to be made hereunder with respect to any Loan 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.

(e)Any payment hereunder by or on behalf of the Borrower to the Administrative Agent that is not received by the Administrative Agent in same day funds prior to 2:00 p.m. (New York City time) on the date due shall, unless the Administrative Agent shall determine otherwise, be deemed to have been received, for purposes of computing interest and fees hereunder (including for purposes of determining the applicability of Section 2.9), on the Business Day immediately following the date of receipt (or, if later, the Business Day immediately following the date the funds received become available funds).

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(f)If an Event of Default shall have occurred and the maturity of the Loans shall have been accelerated pursuant to Section 8.1, all payments or proceeds received by the Administrative Agent or the Collateral Agent in respect of any of the Obligations, or from any sale of, collection from or other realization upon all or any part of the Collateral, shall, subject to Sections 2.3(h) and 2.21(d)(iii) and the requirements of any applicable Permitted Intercreditor Agreement, be applied in accordance with the application arrangements set forth in Section 5.02 of the Pledge and Security Agreement.

(g)Unless the Administrative Agent shall have been notified by the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in its sole discretion, but shall not be obligated to, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, as the case may be, severally agrees to pay to the 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 the Administrative Agent (i) at any time prior to the third Business Day following the date such amount is distributed to it, the customary rate set by the Administrative Agent for the correction of errors among banks and (ii) thereafter, the Base Rate.

2.16.Ratable Sharing. The Lenders hereby agree among themselves that if any Lender shall, whether 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 Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a portion of the aggregate amount of any principal, interest, fees and amounts payable in respect of participations in Letters of Credit owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) resulting in such Lender receiving payment of a greater proportion of the Aggregate Amounts Due to such Lender than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify the Administrative Agent and each other Lender in writing of the receipt of such payment and (b) apply a portion of such payment to purchase (for cash at face value) participations in the Aggregate Amounts Due to the other Lenders so that all such payments of Aggregate Amounts Due shall be shared by all the Lenders ratably in accordance with the Aggregate Amounts Due to them; provided that, if all or part of such proportionately greater payment received by any purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of any Credit Party or otherwise, such purchase shall be rescinded and the purchase price paid for such participation shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Each Credit Party expressly consents to the foregoing arrangements and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, consolidation, set-off or counterclaim with respect to any and all monies owing by such Credit Party to such holder with respect thereto as fully as if such holder were owed the amount of the participation held by such holder. The provisions of this Section 2.16 shall not be construed to apply to (i) any payment made by the 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 any payment made by the Borrower pursuant to Section 2.10(d), 2.13(d) or 2.22 or any Extension/Modification Agreement, Incremental Facility Agreement or Refinancing Facility Agreement, (ii) any acceptance by any Lender of any Rollover Indebtedness in accordance with Section 2.12(a)(iii), (iii) any payment obtained by any Lender as consideration for the assignment of or sale of a participation in Loans or other Obligations owing to it pursuant to and in accordance with the express terms of this Agreement or (iv) any payment obtained by any Revolving Lender or Issuing Bank pursuant to and in accordance with the last paragraph of Section 5.02 of the Pledge and Security Agreement.

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2.17.Making or Maintaining Eurodollar Rate Loans. (a) Inability to Determine Applicable Interest Rate.

(i)If prior to the commencement of any Interest Period for a Eurodollar Rate Borrowing of any Class:

(A)the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period; or

(B)the Administrative Agent is notified in writing by a Majority in Interest of the Lenders of such Class that the Adjusted Eurodollar Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Eurodollar Rate Borrowing for such Interest Period;

then the Administrative Agent shall give notice (which may be telephonic) thereof to the Borrower and the Lenders as promptly as practicable, whereupon, (x) no Loans of such Class may be made as, or converted to, Eurodollar Rate Loans until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, and (y) any Funding Notice or Conversion/Continuation Notice given by the Borrower with respect to the Loans in respect of which such determination was made shall be deemed rescinded by the Borrower. The Administrative Agent shall promptly notify the Borrower and the Lenders when such circumstances no longer exist.

(ii)If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (x) the circumstances set forth in Section 2.17(a)(i)(A) have arisen (including because the rate described in clause (a) of the definition of “Adjusted Eurodollar Rate” is not available or published on a current basis) and such circumstances are unlikely to be temporary or (y) the circumstances set forth in Section 2.17(a)(i)(A) have not arisen but the supervisor for the administrator of the rate described in clause (a) of the definition of “Adjusted Eurodollar Rate” or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the rate described in clause (a) of the definition of “Adjusted Eurodollar Rate” no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Adjusted Eurodollar Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans denominated in Dollars in the United States at such time, and the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate); provided that if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement. Such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Requisite Lenders stating that the Requisite Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph (but, in the case of the circumstances described in clause (y) above, only to the extent the rate described in clause (a) of the definition of “Adjusted Eurodollar Rate” for such Interest Period is not available or published at such time on a current basis), (1) no Loans of any Class may be made as, or converted to, Eurodollar Rate Loans and (2) any Funding Notice or Conversion/Continuation Notice given by the Borrower requesting the making of, or conversion to or continuation of, any Eurodollar Rate Borrowing shall be deemed rescinded by the Borrower.

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(b)Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date (i) any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, converting to or continuation of its Eurodollar Rate Loans has after the Closing Date become unlawful as a result of compliance by such Lender in good faith with any law (or would conflict with any treaty, rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) the Requisite Lenders shall have determined (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, converting to or continuation of their Eurodollar Rate Loans has become impracticable as a result of contingencies occurring after the Closing Date that materially and adversely affect the London interbank market or the position of the Lenders in that market, then, if such Lender or Lenders shall have provided notice thereof to the Administrative Agent and the Borrower, such Lender or each of such Lenders, as the case may be, shall be an “Affected Lender”. If the Administrative Agent and the Borrower receive a notice from (A) any Lender pursuant to clause (i) of the preceding sentence or (B) a notice from Lenders constituting Requisite Lenders pursuant to clause (ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, of the applicable Lender) to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by each applicable Affected Lender, (2) to the extent such determination by any Affected Lender relates to a Eurodollar Rate Loan then being requested by the Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, the applicable 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, (3) the Lenders’ (or in the case of any notice pursuant to clause (i) of the preceding sentence, the applicable Lender’s) obligations to maintain Eurodollar 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 (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent any such determination by an Affected Lender relates to a Eurodollar Rate Loan then being requested by the Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Borrower shall have the option, subject to Section 2.17(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving written notice (or telephonic notice promptly confirmed by written notice) thereof to the 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 the Administrative Agent shall promptly transmit to each other Lender). Each Affected Lender shall promptly notify the Administrative Agent and the Borrower when the circumstances that led to its notice pursuant to this Section 2.17(b) no longer exist.

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(c)Compensation for Breakage or Non-Commencement of Interest Periods. In the event that (i) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in any Funding Notice (or any telephonic request for a borrowing) given by the Borrower (other than as a result of a failure by such Lender to make such Loan in accordance with its obligations hereunder), whether or not such notice may be rescinded in accordance with the terms hereof, (ii) a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in any Conversion/Continuation Notice (or a telephonic request given for any conversion or continuation) given by the Borrower, whether or not such notice may be rescinded in accordance with the terms hereof, (iii) any payment of any principal of any Eurodollar Rate Loan occurs on a day other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (iv) the conversion of any Eurodollar Rate Loan occurs on a day other than on the last day of an Interest Period applicable thereto, (v) any Eurodollar Rate Loan is assigned other than on the last day of an Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.22 or (vi) a prepayment of any Eurodollar Rate Loan does not occur on a date specified therefor in any notice of prepayment given by the Borrower, whether or not such notice may be rescinded in accordance with the terms hereof, the Borrower shall compensate each Lender for all losses, costs, expenses and liabilities that such Lender may sustain, including any loss incurred from obtaining, liquidating or employing losses from third parties, but excluding any loss of margin or any interest rate “floor”, for the period following any such payment, assignment or conversion or any such failure to borrow, pay, prepay, convert or continue. To request compensation under this Section 2.17(c), a Lender shall deliver to the Borrower a certificate setting forth in reasonable detail the basis and calculation of any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.17(c), which certificate shall be conclusive and binding absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

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

(e)Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.17 and under Section 2.18 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (a)(i) of the definition of the term Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided that each Lender may fund each of its Eurodollar 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 2.17 and under Section 2.18.

2.18.Increased Costs; Capital Adequacy and Liquidity. (a) Increased Costs Generally. 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 such reserve requirement reflected in the Adjusted Eurodollar Rate) or any Issuing Bank;

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

(iii)impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or any Loan 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 or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), 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, from time to time upon request of such Lender, Issuing Bank or other Recipient, the 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.

(b)Capital and Liquidity Requirements. If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements, has had 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 Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such 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 or liquidity), then from time to time upon request of such Lender or Issuing Bank the 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.

(c)Certificates for Reimbursement. A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in Section 2.18(a) or 2.18(b) and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(d)Delay in Requests. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 2.18 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 2.18 for any increased costs incurred or reductions suffered more than 120 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the 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 120-day period referred to above shall be extended to include the period of retroactive effect thereof).

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(e)Certain Limitations. Notwithstanding any other provision of this Section to the contrary, no Lender or Issuing Bank shall request, or be entitled to receive, any compensation pursuant to this Section unless it shall be the general policy or practice of such Lender or Issuing Bank to seek compensation in similar circumstances under comparable provisions of other credit agreements, if any.

2.19.Taxes; Withholding, Etc. (a) Issuing Bank. For purposes of this Section 2.19, the term “Lender” includes any Issuing Bank.

(b)Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.19) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c)Payment of Other Taxes by the Credit Parties. Each Credit Party shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(d)Indemnification by the Credit Parties. The Credit Parties shall jointly and severally indemnify each Recipient, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.19) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf (including in its capacity as the Collateral Agent) or on behalf of a Lender, shall be conclusive absent manifest error.

(e)Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that no Credit Party has already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(g) 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 the Administrative Agent in connection with any Credit 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 the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set-off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 2.19(e).

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(f)Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.19, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(g)Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.19(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)Without limiting the generality of the foregoing:

(A)Any Lender that is a US Person shall deliver to the Borrower and the Administrative Agent prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from United States federal backup withholding tax.

(B)Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, US federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, US federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)executed originals of IRS Form W-8ECI;

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(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit O-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “US Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(4)to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a US Tax Compliance Certificate substantially in the form of Exhibit O-2 or Exhibit O-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a US Tax Compliance Certificate substantially in the form of Exhibit O-4 on behalf of each such direct and indirect partner.

(C)Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in US federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.

(D)If a payment made to a Lender under any Credit Document would be subject to US federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. For purposes of this Section 2.19, applicable law includes FATCA.

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(iii)Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(h)Treatment of Certain Refunds. 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 2.19 (including by the payment of additional amounts pursuant to this Section 2.19), 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 2.19 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 Section 2.19(h) (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 Section 2.19(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.19(h) 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 Section 2.19(h) 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.

(i)Survival. Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

2.20.Obligation to Mitigate. If any Lender becomes an Affected Lender or requests compensation under Section 2.18, or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 2.19, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the judgment of such Lender, such designation or assignment and delegation (a) would cause such Lender to cease to be an Affected Lender or would eliminate or reduce amounts payable pursuant to Section 2.18 or 2.19, as the case may be, in the future and (b) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment and delegation.

2.21.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:

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(i)Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.4 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent or the Collateral Agent under the Credit Documents; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, to Cash Collateralize each Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.21(d); fourth, as the Borrower may request (so long as no Default or Event of Default shall have occurred and be continuing), 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 the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize each 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 2.21(d); sixth, to the payment of any amounts owing to the Lenders, any Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its applicable Pro Rata Share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and reimbursement or participation obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or reimbursement or participation obligations with respect to Letters of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.21(a)(iii). 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 2.21(a)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(ii)Certain Fees. (A) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.10(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender); provided that such Defaulting Lender shall be entitled to receive fees pursuant to Section 2.10(a)(ii) for any period during which that Lender is a Defaulting Lender only to 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 2.21(d).

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(B)With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Borrower shall (x) 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 Letters of Credit that has been reallocated to such Non-Defaulting Lender pursuant to clause (iii) below, (y) pay to each Issuing Bank the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

(iii)Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Letters of Credit shall be reallocated among the Non-Defaulting Lenders in accordance with their respective applicable Pro Rata Shares (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 3.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from such 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.

(iv)Cash Collateral. If the reallocation described in Section 2.21(a)(iii) cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize the Issuing Banks’ Fronting Exposures in accordance with Section 2.21(d).

(v)Participation as Requisite Lender. The Commitments and Loans of such Defaulting Lender shall not be included in determining whether the Requisite Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Credit Document (including any consent to any amendment, waiver or other modification pursuant to Section 10.5); provided that any amendment, waiver or other modification that under clauses (i), (ii), (iii), (iv), (v) or (vi) of Section 10.5(b) requires the consent of all Lenders affected thereby shall require the consent of such Defaulting Lender in accordance with the terms thereof.

(b)Defaulting Lender Cure. If the Borrower, the Administrative Agent and each Issuing Bank agree in writing that a Revolving Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, 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), such Revolving Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Loans and unfunded participations in Letters of Credit of the other Revolving Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit to be held by the Revolving Lenders in accordance with their respective applicable Pro Rata Shares (without giving effect to Section 2.21(a)(iii)), whereupon such Revolving 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 the Borrower while such Revolving 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 Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from a Revolving Lender’s having been a Defaulting Lender.

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(c)New Letters of Credit. So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that the participations in any existing Letters of Credit as well as the new, extended, renewed or increased Letter of Credit has been or will be fully allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.21(a)(iii) and such Defaulting Lender shall not participate therein except to the extent such Defaulting Lender’s participation has been or will be fully Cash Collateralized in accordance with Section 2.21(d).

(d)Cash Collateral for Letters of Credit. (i) Any Cash Collateral provided by any Defaulting Lender pursuant to Section 2.21(a)(i) shall be held by the Administrative Agent as Cash Collateral securing such Defaulting Lender’s obligation to fund participations in respect of Letters of Credit, and each Defaulting Lender hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for such obligations. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over any deposit account containing any such Cash Collateral.

(ii)At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize in accordance with Section 2.3(h) each Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.21(a)(iii) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the amount of Fronting Exposure with respect to such Defaulting Lender.

(iii)Notwithstanding anything to the contrary contained in this Agreement or any other Credit Document, Cash Collateral provided under this Section 2.21 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit (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.

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2.22.Replacement of Lenders. If (a) any Lender has become an Affected Lender, (b) any Lender requests compensation under Section 2.18, (c) the Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.19, (d) any Lender becomes and continues to be a Defaulting Lender or a Disqualified Institution or (e) any Lender fails to consent to a proposed waiver, amendment or other modification of any Credit Document, or to any departure of any Credit Party therefrom, that under Section 10.5 requires the consent of all the Lenders (or all the affected Lenders or all the Lenders or all the affected Lenders of the affected Class) and with respect to which the Requisite Lenders (or, in circumstances where Section 10.5(d) does not require the consent of the Requisite Lenders, a Majority in Interest of the Lenders of the affected Class) shall have granted their consent, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.6, including the consent requirements set forth therein), all its interests, rights and obligations under this Agreement and the other Credit Documents (other than existing rights to payment under Sections 2.17(c), 2.18 and 2.19) (or, in the case of any such assignment and delegation resulting from a failure to provide a consent, all such interests, rights and obligations under this Agreement and the other Credit Documents as a Lender of an applicable Class) to an Eligible Assignee that shall assume such obligations (which may be another Lender, if a Lender accepts such assignment and delegation); provided that (i) the Borrower shall have caused to be paid to the Administrative Agent the registration and processing fee referred to in Section 10.6(d), (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and, if applicable, participations in drawings under Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (including any amounts under Section 2.17(c)) and any prepayment fee under Section 2.12(c) or 2.12(d) (if applicable, in each case only to the extent such amounts relate to its interest as a Lender of an applicable Class) from the assignee (in the case of such principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (iii) such assignment and delegation does not conflict with applicable law, (iv) in the case of any such assignment and delegation resulting from a claim for compensation under Section 2.18 or payments required to be made pursuant to Section 2.19, such assignment will result in a reduction in such compensation or payments thereafter and (v) in the case of any such assignment and delegation resulting from the failure to provide a consent, the assignee shall have given such consent. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver or consent by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. Each party hereto agrees that an assignment and delegation required pursuant to this Section 2.22 may be effected pursuant to an Assignment Agreement executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto.

2.23.Incremental Facilities. (a) The Borrower may on one or more occasions, by written notice to the Administrative Agent, request (i) during the Revolving Commitment Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Loan Commitments, provided that the aggregate amount of all the Incremental Commitments established hereunder on any date shall not exceed the Incremental Amount as of such date. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank) (such approvals not to be unreasonably withheld, conditioned or delayed).

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(b)The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as the case may be. The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans to be made thereunder shall be as set forth in the applicable Incremental Facility Agreement; provided that (i) (A) no Incremental Term Loan Maturity Date in respect of any Incremental Tranche A Term Loans shall be earlier than the latest Maturity Date in respect of any other TLA Term Loans in effect on the date of incurrence of such Incremental Tranche A Term Loans and (B) no Incremental Term Loan Maturity Date in respect of any Incremental Term Loans (other than Incremental Tranche A Term Loans) shall be earlier than the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans, (ii) (A) the weighted average life to maturity of any Incremental Tranche A Term Loans shall be no shorter than the longest remaining weighted average life to maturity of any other Class of TLA Term Loans outstanding on the date of incurrence of such Incremental Tranche A Term Loans (and, for purposes of determining the weighted average life to maturity of any such other Class of Term Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded) and (B) the weighted average life to maturity of any Incremental Term Loans (other than Incremental Tranche A Term Loans) shall be no shorter than the longest remaining weighted average life to maturity of any other Class of Term Loans outstanding on the date of incurrence of such Incremental Term Loans (and, for purposes of determining the weighted average life to maturity of any such other Class of Term Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders, (iii) the Weighted Average Yield, determined as of the date of incurrence of such Incremental Term Loans, shall not be greater than (A) in the case of any Incremental Tranche A Term Loans, the Weighted Average Yield with respect to the Tranche A Term Loans and (B) in the case of any Incremental Term Loans (other than Incremental Tranche A Term Loans), the Weighted Average Yield with respect to the Tranche B Term Loans, in each case determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche A Term Loans or Tranche B Term Loans, as applicable, that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche A Term Loans or Tranche B Term Loans, as applicable, is increased, or fees to Lenders then holding the Tranche A Term Loans or Tranche B Term Loans, as applicable, are paid, so as to cause (x) the Weighted Average Yield with respect to the Tranche A Term Loans to equal the Weighted Average Yield with respect to such Incremental Tranche A Term Loans minus 0.50% or (y) the Weighted Average Yield with respect to the Tranche B Term Loans to equal the Weighted Average Yield with respect to such Incremental Term Loans (other than Incremental Tranche A Term Loans) minus 0.50%, as applicable, provided that any increase in the effective Weighted Average Yield with respect to the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, due to the application of an Adjusted Eurodollar Rate or Base Rate floor to any Incremental Term Loans shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, and only to the extent an increase in such floor with respect to the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, would cause an increase in the interest rate then in effect with respect thereto, (iv) Incremental Term Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than pro rata) with the other Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the other Term Loans, (v) any Incremental Commitments and any Loans thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Commitments and Loans, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties and (vi) except for the terms referred to above and subject to Section 2.23(c), to the extent the terms of any Incremental Term Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with (A) in the case of any Incremental Tranche A Term Loans, those of the Tranche A Term Loans and (B) in the case of any Incremental Term Loans (other than Incremental Tranche A Term Loans), those of the Tranche B Term Loans, in each case, as in effect on the date of incurrence of such Incremental Term Loans, such differences shall be reasonably acceptable to the Administrative Agent (except for terms benefitting the Incremental Term Lenders (x) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders (or, in the case of any Incremental Tranche A Term Loans, all Lenders holding TLA Term Loans or Revolving Commitments) or (y) applicable only to periods after the latest Maturity Date in effect as of the date of incurrence of such Incremental Term Loans). In the event any Incremental Term Loans have the same terms as any existing Class of Term Loans then outstanding or any Extended/Modified Term Loans or Refinancing Term Loans then substantially concurrently established (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Incremental Term Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Term Loans or such Extended/Modified Term Loans or Refinancing Term Loans, and the scheduled Installments set forth in Section 2.11 with respect to any such Class of Term Loans may be increased to reflect scheduled amortization of such Incremental Term Loans.

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(c)The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving Pro Forma Effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom and the representations and warranties of each Credit Party set forth in the Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date; provided that, in the case of Incremental Term Loan Commitments established to finance, in whole or in part, a Limited Conditionality Transaction, the conditions set forth in this clause (i) may be tested in accordance with Section 1.5 to the extent agreed by the Borrower and the Incremental Lenders providing such Incremental Term Loan Commitments, all as set forth in the applicable Incremental Facility Agreement, (ii) the Administrative Agent shall have received a certificate, dated the date of effectiveness thereof and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions set forth in clause (i) above and, if such Incremental Term Loan Commitments or any portion thereof are being established in reliance on clause (b) of the definition of the term “Incremental Amount”, setting forth a reasonably detailed calculation of the Incremental Amount under such clause, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.17(c) in connection with such Incremental Commitments and the related transactions under this Section 2.23 and (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.23, including any amendments necessary to treat the applicable Incremental Term Loan Commitments and Incremental Term Loans as a new Class of Commitments and Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share”, “Requisite Lenders” and, as applicable, “Requisite Tranche A/Revolving Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.24 or refinanced under Section 2.25).

(d)Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) in the case of an Incremental Term Loan Commitment, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Pro Rata Shares of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.

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(e)On the date of effectiveness of any Incremental Revolving Commitments:

(i)the aggregate principal amount of the Revolving Loans (the “Existing Revolving Borrowings”) outstanding immediately prior to the effectiveness of such Incremental Revolving Commitments shall be deemed to be repaid,

(ii)each Incremental Revolving Lender shall pay to the Administrative Agent in same day funds an amount equal to the difference, if positive, between:

(A)the product of (1) such Lender’s Pro Rata Share of the applicable Class (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and

(B)the product of (x) such Lender’s Pro Rata Share of the applicable Class (calculated without giving effect to such effectiveness) multiplied by (y) the aggregate principal amount of the Existing Revolving Borrowings,

(iii)after the Administrative Agent receives the funds specified in clause (ii) above, the Administrative Agent shall pay to each Revolving Lender the portion of such funds that is equal to the difference, if positive, between:

(A)the product of (1) such Lender’s Pro Rata Share of the applicable Class (calculated without giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and

(B)the product of (1) such Lender’s Pro Rata Share of the applicable Class (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings,

(iv)after the effectiveness of such Incremental Revolving Commitments, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Funding Notice delivered to the Administrative Agent in accordance with Section 2.2 (and the Borrower shall deliver such Funding Notice),

(v)each Revolving Lender shall be deemed to hold its applicable Pro Rata Share of each Resulting Revolving Borrowing (calculated after giving effect to such effectiveness), and

(vi)the Borrower shall pay each Revolving Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings.

The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.17(c) if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto.

(f)Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Incremental Term Lender holding an Incremental Term Loan Commitment of any Class shall make a loan to the Borrower in an amount equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.

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(g)The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Pro Rata Shares of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.23(e).

2.24.Extension/Modification Offers. (a) The Borrower may on one or more occasions, by written notice to the Administrative Agent, make one or more offers (each, an “Extension/Modification Offer”) to all the Lenders of any Class (each Class subject to such an Extension/Modification Offer being referred to as an “Extension/Modification Request Class”), on the same terms and conditions, and on a pro rata basis, to each Lender within any Extension/Modification Request Class, to make one or more Extension/Modification Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions of the requested Extension/Modification Permitted Amendment and (ii) the date on which such Extension/Modification Permitted Amendment is requested to become effective (which shall not be less than five Business Days or more than 60 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Extension/Modification Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Extension/Modification Request Class that accept the applicable Extension/Modification Offer (such Lenders, the “Extending/Modifying Lenders”) and, in the case of any Extending/Modifying Lender, only with respect to such Lender’s Loans and Commitments of such Extension/Modification Request Class as to which such Lender’s acceptance has been made. Any Extended/Modified Loans or Extended/Modified Commitments shall constitute a separate Class of Loans or Commitments from the Extension/Modification Request Class from which they were converted and, in the event any Extended/Modified Term Loans have the same terms as any existing Class of Term Loans then outstanding or any Incremental Term Loans or Refinancing Term Loans then substantially concurrently established (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Extended/Modified Term Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Term Loans or such Incremental Term Loans or Refinancing Term Loans, and the scheduled Installments set forth in Section 2.11 with respect to any such Class of Term Loans may be increased to reflect scheduled amortization of such Extended/Modified Term Loans. The Extension/Modification Offer shall not be required to be in any minimum amount or any minimum increment, provided that the Borrower may, at its option and subject to its right to waive any such condition in its sole discretion, specify as a condition to the effectiveness of any Extension/Modification Permitted Amendment that a minimum amount, as specified in the Extension/Modification Offer, of Loans and Commitments of the Extension/Modification Request Class consent thereto. The Borrower may amend, revoke or replace any Extension/Modification Offer at any time prior to the effectiveness of the applicable Extension/Modification Agreement. In connection with any Extension/Modification Offer, the Borrower shall agree to such procedures, if any, as may be reasonably established by, or acceptable to, the Administrative Agent to accomplish the purposes of this Section 2.24.

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(b)An Extension/Modification Permitted Amendment shall be effected pursuant to an Extension/Modification Agreement executed and delivered by the Borrower, each applicable Extending/Modifying Lender and the Administrative Agent; provided that no Extension/Modification Permitted Amendment shall become effective unless the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension/Modification Agreement. Each Extension/Modification Agreement may, without the consent of any Lender other than the applicable Extending/Modifying Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.24, including (i) a reduction to the scheduled Installments set forth in Section 2.11 with respect to Loans of the Extension/Modification Request Class to reflect the treatment of the Extended/Modified Loans as a new Class of Loans (it being understood that the amount of any scheduled amortization payable to any non-Extending/Modifying Lender with respect to its Loans of the Extension/Modification Request Class shall not be reduced as a result thereof) and (ii) any amendments necessary to treat the applicable Loans and/or Commitments of the Extending/Modifying Lenders as a new “Class” of loans and/or commitments hereunder (including for purposes of prepayments and voting) (it being agreed that such new Class of Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share”, “Requisite Lenders” and, as applicable, “Requisite Tranche A/Revolving Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5); provided that, in the case of any Extension/Modification Offer relating to Revolving Commitments or Revolving Loans, (A) the borrowing and repayment (except for repayments required upon the maturity, repayments made in connection with any Refinancing Facility Agreement and repayments made in connection with a permanent repayment and termination of the applicable Commitments) of Loans under the Commitments of such new Class and the remaining Revolving Commitments shall be made on a ratable basis as between the Commitments of such new Class and the remaining Revolving Commitments, (B) the allocation of the participation exposure with respect to any then-existing or subsequently issued Letter of Credit as between the Commitments of such new Class and the remaining Revolving Commitments shall be made on a ratable basis as between the Commitments of such new Class and the remaining Revolving Commitments (and the applicable Extension/Modification Agreement shall contain reallocation and cash collateralization provisions, in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, with respect to Letters of Credit outstanding on the Revolving Maturity Date) and (C) the Revolving Commitment Period and the Revolving Maturity Date, as such terms are used in reference to Letters of Credit of any Issuing Bank, may not be extended without the prior written consent of such Issuing Bank.

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2.25.Refinancing Facilities. (a) The Borrower may, on one or more occasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) one or more additional Classes of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and, if applicable under such Class, acquire participations in the Letters of Credit and all the then existing Revolving Commitments will be refinanced in full or (ii) one or more additional Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower (the “Refinancing Term Loans”). Each such notice shall specify (A) the date on which the Borrower proposes that the Refinancing Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (B) the amount of the Refinancing Commitments requested to be established and (C) the identity of each Person proposed to become a Refinancing Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Refinancing Commitment may elect or decline, in its sole discretion, to provide such Refinancing Commitment and (y) any Person that the Borrower proposes to be a Refinancing Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent and, in the case of any proposed Refinancing Revolving Lender if such Lender is to acquire participations in the Letters of Credit, each Issuing Bank (such approvals not to be unreasonably withheld, conditioned or delayed)).

(b)The terms and conditions of any Refinancing Commitments and the Refinancing Loans to be made thereunder shall be as determined by the Borrower and the applicable Refinancing Lenders and set forth in the applicable Refinancing Facility Agreement; provided that an Issuing Bank shall not be required to issue, amend or extend any Letter of Credit under any Refinancing Revolving Commitments unless such Issuing Bank shall have consented to act in such capacity under such Refinancing Revolving Commitments; provided further that (i) the stated termination date applicable to the Refinancing Commitments and the Refinancing Term Loan Maturity Date of any Class shall not be earlier than the Maturity Date of the Class of Commitments or Loans being refinanced, (ii) in the case of any Refinancing Term Loans, the weighted average life to maturity of such Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans being refinanced (and, for purposes of determining the weighted average life to maturity of such Class of Term Loans being refinanced, the effects of any prepayments made prior to the date of the determination shall be disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Refinancing Term Loans shall be determined by the Borrower and the applicable Refinancing Lenders, (iii) in the case of any partial refinancing of the Tranche B Term Loans, the Weighted Average Yield with respect to such Refinancing Term Loans, determined as of the date of incurrence of such Refinancing Term Loans, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans to remain outstanding after such refinancing is increased, or fees to Lenders then holding the Tranche B Term Loans to remain outstanding after such refinancing are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to remain outstanding after such refinancing to equal the Weighted Average Yield with respect to such Refinancing Term Loans minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (iv) any Refinancing Term Loans may participate in any mandatory prepayments hereunder on a pro rata basis (or on a basis that is less than pro rata) with the other Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the other Term Loans, (v) any Refinancing Commitments and Refinancing Loans made thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Loans and Commitments hereunder, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties, and (vi) except for the terms referred to above, to the extent the terms of any Refinancing Commitments or Refinancing Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with those of the Class of Loans being refinanced, such differences shall be reasonably acceptable to the Administrative Agent (except for terms benefitting the Refinancing Lenders (A) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders (or, in the case of any Refinancing Term Loans that are TLA Term Loans, all Lenders holding TLA Term Loans or Revolving Commitments) or (B) applicable only to periods after the latest Maturity Date in effect as of the date of establishment or incurrence of such Refinancing Commitments or Refinancing Loans); provided further that clauses (i), (ii) and (vi) shall not apply if, at the time of the incurrence of such Refinancing Loans and after giving effect to the application of the proceeds thereof, such Refinancing Loans shall be the sole Class of Loans outstanding under this Agreement. In the event any Refinancing Term Loans have the same terms as any existing Class of Term Loans then outstanding or any Incremental Term Loans or Extended/Modified Term Loans then substantially concurrently established (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Refinancing Term Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Term Loans or such Incremental Term Loans or Extended/Modified Term Loans, and the scheduled Installments set forth in Section 2.11 with respect to any such Class of Term Loans may be increased to reflect scheduled amortization of such Refinancing Term Loans.

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(c)The Refinancing Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Lender providing such Refinancing Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments, as applicable, each Issuing Bank; provided that no Refinancing Commitments shall become effective unless (i) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection therewith, (ii) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated and the Borrower shall make any prepayment or deposit required to be made under Section 2.13(f) as a result thereof and shall pay all interest on the amounts prepaid and all fees accrued on the Revolving Commitments (it being understood, however, that any Letters of Credit may continue to be outstanding under the Refinancing Revolving Commitments, in each case on terms agreed by each applicable Issuing Bank and specified in the applicable Refinancing Facility Agreement) and (iii) in the case of any Refinancing Term Loan Commitments, (A) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Borrowings of any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Borrowings, any original issue discount or upfront fees applicable to such Refinancing Term Loans and any reasonable fees, premium and expenses relating to such refinancing) and (B) any such prepayment of Term Borrowings of any Class shall be applied to reduce the subsequent Installments to be made pursuant to Section 2.11 with respect to Term Borrowings of such Class on a pro rata basis (in accordance with the principal amounts of such Installments) and, in the case of a prepayment of Eurodollar Rate Term Borrowings, shall be subject to Section 2.17(c). Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.25, including any amendments necessary to treat the applicable Refinancing Commitments and Refinancing Loans as a new Class of Commitments or Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share”, “Requisite Lenders” and, as applicable, “Requisite Tranche A/Revolving Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.24 or refinanced under this Section 2.25).

(d)Upon the effectiveness of a Refinancing Commitment of any Refinancing Lender, such Refinancing Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents.

(e)The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.25(a) and of the effectiveness of any Refinancing Commitments, in each case advising the Lenders of the details thereof.

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SECTION 3.CONDITIONS PRECEDENT

3.1.Closing Date. This Agreement and the obligation of each Lender and each Issuing Bank to make any Credit Extension shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 10.5):

(a)Credit Agreement. The Administrative Agent shall have received from the Borrower and each Designated Subsidiary (including the Acquired Company and each of its Subsidiaries that is a Designated Subsidiary) and each other party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile or electronic image scan transmission) that such party has signed a counterpart of this Agreement.

(b)Organizational Documents; Incumbency. The Administrative Agent shall have received, in respect of the Borrower and each Designated Subsidiary (including the Acquired Company and each of its Subsidiaries that is a Designated Subsidiary), a certificate of such Person (or, in the case of a partnership, its general partner), dated the Closing Date and executed by the secretary or an assistant secretary or manager of such Person, attaching (i) a copy of each Organizational Document of such Person, which shall be certified as of the Closing Date or a recent date prior thereto by the appropriate Governmental Authority, (ii) signature and incumbency certificates of the officers/manager or general partner of such Person executing each Credit Document, (iii) resolutions of the Board of Managers, Board of Directors or similar governing body of such Person approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, certified as of the Closing Date by such secretary or assistant secretary or manager as being in full force and effect without modification or amendment, and (iv) a good standing certificate from the applicable Governmental Authority of such Person’s jurisdiction of organization, dated the Closing Date or a recent date prior thereto.

(c)Closing Date Refinancing. The Closing Date Refinancing shall have been consummated or shall be consummated substantially simultaneously with the initial funding of Loans on the Closing Date, and the Administrative Agent shall have received customary payoff letters with respect thereto or other evidence thereof reasonably satisfactory to the Administrative Agent and the Arrangers.

(d)Collateral and Guarantee Requirement. Subject to the final paragraph of this Section 3.1, the Collateral and Guarantee Requirement shall have been satisfied. The Collateral Agent shall have received a completed Collateral Questionnaire in form and substance reasonably satisfactory to the Collateral Agent and the Arrangers, dated the Closing Date and executed by an Authorized Officer of each of the Borrower and the Acquired Company, together with all attachments contemplated thereby, including the results of a search of the UCC (or equivalent) filings made with respect to the Credit Parties in the jurisdictions contemplated by the Collateral Questionnaire and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Collateral Agent and the Arrangers that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or substantially contemporaneously with the initial funding of Loans on the Closing Date will be, released.

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(e)Evidence of Insurance. Subject to the final paragraph of this Section 3.1, the Collateral Agent shall have received a certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to the Collateral Agent and the Arrangers that the insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with customary endorsements naming the Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 5.5.

(f)Opinions of Counsel. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks and dated the Closing Date) of each of (i) Kelley Drye & Warren LLP, counsel for the Credit Parties, (ii) Kelley Drye & Warren LLP, regulatory counsel for the Credit Parties, (iii) Jones Day, Georgia counsel for the Credit Parties, and (iv) Spencer Fane LLP, Kansas counsel for the Credit Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers (and each Credit Party hereby instructs such counsel to deliver such opinion to the Administrative Agent).

(g)Fees and Expenses. The Borrower shall have paid to the Arrangers, the Administrative Agent and the Lenders all fees and expenses (including legal fees and expenses and recording fees) and other amounts due and payable on or prior to the Closing Date pursuant to the Credit Documents, the Engagement Letter and the Fee Letters.

(h)Solvency Certificate. The Administrative Agent shall have received the Solvency Certificate, dated the Closing Date and signed by the chief financial officer of the Borrower.

(i)Closing Date Certificate. The Administrative Agent shall have received the Closing Date Certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, together with all attachments thereto.

(j)Letter of Direction. The Administrative Agent and Goldman Sachs, as an Arranger, shall have received a duly executed letter of direction from the Borrower addressed to Goldman Sachs, as an Arranger, directing the disbursement on the Closing Date of the proceeds of the Loans to be made on such date.

(k)PATRIOT Act. At least five days prior to the Closing Date, the Lenders and the Administrative Agent shall have received all documentation and other information (including with respect to the Acquired Company and its Subsidiaries) required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.

(l)Consummation of the Merger. The Merger shall have been (or substantially concurrently with the funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall be) consummated, pursuant to and on the terms set forth in the Merger Agreement. The Arrangers shall have received a copy of the Merger Agreement (including a copy of the Acquired Company Indemnity Letter Agreement), together with all closing deliverables thereunder, certified by an Authorized Officer of the Borrower as complete and correct.

(m)Distribution of the Consumer/SMB Business. The Consumer/SMB Business shall have been (or substantially concurrently with the funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall be) distributed by the Acquired Company, pursuant to and on the terms set forth in the Merger Agreement. The Arrangers shall have received a copy of the definitive agreements relating to the distribution of the Consumer/SMB Business, together with all closing deliverables thereunder, certified by an Authorized Officer of the Acquired Company as complete and correct.

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(n)Fusion Global Transactions. The Borrower shall have consummated (or substantially concurrently with the funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall consummate) the Fusion Global Arrangement, pursuant to and on the terms set forth in the Merger Agreement. The Arrangers shall have received a copy of the definitive agreements relating to the Fusion Global Arrangement, together with all closing deliverables thereunder, certified by an Authorized Officer of the Borrower as complete and correct.

(o)Subordinated Notes Issuance or Amendment. The Borrower shall have received (or substantially concurrently with the funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall receive) gross cash proceeds of not less than $10,000,000 from the issuance of the New Subordinated Note. The Existing Subordinated Notes shall have been (or substantially concurrently with funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall be) amended and restated to, among other things, provide that the Existing Subordinated Notes are subordinated in right of payment to the Obligations and all Permitted Second Lien Indebtedness, Permitted Credit Agreement Refinancing Indebtedness and Permitted Incremental Equivalent Indebtedness (in each case, other than Subordinated Indebtedness) of the Borrower or any Guarantor Subsidiary, as applicable, in a manner reasonably satisfactory to the Arrangers. The Administrative Agent shall have received a copy of the Permitted Subordinated Indebtedness Documents with respect to the Subordinated Notes, certified by an Authorized Officer of the Borrower as complete and correct, and the terms and conditions of the Subordinated Notes, and the provisions of the Permitted Subordinated Indebtedness Documents with respect thereto, shall be reasonably satisfactory to the Arrangers.

(p)Closing Date Common Equity Issuance. The Closing Date Common Equity Issuance shall have occurred (or substantially concurrently with the funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall occur), and the Borrower shall have received (or substantially concurrently with the funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall receive) gross cash proceeds of not less than $4,999,998.50 therefrom. The Arrangers shall have received a copy of the definitive agreements relating to the Closing Date Common Equity Issuance, together with all closing deliverables thereunder, certified by an Authorized Officer of the Borrower as complete and correct.

(q)Closing Date Preferred Equity Issuance. The Borrower shall have issued and sold (or substantially concurrently with the funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall issue and sell) the Closing Date Preferred Stock to Holcombe T. Green, Jr. (or an entity majority-owned and Controlled by Holcombe T. Green, Jr.), and the Borrower shall have received (or substantially concurrently with the funding of the Tranche A Term Loans and the Tranche B Term Loans on the Closing Date shall receive) gross cash proceeds of not less than $14,700,000 therefrom. The Arrangers shall have received a copy of the definitive agreements relating to the Closing Date Preferred Stock, together with all closing deliverables relating thereto, all of which shall be in form and substance reasonably satisfactory to the Arrangers and certified by an Authorized Officer of the Borrower as complete and correct.

(r)Escrow Cash Collateral Arrangement. The Borrower shall have established a blocked deposit account maintained with a depository institution reasonably acceptable to the Collateral Agent and the Arrangers (i) in which the Escrow Cash Collateral in an amount equal to the Escrow Cash Amount shall have been (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall be) deposited to be held as cash collateral securing the Obligations pending use as contemplated by Section 2.5(c) and (ii) that is subject to a control agreement in favor of the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent and the Arrangers (the “Escrow Cash Collateral Control Agreement”), pursuant to which the Escrow Cash Collateral shall be subject to the sole control and dominion of the Collateral Agent, to be released by the Collateral Agent solely for the purposes contemplated by Section 2.5(c) in accordance with the provisions of Section 9.8(d)(ii) (the “Escrow Cash Collateral Account”).

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Each Lender, by delivering its signature page to this Agreement, and funding its Loans on the Closing Date and/or providing its Revolving Commitment on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, the Requisite Lenders or any other Lenders, as applicable, on the Closing Date.

Notwithstanding the foregoing, solely with respect to the matters expressly identified in the Post-Closing Letter Agreement, the satisfaction by the Credit Parties of the foregoing conditions shall not be required on the Closing Date, and shall not be a condition to the making of the Credit Extensions on the Closing Date, but shall be required to be accomplished in accordance with the Post-Closing Letter Agreement.

3.2.Each Credit Extension. The obligation of each Lender and each Issuing Bank to make any Credit Extension on any Credit Date, including the Closing Date, is subject to the satisfaction (or waiver in accordance with Section 10.5) of the following conditions precedent (it being understood and agreed that, in the case of any Term Loans the proceeds of which are intended to be applied to finance a Limited Conditionality Transaction, the conditions precedent set forth in clauses (b) and (c) below may be satisfied as of the applicable LCT Test Date in accordance with Section 1.5):

(a)the Administrative Agent and, in the case of any issuance, amendment or extension (other than an automatic extension permitted under Section 2.3(a)) of any Letter of Credit, the applicable Issuing Bank shall have received a fully completed and executed Funding Notice or Issuance Notice, as the case may be;

(b)the representations and warranties of each Credit Party set forth in the Credit Documents shall be true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (ii) otherwise, in all material respects, in each case on and as of such Credit Date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date; and

(c)at the time of and immediately after giving effect to such Credit Extension, no Default or Event of Default shall have occurred and be continuing or would result therefrom.

On the date of any Credit Extension, the Borrower shall be deemed to have represented and warranted that the conditions specified in Sections 3.2(b) and 3.2(c) have been satisfied and that, after giving effect to such Credit Extension, the Total Utilization of Revolving Commitments (or any component thereof) shall not exceed the maximum amount thereof (or the maximum amount of any such component) specified in Section 2.2(a) or 2.3(a).

SECTION 4.REPRESENTATIONS AND WARRANTIES

In order to induce the Agents, the Lenders and the Issuing Banks to enter into this Agreement and to make each Credit Extension to be made thereby, each Credit Party represents and warrants to each Agent, each Lender and each Issuing Bank on the Closing Date and on each Credit Date as follows:

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4.1.Organization; Requisite Power and Authority; Qualification. Each of the Borrower and the Restricted Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) has all requisite power and authority (i) to own and operate its properties and to carry on its business and operations as now conducted and (ii) in the case of the Credit Parties, to execute and deliver the Credit Documents to which it is a party and to perform the other Transactions to be performed by it and (c) is qualified to do business and in good standing under the laws of every jurisdiction where its assets are located or where such qualification is necessary to carry out its business and operations, except, in each case referred to in clauses (a) (other than with respect to the Borrower), (b)(i) and (c), where the failure so to be or so to have, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

4.2.Equity Interests and Ownership. Schedule 4.2 sets forth, as of the Closing Date, the name and jurisdiction of organization of, and the percentage of each class of Equity Interests owned by the Borrower or any Subsidiary in, (a) each Subsidiary and (b) each joint venture and other Person in which the Borrower or any Subsidiary owns any Equity Interests, and identifies each Designated Subsidiary and each Material Subsidiary. The Equity Interests owned by any Credit Party in any Subsidiary have been duly authorized and validly issued and, to the extent such concept is applicable, are fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the Closing Date (i) there are no Equity Interests in any Restricted Subsidiary outstanding that upon exercise, conversion or exchange would require the issuance by any Restricted Subsidiary of any additional Equity Interests or other Securities exercisable for, convertible into, exchangeable for or evidencing the right to subscribe for or purchase any Equity Interests in any Restricted Subsidiary and (ii) there are no existing options, warrants, calls, rights, commitments or other agreements to which the Borrower or any Restricted Subsidiary is a party requiring the issuance by any Restricted Subsidiary of any additional Equity Interests or other Securities exercisable for, convertible into, exchangeable for or evidencing the right to subscribe for or purchase any Equity Interests in any Restricted Subsidiary.

4.3.Due Authorization. The Transactions to be entered into by each Credit Party have been duly authorized by all necessary corporate or other organizational and, if required, stockholder, shareholder or other equityholder action on the part of such Credit Party.

4.4.No Conflict. The Transactions do not and will not (a) violate any applicable law, including any order of any Governmental Authority, except to the extent any such violation, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (b) violate the Organizational Documents of the Borrower or any Restricted Subsidiary, (c) violate or result (alone or with notice or lapse of time, or both) in a default under any Contractual Obligation of the Borrower or any Restricted Subsidiary, or give rise to a right thereunder to require any payment, repurchase or redemption to be made by the Borrower or any Restricted Subsidiary, or give rise to a right of, or result in, any termination, cancelation or acceleration or right of renegotiation of any obligation thereunder, except to the extent any such violation, default, right or result, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, or (d) except for Liens created under the Credit Documents or the Second Lien Credit Documents, result in or require the creation or imposition of any Lien on any asset of the Borrower or any Restricted Subsidiary.

4.5.Governmental Approvals. The Transactions do not and will not require any registration with, consent or approval of, notice to, or other action by any Governmental Authority, except (a) such as have been obtained or made and are in full force and effect, (b) filings and recordings with respect to the Collateral necessary to perfect Liens created under the Credit Documents or the Second Lien Credit Documents and (c) filings and registrations under applicable securities laws relating to the Disposition by the Collateral Agent pursuant to the Pledge and Security Agreement of Collateral that constitute Securities.

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4.6.Binding Obligation. Each Credit Document has been duly executed and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

4.7.Historical Financial Statements; Projections; Pro Forma Financial Statements. The Historical Borrower Financial Statements were prepared in conformity with GAAP and present fairly, in all material respects, the consolidated financial position of the Borrower and its Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of the Borrower and its Subsidiaries for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from normal year-end audit adjustments and the absence of footnotes. The Historical Acquired Company Financial Statements were prepared in conformity with GAAP and present fairly, in all material respects, the consolidated financial position of the Acquired Company and its Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of the Acquired Company and its Subsidiaries for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnotes. As of the Closing Date, neither the Borrower nor any Subsidiary has any contingent liability or liability for Taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the Historical Borrower Financial Statements, the Historical Acquired Company Financial Statements or the notes thereto and that, in any such case, is material in relation to the business, operations, assets or financial condition of the Borrower and the Subsidiaries, taken as a whole.

(a)The Projections have been prepared in good faith based upon assumptions that were believed by the Borrower to be reasonable at the time made, it being understood and agreed that the Projections are not a guarantee of financial performance and actual results may differ therefrom and such differences may be material.

(b)The Pro Forma Financial Statements (i) have been prepared by the Borrower in good faith based on assumptions that were believed by the Borrower to be reasonable at the time made and are believed by the Borrower to be reasonable on the Closing Date, (ii) accurately reflect in all material respects all adjustments necessary to give effect to the Transactions as contemplated by such Pro Forma Financial Statements and (iii) present fairly, in all material respects, the pro forma financial position and results of operations of the Borrower and the Subsidiaries as of the date and for the period stated therein as if the Transactions as contemplated by such Pro Forma Financial Statements had occurred on such date or at the beginning of such period, as the case may be.

4.8.No Material Adverse Effect. Since December 31, 2017, there has been no event or condition that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

4.9.Adverse Proceedings. There are no Adverse Proceedings that (a) individually or in the aggregate would reasonably be expected to have a Material Adverse Effect or (b) in any manner question the validity or enforceability of any of the Credit Documents or otherwise involve any of the Credit Documents or the Transactions.

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4.10.Payment of Taxes. Except as otherwise permitted under Section 5.3, all Tax returns and reports of the Borrower and its Subsidiaries required to be filed by any of them have been timely filed, and all Taxes shown on such Tax returns to be due and payable, and all assessments, fees and other governmental charges upon the Borrower and the Subsidiaries and upon their properties, income, businesses and franchises that are due and payable, have been paid when due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books reserves with respect thereto to the extent required by GAAP or (b) to the extent that the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

4.11.Properties. Title. The Borrower and each Restricted Subsidiary has (i) good, sufficient and marketable title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), (iii) valid licensed rights in (in the case of licensed interests in Intellectual Property) and (iv) good title to (in the case of all other personal property) all of their material assets reflected in the Historical Borrower Financial Statements or the Historical Acquired Company Financial Statements, as applicable, or, after the first delivery thereof, in the consolidated financial statements of the Borrower most recently delivered pursuant to Section 5.1, in each case except for assets disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted by this Agreement (including the Fusion Global Arrangement and the distribution of the Consumer/SMB Business) and except for Permitted Liens and defects that, individually or in the aggregate, do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Restricted Subsidiary.

(a)Real Estate. Set forth on Schedule 4.11(b) is true and complete list, as of the Closing Date, of all Real Estate Assets owned in fee by any Credit Party, identifying each Material Real Estate Asset, if any, and the proper jurisdiction for the filing of a Mortgage in respect thereof.

(b)Intellectual Property. The Borrower and each Restricted Subsidiary owns, or is licensed to use, all Intellectual Property that is necessary for the conduct of its business as currently conducted, and without conflict with the rights of any other Person, except to the extent any such conflict, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No Intellectual Property used by the Borrower or any Restricted Subsidiary in the operation of its business infringes upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any Intellectual Property owned or used by the Borrower or any Restricted Subsidiary is pending or, to the knowledge of the Borrower or any Restricted Subsidiary, threatened in writing against the Borrower or any Restricted Subsidiary that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

4.12.Environmental Matters. Except with respect to any matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any Subsidiary (a) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (b) has become subject to any Environmental Liability, (c) has received notice of any claim with respect to any Environmental Liability or (d) knows of any basis for any Environmental Liability.

4.13.No Defaults. No Default or Event of Default has occurred and is continuing.

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4.14.Investment Company Act. None of the Credit Parties is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.

4.15.Federal Reserve Regulations. None of the Borrower or the Subsidiaries is engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.

(a)No portion of the proceeds of any Credit Extension will be used, directly or indirectly, for any purpose that entails a violation (including on the part of any Lender) of any of the regulations of the Board of Governors, including Regulations U and X. Not more than 25% of the value of the assets of the Borrower and the Restricted Subsidiaries subject to any restrictions on the sale, pledge or other Disposition of assets under this Agreement, any other Credit Document or any other agreement to which any Lender or Affiliate of a Lender is party will at any time be represented by Margin Stock.

4.16.Employee Benefit Plans. The Borrower, each Restricted Subsidiary and each of their respective ERISA Affiliates is in compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder with respect to each Employee Benefit Plan, and has performed all its obligations under each Employee Benefit Plan, except where such failure to comply or perform, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each Employee Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter or opinion letter from the IRS indicating that such Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such determination letter or opinion letter which would cause such Employee Benefit Plan to lose its qualified status. No liability to the PBGC (other than required premium payments), the IRS, any Employee Benefit Plan or any trust established under Title IV of ERISA has been or is expected to be incurred by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No ERISA Event or Foreign Plan Event has occurred or is reasonably expected to occur, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates. The present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or contributed to by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates (determined as of the end of the most recent plan year on the basis of assumptions used for purposes of Accounting Standards Codification Topic 715), did not exceed the aggregate current value of the assets of such Pension Plan. As of the most recent valuation date for each Multiemployer Plan for which the actuarial report is available, the potential liability of the Borrower, the Restricted Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e) of ERISA is zero. The Borrower, each Restricted Subsidiary and each of their respective ERISA Affiliates is not in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan. None of the Borrower or any of its Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA).

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4.17.Solvency. On the Closing Date (after giving effect to the borrowing of the Tranche A Term Loans and the Tranche B Term Loans hereunder and the other Transactions to occur on such date), the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.

4.18.Compliance with Laws. The Borrower and each Subsidiary is in compliance with all applicable laws, including all orders and other restrictions imposed by any Governmental Authority, in respect of the conduct of its business and the ownership and operation of its properties (including compliance with all applicable Environmental Laws), except where such failure to comply, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

4.19.Disclosure. None of the Lender Presentation, any other documents, certificates or statements or any other written information (other than financial projections (including financial estimates, budgets, forecasts and other forward-looking information) and information of general economic or industry-specific nature) furnished to any Arranger, any Agent, any Lender or any Issuing Bank by or on behalf of the Borrower or any Subsidiary in connection with the negotiation of or pursuant to this Agreement or any other Credit Document or otherwise in connection with the transactions contemplated hereby or thereby, when taken as a whole, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which they were made (after giving effect to all supplements theretofore provided); provided that, with respect to financial projections, financial estimates, budgets, forecasts and other forward-looking information, the Credit Parties represent only that such information was prepared in good faith based upon estimates and assumptions believed by the Credit Parties to be reasonable at the time such information is so furnished (it being understood that such information is not a guarantee of financial or other performance and actual results may differ therefrom and that such differences may be material). There are no facts known to the Borrower or any Subsidiary (other than matters of a general economic or industry-specific nature) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and that have not been disclosed in such documents, certificates, statements or other information.

4.20.Collateral Matters. The Pledge and Security Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral (as defined therein) and (i) when the Collateral (as defined therein) constituting certificated securities (as defined in the UCC) is delivered to the Collateral Agent without “notice of any adverse claims” (all within the meaning of the UCC), together with instruments of transfer duly endorsed in blank, the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the pledgors thereunder in such Collateral, prior and superior in right to any other Person (subject to any Pari Passu Intercreditor Agreement), and (ii) when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the remaining Collateral (as defined therein) to the extent perfection can be obtained by filing UCC financing statements, prior and superior in right to any other Person, but subject to Permitted Liens.

(a)Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right, title and interest in and to the Real Estate Asset subject thereto and the proceeds thereof, and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute fully perfected security interests in all right, title and interest of the mortgagors in the Real Estate Assets subject thereto and the proceeds thereof, prior and superior in right to any other Person, but subject to the Permitted Liens.

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(b)Upon the recordation of the Intellectual Property Security Agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in Section 4.20(a), the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the Intellectual Property in which a security interest may be perfected by filing in the United States Patent and Trademark Office or United States Copyright Office, in each case prior and superior in right to any other Person, but subject to Permitted Liens (it being understood that subsequent recordings in the United States Patent and Trademark Office or the United States Copyright Office may be necessary to perfect a security interest in such Intellectual Property acquired by the Credit Parties after the Closing Date).

(c)Each Collateral Document, other than any Collateral Document referred to in the preceding paragraphs of this Section 4.20, upon execution and delivery thereof by the parties thereto and the making of the filings and taking of the other actions provided for therein, will be effective under applicable law to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral subject thereto, and will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the Collateral subject thereto to the extent perfection may be achieved by making the filings and taking the other actions provided for therein, prior and superior to the rights of any other Person, except for rights secured by Permitted Liens.

4.21.Sanctioned Persons; Anti-Corruption Laws; PATRIOT Act. None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower or any Subsidiary, employees, agents or Affiliates is a Sanctioned Person or otherwise the subject of any sanctions or economic embargoes administered or enforced by the US Department of State or the US Department of Treasury (including OFAC), the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Laws”). Each of the Borrower and its Subsidiaries and their respective directors, officers, and, to the knowledge of the Borrower or any Subsidiary, employees, agents or Affiliates is in compliance, in all material respects, with (a) all Sanctions Laws, (b) the United States Foreign Corrupt Practices Act of 1977, the Bribery Act 2010 of the United Kingdom and any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “Anti-Corruption Laws”) and (c) the PATRIOT Act and any other applicable terrorism and money laundering laws, rules, regulations and orders. No part of the proceeds of the Loans or Letters of Credit will be used, directly or indirectly, (i) for the purpose of financing any activities or business of or with any Person or in any country or territory that at such time is the subject of any Sanctions, (ii) 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 (iii) in any manner that would result in the violation of any Sanctions Laws applicable to any party hereto.

4.22.Communications Regulatory Matters.

(a)The businesses of the Borrower and its Subsidiaries are being conducted in compliance with all Communications Laws, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Borrower and the Restricted Subsidiaries possess all Licenses required to conduct their businesses in the ordinary course, and all such Licenses are in full force and effect.

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(b)There is no condition, event or occurrence existing, nor, to the knowledge of the Borrower or any Subsidiary, is there any proceeding being conducted or threatened by any Governmental Authority, which would reasonably be expected to cause the termination, revocation, forfeiture, suspension, cancellation, adverse modification or non-renewal of any of the Licenses held by the Borrower or any Subsidiary, or the imposition of any penalty or fine by any Governmental Authority with respect to any such Licenses or the Borrower or any Subsidiary, in each case which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

(c)There is no (i) outstanding decree, decision, judgment, or order that has been issued by the FCC or a State PUC against the Borrower or any Subsidiary or any License held by the Borrower or any Subsidiary or (ii) notice of violation, order to show cause, complaint, investigation, inquiry or other administrative or judicial proceeding pending or, to the knowledge of the Borrower or any Subsidiary, threatened by or before the FCC or a State PUC against the Borrower, any Subsidiary or any License held by the Borrower or any Subsidiary that, assuming an unfavorable decision, ruling or finding, in the case of each of (i) or (ii) above, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(d)Each of the Borrower and the Subsidiaries have filed with the FCC and State PUCs all necessary reports, documents, instruments, information or applications required to be filed pursuant to the Communications Laws, and have paid all fees, assessments and other charges required to be paid pursuant to the Communications Laws, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(e)Except as has been obtained or will be obtained prior to the Closing Date, no consent, approval, authorization, order or waiver of, or filing with, the FCC, the State PUCs or any other Governmental Authority is required under the Communications Laws to be obtained or made by the Borrower or any Subsidiary for (i) the execution, delivery and performance of this Agreement or the other Credit Documents or (ii) the consummation of the Merger and the other Transactions.

SECTION 5.AFFIRMATIVE COVENANTS

Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired with no pending drawings or been terminated and the Letter of Credit Usage shall have been reduced to zero, each Credit Party covenants and agrees with the Agents, the Lenders and the Issuing Banks that:

5.1.Financial Statements and Other Reports. The Borrower will deliver to the Administrative Agent and, where applicable, to the Lenders:

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(a)Annual Financial Statements. Commencing with the Fiscal Year ending December 31, 2018, as soon as available, and in any event within 95 days after the end of each Fiscal Year, the consolidated balance sheet of the Borrower and the Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of operations, stockholders’ equity and cash flows of the Borrower and the Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, together with a report thereon of EisnerAmper LLP or an independent registered public accounting firm of recognized national standing (which report shall not contain a “going concern” or like statement, qualification, exception or emphasis or any qualification, exception or emphasis as to the scope of audit, provided that such report may contain a “going concern” statement solely as a result of an impending maturity within 12 months of any Loans or any Permitted Pari Passu Secured Indebtedness or any prospective (but not actual) failure to comply with Section 6.7(a) or 6.7(c)), and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Borrower and its Subsidiaries as of the dates indicated and the consolidated results of operations and cash flows of the Borrower and its Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accounting firm in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;

(b)Quarterly Financial Statements. Commencing with the first such Fiscal Quarter ending after the Closing Date, as soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of the Borrower and the Subsidiaries as of the end of such Fiscal Quarter and the related consolidated statements of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter (in the case of such statements of operations) and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, together with a Financial Officer Certification with respect thereto;

(c)Compliance Certificate and Unrestricted Subsidiary Reconciliation Statements. Together with each delivery of the consolidated financial statements of the Borrower and its Subsidiaries pursuant to Section 5.1(a) or 5.1(b), a completed Compliance Certificate executed by the chief financial officer of the Borrower and, if any Subsidiary shall be an Unrestricted Subsidiary, with respect to each such financial statement an Unrestricted Subsidiary Reconciliation Statement (which may be in a footnote form), which shall be accompanied by a Financial Officer Certification;

(d)Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in GAAP or in the application thereof since the date of the most recent balance sheet delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the first such delivery, since December 31, 2017), the consolidated financial statements of the Borrower delivered pursuant to Section 5.1(a) or 5.1(b) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such Section had no such change occurred, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation specifying in reasonable detail the effect of such change on such financial statements, including those for the prior period;

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(e)Notice of Default and Material Adverse Effect. Promptly upon any officer of the Borrower or any Restricted Subsidiary obtaining knowledge of any event or condition set forth below, a certificate of an Authorized Officer of the Borrower setting forth the details of such event or condition and any action the Borrower or any Restricted Subsidiary has taken, is taking or proposes to take with respect thereto:

(i)the occurrence of any Default or Event of Default; or

(ii)any event or condition that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(f)Notice of Adverse Proceedings. Promptly upon any officer of the Borrower or any Restricted Subsidiary obtaining knowledge of (i) any Adverse Proceeding that would reasonably be expected to have a Material Adverse Effect or that in any manner questions the validity or enforceability of any of the Credit Documents or otherwise involves any of the Credit Documents or (ii) any material and adverse development in any Adverse Proceeding referred to in clause (i) above, in each case where such development has not previously been disclosed in writing by the Borrower to the Administrative Agent and the Lenders, a certificate of an Authorized Officer of the Borrower setting forth the details of such Adverse Proceeding or development;

(g)[Reserved];

(h)Employee Benefit Plans. (i) Promptly upon any officer of the Borrower or any Restricted Subsidiary obtaining knowledge of the occurrence of any ERISA Event or Foreign Plan Event, a written notice specifying the nature thereof, what action the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the IRS, the Department of Labor, the PBGC or any other Governmental Authority with respect thereto; and (ii) with reasonable promptness after written request by the Administrative Agent, copies of (A) all material written notices received by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event and (B) copies of such other material documents or governmental reports or filings relating to any Employee Benefit Plan with respect to which such ERISA Event has occurred as the Administrative Agent may reasonably request in writing;

(i)Financial Plan. As soon as available and in any event no later than 120 days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year, including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of comprehensive income and cash flows of the Borrower and the Subsidiaries for such Fiscal Year, and an explanation of the assumptions on which such forecasts are based,and (ii) forecasted consolidated statements of comprehensive income and cash flows of the Borrower and the Subsidiaries for each Fiscal Quarter of such Fiscal Year;

(j)Information Regarding Credit Parties and Collateral. Prompt written notice of any change in (i) any Credit Party’s legal name, (ii) any Credit Party’s form of organization, (iii) any Credit Party’s jurisdiction of organization, (iv) the location of the chief executive office of any Credit Party and (v) any Credit Party’s Federal Taxpayer Identification Number or state organizational identification number;

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(k)Collateral Verification. Commencing with the Fiscal Year ending December 31, 2018, together with each delivery of the consolidated financial statements of the Borrower and its Subsidiaries pursuant to Section 5.1(a), a completed Supplemental Collateral Questionnaire executed by an Authorized Officer of the Borrower, together with all attachments contemplated thereby;

(l)Filed or Distributed Information. Promptly upon their becoming available, copies of all regular and periodic reports and all registration statements and prospectuses, if any, filed by the Borrower or any Restricted Subsidiary with the SEC or any Governmental Authority performing similar functions;

(m)Notice of Modifications of Junior Indebtedness Documents. Promptly upon the effectiveness thereof, notice of any execution and delivery of any credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Junior Indebtedness or of any amendment, waiver or other modification of any such credit agreement, indenture or other agreement or instrument, together with a copy thereof; and

(n)Other Information. Promptly after any request therefor, such other information regarding the business, operations, assets, liabilities (including contingent liabilities) and condition (financial or otherwise) of the Borrower or any Subsidiary, or compliance with the terms of any Credit Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.

The Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed through the Platform, any document or notice that the Borrower has indicated contains Private-Side Information will not be posted on the portion of the Platform that is designated for Public Lenders, provided that the Borrower shall make any disclosure required so that each Unrestricted Subsidiary Reconciliation Statement shall be suitable for distribution to Public Lenders. The Borrower agrees to clearly designate all information provided to any Agent by or on behalf of any Credit Party that contains only Public-Side Information, and by doing so shall be deemed to have represented that such information contains only Public-Side Information. If the Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.1 contains Private-Side Information, the Administrative Agent reserves the right to post such document or notice solely on the portion of the Platform that is designated for Private Lenders.

Information required to be delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(l) shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on the Platform or shall be available on the website of the SEC at http://www.sec.gov or on the website of the Borrower at http://www.fusionconnect.com, provided, in each case, that the Borrower has notified the Administrative Agent that such information is available on such website and, if requested by the Administrative Agent, shall have provided hard copies to the Administrative Agent. Information required to be delivered pursuant to this Section 5.1 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with this Section 5.1. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.

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5.2.Existence, Licenses, Etc. The Borrower and each Restricted Subsidiary will at all times preserve and keep in full force and effect (a) its existence and (b) all rights, franchises, licenses (including all Licenses) and permits necessary for the ordinary conduct of the business of the Borrower and the Restricted Subsidiaries; provided that (i) other than in the case of clause (a) above with respect to the Borrower, the foregoing shall not apply to the extent the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) the foregoing shall not prohibit any transaction permitted under Section 6.8.

5.3.Payment of Taxes. The Borrower and each Subsidiary will pay all Taxes imposed upon it or any of its properties prior to the time when any penalty or fine shall be incurred with respect thereto; provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted so long as an adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor or (b) the failure to make such payment would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

5.4.Maintenance of Properties. The Borrower and each Restricted Subsidiary will maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all properties used or useful in the business of the Borrower and the Restricted Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof, in each case except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(a)The Borrower and each Restricted Subsidiary will take all actions reasonably necessary to protect all Intellectual Property used or useful in the business of the Borrower and the Restricted Subsidiaries, including (i) protecting the secrecy and confidentiality of the confidential information and trade secrets of the Borrower and each Restricted Subsidiary by having and enforcing a policy requiring all employees, consultants, licensees, vendors and contractors to execute confidentiality agreements, (ii) taking all actions reasonably necessary to ensure that none of the trade secrets of the Borrower and any Restricted Subsidiary shall fall or has fallen into the public domain and (iii) protecting the secrecy and confidentiality of the source code of all computer software programs and applications owned or licensed by the Borrower and any Restricted Subsidiary by having and enforcing a policy requiring any licensees of such source code (including any licensees under any source code escrow agreement) to enter into license agreements with appropriate use and nondisclosure restrictions, except in each case where the failure to take any such action, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

5.5.Insurance. The Borrower and the Restricted Subsidiaries will maintain or cause to be maintained, with financially sound and reputable insurance companies, such public liability insurance, third-party property damage insurance, business interruption insurance and casualty insurance with respect to liabilities, losses or damage in respect of the assets and businesses of the Borrower and the Restricted Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in the same or similar businesses operating in the same or similar locations, in each case in such amounts (with no greater risk retention), covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Without limiting the generality of the foregoing, the Borrower and the Restricted Subsidiaries will maintain or cause to be maintained, with financially sound and reputable insurance companies, flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the Flood Program, in each case in compliance with any applicable regulations of the Board of Governors or other applicable law. Each such policy of insurance maintained by or on behalf of the Credit Parties shall (a) in the case of liability insurance policies (other than workers’ compensation and other policies for which such endorsements are not customary), name the Collateral Agent, for the benefit of the Secured Parties, as an additional insured thereunder and (b) in the case of business interruption and casualty insurance policies, contain a lender’s loss payable clause or endorsement, reasonably satisfactory in form and substance to the Collateral Agent, that names the Collateral Agent, for the benefit of the Secured Parties, as the lender’s loss payee thereunder, and shall provide that it shall not be canceled or not renewed (i) by reason of nonpayment of premium upon not less than 10 days’ prior written notice thereof by the insurer to the Collateral Agent (giving the Collateral Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason upon not less than 30 days’ (or such shorter number of days as may be agreed to by the Collateral Agent or as may be the maximum number of days permitted by applicable law) prior written notice thereof by the insurer to the Collateral Agent.

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5.6.Books and Records; Inspections. The Borrower and each Restricted Subsidiary will keep proper books of record and accounts in which full, true and correct entries in conformity in all material respects with GAAP and applicable law are made of all dealings and transactions in relation to its business and activities. The Borrower and each Restricted Subsidiary will permit the Administrative Agent or any Lender (pursuant to a request made through the Administrative Agent) (or their authorized representatives, agents or advisors) to visit and inspect any of its properties, to examine, copy and make extracts from its financial and accounting records and to discuss its business, operations, assets, liabilities (including contingent liabilities) and condition (financial or otherwise) with its officers and independent registered public accounting firm, all upon reasonable notice and at such reasonable times during normal business hours and as often as may reasonably be requested; provided, that so long as no Default or Event of Default has occurred and is continuing such visits and inspections to be limited to not more than one visit and inspection for the Administrative Agent and all Lenders (coordinated through the Administrative Agent) in any Fiscal Year.

5.7.Lenders Meetings. The Borrower will, upon the request of the Administrative Agent or the Requisite Lenders, participate in a telephonic conference with the Administrative Agent and Lenders once during each Fiscal Quarter to be held at such time as may be agreed to by the Borrower and the Administrative Agent.

5.8.Compliance with Laws. The Borrower and each Restricted Subsidiary will comply with all applicable laws (including all Environmental Laws and all orders of any Governmental Authorities), except (a) in the case of Sanctions Laws, the PATRIOT Act and other applicable anti-terrorism and money laundering laws and Anti-Corruption Laws, where failure to comply, individually or in the aggregate, is not material and (b) otherwise, where failure to comply, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

5.9.Environmental Matters. Environmental Disclosure. The Borrower will deliver to the Administrative Agent and the Lenders, promptly upon the occurrence thereof, written notice describing in reasonable detail (i) any material Release required to be reported to any Governmental Authority under any applicable Environmental Laws, (ii) any remedial action taken by the Borrower, any Restricted Subsidiary or any other Person in response to any Release of Hazardous Materials Activities or any Environmental Liability that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, (iii) the Borrower or any Restricted Subsidiary obtaining knowledge of any occurrence or condition on any Material Real Estate Asset that would cause any Facility or any part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws, and (iv) any Environmental Liability involving the Borrower or any Restricted Subsidiary that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

(a)Environmental Response. The Borrower will, and will cause each Restricted Subsidiary to, take promptly any and all actions necessary to (i) cure any violation of applicable Environmental Laws by the Borrower or any Restricted Subsidiary that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (ii) make an appropriate response to any claim pursuant to Environmental Law against the Borrower or any Restricted Subsidiary and discharge any obligations it may have to any Person thereunder where failure to do so would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

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5.10.Subsidiaries. If any Person becomes a Restricted Subsidiary of the Borrower (or any Subsidiary of the Borrower not theretofore a Designated Subsidiary becomes a Designated Subsidiary, including as a result of a designation of any Unrestricted Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Material Subsidiary), the Borrower will, as promptly as practicable, and in any event within 30 days (or such longer period as the Administrative Agent may agree to in writing), notify the Administrative Agent in writing thereof and cause the Collateral and Guarantee Requirement to be satisfied with respect to such Restricted Subsidiary (if such Restricted Subsidiary is a Designated Subsidiary) and with respect to any Equity Interests in or Indebtedness of such Restricted Subsidiary owned by any Credit Party.

5.11.Additional Collateral. The Borrower will furnish to the Administrative Agent prompt written notice of (a) the acquisition by any Credit Party of a Material Real Estate Asset after the Closing Date and (b) the acquisition by any Credit Party of any other material assets (other than any assets constituting Excluded Property) after the Closing Date, other than any such assets constituting Collateral under the Collateral Documents in which the Collateral Agent shall have a valid, legal and perfected security interest (with the priority contemplated by the applicable Collateral Document) upon the acquisition thereof. The Borrower will, as promptly as practicable and in any event within 60 days (or such longer period as the Administrative Agent may agree to in writing), cause the requirements of clause (g) of the Collateral and Guarantee Requirement to be satisfied with respect to such Material Real Estate Asset.

5.12.Further Assurances. Each Credit Party will execute any and all further documents, financing statements, agreements and instruments, and take any and all further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents), that may be required under any applicable law, or that the Administrative Agent or the Collateral Agent may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied at all times (to the extent applicable, subject to the grace periods set forth in Sections 5.10 and 5.11) or otherwise to effectuate the provisions of the Credit Documents, all at the expense of the Credit Parties. The Borrower will provide to the Administrative Agent and the Collateral Agent, from time to time upon request, evidence reasonably satisfactory to the Administrative Agent or the Collateral Agent, as applicable, as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents.

5.13.Maintenance of Ratings. The Borrower will use commercially reasonable efforts to maintain continuously a public corporate family rating (or comparable public ratings) from Moody’s and a public corporate credit rating (or comparable public rating) from S&P, in each case in respect of the Borrower, and a public credit rating from each of Moody’s and S&P in respect of the Tranche A Term Loans and the Tranche B Term Loans (in each case, with no requirement as to any minimum rating).

5.14.Use of Proceeds. The Borrower and the other Restricted Subsidiaries will use the proceeds of the Loans made and the Letters of Credit issued hereunder solely for the purposes set forth in Section 2.5 and in compliance with Section 4.15(b).

(a)The Borrower will not request any Loans or Letters of Credit and no part of the proceeds of the Loans or Letters of Credit will be used, directly or indirectly, (i) for the purpose of financing any activities or business of or with any Person or in any country or territory that at such time is the subject of any Sanctions, (ii) 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 (iii) in any manner that would result in the violation of any Sanctions Laws applicable to any party hereto.

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5.15.Post-Closing Matters. The Credit Parties shall satisfy each of the requirements set forth in the Post-Closing Letter Agreement on or before the date specified in the Post-Closing Letter Agreement for each such requirement, or such later date as may be permitted with respect thereto pursuant to the terms of the Post-Closing Letter Agreement.

5.16.Vector Subordinated Note Cash Collateral Account. The Borrower shall establish the Vector Subordinated Note Cash Collateral Account and cause the Vector Subordinated Note Cash Collateral Account to be subject to the Vector Subordinated Note Cash Collateral Control Agreement, in each case, in accordance with the requirements of the Post-Closing Letter Agreement. On the date of receipt by the Borrower or any Subsidiary of any Vector Subordinated Note Collateral consisting of Cash or Cash Equivalents, the Borrower shall notify the Administrative Agent in writing of such receipt and shall cause an amount equal to such Cash or Cash Equivalents to be deposited into the Vector Subordinated Note Cash Collateral Account, and prior to such deposit, shall hold such Cash or Cash Equivalents in trust for the benefit of the Collateral Agent and the other Secured Parties; provided that the Borrower shall not be required to comply with the foregoing requirements of this sentence in respect of any such Vector Subordinated Note Collateral if on the date of receipt of such Vector Subordinated Note Collateral (a) no Default or Event of Default shall have occurred and be continuing, (b) the Total Leverage Ratio shall be less than 2.50:1.00, determined as of the last day of the then most recently ended Test Period, and (c) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that the requirements set forth in clauses (a) and (b) above have been satisfied and including reasonably detailed calculations demonstrating satisfaction of the requirement set forth in clause (b) above.

SECTION 6.NEGATIVE COVENANTS

Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired with no pending drawings or been terminated and the Letter of Credit Usage shall have been reduced to zero, each Credit Party covenants and agrees with the Agents, the Lenders and the Issuing Banks that:

6.1.Indebtedness. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, incur or remain liable with respect to any Indebtedness, except:

(a)Indebtedness created under the Credit Documents, including pursuant to Sections 2.23, 2.24 or 2.25;

(b)Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any Restricted Subsidiary; provided that (i) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Restricted Subsidiary, (ii) such Indebtedness shall be evidenced by the Intercompany Note, and, if owing to a Credit Party, shall have been pledged pursuant to the Pledge and Security Agreement, (iii) such Indebtedness owing by a Credit Party to a Restricted Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Indebtedness Subordination Agreement and (iv) such Indebtedness is permitted as an Investment under Section 6.6(d);

(c)Guarantees incurred in compliance with Section 6.6(e);

(d)Indebtedness existing on the date hereof and set forth on Schedule 6.1and Refinancing Indebtedness in respect thereof;

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(e)(i) Indebtedness of the Credit Parties under the Second Lien Credit Agreement (or under any documents governing Second Lien Permitted Incremental Equivalent Indebtedness) in an aggregate principal amount at any time outstanding, when taken together with the aggregate principal amount of Refinancing Indebtedness outstanding pursuant to clause (ii) below, not to exceed the sum of (A) $85,000,000, plus (B) the aggregate principal amount of Indebtedness that may be incurred pursuant to Section 2.23 of the Second Lien Credit Agreement (or any comparable successor provision); provided that if the Second Lien Credit Agreement is amended, modified, waived or supplemented or replaced following the Closing Date, this clause (B) shall in no event allow on any date of determination an aggregate principal amount of Indebtedness to be incurred pursuant to this clause (B) that is in excess of the aggregate principal amount that could have been incurred on such date pursuant to the provisions of Section 2.23 in the Second Lien Credit Agreement as in effect on the Closing Date; provided that, in the case of any Indebtedness incurred under this clause (e)(i), (I) such Indebtedness shall constitute Permitted Junior Lien Secured Indebtedness or Permitted Unsecured Indebtedness, (II) the stated final maturity of such Indebtedness shall not be earlier than 91 days after the latest Maturity Date in effect on the date such Indebtedness is incurred, (III) the weighted average life to maturity of any such Indebtedness shall be no shorter than the longest remaining weighted average life to maturity of any Class of Term Loans outstanding as of the date of the incurrence thereof (and, for purposes of determining the weighted average life to maturity of any such Class of Term Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded), (IV) such Indebtedness satisfies the Specified Permitted Indebtedness Documentation Requirements and (V) other than in the case of any such Indebtedness incurred under the Second Lien Credit Agreement on the Closing Date, the Administrative Agent shall have received a certificate, dated the date such Indebtedness is incurred and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions set forth in clause (i) above and, if such Indebtedness or any portion thereof is being incurred in reliance on clause (i)(B) above, setting forth a reasonably detailed calculation of the amount of Indebtedness permitted to be incurred under such clause; and (ii) Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii);

(f)(i) Indebtedness of the Borrower or any Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets of the Borrower or any Restricted Subsidiary, including Capital Lease Obligations, provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, or (B) assumed in connection with the acquisition of any fixed or capital assets of the Borrower or any Restricted Subsidiary, provided, in the case of this clause (i), that at the time of incurrence of such Indebtedness and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding under this clause (i), together with the aggregate principal amount of Refinancing Indebtedness then outstanding under clause (ii) below and with the aggregate principal amount of Capital Lease Obligations outstanding under Section 6.1(n), shall not exceed the greater of (x) $35,000,000 and (y) 7.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period; and (ii) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii);

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(g)(i) Indebtedness of any Person that becomes (other than as a result of a redesignation of an Unrestricted Subsidiary) a Restricted Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed or incurred by the Borrower or any Restricted Subsidiary after the date hereof in connection with an Acquisition permitted hereunder consummated by the Borrower or any Restricted Subsidiary after the date hereof (other than the Specified Acquisition), provided, in the case of this clause (i), that at the time of the Borrower or any Restricted Subsidiary becoming liable with respect to such Indebtedness (whether as a result of such Person becoming a Restricted Subsidiary (or such merger or consolidation) or such assumption), and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding under this clause (i), together with the aggregate principal amount of Refinancing Indebtedness then outstanding under clause (ii) below, shall not exceed the greater of (x) $25,000,000 and (y) 5.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period; and (ii) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii); provided further that the aggregate principal amount of all Indebtedness outstanding under this clause (g) incurred by Restricted Subsidiaries that are not Credit Parties, when aggregated with the aggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Credit Parties outstanding under Section 6.1(o), shall not at any time exceed $10,000,000;

(h)so long as, after giving Pro Forma Effect to the incurrence of such Indebtedness and the use of proceeds thereof (but without netting the Cash proceeds of such Indebtedness (and any other Indebtedness incurred substantially concurrently therewith), no Event of Default shall have occurred and be continuing and the Borrower shall be in compliance with the financial covenant set forth in Section 6.7(a), determined as of the last day of the then most recently ended Test Period (provided that to the extent the proceeds of such Indebtedness are intended to be applied to finance a Limited Conditionality Transaction, at the option of the Borrower, the foregoing conditions may be tested in accordance with Section 1.5), (i) Permitted Pari Passu Secured Indebtedness, Permitted Junior Lien Secured Indebtedness and Permitted Unsecured Indebtedness; provided that (A) the aggregate amount of Indebtedness incurred under this clause (h)(i) on any date shall not exceed the Incremental Amount as of such date, (B) the stated final maturity of such Indebtedness shall not be earlier than the latest Maturity Date in effect on the date such Indebtedness is incurred, (C) the weighted average life to maturity of any such Indebtedness shall be no shorter than the longest remaining weighted average life to maturity of any Class of Term Loans outstanding as of the date of the incurrence thereof (and, for purposes of determining the weighted average life to maturity of any such Class of Term Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded), (D) in the case of Permitted Pari Passu Secured Indebtedness, the Weighted Average Yield, determined as of the date of incurrence of such Indebtedness, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (D)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans is increased, or fees to Lenders then holding the Tranche B Term Loans are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to equal the Weighted Average Yield with respect to such Indebtedness minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (E) such Indebtedness satisfies the Specified Permitted Indebtedness Documentation Requirements and (F) the Administrative Agent shall have received a certificate, dated the date such Indebtedness is incurred and signed by an Authorized Officer of the Borrower, confirming the absence of Events of Default as required above and compliance with the conditions set forth in clause (A) above, setting forth a reasonably detailed calculation of compliance with Section 6.7(a) on a Pro Forma Basis and, if such Indebtedness or any portion thereof is being incurred in reliance on clause (b) of the definition of the term “Incremental Amount”, setting forth a reasonably detailed calculation of the Incremental Amount under such clause; provided further that such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be extended, renewed or refinanced with Long-Term Indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clauses (B) and (C) above so long as (x) such credit facility includes customary “rollover” provisions that are subject to no conditions precedent other than (I) the occurrence of the date specified for the “rollover” and (II) that no payment or bankruptcy event of default shall have occurred and be continuing and (y) assuming such credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clauses (B) and (C) above); and (ii) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii);

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(i)so long as, after giving Pro Forma Effect to the incurrence of such Indebtedness and the use of proceeds thereof (but without netting the Cash proceeds of such Indebtedness (and any other Indebtedness incurred substantially concurrently therewith), no Event of Default shall have occurred and be continuing and the Borrower shall be in compliance with the financial covenant set forth in Section 6.7(a), determined as of the last day of the then most recently ended Test Period, (i) Permitted Pari Passu Secured Indebtedness, Permitted Junior Lien Secured Indebtedness and Permitted Unsecured Indebtedness that, in each case, refinances, in whole or in part, any Term Loans; provided that (A) the original aggregate principal amount of such Indebtedness shall not exceed the aggregate principal amount of such Term Loans being refinanced (except by an amount no greater than accrued and unpaid interest on such Term Loans, any original issue discount or upfront fees applicable to such Indebtedness and any reasonable fees, premiums and expenses relating to such refinancing), (B) the stated final maturity of such Indebtedness shall not be earlier than the Maturity Date of the Class of Term Loans being refinanced in effect at the time such Indebtedness is incurred, (C) the weighted average life to maturity of such Indebtedness (if other than in the form of revolving loans) shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans being refinanced (and, for purposes of determining the weighted average life to maturity of such Class of Term Loans being refinanced, the effects of any prepayments made prior to the date of the determination shall be disregarded), (D) in the case of Permitted Pari Passu Secured Indebtedness (and only if, after giving effect to any substantially concurrent refinancing of Term Loans, any Tranche B Term Loans shall remain outstanding), the Weighted Average Yield, determined as of the date of incurrence of such Indebtedness, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (D)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans is increased, or fees to Lenders then holding the Tranche B Term Loans are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to equal the Weighted Average Yield with respect to such Indebtedness minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (E) such Term Loans being refinanced shall be repaid or prepaid substantially concurrently on the date such Indebtedness is incurred, (F) such Indebtedness satisfies the Specified Permitted Indebtedness Documentation Requirements and (G) the Administrative Agent shall have received a certificate, dated the date such Indebtedness is incurred and signed by an Authorized Officer of the Borrower, confirming the absence of Events of Default as required above and setting forth a reasonably detailed calculation of compliance with Section 6.7(a) on a Pro Forma Basis; provided further that such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be extended, renewed or refinanced with Long-Term Indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clauses (B) and (C) above so long as (x) such credit facility includes customary “rollover” provisions that are subject to no conditions precedent other than (I) the occurrence of the date specified for the “rollover” and (II) that no payment or bankruptcy event of default shall have occurred and be continuing and (y) assuming such credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clauses (B) and (C) above); and (ii) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii);

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(j)to the extent constituting Indebtedness, indemnification obligations (other than in respect of any Indebtedness) incurred in connection with any Acquisition or other Investment permitted by Section 6.6 or any Disposition permitted by Section 6.8;

(k)Indebtedness in respect of netting services, overdraft protections and otherwise arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, overdraft or any similar services, in each case in the ordinary course of business;

(l)Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations of the Borrower or any Restricted Subsidiary (i) under workers’ compensation, unemployment insurance, health, disability or other employee benefits and other social security laws and (ii) under bids, trade contracts, leases (other than Capital Lease Obligations), supply and service agreements with vendors, statutory obligations, surety, litigation and appeal bonds, performance bonds and obligations of a like nature;

(m)Indebtedness of the Borrower or any other Credit Party in the form of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred in connection with any Acquisition consummated prior to the Closing Date or any Acquisition consummated after the Closing Date that is permitted by Section 6.6; provided that such Indebtedness is not secured by any Liens on the assets of the Borrower or any Restricted Subsidiary;

(n)Capital Lease Obligations arising under any Sale/Leaseback Transaction incurred in compliance with Section 6.9, provided that at the time of the consummation of such Sale/Leaseback Transaction and after giving Pro Forma Effect thereto and the use of the proceeds thereof, (i) the aggregate principal amount of Indebtedness then outstanding under this clause (n) shall not exceed the greater of (A) $15,000,000 and (B) 3.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period and (ii) the aggregate principal amount of Indebtedness then outstanding under this clause (n), together with the aggregate principal amount of Indebtedness outstanding under Section 6.1(f), shall not exceed the greater of (A) $35,000,000 and (B) 7.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period;

(o)other unsecured Indebtedness of the Borrower or any Restricted Subsidiary, provided that at the time of incurrence of such Indebtedness and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding under this clause (o), shall not exceed the greater of (i) $50,000,000 and (ii) 10.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period; provided further that the aggregate principal amount of all Indebtedness outstanding under this clause (o) incurred by Restricted Subsidiaries that are not Credit Parties, when aggregated with the aggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Credit Parties outstanding under Section 6.1(g), shall not at any time exceed $10,000,000;

(p)unsecured Indebtedness owed to current or former officers, directors, employees or consultants of the Borrower or any Restricted Subsidiary (or their respective estates, heirs, family members, spouses and former spouses, domestic partners and former domestic partners or beneficiaries under their respective estates) to finance the purchase or redemption of Equity Interests in the Borrower permitted by Section 6.4; provided that the aggregate principal amount of Indebtedness permitted under this clause (p) shall not exceed $5,000,000 at any time outstanding;

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(q)(i) Indebtedness of the Credit Parties under the New Subordinated Note and Refinancing Indebtedness in respect thereof, provided that (A) the aggregate principal amount of Indebtedness under this clause (q)(i) shall not exceed $10,000,000 and (B) the stated final maturity of such Indebtedness shall not be earlier than 91 days after the latest Maturity Date, and such Indebtedness shall not require any mandatory or scheduled prepayments, repurchases, redemptions or other repayments of principal thereof prior to such stated final maturity, and (ii) Indebtedness of the Credit Parties under the Existing Subordinated Notes and Refinancing Indebtedness in respect thereof, provided that (A) the aggregate principal amount of Indebtedness under this clause (q)(ii) shall not exceed (x) $3,276,175.38 plus (y) all interest on such Indebtedness paid-in-kind by the addition thereof to the outstanding principal amount of such Indebtedness after the Closing Date and (B) such Indebtedness shall not require any mandatory or scheduled prepayments, repurchases, redemptions or other repayments of principal thereof (other than regularly scheduled amortization payments required by the terms of the Existing Subordinated Notes as in effect on the Closing Date) prior to the stated final maturity thereof; provided further, in the case of any Indebtedness under this clause (q), (I) such Indebtedness shall not be secured by any Liens on any assets of the Borrower or any Subsidiary, and shall not be Guaranteed by any Person other than the Credit Parties, (II) in the case of any such Refinancing Indebtedness, the terms of such Indebtedness (excluding interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and any “call protection”) are, when taken as a whole, not more favorable to the lenders or holders providing such Indebtedness than (x) those applicable to the New Subordinated Note or the Existing Subordinated Notes, as applicable, as in effect on the Closing Date, when taken as a whole, or (y) those applicable under this Agreement when taken as a whole, provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent (with the Administrative Agent agreeing to provide a copy thereof, together with any drafts referred to below, to the Lenders promptly upon receipt) at least five Business Days prior to the incurrence of such Refinancing Indebtedness, together with a reasonably detailed description of the material terms of such Refinancing Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms satisfy the requirements of this clause (II) shall be conclusive evidence that such terms satisfy such requirement unless the Administrative Agent, the Requisite Tranche A/Revolving Lenders or the Requisite Lenders notify the Borrower in writing within such five Business Day period that it or they disagree with such determination (including a reasonable description of the basis upon which it or they disagree), and (III) such Indebtedness is subordinated in right of payment to the Obligations and all Permitted Second Lien Indebtedness, Permitted Credit Agreement Refinancing Indebtedness and Permitted Incremental Equivalent Indebtedness (in each case, other than Subordinated Indebtedness) of the Borrower or any Guarantor Subsidiary, as applicable, on terms no less favorable to the Secured Parties than the subordination terms applicable to the New Subordinated Note or the Existing Subordinated Notes, as applicable, as of the Closing Date;

(r)Indebtedness consisting of the financing of insurance premiums or take or pay obligations contained in supply arrangements that do not constitute Guarantees, in each case, incurred in the ordinary course of business; and

(s)to the extent constituting Indebtedness, all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in this Section 6.1.

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For purposes of determining compliance with this Section 6.1 (subject to the final sentence of each of the definitions of “Permitted Pari Passu Secured Indebtedness” and “Permitted Junior Lien Secured Indebtedness”), (i) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in this Section 6.1, the Borrower shall, in its sole discretion, classify such item of Indebtedness (or any portion thereof) and may include the amount and type of such Indebtedness in one or more of the above clauses, and the Borrower may later reclassify such item of Indebtedness (or any portion thereof) and include it in another of such clauses in which it could have been included at the time it was incurred (but not into any clause under which it could not have been included at the time it was incurred); provided that, notwithstanding the foregoing, the Subordinated Notes and any Refinancing Indebtedness in respect thereof may only be incurred in reliance on Section 6.1(q) and may not be reclassified and (ii) for purposes of assessing whether any Dollar limit set forth in any clause of this Section 6.1 has been observed in connection with incurrence of any Indebtedness, any other Indebtedness contemporaneously incurred pursuant to and in accordance with the other available clauses of this Section 6.1 that do not require such other Indebtedness to observe such Dollar limit shall be disregarded, even if such other Indebtedness is of the same tranche or series as such Indebtedness being incurred under such Dollar limit.

6.2.Liens. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, incur or permit to exist any Lien on or with respect to any asset of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired or licensed, or assign or sell any income, profits or revenues (including accounts receivable and royalties) or rights in respect of any thereof, except:

(a)Liens created under the Credit Documents;

(b)Permitted Encumbrances;

(c)any Lien on any asset of the Borrower or any Restricted Subsidiary existing on the date hereof and set forth on Schedule 6.2, and any extensions, renewals and replacements thereof; provided that (i) such Lien shall not apply to any other asset of the Borrower or any Restricted Subsidiary, other than to proceeds and products of, and after-acquired property that is affixed or incorporated into, the assets covered by such Lien, and (ii) such Lien shall secure only those obligations that it secures on the date hereof and any extensions, renewals and refinancings thereof that do not increase the outstanding principal amount thereof (except by an amount not greater than accrued and unpaid interest on such obligations and any reasonable fees, premiums and expenses relating to such extension, renewal or refinancing) and, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.1(d) as Refinancing Indebtedness in respect thereof;

(d)Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any Restricted Subsidiary; provided that (i) such Liens secure only Indebtedness outstanding under Section 6.1(f) and obligations relating thereto not constituting Indebtedness and (ii) such Liens shall not apply to any other asset of the Borrower or any Restricted Subsidiary, other than to proceeds and products of, and after-acquired property that is affixed or incorporated into, the assets covered by such Liens; provided further that individual financings of equipment or other fixed or capital assets otherwise permitted to be secured hereunder provided by any Person (or its Affiliates) may be cross-collateralized to other such financings provided by such Person (or its Affiliates);

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(e)any Lien existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any asset of any Person that becomes (other than as a result of a redesignation of an Unrestricted Subsidiary) a Restricted Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the date hereof prior to the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated), and any extensions, renewals and replacements thereof; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary (or such merger or consolidation), (ii) such Lien shall not apply to any other asset of the Borrower or any Restricted Subsidiary (other than, in the case of any such merger or consolidation, the assets of any special purpose merger Restricted Subsidiary that is a party thereto), other than to proceeds and products of, and after-acquired property that is affixed or incorporated into, the assets covered by such Lien or becomes subject to such Lien pursuant to an after-acquired property clause as in effect on the date of such acquisition or the date such Person becomes a Restricted Subsidiary (or is so merged or consolidated), and (iii) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary (or is so merged or consolidated), and any extensions, renewals and refinancings thereof that do not increase the outstanding principal amount thereof (except by an amount not greater than accrued and unpaid interest, fees and premiums (if any) with respect to such original obligations and reasonable fees and expenses arising from such extension, renewal or refinancing) and, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.1;

(f)Liens on the Collateral securing Permitted Second Lien Indebtedness and obligations relating thereto not constituting Indebtedness;

(g)Liens on the Collateral securing Permitted Incremental Equivalent Indebtedness and obligations relating thereto not constituting Indebtedness;

(h)Liens on the Collateral securing Permitted Credit Agreement Refinancing Indebtedness and obligations relating thereto not constituting Indebtedness;

(i)in connection with any Disposition permitted under Section 6.8, customary rights and restrictions contained in agreements relating to such Disposition pending the completion thereof;

(j)in the case of (i) any Restricted Subsidiary that is not a wholly owned Subsidiary or (ii) the Equity Interests in any Person that is not a Restricted Subsidiary (including any Unrestricted Subsidiary), any encumbrance, restriction or other Lien, including any put and call arrangements, related to the Equity Interests in such Restricted Subsidiary or such other Person set forth (A) in its Organizational Documents or any related joint venture, shareholders’ or similar agreement, in each case so long as such encumbrance or restriction is applicable to all holders of the same class of Equity Interests or is otherwise of the type that is customary for agreements of such type or (B) in the case of clause (ii) above, in any agreement or document governing Indebtedness of such Person;

(k)any Lien on assets of any CFC or CFC Holding Company that is not a Designated Subsidiary; provided that (i) such Lien shall not apply to any Collateral (including any Equity Interests in any Subsidiary that constitute Collateral) or any other assets of the Borrower or any Restricted Subsidiary that is not a CFC or CFC Holding Company and (ii) such Lien shall secure only Indebtedness or other obligations of such CFC or CFC Holding Company permitted hereunder;

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(l)Liens solely on any cash earnest money deposits, escrow arrangements or similar arrangements made by the Borrower or any Restricted Subsidiary in connection with any letter of intent or purchase agreement for any Acquisition or Investment permitted hereunder;

(m)nonexclusive outbound licenses of Intellectual Property and leases or sub-leases of equipment or real property, in each case granted by the Borrower or any Restricted Subsidiary in the ordinary course of business that do not materially detract from the value of the affected asset or interfere with the ordinary conduct of business of the Borrower or any Restricted Subsidiary;

(n)any Lien in favor of the Borrower or any Restricted Subsidiary (other than Liens on assets of any Credit Party in favor of a Restricted Subsidiary that is not a Credit Party);

(o)Liens on fixed or capital assets subject to any Sale/Leaseback Transaction permitted under Section 6.9; provided that (i) such Liens secure only Indebtedness permitted by Section 6.1(n) and obligations relating thereto not constituting Indebtedness and (ii) such Liens shall not apply to any other asset of the Borrower or any Restricted Subsidiary, other than to proceeds and products of, and after-acquired property that is affixed or incorporated into, the assets covered by such Liens;

(p)(i) deposits made in the ordinary course of business to secure obligations to insurance carriers providing casualty, liability or other insurance to the Borrower and the Restricted Subsidiaries and (ii) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(q)Cash deposits not to exceed $5,000,000 at any time securing letters of credit, bank guarantees and similar instruments issued in currencies other than Dollars; and

(r)other Liens securing Indebtedness or other obligations; provided that the aggregate outstanding amount of Indebtedness and other obligations secured by Liens permitted by this clause (r) shall not exceed $25,000,000.

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6.3.No Further Negative Pledges. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its assets, whether now owned or hereafter acquired, to secure any Obligations; provided that the foregoing shall not apply to (a) restrictions and conditions imposed by law or by any Credit Document, (b) restrictions and conditions existing on the date hereof identified on Schedule 6.3, and amendments, modifications, extensions and renewals thereof (including any such extension or renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing such restriction or condition), provided, in each case, that the scope of any such restriction or condition shall not have been expanded as a result thereof, (c) in the case of any Restricted Subsidiary that is not a wholly owned Subsidiary or the Equity Interests in any Person that is not a Restricted Subsidiary (including any Unrestricted Subsidiary), restrictions and conditions imposed by the Organizational Documents of such Restricted Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement, provided, in each case, that such restrictions and conditions apply only to such Restricted Subsidiary and to any Equity Interests in such Restricted Subsidiary or to the Equity Interests in such other Person (including any Unrestricted Subsidiary), as applicable, (d) restrictions and conditions imposed by any agreement or document governing secured Indebtedness permitted by Section 6.1(f) or 6.1(n) or governing Liens permitted by Section 6.2(d), 6.2(l), 6.2(o), 6.2(p)(i) or 6.2(q) or by clause (c), (d) or (m) of the definition of “Permitted Encumbrances”, provided that such restrictions and conditions apply only to the assets securing such Indebtedness or subject to such Liens, (e) restrictions and conditions imposed by agreements relating to Indebtedness assumed in reliance on Section 6.1(g)(i) or Refinancing Indebtedness in respect thereof incurred in reliance on Section 6.1(g)(ii), provided that such restrictions and conditions apply only to Persons that are permitted under such Sections to be obligors in respect of such Indebtedness and are not less favorable to the Lenders than the restrictions and conditions imposed by such Indebtedness (or, in the case of any Refinancing Indebtedness, by the applicable Original Indebtedness) at the time such Indebtedness first became subject to Section 6.1, (f) in connection with the sale of any Equity Interests in a Subsidiary or any other assets, customary restrictions and conditions contained in agreements relating to such sale pending the completion thereof, provided that such restrictions and conditions apply only to the Subsidiary or the other assets to be sold and such sale is permitted under Section 6.8, (g) restrictions and conditions imposed by any agreement or document governing Indebtedness of any Restricted Subsidiary that is not, and is not required to become, a Credit Party hereunder, provided that such restrictions and conditions apply only to such Restricted Subsidiary, (h) restrictions and conditions imposed by customary provisions in leases, licenses and other agreements restricting the assignment thereof or, in the case of any lease or license, permitting to exist any Lien on the assets leased or licensed thereunder, (i) customary restrictions in respect of Intellectual Property contained in licenses or sublicenses of, or other grants of rights to use or exploit, such Intellectual Property, (k) restrictions and conditions contained in any Permitted Second Lien Indebtedness Document or any Permitted Subordinated Indebtedness Document, in each case, as in effect on the Closing Date and amendments, modifications, extensions and renewals thereof, provided, in each case, that the scope of any such restriction or condition shall not have been expanded as a result thereof, and (l) restrictions and conditions contained in any agreement or instrument evidencing or governing any Indebtedness permitted by Section 6.1(e), 6.1(g) (other than in respect of existing Indebtedness assumed in reliance thereon), 6.1(h), 6.1(i) or 6.1(o) to the extent, in the good faith judgment of the Borrower, such restrictions and conditions are on customary market terms for Indebtedness of such type and so long as the Borrower has determined in good faith that such restrictions and conditions would not reasonably be expected to impair in any material respect the ability of the Credit Parties to meet their obligations under the Credit Documents. Nothing in this Section 6.3 shall be deemed to modify the requirements set forth in the definition of the term “Collateral and Guarantee Requirement” or the obligations of the Credit Parties under Sections 5.10, 5.11 or 5.12 or under the Collateral Documents.

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6.4.Restricted Junior Payments. Neither the Borrower nor any Restricted Subsidiary will declare or pay or make, or agree to declare or pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that:

(a)each of the Borrower and any Restricted Subsidiary may declare and pay dividends with respect to its Equity Interests payable solely in additional Equity Interests in such Person to the extent not otherwise prohibited hereunder;

(b)any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, partnership or membership interests or other similar Equity Interests, and declare and make other Restricted Junior Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests (or, if not ratably, on a basis more favorable to the Borrower and the Restricted Subsidiaries);

(c)the Borrower may make payments in respect of, or repurchases of its Equity Interests deemed to occur upon the “cashless exercise” of, stock options, stock purchase rights, stock exchange rights or other equity-based awards if such payment or repurchase represents a portion of the exercise price of such options, rights or awards or withholding taxes, payroll taxes or other similar taxes due upon such exercise;

(d)the Borrower may make cash payments in lieu of the issuance of fractional shares representing Equity Interests in the Borrower in connection with the exercise of warrants, options or other Securities convertible into or exchangeable for common stock in the Borrower;

(e)the Borrower may make Restricted Junior Payments in respect of its Equity Interests pursuant to and in accordance with stock option plans or other benefit plans or agreements for, or otherwise make Restricted Junior Payments to redeem, retire, purchase or otherwise acquire any of its Equity Interests held by, future, present or former directors, officers, employees or consultants of the Borrower and the Restricted Subsidiaries; provided that (i) the aggregate amount of the Restricted Junior Payments made in reliance on this clause (e) in any Fiscal Year shall not exceed the sum of (A) $2,000,000 plus (B) an amount equal to any unutilized portion of such amount in clause (A) in any preceding Fiscal Year ended after the Closing Date and (ii) Restricted Junior Payments made in reliance on this clause (e) during any Fiscal Year shall be deemed to use, first, the amount set forth in clause (A) above for such Fiscal Year and, second, any portion of the amount set forth in clause (A) above for any preceding Fiscal Year that has been carried over to such Fiscal Year pursuant to clause (B) above;

(f)the Borrower and the Restricted Subsidiaries may make additional Restricted Junior Payments; provided that, immediately prior to the making thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (i) no Event of Default shall have occurred and be continuing, (ii) the Total Net Leverage Ratio, determined as of the last day of the then most recently ended Test Period, shall not exceed 1.15:1.00 and (iii) the Borrower shall be in compliance with Sections 6.7(a) and, during the Fixed Charge Coverage Ratio Covenant Period, 6.7(c);

(g)the Borrower and the Restricted Subsidiaries may make (i) regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness, other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof, and (ii) prepayments in respect of any Junior Indebtedness to the extent required by Section 2.14(c);

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(h)the Borrower and the other Credit Parties may refinance any Junior Indebtedness with the proceeds of other Indebtedness to the extent permitted under Section 6.1;

(i)so long as no Default or Event of Default shall have occurred and be continuing, the Borrower and the Restricted Subsidiaries may make other Restricted Junior Payments; provided that the aggregate amount of Restricted Junior Payments made in reliance on this clause (i) since the Closing Date shall not exceed $1,000,000;

(j)the Borrower and the Restricted Subsidiaries may make additional Restricted Junior Payments; provided that (i) immediately prior to the making thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (A) no Event of Default shall have occurred and be continuing, (B) the Total Net Leverage Ratio shall not be greater than the lesser of (x) 1.65:1.00 and (y) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a), in each case, determined as of the last day of the then most recently ended Test Period, and (C) in the case of any such Restricted Junior Payment made during the Fixed Charge Coverage Ratio Covenant Period, the Fixed Charge Coverage Ratio shall not be less than the minimum Fixed Charge Coverage Ratio permitted under the financial covenant set forth in Section 6.7(c), determined for the then most recently ended Test Period, (ii) the amount of any such Restricted Junior Payment shall not exceed the Available Basket Amount at the time such Restricted Junior Payment is made and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that all the requirements set forth in this clause (j) have been satisfied with respect to such Restricted Junior Payment and including reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clauses (i)(B), (i)(C) (if applicable) and (ii) above;

(k)any Restricted Junior Payment arising solely on account of any Permitted Holder using its Equity Interests in the Borrower to satisfy such Permitted Holders’ payment obligations under the Acquired Company Indemnity Letter Agreement;

(l)any Restricted Junior Payment required to be made to consummate the Iqmax Disposition; and

(m)the Borrower may redeem the Closing Date Preferred Stock solely with the Net Proceeds received (and not otherwise applied) by the Borrower substantially concurrently with the making of such redemption from any issuance and sale of Equity Interests in the Borrower (other than any Disqualified Equity Interests and other than any Equity Interests issued or sold to any Subsidiary of the Borrower); provided that, immediately prior to the making of such redemption, and immediately after giving Pro Forma Effect thereto, no Event of Default shall have occurred and be continuing.

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6.5.Restrictions on Subsidiary Distributions. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Restricted Subsidiary (a) to pay dividends or make other distributions on its Equity Interests owned by the Borrower or any Restricted Subsidiary, (b) to repay or prepay any Indebtedness owing by such Restricted Subsidiary to the Borrower or any Restricted Subsidiary, (c) to make loans or advances to the Borrower or any Restricted Subsidiary or to Guarantee the Obligations or (d) to transfer, lease or license any of its assets to the Borrower or any Restricted Subsidiary; provided that the foregoing shall not apply to (i) restrictions and conditions imposed by law or by any Credit Document, (ii) restrictions and conditions existing on the date hereof identified on Schedule 6.5, and amendments, modifications, extensions or renewals thereof (including any such extension or renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing such restriction or condition), provided, in each case, that the scope of any such restriction or condition shall not have been expanded as a result thereof, (iii) in the case of any Restricted Subsidiary that is not a wholly owned Subsidiary of the Borrower or, in the case of restrictions and conditions referred to in clause (d) above, the Equity Interests in any Person that is not a Restricted Subsidiary (including any Unrestricted Subsidiary), restrictions and conditions imposed by agreements and documents governing Indebtedness of such Restricted Subsidiary or such Person or its Organizational Documents or any related joint venture, shareholders’ or similar agreement, provided that such restrictions and conditions apply only to such Restricted Subsidiary or, in the case of restrictions and conditions referred to in clause (d) above, to any Equity Interests in such Restricted Subsidiary or such other Person (including any Unrestricted Subsidiary), as applicable, (iv) in the case of restrictions and conditions referred to clause in (d) above, restrictions and conditions imposed by any agreement relating to secured Indebtedness permitted by Section 6.1(f) or 6.1(n) or governing Liens permitted by Section 6.2(d), 6.2(l), 6.2(o), 6.2(p)(i) or 6.2(q) or by clause (c), (d) or (m) of the definition of “Permitted Encumbrances”, provided that such restrictions and conditions apply only to the assets securing such Indebtedness or subject to such Liens, (v) restrictions and conditions imposed by any agreement or document relating to Indebtedness assumed in reliance on Section 6.1(g)(i) or Refinancing Indebtedness in respect thereof incurred in reliance on Section 6.1(g)(ii), provided that such restrictions and conditions apply only to Persons that are permitted under such Section to be obligors in respect of such Indebtedness and are not less favorable to the Lenders than the restrictions and conditions imposed by such Indebtedness (or, in the case of any Refinancing Indebtedness, by the applicable Original Indebtedness) at the time such Indebtedness first became subject to Section 6.1, (vi) in connection with the sale of any Equity Interests in a Subsidiary or any other assets, customary restrictions and conditions contained in agreements relating to such sale pending the completion thereof, provided that such restrictions and conditions apply only to the Subsidiary or the other assets to be sold and such sale is permitted under Section 6.8, (vii) in the case of restrictions or conditions referred to in clauses (c) and (d) above, restrictions and conditions imposed by any agreement or document governing Indebtedness of any Restricted Subsidiary that is not, and is not required to become, a Credit Party hereunder, provided that such restrictions and conditions apply only to such Restricted Subsidiary, (viii) in the case of restrictions and conditions referred to in clause (d) above, restrictions and conditions imposed by customary provisions in leases, licenses and other agreements restricting the assignment thereof or, in the case of any lease or license, permitting to exist any Lien on the assets leased or licensed thereunder, (ix) restrictions on cash or deposits or net worth imposed by customers, suppliers or landlords under agreements entered into in the ordinary course of business, (x) in the case of restrictions and conditions referred to in clause (d) above, customary restrictions in respect of Intellectual Property contained in licenses or sublicenses of, or other grants of rights to use or exploit, such Intellectual Property, (xi) restrictions and conditions contained in any Permitted Second Lien Indebtedness Document or any Permitted Subordinated Indebtedness Document, in each case, as in effect on the Closing Date and amendments, modifications, extensions and renewals thereof, provided, in each case, that the scope of any such restriction or condition shall not have been expanded as a result thereof, (xii) restrictions and conditions contained in any agreement or instrument evidencing or governing any Indebtedness permitted by Section 6.1(e), 6.1(g) (other than in respect of existing Indebtedness assumed in reliance thereon), 6.1(h), 6.1(i) or 6.1(o) so long as the Borrower has determined in good faith that such restrictions and conditions would not reasonably be expected to impair in any material respect the ability of the Credit Parties to meet their obligations under the Credit Documents, and (xiii) in the case of restrictions and conditions referred to in clause (d) above, restrictions and conditions imposed by the Vector Facility Arrangements on the assignment or transfer by the Borrower of its rights under the Vector Subordinated Note. Nothing in this Section 6.5 shall be deemed to modify the requirements set forth in the definition of the term “Collateral and Guarantee Requirement” or the obligations of the Credit Parties under Sections 5.10, 5.11 or 5.12 or under the Collateral Documents.

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6.6.Investments. Neither the Borrower nor any Restricted Subsidiary will purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary of the Borrower prior thereto), hold, make or otherwise permit to exist any Investment in any other Person, or make any Acquisition, except:

(a)Investments in Cash and Cash Equivalents;

(b)Investments existing on the date hereof that are set forth on Schedule 6.6 (but not any additions thereto (including any capital contributions) made after the date hereof);

(c)Investments by the Borrower and the Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries; provided that (i) such investees are Restricted Subsidiaries prior to such Investments (or such Equity Interests in a Restricted Subsidiary are held as the result of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary), (ii) any such Equity Interests held by a Credit Party shall be pledged in accordance with the requirements of the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such Investments by the Credit Parties in, and loans and advances under clause (d) below by the Credit Parties to, and Guarantees under clause (e) by the Credit Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Credit Parties (excluding all such Investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not exceed $20,000,000 at any time outstanding;

(d)loans or advances made by the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by Section 6.1(b) and (ii) the amount of such loans and advances made by the Credit Parties to Restricted Subsidiaries that are not Credit Parties shall be subject to the limitation set forth in clause (c) above;

(e)Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Junior Indebtedness unless (A) such Restricted Subsidiary has Guaranteed the Obligations pursuant hereto and (B) in the case of Junior Indebtedness that is Subordinated Indebtedness such Guarantee is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of such Subordinated Indebtedness, (ii) a Subsidiary that has not Guaranteed the Obligations pursuant hereto shall not Guarantee any Indebtedness of any Credit Party and (iii) the aggregate amount of Indebtedness and other obligations of Subsidiaries that are not Credit Parties that is Guaranteed by any Credit Party shall be subject to the limitation set forth in clause (c) above;

(f)(i) Investments received in satisfaction or partial satisfaction of obligations thereof from financially troubled account debtors and (ii) deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Borrower and the Restricted Subsidiaries;

(g)Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.8;

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(h)Investments by the Borrower or any Restricted Subsidiary that result solely from the receipt by the Borrower or any Restricted Subsidiary from any of its Subsidiaries of a dividend or other Restricted Junior Payment in the form of Equity Interests, evidences of Indebtedness or other Securities (but not any additions thereto made after the date of the receipt thereof);

(i)Investments in the form of Hedge Agreements permitted under Section 6.12;

(j)payroll, travel and similar advances to directors, officers, employees and consultants of the Borrower or any Restricted Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses of the Borrower or such Restricted Subsidiary for accounting purposes and that are made in the ordinary course of business;

(k)loans or advances to directors, officers, employees and consultants (or their respective estates, heirs, family members, spouses and former spouses, domestic partners and former domestic partners or beneficiaries under their respective estates) of the Borrower or any Restricted Subsidiary in connection with such Person’s purchase of Equity Interests in the Borrower; provided that the aggregate amount of Investments permitted by this clause (k) (other than any such loan or advance where no Cash or Cash Equivalent is actually advanced by the Borrower or any Restricted Subsidiary) shall not exceed $5,000,000 at any time outstanding;

(l)Permitted Acquisitions; provided that the Acquisition Consideration with respect to any such Acquisition of Subsidiaries that do not become Guarantor Subsidiaries, or any Acquisitions by Subsidiaries that are not Guarantors, shall not cause the aggregate amount of all Acquisition Consideration paid in connection with all such Permitted Acquisitions made in each case in reliance on this clause (l) to exceed $5,000,000;

(m)any other Acquisition or other Investment (other than Investments between or among the Borrower or the Restricted Subsidiaries); provided that, immediately prior to the consummation thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (i) no Event of Default shall have occurred and be continuing, (ii) the Total Net Leverage Ratio shall not be greater than the lesser of (A) 1.90:1.00 and (B) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a), in each case, determined as of the last day of the then most recently ended Test Period, and (iii) in the case of any such Acquisition or Investment consummated during the Fixed Charge Coverage Ratio Covenant Period, the Fixed Charge Coverage Ratio shall not be less than the minimum Fixed Charge Coverage Ratio permitted under the financial covenant set forth in Section 6.7(c), determined for the then most recently ended Test Period; provided further that, in the case of any Limited Conditionality Transaction, at the option of the Borrower, the conditions set forth in clauses (i), (ii) and (iii) above may be tested in accordance with Section 1.5;

(n)any other Acquisition or other Investment; provided that (i) immediately prior to the consummation thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (A) no Event of Default shall have occurred and be continuing, (B) the Total Net Leverage Ratio shall not be greater than the lesser of (x) 2.15:1.00 and (y) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a), in each case, determined as of the last day of the then most recently ended Test Period, and (C) in the case of any such Acquisition or Investment consummated during the Fixed Charge Coverage Ratio Covenant Period, the Fixed Charge Coverage Ratio shall not be less than the minimum Fixed Charge Coverage Ratio permitted under the financial covenant set forth in Section 6.7(c), determined for the then most recently ended Test Period, (ii) the Acquisition Consideration with respect to any such Acquisition or the amount of any such other Investment, in each case made in reliance on this clause (n), shall not exceed the Available Basket Amount at the time of the consummation thereof and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that all the requirements set forth in this clause (n) have been satisfied with respect to such Investment or Acquisition and including reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clauses (i) and (ii) above; provided further that, in the case of any Limited Conditionality Transaction, at the option of the Borrower, the condition set forth in clause (i) above may be tested in accordance with Section 1.5;

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(o)Investments not constituting Acquisitions; provided that the amount of any such Investment made in any Fiscal Year and outstanding in reliance on this clause (o) shall not cause the aggregate amount of all Investments made in such Fiscal Year and outstanding in reliance on this clause (o) to exceed for such Fiscal Year the sum of (i) $1,000,000 plus (ii) an amount equal to any unutilized portion of such amount in clause (i) in respect of any preceding Fiscal Year ended after the Closing Date; provided further that (A) the aggregate amount of Investments permitted by this clause (o) shall not exceed $5,000,000 at any time outstanding and (B) Investments made in reliance on this clause (o) during any Fiscal Year shall be deemed to use, first, the amount set forth in clause (i) above for such Fiscal Year and, second, any portion of the amount set forth in clause (i) above for any preceding Fiscal Year that has been carried over to such Fiscal Year pursuant to clause (ii) above;

(p)Investments (i) by the Borrower or any other Credit Party in any Restricted Subsidiary that is not a Credit Party to the extent made with Cash or Cash Equivalents necessary to fund an Acquisition permitted hereunder or (ii) consisting of the transfer or contribution to any CFC or CFC Holding Company of Equity Interests in any other CFC or CFC Holding Company or exchange of Indebtedness owing by any CFC or CFC Holding Company for Indebtedness, in a like amount, owing by another CFC or CFC Holding Company;

(q)Investments in the ordinary course of business consisting of (i) endorsements for collection or deposit and (ii) customary trade arrangements with customers;

(r)Guarantees of obligations of the Borrower or any Restricted Subsidiary in respect of leases (other than Capital Lease Obligations) entered into in the ordinary course of business;

(s)Investments held by a Person that becomes (other than as a result of a redesignation of an Unrestricted Subsidiary) a Restricted Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into the Borrower or a Restricted Subsidiary in a transaction permitted hereunder) after the Closing Date, provided that such Investments exist at the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated) and are not made in contemplation of or in connection with such Person becoming a Restricted Subsidiary (or such merger or consolidation);

(t)Investments held by any Unrestricted Subsidiary at the time such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of the term “Unrestricted Subsidiary”, provided that such Investments have not been made in contemplation of or in connection with such redesignation;

(u)the Merger;

(v)any other Acquisition or other Investment to the extent consideration therefor is made with Equity Interests, or with the Net Proceeds received (and not otherwise applied) by the Borrower within 120 consecutive days prior to the date of consummation of such Acquisition or Investment from any issuance and sale of Equity Interests, in each case, in the Borrower (other than any Disqualified Equity Interests, unless the issuance of such Disqualified Equity Interests is otherwise permitted hereunder, and other than any Equity Interests issued or sold to any Subsidiary of the Borrower);

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(w)any other Acquisition or other Investment consummated on or prior to December 31, 2018; provided that (i) immediately prior to the consummation thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (A) no Event of Default shall have occurred and be continuing and (B) the Total Leverage Ratio shall not be greater than 3.65:1.00, determined as of the last day of the then most recently ended Test Period, (ii) the Acquisition Consideration with respect to any such Acquisition or the amount of any such other Investment shall not cause the aggregate amount of all Acquisition Consideration paid in connection with all Acquisitions made, together with the aggregate amount of all Investments outstanding, in each case in reliance on this clause (w), to exceed $75,000,000, (iii) no Acquisition of, or Investment in, Subsidiaries that do not become Guarantor Subsidiaries, and no acquisition of assets by any Restricted Subsidiary that is not a Guarantor Subsidiary, may be made in reliance on this clause (w), (iv) all actions required to be taken with respect to any Person or assets acquired pursuant to such Acquisition or other Investment, as the case may be, in order to satisfy the requirements set forth in clauses (a), (b), (c) and (d) of the definition of the term “Collateral and Guarantee Requirement” (subject to the discretion of the Collateral Agent set forth in such definition) shall have been taken (or arrangements for the taking of such actions satisfactory to the Collateral Agent shall have been made) (it being understood that all other requirements set forth in such definition that are applicable to such Acquisition or Investment shall be required to be satisfied in accordance with (and within the time periods provided in) Sections 5.10 and 5.11) and (v) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that all the requirements set forth in this clause (w) have been satisfied with respect to such Acquisition or Investment and including reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clause (i) above; provided further that, in the case of any Limited Conditionality Transaction, at the option of the Borrower, the condition set forth in clause (i) above may be tested in accordance with Section 1.5; and

(x)Investments made by the Borrower on the Closing Date in the Vector Subordinated Note.

Notwithstanding anything to the contrary in this Section 6.6, neither the Borrower nor any Restricted Subsidiary shall make any Investment that results in or facilitates in any manner any Restricted Junior Payment not permitted under Section 6.4.

6.7.Financial Covenants. Total Net Leverage Ratio. The Borrower will not permit the Total Net Leverage Ratio, as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending June 30, 2018, to exceed the correlative ratio set forth below:

Fiscal Quarter Ending	Total Net Leverage Ratio
June 30, 2018 and September 30, 2018	5.00:1.00
December 31, 2018	4.50:1.00
March 31, 2019 through December 31, 2019	4.00:1.00
March 31, 2020 through December 31, 2020	3.50:1.00
March 31, 2021 and thereafter	3.00:1.00

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(a)Capital Expenditures. The Borrower will not permit Consolidated Capital Expenditures in any Fiscal Year to exceed in the aggregate an amount equal to the greater of (i) $55,000,000 (such amount for any Fiscal Year being referred to as the “Base CapEx Amount” for such Fiscal Year) and (ii) if the Borrower or any Restricted Subsidiary shall have consummated any Material Acquisition (excluding the Merger) after the Closing Date, the Material Acquisition CapEx Amount for such Fiscal Year (determined as of the date of consummation of the Material Acquisition most recently consummated after the Closing Date and on or prior to the last day of such Fiscal Year); provided that (A) commencing with the Fiscal Year ending on December 31, 2018, the portion of the Base CapEx Amount for any Fiscal Year that has not been expended to make Consolidated Capital Expenditures during such Fiscal Year (but not in excess of 50% of the Base CapEx Amount for such Fiscal Year) may be carried over for expenditure in the immediately following Fiscal Year and (B) Consolidated Capital Expenditures made during any Fiscal Year shall be deemed to use, first, the Base CapEx Amount for such Fiscal Year and, second, any portion of the Base CapEx Amount for the immediately preceding Fiscal Year that has been carried over to such Fiscal Year pursuant to clause (A) above.

For purposes of the foregoing:

“Material Acquisition CapEx Amount” means, as of any date of determination for any Fiscal Year, an amount equal to 10% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for the most recent period of 12 consecutive months prior to the consummation of the Material Acquisition (other than the Merger) most recently consummated for which financial statements are available as of such date of determination, determined on a Pro Forma Basis to give effect to such Material Acquisition (and each other Material Acquisition that shall have been consummated during such period).

(b)Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed Charge Coverage Ratio, as of the last day of any period of four consecutive Fiscal Quarters, beginning with the period of four consecutive Fiscal Quarters ending June 30, 2018, to be less than the correlative ratio set forth below:

Four Fiscal Quarter Period Ending	Fixed Charge Coverage Ratio
June 30, 2018 through December 31, 2020	1.00:1.00
March 31, 2021 and thereafter	1.25:1.00

; provided that the provisions of this Section 6.7(c), and the obligation of the Borrower to comply with the Fixed Charge Coverage Ratio Covenant, shall automatically cease to be in effect upon the termination of the Fixed Charge Coverage Ratio Covenant Period.

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6.8.Fundamental Changes; Disposition of Assets; Equity Interests of Subsidiaries. Neither the Borrower nor any Restricted Subsidiary will merge or consolidate with or into any other Person, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), and neither the Borrower nor any Restricted Subsidiary shall Dispose (whether in one transaction or in a series of transactions) of assets that represent all or substantially all of the assets of the Borrower and the Restricted Subsidiaries, on a consolidated basis, except that:

(i)any Person may merge into the Borrower in a transaction in which the Borrower is the surviving Person;

(ii)any Person (other than the Borrower) may merge or consolidate with or into any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary (and if any party to such merger or consolidation is a Guarantor Subsidiary, the surviving Person is a Guarantor Subsidiary);

(iii)any Restricted Subsidiary may merge or consolidate with or into any Person (other than the Borrower) in a transaction permitted under Section 6.8(b) in which, after giving effect to such transaction, the surviving Person is not a Subsidiary, except to the extent such transaction constitutes an Investment in a Restricted Subsidiary that is not a Credit Party permitted by Section 6.6;

(iv)any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not disadvantageous to the Lenders in any material respect;

(v)the Borrower or any other Credit Party may Dispose of all or substantially all of its assets to the Borrower or to another Credit Party; and

(vi)the Merger may be consummated;

provided that, in the case of clauses (i), (ii) and (iii) above, any such merger or consolidation shall not be permitted unless it, and each Investment resulting therefrom, is also permitted under Section 6.6.

(c)Neither the Borrower nor any Restricted Subsidiary will Dispose of, or exclusively license, any asset, including any Equity Interest, owned by it, except:

(i)Dispositions of (A) inventory and obsolete, worn out or surplus equipment in the ordinary course of business, (B) leasehold improvements to landlords pursuant to the terms of leases in respect of any Leasehold Property and (C) Cash and Cash Equivalents;

(ii)Dispositions, and exclusive licenses, to any Credit Party;

(iii)Investments made in compliance with Sections 6.6 and 6.10;

(iv)Dispositions of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business consistent with past practice and not as part of any accounts receivables financing transaction;

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(v)Dispositions of Equity Interests in, or Indebtedness or other Securities of, any Unrestricted Subsidiary, provided that all Dispositions made in reliance on this clause (v) shall be made for fair value (as determined reasonably and in good faith by the Borrower);

(vi)leases and licenses entered into by the Borrower or any Restricted Subsidiary as a licensor or lessor in the ordinary course of business, provided that such leases or license do not adversely affect in any material respect the value of the properties subject thereto (including the value thereof as Collateral) or interfere in any material respect with the ordinary conduct of business of the Borrower or any Restricted Subsidiary;

(vii)Dispositions of assets in any Insurance/Condemnation Event;

(viii)to the extent constituting Dispositions, Restricted Junior Payments made in compliance with Section 6.4;

(ix)other Dispositions of assets that are not permitted by any other clause of this Section 6.8(b); provided that (A) all Dispositions made in reliance on this clause (ix) shall be made for fair value and at least 75% Cash consideration, (B) the Net Proceeds thereof shall be applied as required by Section 2.13 and (C) no Default or Event of Default shall have occurred and be continuing at the time such Disposition is made or would result therefrom; and

(x)the Iqmax Disposition.

(d)Notwithstanding anything to the contrary set forth herein, (i) neither the Borrower nor any Restricted Subsidiary will sell, transfer or otherwise dispose of any Equity Interests in any Restricted Subsidiary unless (A) such Equity Interests constitute all the Equity Interests in such Restricted Subsidiary held by the Borrower and the Restricted Subsidiaries and (B) immediately after giving effect to such transaction, the Borrower and the Restricted Subsidiaries shall otherwise be in compliance with Section 6.6 and (ii) no Restricted Subsidiary will issue any additional Equity Interests in such Restricted Subsidiary other than (A) to the Borrower or any Restricted Subsidiary in compliance with Section 6.4, (B) directors’ qualifying shares and (C) other nominal amounts of Equity Interests that are required to be held by other Persons under applicable law.

(e)The Borrower will not permit any Person other than the Borrower, or one or more of its Restricted Subsidiaries that is not a CFC or CFC Holding Company, to own any Equity Interests in any Restricted Subsidiary that is a Domestic Subsidiary (other than any Domestic Subsidiary that itself is a CFC Holding Company).

6.9.Sales and Leasebacks. Neither the Borrower nor any Restricted Subsidiary will enter into any Sale/Leaseback Transaction unless (a) any Capital Lease Obligations arising in connection therewith are permitted under Section 6.1(n) and (b) any Liens arising in connection therewith (including Liens deemed to arise in connection with any such Capital Lease Obligations) are permitted under Section 6.2(o).

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6.10.Transactions with Affiliates. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Borrower or such Restricted Subsidiary on terms that are less favorable to the Borrower or such Restricted Subsidiary, as the case may be, than those that would prevail in an arm’s-length transaction with unrelated third parties; provided that the foregoing restriction shall not apply to (a) transactions between or among the Credit Parties not involving any other Affiliate, (b) any Restricted Junior Payment permitted under Section 6.4, (c) issuances by the Borrower of Equity Interests (other than Disqualified Equity Interests) and receipt by the Borrower of capital contributions, (d) compensation and indemnification arrangements for directors, officers, employees and consultants of the Borrower or any Restricted Subsidiary entered into in the ordinary course of business (including, for the avoidance of doubt, grants of stock options, stock purchase rights, stock exchange rights or other equity-based awards to directors, employees and officers and any “key-man” insurance policy maintained by a Credit Party), (e) loans and advances permitted under Section 6.6(j) or 6.6(k), (f) the Transactions and the payment of fees and expenses in connection with the consummation of the Transactions, (g) the Acquired Company Indemnity Letter Agreement and (h) the transactions set forth on Schedule 6.10 (without giving effect to any amendment, restatement, supplement or other modification thereto after the Closing Date that could reasonably be expected to be adverse in any material respect to the Lenders).

6.11.Conduct of Business. Neither the Borrower nor any Restricted Subsidiary will engage in any business other than the businesses engaged in by the Borrower and the Restricted Subsidiaries on the Closing Date (for the avoidance of doubt, after giving effect to the distribution of the Consumer/SMB Business as contemplated by Section 3.1(m) and the consummation of the Fusion Global Arrangement as contemplated by Section 3.1(n)), provided that the Borrower and the Restricted Subsidiaries shall be permitted to engage in any business that is similar, complementary or related to, or a reasonable extension of, the business engaged in by the Borrower and the Restricted Subsidiaries on the Closing Date (giving effect to the foregoing parenthetical).

6.12.Hedge Agreements. Neither the Borrower nor any Restricted Subsidiary will enter into any Hedge Agreement, except (a) Hedge Agreements entered into to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary has actual exposure (other than in respect of Equity Interests or Indebtedness of the Borrower or any Restricted Subsidiary) and (b) Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Restricted Subsidiary.

6.13.Amendments or Waivers of Organizational Documents and Certain Agreements. Neither the Borrower nor any Restricted Subsidiary will agree to any amendment, restatement, supplement or other modification to, or waiver of any of its rights under, (a) its Organizational Document, (b) any certificate of designation or other agreement or instrument governing or evidencing the Closing Date Preferred Stock or (c) any agreement or instrument governing or evidencing Junior Indebtedness, in each case, to the extent such amendment, modification or waiver could reasonably be expected to be adverse in any material respect to the Lenders, it being understood that any Junior Indebtedness may be modified to permit any extension or refinancing thereof to the extent otherwise permitted by this Agreement.

6.14.Fiscal Year. Neither the Borrower nor any Restricted Subsidiary will change its Fiscal Year to end on a date other than December 31.

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SECTION 7.GUARANTEE

7.1.Guarantee of the Obligations. The Guarantors jointly and severally hereby irrevocably and unconditionally guarantee the due and punctual payment in full of all Obligations when and as the same shall become due. In furtherance of the foregoing, the Guarantors hereby jointly and severally agree that upon the failure of the Borrower or any other Person to pay any of the Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or any similar provision of, or stay imposed under, any other Debtor Relief Law), the Guarantors will upon demand pay, or cause to be paid, in Cash, to the Administrative Agent, for the ratable benefit of Secured Parties, an amount equal to the sum of all Obligations then due as aforesaid.

7.2.Indemnity by the Borrower; Contribution by the Guarantors. In addition to all such rights of indemnity and subrogation as any Guarantor Subsidiary may have under applicable law (but subject to Section 7.5), the Borrower agrees that (i) in the event a payment shall be made by any Guarantor Subsidiary under its Obligations Guarantee, the Borrower shall indemnify such Guarantor Subsidiary for the full amount of such payment and such Guarantor Subsidiary shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment and (ii) in the event any Collateral provided by any Guarantor Subsidiary shall be sold pursuant to any Collateral Document to satisfy in whole or in part any Obligations, the Borrower shall indemnify such Guarantor Subsidiary in an amount equal to the fair market value of the assets so sold.

(a)The Guarantor Subsidiaries desire to allocate among themselves, in a fair and equitable manner, their obligations arising under this Section 7 and under the Collateral Documents. Accordingly, in the event any payment or distribution is made on any date by a Guarantor Subsidiary under its Obligations Guarantee such that its Aggregate Payments exceed its Fair Share as of such date (such Guarantor Subsidiary being referred to as a “Claiming Guarantor”) and the Borrower does not indemnify such Claiming Guarantor in accordance with Section 7.2(a), such Claiming Guarantor shall be entitled to a contribution from each other Guarantor Subsidiary in an amount sufficient to cause each Guarantor Subsidiary’s Aggregate Payments to equal its Fair Share as of such date (and for all purposes of this Section 7.2(b), any sale or other dispositions of Collateral of a Guarantor Subsidiary pursuant to an exercise of remedies under any Collateral Document shall be deemed to be a payment by such Guarantor Subsidiary under its Obligations Guarantee in an amount equal to the fair market value of such Collateral, less any amount of the proceeds of such sale or other dispositions returned to such Guarantor Subsidiary). “Fair Share” means, with respect to any Guarantor Subsidiary as of any date of determination, an amount equal to (i) the ratio of (A) the Fair Share Contribution Amount with respect to such Guarantor Subsidiary to (B) the aggregate of the Fair Share Contribution Amounts with respect to all Guarantor Subsidiaries multiplied by (ii) the aggregate amount paid or distributed on or before such date by all Claiming Guarantors under their Obligations Guarantees. “Fair Share Contribution Amount” means, with respect to any Guarantor Subsidiary as of any date of determination, the maximum aggregate amount of the obligations of such Guarantor Subsidiary under its Obligations Guarantee that would not render its obligations thereunder subject to avoidance as a preference, fraudulent transfer or conveyance or transfer at undervalue under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state or foreign law; provided that solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Guarantor Subsidiary for purposes of this Section 7.2(b), any assets or liabilities of such Guarantor Subsidiary arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution under this Section 7 shall not be considered as assets or liabilities of such Guarantor Subsidiary. “Aggregate Payments” means, with respect to any Guarantor Subsidiary as of any date of determination, an amount equal to (A) the aggregate amount of all payments and distributions made on or before such date by such Guarantor Subsidiary in respect of its Obligations Guarantee (including any payments and distributions made under this Section 7.2(b)), minus (B) the aggregate amount of all payments received on or before such date by such Guarantor Subsidiary from the Borrower pursuant to Section 7.2(a) or the other Guarantor Subsidiaries pursuant to this Section 7.2(b). The amounts payable under this Section 7.2(b) shall be determined as of the date on which the related payment or distribution is made by the applicable Claiming Guarantor. The allocation among Guarantor Subsidiaries of their obligations as set forth in this Section 7.2(b) shall not be construed in any way to limit the liability of any Guarantor Subsidiary hereunder or under any Collateral Document.

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7.3.Liability of Guarantors Absolute. Each Guarantor agrees that its obligations under this Section 7 are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance that constitutes a legal or equitable discharge of a guarantor or surety other than payment in full in Cash of the Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:

(a)its Obligations Guarantee is a guarantee of payment when due and not of collectability and is a primary obligation of such Guarantor and not merely a contract of surety;

(b)the Administrative Agent may enforce its Obligations Guarantee upon the occurrence of an Event of Default notwithstanding the existence of any dispute between the Borrower and any Secured Party with respect to the existence of such Event of Default;

(c)the obligations of each Guarantor hereunder are independent of the obligations of the Borrower or of any other guarantor (including any other Guarantor) of the Obligations, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower, any such other Guarantor or any other Person and whether or not the Borrower, any such other Guarantor or any other Person is joined in any such action or actions;

(d)payment by any Guarantor of a portion, but not all, of the Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Obligations that has not been paid (and, without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the 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 Obligations);

(e)any Secured Party may, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of the Obligations Guarantees or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability under this Section 7, at any time and from time to time (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the 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 guarantees of the Obligations and take and hold security for the payment of the Obligations, (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Obligations, any other guarantees of the Obligations or any other obligation of any Person (including any other Guarantor) with respect to the Obligations, (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect of the Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith or with the applicable Hedge Agreement or Specified Cash Management Services Agreement and any applicable security agreement, including foreclosure on any such security or exercise of a power of sale pursuant to one or more judicial or nonjudicial 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 any other Credit Party or any security for the Obligations, and (vi) exercise any other rights available to it under the Credit Documents, any Hedge Agreements or any Specified Cash Management Services Agreements; and

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(f)the Obligations Guarantees and the obligations of the Guarantors thereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason, including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them (in any case other than payment in full in Cash of the Obligations or release of a Guarantor Subsidiary’s Obligations Guarantee in accordance with Section 9.8(d)(ii)): (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 Credit Documents, any Hedge Agreements or any Specified Cash Management Services Agreements, at law, in equity or otherwise) with respect to the Obligations or any agreement relating thereto, or with respect to any other guarantee of or security for the payment of the 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) of any Credit Document, any Hedge Agreement or any Specified Cash Management Services Agreement or any agreement or instrument executed pursuant thereto, or of any other guarantee or security for the Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document, such Hedge Agreement or such Specified Cash Management Services Agreement or any agreement relating to such other guarantee or security, (iii) the 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 Credit Documents, any Hedge Agreement or any Specified Cash Management Services Agreement under which any Obligations arose or from the proceeds of any security for the Obligations, except to the extent such security also serves as collateral for Indebtedness other than the Obligations) to the payment of obligations other than the Obligations, even though any Secured Party could have elected to apply such payment to all or any part of the Obligations, (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of the Borrower or any Subsidiary and to any corresponding restructuring of the Obligations, (vi) any failure to perfect or continue perfection of a security interest in any collateral that secures any of the Obligations, (vii) any defenses, set-offs or counterclaims that the Borrower or any other Person may allege or assert against any Secured Party in respect of the Obligations, including failure of consideration, breach of warranty, 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, that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Obligations.

7.4.Waivers by the Guarantors. Each Guarantor hereby waives, for the benefit of the Secured Parties: (a) any right to require any Secured Party, as a condition of payment or performance by such Guarantor in respect of its obligations under this Section 7, (i) to proceed against the Borrower, any other guarantor (including any other Guarantor) of the Obligations or any other Person, (ii) to proceed against or exhaust any security held from the Borrower, any such other guarantor or any other Person, (iii) to proceed against or have resort to any balance of any deposit account or credit on the books of any Secured Party in favor of any Credit Party or any other Person, or (iv) to pursue any other remedy in the power of any Secured Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Borrower or any other Guarantor, including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Borrower or any other Guarantor from any cause other than payment in full in Cash of the Obligations; (c) any defense based upon any law that provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Secured Party’s errors or omissions in the administration of the Obligations; (e) (1) any principles or provisions of any law that are or might be in conflict with the terms hereof or any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default under the Credit Documents, any Hedge Agreement or any Specified Cash Management Services Agreement or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to the Borrower or any other Guarantor and notices of any of the matters referred to in Section 7.3 and any right to consent to any thereof; and (g) 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.

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7.5.Guarantors’ Rights of Subrogation, Contribution, Etc. Until the Obligations shall have been indefeasibly paid in full in Cash, the Commitments shall have terminated and all Letters of Credit shall have expired with no pending drawings or been cancelled, each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against the Borrower or any other Guarantor or any of its assets in connection with its Obligations Guarantee or the performance by such Guarantor of its obligations thereunder, 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 indemnity that such Guarantor now has or may hereafter have against the Borrower with respect to the Obligations, including any such right of indemnity under Section 7.2(a), (b) any right to enforce, or to participate in, any claim, right or remedy that any Secured Party now has or may hereafter have against the Borrower, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by or for the benefit of any Secured Party. In addition, until the Obligations shall have been indefeasibly paid in full in Cash, the Commitments shall have terminated and all Letters of Credit shall have expired with no pending drawings or been cancelled, each Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any other guarantor (including any other Guarantor) of the Obligations, including any such right of contribution under Section 7.2(b). Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnity 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 indemnity such Guarantor may have against the 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 Secured Party may have against the Borrower or any other Guarantor, to all right, title and interest any Secured Party may have in any such collateral or security, and to any right any Secured Party may have against such other Guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnity or contribution rights at any time when all Obligations shall not have been indefeasibly paid in full in Cash, all Commitments not having terminated and all Letters of Credit not having expired or been cancelled, such amount shall be held in trust for the Administrative Agent, for the benefit of the Secured Parties, and shall forthwith be paid over to the Administrative Agent, for the benefit of Secured Parties, to be credited and applied against the Obligations, whether matured or unmatured, in accordance with the terms hereof.

7.6.Continuing Guarantee. The Obligations Guarantee is a continuing guarantee and shall remain in effect (except, in the case of a Guarantor Subsidiary, if such Guarantor Subsidiary’s Obligations Guarantee shall have been released in accordance with Section 9.8(d)(ii)) until all of the Obligations (excluding contingent obligations as to which no claim has been made and the Specified Hedge Obligations and Specified Cash Management Services Obligations) shall have been paid in full in Cash, the Commitments shall have terminated and all Letters of Credit shall have expired with no pending drawings or been cancelled. Each Guarantor hereby irrevocably waives any right to revoke its Obligations Guarantee as to future transactions giving rise to any Obligations.

7.7.Authority of the Guarantors or the Borrower. It is not necessary for any Secured Party to inquire into the capacity or powers of any Guarantor or the Borrower or any Related Party acting or purporting to act on behalf of any such Person.

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7.8.Financial Condition of the Credit Parties. Any Credit Extension may be made or continued from time to time, and any Obligations arising under Hedge Agreements or Specified Cash Management Services Agreements may be incurred from time to time, in each case without notice to or authorization from any Guarantor regardless of the financial or other condition of the Borrower or any Subsidiary at the time of any such making or continuation or at the time such other Obligations are incurred, as the case may be. No Secured Party shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of the Borrower or any Subsidiary. Each Guarantor has adequate means to obtain information from the Borrower and the Subsidiaries on a continuing basis concerning the financial condition of the Borrower and the Subsidiaries and their ability to perform the Obligations, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of the Borrower and the Subsidiaries and of all circumstances bearing upon the risk of nonpayment of the Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Secured Party to disclose any matter, fact or thing relating to the business, results of operations, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or any Subsidiary now or hereafter known by any Secured Party.

7.9.Bankruptcy, Etc. The obligations of the 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, reorganization, liquidation, arrangement or similar proceeding of the Borrower or any other Guarantor or by any defense that the 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.

(a)Each Guarantor acknowledges and agrees that any interest on any portion of the Obligations that accrues after the commencement of any case or proceeding referred to in Section 7.9(a) (or, if interest on any portion of the 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 Obligations if such case or proceeding had not been commenced) shall be included in the Obligations because it is the intention of the Guarantors and the Secured Parties that the Obligations that are guaranteed by the Guarantors pursuant to this Section 7 should be determined without regard to any rule of law or order that may relieve the Borrower or any Subsidiary of any portion of any Obligations. The Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay to the Administrative Agent, for the benefit of the Secured Parties, or allow the claim of any Secured Party or of the Administrative Agent, for the benefit of the Secured Parties, in respect of, any such interest accruing after the date on which such case or proceeding is commenced.

In the event that all or any portion of the Obligations are paid by the Borrower or any Subsidiary, the obligations of the Guarantors under this Section 7 shall continue and remain in full force and effect or be reinstated, as the case may be (notwithstanding any prior release of any Obligations Guarantee), in the event that all or any part of such payment(s) are rescinded or recovered directly or indirectly from any Secured Party as a preference, fraudulent transfer or conveyance or transfer at undervalue or otherwise, and any such payments that are so rescinded or recovered shall constitute Obligations for all purposes hereunder.

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7.10.Keepwell. 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 any other Guarantor to honor all of such Guarantor’s obligations under this Obligations Guarantee or any other Credit Document in respect of Swap Obligations, provided that each Qualified ECP Guarantor shall only be liable under this Section 7.10 for the maximum amount of such liability that can be incurred without rendering its obligations under this Section 7.10, or otherwise under this Obligations Guarantee, as it relates to such Guarantor, voidable under applicable law relating to preferences, fraudulent conveyance or fraudulent transfer, transfer at undervalue, and not for any greater amount. The obligations of each Qualified ECP Guarantor under this Section 7.10 shall remain in full force and effect until the Obligations shall have been indefeasibly paid in full, the Commitments shall have terminated and all Letters of Credit shall have expired with no pending drawings or been cancelled. Each Qualified ECP Guarantor intends that this Section 7.10 constitute, and this Section 7.10 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

SECTION 8.EVENTS OF DEFAULT

8.1.Events of Default. If any one or more of the following conditions or events shall occur:

(a)Failure to Make Payments When Due. Failure by the Borrower (i) to pay, when due, any principal of any Loan, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise, (ii) to pay, when due, any amount payable to the applicable Issuing Bank in reimbursement of any drawing under any Letter of Credit or to deposit, when due, any Cash Collateral required pursuant to Section 2.13(f) or 2.21 or (iii) to pay, within five Business Days after the date due, any interest on any Loan or any fee or any other amount due hereunder;

(b)Default in Other Agreements. (i) Failure by the Borrower or any Restricted Subsidiary, after the expiration of any applicable grace period, to make any payment that shall have become due and payable (whether of principal, interest or otherwise) in respect of any Material Indebtedness, or (ii) any condition or event shall occur that results in any Material Indebtedness becoming due, or being required to be prepaid, repurchased, redeemed or defeased, prior to its stated maturity or, in the case of any Hedge Agreement, being terminated, or that enables or permits the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf, or, in the case of any Hedge Agreement, the applicable counterparty, with or without the giving of notice but only after the expiration of any applicable grace period, to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity or, in the case of any Hedge Agreement, to cause the termination thereof; provided that this clause (b) shall not apply to (A) any secured Indebtedness becoming due as a result of the voluntary sale or transfer of the assets securing such Indebtedness; (B) any Indebtedness becoming due as a result of a voluntary refinancing thereof permitted under Section 6.1; or (C) any Indebtedness becoming due as a result of a voluntary (or, to the extent permitted by Section 2.14(c) or, in the case of Permitted Pari Passu Secured Indebtedness, Sections 2.13(a), 2.13(b) and 2.13(e), mandatory) prepayment, repurchase, redemption or defeasance thereof permitted hereunder;

(c)Breach of Certain Covenants. Failure of any Credit Party to perform or comply with any term or condition contained in Section 2.5, 5.1(e)(i), 5.2 (with respect to the Borrower only), 5.14, 5.16 or 6, provided that any failure to comply with Section 6.7(c) will not constitute a Default or an Event of Default with respect to the Tranche B Term Loans unless and until the Administrative Agent at the request of (or with the consent of) the Requisite Tranche A/Revolving Lenders shall have declared the Tranche A Term Loans and/or the Revolving Loans to be due and payable and/or the Revolving Commitments to be terminated;

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(d)Breach of Representations, Etc. Any representation, warranty, certification or other statement made or deemed made by or on behalf of any Credit Party in any Credit Document or in any report, certificate or statement at any time provided in writing by or on behalf of any Credit Party pursuant to or in connection with any Credit Document or the Transactions shall be incorrect in any material respect as of the date made or deemed made (or if any representation or warranty is expressly stated to have been made as of a specific date incorrect in any material respect as of such specific date);

(e)Other Defaults under Credit Documents. Failure of any Credit Party to perform or comply with any term or condition contained herein or in any other Credit Document, other than any such term or condition referred to in any other clause of this Section 8.1, and, except as may be expressly set forth in any such other Credit Document, such failure shall not have been remedied within 30 days after receipt by the Borrower of notice from the Administrative Agent or the Requisite Lenders of such failure;

(f)Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of the Borrower or any Restricted Subsidiary that is a Material Subsidiary in an involuntary case under any Debtor Relief Laws, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal, state or foreign law; or (ii) an involuntary case shall be commenced against the Borrower or any Restricted Subsidiary that is a Material Subsidiary under any Debtor Relief Laws; or a decree or order of a court having jurisdiction in the premises for the involuntary appointment of an interim receiver, receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower or any Restricted Subsidiary that is a Material Subsidiary, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower or any Restricted Subsidiary that is a Material Subsidiary, or over all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against all or a substantial part of the property of the Borrower or any Restricted Subsidiary that is a Material Subsidiary, and any such event described in this clause (ii) shall continue for 60 days without having been dismissed, bonded or discharged;

(g)Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or any Restricted Subsidiary that is a Material Subsidiary shall have an order for relief entered with respect to it or shall commence a voluntary case under any Debtor Relief Laws, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Laws, or shall consent to the appointment of or taking possession by an interim receiver, receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower or any Restricted Subsidiary that is a Material Subsidiary, or over all or a substantial part of its property (other than any liquidation permitted by Section 6.8(a)(iv)); or the Borrower or any other Restricted Subsidiary that is a Material Subsidiary shall make any general assignment for the benefit of creditors; or the Borrower or any Restricted Subsidiary that is a Material Subsidiary shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of the Borrower or any Restricted Subsidiary that is a Material Subsidiary (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to in this Section 8.1(g) or in Section 8.1(f);

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(h)Judgments and Attachments. One or more judgments for the payment of money in an aggregate amount of $10,000,000 or more (other than any such judgment covered by insurance (other than under a self-insurance program) provided by a financially sound insurer to the extent a claim therefor has been made in writing and liability therefor has not been denied in writing by the insurer), shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;

(i)Employee Benefit Plans. The occurrence of one or more ERISA Events or Foreign Plan Events that have had, or could reasonably be expected to result in liability which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(j)Change of Control. A Change of Control shall occur;

(k)Obligations Guarantees, Collateral Documents and other Credit Documents. Any Obligations Guarantee (other than any Obligations Guarantee by any Restricted Subsidiary that is not a Material Subsidiary) purported to be created under the Credit Documents for any reason shall cease to be, or shall be asserted by any Credit Party not to be, in full force and effect (other than in accordance with its terms), or shall be declared to be null and void; any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by any Credit Party not to be, a valid and perfected Lien on any material Collateral, with the priority required by the applicable Collateral Document, except as a result of (i) a Disposition of the applicable Collateral in a transaction permitted under the Credit Documents, (ii) the release thereof as provided in Section 9.8(d) or (iii) the Collateral Agent’s failure to maintain possession of any stock certificate, promissory note or other instrument delivered to it under the Collateral Documents; or this Agreement or any Collateral Document shall cease to be in full force and effect (other than in accordance with its terms), or shall be declared null and void, or any Credit Party shall contest the validity or enforceability of any Credit Document or deny that it has any further liability, including with respect to future advances by Lenders, under any Credit Document to which it is a party (other than in accordance with its terms);

(l)Intercreditor Agreement. (i) Any Credit Party shall knowingly contest, or knowingly support another Person in any action that seeks to contest, the validity or effectiveness of the Intercreditor Agreement or any other Permitted Intercreditor Agreement (other than pursuant to the terms hereof or thereof) or (ii) the Intercreditor Agreement, or any other Permitted Intercreditor Agreement entered into after the date hereof, shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any party thereto (other than pursuant to the terms hereof or thereof); or

(m)Certain Subordination Agreements. (i) Any Credit Party or any holder of Permitted Subordinated Indebtedness shall knowingly contest, or knowingly support another Person in any action that seeks to contest, the validity or effectiveness of the subordination of any Permitted Subordinated Indebtedness to the Obligations on the terms required under this Agreement or (ii) any agreement (including any subordination provisions set forth in the Permitted Subordinated Indebtedness Documents) providing for subordination of any Permitted Subordinated Indebtedness to the Obligations shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any Credit Party or any holder of such Permitted Subordinated Indebtedness;

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THEN, (i) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g), automatically, and (ii) upon (A) the occurrence and during the continuance of any other Event of Default and (B) notice to the Borrower by the Administrative Agent provided at the request of (or with the consent of) the Requisite Lenders (or, with respect to the Tranche A Term Loans, the Revolving Exposure and/or the Revolving Commitments only, at the request of (or with the consent of) the Requisite Tranche A/Revolving Lenders, in the case of an Event of Default arising from any failure to comply with Section 6.7(c)), which notice may be given with respect to all or any of the following actions, at the same or different times, (1) the Commitments and the obligation of each Issuing Bank to issue any Letter of Credit shall immediately terminate, (2) the unpaid principal amount of and accrued interest on the Loans and all other Obligations (other than the Specified Hedge Obligations and the Specified Cash Management Services Obligations) shall immediately become due and payable, and the Borrower shall immediately be required to deposit Cash Collateral in respect of Letter of Credit Usage in accordance with Section 2.3(h), in each case without presentment, demand, protest or other requirement of any kind, all of which are hereby expressly waived by each Credit Party, and (3) the Administrative Agent may cause the Collateral Agent to enforce any and all Liens created pursuant to the Collateral Documents.

SECTION 9.AGENTS

9.1.Appointment of Agents. Wilmington Trust is hereby appointed Administrative Agent and Collateral Agent hereunder and under the other Credit Documents, and each Lender and Issuing Bank hereby authorizes Wilmington Trust to act as the Administrative Agent and the Collateral Agent in accordance with the terms hereof and of the other Credit Documents. Each such Agent hereby agrees to act in its capacity as such upon the express conditions contained herein and in the other Credit Documents, as applicable. Other than Sections 9.7 and 9.8(d), the provisions of this Section 9 are solely for the benefit of the Agents, the Lenders and the Issuing Banks, and no Credit Party shall have any rights as a third party beneficiary of any such provisions. In performing its functions and duties hereunder, no Agent assumes, and shall not be deemed to have assumed, any obligation towards or relationship of agency or trust with or for the Borrower or any Subsidiary.

9.2.Powers and Duties. Each Lender and Issuing Bank irrevocably authorizes each Agent to take such actions and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such actions, powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly specified herein and in the other Credit Documents. No Agent shall have, by reason hereof or of any of the other Credit Documents, a fiduciary relationship in respect of any Lender, any Issuing Bank or any other Person (regardless of whether or not a Default or an Event of Default has occurred), it being understood and agreed that the use of the term “agent” (or any other similar term) herein or in any other Credit Documents with reference to any Agent is not intended to connote any fiduciary or other implied obligations arising under any agency doctrine of any applicable law, and that such term is used as a matter of market custom; and nothing herein or in any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose upon any Agent any obligations in respect hereof or of any of the other Credit Documents except as expressly set forth herein or therein. Without limiting the generality of the foregoing, no Agent shall, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, or be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity.

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9.3.General Immunity.

(a)No Responsibility for Certain Matters. No Agent shall be responsible to any Lender or Issuing Bank for (i) the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or of any other Credit Document; (ii) the creation, perfection, maintenance, preservation, continuation or priority of any Lien or security interest created, purported to be created or required under any Credit Document; (iii) the value or the sufficiency of any Collateral; (iv) the satisfaction of any condition set forth in Section 3 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent; (v) the failure of any Credit Party, Lender, Issuing Bank or other Agent to perform its obligations hereunder or under any other Credit Document; or (vi) any representations, warranties, recitals or statements made herein or therein or in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to the Lenders or the Issuing Banks or by or on behalf of any Credit Party to any Agent, any Lender or any Issuing Bank in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or affairs of any Credit Party or any other Person liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Default or Event of Default (nor shall any Agent be deemed to have knowledge of the existence or possible existence of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower or any Lender) or to make any disclosures with respect to the foregoing. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from, or be responsible for any loss, cost or expense suffered by the Borrower, any Subsidiary, any Lender or any Issuing Bank as a result of, confirmations of the amount of outstanding Loans, the Letter of Credit Usage or the component amounts thereof, the calculation of the Yield Maintenance Amount or the Weighted Average Yield with respect to any Indebtedness, any exchange rate determination or currency conversion, the determination of whether any Class of Term Loans constitutes Incremental Tranche A Term Loans or TLA Term Loans, the terms and conditions of any Permitted Intercreditor Agreement or any Permitted Subordinated Indebtedness Document or of any subordination terms applicable to any Permitted Subordinated Indebtedness or the calculation of the outstanding amount of Specified Hedge Obligations or Specified Cash Management Services Obligations, in each case except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

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(b)Exculpatory Provisions. None of any Agent or any of its Related Parties shall be liable to the Lenders or the Issuing Banks for any action taken or omitted by such Agent under or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each Agent shall be entitled to refrain from the taking of any action (including the failure to take an action) in connection herewith or with any of the other Credit Documents or from the exercise of any power, discretion or authority (including the making of any requests, determinations, judgments, calculations or the expression of any satisfaction or approval) vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from either the Requisite Tranche A/Revolving Lenders or the Requisite Lenders (or such other Lenders as may be required, or as such Agent shall believe in good faith to be required, to give such instructions under Section 10.5) and upon receipt of such instructions from the Requisite Tranche A/Revolving Lenders or the Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions; provided that such Agent shall not be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Credit Document or applicable law, including any action that may be in violation of the automatic stay under any Debtor Relief Laws or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any telephonic notice, electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise provided by the proper Person (whether or not such Person in fact meets the requirements set forth in the Credit Documents for being the signatory, sender or provider thereof) and on opinions and judgments of attorneys (who may be attorneys for the Borrower and the Subsidiaries), accountants, insurance consultants, architects, engineers and other experts or professional advisors selected by it, and such Agent shall not be liable for any action it takes or omits to take in good faith in reliance on any of the foregoing documents; and (ii) no Lender or Issuing Bank shall have any right of action whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of the Requisite Tranche A/Revolving Lenders or the Requisite Lenders (or such other Lenders as may be required, or as such Agent shall believe in good faith to be required, to give such instructions under Section 10.5). In determining compliance with any condition hereunder to the making of any Credit Extension that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume the satisfaction of such Lender or Issuing Bank unless the Administrative Agent shall have received written notice to the contrary from such Lender or Issuing Bank reasonably in advance of such Credit Extension.

(c)Delegation of Duties. Each Agent may perform any and all of its duties and exercise any and all of its powers, rights and remedies under this Agreement or any other Credit Document by or through any one or more sub-agents appointed by such Agent. Each Agent and any such of its sub-agents may perform any and all of its duties and exercise any and all of its powers, rights and remedies by or through their respective Affiliates. The exculpatory, indemnification and other provisions set forth in this Section 9.3 and in Sections 9.6 and 10.3 shall apply to any such sub-agent or Affiliate (and to their respective Related Parties) as if they were named as such Agent. No Agent shall be responsible for the negligence or misconduct of any sub-agent appointed by it except to the extent that a court of competent jurisdiction determines in a final, non-appealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by any Agent, (i) such sub-agent shall be a third party beneficiary under the exculpatory, indemnification and other provisions set forth in this Section 9.3 and Sections 9.6 and 10.3 and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such provisions directly, without the consent or joinder of any other Person, against any or all of the Credit Parties and the Lenders and (ii) such sub-agent shall only have obligations to such Agent, and not to any Credit Party, any Lender or any other Person, and no Credit Party, Lender or any other Person shall have any rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent.

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(d)Concerning Arrangers and Certain Other Indemnitees. Notwithstanding anything herein to the contrary, none of the Arrangers, the Syndication Agent or any of the co-agents, bookrunners or managers listed on the cover page hereof shall have any duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Administrative Agent, the Collateral Agent, a Lender or an Issuing Bank hereunder or, in the case of any Auction Manager or any other Person appointed under the Credit Documents to serve as an agent or in a similar capacity, the duties and responsibilities that are expressly specified in the applicable Credit Documents with respect thereto, but all such Persons shall have the benefit of the exculpatory, indemnification and other provisions set forth in this Section 9 and in Section 10.3 and shall have all of the rights and benefits of a third party beneficiary with respect thereto, including an independent right of action to enforce such provisions directly, without the consent or joinder of any other Person, against any or all of the Credit Parties and the Lenders. The exculpatory, indemnification and other provisions set forth in this Section 9 and in Section 10.3 shall apply to any Affiliate or other Related Party of any Arranger or any Agent in connection with the arrangement and syndication of the credit facilities provided for herein (including pursuant to Section 2.23, 2.24 and 2.25) and any amendment, supplement or modification hereof or of any other Credit Document (including in connection with any Extension/Modification Offer), as well as activities as an Agent.

9.4.Acts in Individual Capacity. Nothing herein or in any other Credit Document shall in any way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender or an Issuing Bank hereunder. With respect to its Loans, Letters of Credit and participations in the Letters of Credit, each Agent shall have the same rights and powers hereunder as any other Lender or Issuing Bank and may exercise the same as if it were not performing the duties and functions delegated to it hereunder. Each Agent 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 banking, trust, financial advisory, commodity, derivative or other business with the Borrower or any of its Affiliates as if it were not performing the duties and functions specified herein, and may accept fees and other consideration from the Borrower and its Affiliates for services in connection herewith and otherwise, in each case without having to account therefor to the Lenders or the Issuing Banks. Each Agent and its Affiliates, when acting under any agreement in respect of any such activity or under any related agreements, will be acting for its own account as principal and will be under no obligation or duty as a result of such Agent’s role in connection with the credit facility provided herein or otherwise to take any action or refrain from taking any action (including refraining from exercising any right or remedy that might be available to it).

9.5.Lenders’ and Issuing Banks’ Representations, Warranties and Acknowledgments. Each Lender and Issuing Bank represents and warrants that it has made, and will continue to make, its own independent investigation of the financial condition and affairs of the Borrower and the Subsidiaries in connection with Credit Extensions or taking or not taking action under or based upon any Credit Document, in each case without reliance on any Agent, any Arranger or any of their respective Related Parties. No Agent shall 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 Banks 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 Credit Extensions or at any time or times thereafter.

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(a)Each Lender, by delivering its signature page to this Agreement,an Assignment Agreement, a Refinancing Facility Agreement or an Incremental Facility Agreement and funding its Loans on the Closing Date and/or providing its Revolving Commitment on the Closing Date or by funding any Refinancing Term Loan, any Incremental Term Loan or providing any Incremental Revolving Commitment, as the case may be, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, the Requisite Lenders or any other Lenders, as applicable, on the Closing Date or as of the date of funding of such Refinancing Term Loans or Incremental Term Loans or the date of the effectiveness of such Incremental Revolving Commitment.

(b)Each Lender and Issuing Bank acknowledges and agrees that Wilmington Trust or one or more of its Affiliates will be acting as the administrative agent and collateral agent under the Second Lien Credit Agreement and may (but is not obligated to) act as administrative agent, collateral agent or a similar representative for the holders of any other Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness and any Permitted Incremental Equivalent Indebtedness and, in its capacity as the administrative agent and collateral agent under the Second Lien Credit Agreement, is a party to the Intercreditor Agreement and, in such other capacities, may be a party to a Permitted Intercreditor Agreement. Each Lender, Issuing Bank and Credit Party waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against Wilmington Trust or any of its Affiliates any claims, causes of action, damages or liabilities of whatever kind or nature relating to any such conflict of interest.

9.6.Right to Indemnity. Each Lender, in proportion to its applicable Pro Rata Share (determined as set forth below), severally agrees to indemnify each Agent and each Related Party thereof, to the extent that such Agent or such Related Party shall not have been reimbursed by any Credit Party (and without limiting any Credit Party’s obligations under the Credit Documents to do so), for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses (including fees, expenses and other charges of counsel) or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against such Agent or any such Related Party in exercising the powers, rights and remedies, or performing the duties and functions, of such Agent under the Credit Documents or any other documents contemplated by or referred to therein or otherwise in relation to its capacity as an Agent; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided that in no event shall this sentence require any Lender to indemnify such Agent against any liability, obligation, loss, damage, penalty, claim, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s applicable Pro Rata Share thereof; and provided further that this sentence shall not be deemed to require any Lender to indemnify such Agent against any liability, obligation, loss, damage, penalty, claim, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. For purposes of this Section 9.6, “Pro Rata Share” shall be determined as of the time that the applicable indemnity payment is sought (or, in the event at such time all the Commitments shall have terminated and all the Loans shall have been repaid in full, as of the time most recently prior thereto when any Loans or Commitments remained outstanding).

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9.7.Successor Administrative Agent and Collateral Agent. Subject to the terms of this Section 9.7, the Administrative Agent may resign at any time from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Requisite Lenders, subject to, unless an Event of Default shall have occurred and is continuing, the prior written consent of the Borrower (not to be unreasonably withheld, conditioned or delayed), shall have the right to appoint a successor. If no successor shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within 30 days after the resigning Administrative Agent gives notice of its intent to resign, then the resigning Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender or a Disqualified Institution. If the Administrative Agent shall be a Defaulting Lender pursuant to clause (d) of the definition of such term, the Requisite Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and the Administrative Agent remove the Administrative Agent in its capacity as such and, subject to, unless an Event of Default shall have occurred and is continuing, the prior written consent of the Borrower (not to be unreasonably withheld, conditioned or delayed), appoint a successor. Any resignation or removal of the Administrative Agent shall be deemed to be a resignation of the Collateral Agent, and any successor Administrative Agent appointed pursuant to this Section 9.7 shall, upon its acceptance of such appointment, become the successor Collateral Agent for all purposes of the Credit Documents. Upon the acceptance of its appointment as Administrative Agent and Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning or removed Administrative Agent and Collateral Agent, and the resigning or removed Administrative Agent and Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents. The fees payable by the Borrower to a successor Administrative Agent and Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed by the Borrower and such successor.Notwithstanding the foregoing, in the event (a) no successor to a resigning Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the resigning Administrative Agent gives notice of its intent to resign, the resigning Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment by the day that is 30 days following of the issuance of a notice of removal, the removal shall become effective on such 30th day, and on the date of effectiveness of such resignation or removal, as the case may be, (i) the resigning or removed Administrative Agent and Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents, provided that, solely for purposes of maintaining any security interest granted to the Collateral Agent under any Collateral Document for the benefit of the Secured Parties, the resigning or removed Collateral Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Collateral Agent, shall continue to hold such Collateral, in each case until such time as a successor Collateral Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the resigning or removed Collateral Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (ii) the Requisite Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning or removed Administrative Agent and Collateral Agent, provided that (A) all payments required to be made hereunder or under any other Credit Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent or the Collateral Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s and Collateral Agent’s resignation from its capacity as such, the provisions of this Section 9 and of Section 10.3 shall continue in effect for the benefit of such resigning or removed 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 it was acting as Administrative Agent or Collateral Agent, as applicable, and in respect of the matters referred to in the proviso under clause (a) above. If the Person serving as the resigning or removed Administrative Agent shall also be an Issuing Bank, then, unless otherwise agreed to by such Person, upon the effectiveness of the resignation or removal thereof in its capacity as the Administrative Agent, (A) such Person shall no longer be obligated to issue, amend, extend or renew any Letter of Credit, but shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to the effectiveness of such resignation, (B) the Borrower shall pay all unpaid fees accrued for the account of such Person in its capacity as an Issuing Bank pursuant to Section 2.10(b) and (C) the Borrower may appoint a replacement Issuing Bank (which appointment shall be made in accordance with the procedures set forth in Section 2.3(i), mutatis mutandis).

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9.8.Collateral Documents and Obligations Guarantee. Agents under Collateral Documents and the Obligations Guarantee. Each Secured Party hereby further authorizes the Administrative Agent and the Collateral Agent to be the agent for and representative of the Secured Parties with respect to the Guarantees purported to be created under the Credit Documents, the Collateral and the Credit Documents and authorizes the Administrative Agent and the Collateral Agent to execute and deliver, on behalf of such Secured Party, any Collateral Documents that the Administrative Agent or the Collateral Agent determines in its discretion to execute and deliver in connection with the satisfaction of the Collateral and Guarantee Requirement (and hereby grants to the Administrative Agent and the Collateral Agent any power of attorney that may be required under any applicable law in connection with such execution and delivery on behalf of such Secured Party).

(a)Right to Realize on Collateral and Enforce Obligations Guarantee. Notwithstanding anything contained in any of the Credit Documents to the contrary, the Credit Parties, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) except with respect to the exercise of set-off rights of any Lender or Issuing Bank or with respect to a Secured Party’s right to file a proof of claim in any proceeding under the Debtor Relief Laws or as provided in clause (ii) below, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantees purported to be created under the Credit Documents, it being understood and agreed that all powers, rights and remedies under the Credit Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the terms thereof and that all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, (ii) all powers, rights and remedies under the Credit Documents exercised by the Administrative Agent or the Collateral Agent, as applicable, in respect of the Vector Subordinated Note Collateral, including any enforcement action in respect thereof, shall be exercised at the direction of the Majority in Interest of the Revolving Lenders and (iii) in the event of a foreclosure, exercise of a power of sale or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code, any analogous Debtor Relief Laws or any law relating to the granting or perfection of security interests), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code any analogous Debtor Relief Laws or any law relating to the granting or perfection of security interests) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Requisite Lenders (subject to procedures reasonably satisfactory to the Collateral Agent), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold or licensed at any such sale or other disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition. In connection with any such bid referred to in clause (iii) above, (A) the Collateral Agent shall be authorized to form one or more acquisition vehicles to make a bid, (B) the Collateral Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Collateral Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof, shall be governed, directly or indirectly, by the vote of the Requisite Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Requisite Lenders contained in Section 10.5(a), (C) the Collateral Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata among the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (D) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.

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(b)Specified Hedge Obligations. No obligations under any Hedge Agreement that constitute Specified Hedge Obligations or under any Specified Cash Management Services Provider Agreement will create (or be deemed to create)in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 10.5(c)(iii) of this Agreement. Notwithstanding anything to the contrary herein, neither the Administrative Agent nor the Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of any Specified Hedge Obligations or Specified Cash Management Services Obligations.

(c)Release of Collateral and Obligations Guarantees. Notwithstanding anything to the contrary herein or in any other Credit Document:

(i)When all Obligations (excluding contingent obligations as to which no claim has been made and the Specified Hedge Obligations and Specified Cash Management Services Obligations) have been paid in full, all Commitments have terminated and no Letter of Credit shall be outstanding, upon request of the Borrower, the Administrative Agent and the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party) take such actions as shall be required to release its security interest in all Collateral, and to release all Guarantees provided for in any Credit Document, whether or not on the date of such release there may be outstanding Specified Hedge Obligations or Specified Cash Management Services Obligations.

(ii)(A) If (x) any Guarantor Subsidiary shall have been designated as an Unrestricted Subsidiary in accordance with the terms hereof or (y) all the Equity Interests in any Guarantor Subsidiary held by the Borrower and the Subsidiaries shall be sold or otherwise disposed of (including by merger or consolidation) in any transaction permitted by this Agreement, and as a result of such sale or other disposition such Guarantor Subsidiary shall cease to be a Subsidiary of the Borrower, such Guarantor Subsidiary shall, upon effectiveness of such designation, or the consummation of such sale or other disposition, automatically be discharged and released from its Obligations Guarantee and all security interests created by the Collateral Documents in Collateral owned by such Guarantor Subsidiary shall be automatically released, without any further action by any Secured Party or any other Person; provided that no such discharge or release shall occur unless substantially concurrently therewith, such Subsidiary shall have been discharged and released from its Guarantee of all Permitted Second Lien Indebtedness, all Permitted Credit Agreement Refinancing Indebtedness, all Permitted Incremental Equivalent Indebtedness and all Permitted Subordinated Indebtedness, and all Liens on the assets of such Subsidiary securing any such Indebtedness shall have been released.

(B)Upon any sale or other transfer by any Credit Party (other than to the Borrower or any Restricted Subsidiary) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 10.5, the security interests in such Collateral created by the Collateral Documents shall be automatically released, without any further action by any Secured Party or any other Person; provided that no such release shall occur unless substantially concurrently therewith, such Collateral shall cease to be subject to any security interests securing any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness and any Permitted Incremental Equivalent Indebtedness.

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(C)Upon receipt by the Collateral Agent of a certificate from an Authorized Officer of the Borrower in form and substance reasonably satisfactory to the Collateral Agent, certifying that (x) the Escrow Cash Release Conditions have been satisfied and the proceeds of the Escrow Cash Collateral will be applied, substantially concurrently with the release thereof, to pay Acquisition Consideration for the Specified Acquisition and related customary fees and expenses and, to the extent permitted by Section 2.5(c), will otherwise be used for working capital and other general corporate purposes of the Borrower and the Restricted Subsidiaries, and/or (y) the proceeds of the Escrow Cash Collateral (or the applicable portion thereof specified in such certificate) will be applied, substantially concurrently with the release thereof, to prepay the Tranche B Term Borrowings pursuant to Section 2.13(d), in each case on the requested date of release of the Escrow Cash Collateral, the Collateral Agent shall release the Escrow Cash Collateral from the Escrow Cash Collateral Account (I) if the Escrow Cash Collateral is to be applied to pay such Acquisition Consideration and related fees and expenses and, to the extent permitted by Section 2.5(c), to be used for such working capital and other general corporate purposes, to the Borrower or (II) if the Escrow Cash Collateral is to be applied to prepay Tranche B Term Borrowings, to the Administrative Agent, on behalf of the Borrower, and upon such release by the Collateral Agent, the Escrow Cash Collateral Control Agreement shall be terminated and all security interests created by the Escrow Cash Collateral Control Agreement or any other Collateral Document in the Escrow Cash Collateral shall be automatically released, without any further action by any Secured Party or any other Person.

(D)Upon receipt by the Collateral Agent of a certificate from an Authorized Officer of the Borrower in form and substance reasonably satisfactory to the Collateral Agent (and including reasonably detailed calculations demonstrating satisfaction of the requirement set forth in clause (y) below), certifying that (x) no Default or Event of Default has occurred and is continuing and (y) the Total Leverage Ratio is less than 2.50:1.00, determined as of the last day of the then most recently ended Test Period, the Collateral Agent shall release to the Borrower any Cash or Cash Equivalents constituting Vector Subordinated Note Collateral then on deposit in the Vector Subordinated Note Cash Collateral Account and all security interests created by the Vector Subordinated Note Cash Collateral Control Agreement or any other Collateral Document in such Cash or Cash Equivalents shall be automatically released, without any further action by any Secured Party or any other Person.

(iii)Each Secured Party authorizes the Collateral Agent to subordinate, at the request of the Borrower, any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(d) or 6.2(o); provided that no such subordination shall occur unless substantially concurrently therewith, any Lien on such property securing any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness and any Permitted Incremental Equivalent Indebtedness shall also be so subordinated.

(iv)In connection with any termination, release or subordination pursuant to this Section 9.8(d), the Administrative Agent and the Collateral Agent shall execute and deliver to any Credit Party, at such Credit Party’s expense, all documents that such Credit Party shall reasonably request to evidence such termination, release or subordination. Any execution and delivery of documents pursuant to this Section 9.8(d) shall be without recourse to or warranty by the Administrative Agent or the Collateral Agent.

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(v)Additional Exculpatory Provisions. The Collateral 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 any Collateral, the existence, priority or perfection of the Collateral Agent’s Lien on any Collateral or any certificate prepared by any Credit Party in connection therewith, nor shall the Collateral Agent be responsible or liable to the Secured Parties for any failure to monitor or maintain any portion of the Collateral.

(d)Acceptance of Benefits. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral or the Guarantees purported to be created under the Credit Documents, to have agreed to the provisions of this Section 9 (including the authorization and the grant of the power of attorney pursuant to Section 9.8(a)), Section 10.24 and all the other provisions of this Agreement relating to Collateral, any such Guarantee or any Collateral Document and to have agreed to be bound by the Credit Documents as a Secured Party thereunder. It is understood and agreed that the benefits of the Collateral and any such Guarantee to any Secured Party are made available on an express condition that, and is subject to, such Secured Party not asserting that it is not bound by the appointments and other agreements expressed herein to be made, or deemed herein to be made, by such Secured Party.

9.9.Withholding Taxes. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender or Issuing Bank an amount equivalent to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender or Issuing Bank because the appropriate form was not delivered or was not properly executed or because such Lender or Issuing Bank failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, or if the Administrative Agent reasonably determines that a payment was made to a Lender or Issuing Bank pursuant to this Agreement without deduction of applicable withholding Tax from such payment, such Lender or Issuing Bank shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.

9.10.Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Laws with respect to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan or any Obligation under a Letter of Credit shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(a)to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;

(b)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans 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, the Issuing Banks, the Administrative Agent, the Collateral Agent and any other Secured Party (including any claim under Sections 2.7, 2.9, 2.15, 2.17, 2.18, 2.19, 10.2 and 10.3) allowed in such judicial proceeding; and

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(c)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 proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to the Administrative Agent, in such capacity or in its capacity as the Collateral Agent, or to its Related Parties under the Credit Documents (including under Sections 10.2 and 10.3). To the extent that the payment of any such amounts due to the Administrative Agent, in such capacity or in its capacity as the Collateral Agent, or to its Related Parties out of the estate in any such proceeding shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other property that the Lenders, the Issuing Banks or the other Secured Parties may be entitled to receive in such proceeding, whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank, or to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.

9.11.Certain ERISA Matters.

(a)Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true:

(i)such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,

(ii)the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,

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(iii)(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or

(iv)such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(b)In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that:

(i)none of the Administrative Agent or the Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, the Loans or any documents related to hereto or thereto),

(ii)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

(iii)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),

(iv)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

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(v)no fee or other compensation is being paid directly to the Administrative Agent or the Arrangers and their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.

(c)The Administrative Agent and the Arrangers and their respective Affiliates hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

9.12.Concerning the Vector Facility Arrangements. Each Lender, Issuing Bank and Credit Party acknowledges and agrees that Goldman Sachs or one or more of its Affiliates will be the Vector Senior Loan Facility Lender party to the Vector Facility Arrangements, and that any Vector Collateral provided as collateral to secure obligations of the Vector Lenders thereunder (including any such assets in the form of Tranche B Term Loans held by any Vector Lenders) is held by Goldman Sachs or any such Affiliate solely in its individual capacity, for its own benefit, and not in its capacity as an Agent for the benefit of any Secured Party. Each Lender, Issuing Bank and Credit Party further acknowledges and agrees that in exercising rights and remedies with respect to any Vector Collateral or otherwise in respect of the Vector Facility Arrangements, Goldman Sachs or any of its Affiliates may enforce the provisions of the Vector Facility Arrangements and exercise its rights thereunder, including enforcing the subordination provisions under the Vector Subordinated Note, directing the voting by any Vector Lender of its Tranche B Term Loans hereunder and making determinations of the current market value of the Tranche B Term Loans, and exercise remedies thereunder and under applicable law, all in such order and in such manner as it may determine in its sole discretion and as if it were not an Agent (or an Affiliate of an Agent) hereunder (and notwithstanding the fact that such exercise of rights and enforcement of remedies could have an adverse effect on the value of the loan made by the Borrower under the Vector Subordinated Note or its ability to obtain the repayment thereof), and will be under no obligation or duty as a result of its (or its Affiliate’s) role as an Agent or Lender hereunder to take any action or refrain from taking any action (including refraining from enforcing or exercising any right or remedy that might be available to it) in respect of the Vector Facility Arrangements (and that as a result of exercising rights and remedies with respect to any Vector Collateral, Goldman Sachs or any of its Affiliates may foreclose upon (and become and be a Lender hereunder holding a significant portion of the Tranche B Term Loans), and/or may assign or cause the assignment to any Eligible Assignee of, all or any part of the Tranche B Term Loans held by the Vector Lenders that constitute Vector Collateral), and each Lender and Issuing Bank agrees not to assert, and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling or other similar right that may be available under applicable law with respect to the Vector Collateral. Each Lender, Issuing Bank and Credit Party waives any conflict of interest, now contemplated or arising hereafter, in connection with the Vector Facility Arrangements and agrees not to assert against Goldman Sachs or any of its Affiliates any claims, causes of action, damages or liabilities of whatever kind or nature relating to any such conflict of interest.

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SECTION 10.MISCELLANEOUS

10.1.Notices. Notices Generally. Any notice or other communication hereunder given to any Credit Party, the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank shall be given to such Person at its address, fax number or e-mail address as set forth on Schedule 10.1 or, in the case of any Lender or Issuing Bank, at such address, fax number or e-mail address as shall have been provided by such Lender or Issuing Bank to the Administrative Agent in writing; provided that, notwithstanding the foregoing, no notice or other communication hereunder may be provided to any Credit Party by means of a fax. Except in the case of notices and other communications expressly permitted to be given by telephone and as otherwise provided in Section 10.1(b), each notice or other communication hereunder shall be in writing and shall be delivered in person or sent by e-mail, courier service or certified or registered United States mail or, except for notices or other communications to any Credit Party, facsimile and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, when sent by facsimile as shown on the transmission report therefor (or, if not sent during normal business hours for the recipient, at the opening of business on the next Business Day for the recipient), as provided in Section 10.1(b) if sent by e-mail or upon receipt if sent by United States mail; provided that no notice or other communication given to the Administrative Agent or the Collateral Agent shall be effective until received by it; and provided further that any such notice or other communication shall, at the request of the Administrative Agent, be provided to any sub-agent appointed pursuant to Section 9.3(c) from time to time. Any party hereto may change its address (including its e-mail address, fax or telephone number) for notices and other communications hereunder by notice to each of the Administrative Agent and the Borrower.

(a)Electronic Communications.

(i)Notices and other communications to any Lender and any Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or any Issuing Bank pursuant to Section 2 if such Lender or such Issuing Bank has notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. Each of the Administrative Agent, the Collateral Agent and the Borrower may, 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 or rescinded by such Person by notice to each other such Person; provided, further, that notices and other communications to the Administrative Agent or the Collateral Agent may be delivered to it at the e-mail address specified in Section 10.1(a). Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address, if not sent during the normal business hours of the recipient, shall be deemed to have been sent at the opening of business on the next Business Day for the recipient; and (B) 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 (A) of notification that such notice or communication is available and identifying the website address therefor.

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(ii)Each party hereto understands that the distribution of materials through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of the Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

(iii)THE PLATFORM AND ANY APPROVED ELECTRONIC COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF THE AGENTS OR ANY OF THEIR RELATED PARTIES WARRANTS AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED ELECTRONIC COMMUNICATIONS OR THE PLATFORM, AND EACH OF THE AGENTS AND THEIR RELATED PARTIES EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS. 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 OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE PLATFORM OR THE APPROVED ELECTRONIC COMMUNICATIONS.

(iv)Each Credit Party, each Lender and each Issuing Bank agrees that the Administrative Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.

(b)Private Side Information Contacts. Each Public Lender agrees to cause at least one individual at or acting on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public Side Information” portion of the Platform and that may contain Private-Side Information. In the event that any Public Lender has determined for itself not to access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) none of any Credit Party or any Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Credit Documents.

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10.2.Expenses. The Borrower agrees to pay promptly (a) all reasonable and documented out-of-pocket costs and expenses (including the reasonable fees, expenses and other charges of counsel) incurred by any Agent, any Arranger or any of their respective Affiliates in connection with the structuring, arrangement and syndication of the credit facilities provided for herein and any credit or similar facility refinancing, extending or replacing, in whole or in part, the credit facilities provided herein, including the preparation, execution, delivery and administration of this Agreement, the other Credit Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated thereby shall be consummated) or any other document or matter requested by the Borrower or any other Credit Party, (b) all reasonable and documented out-of-pocket costs and expenses of creating, perfecting, recording, maintaining and preserving Liens in favor of the Collateral Agent for the benefit of the Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and other charges of counsel to the Collateral Agent and of counsel providing any opinions that the Administrative Agent or the Collateral Agent may reasonably request in respect of the Collateral or the Liens created pursuant to the Collateral Documents, (c) all reasonable and documented out-of-pocket costs, fees, expenses and other charges of any auditors, accountants, consultants or appraisers of any Agent or Arranger, (d) all reasonable and documented out-of-pocket costs and expenses (including the reasonable fees, expenses and other charges of any appraisers, consultants, advisors and agents employed or retained by the Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral or any insurance process, and (e) after the occurrence and during the continuance of a Default or an Event of Default, all out-of-pocket costs and expenses, including reasonable fees, expenses and other charges of counsel and costs of settlement, incurred by any Agent, Arranger, Lender or Issuing Bank in enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder or under the other Credit Documents by reason of such Default or Event of Default (including in connection with the sale, lease or license of, collection from, or other realization upon any of the Collateral or the enforcement of any Obligations Guarantee) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work-out” or pursuant to any insolvency or bankruptcy cases or proceedings; provided that, in the case of clauses (a), (b), (c) and (d) above, costs and expenses with respect to counsel shall be limited to one firm of primary counsel, one firm of regulatory counsel and, if reasonably necessary, one firm of local counsel in each applicable jurisdiction for all Persons entitled to reimbursement under this Section 10.2 (and, if any such Person shall have advised the Borrower that there is an actual or perceived conflict of interest, one additional firm of primary counsel, one additional firm of regulatory counsel and, if reasonably necessary, one additional firm of local counsel in each applicable jurisdiction for each group of affected Persons that are similarly situated) (in each case, excluding allocated costs of in-house counsel). All amounts due under this Section 10.2 shall be payable promptly after written demand therefor.

10.3.Indemnity. In addition to the payment of expenses pursuant to Section 10.2, each Credit Party agrees to defend (subject to the applicable Indemnitee’s selection of counsel), indemnify, pay and hold harmless each Agent (and each sub-agent thereof), Arranger, Lender and Issuing Bank and each of their respective Related Parties (each, an “Indemnitee”), from and against any and all Indemnified Liabilities. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH INDEMNIFIED LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY OR OUT OF ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY INDEMNITEE; provided that no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (i) the gross negligence or willful misconduct of such Indemnitee or its Related Parties, (ii) a material breach in bad faith by such Indemnitee or its Related Parties of its express obligations under this Agreement or (iii) any action, investigation, claim, litigation or proceeding not involving an act or omission by any Credit Party or the equityholders or Affiliates of any Credit Party (or the Related Parties of any Credit Party) that is brought by an Indemnitee against another Indemnitee (other than against any Agent or any Arranger (or any holder of any other title or role) in its capacity as such). This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent Indemnified Liabilities arising from any non-Tax claim.

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(a)To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Agent, any Arranger, any Lender or any Issuing Bank or any Related Party of any of the foregoing on any theory of liability, for indirect, consequential, special or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or any 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 other Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, the syndication of the credit facilities provided for herein, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim for indirect, consequential, special or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

(b)Each Credit Party agrees that no Agent, Arranger, Lender or Issuing Bank or any Related Party of any of the foregoing will have any liability to any Credit Party or any Person asserting claims on behalf of or in right of any Credit Party or any other Person in connection with or as a result of this Agreement or any other Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith except (but subject to Section 10.3(b)), in the case of any Credit Party, to the extent that any losses, claims, damages, liabilities or expenses have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (i) the gross negligence or willful misconduct of such Agent, Arranger, Lender or Issuing Bank or its Related Parties in performing its obligations under this Agreement or any other Credit Document or (ii) a material breach in bad faith by such Agent, Arranger, Lender or Issuing Bank or its Related Parties of its express obligations under this Agreement.

10.4.Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default each Lender and each Issuing Bank is hereby authorized by each Credit Party at any time or from time to time, without notice to any Credit Party, any such notice being hereby expressly waived, to set-off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender or such Issuing Bank to or for the credit or the account of any Credit Party against and on account of the obligations and liabilities of any Credit Party to such Lender or such Issuing Bank hereunder and under the other Credit Documents, including all claims of any nature or description arising out of or connected hereto or thereto, irrespective of whether or not (a) such Lender or such Issuing Bank shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have become due and payable and although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of set-off, all amounts so set-off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks and the Lenders. Each Lender and Issuing Bank agrees to notify the Administrative Agent promptly after any such set-off and application; provided that the failure to give such notice shall not affect the validity of such set-off and application.

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10.5.Amendments and Waivers. Requisite Lenders’ Consent. Except as provided in Section 2.23, 2.24 or 2.25 or in the definition of “Letter of Credit Sublimit”, none of this Agreement, any other Credit Document or any provision hereof or thereof may be waived, amended or modified, and no consent to any departure by any Credit Party therefrom may be made, except, subject to the additional requirements of Sections 10.5(b) and 10.5(c) and as otherwise provided in Sections 10.5(d) and 10.5(e), in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Requisite Lenders and, in the case of any other Credit Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent or the Collateral Agent, as applicable, and the Credit Party or Credit Parties that are parties thereto, in each case with the consent of the Requisite Lenders.

(a)Affected Lenders’ Consent. In addition to any consent required pursuant to Section 10.5(a), without the written consent of each Lender that would be directly affected thereby, no waiver, amendment or other modification of this Agreement or any other Credit Document, or any consent to any departure by any Credit Party therefrom, shall be effective if the effect thereof would be to:

(i)increase any Commitment or postpone the scheduled expiration date of any Commitment (it being understood that no waiver, amendment or other modification of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Commitment of any Lender);

(ii)extend the scheduled final maturity date of any Loan;

(iii)except as expressly permitted by Section 10.8, extend the scheduled expiration date of any Letter of Credit beyond the Revolving Commitment Termination Date or waive, amend or otherwise modify the provisions of Section 10.8 that expressly provide for the release of the Revolving Lenders from their participations in, and other obligations with respect to, Letters of Credit;

(iv)waive, reduce or postpone any scheduled amortization payment (but not any voluntary or mandatory prepayment) of any Loan or any reimbursement obligation in respect of any Letter of Credit;

(v)reduce the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.9 or Section 2.23(b)(iii)) or any fee or any premium payable hereunder (other than under Section 2.23(b)(iii)), or waive or postpone the time for payment of any such interest, fee or premium;

(vi)reduce the principal amount of any Loan or any reimbursement obligation in respect of any Letter of Credit;

(vii)waive, amend or otherwise modify any provision of this Section 10.5(b), Section 10.5(c) or any other provision of this Agreement or any other Credit Document that expressly provides that the consent of all Lenders is required to waive, amend or otherwise modify any rights thereunder or to make any determination or grant any consent thereunder (including such provision set forth in Section 10.6(a));

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(viii)amend the percentage specified in the definition of the term “Requisite Lenders” or amend the term “Pro Rata Share” or waive, amend or otherwise modify Section 2.16 hereof or Section 5.02 of the Pledge and Security Agreement (and any comparable provision of any other Collateral Document) in a manner that would alter the pro rata sharing of payments required thereby; provided that additional extensions of credit made pursuant to Section 2.23, 2.24 or 2.25 shall be included, and with the consent of the Requisite Lenders other additional extensions of credit pursuant hereto may be included, in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis as the Term Loan Commitments, the Term Loans, the Revolving Commitments and the Revolving Exposures are included on the Closing Date; or

(ix)release all or substantially all the Collateral from the Liens of the Collateral Documents, or all or substantially all the Guarantor Subsidiaries from the Guarantees created under the Credit Documents (or limit liability of all or substantially all the Guarantor Subsidiaries in respect of any such Guarantee), in each case except as expressly provided in the Credit Documents and except in connection with a “credit bid” undertaken by the Collateral Agent at the direction of the Requisite Lenders pursuant to section 363(k), section 1129(b)(2)(a)(ii) or any other section of the Bankruptcy Code or any other sale or other disposition of assets in connection with other Debtor Relief Laws or an enforcement action with respect to the Collateral permitted pursuant to the Credit Documents (in which case only the consent of the Requisite Lenders will be required for such release) (it being understood that (A) an amendment or other modification of the type of obligations secured by the Collateral Documents or Guaranteed hereunder or thereunder shall not be deemed to be a release of the Collateral from the Liens of the Collateral Documents or a release or limitation of any such Guarantee and (B) an amendment or other modification of Section 6.8 shall only require the consent of the Requisite Lenders);

provided that, for the avoidance of doubt, all Lenders shall be deemed directly affected by any waiver, amendment or other modification, or any consent, described in the preceding clauses (vii), (viii) and (ix).

(b)Other Consents. No waiver, amendment or other modification of this Agreement or any other Credit Document, or any consent to any departure by any Credit Party therefrom, shall:

(i)(A) waive, amend or otherwise modify Section 2.14 or any other provision of any Credit Document in a manner that by its terms would disproportionately and adversely affect the rights or duties of Lenders of any Class differently than Lenders of any other Class, without the consent of Lenders representing a Majority in Interest of each affected Class, provided that the Requisite Lenders may waive, in whole or in part, any prepayment of Loans hereunder so long as the application, as between Classes, of any portion of such prepayment that is still required to be made is not altered, or (B) waive, amend or otherwise modify this Section 10.5(c)(i) or any other provision of this Agreement or any other Credit Document that expressly provides that the consent of all Lenders of any Class or a Majority in Interest of Lenders of any Class is required to waive, amend or otherwise modify any rights thereunder or to make any determination or grant any consent thereunder, in each case without the consent of each Lender of such Class or a Majority in Interest of the Lenders of such Class, as the case may be; provided that nothing in this Section 10.5(c)(i) shall be deemed to restrict the amendments contemplated by Section 2.23, 2.24 or 2.25;

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(ii)waive, amend or otherwise modify the rights, duties, privileges, protections, indemnities, immunities or obligations of, or any fees or other amounts payable to, any Agent or any Issuing Bank (including any waiver, amendment or other modification of the obligation of Lenders to purchase participations in Letters of Credit as provided in Section 2.3(e)) without the prior written consent of such Agent or such Issuing Bank, as the case may be;

(iii)waive, amend or otherwise modify this Agreement or the Pledge and Security Agreement so as to alter the ratable treatment of Obligations arising under the Credit Documents, on the one hand, and the Specified Hedge Obligations or Specified Cash Management Services Obligations, on the other, or amend or otherwise modify the definition of the term “Obligations”, “Specified Hedge Obligations”, Specified Hedge Obligations, “Specified Cash Management Services Obligations” or “Secured Parties” (or any comparable term used in any Collateral Document), in each case in a manner adverse to any Secured Party holding Specified Hedge Obligations or Specified Cash Management Services Obligations then outstanding without the written consent of such Secured Party (it being understood that an amendment or other modification of the type of obligations secured by the Collateral Documents or Guaranteed hereunder or thereunder, so long as such amendment or other modification by its express terms does not alter the Specified Hedge Obligations or Specified Cash Management Services Obligations being so secured or Guaranteed, shall not be deemed to be adverse to any Secured Party holding Specified Hedge Obligations or Specified Cash Management Services Obligations, as applicable);

(iv)amend the percentage specified in the definition of the term “Requisite Tranche A/Revolving Lenders” without the prior written consent of each Lender having or holding Revolving Exposure, unused Revolving Commitments and/or Tranche A Term Loan Exposure; provided that additional extensions of credit made pursuant to Section 2.23, 2.24 or 2.25 may be included, and with the consent of the Requisite Tranche A/Revolving Lenders other additional extensions of credit pursuant hereto may be included, as applicable, in the determination of “Requisite Tranche A/Revolving Lenders” on substantially the same basis the Revolving Exposures, the Revolving Commitments and the Tranche A Term Loan Exposures are included on the Closing Date;

(v)waive, amend or otherwise modify the provisions of Section 6.7(c) (or the definition of “Fixed Charge Coverage Ratio” or any component definition thereof solely as any such definition is used for purposes of Section 6.7(c)), in each case without the prior written consent of the Requisite Tranche A/Revolving Lenders;

(vi)waive, amend or otherwise modify the provisions of Section 5.16, 9.8(b)(ii) or 9.8(d)(ii)(D), clause (iv) of the last sentence of Section 2.16 or the last paragraph of Section 5.02 of the Pledge and Security Agreement, the definition of the term “Vector Subordinated Note Cash Collateral Account”, “Vector Subordinated Note Cash Collateral Account Control Agreement” or “Vector Subordinated Note Collateral” or any other provision in any Credit Document expressly relating to the Vector Subordinated Note Cash Collateral Account, the Vector Subordinated Note Cash Collateral Account Control Agreement or the Vector Subordinated Note Collateral or, except as expressly contemplated by Section 9.8(d)(ii)(D), release any Vector Subordinated Note Collateral from the Liens of the Collateral Documents, in each case without the prior written consent of the Majority in Interest of the Revolving Lenders; or

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(vii)waive, amend or otherwise modify the provisions of Section 9.12 without the prior written consent of Goldman Sachs (and Goldman Sachs shall be a third party beneficiary of such provisions and this Section 10.5(c)(vii) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such provisions and this Section 10.5(c)(vii) directly, without the consent or joinder of any other Person, against any or all of the Credit Parties and the Lenders).

(c)Class Amendments. Notwithstanding anything to the contrary in Section 10.5(a), any waiver, amendment or modification of this Agreement or any other Credit Document, or any consent to any departure by any Credit Party therefrom, that by its terms affects the rights or duties under this Agreement of the Lenders of a particular Class or Classes (but not Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite number or percentage in interest of each affected Class of Lenders that would be required to consent thereto under this Section 10.5 if such Class of Lenders were the only Class of Lenders hereunder at the time.

(d)Certain Permitted Amendments. Notwithstanding anything herein or in any other Credit Document to the contrary:

(i)any provision of this Agreement or any other Credit Document may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to cure any obvious error or any ambiguity, omission, defect or inconsistency of a technical nature, so long as the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Requisite Lenders stating that the Requisite Lenders object to such amendment;

(ii)in connection with any transaction permitted by Section 2.23, 2.24 or 2.25, this Agreement and the other Credit Documents may be amended or modified as contemplated by Section 2.23, 2.24 or 2.25, including to add any covenant applicable to the Borrower and/or the Restricted Subsidiaries or any other provisions for the benefit of the Lenders;

(iii)in connection with the incurrence of any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, this Agreement and the other Credit Documents may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to add any covenant applicable to the Borrower and/or the Restricted Subsidiaries (including any Previously Absent Financial Maintenance Covenant) or any other provisions for the benefit of the Lenders;

(iv)the Administrative Agent and the Collateral Agent may, without the consent of any other Secured Party, (A) consent to a departure by any Credit Party from any covenant of such Credit Party set forth in this Agreement or any other Credit Document to the extent such departure is consistent with the authority of the Collateral Agent set forth in the definition of the term “Collateral and Guarantee Requirement” or (B) waive, amend or modify any provision in any Credit Document (other than this Agreement), or consent to a departure by any Credit Party therefrom, to the extent the Administrative Agent or the Collateral Agent determines that such waiver, amendment, modification or consent is necessary in order to eliminate any conflict between such provision and the terms of this Agreement;

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(v)any provision of this Agreement or any other Credit Document may be amended by an agreement in writing entered into by the Borrower, the Administrative Agent (and, if their rights or obligations are affected thereby or if their consent would be required under the preceding provisions of this paragraph, the Issuing Banks) and the Lenders that will remain parties hereto after giving effect to such amendment if (A) by the terms of such agreement the Commitments of each Lender not consenting to the amendment provided for therein shall be reduced to zero upon the effectiveness of such amendment and (B) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement;

(vi)this Agreement and the other Credit Documents may be amended in the manner provided in Section 10.24; and

(vii)the provisions of Section 6.7(c) (and the definition of “Fixed Charge Coverage Ratio” and any component definition thereof solely as any such definition is used for purposes of Section 6.7(c)), in each case may be waived, amended or otherwise modified by an agreement in writing entered into by the Borrower and the Requisite Tranche A/Revolving Lenders (but without the necessity of obtaining the consent of the Requisite Lenders or any other Lender).

Each Lender and Issuing Bank hereby expressly authorizes the Administrative Agent and/or the Collateral Agent to enter into any waiver, amendment or other modification of this Agreement and the other Credit Documents contemplated by this Section 10.5(e).

(e)Requisite Execution of Amendments, Etc. With the concurrence of any Lender, the Administrative Agent may, but shall have no obligation to, execute waivers, amendments, modifications or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it is given. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 10.5 shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.

10.6.Successors and Assigns; Participations. Generally. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby. No Credit Party’s rights or obligations under the Credit Documents, and no interest therein, may be assigned or delegated by any Credit Party (except, in the case of any Guarantor Subsidiary, any assignment or delegation by operation of law as a result of any merger or consolidation of such Guarantor Subsidiary permitted by Section 6.8) without the prior written consent of the Administrative Agent and each Lender, and any attempted assignment or delegation without such consent shall be null and void. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, the participants referred to in Section 10.6(g) (to the extent provided in clause (iii) of such Section) and, to the extent expressly contemplated hereby, Affiliates of any Agent or any Lender, the other Indemnitees and other express third party beneficiaries hereof) any legal or equitable right, remedy or claim under or by reason of this Agreement.

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(a)Register. The Borrower, the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks shall deem and treat the Persons recorded as Lenders in the Register as Lenders hereunder for all purposes of this Agreement and the holders and owners of the corresponding Commitments and Loans recorded therein for all purposes hereof. No assignment or transfer of any Commitment or Loan shall be effective unless and until recorded in the Register, and following such recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and the assignee), shall be effective notwithstanding any defect in the Assignment Agreement relating thereto. Each assignment and transfer shall be recorded in the Register following receipt by the Administrative Agent of the fully executed Assignment Agreement, together with the required forms and certificates regarding tax matters and any fees payable in connection therewith, in each case as provided in Section 10.6(d); provided that the Administrative Agent shall not be required to accept such Assignment Agreement or so record the information contained therein if the Administrative Agent reasonably believes that such Assignment Agreement lacks any written consent required by this Section 10.6 or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment Agreement, any such duty and obligation being solely with the assigning Lender and the assignee. Each assigning Lender and the assignee, by its execution and delivery of an Assignment Agreement, shall be deemed to have represented to the Administrative Agent that all written consents required by this Section 10.6 with respect thereto (other than the consent of the Administrative Agent, the Borrower and the Issuing Banks, if applicable) have been obtained and that such Assignment Agreement is otherwise duly completed and in proper form. The date of such recordation of an assignment and transfer is referred to herein as the “Assignment Effective Date” with respect thereto. Any request, authority or consent of any Person that, at the time of making such request or giving such authority or consent, is recorded in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.

(b)Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including all or a portion of its Commitment or Loans or other Obligations owing to it to:

(i)any Eligible Assignee of the type referred to in clause (a) of the definition of the term “Eligible Assignee” upon (A) the giving of notice to the Borrower and the Administrative Agent; provided that in the case of any assignment of a Revolving Commitment or any Revolving Exposure, such Eligible Assignee is a Revolving Lender or an Affiliate of a Revolving Lender and (B) in the case of assignments of Revolving Commitments or a Revolving Lender’s obligations in respect of its participation in Letters of Credit, the receipt of prior written consent (each such consent not to be unreasonably withheld or delayed) of each Issuing Bank; or

(ii)any Eligible Assignee of the type referred to in clause (b) of the definition of the term “Eligible Assignee” (or, in the case of any assignment of a Revolving Commitment or a Revolving Exposure, any Eligible Assignee that does not meet the requirements of clause (i) above), upon (A) the giving of notice to the Borrower, the Administrative Agent and, in the case of assignments of Revolving Commitments or Revolving Loans, each Issuing Bank and (B) except in the case of assignments made by or to any Arranger or any Affiliate thereof during the primary syndication of any credit facilities established hereunder, receipt of prior written consent (each such consent not to be unreasonably withheld or delayed) of (1) the Borrower, provided that the consent of the Borrower to any assignment (x) shall not be required if an Event of Default shall have occurred and is continuing pursuant to Section 8.1(a), 8.1(f) or 8.1(g) and (y) shall be deemed to have been granted unless the Borrower shall have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof, (2) the Administrative Agent and (3) in the case of assignments of Revolving Commitments or a Revolving Lender’s obligations in respect of its participation in Letters of Credit, each Issuing Bank;

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provided that:

(A)in the case of any such assignment or transfer (other than to any Eligible Assignee meeting the requirements of clause (i) above), the amount of the Commitment or Loans of the assigning Lender subject thereto shall not be less than (A) $2,500,000 in the case of assignments of any Revolving Commitment or Revolving Loan or (B) $1,000,000 in the case of assignments of any Term Loan Commitment or Term Loan of any Class (with concurrent assignments to Eligible Assignees that are Affiliates or Related Funds thereof to be aggregated for purposes of the foregoing minimum assignment amount requirements) or, in each case, such lesser amount as shall be agreed to by the Borrower and the Administrative Agent or as shall constitute the aggregate amount of the Commitments or Loans of the applicable Class of the assigning Lender, provided that the consent of the Borrower to any lesser amount (x) shall not be required if an Event of Default shall have occurred and is continuing pursuant to Section 8.1(a), 8.1(f) or 8.1(g) and (y) shall be deemed to have been granted if notice shall be given to the Borrower requesting its consent to a lesser amount and the Borrower shall not have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received such request;

(B)each partial assignment or transfer shall be of a uniform, and not varying, percentage of all rights and obligations of the assigning Lender hereunder; provided that a Lender may assign or transfer all or a portion of its Commitment or of the Loans owing to it of any Class without assigning or transferring any portion of its Commitment or of the Loans owing to it, as the case may be, of any other Class; and

(C)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 the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, such Defaulting Lender’s applicable Pro Rata Share of Revolving Loans previously requested but not funded by such 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 the Administrative Agent, each Issuing Bank and each Revolving Lender hereunder (and interest accrued thereon), and (2) acquire (and fund as appropriate) its applicable Pro Rata Share of all Revolving Loans and participations in Letters of Credit; provided that, 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 clause (C), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

(c)Mechanics. Assignments and transfers of Loans and Commitments by Lenders shall be effected by the execution and delivery to the Administrative Agent of an Assignment Agreement. In connection with all assignments, there shall be delivered to the Administrative Agent such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee thereunder may be required to deliver pursuant to Section 2.19(g), together with payment to the Administrative Agent by the assignor or the assignee of a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable (i) in connection with an assignment by or to any Arranger or any Affiliate thereof during the primary syndication of any credit facilities established hereunder, (ii) in the case of an assignee that is an Affiliate or Related Fund of a Lender or a Person under common management with a Lender, (iii) in connection with an assignment by or to Goldman Sachs or any Affiliate thereof or (iv) otherwise waived by the Administrative Agent in its sole discretion).

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(d)Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof (or of any Incremental Facility Agreement or Refinancing Facility Agreement) or upon succeeding to an interest in the Commitments and Loans, as the case may be, represents and warrants as of the Closing Date (or, in the case of any Incremental Facility Agreement or Refinancing Facility Agreement, as of the date of the effectiveness thereof) or as of the applicable Assignment Effective Date, as applicable, that (i) it is an Eligible Assignee, (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be, (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other United States federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control) and (iv) it will not provide any information obtained by it in its capacity as a Lender to the Borrower, any Permitted Holder or any Affiliate of the Borrower. In the case of any assignment by or to any Vector Lender, the assignee or the assignor (in each case, if not a Vector Lender), as the case may be, acknowledges and agrees that in connection with such assignment, (A) such Vector Lender and its Affiliates may have MNPI (as defined below), (B) such assignee or assignor, as applicable, has independently, without reliance on such Vector Lender, the Administrative Agent, the Arrangers or any of their respective Affiliates, made its own analysis and determination to participate in such assignment notwithstanding such assignee’s or assignor’s lack of knowledge of any such MNPI, (C) none of such Vector Lender, the Administrative Agent, the Arrangers or any of their respective Affiliates shall have any liability to such assignee or assignor, as the case may be, and such assignee or assignor, as applicable, hereby waives and releases, to the extent permitted by applicable law, any claims it may have against such Vector Lender, the Administrative Agent, the Arrangers and their respective Affiliates, under applicable law or otherwise, with respect to the nondisclosure of any such MNPI and (D) such MNPI may not be available to the Administrative Agent, the Arrangers or the other Lenders. “MNPI” means material non-public information (for purposes of United States federal, state or other applicable securities laws) with respect to the Borrower, its Subsidiaries and their respective Securities, it being understood that MNPI may include information that is not available to Lenders, including Private Lenders. It is understood and agreed that the Administrative Agent and each Lender shall be entitled to rely, and shall incur no liability for relying, upon the representations and warranties and the acknowledgments and agreements of an assignee or assignor, as applicable, set forth in this Section 10.6(e) and in the applicable Assignment Agreement.

(e)Effect of Assignment. Subject to the terms and conditions of this Section 10.6, as of the Assignment Effective Date with respect to any assignment and transfer of any Commitment or Loan, (i) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent of its interest in such Commitment or Loan as reflected in the Register and shall thereafter be a party hereto and a “Lender” for all purposes hereof, (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned and transferred to the assignee, relinquish its rights (other than any rights that survive the termination hereof under Section 10.8) and be released from its obligations hereunder (and, in the case of an assignment covering all the remaining rights and obligations of an assigning Lender hereunder, such Lender shall cease to be a party hereto as a “Lender” (but not, if applicable, as an Issuing Bank or in any other capacity hereunder) on such Assignment Effective Date, provided that such assigning Lender shall continue to be entitled to the benefit of all rights that survive the termination hereof under Section 10.8), and provided further 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 such Lender’s having been a Defaulting Lender, and (iii) the assigning Lender shall, upon the effectiveness thereof or as promptly thereafter as practicable, surrender its applicable Notes (if any) to the Administrative Agent for cancellation, and thereupon the Borrower shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.

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(f)Participations.

(i)Each Lender shall have the right at any time to sell one or more participations to any Eligible Assignee in all or any part of its Commitments or Loans or in any other Obligation; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Credit Parties, the Administrative Agent, the Collateral Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender that sells a participation pursuant to this Section 10.6(g) shall, acting solely for United States federal income tax purposes as a non-fiduciary agent of the Borrower, maintain a register on which it records the name and address of each participant to which it has sold a participation and the principal amounts (and stated interest) of each such participant’s interest in the Commitments or Loans or other rights and obligations of such Lender under this Agreement or any other Credit Document (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or other rights and obligations under any Credit Document), except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other right or obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and solely to the IRS. 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 under this Agreement, notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(ii)The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder, except that any participation agreement may provide that the participant’s consent must be obtained with respect to the consent of such Lender to any waiver, amendment, modification or consent that is described in Section 10.5(b) that affects such participant or requires the approval of all the Lenders.

(iii)The Credit Parties agree that each participant shall be entitled to the benefits of Sections 2.17(c), 2.18 and 2.19 (subject to the requirements and limitations therein, including the requirements under Section 2.19(g) (it being understood that the documentation required under Section 2.19(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.6(c); provided that such participant (x) agrees to be subject to the provisions of Sections 2.20 and 2.22 as if it were an assignee under Section 10.6(c) and (y) such participant shall not be entitled to receive any greater payment under Section 2.18 or 2.19 with respect to any participation than the applicable Lender would have been entitled to receive with respect to such participation sold to such participant, 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. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided that such participant agrees to be subject to Section 2.16 as though it were a Lender.

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(g)Certain Other Assignments and Participations. In addition to any other assignment or participation permitted pursuant to this Section 10.6, any Lender may assign, pledge and/or grant a security interest in all or any portion of its Loans or the other Obligations owed to such Lender, and its Notes, if any, to secure obligations of such Lender, including (i) to any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors and any operating circular issued by any Federal Reserve Bank or to any other central bank and (ii) in the case of any Vector Lender, pursuant to the Vector Facility Arrangements; provided that no Lender, as between the Borrower and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge; and provided further that in no event shall the applicable Federal Reserve Bank, other central bank, pledgee or trustee be considered to be a “Lender” hereunder.

(h)Term Loan Repurchases. Notwithstanding anything to the contrary contained in this Section 10.6 or any other provision of this Agreement, the Borrower may repurchase outstanding Term Loans, and each Term Lender shall have the right at any time to sell, assign or transfer all or a portion of its Term Loans to the Borrower, on the following basis:

(i)Term Loan Repurchase Auctions. The Borrower may conduct one or more modified Dutch auctions (each, an “Auction”) to repurchase all or any portion of the Term Loans of any Class, provided that (A) the Borrower delivers a written notice of such Auction to the Auction Manager and the Administrative Agent (for distribution to the Term Lenders of such Class) no later than 12:00 p.m.(New York City time) at least five Business Days in advance of a proposed commencement date of such Auction (or such shorter period as may be acceptable to the Administrative Agent), which notice shall specify (x) the dates on which such Auction will commence and conclude, (y) the maximum principal amount of Term Loans and the Class thereof that the Borrower desires to repurchase in such Auction and (z) the range of discounts to par at which the Borrower would be willing to repurchase such Term Loans, (B) the maximum dollar amount of such Auction shall be no less than an aggregate $10,000,000 or an integral multiple of $1,000,000 in excess thereof, (C) such Auction shall be open for at least two Business Days after the date of the commencement thereof, (D) such Auction shall be open for participation by all the Term Lenders of such Class on a ratable basis, (E) a Term Lender of such Class that elects to participate in such Auction will be permitted to tender for repurchase all or a portion of such Lender’s Term Loans of such Class, (F) each repurchase of Term Loans of any Class shall be of a uniform, and not varying, percentage of all rights of the assigning Term Lender hereunder with respect thereto (and shall be allocated among the Term Loans of such Class of such Term Lender in a manner that would result in such Term Lender’s remaining Term Loans of such Class being included in each Term Borrowing in accordance with its applicable Pro Rata Share thereof), (G) at the time of the commencement and conclusion of such Auction, no Event of Default shall have occurred and be continuing, (H) the Borrower shall not use the proceeds of Revolving Loans to make such repurchase and (I) such Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, so long as such procedures are consistent with this Section 10.6(i) and are reasonably acceptable to the Administrative Agent and the Borrower. In connection with any Auction, the Auction Manager and the Administrative Agent may request one or more certificates of an Authorized Officer of the Borrower as to the satisfaction of the conditions set forth in clauses (G) and (H) above.

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(ii)Open Market Purchases. The Borrower may repurchase all or any portion of the Term Loans of any Class on a non pro rata basis through open market purchases (each an “Open Market Purchase”), provided that (A) the Borrower delivers a written notice of such Open Market Purchase to the Administrative Agent promptly upon consummation thereof, (B) each repurchase of Term Loans of any Class shall be of a uniform, and not varying, percentage of all rights of the assigning Term Lender hereunder with respect thereto (and shall be allocated among the Term Loans of such Class of such Term Lender in a manner that would result in such Term Lender’s remaining Term Loans of such Class being included in each Term Borrowing in accordance with its applicable Pro Rata Share thereof), (C) at the time of and immediately following such Open Market Purchase, no Event of Default shall have occurred and be continuing and (D) the Borrower shall not use the proceeds of Revolving Loans to make such repurchase. In connection with any Open Market Purchase, the Administrative Agent may request one or more certificates of an Authorized Officer of the Borrower as to the satisfaction of the conditions set forth in clauses (C) and (D) above.

(iii)Concerning the Repurchased Term Loans. Repurchases by the Borrower of Term Loans pursuant to this Section 10.6(i) shall not constitute voluntary prepayments for purposes of Section 2.11 or 2.13. The aggregate principal amount of the Term Loans of any Class repurchased by the Borrower pursuant to this Section 10.6(i) shall be applied to reduce the subsequent Installments to be paid pursuant to Section 2.11 with respect to Term Loans of such Class in an inverse order of maturity. Upon the repurchase by the Borrower pursuant to this Section 10.6(i) of any Term Loans, such Term Loans shall, without further action by any Person, automatically be deemed cancelled and no longer outstanding (and may not be resold by the Borrower) for all purposes of this Agreement and the other Credit Documents, including with respect to (A) the making of, or the application of, any payments to the Lenders under this Agreement or any other Credit Document, (B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Credit Document or (C) the determination of Requisite Lenders, or for any similar or related purpose, under this Agreement or any other Credit Document. The Administrative Agent is authorized to make appropriate entries in the Register to reflect any cancelation of the Term Loans repurchased and cancelled pursuant to this Section 10.6(i). Any payment made by the Borrower in connection with a repurchase permitted by this Section 10.6(i) shall not be subject to the provisions of Section 2.15, 2.16 or 2.17(c). Failure by the Borrower to make any payment to a Lender required to be made in consideration of a repurchase of Term Loans permitted by this Section 10.6(i) shall not constitute a Default or an Event of Default under Section 8.1(a). Each Term Lender shall, to the extent that its Term Loans shall have been repurchased and assigned to the Borrower pursuant to this Section 10.6(i), relinquish its rights in respect thereof.

10.7.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.

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10.8.Survival of Representations, Warranties and Agreements. All covenants, agreements, representations and warranties made by the Credit Parties in the Credit Documents and in the certificates or other documents delivered in connection with or pursuant to this Agreement or any other Credit Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Credit Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that any Agent, Arranger, Lender or Issuing Bank may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any Credit Document is executed and delivered or any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement or any other Credit Document, in the event that, in connection with the refinancing or repayment in full of the credit facilities provided for herein, any Issuing Bank at its option and in its sole discretion shall have provided to the Administrative Agent a written consent to the release of the Revolving Lenders from their obligations hereunder with respect to any Letter of Credit issued by such Issuing Bank (whether as a result of the obligations of the Borrower (and any other account party) in respect of such Letter of Credit having been collateralized in full by a deposit of cash with such Issuing Bank, or being supported by a letter of credit that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a “Letter of Credit” outstanding hereunder for all purposes of this Agreement and the other Credit Documents (other than Sections 2.18, 2.19, 10.2 and 10.3 (and the defined terms used in such Sections)), and the Revolving Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations with respect thereto, under Section 2.3(e). The provisions of Sections 2.17(c), 2.18, 2.19, 9, 10.2, 10.3 and 10.4 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans or the termination of this Agreement or any provision hereof.

10.9.No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent, Arranger, Lender or Issuing Bank in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver thereof or of any Default or Event of Default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege, or any abandonment or discontinuance of steps to enforce such power, right or privilege, preclude any other or further exercise thereof or the exercise of any other power, right or privilege. The powers, rights, privileges and remedies of the Agents, the Arrangers, the Lenders and the Issuing Banks hereunder and under the other Credit Documents are cumulative and shall be in addition to and independent of all powers, rights, privileges and remedies they would otherwise have. Without limiting the generality of the foregoing, the execution and delivery of this Agreement or the making of any Loan hereunder shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Agent, Arranger, Lender or Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.

10.10.Marshalling; Payments Set Aside. None of the Agents, the Arrangers, the Lenders or the Issuing Banks shall be under any obligation to marshal any assets in favor of any Credit Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or payments to any Agent, Arranger, Lender or Issuing Bank (or to the Administrative Agent or the Collateral Agent, on behalf of any Agent, Arranger, Lender or Issuing Bank), or any Agent, Arranger, Lender or Issuing Bank enforces any security interests or exercises any right 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, preferential or at undervalue, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Laws, any other state 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.

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10.11.Severability. In case any provision in or obligation hereunder or under any other Credit 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.

10.12.Independent Nature of Lenders’ Rights. Nothing contained herein or in any other Credit Document, and no action taken by the Lenders pursuant hereto or thereto, shall be deemed to constitute the Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising hereunder and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.

10.13.Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

10.14.APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

10.15.CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) BELOW, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (E) BELOW); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, THE ARRANGERS, THE LENDERS AND THE ISSUING BANKS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY CREDIT DOCUMENT OR ANY EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

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10.16.WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP 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 TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO 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 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

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10.17.Confidentiality. Each Agent and each Lender (which term shall for the purposes of this Section 10.17 include each Issuing Bank) shall hold all Confidential Information (as defined below) obtained by such Agent or such Lender in accordance with such Agent’s and such Lender’s customary procedures for handling confidential information of such nature, it being understood and agreed by the Borrower that, in any event, the Administrative Agent and the Collateral Agent may disclose Confidential Information to the Lenders and the other Agents and that each Agent and each Lender may disclose Confidential Information (a) to Affiliates of such Agent or Lender and to its and their respective Related Parties, independent auditors and other advisors, experts or agents who need to know such Confidential Information (and to other Persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.17) (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such Confidential Information confidential or shall otherwise be subject to an obligation of confidentiality), (b) to any potential or prospective assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of any Loans or other Obligations or any participations therein or to any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap or derivative transaction relating to the Borrower or any of its Affiliates and their obligations (provided that such assignees, transferees, participants, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 10.17 or other provisions at least as restrictive as this Section 10.17 or otherwise reasonably acceptable to the Administrative Agent, the Collateral Agent or the applicable Lender, as the case may be, and the Borrower, including pursuant to the confidentiality terms set forth in the Confidential Information Memorandum or other marketing materials relating to the credit facilities governed by this Agreement; and provided further that without the Borrower’s prior written consent, no such disclosure may be made to any Disqualified Institution), (c) on a confidential basis, to any rating agency, (d) on a confidential basis, to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans, (e) for purposes of establishing a “due diligence” defense or in connection with the exercise of any remedies hereunder or under any other Credit Document, (f) as required by law or pursuant to legal or judicial process (in which case, unless specifically prohibited by applicable law or court order, such Agent or such Lender shall make reasonable efforts to notify the Borrower promptly thereof), (g) as required or requested by any Governmental Authority or by any regulatory or quasi-regulatory authority (including any self-regulatory organization) having jurisdiction or claiming to have jurisdiction over such Agent or such Lender or any of their respective Affiliates, (h) received by it on a non-confidential basis from a source (other than the Borrower or its Affiliates or Related Parties) not known by it to be prohibited from disclosing such information to such persons by a legal, contractual or fiduciary obligation, (i) to the extent that such information was already in possession of such Agent or such Lender, as the case may be, or any of its Affiliates or is independently developed by it or any of its Affiliates and (j) with the consent of the Borrower. For purposes of the foregoing, “Confidential Information” means, with respect to any Agent or any Lender, any non-public information regarding the business, assets, liabilities and operations of the Borrower and the Subsidiaries obtained by such Agent or Lender under the terms of this Agreement and identified as confidential by the Borrower. In addition, each Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement and the other Credit Documents. It is agreed that, notwithstanding the restrictions of any prior confidentiality agreement binding on any Arranger or any Agent, such partiesmay disclose Confidential Information as provided in this Section 10.17.

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10.18.Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged 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 Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest that 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 Loans made 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 that 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, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest that would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of the Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration that 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 Loans made hereunder or be refunded to the Borrower.

10.19.Counterparts. 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. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

10.20.Effectiveness; Entire Agreement. Subject to Section 3, this Agreement shall become effective when it shall have been executed by the Administrative Agent and there shall have been delivered to the Administrative Agent counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS 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 (BUT DO NOT SUPERSEDE ANY PROVISIONS OF ANY ENGAGEMENT LETTER OR FEE LETTER BETWEEN OR AMONG ANY CREDIT PARTIES AND ANY AGENT OR ARRANGER OR ANY AFFILIATE OF ANY OF THE FOREGOING THAT BY THE TERMS OF SUCH DOCUMENTS ARE STATED TO SURVIVE THE EFFECTIVENESS OF THIS AGREEMENT, ALL OF WHICH PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT).

10.21.PATRIOT Act. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Credit Party that pursuant to the requirements of the PATRIOT Act it is required to obtain, verify and record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Credit Party in accordance with the PATRIOT Act.

10.22.Electronic Execution of Assignments. The words “execution”, “signed”, “signature” and words of like import in any Assignment 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.

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10.23.No Fiduciary Duty. Each Agent, each Arranger, each Lender, each Issuing Bank and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”) may have economic interests that conflict with those of the Credit Parties, their equityholders and/or their Affiliates. Each Credit Party agrees that nothing in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Agent, Arranger or Lender, on the one hand, and such Credit Party or its equityholders or its Affiliates, on the other. The Credit Parties acknowledge and agree that (a) the transactions contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Agents, Arrangers and Lenders, on the one hand, and the Credit Parties, on the other, and (b) in connection therewith and with the process leading thereto, (i) no Agent, Arranger or Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its equityholders or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Agent, Arranger or Lender has advised, is currently advising or will advise any Credit Party, its equityholders or its Affiliates on other matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Credit Documents and (ii) each Agent, Arranger and Lender is acting solely as principal and not as the agent or fiduciary of any Credit Party, its management, equityholders, creditors or any other Person. Each Credit Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it has deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Credit Party agrees that it will not assert, and hereby waives to the maximum extent permitted by applicable law, any claim that any Agent, Arranger or Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Credit Party, in connection with any such transaction or the process leading thereto.

10.24.Permitted Intercreditor Agreements. Each of the Lenders and the other Secured Parties acknowledges that obligations of the Credit Parties under the Second Lien Credit Agreement are, and under any other Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness may be, secured by Liens on assets of the Credit Parties that constitute Collateral and that the relative Lien priority and other creditor rights of the Secured Parties and the secured parties under the Second Lien Credit Agreement will be set forth in the Intercreditor Agreement, and the relative Lien priority and other creditor rights of the Secured Parties and the secured parties under any other Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness will be set forth in the applicable Permitted Intercreditor Agreement. Each of the Lenders and the other Secured Parties hereby acknowledges that it has received a copy of the Intercreditor Agreement. Each of the Lenders and the other Secured Parties hereby irrevocably authorizes and directs the Administrative Agent and the Collateral Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, (i) on the Closing Date, the Intercreditor Agreement and any documents relating thereto and (ii) from time to time upon the request of the Borrower, in connection with the establishment, incurrence, amendment, refinancing or replacement of any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, any Permitted Intercreditor Agreement (it being understood that the Administrative Agent and the Collateral Agent are hereby authorized and directed to determine the terms and conditions of any such Permitted Intercreditor Agreement as contemplated by the definition of the terms “Intercreditor Agreement”, “Junior Lien Intercreditor Agreement” and “Pari Passu Intercreditor Agreement”) and any documents relating thereto.

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(a)Each of the Lenders and the other Secured Parties hereby irrevocably (i) consents to the treatment of Liens to be provided for under any Permitted Intercreditor Agreement, (ii) agrees that, upon the execution and delivery thereof, such Secured Party will be bound by the provisions of any Permitted Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the provisions of any Permitted Intercreditor Agreement, (iii) agrees that no Secured Party shall have any right of action whatsoever against the Administrative Agent or any Collateral Agent as a result of any action taken by the Administrative Agent or the Collateral Agent pursuant to this Section 10.24 or in accordance with the terms of any Permitted Intercreditor Agreement, (iv) authorizes and directs the Administrative Agent and the Collateral Agent to carry out the provisions and intent of each such document and (v) authorizes and directs the Administrative Agent and the Collateral Agent to take such actions as shall be required to release Liens on the Collateral in accordance with the terms of any Permitted Intercreditor Agreement.

(b)Each of the Lenders and the other Secured Parties hereby irrevocably further authorizes and directs the Administrative Agent and the Collateral Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of any Permitted Intercreditor Agreement that the Borrower may from time to time request and that are reasonably acceptable to the Administrative Agent (i) to give effect to any establishment, incurrence, amendment, extension, renewal, refinancing or replacement of any Obligations, any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, (ii) to confirm for any party that such Permitted Intercreditor Agreement is effective and binding upon the Administrative Agent and the Collateral Agent on behalf of the Secured Parties or (iii) to effect any other amendment, supplement or modification so long as the resulting agreement would constitute a Permitted Intercreditor Agreement if executed at such time as a new agreement.

(c)Each of the Lenders and the other Secured Parties hereby irrevocably further authorizes and directs the Administrative Agent and the Collateral Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of any Collateral Document to add or remove any legend that may be required pursuant to any Permitted Intercreditor Agreement.

(d)Each of the Administrative Agent and the Collateral Agent shall have the benefit of the provisions of Sections 9, 10.2 and 10.3 with respect to all actions taken by it pursuant to this Section 10.24 or in accordance with the terms of any Permitted Intercreditor Agreement to the full extent thereof.

(e)The provisions of this Section 10.24 are intended as an inducement to the secured parties under the Second Lien Credit Documents or under any other Permitted Second Lien Indebtedness Documents, any Permitted Credit Agreement Refinancing Indebtedness or Permitted Incremental Equivalent Indebtedness to extend credit to the Borrower thereunder and such secured parties are intended third party beneficiaries of such provisions.

10.25.Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Credit 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:

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(a)the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which 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 Credit 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.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

FUSION CONNECT, INC., as Borrower
By:	/s/ Kevin Dotts
	Name: Kevin Dotts
	Title: Executive Vice President, Chief Financial Officer and Principal Accounting Officer

FUSION NBS ACQUISITION CORP. FUSION LLC FUSION BCHI ACQUISITION LLC BIRCH COMMUNICATIONS, LLC CBEYOND, INC. CBEYOND COMMUNICATIONS, LLC BIRCH MANAGEMENT LLC BIRCH TELECOM, LLC BIRCH TEXAS HOLDINGS, INC. BIRCH TELECOM OF KANSAS, LLC BIRCH TELECOM OF OKLAHOMA, LLC BIRCH TELECOM OF MISSOURI, LLC BIRCH TELECOM OF TEXAS LTD., L.L.P. BIRCAN HOLDINGS, LLC PRIMUS HOLDINGS, INC. FUSION MPHC ACQUISITION CORP., as Guarantors
By:	/s/ Kevin Dotts
	Name: Kevin Dotts
	Title: Executive Vice President, Chief Financial Officer and Principal Accounting Officer

[Signature Page to Fusion First Lien Credit and Guaranty Agreement]

WILMINGTON TRUST, NATIONAL ASSOCIATION, as the Administrative Agent and the Collateral Agent,
By:	/s/ Jamie Roseberg
	Name: Jamie Roseberg Title: Banking Officer

[Signature Page to Fusion First Lien Credit and Guaranty Agreement]

GOLDMAN SACHS LENDING PARTNERS LLC, as a Lender,
By:	/s/ Robert Ehudin
	Authorized Signatory Robert Ehudin

[Signature Page to Fusion First Lien Credit and Guaranty Agreement]

MORGAN STANLEY SENIOR FUNDING, INC., as a Lender,
By:	/s/ Reagan Philipp
	Name: Reagan Philipp
	Title: Authorized Signatory

[Signature Page to Fusion First Lien Credit and Guaranty Agreement]

MUFG UNION BANK, N.A., as a Lender,
By:	/s/ Matthew Hillman
	Name: Matthew Hillman
	Title: Vice President

[Signature Page to Fusion First Lien Credit and Guaranty Agreement]

EXHIBIT A

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

ASSIGNMENT AGREEMENT

This Assignment and Assumption Agreement (this “Assignment”) is dated as of the Assignment Effective Date set forth below and is entered into by and between the Assignor identified below and the Assignee identified below. Capitalized terms used but not defined herein shall have the meanings given to them in the First Lien Credit and Guaranty Agreement identified below (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions set forth in Annex 1 attached hereto and the Credit Agreement, as of the Assignment Effective Date inserted by the Administrative Agent as contemplated below, (a) the interest in and to all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor’s outstanding rights and obligations under the facility identified below (including any Letters of Credit and Guarantees included in such facilities) and (b) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor in its capacity as a Lender under the Credit Agreement against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the Transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (a) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (a) and (b) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and the Credit Agreement, without representation or warranty by the Assignor.

1.	Assignor: __________________________
2.	Assignee: __________________________
3.	Is the Assignee a Lender/an Affiliate of a Lender/a Related Fund? Yes:  No:  Specify if “Yes”.
4.	Borrower: Fusion Connect, Inc.
5.	Administrative Agent: Wilmington Trust, National Association, as the Administrative Agent under the Credit Agreement.
6.	Credit Agreement: First Lien Credit and Guaranty Agreement, dated as of May 4, 2018, among Fusion Connect, Inc., certain Subsidiaries of Fusion Connect, Inc. party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.
7.	Assigned Interest:

Facility Assigned	Aggregate Amount of Commitments/Loans of the Applicable Class of all Lenders	Amount of Commitment/Loans of the Applicable Class Assigned1	Percentage Assigned of Commitments/Loans of the Applicable Class of all Lenders2
Tranche A Term Loans	$______________	$______________	____________%
Tranche B Term Loans	$______________	$______________	____________%
Revolving Commitment/Loans	$______________	$______________	____________%
[ ]3	$______________	$______________	____________%

1     In the case of any assignment (other than to an Eligible Assignee meeting the requirements of Section 10.6(c)(i) of the Credit Agreement), the amount of Commitment or Loans assigned shall not be less than (a) $2,500,000 in the case of assignments of any Revolving Commitment or Revolving Loan or (b) $1,000,000 in the case of assignments of any Term Loan Commitment or Term Loan of any Class, or, in each case, a lesser amount permitted under Section 10.6(c) of the Credit Agreement. Any partial assignment shall be of a uniform, and not varying, percentage of all rights and obligations of the Assignor unless otherwise permitted under Section 10.6(c)(ii)(B) of the Credit Agreement.

2     Set forth, to at least 9 decimals, as a percentage of the Loans of the applicable Class of all Lenders thereunder.

3     In the event any new Class of Loans is established under Section 2.23, 2.24 or 2.25 of the Credit Agreement, refer to the Class of Loans assigned.

8. 

Assignment Effective Date: ______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH DATE SHALL BE THE ASSIGNMENT EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

9. 

Notice and Wire Instructions:

 [NAME OF ASSIGNOR] Notices: _________________________ _________________________ _________________________ Attention: Facsimile: with a copy to: _________________________ _________________________ _________________________ Attention: Facsimile: Wire Instructions:  [NAME OF ASSIGNEE] Notices: _________________________ _________________________ _________________________ Attention: Facsimile: with a copy to: _________________________ _________________________ _________________________ Attention: Facsimile: Wire Instructions:

The terms set forth in this Assignment are hereby agreed to:

ASSIGNOR:

[NAME OF ASSIGNOR]

By:_______________________

Name:

Title:

ASSIGNEE:

[NAME OF ASSIGNEE]

By:_______________________

Name:

Title:

[Consented to by:

FUSION CONNECT, INC.

By:_______________________

Name:

Title:]4

[Consented to and]5 Accepted by:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as

   Administrative Agent

By:_______________________

Authorized Person

[Consented to by:

[●], as

   Issuing Bank

By:_______________________

Name:

Title:] 6

4 If consent of the Borrower is required, and not deemed granted, under Section 10.6(c) of the Credit Agreement.

5 If consent of the Administrative Agent is required under Section 10.6(c) of the Credit Agreement.

6 If consent of the Issuing Banks is required under Section 10.6(c) of the Credit Agreement.

ANNEX 1

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION AGREEMENT

1.

Representations and Warranties.

1.1.

Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Credit Document, other than this Assignment, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Credit Document, or any collateral thereunder, (iii) the financial condition of the Borrower, the Subsidiaries or any other Affiliate of the Borrower or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by the Borrower, the Subsidiaries or any other Affiliate of the Borrower or any other Person of any of their respective obligations under any Credit Document.

1.2.

Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is an Eligible Assignee, (iii) it has experience and expertise in the making of or investing in commitments or loans such as the Assigned Interest, (iv) it will acquire the Assigned Interest for its own account in the ordinary course and without a view to distribution of the Assigned Interest within the meaning of the Securities Act or the Exchange Act or other United States federal securities laws (it being understood that, subject to the provisions of Section 10.6 of the Credit Agreement, the disposition of the Assigned Interest or any interests therein shall at all times remain within its exclusive control), (v) it will not provide any information or materials obtained by it in its capacity as Lender to the Borrower, any Permitted Holder or any Affiliate of the Borrower, (vi) from and after the Assignment Effective Date, it shall be bound by the provisions of the Credit Agreement (including as to each Permitted Intercreditor Agreement) and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (vii) it has received a copy of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision, (viii) attached to this Assignment is any tax documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee, and (ix) it has reviewed the Memorandum for Lenders dated April 30, 2018 (the “Lender Memo”) posted by Goldman Sachs Lending Partners LLC (“Goldman Sachs”) on the Platform and (A) acknowledges the information contained therein, including the respective rights and obligations of the various parties described therein, and (B) confirms and agrees that none of the collateral (including any cash collateral) or other credit support provided by the SPV TLB Lender (as such term is defined in the Lender Memo) or the TLB Lender (as such term is defined in the Lender Memo) to Goldman Sachs will secure the Obligations and that the Assignee shall have no rights thereto or interests therein, and (b) agrees that (i) it will, independently and without reliance on any Agent, any Issuing Bank, any Arranger, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at that time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.

1.3.

MNPI. In the case of any assignment by or to any Vector Lender, the Assignee or the Assignor (in each case, if not a Vector Lender), as the case may be, acknowledges and agrees that in connection with such assignment, (a) such Vector Lender and its Affiliates may have MNPI (as defined below), (b) such Assignee or Assignor, as applicable, has independently, without reliance on such Vector Lender, the Administrative Agent, the Arrangers or any of their respective Affiliates, made its own analysis and determination to participate in such assignment notwithstanding such Assignee’s or Assignor’s lack of knowledge of any such MNPI, (c) none of such Vector Lender, the Administrative Agent, the Arrangers or any of their respective Affiliates shall have any liability to such Assignee or Assignor, as the case may be, and such Assignee or Assignor, as applicable, hereby waives and releases, to the extent permitted by applicable law, any claims it may have against such Vector Lender, the Administrative Agent, the Arrangers and their respective Affiliates, under applicable law or otherwise, with respect to the nondisclosure of any such MNPI and (d) such MNPI may not be available to the Administrative Agent, the Arrangers or the other Lenders. “MNPI” means material non-public information (for purposes of United States federal, state or other applicable securities laws) with respect to the Borrower, its Subsidiaries and their respective Securities, it being understood that MNPI may include information that is not available to Lenders, including Private Lenders.

1.

Payments. From and after the Assignment Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts that have accrued to but excluding the Assignment Effective Date and to the Assignee for amounts that have accrued from and after the Assignment Effective Date.

2.

General Provisions. This Assignment shall be binding upon the parties hereto and their respective successors and assigns permitted in accordance with the Credit Agreement and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Assignment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Assignment by facsimile or other electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Assignment. THIS ASSIGNMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

EXHIBIT B

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

CLOSING DATE CERTIFICATE

May 4, 2018

The undersigned hereby certifies as follows:

1.I am an Authorized Officer of Fusion Connect, Inc., a Delaware corporation (the “Borrower”).

2.I have reviewed the terms of the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent, and in my opinion I have made, or have caused to be made under my supervision, such examination or investigation as is reasonably necessary to enable me to certify as to the matters referred to herein. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

3.Based upon my review and examination described in paragraph 2 above, I certify, on behalf of the Borrower, in my capacity as an Authorized Officer of the Borrower and not in my individual or personal capacity and without personal liability, that:

(a)the representations and warranties of each Credit Party set forth in the Credit Documents are true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects, and (ii) otherwise, in all material respects, in each case on and as of the date hereof, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty is so true and correct on and as of such earlier date;

(b)no Default or Event of Default has occurred and is continuing or would result from any Credit Extension made by a Lender on the date hereof; and

(c)subject to the final paragraph of Section 3.1 of the Credit Agreement, the Collateral and Guarantee Requirement has been satisfied.

The foregoing certifications are made and delivered as of the date first stated above.

FUSION CONNECT, INC.,
by
	Name: [●]
	Title: [●]

[Signature Page to Closing Date Certificate]

 EXHIBIT C

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

COMPLIANCE CERTIFICATE

[The form of this Compliance Certificate has been prepared for convenience only, and is not to affect, or to be taken into consideration in interpreting, the terms of the Credit Agreement referred to below. The obligations of the Borrower and the other Credit Parties under the Credit Agreement are as set forth in the Credit Agreement, and nothing in this Compliance Certificate, or the form hereof, shall modify such obligations or constitute a waiver of compliance therewith in accordance with the terms of the Credit Agreement. In the event of any conflict between the terms of this Compliance Certificate and the terms of the Credit Agreement, the terms of the Credit Agreement shall govern and control, and the terms of this Compliance Certificate are to be modified accordingly.]

Reference is made to the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

The undersigned hereby certifies, in [his][her] capacity as the chief financial officer of the Borrower and not in [his][her] individual capacity, as follows:

1.I am the chief financial officer of the Borrower.

2.[Attached as Schedule I hereto, pursuant to Section 5.1(a) of the Credit Agreement, are the consolidated balance sheet of the Borrower and the Subsidiaries as of the end of the Fiscal Year ended December 31, 20[ ], and the related consolidated statements of operations, shareholders’ equity and cash flows of the Borrower and the Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, together with a report thereon of [EisnerAmper LLP].]

[or]

[Attached as Schedule I hereto, pursuant to Section 5.1(b) of the Credit Agreement, are the consolidated balance sheet of the Borrower and the Subsidiaries as of the end of the Fiscal Quarter ended [         ], 20[ ], and the related consolidated statements of operations, stockholders’ equity and cash flows of the Borrower and the Subsidiaries for such Fiscal Quarter (in the case of such statements of operations) and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year. Such financial statements present fairly, in all material respects, the consolidated financial position of the Borrower and the Subsidiaries as of the dates indicated and the consolidated results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a consistent basis (except as otherwise disclosed in such financial statements), subject to changes resulting from normal year-end audit adjustments and the absence of footnotes.]

3.[Appended to Schedule I hereto is the Unrestricted Subsidiary Reconciliation Statement required by Section 5.1(c) of the Credit Agreement.]7

[Appended to Schedule I hereto [is][are] the statement(s) of reconciliation required by Section 5.1(d) of the Credit Agreement.]8

[Attached as Schedule II hereto is the consolidated plan and financial forecast for the Fiscal Year ending December 31, 20[ ] required by Section 5.1(i) of the Credit Agreement, including (a) a forecasted consolidated balance sheet and forecasted consolidated statements of comprehensive income and cash flows of the Borrower and the Subsidiaries for such Fiscal Year, and an explanation of the assumptions on which such forecasts are based, and (b) forecasted consolidated statements of comprehensive income and cash flows of the Borrower and the Subsidiaries for each Fiscal Quarter of such Fiscal Year. Such forecasted consolidated financial statements have been prepared in good faith based upon assumptions that are believed by the Borrower to be reasonable as of the date of this Compliance Certificate.]9

Set forth on Annex A hereto is a true and accurate calculation of the Total Net Leverage Ratio as of the end of the Fiscal Quarter ended [ ], 20[ ].

Set forth on Annex B hereto is a true and accurate calculation of the First Lien Net Leverage Ratio as of the end of the Fiscal Quarter ended [ ], 20[ ].

[Set forth on Annex C hereto is a true and accurate calculation of the Fixed Charge Coverage Ratio for the four consecutive Fiscal Quarter period ended [ ], 20[ ].]10

[Set forth on Annex D hereto is a true and accurate calculation of the aggregate Consolidated Capital Expenditures made during the Fiscal Year ended December 31, 20[ ].]11

[Set forth on Annex E hereto is a true and accurate calculation of the Consolidated Excess Cash Flow for the Fiscal Year ended December 31, 20[ ], together with a true and accurate calculation of the aggregate principal amount of prepayment of the Term Borrowings required under Section 2.13(e) of the Credit Agreement.]12

7 To be included only if required under Section 5.1(c) of the Credit Agreement. The Unrestricted Subsidiary Reconciliation Statement may be in a footnote form included in the financial statements attached as Schedule I.

8 To be included only if required under Section 5.1(d) of the Credit Agreement.

9 To be included in the Compliance Certificate delivering annual financial statements (to the extent then available, but in any event to be delivered within 120 days after the beginning of each Fiscal Year).

10 To be included only during the Fixed Charge Coverage Ratio Covenant Period.

11 To be included in the Compliance Certificate delivering annual financial statements.

12 To be included in the Compliance Certificate delivering annual financial statements, commencing with the Fiscal Year ending December 31, 2019.

4.[Enclosed with this Compliance Certificate is a completed Supplemental Collateral Questionnaire required by Section 5.1(k) of the Credit Agreement.]13

I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a review in reasonable detail of the transactions and condition of the Borrower and the Subsidiaries during the accounting period covered by the attached financial statements. The foregoing examination did not disclose, and I have no knowledge of, the existence of any event or condition that constitutes a Default or an Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate, except as set forth in a separate attachment, if any, to this Compliance Certificate, describing in detail the nature of the condition or event, the period during which it has existed and the action that the Borrower or any Restricted Subsidiary has taken, is taking or proposes to take with respect to each such event or condition.

13 To be included in the Compliance Certificate delivering annual financial statements.

The foregoing certifications are made and delivered on [ ], 20[ ] pursuant to Section 5.1(c) of the Credit Agreement.

FUSION CONNECT, INC.,
by
	Name: [ ]
	Title: [ ]

ANNEX A

TO COMPLIANCE CERTIFICATE

AS OF THE END OF OR FOR THE PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS ENDED ON [mm/dd/yy]14

1.	Consolidated Net Income: (i) − (ii) =	$[___,___,___]
	(i)the net income (or loss) of the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in conformity with GAAP:	$[___,___,___]
	(ii)to the extent included in (i): (a) + (b) =	$[___,___,___]
	(a)the cumulative effect of a change in accounting principles during such period:	$[___,___,___]
	(b)the net income (or loss) of any Person (including any Unrestricted Subsidiary or any Person accounted for under the equity method of accounting) that is not the Borrower or a Restricted Subsidiary except, in the case of net income, to the extent of the amount of Cash dividends or similar Cash distribution actually paid by such Person to the Borrower or any Restricted Subsidiary during such period:	$[___,___,___]
2.	Consolidated Adjusted EBITDA:15 (i) + (ii) − (iii) =16	$[___,___,___]
	(i)Consolidated Net Income (see row 1 above):	$[___,___,___]
	(ii)to the extent deducted (and not added back) in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to (h) and (q) below, to the extent not already included in Consolidated Net Income), the sum for the Borrower and the Restricted Subsidiaries of the following amounts for such period:17 (a) + (b) + (c) + (d) + (e) + (f) + (g) + (h) + (i) + (j) + (k) + (l) + (m) + (n)  + (o) + (p) + (q) + (r) =	$[___,___,___]
	(a)total interest expense and, to the extent not reflected in such total interest expense, any losses on Hedge Agreements entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Hedge Agreements, and bank and letter of credit fees and costs of surety bonds in connection with financing activities:	$[___,___,___]

14 Present income statement information for the period of four consecutive Fiscal Quarters ended on such date, and balance sheet information as of such date.

15 For purposes of calculating Consolidated Adjusted EBITDA for any period, if during such period the Borrower or any Restricted Subsidiary shall have consummated a Material Acquisition or a Material Disposition, Consolidated Adjusted EBITDA for such period shall be calculated after giving Pro Forma Effect thereto in accordance with Section 1.2(b) of the Credit Agreement.

16 Subject to the immediately preceding note, Consolidated Adjusted EBITDA for (A) the Fiscal Quarter ended March 31, 2017, shall be deemed to be equal to $37,350,000, (B) the Fiscal Quarter ended June 30, 2017, shall be deemed to be equal to $40,745,000, (C) the Fiscal Quarter ended September 30, 2017, shall be deemed to be equal to $39,783,000 and (D) the Fiscal Quarter ended December 31, 2017, shall be deemed to be equal to $43,778,000.

17 Items to be set forth without duplication.

(b)provision for Federal, state and foreign taxes based on income, profits or capital gains, including in respect of repatriated funds:	$[___,___,___]
(c)depreciation and amortization, including amortization of intangible assets established through purchase accounting and amortization of deferred financing fees or costs, but excluding amortization of any other prepaid cash expense that was paid and not expensed in a prior period:	$[___,___,___]
(d)non-cash charges, including impairment charges and any other write-down or write-off of assets, noncash fair value adjustments of Investments and noncash stock-based and similar incentive-based compensation (including with respect to any profits interest relating to membership interests in any partnership or limited liability company), but excluding any such noncash charge or loss to the extent that it represents an amortization of a prepaid cash expense that was paid and not expensed in a prior period or write-down or write-off with respect to accounts receivable (including any addition to bad debt reserves or bad debt expense) or inventory:	$[___,___,___]
(e)extraordinary losses, determined in conformity with GAAP:	$[___,___,___]
(f)unusual or non-recurring charges, including, in each case, to the extent unusual or non-recurring, operating expenses directly attributable to the implementation of cost savings initiatives, merger costs, severance costs, relocation costs, integration and facilities’ opening costs, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of facilities, costs associated with tax projects/audits and costs consisting of professional, consulting or other fees relating to any of the foregoing;provided that the aggregate amount added back pursuant to this clause (f) and pursuant to clauses (g), (m) and, other than with respect to the Approved Cost Savings18, (h) for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B) above, calculated prior to giving effect to any addback pursuant to this clause (f) or pursuant to clause (g), (h) or (m):	$[___,___,___]

18 “Approved Cost Savings” means “run rate” net cost savings, operating expense reductions and other operating improvements and synergies attributable to (a) the Transactions and reflected in the model delivered to the Arrangers prior to the Closing Date or (b) the Specified Acquisition and reflected in the quality of earnings report delivered to the Arrangers in respect of the Specified Acquisition prior to the Closing Date;provided that, in the case of this clause (b), (i) such Acquisition is consummated on or prior to December 31, 2018 and (ii) the Approved Cost Savings permitted by this clause (b) shall not exceed $16,700,000 in the aggregate.

2

(g)restructuring charges, accruals and reserves (including restructuring charges related to the Merger or to Acquisitions consummated after the Closing Date);provided that the aggregate amount added back pursuant to this clause (g) and pursuant to clauses (f), (m) and, other than with respect to the Approved Cost Savings, (h) for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B), calculated prior to giving effect to any addback pursuant to this clause (g) or pursuant to clause (f), (h) or (m):

$[___,___,___]

(h)the amount of “run rate” net cost savings, operating expense reductions and other operating improvements and synergies reasonably projected by the Borrower in good faith to be realized in connection with the Transactions or any other Pro Forma Event or the implementation of any operational initiative, including the termination, abandonment or discontinuance of operations and product lines (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of the applicable Test Period), net of the amount of actual benefits realized during such period from such actions;provided that (A) such cost savings, operating expense reductions and other operating improvements and synergies are reasonably identifiable, factually supportable and reasonably expected to be realized within 12 months after the Closing Date or within 12 months after the consummation of such other Pro Forma Event or the adoption of such initiative, as applicable, (B) no cost savings, operating expense reductions and other operating improvements and synergies shall be added pursuant to this clause (h) to the extent duplicative of any items otherwise added in calculating Consolidated Adjusted EBITDA, whether pursuant to the requirement of Section 1.2(b) of the Credit Agreement or otherwise, for such period and (C) other than with respect to the Approved Cost Savings, the aggregate amount added back pursuant to this clause (h) and pursuant to clauses (f), (g) and (m) for any Test Period shall not exceed (x) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (y) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (x) and (y) above, calculated prior to giving effect to any addback pursuant to this clause (h) or pursuant to clause (f), (g) or (m):

$[___,___,___]

3

(i)the amount of any noncontrolling interest consisting of income of any Restricted Subsidiary that is not wholly owned by the Borrower attributable to noncontrolling Equity Interests of third parties in such Restricted Subsidiary:	$[___,___,___]
(j)after-tax losses attributable to any Disposition of assets (other than Dispositions in the ordinary course of business):	$[___,___,___]
(k)the amount of any net losses from discontinued operations, determined in conformity with GAAP:	$[___,___,___]
(l)(A) transaction fees, costs and expenses incurred in connection with the Transactions prior to the Closing Date, (B) transaction fees, costs and expenses in an aggregate amount not to exceed $1,500,000 incurred in connection with the Transactions after the Closing Date but prior to the one year anniversary of the Closing Date and (C) transaction fees, costs and expenses in an aggregate amount not to exceed $1,000,000 incurred on or prior to December 31, 2018 in connection with the Specified Acquisition (whether or not the Specified Acquisition is consummated):	$[___,___,___]
(m)transaction fees, costs and expenses incurred during such period, or any amortization thereof for such period, in connection with any Acquisition, any Investment (other than intercompany Investments in the ordinary course of business), any Disposition (other than Dispositions in the ordinary course of business), any incurrence, repayment or refinancing of Indebtedness (or any amendment or other modification of any Indebtedness) or any issuance of Equity Interests, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed;provided that the aggregate amount added back pursuant to this clause (m) and pursuant to clauses (f), (g) and, other than with respect to the Approved Cost Savings, (h) for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B) above, calculated prior to giving effect to any addback pursuant to this clause (m) or pursuant to clause (f), (g) or (h):	$[___,___,___]
(n)any loss attributable to the early extinguishment of Indebtedness or obligations under any Hedge Agreement:	$[___,___,___]
(o)any unrealized loss attributable to the mark-to-market movement in the valuation of obligations under any Hedge Agreement pursuant to FASB Accounting Standards Codification 815, as amended:	$[___,___,___]

4

(p)any unrealized loss attributable to the mark-to-market movement in the valuation of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830:	$[___,___,___]
(q)any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Acquisition or Disposition (other than in the ordinary course of business) permitted under the Credit Documents or in connection with any Insurance/Condemnation Event (disregarding the exception in the definition of such term), including lost profits covered by business interruption insurance, in each case, to the extent (A) actually reimbursed by the applicable third party insurer or other third party during such period or (B) (1) the Borrower has received notification from the applicable third party insurer or other third party that it intends to reimburse such expenses, charges or losses or such lost profits and (2) there exists reasonable evidence that such expenses, charges or losses or lost profits will in fact be reimbursed by such insurer or other third party within 270 days after the related amount is first added to Consolidated Adjusted EBITDA pursuant to this clause (q), provided that no amount may be added pursuant to this clause (q) to the extent that (x) such insurer or other third party shall have denied in writing reimbursement for such amount and (y) such amount has not actually been reimbursed within 270 days after it is first added to Consolidated Adjusted EBITDA pursuant to this clause (q) (with a deduction for any amount so added back to the extent not so reimbursed within such 270 days):	$[___,___,___]
(r)any contingent or deferred payments (including earnout payments, noncompete payments and consulting payments) actually made to sellers during such period in connection with any Acquisition, and any losses for such period arising from the remeasurement of the fair value of any liability recorded with respect to any earnout or other contingent or deferred consideration arising from any Acquisition:	$[___,___,___]
(iii)to the extent included in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to clause (i) below, to the extent not already deducted from Consolidated Net Income), the sum for the Borrower and the Restricted Subsidiaries of the following amounts for such period:19 (a) + (b) +(c) + (d) + (e) + (f) + (g) + (h) + (i) =	$[___,___,___]

19 Items to be set forth without duplication.

5

	(a)non-cash gains or items of income (other than the accrual of revenue in the ordinary course), excluding any non-cash items of income in respect of which Cash was received in a prior period or will be received in a future period:	$[___,___,___]
	(b)extraordinary gains or items of income, determined in conformity with GAAP:	$[___,___,___]
	(c)unusual or non-recurring gains or items of income:	$[___,___,___]
	(d)gains attributable to any Disposition of assets (other than Dispositions in the ordinary course of business):	$[___,___,___]
	(e)the amount of any net income from discontinued operations, determined in conformity with GAAP:	$[___,___,___]
	(f)any gain attributable to the early extinguishment of Indebtedness or obligations under any Hedge Agreement:	$[___,___,___]
	(g)any unrealized gain attributable to the mark-to-market movement in the valuation of obligations under any Hedge Agreement pursuant to FASB Accounting Standards Codification 815, as amended:	$[___,___,___]
	(h)any unrealized gain attributable to the mark-to-market movement in the valuation of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830:	$[___,___,___]
	(i)the amount of any noncontrolling interest consisting of losses of any Restricted Subsidiary that is not wholly owned by the Borrower attributable to noncontrolling Equity Interests of third parties in such Restricted Subsidiary:	$[___,___,___]
3.	Consolidated Total Net Debt:20 (i) + (ii) + (iii) + (iv) + (v) + (vi) − (vii) =	$[___,___,___]
	(i) the sum of the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding as of such date, in the amount that would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a) of the Credit Agreement), consisting solely of Indebtedness for borrowed money, obligations evidenced by bonds, debentures, notes or similar instruments and purchase money indebtedness:	$[___,___,___]

20 Items to be set forth without duplication.

6

	(ii) the aggregate amount of Capital Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding as of such date:	$[___,___,___]
	(iii) to the extent the amount thereof would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a) of the Credit Agreement), the aggregate amount of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred by the Borrower and the Restricted Subsidiaries in connection with any Acquisition:	$[___,___,___]
	(iv) the aggregate amount outstanding as of such date of unreimbursed drawings or other disbursements under all letters of credit and letters of guaranty in respect of which the Borrower or any Restricted Subsidiary is an account party:	$[___,___,___]
	(v) all obligations, contingent or otherwise, of the Borrower or any Restricted Subsidiary in respect of bankers’ acceptances outstanding as of such date:	$[___,___,___]
	(vi) Guarantees outstanding as of such date by the Borrower or any Restricted Subsidiary of Indebtedness of the type described in clauses (i) through (v) above of any Person other than the Borrower or any Restricted Subsidiary:	$[___,___,___]
	(vii) the aggregate amount of Unrestricted Cash as of such date (but disregarding the proceeds of Indebtedness that is incurred on such date):21	$[___,___,___]
4.	Total Net Leverage Ratio: (i) / (ii) =	[ ]:1.00
	Consolidated Total Net Debt (see row 3 above):	$[___,___,___]
	Consolidated Adjusted EBITDA (see row 2 above):	$[___,___,___]

21 With respect to the calculation of Consolidated Total Net Debt for purposes of testing the covenant set forth in Section 6.7(a) of the Credit Agreement (including any such testing to determine compliance therewith on a Pro Forma Basis as required by any other provision of the Credit Agreement), the aggregate amount of such Unrestricted Cash deducted pursuant to this clause (vii) shall not exceed $30,000,000.

7

ANNEX B

TO COMPLIANCE CERTIFICATE

AS OF THE END OF OR FOR THE PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS ENDED ON [mm/dd/yy]22

1.	Consolidated First Lien Net Debt:23 (i) + (ii) + (iii) + (iv) + (v) + (vi) − (vii) =	$[___,___,___]
	(i) the sum of the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding as of such date that is secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents), in the amount that would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a) of the Credit Agreement), consisting solely of Indebtedness for borrowed money, obligations evidenced by bonds, debentures, notes or similar instruments and purchase money indebtedness:	$[___,___,___]
	(ii) the aggregate amount of Capital Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding as of such date:	$[___,___,___]
	(iii) to the extent the amount thereof would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a) of the Credit Agreement), the aggregate amount of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred by the Borrower and the Restricted Subsidiaries in connection with any Acquisition, in each case, that are secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents):	$[___,___,___]
	(iv) the aggregate amount outstanding as of such date of unreimbursed drawings or other disbursements under all letters of credit and letters of guaranty in respect of which the Borrower or any Restricted Subsidiary is an account party, in each case that are secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents):	$[___,___,___]
	(v) all obligations, contingent or otherwise, of the Borrower or any Restricted Subsidiary in respect of bankers’ acceptances outstanding as of such date that are secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents):	$[___,___,___]

22 Present income statement information for the period of four consecutive Fiscal Quarters ended on such date, and balance sheet information as of such date.

23 Items to be set forth without duplication.

	(vi) Guarantees outstanding as of such date by the Borrower or any Restricted Subsidiary of Indebtedness of the type described in clauses (i) through (v) above of any Person other than the Borrower or any Restricted Subsidiary (whether or not such Indebtedness is secured) if such Guarantees (including letters of credit providing for such Guarantees) are secured by any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Agent created pursuant to the Credit Documents):	$[___,___,___]
	(vii) the aggregate amount of Unrestricted Cash as of such date (but disregarding the proceeds of Indebtedness that is incurred on such date):	$[___,___,___]
2.	First Lien Net Leverage Ratio: (i) / (ii) =	[ ]:1.00
	(i) Consolidated First Lien Net Debt (see row 1 above):	$[___,___,___]
	(ii) Consolidated Adjusted EBITDA (see row 2 of Annex A):	$[___,___,___]

2

ANNEX C

TO COMPLIANCE CERTIFICATE

FOR THE PERIOD OF FOUR CONSECUTIVE QUARTERS ENDEDON [mm/dd/yy]

1.	Consolidated Interest Expense:24 (i) − (ii) – (iii) =25	$[___,___,___]
	(i)the sum, without duplication, of: (a) + (b) =	$[___,___,___]
	(a)the total interest expense (including imputed interest expense in respect of Capital Lease Obligations) for the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in conformity with GAAP, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net payments, if any, made (less net payments, if any, received) pursuant to obligations under Hedge Agreements in respect of any Indebtedness:	$[___,___,___]
	(b)any interest or other financing costs becoming payable during such period in respect of Indebtedness of the Borrower or any Restricted Subsidiary to the extent such interest or other financing costs shall have been capitalized rather than included in total interest expense for such period in accordance with GAAP:	$[___,___,___]
	(ii)cash interest income of the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP:	$[___,___,___]
	(iii)to the extent included in clause (i) above, the sum, without duplication, of: (a) + (b) + (c) + (d) + (e) + (f) + (g) + (h) =	$[___,___,___]
	(a)amortization or write-down of capitalized interest, deferred financing costs or debt issuance costs, commissions, fees and expenses, pay-in-kind interest expense, the amortization of original issue discount resulting from the issuance of Indebtedness below par and any other amounts of non-cash interest (including as a result of the effects of purchase accounting):	$[___,___,___]

24 For purposes of calculating Consolidated Interest Expense for any period, if during such period the Borrower or any Restricted Subsidiary shall have consummated a Material Acquisition or a Material Disposition, Consolidated Adjusted EBITDA for such period shall be calculated after giving Pro Forma Effect thereto in accordance with Section 1.2(b) of the Credit Agreement.

25 Subject to the immediately preceding note, Consolidated Interest Expense shall be deemed to be (A) for the four Fiscal Quarter period ended on the last day of the first Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for such Fiscal Quarter multiplied by four, (B) for the four Fiscal Quarter period ended on the last day of the second Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for the two Fiscal Quarters then most recently ended multiplied by two, and (C) for the four Fiscal Quarter period ended on the last day of the third Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for the three Fiscal Quarters then most recently ended multiplied by 4/3;provided that, in the event the Closing Date shall have occurred after the first day of the first Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for such Fiscal Quarter shall be deemed, for purposes of clauses (A), (B) and (C) above, to be Consolidated Interest Expense for the period from and including the Closing Date to and including the last day of such Fiscal Quarter, multiplied by a fraction equal to (x) 90 divided by (y) the number of days actually elapsed from and including the Closing Date to and including the last day of such Fiscal Quarter.

	(b)the accretion or accrual of discounted liabilities during such period:	$[___,___,___]
	(c)non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedge Agreements or other derivative instruments pursuant to FASB Accounting Standards Codification 815:	$[___,___,___]
	(d)any one-time cash costs associated with breakage in respect of Hedge Agreements for interest rates:	$[___,___,___]
	(e)all additional interest or liquidated damages then owing pursuant to any registration rights agreement and any comparable “additional interest” or liquidated damages with respect to any securities designed to compensate the holders thereof for a failure to publicly register such securities:	$[___,___,___]
	(f)any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting:	$[___,___,___]
	(g)fees and expenses associated with the consummation of the Transactions:	$[___,___,___]
	(h)commitment and other financing fees (excluding, for the avoidance of doubt, the commitment fees in respect of the Revolving Commitments):	$[___,___,___]
2.	Consolidated Fixed Charges: (i) + (ii) + (iii) + (iv) + (v) =	$[___,___,___]
	(i)Consolidated Interest Expense for such period (see row 1 above):	$[___,___,___]
	(ii)the aggregate amount of scheduled principal payments made during such period in respect of Long-Term Indebtedness of the Borrower and the Restricted Subsidiaries (other than payments made by the Borrower or any Restricted Subsidiary to the Borrower or a Restricted Subsidiary):	$[___,___,___]
	(iii) the aggregate amount of principal payments (other than scheduled principal payments) made during such period in respect of Long-Term Indebtedness of the Borrower and the Restricted Subsidiaries (other than payments made by the Borrower or any Restricted Subsidiary to the Borrower or a Restricted Subsidiary), to the extent that such payments reduced any scheduled principal payments that would have become due within one year after the date of the applicable payment:	$[___,___,___]
	(iv)the aggregate amount of principal payments on Capital Lease Obligations, determined in conformity with GAAP, made by the Borrower and the Restricted Subsidiaries during such period:

2

	(v) Consolidated Capital Expenditures26 for such period (except to the extent financed by incurring Long-Term Indebtedness):	$[___,___,___]
3.	Fixed Charge Coverage Ratio: (i) / (ii) =	[ ]:1.00
	(i)Consolidated Adjusted EBITDA (see row 2 of Annex A):	$[___,___,___]
	(ii)Consolidated Fixed Charges (see row 2 above):	$[___,___,___]

26 “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures made by the Borrower and the Restricted Subsidiaries during such period that are required to be included in “purchase of property, plant and equipment” or similar items on a consolidated statement of cash flows, or that are otherwise required to be capitalized on a consolidated balance sheet, of the Borrower and the Restricted Subsidiaries for such period prepared in conformity with GAAP;provided that Consolidated Capital Expenditures shall not include any expenditures (a) to the extent made with Net Proceeds reinvested pursuant to Section 2.13(a) or 2.13(b) of the Credit Agreement or (b) that constitute an Acquisition permitted under Section 6.6 of the Credit Agreement;provided further that, except for purposes of calculating Consolidated Excess Cash Flow for any period, in the event the Borrower or any Restricted Subsidiary consummates an Acquisition, Consolidated Capital Expenditures shall not include any such expenditures made by any Person, business unit, division, product line or line of business acquired pursuant to such Acquisition, in each case, prior to the date of the consummation of such Acquisition.

3

ANNEX D

TO COMPLIANCE CERTIFICATE

FOR THE FISCAL YEAR ENDED [mm/dd/yy]

2.	Capital Expenditures
	(i) Consolidated Capital Expenditures27:	$[___,___,___]
	(ii) Maximum permitted Consolidated Capital Expenditures: (a) + (b) =	$[___,___,___]
	(a)the greater of (1) and (2) (1) Base CapEx Amount:	$[___,___,___] $55,000,000
	(2) if the Borrower or any Restricted Subsidiary shall have consummated any Material Acquisition (excluding the Merger) after the Closing Date, the Material Acquisition CapEx Amount28 for such Fiscal Year (determined as of the date of consummation of the Material Acquisition most recently consummated after the Closing Date and on or prior to the last day of such Fiscal Year):	$[___,___,___]
	(b)permitted carryover of unused Base CapEx Amount from prior Fiscal Year, if any29:	$[___,___,___]

27 “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures made by the Borrower and the Restricted Subsidiaries during such period that are required to be included in “purchase of property, plant and equipment” or similar items on a consolidated statement of cash flows, or that are otherwise required to be capitalized on a consolidated balance sheet, of the Borrower and the Restricted Subsidiaries for such period prepared in conformity with GAAP;provided that Consolidated Capital Expenditures shall not include any expenditures (a) to the extent made with Net Proceeds reinvested pursuant to Section 2.13(a) or 2.13(b) of the Credit Agreement or (b) that constitute an Acquisition permitted under Section 6.6 of the Credit Agreement;provided further that, except for purposes of calculating Consolidated Excess Cash Flow for any period, in the event the Borrower or any Restricted Subsidiary consummates an Acquisition, Consolidated Capital Expenditures shall not include any such expenditures made by any Person, business unit, division, product line or line of business acquired pursuant to such Acquisition, in each case, prior to the date of the consummation of such Acquisition.

28 “Material Acquisition CapEx Amount” means, as of any date of determination for any Fiscal Year, an amount equal to 10% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for the most recent period of 12 consecutive months prior to the consummation of the Material Acquisition (other than the Merger) most recently consummated for which financial statements are available as of such date of determination, determined on a Pro Forma Basis to give effect to such Material Acquisition (and each other Material Acquisition that shall have been consummated during such period).

29 (A) commencing with the Fiscal Year ending on December 31, 2018, the portion of the Base CapEx Amount for any Fiscal Year that has not been expended to make Consolidated Capital Expenditures during such Fiscal Year (but not in excess of 50% of the Base CapEx Amount for such Fiscal Year) may be carried over for expenditure in the immediately following Fiscal Year and (B) Consolidated Capital Expenditures made during any Fiscal Year shall be deemed to use, first, the Base CapEx Amount for such Fiscal Year and, second, any portion of the Base CapEx Amount for the immediately preceding Fiscal Year that has been carried over to such Fiscal Year pursuant to clause (A) above.

ANNEX E

TO COMPLIANCE CERTIFICATE

FOR THE FISCAL YEAR ENDED [mm/dd/yy]

3.	Consolidated Excess Cash Flow: (i) − (ii) =	$[___,___,___]
	(i) the sum, without duplication, of: (a) + (b) + (c) + (d) + (e) + (f) + (g) =	$[___,___,___]
	(a)Consolidated Net Income for such period:	$[___,___,___]
	(b)the aggregate amount of all non-cash charges (including depreciation expense, amortization expense and deferred tax expense), to the extent deducted in arriving at Consolidated Net Income:	$[___,___,___]
	(c)the sum of (A) the amount, if any, by which Consolidated Working Capital decreased during such period (except as a result of the reclassification of items from short-term to long-term or vice versa) and (B) the net amount, if any, by which the consolidated deferred revenues of the Borrower and the Restricted Subsidiaries increased during such period, in each case, other than any such decreases or increases, as applicable, arising from an Acquisition or from a Disposition of assets (other than in the ordinary course of business) by the Borrower or any of the Restricted Subsidiaries completed during such period:	$[___,___,___]
	(d)the aggregate amount of net non-cash loss on any Disposition of assets by the Borrower and the Restricted Subsidiaries (other than Dispositions in the ordinary course of business), to the extent deducted in arriving at Consolidated Net Income:	$[___,___,___]
	(e)the aggregate amount of cash payments received in respect of Hedge Agreements during such period, to the extent not included in arriving at Consolidated Net Income:	$[___,___,___]
	(f)the aggregate amount of any non-cash loss for such period attributable to the early extinguishment of Indebtedness or Hedge Agreements, to the extent deducted in arriving at such Consolidated Net Income:	$[___,___,___]
	(g)income tax expense, to the extent deducted in arriving at such Consolidated Net Income:	$[___,___,___]
	(ii) the sum, without duplication, of: (a) + (b) + (c) + (d) + (e) + (f) + (g) + (h) + (i) + (j) + (k) + (l) + (m) + (n) + (o) =	$[___,___,___]
	(a)the aggregate amount of all non-cash credits included in arriving at Consolidated Net Income:	$[___,___,___]
	(b)without duplication of amounts deducted pursuant to clause (k) below in any prior period, the Consolidated Capital Expenditures30 made by the Borrower and the Restricted Subsidiaries in Cash during such period, except to the extent financed with Excluded Sources:	$[___,___,___]

30 “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures made by the Borrower and the Restricted Subsidiaries during such period that are required to be included in “purchase of property, plant and equipment” or similar items on a consolidated statement of cash flows, or that are otherwise required to be capitalized on a consolidated balance sheet, of the Borrower and the Restricted Subsidiaries for such period prepared in conformity with GAAP;provided that Consolidated Capital Expenditures shall not include any expenditures (a) to the extent made with Net Proceeds reinvested pursuant to Section 2.13(a) or 2.13(b) of the Credit Agreement or (b) that constitute an Acquisition permitted under Section 6.6 of the Credit Agreement;provided further that, except for purposes of calculating Consolidated Excess Cash Flow for any period, in the event the Borrower or any Restricted Subsidiary consummates an Acquisition, Consolidated Capital Expenditures shall not include any such expenditures made by any Person, business unit, division, product line or line of business acquired pursuant to such Acquisition, in each case, prior to the date of the consummation of such Acquisition.

(c)the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries repaid or prepaid (including, to the extent of Cash spent, through repurchases and redemptions) by the Borrower and the Restricted Subsidiaries in Cash during such period (including (A) the principal component of payments in respect of Capital Lease Obligations, (B) scheduled Installments of Term Loans made pursuant to Section 2.11 of the Credit Agreement, (C) the amount of any mandatory prepayment of Term Loans or any Permitted Pari Passu Secured Indebtedness actually made with the Net Proceeds of an Asset Sale or an Insurance/Condemnation Event, in each case, to the extent such Net Proceeds resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, and (D) to the extent of Cash spent, repurchases by the Borrower of Term Loans pursuant to Section 10.6(i)(ii) of the Credit Agreement, but excluding (1) all other repayments or prepayments (including repurchases and redemptions) of Term Loans and Permitted Pari Passu Secured Indebtedness, (2) all repayments or prepayments (including repurchases and redemptions) of any revolving credit loans (other than in respect of any revolving credit facility to the extent there is an equivalent permanent reduction in commitments thereunder, other than in connection with a refinancing thereof) and (3) repayments or prepayments (including repurchases and redemptions) of Permitted Second Lien Indebtedness or any other Junior Indebtedness (it being understood and agreed that any amount excluded pursuant to clauses (1) through (3) above may not be deducted under any other clause of this definition)), except to the extent financed with Excluded Sources:	$[___,___,___]
(d)the aggregate amount of net non-cash gain on any Disposition of assets by the Borrower and the Restricted Subsidiaries (other than Dispositions in the ordinary course of business), to the extent included in arriving at Consolidated Net Income:	$[___,___,___]
(e)the sum of (i) the amount, if any, by which Consolidated Working Capital increased during such period (except as a result of the reclassification of items from short-term to long-term or vice versa) and (ii) the net amount, if any, by which the consolidated deferred revenues of the Borrower and the Restricted Subsidiaries decreased during such period, in each case, other than any such increases or decreases, as applicable, arising from an Acquisition or from a Disposition of assets (other than in the ordinary course of business) by the Borrower or any of the Restricted Subsidiaries completed during such period:	$[___,___,___]

2

(f)the aggregate amount of any non-cash gain for such period attributable to the early extinguishment of Indebtedness, Hedge Agreements or other derivative instruments, to the extent included in arriving at Consolidated Net Income:	$[___,___,___]
(g)the aggregate amount of Cash payments made by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, except to the extent financed with Excluded Sources:	$[___,___,___]
(h)without duplication of amounts deducted pursuant to clause (k) below in any prior period, the aggregate amount of Cash paid by the Borrower and the Restricted Subsidiaries during such period to consummate any Acquisition or Investment (other than intercompany Investments) permitted under Section 6.6(l), 6.6(m) or 6.6(o) of the Credit Agreement, except to the extent financed with Excluded Sources:	$[___,___,___]
(i)the aggregate amount of Restricted Junior Payments permitted by Section 6.4(e), 6.4(g)(i) or 6.4(i) of the Credit Agreement paid by the Borrower and the Restricted Subsidiaries in Cash during such period, except to the extent financed with Excluded Sources:	$[___,___,___]
(j)the aggregate amount of any premium, make-whole or penalty payments actually paid in Cash by the Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, except to the extent financed with Excluded Sources:	$[___,___,___]
(k)without duplication of amounts deducted from Excess Cash Flow in any prior period, the aggregate Contract Consideration entered into prior to or during such period relating to Acquisitions or Consolidated Capital Expenditures, in each case, to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrower following the end of such period;provided that to the extent that the aggregate amount of Cash actually utilized to finance such Acquisitions or Consolidated Capital Expenditures during such period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Consolidated Excess Cash Flow at the end of such period of four consecutive Fiscal Quarters:	$[___,___,___]
(l)to the extent not deducted in arriving at Consolidated Net Income, directors’ fees (including salary and bonus) and board consulting fees and related reimbursement of reasonable out-of-pocket expenses paid by the Borrower and the Restricted Subsidiaries in Cash in such period:	$[___,___,___]

3

(m)to the extent not deducted in arriving at Consolidated Net Income, transaction fees, costs and expenses incurred in connection with the Transactions or any Acquisition paid by the Borrower and the Restricted Subsidiaries in Cash in such period:	$[___,___,___]
(n)to the extent not deducted in arriving at Consolidated Net Income, income taxes, including penalties and interest, paid by the Borrower and the Restricted Subsidiaries in Cash in such period:	$[___,___,___]
(o)to the extent not deducted in arriving at Consolidated Net Income, the aggregate amount of Cash payments made by the Borrower and the Restricted Subsidiaries in respect of Hedge Agreements during such period:	$[___,___,___]

4

EXHIBIT D

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

FUSION CONNECT, INC.

420 Lexington Avenue

Suite 1718

New York, New York 10170

Wilmington Trust, National Association

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

Attention: Josh James

Telephone: (612) 217-5637

Fax: (612) 217-5651

Email: jjames@wilmingtontrust.com

CONVERSION/CONTINUATION NOTICE

Reference is made to the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

Pursuant to Section 2.8 of the Credit Agreement, the Borrower hereby notifies the Administrative Agent of the following information with respect to the conversion or continuation requested hereby:

1.

Class (e.g., Revolving, Tranche A Term or Tranche B Term) and Type (e.g., Base Rate or Eurodollar Rate) of existing Borrowing to which this request applies31:

_______________________________________________

4.Principal amount of existing Borrowing to be converted/continued32:

______________________________________________

3. 

Type (e.g., Base Rate or Eurodollar Rate) and principal amount of each new Borrowing resulting from the requested conversion/continuation33:

______________________________________________

5.

Interest Period of each new Borrowing resulting from the requested conversion/continuation (if applicable)34:

______________________________________________

5. 

Effective date of election35: __________________________________________

Date: [ ], 20[  ]

FUSION CONNECT, INC.

By: __________________________

Name:

Title:

31     If a Eurodollar Rate Borrowing, specify last day of current Interest Period.

32     If different options are being elected with respect to different portions of the existing Borrowing, indicate the portions thereof to be allocated to each resulting Borrowing.

33     Base Rate Borrowing or Eurodollar Rate Borrowing. If different options are being elected with respect to different portions of the Borrowing, specify type for each resulting new Borrowing.

34     Applicable only if the resulting Borrowing is to be a Eurodollar Rate Borrowing, and subject to the definition of “Interest Period”, which generally allows the Borrower to request one, two, three or six month periods (or such longer period as consented to by each Lender of the applicable Class of Loans and notified in writing to the Administrative Agent). If no election of Interest Period is specified, then the Borrower will be deemed to have specified an Interest Period of one month. If different options are being elected with respect to different portions of the existing Borrowing, specify for each resulting Borrowing.

35 Must be a Business Day. Conversion/Continuation Notice to be delivered to the Administrative Agent (a) in the case of a conversion to a Base Rate Borrowing, not later than 11:00 a.m. (New York City time) one Business Day in advance of the proposed Conversion/Continuation Date and (b) in the case of a conversion to, or a continuation of, a Eurodollar Rate Borrowing, not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Conversion/Continuation Date.

EXHIBIT E

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

FIRST LIEN COUNTERPART AGREEMENT

This FIRST LIEN COUNTERPART AGREEMENT, dated [ ], 20[ ] (this “Counterpart Agreement”), is delivered pursuant to the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

SECTION 1. In accordance with Section 5.10 of the Credit Agreement, the undersigned by its signature below becomes a Guarantor Subsidiary under the Credit Agreement with the same force and effect as if originally named therein as a Guarantor Subsidiary, and the undersigned hereby (a) agrees to all the terms and provisions of the Credit Agreement applicable to it as a Guarantor Subsidiary (and, accordingly, as a Credit Party) thereunder and (b) in furtherance of the foregoing, hereby irrevocably and unconditionally guarantees, jointly and severally with the other Guarantors, the due and punctual payment in full of all Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or any similar provision of any other Debtor Relief Law), all in accordance with, and subject to the provisions of, Section 7 of the Credit Agreement.

SECTION 2. The undersigned hereby represents and warrants, as to itself, that the representations and warranties set forth in Sections 4.1, 4.3, 4.4, 4.5 and 4.6 of the Credit Agreement are true and correct on and as of the date hereof.

SECTION 3. The undersigned agrees to execute any and all further documents, agreements and instruments, and take all such further actions, that the Administrative Agent may reasonably request to effectuate the transactions contemplated by, and to carry out the intent of, this Counterpart Agreement.

SECTION 4. Neither this Counterpart Agreement nor any provision hereof may be waived, amended or modified, and no consent to any departure by the undersigned therefrom may be made, except in accordance with the Credit Agreement. Any notice or other communication herein required or permitted to be given shall be given pursuant to Section 10.1 of the Credit Agreement. In case any provision in or obligation under this Counterpart Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

SECTION 5. THIS COUNTERPART AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the undersigned has caused this First Lien Counterpart Agreement to be duly executed and delivered by its duly authorized officer as of the date above first written.

[NAME OF DESIGNATED SUBSIDIARY]

By: _______

Name:

Title:

ACKNOWLEDGED AND ACCEPTED,

as of the date above first written:

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Administrative Agent

By:_____________________

Name:

Title:

EXHIBIT F

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

FUSION CONNECT, INC.

420 Lexington Avenue

Suite 1718

New York, New York 10170

Wilmington Trust, National Association

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

Attention: Josh James

Telephone: (612) 217-5637

Fax: (612) 217-5651

Email: jjames@wilmingtontrust.com

FUNDING NOTICE

Reference is made to the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

Pursuant to Section [2.1][2.2] of the Credit Agreement, the Borrower desires that Lenders make the following Loans to the Borrower in accordance with the applicable terms and conditions of the Credit Agreement on [ ], 20[ ] (the “Credit Date”):

Tranche A Term Loans36: □           Base Rate Loans: □ Eurodollar Rate Loans, with an initial Interest Period of ________ month(s)37:	$[___,___,___] $[___,___,___]
Tranche B Term Loans38: □           Base Rate Loans: □ Eurodollar Rate Loans, with an initial Interest Period of ________ month(s)39:	$[___,___,___] $[___,___,___]
Revolving Loans40: □           Base Rate Loans: □ Eurodollar Rate Loans, with an initial Interest Period of ________ month(s)41:	$[___,___,___] $[___,___,___]

Wiring instructions for account to which

proceeds of Loans are to be remitted:                                                                                                 [ ]

36 Funding Notice must be delivered to the Administrative Agent (a) with respect to a Base Rate Term Borrowing, not later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date (which shall be a Business Day) and (b) with respect to a Eurodollar Rate Term Borrowing, not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Credit Date (which shall be a Business Day) (or, in each case, with respect to any Borrowing of Incremental Term Loans or Refinancing Term Loans, not later than such other time as shall be specified therefor in the applicable Incremental Facility Agreement or Refinancing Facility Agreement). Eurodollar Rate Term Borrowings generally shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess of such amount.

37 Subject to the definition of “Interest Period”, which generally allows the Borrower to request one, two, three or six month periods (or such longer period as consented to by each Lender of the applicable Class of Loans and notified in writing to the Administrative Agent). If no election is specified, then the Borrower will be deemed to have specified an Interest Period of one month.

38 See Note 1.

39 Subject to the definition of “Interest Period”. See Note 2.

40 Funding Notice must be delivered to the Administrative Agent (a) with respect to a Base Rate Revolving Borrowing, not later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date (which shall be a Business Day) and (b) with respect to a Eurodollar Rate Revolving Borrowing, not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Credit Date (which shall be a Business Day). Revolving Borrowings generally shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess of such amount.

41 Subject to the definition of “Interest Period”. See Note 2.

The Borrower hereby certifies that:42

(a) The representations and warranties of each Credit Party set forth in the Credit Documents are true and correct (i) in the case of the representations and warranties qualified as to materiality in the text thereof, in all respects, and (ii) otherwise, in all material respects, in each case on and as of the Credit Date set forth above, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty is so true and correct on and as of such earlier date.

(b) At the time of and immediately after giving effect to such Credit Extension, no Default or Event of Default has occurred and is continuing or would result therefrom.

Date: [ ], 20[ ] 

FUSION CONNECT, INC.

By:           ________________________________

Name:

Title:

42 In the case of any Term Loans the proceeds of which are intended to be applied to finance a Limited Conditionality Transaction, the certifications set forth in clauses (a) and (b) may be satisfied as of the applicable LCT Test Date in accordance with Section 1.5 of the Credit Agreement.

    EXHIBIT G

       TO FUSION CONNECT, INC.

      FIRST LIEN CREDIT AND GUARANTY AGREEMENT

FIRST LIEN INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT, dated as of May 4, 2018 (this “Agreement”), among FUSION CONNECT, INC., a Delaware corporation (the “Borrower”), the other Intercompany Lenders and Intercompany Debtors (each as defined below) from time to time party hereto and Wilmington Trust, National Association, as Administrative Agent.

Reference is made to the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

The Credit Agreement provides that Indebtedness owing by a Credit Party to any Restricted Subsidiary that is not a Credit Party shall be subordinated in right of payment to the Obligations. For purposes of this Agreement, (a) “Intercompany Indebtedness” means any Indebtedness owed by any Credit Party to any Restricted Subsidiary that is not a Credit Party, together with all interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the principal of such Indebtedness and all other monetary obligations of any Credit Party arising from or in respect of such Indebtedness, including obligations to pay fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) each of the Credit Parties, in its capacity as an obligor in respect of any Intercompany Indebtedness, is referred to herein as an “Intercompany Debtor”, (c) each of the Restricted Subsidiaries that is not a Credit Party, in its capacity as an obligee in respect of any Intercompany Indebtedness, is referred to herein as an “Intercompany Lender” and (d) the Lenders, the Agents (including former Agents, as applicable) and the other Secured Parties are sometimes collectively referred to as “Senior Lenders”.

The Senior Lenders have agreed to extend credit to the Borrower, and to permit the Credit Parties to incur Intercompany Indebtedness, subject to the terms and conditions set forth in the Credit Agreement. The Borrower and the other Restricted Subsidiaries are required to execute and deliver this Agreement pursuant to the terms of the Credit Agreement. In accordance with the Credit Agreement, each of the Restricted Subsidiaries party hereto that is not a Credit Party desires to enter into this Agreement in order to subordinate, on the terms set forth herein, its rights, as an Intercompany Lender, to payment under any Intercompany Indebtedness to the prior payment in full in cash or immediately available funds of the Obligations (other than contingent obligations as to which no claim has been made). The Intercompany Lenders are Affiliates of the Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in order to induce the Senior Lenders to extend such credit. Accordingly, the parties hereto agree as follows:

1.Definitions and Construction. Terms defined in the Credit Agreement or the Pledge and Security Agreement referred to therein, as applicable, are used herein (including the preliminary statements hereto) as defined therein. The rules of construction specified in Section 1.3 of the Credit Agreement shall apply to this Agreement, mutatis mutandis.

2.Subordination. (a) Each Intercompany Lender hereby agrees that all its right, title and interest in, to and under any Intercompany Indebtedness owed to it by any Intercompany Debtor shall be subordinate, and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Obligations of such Intercompany Debtor until the payment in full in cash or immediately available funds of all Obligations of such Intercompany Debtor (such Obligations, including interest thereon (including interest accruing at the default rate specified in the Credit Agreement) accruing after the commencement of any proceedings referred to in paragraph (b) of this Section, whether or not such interest is an allowed or allowable claim in such proceeding, being hereinafter collectively referred to as “Senior Indebtedness”).

(a)In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relating to any Intercompany Debtor or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of any Intercompany Debtor, whether or not involving insolvency or bankruptcy, then (i) the holders of Senior Indebtedness shall be paid in full in cash or immediately available funds in respect of all amounts constituting Senior Indebtedness before any Intercompany Lender shall be entitled to receive (whether directly or indirectly), or make any demand for, any payment or distribution of any kind or character, whether in cash securities or other property (other than Restructured Debt Securities (as defined below)), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, from such Intercompany Debtor on account of any Intercompany Indebtedness owed by such Intercompany Debtor to such Intercompany Lender (provided that the foregoing shall not impair the right of any such Intercompany Lender to file a proof of claim in any such proceeding in accordance with the terms hereof) and (ii) until the holders of Senior Indebtedness are paid in full in cash or immediately available funds in respect of all amounts constituting Senior Indebtedness, any payment or distribution to which such Intercompany Lender would otherwise be entitled, whether in cash, property or securities (other than a payment of debt securities of such Intercompany Debtor that are subordinated and junior in right of payment to the Senior Indebtedness to at least the same extent as the Intercompany Indebtedness described in this Agreement is subordinated and junior in right of payment to the Senior Indebtedness then outstanding (such securities being hereinafter referred to as “Restructured Debt Securities”)) shall instead be made to the holders of Senior Indebtedness.

(b)If any Event of Default has occurred and is continuing and the Administrative Agent has provided prior written notice to the Borrower requesting that no such payment or distribution, or no such forgiveness or reduction, be made, then (i) no payment or distribution of any kind or character, whether in cash securities or other property (other than Restructured Debt Securities), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be made by or on behalf of any Intercompany Debtor with respect to any Intercompany Indebtedness owed to any Intercompany Lender and (ii) no Intercompany Indebtedness owing by any Intercompany Debtor to any Intercompany Lender shall be forgiven or otherwise reduced in any way, other than as a result of payment of such amount in full in cash or immediately available funds.

(c)If any payment or distribution of any kind or character, whether in cash, securities or other property (other than Restructured Debt Securities), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, with respect to any Intercompany Indebtedness shall (despite these subordination provisions) be received by any Intercompany Lender from any Intercompany Debtor in violation of paragraph (b) or (c) of this Section prior to all Senior Indebtedness having been paid in full in cash or immediately available funds (other than contingent obligations as to which no claim has been made), such payment or distribution shall be held by such Intercompany Lender (segregated from other property of such Intercompany Lender) for the benefit of the Administrative Agent, and shall be paid over or delivered to the Administrative Agent promptly upon receipt to the extent necessary to pay all Senior Indebtedness in full in cash or immediately available funds.

(d)Each Intercompany Lender and each Intercompany Debtor hereby agrees that the subordination provisions set forth in this Agreement are for the benefit of the Administrative Agent and the other holders of Senior Indebtedness. The Administrative Agent may, on behalf of itself and such other holders of Senior Indebtedness, proceed to enforce these subordination provisions set forth herein.

3.Waivers and Consents. (a) Each Intercompany Lender waives, to the extent permitted by applicable law, the right to compel that any property or asset of any Intercompany Debtor or any property or asset of any other Credit Party be applied in any particular order to discharge the Obligations. Each Intercompany Lender expressly waives, to the extent permitted by applicable law, the right to require the Administrative Agent or any other Senior Lender to proceed against any Intercompany Debtor, any guarantor of any Obligation or any other Person, or to pursue any other remedy in its or their power that such Intercompany Lender cannot pursue and that would lighten such Intercompany Lender’s burden, notwithstanding that the failure of the Administrative Agent or any other Senior Lender to do so may thereby prejudice such Intercompany Lender. Each Intercompany Lender agrees that it shall not be discharged, exonerated or have its obligations hereunder reduced (i) by the Administrative Agent’s or any other Senior Lender’s delay in proceeding against or enforcing any remedy against any Intercompany Debtor, any guarantor of any Obligation or any other Person; (ii) by the Administrative Agent or any other Senior Lender releasing any Intercompany Debtor, any guarantor of any Obligation or any other Person from all or any part of the Obligations; or (iii) by the discharge of any Intercompany Debtor, any guarantor of any Obligation or any other Person by an operation of law or otherwise, with or without the intervention or omission of the Administrative Agent or any other Senior Lender.

(a)Each Intercompany Lender waives, to the extent permitted by applicable law, all rights and defenses arising out of an election of remedies by the Administrative Agent or any other Senior Lender, even though that election of remedies, including any nonjudicial foreclosure with respect to any property or asset securing any Obligation, has impaired the value of such Intercompany Lender’s rights of subrogation, reimbursement, or contribution against any Intercompany Debtor or any other Credit Party. Each Intercompany Lender expressly waives, to the extent permitted by law, any rights or defenses (other than the defense of payment or performance) it may have by reason of protection afforded to any Intercompany Debtor or any other Credit Party with respect to the Obligations pursuant to any anti-deficiency laws or other laws of similar import that limit or discharge the principal debtor’s indebtedness upon judicial or nonjudicial foreclosure of property or assets securing any Obligation.

(b)Each Intercompany Lender agrees that, without the necessity of any reservation of rights against it, and without notice to or further assent by it, any demand for payment of any Obligation made by the Administrative Agent or any other Senior Lender may be rescinded in whole or in part by such Person, and any Obligation may be continued, and the Obligations or the liability of any Intercompany Debtor or any other Credit Party obligated thereunder, or any right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered or released by the Administrative Agent or any other Senior Lender, in each case without notice to or further assent by such Intercompany Lender, which will remain bound hereunder, and without impairing, abridging, releasing or affecting the subordination provided for herein.

(c)Each Intercompany Lender waives, to the extent permitted by applicable law, any and all notice of the creation, renewal, extension or accrual of any of the Obligations, and any and all notice of or proof of reliance by the Senior Lenders upon this Agreement. The Obligations, and any of them, shall be deemed conclusively to have been created, contracted or incurred, and the consent to create the obligations of any Intercompany Debtor in respect of the Intercompany Indebtedness of such Intercompany Debtor shall be deemed conclusively to have been given, in reliance upon this Agreement. Each Intercompany Lender waives, to the extent permitted by applicable law, any protest, demand for payment and notice of default in respect of the Obligations.

4.Obligations Unconditional. All rights and interests of the Administrative Agent and the other Senior Lenders hereunder, and all agreements and obligations of each Intercompany Lender and each Intercompany Debtor hereunder, shall remain in full force and effect irrespective of:

(a)any lack of validity or enforceability of the Credit Agreement or any other Credit Document;

(b)any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations or any amendment or waiver or other modification, whether by course of conduct or otherwise, of, or consent to departure from, the Credit Agreement or any other Credit Document;

(c)any exchange, release or nonperfection of any Lien in any Collateral, or any release, amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of or consent to departure from, any guarantee of any Obligation; or

(d)any other circumstances that might otherwise constitute a defense available to, or a discharge of, any Intercompany Debtor in respect of the Obligations or of such Intercompany Lender or such Intercompany Debtor in respect of the subordination provisions set forth herein (other than the payment in full in cash or immediately available funds of the Obligations).

5.Waiver of Claims. (a) To the maximum extent permitted by law, each Intercompany Lender waives any claim it might have against the Administrative Agent or any other 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 the Administrative Agent or any other Senior Lender or any Related Party of any of the foregoing with respect to any exercise of rights or remedies under the Credit Documents in the absence of the gross negligence or wilful misconduct of such Person or its Related Parties (such absence to be presumed unless otherwise determined by a final, non-appealable judgment of a court of competent jurisdiction). None of the Administrative Agent or any other Senior Lender or any Related Party of any of the foregoing shall be liable to any Intercompany Lender for failure to demand, collect or realize upon any of the Collateral or any guarantee of any Obligation, 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 such Intercompany Lender or any other Person or to take any other action whatsoever with regard to the Collateral, or any part thereof, except to the extent such liability has been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Person or its Related Parties.

(a)Each Intercompany Lender, for itself and on behalf of its successors and assigns, hereby waives, to the extent permitted by applicable law, any and all now existing or hereafter arising rights it may have to require the Senior Lenders to marshal assets for the benefit of such Intercompany Lender, or to otherwise direct the timing, order or manner of any sale, collection or other enforcement of the Collateral or enforcement of any rights or remedies under the Credit Documents. The Senior Lenders are under no duty or obligation, and each Intercompany Lender hereby waives, to the extent permitted by applicable law, any right it may have to compel any Senior Lender, to pursue any Intercompany Debtor or any other Credit Party that may be liable for the Obligations, or to enforce any Lien in any Collateral.

(b)Each Intercompany Lender hereby waives, to the extent permitted by applicable law, and releases all rights which a guarantor or surety with respect to the Senior Indebtedness could exercise.

6.Notices. All communications and notices hereunder shall be in writing and given in the manner provided in Section 10.1 of the Credit Agreement. All communications and notices to any Intercompany Lender or Intercompany Debtor shall be given to it in care of the Borrower in the manner provided in Section 10.1 of the Credit Agreement.

7.Waivers; Amendment. (a) No failure or delay by the Administrative Agent or any other Senior Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the other Senior Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Intercompany Lender or any Intercompany Debtor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No notice or demand on any Intercompany Lender or any Intercompany Debtor in any case shall entitle any Intercompany Lender or any Intercompany Debtor to any other or further notice or demand in similar or other circumstances.

(a)Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Administrative Agent, the Borrower and the Intercompany Lenders or Intercompany Debtors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 10.5 of the Credit Agreement.

8.Successors and Assigns. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns permitted hereby.

(a)The Administrative Agent and the other Secured Parties shall have a full and unfettered right to assign or otherwise transfer the whole or any part of the benefit of this Agreement to any Person to whom all or a corresponding part of the Obligations are assigned or transferred in accordance with the Credit Agreement or pursuant to applicable law, all without impairing, abridging, releasing or affecting the subordination provided for herein.

9.Survival of Agreement. All covenants, agreements, representations and warranties made by the Intercompany Lenders and the Intercompany Debtors in this Agreement shall be considered to have been relied upon by the Administrative Agent and the other Senior Lenders and shall survive the execution and delivery of this Agreement, regardless of any investigation made by or on behalf of the Administrative Agent or any other Senior Lender and notwithstanding that the Administrative Agent or any other Senior Lender may have had notice or knowledge of any default hereunder or incorrect representation or warranty at the time this Agreement is executed and delivered and shall continue in full force and effect until terminated in accordance with Section 17. The provisions of Section 5 shall survive and remain in full force and effect regardless of the termination of this Agreement or any provision hereof. This Agreement shall apply in respect of the Obligations notwithstanding any intermediate payment in whole or in part of the Obligations and shall apply to the ultimate balance of the Obligations.

10.Counterparts; Effectiveness; Several Agreement. 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. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall become effective as to any Intercompany Lender or Intercompany Debtor when a counterpart hereof executed on behalf of such Intercompany Lender or Intercompany Debtor shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the Administrative Agent and delivered to the Borrower. This Agreement shall be construed as a separate agreement with respect to each Intercompany Lender and each Intercompany Debtor and may be amended, modified, supplemented, waived or released with respect to any Intercompany Lender or Intercompany Debtor without the approval of any other Intercompany Lender or Intercompany Debtor and without affecting the obligations of any other Intercompany Lender or Intercompany Debtor hereunder.

11.Severability. In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

12.Further Assurances. The Borrower, each other Intercompany Lender and each other Intercompany Debtor agrees that it will execute any and all further documents, agreements and instruments, and take all such further actions that may be required under any applicable law, or that the Administrative Agent may reasonably request for the purposes of obtaining or preserving the full benefits of the subordination provisions set forth herein and of the rights and powers herein granted, all at the expense of the Borrower or such Intercompany Lenders or such Intercompany Debtors.

13.GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; APPOINTMENT OF SERVICE OF PROCESS AGENT. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

(a)EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE JURISDICTION OF ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE BORROWER, EACH OTHER INTERCOMPANY LENDER AND EACH OTHER INTERCOMPANY DEBTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING BROUGHT BY IT OR ANY OF ITS AFFILIATES SHALL BE BROUGHT, AND SHALL BE HEARD AND DETERMINED, EXCLUSIVELY IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY OTHER SENIOR LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST THE BORROWER, ANY OTHER INTERCOMPANY LENDER, ANY OTHER INTERCOMPANY DEBTOR OR ANY OF ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(b)Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section 13. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, any defense of forum non conveniens to the maintenance of such action or proceeding in any such court.

(c)Each party hereto irrevocably consents to the service of process by mailing of copies of such process in the manner provided for notices in Section 6. Nothing in this Agreement will affect the right of any party to this Agreement or any Secured Party to serve process in any other manner permitted by law.

14.WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO 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 14 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR TO THE TRANSACTIONS CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

15.Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or to be taken into consideration in interpreting, this Agreement.

16.Provisions Define Relative Rights. The subordination provisions set forth herein are intended solely for the purpose of defining the relative rights of the Intercompany Lenders and the Intercompany Debtors, on the one hand, and the Administrative Agent and the other Secured Parties, on the other, and no other Person shall have any right, benefit or other interest under these subordination provisions.

17.Termination. This Agreement and the subordination provisions set forth herein shall automatically terminate when all the Obligations (other than contingent obligations as to which no claim has been made and the Specified Hedge Obligations and Specified Cash Management Services Obligations) have been paid in full in cash or immediately available funds, all Commitments have terminated and no Letter of Credit shall be outstanding. If (a) any Restricted Subsidiary shall have been designated as an Unrestricted Subsidiary in accordance with the terms of the Credit Agreement or (b) all the Equity Interests in any Restricted Subsidiary held by the Borrower and the Subsidiaries shall be sold or otherwise disposed of (including by merger or consolidation) in any transaction permitted by the Credit Agreement, and as a result of such sale or other disposition such Restricted Subsidiary shall cease to be a Subsidiary of the Borrower, then such Restricted Subsidiary shall, upon effectiveness of such designation, or the consummation of such sale or other disposition, automatically be discharged and released from its obligations hereunder;provided that that no such discharge and release shall occur unless substantially concurrently therewith, such Restricted Subsidiary shall cease to be subject to any obligations under any subordination agreement with respect to intercompany Indebtedness in favor of any Permitted Second Lien Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Indebtedness and any Permitted Subordinated Indebtedness.

18.Additional Subsidiaries. Pursuant to the Credit Agreement, certain Restricted Subsidiaries not a party hereto on the Closing Date are required to enter into this Agreement. Upon execution and delivery to the Administrative Agent after the date hereof by any Restricted Subsidiary of a counterpart signature page hereto, such Restricted Subsidiary shall become a party hereto with the same force and effect as if originally named as such herein. The execution and delivery of such a counterpart signature page shall not require the consent of any party hereto. The rights and obligations under this Agreement of each other party hereto shall remain in full force and effect notwithstanding the addition of any new Restricted Subsidiary as a party to this Agreement.

6.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

FUSION CONNECT, INC.,
by
	Name:
	Title:

[Signature Page to Intercompany Indebtedness Subordination Agreement]

[ ]
by
	Name:
	Title:

[Signature Page to Intercompany Indebtedness Subordination Agreement]

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent,
by
	Name:
	Title:

[Signature Page to Intercompany Indebtedness Subordination Agreement]

EXHIBIT H

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

GLOBAL INTERCOMPANY NOTE

May 4, 2018

FOR VALUE RECEIVED, each of the undersigned, to the extent a borrower from time to time from any other Person listed on the signature pages hereto (each, in such capacity, a “Payor”), hereby promises to pay on demand to such other Person listed below (each, in such capacity, a “Payee”), in lawful money of the United States of America, or in such other currency as agreed to by such Payor and such Payee, in immediately available funds, at such location as such Payee shall from time to time designate, the unpaid principal amount of all Indebtedness owed by such Payor to such Payee. Each Payor promises also to pay interest on the unpaid principal amount of all such Indebtedness in like money at said location from the date that such Indebtedness was incurred until it is paid in full at such rate per annum as shall be agreed upon from time to time by such Payor and such Payee.

Reference is made to (a) that certain First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “First Lien Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent (in its capacity as collateral agent, the “First Lien Collateral Agent”), and (b) that certain Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Second Lien Credit Agreement” and, together with the First Lien Credit Agreement, the “Credit Agreements”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent (in its capacity as collateral agent, the “Second Lien Collateral Agent” and, together with the First Lien Collateral Agent, the “Collateral Agents”).

Capitalized terms used in this Global Intercompany Note (this “Note”) but not otherwise defined herein shall have the meanings given to them in (a) the First Lien Credit Agreement, or in the Pledge and Security Agreement referred to therein, or (b) the Second Lien Credit Agreement, or in the Pledge and Security Agreement referred to therein, as applicable.

This Note is subject to the terms of each Credit Agreement, and shall be pledged by each Payee that is a Credit Party to each Collateral Agent, for the benefit of the related Secured Parties, pursuant to the related Credit Documents as security for the payment and performance in full of the Obligations under each Credit Agreement and the related other Credit Documents, to the extent required pursuant to the terms thereof. Each Payee hereby acknowledges and agrees that upon the occurrence and during the continuance of an Event of Default under a Credit Agreement, (a) the applicable Collateral Agent may exercise any and all rights of any Credit Party with respect to this Note and (b) upon demand of the applicable Collateral Agent, all amounts evidenced by this Note that are owed by any Payor to any Credit Party shall become immediately due and payable, without presentment, demand, protest or notice of any kind (it being understood that the applicable Collateral Agent may make any such demand for all or any subset of the amounts owing to such Credit Party and upon any or all Payors obligated to such Credit Party, all without the consent or permission of any Payor or Payee). Each Payor also hereby acknowledges and agrees that this Note constitutes notice of assignment for security, pursuant to the relevant Credit Documents, of the Indebtedness and all other amounts evidenced by this Note and further acknowledges the receipt of such notice of assignment for security.

Upon the commencement of any insolvency or bankruptcy proceeding, or any receivership, liquidation, reorganization or other similar proceeding in connection therewith, in respect of any Payor owing any amounts evidenced by this Note to any Credit Party, or in respect of all or a substantial part of any such Payor’s property, or upon the commencement of any proceeding for voluntary liquidation, dissolution or other winding up of any such Payor, all amounts evidenced by this Note owing by such Payor to any and all Credit Parties shall become immediately due and payable, without presentment, demand, protest or notice of any kind.

Each Payee is hereby authorized to record all loans and advances made by it to any Payor (all of which shall be evidenced by this Note), and all repayments or prepayments thereof, in its books and records, such books and records constituting prima facie evidence of the accuracy of the information contained therein;provided, however, that the failure of any such Payee to so record any such information in accordance with this clause shall not affect any such Payor’s obligations hereunder.

Each Payor hereby waives diligence, presentment, demand, protest or notice of any kind whatsoever in connection with this Note. All payments under this Note shall be made without set-off, counterclaim or deduction of any kind.

This Note shall be binding upon each Payor and its successors and assigns, and the terms and provisions of this Note shall inure to the benefit of each Payee and its successors and assigns, including subsequent holders hereof.

From time to time after the date hereof, additional Restricted Subsidiaries of the Borrower may become parties hereto (as Payor and/or Payee, as the case may be) by executing a counterpart signature page to this Note (each additional Restricted Subsidiary, an “Additional Party”). Upon delivery of such counterpart signature page to the Payees, notice of which is hereby waived by the other Payors, each Additional Party shall be a Payor and/or a Payee, as the case may be, and shall be as fully a party hereto as if such Additional Party were an original signatory hereof. Each Payor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Payor or Payee hereunder. This Note shall be fully effective as to any Payor or Payee that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Payor or Payee hereunder.

No amendment, modification or waiver of, or consent with respect to, any provisions of this Note shall be effective unless the same shall be in writing and signed and delivered by each Payor and Payee whose rights or obligations shall be affected thereby;provided that, until such time as (a) all the Obligations (other than contingent obligations as to which no claim has been made and the Specified Hedge Obligations and Specified Cash Management Services Obligations) under each Credit Agreement and the related other Credit Documents have been paid in full in cash or immediately available funds, (b) all Commitments have terminated and (c) no Letter of Credit shall be outstanding, as applicable, each Administrative Agent shall have provided its prior written consent to such amendment, modification, waiver or consent (which consent shall not be unreasonably withheld or delayed).

THIS NOTE AND ALL INDEBTEDNESS EVIDENCED HEREBY ARE SUBJECT TO THE SUBORDINATION PROVISIONS OF (a) THE INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT, DATED AS OF MAY 4, 2018 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “FIRST LIEN INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT”), AMONG THE BORROWER, SUBSIDIARIES OF THE BORROWER PARTY THERETO AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT UNDER THE FIRST LIEN CREDIT AGREEMENT, AND (b) THE INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT, DATED AS OF MAY 4, 2018 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “SECOND LIEN INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT” AND, TOGETHER WITH THE FIRST LIEN INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT, THE “INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENTS”), AMONG THE BORROWER, SUBSIDIARIES OF THE BORROWER PARTY THERETO AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT UNDER THE SECOND LIEN CREDIT AGREEMENT. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, NEITHER THE PRINCIPAL OF NOR THE INTEREST ON, NOR ANY OTHER AMOUNTS PAYABLE IN RESPECT OF, ANY INDEBTEDNESS CREATED OR EVIDENCED BY THIS NOTE SHALL BE PAID OR PAYABLE, EXCEPT TO THE EXTENT PERMITTED UNDER THE INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENTS, WHICH ARE INCORPORATED HEREIN BY REFERENCE WITH THE SAME FORCE AND EFFECT AS IF FULLY SET FORTH HEREIN.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

PAYORS:

FUSION CONNECT, INC.,
by
	Name:
	Title:

FUSION NBS ACQUISITION CORP. FUSION, LLC FUSION BCHI ACQUISITION, LLC BIRCH COMMUNICATIONS, LLC CBEYOND, INC. CBEYOND COMMUNICATIONS, LLCBIRCH MANAGEMENT LLC BIRCH TELECOM LLC BIRCH TEXAS HOLDINGS, INC. BIRCH TELECOM OF KANSAS, LLC BIRCH TELECOM OF OKLAHOMA, LLC BIRCH TELECOM OF MISSOURI, LLC BIRCH TELECOM OF TEXAS LTD., L.L.P. BIRCAN HOLDINGS, LLCPRIMUS HOLDINGS, INC.FUSION MPHC ACQUISITION CORP.,
By:
	Name:
	Title:

PRIMUS MANAGEMENT ULCBIRCAN MANAGEMENT ULC,
by
	Name:
	Title:

[Signature Page to Global Intercompany Note]

PAYEES:

FUSION CONNECT, INC.,
by
	Name:
	Title:

FUSION NBS ACQUISITION CORP. FUSION, LLC FUSION BCHI ACQUISITION, LLC BIRCH COMMUNICATIONS, LLC CBEYOND, INC. CBEYOND COMMUNICATIONS, LLCBIRCH MANAGEMENT LLC BIRCH TELECOM LLC BIRCH TEXAS HOLDINGS, INC. BIRCH TELECOM OF KANSAS, LLC BIRCH TELECOM OF OKLAHOMA, LLC BIRCH TELECOM OF MISSOURI, LLC BIRCH TELECOM OF TEXAS LTD., L.L.P. BIRCAN HOLDINGS, LLCPRIMUS HOLDINGS, INC.FUSION MPHC ACQUISITION CORP.,
By:
	Name:
	Title:

PRIMUS MANAGEMENT ULCBIRCAN MANAGEMENT ULC,
by
	Name:
	Title:

[Signature Page to Global Intercompany Note]

EXHIBIT I

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

FORM OF INTERCREDITOR AGREEMENT

[See attached]

EXHIBIT J

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

FUSION CONNECT, INC.

420 Lexington Avenue

Suite 1718

New York, New York 10170

Wilmington Trust, National Association

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

Attention: Josh James

Telephone: (612) 217-5637

Fax: (612) 217-5651

Email: jjames@wilmingtontrust.com

[Issuing Bank and address]

ISSUANCE NOTICE

Reference is made to the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

Pursuant to Section 2.3 of the Credit Agreement, the Borrower desires that a Letter of Credit be [issued][amended][extended]43 (the “Credit Extension”) in accordance with the terms and conditions of the Credit Agreement on [ ], 20[ ] (the “Credit Date”).44

Attached hereto for each such [issuance][amendment][extension] are the following:45

1.the stated amount of the requested Letter of Credit;

2.the name and address of the beneficiary;

3.the expiration date; and

4.either (i) the verbatim text of such requested Letter of Credit or (ii) a description of the proposed terms and conditions of such Letter of Credit, including a precise description of any documents to be presented by the beneficiary that, if presented by the beneficiary prior to the expiration date of such Letter of Credit, would require the Issuing Bank to make payment under such Letter of Credit.

43 To be used if extending the Letter of Credit other than by automatic extension permitted pursuant to Section 2.3(a) of the Credit Agreement.

44 Issuance Notice must be delivered to the Administrative Agent and the applicable Issuing Bank no later than 11:00 a.m. (New York City time) at least two Business Days in advance of the proposed Credit Date (or such shorter time as may be agreed to by such Issuing Bank).

45 If requested by the applicable Issuing Bank, also attach a completed and executed letter of credit application on such Issuing Bank’s standard form. Discuss with the Issuing Bank what information would be required.

The Borrower hereby certifies that:

5.as of the applicable Credit Date and after giving effect to such Credit Extension (i) the Total Utilization of Revolving Commitments does not exceed the Total Revolving Commitments, (ii) the Letter of Credit Usage does not exceed the Letter of Credit Sublimit and (iii) the Letter of Credit Usage attributable to Letters of Credit issued by the Issuing Bank does not exceed the Letter of Credit Issuing Commitment of the Issuing Bank;

6.the representations and warranties of each Credit Party set forth in the Credit Documents are true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects, and (ii) otherwise, in all material respects, in each case on and as of the applicable Credit Date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty is so true and correct on and as of such earlier date; and

7.at the time of and immediately after giving effect to such Credit Extension, no Default or Event of Default has occurred and is continuing.

Date: [ ], 20[ ] 

FUSION CONNECT, INC.

By:           __________________________________

Name:

Title:

EXHIBIT K

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

FORM OF FIRST LIEN PLEDGE AND SECURITY AGREEMENT

[See attached]

EXHIBIT L

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

SOLVENCY CERTIFICATE

Date: May 4, 2018

To the Administrative Agent and each of the Lenders

party to the Credit Agreement referred to below:

Pursuant Section 3.1(h) of the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent, the undersigned, solely in the undersigned’s capacity as the chief financial officer of the Borrower, hereby certifies, on behalf of the Borrower and not in the undersigned’s individual or personal capacity and without personal liability, that, as of the Closing Date, after giving effect to the Transactions contemplated thereby (including the making of the Loans on the Closing Date and the application of the proceeds thereof):

(a) the sum of the debt and other liabilities (including contingent liabilities) of the Borrower and the Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present assets of the Borrower and the Subsidiaries, on a consolidated basis;

(b) the capital of the Borrower and the Subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as conducted or proposed to be conducted, on a consolidated basis;

(c) the Borrower and the Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that they will incur, debts and liabilities (including contingent liabilities), on a consolidated basis, beyond the ability of the Borrower and the Subsidiaries, on a consolidated basis, to pay such debts and liabilities as they become due (whether at maturity or otherwise); and

(d) the Borrower and the Subsidiaries, on a consolidated basis, are “solvent” within the meaning given to that term and similar terms under any applicable Debtor Relief Laws and other applicable laws relating to preferences, fraudulent transfers and conveyances or transfers undervalue.

For purposes of this Solvency Certificate, the amount of any contingent liability at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria for accrual under GAAP).

Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.

The undersigned is familiar with the business and financial position of the Borrower and the Subsidiaries. In reaching the conclusions set forth in this Solvency Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the business proposed to be conducted by the Borrower and the Subsidiaries after consummation of the Transactions.

IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate, solely in the undersigned’s capacity as the chief financial officer of the Borrower, on behalf of the Borrower and not in the undersigned’s individual or personal capacity and without personal liability, as of the date first stated above.

FUSION CONNECT, INC.
by
	Name:
	Title:

EXHIBIT M

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

SUPPLEMENTAL COLLATERAL QUESTIONNAIRE

Reference is made to (a) the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (the “First Lien Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and as collateral agent (in its capacity as collateral agent, the “First Lien Collateral Agent”), and (b) the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (the “Second Lien Credit Agreement” and, together with the First Lien Credit Agreement, the “Credit Agreements”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and as collateral agent (in its capacity as collateral agent, the “Second Lien Collateral Agent” and, together with the First Lien Collateral Agent, the “Collateral Agents”). Capitalized terms used but not otherwise defined herein shall have the meanings specified in (i) the First Lien Credit Agreement or the Pledge and Security Agreement referred to therein or (ii) the Second Lien Credit Agreement or the Pledge and Security Agreement referred to therein, as applicable.

This Supplemental Collateral Questionnaire dated as of [          ], 20[ ] is delivered pursuant to Section 5.1(k) of each Credit Agreement, and supplements the information set forth in the Collateral Questionnaire delivered on the Closing Date (as supplemented from time to time by each Supplemental Collateral Questionnaire delivered after the Closing Date and prior to the date hereof, the “Prior Collateral Questionnaire”) with respect to each Credit Party (which term, for purposes of this Supplemental Collateral Questionnaire, shall be deemed to include each New Subsidiary as defined in each Pledge and Security Agreement).

The undersigned, an Authorized Officer of the Borrower, solely in his/her capacity as an Authorized Officer, and not individually and without personal liability, hereby certifies to each Collateral Agent and the related other Secured Parties as follows:

SECTION1.Legal Names. Schedule 1 hereto sets forth the exact legal name of each Credit Party, as such name appears in its certificate of organization, and indicates changes, if any, in the foregoing information compared to the information set forth on Schedule 1 of the Prior Collateral Questionnaire.

SECTION2.Jurisdictions and Locations. Schedule 2A hereto sets forth (a) the jurisdiction of organization and the form of organization of each Credit Party, (b) the organizational identification number, if any, assigned to each Credit Party by such jurisdiction and the federal taxpayer identification number, if any, of such Credit Party and (c) the address (including the county) of the chief executive office of each Credit Party, and indicates changes, if any, in the foregoing information compared to the information set forth on Schedule 2A of the Prior Collateral Questionnaire.

SECTION3.Status of Filings. All UCC financing statements (including fixtures filings and transmitting utility filings, as applicable) and all Intellectual Property Security Agreements or supplements thereto have been filed of record in each applicable governmental office in order that, to the extent perfection can be obtained by filing UCC financing statements and recordation of a security agreement with the United States Patent and Trademark Office or the United States Copyright Office, the security interests created under the Collateral Documents (as defined in each Credit Agreement) shall be perfected for a period of not less than 18 months after the date of this Supplemental Collateral Questionnaire (except as noted in Schedule 3 hereto with respect to any continuation statements to be filed within such period).

SECTION4.Equity Interests. Schedule 4 hereto sets forth a true and complete list, for each Credit Party, of all the stock, partnership interests, limited liability company membership interests or other Equity Interests owned by such Credit Party, specifying the issuer and certificate number of (if certificated), and the number and percentage of ownership represented by, such Equity Interests, and indicates changes, if any, in such list compared to the list set forth on Schedule 4 of the Prior Collateral Questionnaire.

SECTION5.Debt Instruments. Schedule 5 hereto sets forth a true and complete list, for each Credit Party, of all debt securities, promissory notes and other evidence of Indebtedness held by such Credit Party, including (a) all intercompany notes between or among the Borrower and the other Restricted Subsidiaries and (b) all promissory notes in the principal amount of $1,000,000 or more owed to the Borrower or any other Credit Party, in each case specifying the creditor and debtor thereunder and the type and outstanding principal amount thereof, and indicates changes, if any, in such list compared to the list set forth on Schedule 5 of the Prior Collateral Questionnaire.

SECTION6.Material Real Estate Assets. Schedule 6 hereto sets forth a true and complete list, with respect to each Material Real Estate Asset, of (a) the exact name of the Person that owns such property, as such name appears in its certificate of organization or formation, (b) if different from the name identified pursuant to clause (a) above, the name of the current record owner of such property, as such name appears in the records of the county recorder’s office for such property identified pursuant to clause (c) below, and (c) the county recorder’s office in which a Mortgage with respect to such property must be filed or recorded in order for each Collateral Agent to provide constructive notice to third parties of its mortgage lien.

SECTION7.Intellectual Property. Schedule 7 hereto sets forth, in proper form for filing with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, a true and complete list of each Credit Party’s (a) Copyrights, Copyright Applications and exclusive Copyright Licenses (where a Credit Party is a licensee), (b) Patents and Patent Applications and (c) Trademarks and Trademark Applications, in each case specifying the name of the registered owner, title, type or mark, registration or application number, expiration date (if already registered) (except with respect to Copyrights and exclusive Copyright Licenses) or filing date, a brief description thereof and, if applicable, the licensee and licensor, and indicates changes, if any, in such list compared to the list set forth on Schedule 7 of the Prior Collateral Questionnaire.

SECTION8.Commercial Tort Claims. Schedule 8 hereto sets forth a true and complete list of commercial tort claims in excess of $2,000,000 held by any Credit Party, including a brief description thereof, and indicates changes, if any, in such list compared to the list set forth on Schedule 8 of the Prior Collateral Questionnaire.

SECTION9.Insurance. Schedule 9 hereto sets forth a true and complete list of all insurance policies (including life and disability insurance policies) maintained by the Credit Parties, and indicates changes, if any, in such list compared to the list set forth on Schedule 9 of the Prior Collateral Questionnaire.

SECTION10.Other Collateral. Schedule 10 hereto sets forth a true and complete list of all of the following types of collateral, if any, owned or held by each Credit Party, and indicates changes, if any, in such list compared to the list set forth on Schedule 10 of the Prior Collateral Questionnaire: (a) all agreements and contracts with any Governmental Authority, (b) all FCC Licenses and (c) all state telecommunications licenses.

SECTION11.Unusual Transactions. All Accounts of the Credit Parties have been originated by the Credit Parties in the ordinary course of business.

SECTION12.Transmitting Utility Companies. Schedule 12 hereto sets forth (a) the exact legal name of any Credit Party that may be a transmitting utility (as defined in the UCC) and (b) the address(es) where such Credit Party owns any fixtures.

[Signature page follows]

IN WITNESS WHEREOF, the undersigned have duly executed this Supplemental Collateral Questionnaire on this [ ] day of [ ], 20[ ].

FUSION CONNECT, INC.,
by
	Name:
	Title:

Schedule 1

Legal Names

Exact Legal Name French Form of Name (if applicable)

Schedule 2A

Jurisdictions and Locations

Credit Party Jurisdiction of Organization Form of Organization Organizational Identification Number(if any) Federal Taxpayer Identification Number (if any) Chief Executive Office Address (including county)

Schedule 3

Continuation Statement Filings

Credit Party Jurisdiction of Organization UCC Financing Statement to be Continued

Schedule 4

Equity Interests

Credit Party Issuer Type of Organization Number of Shares Owned Total Shares Outstanding Percentage of Interest Pledged Certificate No. (if uncertificated, please indicate so)

Schedule 5

Debt Instruments

Credit Party Debtor Type of Instrument Outstanding Principal Amount

Schedule 6

Material Real Estate Assets

Credit Party/Name of Owner Name/Address/City/State/Zip Code County/ Parish UCC Filing Office/Local Filing Office

Schedule 7

Intellectual Property

I.

Copyrights

Registered Owner Title Registration Number Expiration Date

II.

Copyright Applications

Registered Owner Title Application Number Date Filed

III.

Exclusive Copyright Licenses (where a Credit Party is a licensee)

Licensee Licensor Title Registration Number Expiration Date

IV.

Patents

Registered Owner Title of Patent Country Type Registration Number Issue Date Expiration

V.

Patent Applications

Registered Owner Title of Patent Country Type Application Number Date Filed

VI.

      Trademarks

Registered Owner Mark Country Application No. Registration No. Registration Date Expiration Date

VII.

Trademark Applications

Registered Owner Mark Country Application No. Filing Date

Schedule 8

Commercial Tort Claims

Schedule 9

Insurance

Insurance Policy Coverage Scope of Coverage Lead Insurance Carrier Limit of Liability Term Deductibles or Self-Insured Retention

Schedule 10

Other Collateral

Schedule 12

Transmitting Utility

Credit Party Jurisdiction where Transmitting Utility Equipment is Held

        EXHIBIT N

TO FUSION CONNECT, INC.

        FIRST LIEN CREDIT AND GUARANTY AGREEMENT

FORM OF [REVOLVING][TERM] NOTE

[$_________]46 [          ], 20__

FOR VALUE RECEIVED, the undersigned, FUSION CONNECT, INC., a Delaware corporation (the “Borrower”), hereby unconditionally promises to pay to ________________________ (the “Lender”) or its registered assigns, in lawful money of the United States of America and in same day funds, [(a) the principal amount of ____________ DOLLARS ($___________) or (b) if less,]47 the aggregate unpaid principal amount of all [Revolving][Tranche A Term][Tranche B Term] Loans made by the Lender to the Borrower pursuant to the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent, on such dates and in such amounts as are set forth in the Credit Agreement. Capitalized terms used in this Note but not otherwise defined herein shall have the meanings given to them in the Credit Agreement.

The Borrower also promises to pay interest in like money on the unpaid principal amount hereof from time to time outstanding from and including the date hereof until maturity (whether by acceleration or otherwise) and, after maturity, until paid, at the rates per annum and on the dates specified in the Credit Agreement.

The holder of this Note (this “Note”) is authorized to endorse on Schedule A attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each [Revolving][Tranche A Term][Tranche B Term] Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of a Eurodollar Rate Loan, the length of each Interest Period with respect thereto. The failure to make any such endorsement shall not affect the obligations of the Borrower in respect of any such [Revolving][Tranche A Term][Tranche B Term] Loan.

This Note (a) is one of the Notes referred to in the Credit Agreement, (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional prepayment in whole or in part as provided in the Credit Agreement. Reference is made to the Credit Agreement for provisions for the acceleration of the maturity hereof. This Note may not be transferred except in compliance with the terms of the Credit Agreement. Transfers of this Note must be recorded in the Register maintained by the Administrative Agent pursuant to the terms of the Credit Agreement.

THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

46 Include in Term Note.

47 Include in Term Note.

FUSION CONNECT, INC.

By:________________________________

Name:

Title:

[Signature Page to Note]

SCHEDULE A

to Note

LOANS, CONTINUATIONS, CONVERSIONS AND

REPAYMENTS OF EURODOLLAR RATE LOANS

Date Amount of Eurodollar Rate Loans Amount Continued or Converted to Eurodollar Rate Loans Interest Period and Eurodollar Rate with Respect Thereto Amount of Principal of Eurodollar Rate Loans Repaid Amount of Eurodollar Rate Loans Converted to Base Rate Loans Unpaid Principal Balance of Eurodollar Rate Loans Notation Made By

SCHEDULE B

to Note

LOANS, CONVERSIONS AND

REPAYMENTS OF BASE RATE LOANS

Date Amount of Base Rate Loans Amount Convertedto Base Rate Loans Amount of Principal of Base Rate Loans Repaid Amount of Base Rate Loans Converted to Eurodollar Rate Loans Unpaid Principal Balance of Base Rate Loans Notation Made By

EXHIBIT O-1

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

US TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For US Federal Income Tax Purposes)

Reference is hereby made to the First Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.19(g)(ii)(B)(3) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (b) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

EXHIBIT O-2

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

US TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For US Federal Income Tax Purposes)

Reference is hereby made to the First Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.19(g)(ii)(B)(4) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.

The undersigned has furnished its participating Lender with a certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (b) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:
	Name:
	Title:

Date: ________ __, 20[ ]

EXHIBIT O-3

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

US TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For US Federal Income Tax Purposes)

Reference is hereby made to the First Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.19(g)(ii)(B)(4) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the participation in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such participation, (c) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:
	Name:
	Title:

Date: ________ __, 20[ ]

EXHIBIT O-4

TO FUSION CONNECT, INC.

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

US TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For US Federal Income Tax Purposes)

Reference is hereby made to the First Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.19(g)(ii)(B)(4) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (c) with respect to the extension of credit pursuant to this Credit Agreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (ii) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]
By:
	Name:
	Title:

Date: ________ __, 20[ ]

EX-10.10

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

dated as of May 4, 2018,

among

FUSION CONNECT, INC.,

as Borrower,

CERTAIN SUBSIDIARIES OF FUSION CONNECT, INC.,

as Guarantor Subsidiaries,

THE LENDERS PARTY HERETO

and

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Administrative Agent and Collateral Agent

________________________________________________________

GOLDMAN SACHS LENDING PARTNERS LLC,

MORGAN STANLEY SENIOR FUNDING, INC.

and

MUFG UNION BANK, N.A.,

as Joint Lead Arrangers and Joint Bookrunners,

GOLDMAN SACHS LENDING PARTNERS LLC,

as Syndication Agent

________________________________________________________

$85,000,000 Senior Secured Second Lien Credit Facility

________________________________________________________

THE TRANCHE B TERM LOANS ISSUED PURSUANT TO THIS AGREEMENT WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED FROM TIME TO TIME. BEGINNING NO LATER THAN 10 DAYS AFTER THE CLOSING DATE, A LENDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY OF THE TRANCHE B TERM LOANS BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE BORROWER AT THE ADDRESS SET FORTH IN SCHEDULE 10.01.

TABLE OF CONTENTS

Page

SECTION 1.	DEFINITIONS AND INTERPRETATION	1
1.1.	Definitions	1
1.2.	Accounting Terms; Pro Forma Calculations	62
1.3.	Interpretation, Etc	63
1.4.	Classification of Loans and Borrowings	64
1.5.	Conditionality Testing Date	64
1.6.	Effectuation of Transactions	64
SECTION 2.	LOANS	65
2.1.	Loans	65
2.2.	[Reserved]	65
2.3.	[Reserved]	66
2.4.	Pro Rata Shares; Obligations Several; Availability of Funds	66
2.5.	Use of Proceeds	66
2.6.	Evidence of Debt; Register; Notes	67
2.7.	Interest on Loans	67
2.8.	Conversion/Continuation	68
2.9.	Default Interest	69
2.10.	Fees	69
2.11.	Scheduled Installments; Repayment on Maturity Date	70
2.12.	Voluntary Prepayments; Call Protection	70
2.13.	Mandatory Prepayments/Commitment Reductions	71
2.14.	Application of Prepayments; Waivable Mandatory Prepayments	75
2.15.	General Provisions Regarding Payments	76
2.16.	Ratable Sharing	77
2.17.	Making or Maintaining Eurodollar Rate Loans	77
2.18.	Increased Costs; Capital Adequacy and Liquidity	80
2.19.	Taxes; Withholding, Etc	81
2.20.	Obligation to Mitigate	85
2.21.	Defaulting Lenders	85
2.22.	Replacement of Lenders	85
2.23.	Incremental Facilities	86
2.24.	Extension/Modification Offers	88
2.25.	Refinancing Facilities	89
SECTION 3.	CONDITIONS PRECEDENT	90
3.1.	Closing Date	90
3.2.	Each Credit Extension	94
SECTION 4.	REPRESENTATIONS AND WARRANTIES	94
4.1.	Organization; Requisite Power and Authority; Qualification	94
4.2.	Equity Interests and Ownership	95
4.3.	Due Authorization	95
4.4.	No Conflict	95
4.5.	Governmental Approvals	95
4.6.	Binding Obligation	95
4.7.	Historical Financial Statements; Projections; Pro Forma Financial Statements	96
4.8.	No Material Adverse Effect	96

i

4.9.	Adverse Proceedings	96
4.10.	Payment of Taxes	96
4.11.	Properties	97
4.12.	Environmental Matters	97
4.13.	No Defaults	97
4.14.	Investment Company Act	97
4.15.	Federal Reserve Regulations	97
4.16.	Employee Benefit Plans	98
4.17.	Solvency	98
4.18.	Compliance with Laws	98
4.19.	Disclosure	99
4.20.	Collateral Matters	99
4.21.	Sanctioned Persons; Anti-Corruption Laws; PATRIOT Act	100
4.22.	Communications Regulatory Matters	100
SECTION 5.	AFFIRMATIVE COVENANTS	101
5.1.	Financial Statements and Other Reports	101
5.2.	Existence, Licenses, Etc	104
5.3.	Payment of Taxes	104
5.4.	Maintenance of Properties	104
5.5.	Insurance	105
5.6.	Books and Records; Inspections	106
5.7.	Lenders Meetings	106
5.8.	Compliance with Laws	106
5.9.	Environmental Matters	106
5.10.	Subsidiaries	107
5.11.	Additional Collateral	107
5.12.	Further Assurances	107
5.13.	Maintenance of Ratings	107
5.14.	Use of Proceeds	107
5.15.	Post-Closing Matters	108
SECTION 6.	NEGATIVE COVENANTS	108
6.1.	Indebtedness	108
6.2.	Liens	113
6.3.	No Further Negative Pledges	116
6.4.	Restricted Junior Payments	117
6.5.	Restrictions on Subsidiary Distributions	119
6.6.	Investments	120
6.7.	Financial Covenants	123
6.8.	Fundamental Changes; Disposition of Assets; Equity Interests of Subsidiaries	124
6.9.	Sales and Leasebacks	126
6.10.	Transactions with Affiliates	126
6.11.	Conduct of Business	127
6.12.	Hedge Agreements	127
6.13.	Amendments or Waivers of Organizational Documents and Certain Agreements	127
6.14.	Fiscal Year	127
SECTION 7.	GUARANTEE	127
7.1.	Guarantee of the Obligations	127
7.2.	Indemnity by the Borrower; Contribution by the Guarantors	128

ii

7.3.	Liability of Guarantors Absolute	129
7.4.	Waivers by the Guarantors	130
7.5.	Guarantors’ Rights of Subrogation, Contribution, Etc	131
7.6.	Continuing Guarantee	131
7.7.	Authority of the Guarantors or the Borrower	131
7.8.	Financial Condition of the Credit Parties	131
7.9.	Bankruptcy, Etc	132
SECTION 8.	EVENTS OF DEFAULT	132
8.1.	Events of Default	132
SECTION 9.	AGENTS	135
9.1.	Appointment of Agents	135
9.2.	Powers and Duties	136
9.3.	General Immunity	136
9.4.	Acts in Individual Capacity	138
9.5.	Lenders’ Representations, Warranties and Acknowledgments	138
9.6.	Right to Indemnity	139
9.7.	Successor Administrative Agent and Collateral Agent	140
9.8.	Collateral Documents and Obligations Guarantee	141
9.9.	Withholding Taxes	143
9.10.	Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim	144
9.11.	Certain ERISA Matters	144
9.12.	Concerning the Vector Facility Arrangements	146
SECTION 10.	MISCELLANEOUS	147
10.1.	Notices	147
10.2.	Expenses	149
10.3.	Indemnity	149
10.4.	Set-Off	150
10.5.	Amendments and Waivers	150
10.6.	Successors and Assigns; Participations	154
10.7.	Independence of Covenants	159
10.8.	Survival of Representations, Warranties and Agreements	159
10.9.	No Waiver; Remedies Cumulative	160
10.10.	Marshalling; Payments Set Aside	160
10.11.	Severability	160
10.12.	Independent Nature of Lenders’ Rights	160
10.13.	Headings	160
10.14.	APPLICABLE LAW	161
10.15.	CONSENT TO JURISDICTION	161
10.16.	WAIVER OF JURY TRIAL	161
10.17.	Confidentiality	162
10.18.	Usury Savings Clause	163
10.19.	Counterparts	163
10.20.	Effectiveness; Entire Agreement	163
10.21.	PATRIOT Act	163
10.22.	Electronic Execution of Assignments	163
10.23.	No Fiduciary Duty	164
10.24.	Permitted Intercreditor Agreements	164
10.25.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	165

iii

SCHEDULES:        

2.1             

Commitments

4.2

Equity Interests and Ownership

4.11(b)

Real Estate

6.1

Indebtedness

6.2

Liens

6.3

Negative Pledges

6.5

Restrictions on Subsidiary Distributions

6.6

Investments

6.10

Affiliate Transactions

10.1

Notices

EXHIBITS:     

A      

Assignment Agreement

B

Closing Date Certificate

C

Compliance Certificate

D

Conversion/Continuation Notice

E

Counterpart Agreement

F

Funding Notice

G

Intercompany Indebtedness Subordination Agreement

H

Intercompany Note

I

Intercreditor Agreement

J

Pledge and Security Agreement

K

Solvency Certificate

L

Supplemental Collateral Questionnaire

M

Form of Note

N-1

Form of US Tax Certificate For Foreign Lenders That Are Not Partnerships For US Federal Income Tax Purposes

N-2

Form of US Tax Certificate For Foreign Participants That Are Not Partnerships For US Federal Income Tax Purposes

N-3

Form of US Tax Certificate For Foreign Participants That Are Partnerships For US Federal Income Tax Purposes

N-4

Form of US Tax Certificate For Foreign Lenders That Are Partnerships For US Federal Income Tax Purposes

iv

SECOND LIEN CREDIT AND GUARANTY AGREEMENT dated as of May 4, 2018, among FUSION CONNECT, INC., a Delaware corporation (the“Borrower”), CERTAIN SUBSIDIARIES OF THE BORROWER party hereto, as Guarantor Subsidiaries, the LENDERS party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Administrative Agent and Collateral Agent.

The Lenders have agreed to extend a credit facility to the Borrower consisting of Tranche B Term Loans in an aggregate principal amount of $85,000,000.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1.DEFINITIONS AND INTERPRETATION

1.1.Definitions.As used in this Agreement (including the recitals hereto), the following terms have the meanings specified below:

“Acquired Company” means Birch Communications Holdings, Inc., a Georgia corporation.

“Acquired Company Indemnity Letter Agreement” means the letter agreement dated August 26, 2017, pursuant to which BCHI Holdings, LLC, a Georgia limited liability company, agreed to indemnify the Borrower and its Subsidiaries with respect to certain Adverse Proceedings, as such letter agreement is in effect on the Closing Date.

“Acquisition” means the purchase or other acquisition (in one transaction or a series of transactions, including pursuant to any merger or consolidation) of all or substantially all the issued and outstanding Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person.

“Acquisition Consideration” means, with respect to any Acquisition, the purchase consideration for such Acquisition, whether paid in Cash or other property (valued at the fair value thereof, as determined reasonably and in good faith by an Authorized Officer of the Borrower), but excluding any component thereof consisting of Equity Interests in the Borrower (other than any Disqualified Equity Interests) and whether payable at or prior to the consummation of such Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and including (a) any earnouts and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flows or profits (or the like) of the Person or assets being acquired, provided that any such future payment that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve, if any, required under GAAP to be established by the Borrower or any Restricted Subsidiary in respect thereof at the time of the consummation of such Acquisition, and (b) the aggregate amount of Indebtedness assumed by the Borrower or any Restricted Subsidiary in connection with such Acquisition.

“Adjusted Eurodollar Rate” means, for any Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (a) (i) the rate per annum determined by the Administrative Agent to be the rate that appears on the page of the Reuters Screen that displays the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) (such page currently being LIBOR01 page) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London time) on the Interest Rate Determination Date for such Interest Period, or (ii) in the event the rate referred to in the preceding clause (i) does not appear on such page or if the Reuters Screen shall cease to be available, the rate per annum determined by the Administrative Agent to be the offered rate on such other page or other service that displays the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London time) on such Interest Rate Determination Date, by (b) an amount equal to one minus the Applicable Reserve Requirement; provided that, notwithstanding the foregoing, (A) if the Adjusted Eurodollar Rate, determined as provided above, would otherwise be less than zero, then the Adjusted Eurodollar Rate shall be deemed to be zero and (B) in the case of Tranche B Term Loans, the Adjusted Eurodollar Rate shall at no time be less than 1.00% per annum.

“Administrative Agent” means Wilmington Trust, in its capacity as administrative agent for the Lenders hereunder and under the other Credit Documents, and its successors in such capacity as provided in Section 9.

“Administrative Agent Fee Letter” means the Fee Letter, dated as of the Closing Date, between Wilmington Trust and the Borrower.

“Adverse Proceeding” means any action, suit, proceeding, hearing or investigation, in each case whether administrative, judicial or otherwise, by or before any Governmental Authority or any arbitrator, that is pending or, to the knowledge of the Borrower or any Subsidiary, threatened in writing against or affecting the Borrower or any Subsidiary or any property of the Borrower or any Subsidiary.

“Affected Lender” as defined in Section 2.17(b).

“Affected Loans” as defined in Section 2.17(b).

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with the Person specified; provided that for purposes of Section 6.10, the term “Affiliate” also means any Person that directly or indirectly beneficially owns Equity Interests in the Person specified representing 10% or more of the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding Equity Interests in the Person specified and any Person that would be an Affiliate of any such beneficial owner pursuant to this definition (but without giving effect to this proviso).

“Agent” means each of (a) the Administrative Agent, (b) the Collateral Agent, (c) the Syndication Agent, (d) the Arrangers and (e) any other Person appointed under the Credit Documents to serve in an agent or similar capacity, including any Auction Manager.

“Aggregate Amounts Due” as defined in Section 2.16.

-2-

“Aggregate Payments” as defined in Section 7.2(b).

“Agreement” means this Second Lien Credit and Guaranty Agreement dated as of May 4, 2018.

“Anti-Corruption Laws”as defined in Section 4.21.

“Applicable ECF Percentage” means, with respect to any Fiscal Year, (a) 50% if the Total Net Leverage Ratio as of the last day of such Fiscal Year is greater than 2.90:1.00, (b) 25% if the Total Net Leverage Ratio as of the last day of such Fiscal Year is equal to or less than 2.90:1.00 but greater than 2.40:1.00 and (c) 0% if the Total Net Leverage Ratio as of the last day of such Fiscal Year is equal to or less than 2.40:1.00.

“Applicable Rate” means, on any day, (a) with respect to any Tranche B Term Loan, (i) 9.50% per annum, in the case of a Base Rate Loan, and (ii) 10.50% per annum, in the case of a Eurodollar Rate Loan, and (b) with respect to Loans of any other Class, the rate per annum specified in the Incremental Facility Agreement, the Extension/Modification Agreement or the Refinancing Facility Agreement, as the case may be, establishing Loans of such Class.

“Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic, marginal, special, supplemental, emergency or other reserves) are required to be maintained by member banks of the United States Federal Reserve System against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (a) any category of liabilities that includes deposits by reference to which the applicable Adjusted Eurodollar Rate or any other interest rate for a Loan is to be determined or (b) any category of extensions of credit or other assets that includes Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without the benefit of credits for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.

“Approved Cost Savings” means “run rate” net cost savings, operating expense reductions and other operating improvements and synergies attributable to (a) the Transactions and reflected in the model delivered to the Arrangers prior to the Closing Date or (b) the Specified Acquisition and reflected in the quality of earnings report delivered to the Arrangers in respect of the Specified Acquisition prior to the Closing Date; provided that, in the case of this clause (b), (i) such Acquisition is consummated on or prior to December 31, 2018 and (ii) the Approved Cost Savings permitted by this clause (b) shall not exceed $16,700,000 in the aggregate.

“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Credit Party, or its counsel or advisors, provides to any Agent that is distributed to any Agent or any Lender by means of electronic communications pursuant to Section 10.1(b).

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“Arrangers” means Goldman Sachs, MSSF and MUFG, each in its capacity as a joint lead arranger and joint bookrunner for the credit facility established under this Agreement.

“Asset Sale” means any Disposition of assets (other than Dispositions made in reliance on Section 6.8(b)(i), (ii), (iii), (iv), (vi), (vii) or (viii)), other than any such Disposition (or series of related Dispositions) resulting in aggregate Net Proceeds not exceeding $5,000,000 during any Fiscal Year.

“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit A, with such amendments or modifications thereto as may be approved by the Administrative Agent.

“Assignment Effective Date”as defined in Section 10.6(b).

“Auction” as defined in Section 10.6(i)(i).

“Auction Manager” means (a) the Administrative Agent or (b) any other financial institution agreed to by the Borrower and the Administrative Agent (whether or not an Affiliate of the Administrative Agent) to act as an auction manager in connection with any Auction; provided that the Borrower shall not designate the Administrative Agent as the Auction Manager without the prior written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Manager).

“Authorized Officer” means, with respect to any Person, any individual holding the position of chief executive officer, president, chief operating officer, chief financial officer, principal accounting officer, treasurer, secretary, assistant secretary, executive vice president or senior vice president of such Person; provided that, when such term is used in reference to any document executed by, or a certification of, an Authorized Officer, the secretary or assistant secretary of such Person shall have delivered an incumbency certificate to the Administrative Agent as to the authority of such individual.

“Available Basket Amount” means, as of any date:

(a)  the Available Excess Cash Flow Amount as of such date; plus

(b)  the Declined Mandatory Prepayment Retained Amount as of such date; plus

(c)  [reserved]; plus

(d)  the aggregate amount of Returns and, without duplication, dividends, distributions and other returns on capital received in Cash or Cash Equivalents as of such date in respect of any Acquisition or other Investments made (or deemed made pursuant to the definition of the term “Unrestricted Subsidiary”) using the Available Basket Amount, provided that the aggregate amount by which the Available Basket Amount is increased pursuant to this clause (d) in respect of any Acquisition or other Investment shall not exceed the amount by which the Available Basket Amount shall have been reduced on account of the Acquisition Consideration with respect to such Acquisition or the original amount of any such other Investment; plus

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(e)  without duplication of amounts otherwise increasing the Available Basket Amount pursuant to clause (d) above, in the event any Unrestricted Subsidiary has been designated as a Restricted Subsidiary, or has been merged or consolidated with the Borrower or a Restricted Subsidiary (where the surviving entity in such merger or consolidation is the Borrower or a Restricted Subsidiary), or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, on or prior to such date, the lesser of (i) the amount of all Investments made using the Available Basket Amount in such Unrestricted Subsidiary (including any such Investment deemed made pursuant to the definition of the term “Unrestricted Subsidiary”), net of the aggregate amount, if any, by which the Available Basket Amount shall have been increased prior to such time in respect of such Investments pursuant to clause (d) above, and (ii) the fair value of such Unrestricted Subsidiary (as determined reasonably and in good faith by an Authorized Officer of the Borrower) at the time it is designated as a Restricted Subsidiary or the time of such merger, consolidation, transfer, conveyance or liquidation, as applicable; minus

(f)  the portion of the Available Basket Amount utilized after the Closing Date and on or prior to such date pursuant to Section 6.4(j) or 6.6(n), with the utilization pursuant to Section 6.6(n) for any Acquisition being the Acquisition Consideration in respect thereof and the utilization pursuant to Section 6.6(n) for any other Investment (or any deemed Investment in respect of any designation of an Unrestricted Subsidiary) being the amount thereof as of the date the applicable Investment is made, determined in accordance with the definition of “Investment” (or the definition of “Unrestricted Subsidiary”).

“Available Excess Cash Flow Amount” means, as of any date, an amount equal to the sum, for the Fiscal Years of the Borrower in respect of which financial statements and the related Compliance Certificate have been delivered in accordance with Sections 5.1(a) and 5.1(c), and for which prepayments required by Section 2.13(e) (if any) have been made, in each case on or prior to such date (commencing with the Fiscal Year ending December 31, 2019), of the products of (a) the amount of Consolidated Excess Cash Flow (to the extent such amount exceeds zero) for each such Fiscal Year multiplied by (b) the Retained ECF Percentage for such Fiscal Year (it being understood that the Retained ECF Percentage of Consolidated Excess Cash Flow for any such Fiscal Year shall be included in the Available Excess Cash Flow Amount regardless of whether a prepayment is required for such Fiscal Year under Section 2.13(e)).

“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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

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

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“Base Rate” means, for any day, the rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% per annum and (c) the Adjusted Eurodollar Rate that would be applicable to a Eurodollar Rate Loan with an Interest Period of one month commencing on such day plus 1%; provided that, notwithstanding the foregoing, (i) if the Base Rate, determined as provided above, would otherwise be less than 1.00% per annum, then the Base Rate shall be deemed to be 1.00% per annum and (ii) in the case of Tranche B Term Loans, the Base Rate shall at no time be less than 2.00% per annum. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate shall be effective on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate, as the case may be.

“Base Rate Borrowing” means a Borrowing comprised of Base Rate Loans.

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

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

“Borrower” as defined in the preamble hereto.

“Borrowing”means Loans of the same Class and Type made, converted or continued on the same date and, in the case of Eurodollar Rate Loans, as to which a single Interest Period is in effect.

“Business Day” means any day other than a Saturday or Sunday, a day that is a legal holiday under the laws of the State of New York or a day on which banking institutions located in such State are authorized or required by law to remain closed; provided that, with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loan, such day is also a day for trading by and between banks in Dollar deposits in the London interbank market.

“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person in conformity with GAAP, subject to Section 1.2(a). The amount of such obligations shall be the capitalized amount thereof determined in conformity with GAAP, subject to Section 1.2(a), and the final maturity of such obligations shall be the date of the last payment due under such lease (or other arrangement) before such lease (or other arrangement) may be terminated by the lessee without payment of a premium or penalty. For purposes of Section 6.2, a Capital Lease Obligation shall be deemed to be secured by a Lien on the property being leased and such property shall be deemed to be owned by the lessee.

“Cash” means money, currency or a credit balance in any demand or deposit account.

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“Cash Equivalents” means, as at any date of determination, any of the following: (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States of America or (ii) issued by any agency of the United States of America and backed by the full faith and credit of the United States of America, in each case maturing within one year after such date; (b) marketable direct obligations issued by any State of the United States of America or the District of Columbia or any political subdivision of any such State or District or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (c) commercial paper maturing no more than 270 days from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) time deposits, certificates of deposit or bankers’ acceptances maturing within 270 days after such date and issued or accepted by any commercial bank organized or licensed to conduct a banking business under the laws of the United States of America, any State thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $500,000,000; (e) fully collateralized repurchase agreements with a term of not more than 30 days from such date for securities described in clause (a) or clause (b) above and entered into with a financial institution satisfying the criteria described in clause (d) above; (f) shares of any money market mutual fund that (i) has substantially all its assets invested continuously in the types of investments referred to in clauses (a) through (e) above, (ii) has net assets of not less than $5,000,000,000 and (iii) has ratings of at least AA+ from S&P or at least Aa1 from Moody’s; and (g) in the case of any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.

“CFC” means (a) any Person that is a “controlled foreign corporation” (within the meaning of Section 957 of the Internal Revenue Code), but only if a Credit Party or a “United States person” (within the meaning of Section 7701(a)(30) of the Internal Revenue Code) that is an Affiliate of a Credit Party is, with respect to such Person, a “United States shareholder” (within the meaning of Section 951(b) of the Internal Revenue Code) described in Section 951(a)(1) of the Internal Revenue Code and (b) each Subsidiary of any Person described in clause (a).

“CFC Holding Company” means each Subsidiary that is treated as a partnership or a disregarded entity for United States federal income tax purposes and that has no material assets other than assets that consist (directly or indirectly through disregarded entities or partnerships) of Equity Interests or indebtedness (as determined for United States tax purposes) in one or more CFCs or CFC Holding Companies.

“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any rule, regulation, treaty or other law, (b) any change in any rule, regulation, treaty or other 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, promulgated or issued.

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“Change of Control” means (a)  the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder), other than Permitted Holders, of Equity Interests in the Borrower representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in the Borrower, or (b) the occurrence of any “change of control” (or similar event, however denominated) with respect to the Borrower under and as defined in any Permitted Section 6.1(e) Indebtedness Document, any Permitted Incremental Equivalent Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Subordinated Indebtedness or in any indenture or other agreement or instrument evidencing, governing the rights of the holders of or otherwise relating to any other Material Indebtedness of the Borrower or any Restricted Subsidiary.

“Claiming Guarantor” as defined in Section 7.2(b).

“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Tranche B Term Loans or Loans of another “Class” established pursuant to Section 2.23, 2.24 or 2.25 as contemplated below, (b) any Commitment, refers to whether such Commitment is a Tranche B Term Loan Commitment or a Commitment of another “Class” established pursuant to Section 2.23 or 2.25 as contemplated below and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class. Additional Classes of Loans, Borrowings, Commitments and Lenders may be created pursuant to Section 2.23, 2.24 or 2.25 and, as provided in Section 2.23, 2.24 or 2.25, any Incremental Loans, any Extended/Modified Loans or any Refinancing Loans may be treated as a single Class with any other Class of Loans having the same terms as such Incremental Loans, Extended/Modified Loans or Refinancing Loans, as applicable.

“Closing Date” means the date on which the conditions specified in Section 3.1 have been satisfied (or waived in accordance with Section 10.5).

“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit B.

“Closing Date Common Equity Issuance” means the issuance and sale, on the Closing Date, by the Borrower of shares of its common stock, par value $0.01 per share, for gross cash proceeds of $4,999,998.50.

“Closing Date Preferred Stock” means a new series of preferred stock of the Borrower, designated as Series D Cumulative Preferred Stock, par value $0.01 per share, issued and sold on the Closing Date by the Borrower to Holcombe T. Green, Jr. (or an entity majority-owned and Controlled by Holcombe T. Green, Jr.), for gross cash proceeds of $14,700,000.

“Closing Date Prepayment” means the prepayment on or prior to the Closing Date of a portion of the Existing Subordinated Notes in an aggregate principal amount of $3,000,000, plus a further reduction on the Closing Date in the aggregate principal amount of the Existing Subordinated Notes resulting from the set-off against the aggregate principal amount thereof on the Closing Date of a $920,000 receivable owed by one or more of the holders of the Existing Subordinated Notes.

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“Closing Date Refinancing” means (a) the payment and discharge of the principal of and interest accrued on all outstanding Indebtedness and all other amounts outstanding or accrued, including all prepayment premium, under the Existing Debt Documents, the termination of the commitments thereunder and the cancellation or termination, or the cash collateralizing or backstopping with letters of credit issued under the First Lien Credit Agreement in a manner reasonably satisfactory to the Administrative Agent, of all letters of credit outstanding thereunder, (b) the termination and release of all Guarantees and Liens supporting or securing any of the Indebtedness or other obligations referred to in the foregoing clause (a) or created under the documentation governing any such Indebtedness and (c) the making of the Closing Date Prepayment.

“Collateral” means, collectively, all of the property (including Equity Interests) on which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.

“Collateral Agent”means Wilmington Trust, in its capacity as collateral agent for the Secured Parties under the Credit Documents, and its successors in such capacity as provided in Section 9.

“Collateral and Guarantee Requirement” means, at any time, the requirement that:

(a)  the Administrative Agent shall have received from the Borrower and each Designated Subsidiary either (i) a counterpart of this Agreement duly executed and delivered on behalf of such Person, or (ii) in the case of any Person that becomes a Designated Subsidiary after the Closing Date, a Counterpart Agreement duly executed and delivered on behalf of such Person;

(b)  the Collateral Agent shall have received from the Borrower and each Designated Subsidiary (i) either (A) a counterpart of the Pledge and Security Agreement, duly executed and delivered on behalf of such Person, or (B) in the case of any Person that becomes a Designated Subsidiary after the Closing Date, a supplement to the Pledge and Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, and (ii) an acknowledgment of the Intercreditor Agreement and, if then in effect, each other Permitted Intercreditor Agreement, in each case, in the form specified therein, duly executed and delivered on behalf of such Person;

(c)  in the case of any Person that becomes a Designated Subsidiary after the Closing Date, the Administrative Agent shall have received, to the extent requested by the Administrative Agent, documents, opinions and certificates of the type referred to in Sections 3.1(b), 3.1(d), 3.1(e), 3.1(f) and 3.1(k) with respect to such Designated Subsidiary;

(d)  all Equity Interests owned by or on behalf of any Credit Party shall have been pledged pursuant to the Pledge and Security Agreement (provided that the Credit Parties shall not be required to pledge (i) more than 65% of the outstanding voting Equity Interests in any CFC or CFC Holding Company or (ii) Equity Interests that constitute Excluded Property), and the Collateral Agent shall, to the extent required by the Pledge and Security Agreement and subject to the requirements of the Intercreditor Agreement and any other Permitted Intercreditor Agreement then in effect, have received certificates or other instruments representing all such Equity Interests, together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;

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(e)  (i) the Borrower and each Restricted Subsidiary shall have duly executed and delivered a counterpart of each of the Intercompany Note and the Intercompany Indebtedness Subordination Agreement and (ii) all Indebtedness of any other Person in a principal amount of $1,000,000 or more that is owing to any Credit Party shall be evidenced by a promissory note, and the Intercompany Note, each other promissory note (if any) evidencing Indebtedness of the Borrower or any Restricted Subsidiary to any Credit Party and each promissory note referred to in clause (ii) above shall, in each case, have been pledged pursuant to the Pledge and Security Agreement and the Collateral Agent shall, subject to the requirements of the Intercreditor Agreement and any other Permitted Intercreditor Agreement then in effect, have received the Intercompany Note and all such other promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;

(f)  all instruments and documents, including UCC financing statements (including transmitting utility financing statements), required by applicable law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Collateral Documents and to perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents shall have been filed, registered or recorded; and

(g)  the Collateral Agent shall have received (i) a Mortgage with respect to each Material Real Estate Asset, if any, duly executed and delivered by the record owner of such Material Real Estate Asset, (ii) a fully paid policy or policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each Mortgage as a valid and enforceable Lien on the Material Real Estate Asset described therein, free of any other Liens other than Permitted Liens, which policies shall be in form and substance reasonably satisfactory to the Collateral Agent, together with such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request, (iii) a completed Flood Certificate with respect to each Material Real Estate Asset, which Flood Certificate shall be addressed to the Collateral Agent and shall otherwise comply with the Flood Program and if the Flood Certificate with respect to any Material Real Estate Asset states that any “Building” (as defined in 12 CFR Chapter III, Section 339.2) included as part of such Material Real Estate Asset is located in a Flood Zone, (A) a written notification from the applicable Credit Party to the Collateral Agent as to the existence of such Material Real Estate Asset and as to whether the community in which such Material Real Estate Asset is located is participating in the Flood Program and (B) if such Material Real Estate Asset is located in a community that participates in the Flood Program, evidence that the applicable Credit Party has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program and other applicable law (including as to the amount of insurance coverage required thereunder), provided that the foregoing requirements of this clause (iii) shall be completed (and copies of such Flood Certificate and, if applicable, such acknowledgement and evidence of flood insurance shall have been made available to the Lenders) at least 20 Business Days (or such shorter period as shall be acceptable to the Collateral Agent) prior to the execution and delivery of a Mortgage with respect to such Material Real Estate Asset, (iv) with respect to any Material Real Estate Asset encumbered by a Lien that is to be subordinated to the Lien created in accordance with this Agreement and the other Credit Documents, an amendment or agreement of subordination duly executed and delivered with respect to any Lien or encumbrance that, but for such subordination, would have priority over the Mortgage delivered to the Collateral Agent and (v) such surveys, abstracts, appraisals, legal opinions and other documents as the Collateral Agent may reasonably request with respect to any such Mortgage or Material Real Estate Asset.

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The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions, consents, approvals or other deliverables with respect to, any particular assets of the Credit Parties if and for so long as the Collateral Agent, in consultation with the Borrower, determines that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such deliverables shall be excessive in relation to the benefit that would be afforded to the Lenders therefrom. The Collateral Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Obligations Guarantee by any Restricted Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents.

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary:

(aa) the Collateral and Guarantee Requirement shall not apply to any of the following assets (collectively, the “Excluded Property”; each capitalized term used in this clause (aa) but not defined in this Agreement having the meaning given to it in the Pledge and Security Agreement): (i) any Leasehold Property and any Real Estate Asset that is not a Material Real Estate Asset, (ii) any motor vehicles and other assets subject to certificates of title, except to the extent perfection of a security interest therein may be accomplished by the filing of UCC financing statements or an equivalent thereof in appropriate form in the applicable jurisdiction, (iii) any Commercial Tort Claim as to which the claim thereunder is less than $2,000,000, (iv) (A) any assets if, for so long as and to the extent a security interest may not be granted in such assets as a matter of applicable law, (B) any lease, license (including any License), contract or other agreement or any rights or interests thereunder if, for so long as and to the extent the grant of a security interest therein would (x) constitute or result in (1) the unenforceability of any right, title or interest of the applicable Credit Party in or (2) a breach or termination pursuant to the terms of, or a default under, such lease, license, contract or other agreement or (y) require a consent, approval, license or authorization not obtained from a Governmental Authority or third party, except, in each case under this clause (B), to the extent that such breach or default is ineffective under the UCC or other applicable law or principles of equity, and (C) any property subject to a Lien securing any purchase money obligation or Capital Lease Obligation (or any Refinancing Indebtedness in respect thereof) if, for so long as and to the extent the grant of a security interest therein would constitute or result in a breach or a default under the related agreements, provided that this clause (C) shall apply only if such Lien and such purchase money obligation or Capital Lease Obligation are permitted hereunder, except, in each case under this clause (iv) to the extent that such law or the terms in such lease, license, contract or other agreement providing for such prohibition, breach, right of termination or default or requiring such consent, approval, license or authorization is ineffective under the UCC or other applicable law or principles of equity, provided further that this clause (iv) shall not exclude Proceeds thereof and Accounts and Payment Intangibles arising therefrom the assignment of which is deemed effective under the UCC, (v) any governmental licenses or state or local franchises, charters and authorizations of a Governmental Authority if, for so long as and to the extent the grant of a security interest therein is prohibited or restricted by applicable law (including the CPCN issued in Colorado to Cbeyond Communications LLC and to Fusion LLC (formerly known as Network Billing Systems, LLC)), except, in each case under this clause (v), to the extent that such prohibition or restriction is ineffective under the UCC or other applicable law or principles of equity, provided that this clause (v) shall not exclude Proceeds thereof and Accounts and Payment Intangibles arising therefrom the assignment of which is deemed effective under the UCC, (vi) Equity Interests in any Person that is not a wholly owned Restricted Subsidiary if, for so long as and to the extent (A) the Organizational Documents of such Person or any related joint venture, shareholders’ or similar agreement prohibits or restricts such pledge without the consent of any Person other than the Borrower or a Restricted Subsidiary (it being understood that none of the Credit Parties shall be required to seek the consent of third parties thereunder), or (B) in the case of any Person that is not a Restricted Subsidiary (including any Unrestricted Subsidiary), such Equity Interests have been pledged in connection with any Indebtedness of such Person (but only to the extent that such Equity Interests remain pledged in connection with such Indebtedness), (vii) any “intent to use” trademark application for which a statement of use has not been filed with the United States Patent and Trademark Office, but only to the extent that the grant of a security interest therein would invalidate such trademark application, (viii) any Letter-of-Credit Rights (except to the extent constituting a Supporting Obligation of other Collateral as to which perfection of a security interest therein may be accomplished solely by the filing of a UCC financing statement in the applicable jurisdiction (it being understood that no actions shall be required to perfect a security interest in a Letter-of-Credit Rights, other than the filing of a UCC financing statement)), and (ix) the deposit account, and all Cash on deposit therein, pledged or assigned as collateral to East West Bank to secure the Existing EWB Letter of Credit, and in each case of this clause (aa) other than any Proceeds, substitutions or replacements of the foregoing (unless such Proceeds, substitutions or replacements themselves would constitute assets described in clauses (i) through (ix) above); provided, in each case, that such assets shall constitute Excluded Property only if they are not subject to any Lien securing any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness; and

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(bb)  (i) no delivery of certificates or other instruments representing Equity Interests in any Subsidiaries that are not Material Subsidiaries shall be required, (ii) there shall be no requirement to obtain any control agreements with respect to any deposit accounts or securities accounts, (iii) there shall be no requirement to obtain any landlord waivers, estoppels, collateral access letters or similar third party agreements and (iv) no security or pledge agreements governed under the laws of any non-US jurisdiction shall be required, and no actions in any non-US jurisdiction shall be required in order to create or perfect any security interest in assets located or titled outside the United States.

“Collateral Documents” means the Pledge and Security Agreement, the Mortgages, if any, the Intellectual Property Security Agreements, and all other instruments, documents and agreements delivered by or on behalf of any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to, or perfect in favor of, the Collateral Agent, for the benefit of the Secured Parties, a Lien on any property of such Credit Party as security for the Obligations.

“Collateral Questionnaire” means the Collateral Questionnaire delivered by the Borrower pursuant to Section 3.1(d).

“Commitment” means a Tranche B Term Loan Commitment, an Incremental Commitment of any Class or a Refinancing Commitment of any Class.

“Communications Laws” means (a) the Communications Act of 1934, (b) the rules and regulations of the FCC promulgated under Title 47 of the U.S. Code of Federal Regulations, as they 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) the Communications Assistance for Law Enforcement Act, codified at 47 U.S.C. §1001, et. seq., (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 Borrower and the Restricted Subsidiaries, (e) any other law of any Governmental Authority with jurisdiction over telecommunications related matters, including all laws administered by any State PUC, and (f) the terms and conditions of any License granted or issued to the Borrower or any Restricted Subsidiaries.

“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.

“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.

“Consolidated Adjusted EBITDA” means, for any period, Consolidated Net Income for such period, plus

(a)without duplication and to the extent deducted (and not added back) in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to clause (viii) or (xvii) below, to the extent not already included in Consolidated Net Income), the sum for the Borrower and the Restricted Subsidiaries of the following amounts for such period:

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(i)total interest expense and, to the extent not reflected in such total interest expense, any losses on Hedge Agreements entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Hedge Agreements, and bank and letter of credit fees and costs of surety bonds in connection with financing activities,

(ii)provision for Federal, state and foreign taxes based on income, profits or capital gains, including in respect of repatriated funds,

(iii)depreciation and amortization, including amortization of intangible assets established through purchase accounting and amortization of deferred financing fees or costs, but excluding amortization of any other prepaid cash expense that was paid and not expensed in a prior period,

(iv)non-cash charges, including impairment charges and any other write-down or write-off of assets, noncash fair value adjustments of Investments and noncash stock-based and similar incentive-based compensation (including with respect to any profits interest relating to membership interests in any partnership or limited liability company), but excluding any such noncash charge or loss to the extent that it represents an amortization of a prepaid cash expense that was paid and not expensed in a prior period or write-down or write-off with respect to accounts receivable (including any addition to bad debt reserves or bad debt expense) or inventory,

(v)extraordinary losses, determined in conformity with GAAP,

(vi)unusual or non-recurring charges, including, in each case, to the extent unusual or non-recurring, operating expenses directly attributable to the implementation of cost savings initiatives, merger costs, severance costs, relocation costs, integration and facilities’ opening costs, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of facilities, costs associated with tax projects/audits and costs consisting of professional, consulting or other fees relating to any of the foregoing; provided that the aggregate amount added back pursuant to this clause (vi) and pursuant to clauses (vii), (xiii) and, other than with respect to the Approved Cost Savings, (viii) of this definition for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B), calculated prior to giving effect to any addback pursuant to this clause (vi) or pursuant to clause (vii), (viii) or (xiii) of this definition,

(vii)restructuring charges, accruals and reserves (including restructuring charges related to the Merger or to Acquisitions consummated after the Closing Date); provided that the aggregate amount added back pursuant to this clause (vii) and pursuant to clauses (vi), (xiii) and, other than with respect to the Approved Cost Savings, (viii) of this definition for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B), calculated prior to giving effect to any addback pursuant to this clause (vii) or pursuant to clause (vi), (viii) or (xiii) of this definition,

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(viii)the amount of “run rate” net cost savings, operating expense reductions and other operating improvements and synergies reasonably projected by the Borrower in good faith to be realized in connection with the Transactions or any other Pro Forma Event or the implementation of any operational initiative, including the termination, abandonment or discontinuance of operations and product lines (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of the applicable Test Period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings, operating expense reductions and other operating improvements and synergies are reasonably identifiable, factually supportable and reasonably expected to be realized within 12 months after the Closing Date or within 12 months after the consummation of such other Pro Forma Event or the adoption of such initiative, as applicable, (B) no cost savings, operating expense reductions and other operating improvements and synergies shall be added pursuant to this clause (viii) to the extent duplicative of any items otherwise added in calculating Consolidated Adjusted EBITDA, whether pursuant to the requirement of Section 1.2(b) or otherwise, for such period and (C) other than with respect to the Approved Cost Savings, the aggregate amount added back pursuant to this clause (viii) and pursuant to clauses (vi), (vii) and (xiii) of this definition for any Test Period shall not exceed (x) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (y) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (x) and (y), calculated prior to giving effect to any addback pursuant to this clause (viii) or pursuant to clause (vi), (vii) or (xiii) of this definition,

(ix)the amount of any noncontrolling interest consisting of income of any Restricted Subsidiary that is not wholly owned by the Borrower attributable to noncontrolling Equity Interests of third parties in such Restricted Subsidiary,

(x)after-tax losses attributable to any Disposition of assets (other than Dispositions in the ordinary course of business),

(xi)the amount of any net losses from discontinued operations, determined in conformity with GAAP,

(xii)(A) transaction fees, costs and expenses incurred in connection with the Transactions prior to the Closing Date, (B) transaction fees, costs and expenses in an aggregate amount not to exceed $1,500,000 incurred in connection with the Transactions after the Closing Date but prior to the one year anniversary of the Closing Date and (C) transaction fees, costs and expenses in an aggregate amount not to exceed $1,000,000 incurred on or prior to December 31, 2018 in connection with the Specified Acquisition (whether or not the Specified Acquisition is consummated),

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(xiii)transaction fees, costs and expenses incurred during such period, or any amortization thereof for such period, in connection with any Acquisition, any Investment (other than intercompany Investments in the ordinary course of business), any Disposition (other than Dispositions in the ordinary course of business), any incurrence, repayment or refinancing of Indebtedness (or any amendment or other modification of any Indebtedness) or any issuance of Equity Interests, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed; provided that the aggregate amount added back pursuant to this clause (xiii) and pursuant to clauses (vi), (vii) and, other than with respect to the Approved Cost Savings, (viii) of this definition for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B), calculated prior to giving effect to any addback pursuant to this clause (xiii) or pursuant to clause (vi), (vii) or (viii) of this definition,

(xiv)any loss attributable to the early extinguishment of Indebtedness or obligations under any Hedge Agreement,

(xv)any unrealized loss attributable to the mark-to-market movement in the valuation of obligations under any Hedge Agreement pursuant to FASB Accounting Standards Codification 815, as amended,

(xvi)any unrealized loss attributable to the mark-to-market movement in the valuation of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830,

(xvii)any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Acquisition or Disposition (other than in the ordinary course of business) permitted under the Credit Documents or in connection with any Insurance/Condemnation Event (disregarding the exception in the definition of such term), including lost profits covered by business interruption insurance, in each case, to the extent (A) actually reimbursed by the applicable third party insurer or other third party during such period or (B) (1) the Borrower has received notification from the applicable third party insurer or other third party that it intends to reimburse such expenses, charges or losses or such lost profits and (2) there exists reasonable evidence that such expenses, charges or losses or lost profits will in fact be reimbursed by such insurer or other third party within 270 days after the related amount is first added to Consolidated Adjusted EBITDA pursuant to this clause (xvii), provided that no amount may be added pursuant to this clause (xvii) to the extent that (x) such insurer or other third party shall have denied in writing reimbursement for such amount and (y) such amount has not actually been reimbursed within 270 days after it is first added to Consolidated Adjusted EBITDA pursuant to this clause (xvii) (with a deduction for any amount so added back to the extent not so reimbursed within such 270 days),

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(xviii)any contingent or deferred payments (including earnout payments, noncompete payments and consulting payments) actually made to sellers during such period in connection with any Acquisition, and any losses for such period arising from the remeasurement of the fair value of any liability recorded with respect to any earnout or other contingent or deferred consideration arising from any Acquisition, less

(b)without duplication and to the extent included in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to clause (ix) below, to the extent not already deducted from Consolidated Net Income), the sum for the Borrower and the Restricted Subsidiaries of the following amounts for such period:

(i)non-cash gains or items of income (other than the accrual of revenue in the ordinary course), excluding any non-cash items of income in respect of which Cash was received in a prior period or will be received in a future period,

(ii)extraordinary gains or items of income, determined in conformity with GAAP,

(iii)unusual or non-recurring gains or items of income,

(iv)gains attributable to any Disposition of assets (other than Dispositions in the ordinary course of business),

(v)the amount of any net income from discontinued operations, determined in conformity with GAAP,

(vi)any gain attributable to the early extinguishment of Indebtedness or obligations under any Hedge Agreement,

(vii)any unrealized gain attributable to the mark-to-market movement in the valuation of obligations under any Hedge Agreement pursuant to FASB Accounting Standards Codification 815, as amended,

(viii)any unrealized gain attributable to the mark-to-market movement in the valuation of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830, and

(ix)the amount of any noncontrolling interest consisting of losses of any Restricted Subsidiary that is not wholly owned by the Borrower attributable to noncontrolling Equity Interests of third parties in such Restricted Subsidiary.

For purposes of calculating Consolidated Adjusted EBITDA for any period, if during such period the Borrower or any Restricted Subsidiary shall have consummated a Material Acquisition or a Material Disposition, Consolidated Adjusted EBITDA for such period shall be calculated after giving Pro Forma Effect thereto in accordance with Section 1.2(b).

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Notwithstanding the foregoing, but subject to the immediately preceding paragraph, Consolidated Adjusted EBITDA for (A) the Fiscal Quarter ended March 31, 2017, shall be deemed to be equal to $37,350,000, (B) the Fiscal Quarter ended June 30, 2017, shall be deemed to be equal to $40,745,000, (C) the Fiscal Quarter ended September 30, 2017, shall be deemed to be equal to $39,783,000 and (D) the Fiscal Quarter ended December 31, 2017, shall be deemed to be equal to $43,778,000.

“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures made by the Borrower and the Restricted Subsidiaries during such period that are required to be included in “purchase of property, plant and equipment” or similar items on a consolidated statement of cash flows, or that are otherwise required to be capitalized on a consolidated balance sheet, of the Borrower and the Restricted Subsidiaries for such period prepared in conformity with GAAP; provided that Consolidated Capital Expenditures shall not include any expenditures (a) to the extent made with Net Proceeds reinvested pursuant to Section 2.13(a) or 2.13(b) or (b) that constitute an Acquisition permitted under Section 6.6; provided further that, except for purposes of calculating Consolidated Excess Cash Flow for any period, in the event the Borrower or any Restricted Subsidiary consummates an Acquisition, Consolidated Capital Expenditures shall not include any such expenditures made by any Person, business unit, division, product line or line of business acquired pursuant to such Acquisition, in each case, prior to the date of the consummation of such Acquisition.

“Consolidated Excess Cash Flow” means, for any period, an amount equal to:

(a)the sum, without duplication, of:

(i)Consolidated Net Income for such period;

(ii)the aggregate amount of all non-cash charges (including depreciation expense, amortization expense and deferred tax expense), to the extent deducted in arriving at Consolidated Net Income;

(iii)the sum of (A) the amount, if any, by which Consolidated Working Capital decreased during such period (except as a result of the reclassification of items from short-term to long-term or vice versa) and (B) the net amount, if any, by which the consolidated deferred revenues of the Borrower and the Restricted Subsidiaries increased during such period, in each case, other than any such decreases or increases, as applicable, arising from an Acquisition or from a Disposition of assets (other than in the ordinary course of business) by the Borrower or any of the Restricted Subsidiaries completed during such period;

(iv)the aggregate amount of net non-cash loss on any Disposition of assets by the Borrower and the Restricted Subsidiaries (other than Dispositions in the ordinary course of business), to the extent deducted in arriving at Consolidated Net Income;

(v)the aggregate amount of cash payments received in respect of Hedge Agreements during such period, to the extent not included in arriving at Consolidated Net Income;

(vi)the aggregate amount of any non-cash loss for such period attributable to the early extinguishment of Indebtedness or Hedge Agreements, to the extent deducted in arriving at such Consolidated Net Income;

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(vii)income tax expense, to the extent deducted in arriving at such Consolidated Net Income; minus

(b)the sum, without duplication, of:

(i)the aggregate amount of all non-cash credits included in arriving at Consolidated Net Income;

(ii)without duplication of amounts deducted pursuant to clause (xi) below in any prior period, the Consolidated Capital Expenditures made by the Borrower and the Restricted Subsidiaries in Cash during such period, except to the extent financed with Excluded Sources;

(iii)the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries repaid or prepaid (including, to the extent of Cash spent, through repurchases and redemptions) by the Borrower and the Restricted Subsidiaries in Cash during such period (including (A) the principal component of payments in respect of Capital Lease Obligations, (B) scheduled Installments of Loans made pursuant to Section 2.11 and scheduled installments of term loans made pursuant to Section 2.11 of the First Lien Credit Agreement (or any comparable provision in any other Permitted Section 6.1(e) Indebtedness Document), (C) the amount of any mandatory prepayment of Loans, any Permitted Pari Passu Secured Indebtedness or any Permitted Senior Lien Secured Indebtedness actually made with the Net Proceeds of an Asset Sale or an Insurance/Condemnation Event, in each case, to the extent such Net Proceeds resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, and (D) to the extent of Cash spent, repurchases by the Borrower of Loans pursuant to Section 10.6(i)(ii), but excluding (1) all other repayments or prepayments (including repurchases and redemptions) of Loans, Permitted Pari Passu Secured Indebtedness and Permitted Senior Lien Secured Indebtedness, (2) all repayments or prepayments (including repurchases and redemptions) of any revolving credit loans (other than in respect of any revolving credit facility to the extent there is an equivalent permanent reduction in commitments thereunder, other than in connection with a refinancing thereof) and (3) repayments or prepayments (including repurchases and redemptions) of Junior Indebtedness (it being understood and agreed that any amount excluded pursuant to clauses (1) through (3) above may not be deducted under any other clause of this definition)), except to the extent financed with Excluded Sources;

(iv)the aggregate amount of net non-cash gain on any Disposition of assets by the Borrower and the Restricted Subsidiaries (other than Dispositions in the ordinary course of business), to the extent included in arriving at Consolidated Net Income;

(v)the sum of (i) the amount, if any, by which Consolidated Working Capital increased during such period (except as a result of the reclassification of items from short-term to long-term or vice versa) and (ii) the net amount, if any, by which the consolidated deferred revenues of the Borrower and the Restricted Subsidiaries decreased during such period, in each case, other than any such increases or decreases, as applicable, arising from an Acquisition or from a Disposition of assets (other than in the ordinary course of business) by the Borrower or any of the Restricted Subsidiaries completed during such period;

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(vi)the aggregate amount of any non-cash gain for such period attributable to the early extinguishment of Indebtedness, Hedge Agreements or other derivative instruments, to the extent included in arriving at Consolidated Net Income;

(vii)the aggregate amount of Cash payments made by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, except to the extent financed with Excluded Sources;

(viii)without duplication of amounts deducted pursuant to clause (xi) below in any prior period, the aggregate amount of Cash paid by the Borrower and the Restricted Subsidiaries during such period to consummate any Acquisition or Investment (other than intercompany Investments) permitted under Section 6.6(l), 6.6(m) or 6.6(o), except to the extent financed with Excluded Sources;

(ix)the aggregate amount of Restricted Junior Payments permitted by Section 6.4(e), 6.4(g)(i) or 6.4(i) paid by the Borrower and the Restricted Subsidiaries in Cash during such period, except to the extent financed with Excluded Sources;

(x)the aggregate amount of any premium, make-whole or penalty payments actually paid in Cash by the Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, except to the extent financed with Excluded Sources;

(xi)without duplication of amounts deducted from Excess Cash Flow in any prior period, the aggregate consideration required to be paid in Cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Acquisitions or Consolidated Capital Expenditures, in each case, to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrower following the end of such period; provided that to the extent that the aggregate amount of Cash actually utilized to finance such Acquisitions or Consolidated Capital Expenditures during such period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Consolidated Excess Cash Flow at the end of such period of four consecutive Fiscal Quarters;

(xii)to the extent not deducted in arriving at Consolidated Net Income, directors’ fees (including salary and bonus) and board consulting fees and related reimbursement of reasonable out-of-pocket expenses paid by the Borrower and the Restricted Subsidiaries in Cash in such period;

(xiii)to the extent not deducted in arriving at Consolidated Net Income, transaction fees, costs and expenses incurred in connection with the Transactions or any Acquisition paid by the Borrower and the Restricted Subsidiaries in Cash in such period;

(xiv)to the extent not deducted in arriving at Consolidated Net Income, income taxes, including penalties and interest, paid by the Borrower and the Restricted Subsidiaries in Cash in such period; and

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(xv)to the extent not deducted in arriving at Consolidated Net Income, the aggregate amount of Cash payments made by the Borrower and the Restricted Subsidiaries in respect of Hedge Agreements during such period.

“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of (a) Consolidated Interest Expense for such period, (b) the aggregate amount of scheduled principal payments made during such period in respect of Long-Term Indebtedness of the Borrower and the Restricted Subsidiaries (other than payments made by the Borrower or any Restricted Subsidiary to the Borrower or a Restricted Subsidiary), (c) the aggregate amount of principal payments (other than scheduled principal payments) made during such period in respect of Long-Term Indebtedness of the Borrower and the Restricted Subsidiaries (other than payments made by the Borrower or any Restricted Subsidiary to the Borrower or a Restricted Subsidiary), to the extent that such payments reduced any scheduled principal payments that would have become due within one year after the date of the applicable payment, (d) the aggregate amount of principal payments on Capital Lease Obligations, determined in conformity with GAAP, made by the Borrower and the Restricted Subsidiaries during such period and (e) Consolidated Capital Expenditures for such period (except to the extent financed by incurring Long-Term Indebtedness).

“Consolidated Interest Expense” means, for any period:

(a)the sum, without duplication, of (i) the total interest expense (including imputed interest expense in respect of Capital Lease Obligations) for the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in conformity with GAAP, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net payments, if any, made (less net payments, if any, received) pursuant to obligations under Hedge Agreements in respect of any Indebtedness, and (ii) any interest or other financing costs becoming payable during such period in respect of Indebtedness of the Borrower or any Restricted Subsidiary to the extent such interest or other financing costs shall have been capitalized rather than included in total interest expense for such period in accordance with GAAP, minus

(b)cash interest income of the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, minus

(c)to the extent included in clause (a) for such period, the sum, without duplication, of (i) amortization or write-down of capitalized interest, deferred financing costs or debt issuance costs, commissions, fees and expenses, pay-in-kind interest expense, the amortization of original issue discount resulting from the issuance of Indebtedness below par and any other amounts of non-cash interest (including as a result of the effects of purchase accounting), (ii) the accretion or accrual of discounted liabilities during such period, (iii) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedge Agreements or other derivative instruments pursuant to FASB Accounting Standards Codification 815, (iv) any one-time cash costs associated with breakage in respect of Hedge Agreements for interest rates, (v) all additional interest or liquidated damages then owing pursuant to any registration rights agreement and any comparable “additional interest” or liquidated damages with respect to any securities designed to compensate the holders thereof for a failure to publicly register such securities, (vi) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting, (vii) fees and expenses associated with the consummation of the Transactions and (viii) commitment and other financing fees (excluding, for the avoidance of doubt, the commitment fees in respect of revolving commitments under any Permitted Section 6.1(e) Indebtedness).

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For purposes of calculating Consolidated Interest Expense for any period, if during such period the Borrower or any Restricted Subsidiary shall have consummated a Material Acquisition (other than the Transactions) or a Material Disposition, Consolidated Interest Expense for such period shall be calculated after giving Pro Forma Effect thereto in accordance with Section 1.2(b).

Notwithstanding the foregoing (but subject to the immediately preceding paragraph), Consolidated Interest Expense shall be deemed to be (A) for the four Fiscal Quarter period ended on the last day of the first Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for such Fiscal Quarter multiplied by four, (B) for the four Fiscal Quarter period ended on the last day of the second Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for the two Fiscal Quarters then most recently ended multiplied by two, and (C) for the four Fiscal Quarter period ended on the last day of the third Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for the three Fiscal Quarters then most recently ended multiplied by 4/3; provided that, in the event the Closing Date shall have occurred after the first day of the first Fiscal Quarter ending after the Closing Date, Consolidated Interest Expense for such Fiscal Quarter shall be deemed, for purposes of clauses (A), (B) and (C) above, to be Consolidated Interest Expense for the period from and including the Closing Date to and including the last day of such Fiscal Quarter, multiplied by a fraction equal to (x) 90 divided by (y) the number of days actually elapsed from and including the Closing Date to and including the last day of such Fiscal Quarter.

“Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in conformity with GAAP; provided that there shall be excluded, without duplication, (a) the cumulative effect of a change in accounting principles during such period and (b) the net income (or loss) of any Person (including any Unrestricted Subsidiary or any Person accounted for under the equity method of accounting) that is not the Borrower or a Restricted Subsidiary except, in the case of net income, to the extent of the amount of Cash dividends or similar Cash distributions actually paid by such Person to the Borrower or any Restricted Subsidiary during such period.

“Consolidated Total Assets” means, as of any date, the consolidated total assets of the Borrower and the Restricted Subsidiaries as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the first such delivery, for which financial statements are included in the Historical Financial Statements), determined on a consolidated basis in conformity with GAAP, but excluding therefrom any Escrow Cash Collateral. Consolidated Total Assets as of any date prior to the Closing Date shall be determined on a Pro Forma basis to give effect to the Merger and the other Transactions to occur on the Closing Date.

“Consolidated Total Debt” means, as of any date, without duplication:

(a)  the sum of the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding as of such date, in the amount that would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), consisting solely of Indebtedness for borrowed money, obligations evidenced by bonds, debentures, notes or similar instruments and purchase money indebtedness, plus

(b)  the aggregate amount of Capital Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding as of such date, plus

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(c) to the extent the amount thereof would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), the aggregate amount of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred by the Borrower and the Restricted Subsidiaries in connection with any Acquisition, plus

(d)  the aggregate amount outstanding as of such date of unreimbursed drawings or other disbursements under all letters of credit and letters of guaranty in respect of which the Borrower or any Restricted Subsidiary is an account party, plus

(e)  all obligations, contingent or otherwise, of the Borrower or any Restricted Subsidiary in respect of bankers’ acceptances outstanding as of such date, plus

(f)  Guarantees outstanding as of such date by the Borrower or any Restricted Subsidiary of Indebtedness of the type described in clauses (a) through (e) above of any Person other than the Borrower or any Restricted Subsidiary.

“Consolidated Total Net Debt” means, as of any date, without duplication:

(a)  the sum of the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding as of such date, in the amount that would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), consisting solely of Indebtedness for borrowed money, obligations evidenced by bonds, debentures, notes or similar instruments and purchase money indebtedness, plus

(b)  the aggregate amount of Capital Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding as of such date, plus

(c) to the extent the amount thereof would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a)), the aggregate amount of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred by the Borrower and the Restricted Subsidiaries in connection with any Acquisition, plus

(d)  the aggregate amount outstanding as of such date of unreimbursed drawings or other disbursements under all letters of credit and letters of guaranty in respect of which the Borrower or any Restricted Subsidiary is an account party, plus

(e)  all obligations, contingent or otherwise, of the Borrower or any Restricted Subsidiary in respect of bankers’ acceptances outstanding as of such date, plus

(f)  Guarantees outstanding as of such date by the Borrower or any Restricted Subsidiary of Indebtedness of the type described in clauses (a) through (e) above of any Person other than the Borrower or any Restricted Subsidiary, minus

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(g)  the aggregate amount of Unrestricted Cash as of such date (but disregarding the proceeds of Indebtedness that is incurred on such date); provided that, with respect to the calculation of Consolidated Total Net Debt for purposes of testing the covenant set forth in Section 6.7(a) (including any such testing to determine compliance therewith on a Pro Forma Basis as required by any other provision hereof), the aggregate amount of such Unrestricted Cash deducted pursuant to this clause (g) shall not exceed $30,000,000.

“Consolidated Working Capital” means, as of any date, the excess of (a) the sum of all amounts (other than Cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date (excluding all amounts attributable to Unrestricted Subsidiaries), but excluding, without duplication, (i) assets relating to current and deferred income taxes and (ii) the effects from applying purchase accounting, less (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date (excluding all amounts attributable to Unrestricted Subsidiaries), excluding, without duplication, (i) the current portion of any Long-Term Indebtedness, (ii) all Indebtedness (including letter of credit obligations) under any revolving credit facility, to the extent otherwise included therein, (iii) the current portion of interest, (iv) the current portion of current and deferred income Taxes, (v) non-cash compensation liabilities and (vi) the effects from applying purchase accounting.

“Consumer/SMB Business” means the “Consumer/SMB Business” as defined in the Merger Agreement as in effect on the Closing Date.

“Contractual Obligation” means, with respect to any Person, any provision of any Security issued by such Person or any indenture, mortgage, deed of trust, contract, undertaking or other agreement or instrument to which such Person is a party or by which such Person or any of its properties is bound or to which such Person or any of its properties is subject.

“Control” means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies, or the dismissal or appointment of the management, of such Person, whether through the ability to exercise voting power, the ownership of Securities, by contract, or otherwise. The words “Controlling”, “Controlled by” and “under common Control with” have correlative meanings.

“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 D.

“Counterpart Agreement” means a Second Lien Counterpart Agreement substantially in the form of Exhibit E.

“Credit Date” means the date of any Credit Extension.

“Credit Document” means each of this Agreement, the Collateral Documents, the Post-Closing Letter Agreement, the Counterpart Agreements, the Extension/Modification Agreements, the Incremental Facility Agreements, the Refinancing Facility Agreements, the Permitted Intercreditor Agreements and, except for purposes of Section 10.5, the Notes, if any, the Collateral Questionnaire and all other documents, certificates, instruments or agreements executed and delivered by or on behalf of any Credit Party for the benefit of any Agent or any Lender in connection herewith on or after the date hereof and which are designated as “Credit Documents” pursuant to an agreement between the Borrower and the Administrative Agent.

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“Credit Extension” means the making of a Loan.

“Credit Parties” means the Borrower and the Guarantor Subsidiaries.

“Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement (including under corporate statutes), 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.

“Declined Mandatory Prepayment Retained Amount” means any portion of the amount of any mandatory prepayment of Loans required pursuant to Section 2.13(a), 2.13(b) or 2.13(e) that has been declined by the Lenders in accordance with Section 2.14(c), but only to the extent retained by the Borrower in accordance with Section 2.14(c).

“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

“Defaulting Lender” means any Lender that (a) has failed (i) to fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder, unless such Lender notifies the Administrative Agent and the Borrower in good faith in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable Default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) to pay to the Administrative Agent, the Collateral Agent or any Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent 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 the applicable Default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the 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 the Administrative Agent and the Borrower), or (d) is, or a direct or indirect parent company of such Lender is, (i) the subject of a Bail-In Action, (ii) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors or (iii) the subject of a proceeding under any Debtor Relief Laws, or a receiver, trustee, conservator, intervenor or sequestrator or the like (including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in a like capacity with respect to such Lender) has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such 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 the 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 such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower and each Lender.

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“Designated Subsidiary” means each Restricted Subsidiary of the Borrower, including the Acquired Company and its Restricted Subsidiaries, other than (a) any Subsidiary that is not a wholly owned Subsidiary, (b) any Subsidiary that is a CFC or a CFC Holding Company, (c) any Subsidiary of a CFC or CFC Holding Company, (d) any Subsidiary that is not a Material Subsidiary, (e) any Subsidiary that is prohibited by applicable law or, in the case of any Subsidiary acquired after the Closing Date, any Contractual Obligation in effect at the time such Subsidiary is acquired (and not entered into in contemplation of or in connection with such acquisition) from providing an Obligations Guarantee (including any such prohibition arising from any requirement to obtain a consent, approval (including regulatory approval), license or authorization of any Governmental Authority that has not been obtained in order to provide such Obligations Guarantee); provided that to the extent any such consent, approval, license or authorization is required from the FCC or any State PUC, the Borrower and the Restricted Subsidiaries shall use commercially reasonable efforts (including by making all applicable filings and submitting all applicable notices) to obtain the same promptly after such Restricted Subsidiary is otherwise required to become a Designated Subsidiary, (f) any captive insurance company, (g) any not-for-profit Subsidiary or (h) any Subsidiary where the burden or cost of providing an Obligations Guarantee by such Subsidiary is excessive in relation to the benefit that would be afforded to the Lenders thereby, as determined by the Administrative Agent in consultation with the Borrower; provided that, notwithstanding the foregoing, a Subsidiary shall be a Designated Subsidiary if such Subsidiary shall be an obligor (including pursuant to a Guarantee) in respect of any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Indebtedness or any Permitted Subordinated Indebtedness. Notwithstanding the foregoing, neither Primus Management ULC, a British Columbia unlimited liability company, nor Bircan Management ULC, a British Columbia unlimited liability company, shall be a “Designated Subsidiary” unless so designated by the Borrower in writing to the Administrative Agent.

“Disposition” means any sale, transfer, lease or other disposition (including any sale or issuance of Equity Interests in a Subsidiary) of any property by any Person, including any sale, transfer or other disposition, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. “Dispose” has the meaning correlative thereto.

“Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such Person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the occurrence of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person that are not Disqualified Equity Interests and Cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and Cash in lieu of fractional shares of such Equity Interests), in whole or in part, or is required to be repurchased by the Borrower or any Restricted Subsidiary, in whole or in part, at the option of the holder thereof (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and Cash in lieu of fractional shares of such Equity Interests) or (c) is or becomes convertible into or exchangeable for, either mandatorily or at the option of the holder thereof, Indebtedness or any other Equity Interests (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and Cash in lieu of fractional shares of such Equity Interests), in each case, prior to the date that is 91 days after the latest Maturity Date (determined as of the date of issuance thereof or, in the case of any such Equity Interests outstanding on the date hereof, the date hereof), except, in the case of clauses (a) and (b), as a result of a “change of control” or “asset sale”, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior payment in full of all Obligations and, if any are then in effect, the termination of the Commitments; provided that an Equity Interest in any Person that is issued to any employee or to any plan for the benefit of employees or by any such plan to such employees shall not constitute a Disqualified Equity Interest solely because it may be required to be repurchased by such Person or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided further that the Closing Date Preferred Stock shall not constitute a Disqualified Equity Interest.

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“Disqualified Institution” means (a) such competitors of the Borrower and its Subsidiaries as have been identified by name in writing by the Borrower to the Administrative Agent from time to time and (b) any Affiliate of any such Person identified pursuant to clause (a) above (i) that has been identified by name in writing by the Borrower to the Administrative Agent from time to time or (ii) where such Affiliate’s relationship to such Person is readily apparent on its face on the basis of the name of such Affiliate, in each case under this clause (b), other than any such Affiliate that is a bona fide fixed income investor or debt fund that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds or similar extensions of credit in the ordinary course of business; provided that no Person shall be a Disqualified Institution until the date on which the list of Disqualified Institutions that have been so identified by name pursuant to this definition shall have been made available to the Lenders on the Platform. It is understood and agreed that any identification by the Borrower pursuant to this definition shall not apply retroactively to disqualify any assignment or participation to any Person that shall have become a Lender or a participant prior thereto (but that no further assignments or delegations to, or sales of participations by, may be made to any such Person thereafter and such Person shall thereafter for all other purposes be a Disqualified Institution). The Administrative Agent will promptly make such list available on the Platform upon the written request of the Borrower that it do so. Notwithstanding anything to the contrary in this Agreement, each of the parties hereto acknowledges and agrees that the Administrative Agent shall not have any duty to ascertain, monitor or enforce compliance with the list of Disqualified Institutions and shall not have any liability with respect to any assignment or participation made to a Disqualified Institution.

“Dollars” and the sign “$” mean the lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country 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) above, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clause (a) or (b) above and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, 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 (a) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related Funds of any Lender being treated as a single Eligible Assignee for all purposes hereof) and (b) any commercial bank, insurance company, investment or mutual fund or other Person that is an “accredited investor” (as defined in Regulation D under the Securities Act) and that extends credit or buys loans in the ordinary course of business; provided that in no event shall any natural person (or any holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), any Defaulting Lender, any Disqualified Institution, the Borrower, any Subsidiary or any other Affiliate of the Borrower be an Eligible Assignee.

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“Employee Benefit Plan” means any of (a) an “employee benefit plan”, as defined in Section 3(3) of ERISA, that is subject to Parts II, III or IV of Title I of ERISA or Title IV of ERISA and that is or was sponsored, maintained or contributed to by, or required to be contributed to by, the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”, in each case, other than a Foreign Plan.

“Engagement Letter”means the Engagement Letter dated February 13, 2018, among Goldman Sachs Bank USA, MSSF, The Bank of Tokyo-Mitsubishi UFJ, Ltd. and the Borrower.

“Environmental Laws” means all applicable laws (including common law), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations or any other requirements of Governmental Authorities relating to pollution or to the protection of the environment, natural resources, threatened or endangered species or human health and safety.

“Environmental Liability” means all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs, (including administrative oversight costs, natural resource damages, monitoring and remediation costs and reasonable fees and expenses of attorneys and consultants), whether contingent or otherwise, arising out of or relating to: (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment, recycling, disposal (or arrangement for such activities) of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the presence or Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or acquire any of the foregoing (other than, prior to the date of such conversion, Indebtedness that is convertible into any such Equity Interests).

“ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means, with respect to any Person, (a) any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which such Person is a member, (b) any trade or business (whether or not incorporated) that is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which such Person is a member and (c) any member of an affiliated service group within the meaning of Section 414(m) or 414(o) of the Internal Revenue Code of which such Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member. Any Person that was, but has since ceased to be, an ERISA Affiliate (within the meaning of the previous sentence) of the Borrower or any Restricted Subsidiary shall continue to be considered an ERISA Affiliate of the Borrower or such Restricted Subsidiary within the meaning of this definition with respect to the period such Person was an ERISA Affiliate of the Borrower or such Restricted Subsidiary and with respect to liabilities arising after such period for which the Borrower or such Restricted Subsidiary could be liable under the Internal Revenue Code or ERISA.

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“ERISA Event” means (a) the occurrence of a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30 day notice to the PBGC has been waived by regulation), (b) the failure of the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates to meet the minimum funding standard of Section 412 of the Internal Revenue Code or Section 302 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure of the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates to make any required contribution to a Multiemployer Plan, (c) the filing pursuant to Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, (d) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA, (e) the withdrawal by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Borrower, any Restricted Subsidiary or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (f) the institution by the PBGC of proceedings to terminate any Pension Plan, or the appointment of a trustee to administer, any Pension Plan, (g) the incurrence by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan, (h) the imposition of liability on the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA, (i) the withdrawal of the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any liability therefor, (j) the receipt by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates of notice from any Multiemployer Plan (i) that such Multiemployer Plan is in insolvency pursuant to Section 4245 of ERISA, (ii) that such Multiemployer Plan is in “endangered” or “critical” status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA) or (iii) that such Multiemployer Plan intends to terminate or has terminated under Section 4041A or 4042 of ERISA, (k) a determination that any Pension Plan is in “at risk” status (as defined in Section 430(i)(4) of the Internal Revenue Code or Section 303(i)(4) of ERISA) with respect to any plan year, (l) the occurrence of an act or omission that could reasonably be expected to give rise to the imposition on the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), 502(i) or 502(l), or Section 4071 of ERISA in respect of any Employee Benefit Plan, (m) the assertion of a claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan, (n) receipt from the IRS of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code, (o) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA or a violation of Section 436 of the Internal Revenue Code or (p) the occurrence of a non-exempt “prohibited transaction” (as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA) with respect to which the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates is a “disqualified person” (within the meaning of Section 4975 of the Internal Revenue Code) or a “party in interest” (within the meaning of Section 406 of ERISA).

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“Escrow Cash Amount” means $62,000,000.

“Escrow Cash Collateral” means Cash proceeds from the borrowing of the “Tranche B Term Borrowings” made under the First Lien Credit Agreement in an aggregate amount equal to the Escrow Cash Amount that has been deposited into the Escrow Cash Collateral Account, together with any interest or profits thereon.

“Escrow Cash Collateral Account” as defined in the First Lien Credit Agreement.

“Escrow Cash Collateral Control Agreement” as defined in the First Lien Credit Agreement.

“Escrow Cash Collateral Outside Date” as defined in the First Lien Credit Agreement.

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

“Eurodollar Rate Borrowing” means a Borrowing comprised of Eurodollar Rate Loans.

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

“Event of Default” means any condition or event set forth in Section 8.1.

“Exchange Act” means the Securities Exchange Act of 1934.

“Excluded Property” as defined in the definition of the term “Collateral and Guarantee Requirement”.

“Excluded Sources” means the proceeds of any issuance or incurrence of Indebtedness by, or the issuance of any Equity Interests by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries, the proceeds of any Disposition outside the ordinary course of business and any other proceeds not included in Consolidated Net Income.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, US federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment requested by the Borrower under Section 2.22) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.19, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in such Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.19(g) and (d) any US federal withholding Taxes imposed under FATCA.

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“Existing Debt Documents” means (a) the Credit Agreement, dated as of November 14, 2016, as amended, among Fusion NBS Acquisition Corp., East West Bank, as Administrative Agent, Swingline Lender, an Issuing Bank and a Lender, and the other lenders party thereto, (b) the Fifth Amended and Restated Securities Purchase Agreement and Security Agreement, dated as of November 14, 2016, as amended, among Fusion NBS Acquisition Corp., the Borrower, the subsidiaries of the Borrower guarantors thereto, Praesidian Capital Opportunity Fund III, LP, as Agent, and the lenders party thereto, (c) that certain Second Amended and Restated Unsecured Promissory Note, dated November 14, 2016, payable by the Borrower to Marvin Rosen and (d) the Credit Agreement, dated as of July 18, 2014, as amended, among the Acquired Company, Birch Communications, Inc., Cbeyond, Inc., the other guarantors party thereto, the lenders party thereto and PNC Bank, National Association, as Administrative Agent.

“Existing EWB Letter of Credit” means the Irrevocable Standby Letter of Credit No. 17OSL03973 in the amount of $450,000 issued on August 23, 2017 by East West Bank.

“Existing Subordinated Notes” means the subordinated notes, each dated October 28, 2016, as amended and restated as of May 4, 2018, in favor of Holcombe T. Green, Jr., R. Kirby Godsey and the Holcombe T. Green, Jr. 2013 Five-Year Annuity Trust.

“Extended/Modified Loans” as defined in the definition of “Extension/Modification Permitted Amendment”.

“Extended/Modified Loan Maturity Date” means, with respect to Extended/Modified Loans of any Class, the scheduled date on which such Extended/Modified Loans shall become due and payable in full hereunder, as specified in the applicable Extension/Modification Agreement.

“Extending/Modifying Lenders” as defined in Section 2.24(a).

“Extension/Modification Agreement” means an Extension/Modification Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Extending/Modifying Lenders, effecting one or more Extension/Modification Permitted Amendments and such other amendments hereto and to the other Credit Documents as are contemplated by Section 2.24.

“Extension/Modification Offer” as defined in Section 2.24(a).

“Extension/Modification Permitted Amendment” means an amendment to this Agreement and the other Credit Documents, effected in connection with an Extension/Modification Offer pursuant to Section 2.24, providing for (a) an extension of the Maturity Date and/or (b) an increase or decrease in the yield (including any increase or decrease in, or an introduction of, interest margins, benchmark rate floors, fixed interest rates or fees or premiums), in each case, applicable to the Loans of the Extending/Modifying Lenders of the applicable Extension/Modification Request Class (such Loans being referred to as the “Extended/Modified Loans”) and, in connection therewith:

(i)  any modification of (including the introduction of) any scheduled amortization applicable to such Extended/Modified Loans, provided that the weighted average life to maturity of such Extended/Modified Loans shall be no shorter than the remaining weighted average life to maturity of the Loans of the applicable Extension/Modification Request Class, determined at the time of such Extension/Modification Offer (and, for purposes of determining the weighted average life to maturity of any such Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded),

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(ii)  a modification of voluntary or mandatory prepayments applicable to such Extended/Modified Loans (including prepayment premiums, “no call” terms and other restrictions thereon), provided that in the case of any Extended/Modified Loans, such requirements may provide that such Extended/Modified Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than pro rata) with the Loans of the applicable Extension/Modification Request Class, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the Loans of the applicable Extension/Modification Request Class, and/or

(iii)  any addition of any affirmative or negative covenants applicable to the Borrower and/or any Subsidiary, provided that to the extent such covenants are not consistent with those applicable to the Loans of the applicable Extension/Modification Request Class, such differences shall be reasonably acceptable to the Administrative Agent (except for covenants (A) beneficial to the Lenders where this Agreement is amended to include such covenants for the benefit of all Lenders or (B) applicable only to periods after the latest Maturity Date in effect at the time of effectiveness of the applicable Extension/Modification Agreement).

“Extension/Modification Request Class” as defined in Section 2.24(a).

“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by the Borrower or any Restricted Subsidiary or any of their respective predecessors or Affiliates.

“Fair Share” as defined in Section 7.2(b).

“Fair Share Contribution Amount” as defined in Section 7.2(b).

“FATCA”means Sections 1471 through 1474 of the Internal Revenue Code, effective as of the date hereof (or any amended or successor version that is 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 Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.

“FCC” means the Federal Communications Commission, or any Governmental Authority succeeding to the functions thereof.

“Federal Funds Effective Rate” means, for any day, the rate per annum 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 that (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 quoted to the Administrative Agent on such day on such transactions by major financial institutions selected by the Administrative Agent. Notwithstanding the foregoing, if the Federal Funds Effective Rate, determined as above, would otherwise be less than zero, then the Federal Funds Effective Rate shall be deemed to be zero for all purposes of this Agreement.

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“Fee Letters” means (a) the Fee Letter, dated April 30, 2018, between Goldman Sachs and the Borrower, (b) the Amended and Restated Arranger Fee Letter, dated May 4, 2018, among Goldman Sachs, MSSF, MUFG and the Borrower and (c) the Administrative Agent Fee Letter.

“Financial Officer Certification” means (a) with respect to any consolidated financial statements of any Person, a certificate of the chief financial officer of such Person stating that such financial statements present fairly, in all material respects, the consolidated financial position of such Person and its Subsidiaries as of the dates indicated and the consolidated results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a consistent basis (except as otherwise disclosed in such financial statements), subject to changes resulting from normal year-end audit adjustments and the absence of footnotes, and (b) with respect to any Unrestricted Subsidiary Reconciliation Statement, a certificate of the chief financial officer of the Borrower stating that such reconciliation statement accurately reflects all adjustments necessary to treat the Unrestricted Subsidiaries as if they were not consolidated with the Borrower and to otherwise eliminate all accounts of the Unrestricted Subsidiaries and reflects no other adjustment from the related GAAP financial statement (except as otherwise disclosed in such reconciliation statement).

“Financing Transactions” means (a) the execution, delivery and performance by each Credit Party of the Credit Documents to which it is to be a party, the creation of the Liens provided for in the Collateral Documents and, in the case of the Borrower, the borrowing of Loans and the use of the proceeds thereof and (b) the execution, delivery and performance by each Credit Party of the First Lien Credit Documents to which it is to be a party, the creation of the Liens provided for in the First Lien Credit Documents and, in the case of the Borrower, the borrowing of the loans, the use of the proceeds thereof and the issuance of letters of credit under the First Lien Credit Agreement.

“First Lien Credit Agreement” means the First Lien Credit and Guaranty Agreement, dated as of the date hereof, among the Borrower, the Guarantor Subsidiaries, the lenders party thereto and Wilmington Trust, as administrative agent and collateral agent thereunder.

“First Lien Credit Documents” means the “Credit Documents” as defined in the First Lien Credit Agreement.

“First Lien Permitted Incremental Equivalent Indebtedness” has the meaning assigned to the term “Permitted Incremental Equivalent Indebtedness” (or any comparable successor provision) in the First Lien Credit Agreement.

“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.

“Fiscal Year” means the fiscal year of the Borrower and the Subsidiaries ending on December 31 of each calendar year.

“Fixed Charge Coverage Ratio” means the ratio, as of the last day of any period of four consecutive Fiscal Quarters, of (a) Consolidated Adjusted EBITDA for such period to (b) Consolidated Fixed Charges for such period.

“Flood Hazard Property” means any Real Estate Asset subject to a Mortgage or required pursuant to the terms hereof to become subject to a Mortgage in favor of the Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

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“Flood Certificate” means a life of loan “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency.

“Flood Program”means the National Flood Insurance Program created by the US Congress pursuant to (a) the National Flood Insurance Act of 1968, as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973, as now or hereafter in effect or any successor statute thereto, (c) the National Flood Insurance Reform Act of 1994, as now or hereafter in effect or any successor statute thereto, (d) the Flood Insurance Reform Act of 2004, as now or hereafter in effect or any successor statute thereto and (e) the Biggert-Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute thereto, including any and all rules and regulations promulgated thereunder.

“Flood Zone”means areas having special flood hazards as described in the National Flood Insurance Act of 1968, as now or hereafter in effect or any successor statute thereto.

“Foreign Lender” means a Lender that is not a US Person.

“Foreign Plan” means any plan that would be an Employee Benefit Plan but for the fact that is not subject to United States law and that is maintained or contributed to by the Borrower, any Restricted Subsidiary or, to the extent that the Borrower or any Restricted Subsidiary shall have liability with respect to such Pension Plan, any of their respective ERISA Affiliates for or on behalf of its employees whose principal place of employment is outside of the United States.

“Foreign Plan Event” means, with respect to any Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable laws or by the terms of such Foreign Plan, (b) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from the applicable Governmental Authority, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, or alleging the insolvency of the Borrower or any Restricted Subsidiary that sponsors, contributes to or participates in such Foreign Plan, (d) the initiation of any action or filing by the Borrower or any Restricted Subsidiary to voluntarily terminate or wind up in whole or in part any Foreign Plan where any such Foreign Plan is not fully funded and that would result in the incurrence of a liability by the Borrower or any Restricted Subsidiary, (e) the incurrence of liability by the Borrower or any Restricted Subsidiary under applicable law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, (f) the failure to timely register or loss of good standing with applicable Governmental Authorities of any such Foreign Plan required to be so registered or maintain such standing if such failure to register or loss of such standing would result in the incurrence of a liability by the Borrower or any Restricted Subsidiary or (g) the failure of any Foreign Plan to comply with any material provisions of applicable laws or with the material terms of such Foreign Plan if such failure would result in the incurrence of a liability by the Borrower or any Restricted Subsidiary.

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

“Funding Notice” means a notice substantially in the form of Exhibit F.

“Fusion Global Arrangement” means the “Fusion Global Arrangement” as defined in the Merger Agreement as in effect on the Closing Date.

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“GAAP” means, at any time, subject to Section 1.2(a), United States generally accepted accounting principles as in effect at such time, applied in accordance with the consistency requirements thereof.

“Goldman Sachs” means Goldman Sachs Lending Partners LLC.

“Governmental Act” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.

“Governmental Authority” means any federal, state, municipal, national, supranational or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the United States of America, any State thereof or the District of Columbia or a foreign entity or government (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).

“Governmental Authorization” means any permit, license, registration, approval, exemption, authorization, plan, directive, binding agreement, consent order or consent decree made to, or issued, promulgated or entered into by or with, any Governmental Authority.

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, Securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation; provided that the term “Guarantee” shall not include (i) endorsements for collection or deposit in the ordinary course of business or (ii) customary indemnity obligations entered into in connection with any Acquisition or any Disposition permitted hereunder (other than any such obligations with respect to Indebtedness). The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on such date of Indebtedness or other obligation guaranteed thereby (or, in the case of (A) any Guarantee the terms of which limit the monetary exposure of the guarantor or (B) any Guarantee of an obligation that does not have a principal amount, the maximum monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause (A), pursuant to such terms or, in the case of clause (B), reasonably and in good faith by the chief financial officer of the Borrower)).

“Guarantor Subsidiary” means each Restricted Subsidiary that is a party hereto as a “Guarantor” and a party to the Pledge and Security Agreement as a “Grantor” thereunder.

“Guarantors” means each Guarantor Subsidiary; provided that the term “Guarantors” shall also include the Borrower solely for purposes of the Guarantee of Obligations of the other Credit Parties pursuant to Section 7.

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“Hazardous Materials” means any petroleum or petroleum products, radioactive materials or wastes, asbestos in any form, polychlorinated biphenyls, hazardous or toxic substances and any other chemical, material, waste or substance that is prohibited, limited or regulated, or that could result in liability, under any Environmental Law.

“Hedge Agreement” means any agreement with respect to any swap, forward, future or derivative transaction, or any option or similar agreement, involving, or settled by reference to, one or more rates, currencies, commodities, prices of equity or debt securities or instruments, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or any similar transaction or combination of the foregoing transactions; provided that no phantom stock, stock option, stock appreciation right or similar plan or right providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Hedge Agreement.

“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 laws applicable to any Lender that are presently in effect or, to the extent allowed by law, under such applicable laws that may hereafter be in effect and that allow a higher maximum nonusurious interest rate than applicable laws now allow.

“Historical Acquired Company Financial Statements” means the audited consolidated balance sheets and related audited consolidated statements of operations and comprehensive income, stockholders’ equity and cash flows, in each case prepared in conformity with GAAP, of the Acquired Company and its consolidated Subsidiaries for the fiscal year ended December 31, 2017.

“Historical Borrower Financial Statements” means the audited consolidated balance sheets and related consolidated statements of operations, changes in stockholders’ equity and cash flows, in each case prepared in conformity with GAAP, of the Borrower and its consolidated Subsidiaries for the Fiscal Year ended December 31, 2017.

“Incremental Amount” means, as of any date of determination, an amount not in excess of (a) (i) the sum of (A) $50,000,000 and (B) the aggregate principal amount of Tranche B Term Loans prepaid prior to such date pursuant to Section 2.12(a), in each case, to the extent not financed with the proceeds of any Long-Term Indebtedness and excluding any such reduction in connection with a refinancing thereof (and, in each case, excluding any prepayments thereof in excess of the amount thereof outstanding on the Closing Date or incurred in reliance on this clause (a)), minus (ii) the sum of (A) the aggregate amount of Incremental Commitments established prior to such date in reliance on this clause (a), (B) the aggregate principal amount of any Permitted Incremental Equivalent Indebtedness incurred prior to such date in reliance on this clause (a) and (C) the aggregate principal amount of any Permitted Section 6.1(e) Indebtedness incurred in reliance on clause (a)(i)(A) of the definition of “Incremental Amount” under the First Lien Credit Agreement (or any comparable successor provision) (the amounts available on such date under this clause (a) above being referred to as the “Unrestricted Incremental Amount”), plus (b) an additional amount so long as, in the case of this clause (b), after giving Pro Forma Effect to the incurrence of Indebtedness with respect to which the Incremental Amount is being determined and the use of proceeds thereof (but without netting the Cash proceeds of such Indebtedness (and any other Indebtedness incurred substantially concurrently therewith), and assuming, solely for purposes of this determination, that the entire amount of the Incremental Commitments with respect to which the Incremental Amount is being determined are fully funded as Loans), (i) the Total Net Leverage Ratio, determined as of the last day of the Test Period most recently ended on or prior to such date, shall not exceed 3.65:1.00 (the “Total Incremental Leverage Limit”) and (ii) the Borrower shall be in compliance with Section 6.7(a), determined as of the last day of the Test Period most recently ended on or prior to such date; provided that (I) if, for purposes of determining capacity under clause (b) above, Pro Forma Effect is given to the entire committed amount of any Indebtedness with respect to which the Incremental Amount is being determined, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without any further testing under this definition (provided that such committed amount shall, solely for purposes of calculating availability under clause (b) above, at all times thereafter be deemed to be fully funded as Indebtedness for borrowed money), (II) in the case of any Incremental Commitments or Permitted Incremental Equivalent Indebtedness established or incurred concurrently in reliance on the Unrestricted Incremental Amount and in reliance on clause (b) above, the Total Net Leverage Ratio shall be permitted to exceed the Total Incremental Leverage Limit to the extent of the amounts of such Incremental Commitments or Permitted Incremental Equivalent Indebtedness established or incurred in reliance on the Unrestricted Incremental Amount, (III) in the case of any Incremental Commitments or Permitted Incremental Equivalent Indebtedness established or incurred in reliance on clause (b) above, any other Indebtedness incurred concurrently therewith pursuant to and in accordance with any clause of Section 6.1 that does not require observance of the Total Net Leverage Ratio shall, solely in the case of subclause (i) of clause (b) above, be disregarded for purposes of calculating the Total Net Leverage Ratio under such subclause of clause (b) above, (IV) in the case of any Incremental Commitment or Permitted Incremental Equivalent Indebtedness established or incurred in reliance on clause (b) above, to the extent the proceeds thereof are intended to be applied to finance a Limited Conditionality Transaction, at the election of the Borrower, Pro Forma Compliance with the Total Net Leverage Ratio and Section 6.7(a) as required under clause (b) above (but not, for the avoidance of doubt, actual compliance with Section 6.7(a)) may be tested in accordance with the provisions of Section 1.5, and (V) any Incremental Commitments and Permitted Incremental Equivalent Indebtedness may be established or incurred in reliance on clause (a) or (b) above regardless of whether there is capacity under any such other clause above, or may be established or incurred in reliance in part on clause (a) or (b) above and in part on any such other clause above, all as determined by the Borrower in its sole discretion, provided that absent an election by the Borrower, to the extent that the applicable requirements have been satisfied, such incurrence shall be deemed to have been made pursuant to clause (b) above.

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“Incremental Borrowing” means a Borrowing comprised of Incremental Loans of a single Class.

“Incremental Commitment” means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Facility Agreement and Section 2.23, to make Incremental Loans of any Class hereunder, expressed as an amount representing the maximum principal amount of the Incremental Loans of such Class to be made by such Lender, subject to any increase or reduction pursuant to the terms and conditions hereof. The initial amount of each Lender’s Incremental Commitment of any Class, if any, is set forth in the Incremental Facility Agreement or Assignment Agreement pursuant to which such Lender shall have established or assumed its Incremental Commitment of such Class.

“Incremental Facility Agreement” means an Incremental Facility Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Incremental Lenders, establishing Incremental Commitments of any Class, specifying the purposes for which the proceeds of the Loans made pursuant thereto will be used and effecting such other amendments hereto and to the other Credit Documents as are contemplated by Section 2.23.

“Incremental Lender” means a Lender with an Incremental Commitment or an Incremental Loan.

“Incremental Loan” means a term loan made by an Incremental Lender to the Borrower pursuant to Section 2.23.

“Incremental Maturity Date” means, with respect to Incremental Loans of any Class, the scheduled date on which such Incremental Loans shall become due and payable in full hereunder, as specified in the applicable Incremental Facility Agreement.

“incur” means to create, incur, assume or, in the case of any Indebtedness, otherwise become liable with respect to such Indebtedness.

“Indebtedness” means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person (excluding trade accounts payable incurred in the ordinary course of business), (d) all obligations of such Person in respect of deferred purchase price of property or services (excluding (i) current accounts payable incurred in the ordinary course of business, (ii) deferred compensation payable to directors, officers, employees or consultants of such Person or any of its Subsidiaries and (iii) purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred in connection with any Acquisition, except to the extent that the amount payable pursuant to such purchase price adjustment, earnout, deferred compensation or similar arrangement is reflected on such Person’s consolidated balance sheet in conformity with GAAP), (e) all Capital Lease Obligations of such Person, (f) the maximum aggregate amount (determined after giving effect to any prior drawings or reductions that have been reimbursed) of all letters of credit and letters of guaranty in respect of which such Person is an account party, (g) the principal component of all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (h) all Indebtedness of others secured by any Lien on any property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed by such Person, valued, as of any date of determination, at the lesser of (i) the principal amount of such Indebtedness and (ii) the fair value of such property (as determined in good faith by such Person), (i) all Guarantees by such Person of Indebtedness of others and (j) all Disqualified Equity Interests in such Person, valued, as of the date of determination, at the greater of (i) the maximum aggregate amount that would be payable upon maturity, redemption, repayment or repurchase thereof (or of Disqualified Equity Interests or Indebtedness into which such Disqualified Equity Interests are convertible or exchangeable) and (ii) the maximum liquidation preference of such Disqualified Equity Interests. The Indebtedness of any Person shall include the Indebtedness of any other Person (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such other Person, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

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“Indemnified Liabilities” means any and all liabilities (including Environmental Liabilities), obligations, losses, damages (including natural resource damages), penalties, claims, actions, judgments, suits, costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials), expenses and disbursements of any kind or nature whatsoever (including the reasonable out-of-pocket fees, expenses and other charges of counsel and consultants for the Indemnitees in connection with any investigative, administrative or judicial proceeding or hearing commenced or threatened by any Person (including by any Credit Party or any Affiliate thereof), whether or not any such Indemnitee shall be designated as a party or a potential party thereto (but limited, in the case of any one such proceeding or hearing, to fees, expenses and other charges of one firm of primary counsel, one firm of regulatory counsel, and, if reasonably necessary, one firm of local counsel in each applicable jurisdiction for all the Indemnitees (and, if any Indemnitee shall have advised the Borrower that there is an actual or perceived conflict of interest, one additional firm of primary counsel, one additional firm of regulatory counsel and, if reasonably necessary, one additional firm of local counsel in each applicable jurisdiction for each group of affected Indemnitees that are similarly situated (in each case, excluding allocated costs of in-house counsel)), and any fees or expenses incurred by the Indemnitees in enforcing this indemnity), whether direct, indirect, special, consequential or otherwise and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable causes of action or on contract or otherwise, that may be imposed on, incurred by or asserted against any such Indemnitee, in any manner relating to or arising out of (a) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions, the syndication of the credit facilities provided for herein or the use or intended use of the proceeds thereof, the Vector Facility Arrangements, any amendments, waivers or consents with respect to any provision of this Agreement or any of the other Credit Documents, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Obligations Guarantee)), (b) any commitment letter, engagement letter, fee letter or other letter or agreement delivered by any Agent, any Arranger or any Lender to the Borrower or any of its Affiliates in connection with the arrangement of the credit facilities provided for herein or in connection with the transactions contemplated by this Agreement or (c) any actual or alleged presence or Release of Hazardous Materials on, at or under or from any property currently or formerly owned, leased or operated by the Borrower or any Affiliate or any Environmental Liability related in any way to the Borrower or any Affiliate.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Indemnitee” as defined in Section 10.3.

“Installment” means, when used in respect of any Loans or Borrowings of any Class established under Section 2.23, 2.24 or 2.25, each payment of the principal amount thereof due under Section 2.11(b) (including the payment due on the Maturity Date applicable to the Loans of such Class).

“Insurance/Condemnation Event” means any casualty or other insured damage to, or any taking under the power of eminent domain or by condemnation or similar proceeding of, or any Disposition under a threat of such taking of, all or any part of any assets of the Borrower or any Restricted Subsidiary, other than any of the foregoing resulting in aggregate Net Proceeds not exceeding $5,000,000 during any Fiscal Year.

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“Intellectual Property” as defined in the Pledge and Security Agreement.

“Intellectual Property Security Agreements” as defined in the Pledge and Security Agreement.

“Intercompany Indebtedness Subordination Agreement” means a Second Lien Intercompany Indebtedness Subordination Agreement substantially in the form of Exhibit G.

“Intercompany Note” means a promissory note substantially in the form of Exhibit H.

“Intercreditor Agreement” means the Intercreditor Agreement in substantially the form set forth in Exhibit I, with such changes therefrom as may be agreed to by the Administrative Agent and the Borrower or as are contemplated by Section 10.24.

“Interest Payment Date” means (a) with respect to any Base Rate Loan, the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date, and (b) with respect to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and, in the case of any such Loan with an Interest Period of longer than three months’ duration, each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period.

“Interest Period” means, with respect to any Eurodollar Rate Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one month, two months, three months or six months thereafter (or, in the case of any Eurodollar Rate Borrowing of any Class, such longer period thereafter as shall have been consented to by each Lender of such Class and notified in writing to the Administrative Agent), as selected by the Borrower in the applicable Funding Notice or Conversion/Continuation Notice; provided that (a) if an Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless no succeeding Business Day occurs in such month, in which case such Interest Period shall end on the immediately preceding Business Day, (b) any Interest Period that commences 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 (c) below, end on the last Business Day of the last calendar month of such Interest Period and (c) notwithstanding anything to the contrary in this Agreement, no Interest Period for a Eurodollar Rate Borrowing of any Class may extend beyond the Maturity Date for Borrowings of such Class. For purposes hereof, the date of a Eurodollar Rate Borrowing shall initially be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

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

“Internal Revenue Code” means the Internal Revenue Code of 1986.

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“Investment” means, with respect to a specified Person, any Equity Interests, evidences of Indebtedness or other Securities (including any option, warrant or other right to acquire any of the foregoing) of, or any capital contribution or loans or advances (other than trade advances made in the ordinary course of business that would be recorded as accounts receivable on the balance sheet of the specified Person prepared in conformity with GAAP) to, Guarantees of any Indebtedness of (including any such Guarantees arising as a result of the specified Person being a co-maker of any note or other instrument or a joint and several co-applicant with respect to any letter of credit or letter of guaranty), or any other investments in (including any investment in the form of transfer of property for consideration that is less than the fair value thereof (as determined reasonably and in good faith by the chief financial officer of the Borrower)), any other Person that are held or made by the specified Person. The amount, as of any date of determination, of (a) any Investment in the form of a loan or an advance shall be the aggregate principal amount thereof made on or prior to such date of determination, minus the amount, as of such date of determination, of any Returns with respect thereto, but without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (b) any Investment in the form of a Guarantee shall be determined in accordance with the definition of the term “Guarantee”, (c) any Investment in the form of a purchase or other acquisition for value of any Equity Interests, evidences of Indebtedness or other Securities of any Person shall be the fair value (as determined reasonably and in good faith by the chief financial officer of the Borrower) of the consideration therefor (including any Indebtedness assumed in connection therewith), plus the fair value (as so determined) of all additions, as of such date of determination, thereto, and minus the amount, as of such date of determination, of any Returns with respect thereto, but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the time of such Investment, (d) any Investment (other than any Investment referred to in clause (a), (b) or (c) above) in the form of a transfer of Equity Interests or other property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the fair value (as determined reasonably and in good faith by the chief financial officer of the Borrower) of such Equity Interests or other property as of the time of such transfer (less, in the case of any investment in the form of transfer of property for consideration that is less than the fair value thereof, the fair value (as so determined) of such consideration as of the time of the transfer), minus the amount, as of such date of determination, of any Returns with respect thereto, but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the time of such transfer, and (e) any Investment (other than any Investment referred to in clause (a), (b), (c) or (d) above) in any Person resulting from the issuance by such Person of its Equity Interests to the investor shall be the fair value (as determined reasonably and in good faith by the chief financial officer of the Borrower) of such Equity Interests at the time of the issuance thereof.

“Iqmax Disposition” means the Disposition by the Borrower and the Restricted Subsidiaries of the assets acquired pursuant to that certain Asset Purchase Agreement, dated as of January 24, 2018, by and between Network Billing Systems, LLC and Iqmax, Inc., such Disposition to be consummated in accordance with the terms of such Asset Purchase Agreement.

“IRS” means the United States Internal Revenue Service.

“Junior Indebtedness” means (a) any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Indebtedness and any Permitted Section 6.1(e) Indebtedness that, in each case, is Permitted Junior Lien Secured Indebtedness or Permitted Unsecured Indebtedness and (b) the Subordinated Notes, any other Permitted Subordinated Indebtedness or any other Subordinated Indebtedness, other than any Subordinated Indebtedness owing to the Borrower or any Restricted Subsidiary.

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“Junior Lien Intercreditor Agreement” means, with respect to any Permitted Junior Lien Secured Indebtedness, any intercreditor agreement, in form and substance reasonably satisfactory to the Collateral Agent and the Borrower, that contains terms and conditions that are within the range of terms and conditions customary for intercreditor agreements that are of the type that govern intercreditor relationships between holders of senior secured credit facilities and holders of the same type of Indebtedness as such Permitted Junior Lien Secured Indebtedness.

“LCT Test Date” as defined in Section 1.5.

“Leasehold Property” means, as of any time of determination, any leasehold interest then owned by any Credit Party in any leased real property.

“Lender” means each Person listed on the signature pages hereto as a Lender, and any other Person that shall have become a party hereto in accordance with the terms hereof pursuant to an Assignment Agreement, an Incremental Facility Agreement or a Refinancing Facility Agreement, other than any such Person that shall have ceased to be a party hereto pursuant to an Assignment Agreement.

“Lender Presentation” means the Lender Presentation dated February 2018 and the Transaction Update dated April 2018, relating to this Agreement and the credit facilities provided for herein.

“License” means any license, permit, consent, certificate, franchise approval, waiver, registration or authorization granted or issued by the FCC, any State PUC or any other Governmental Authority with authority to regulate the provision of telecommunications services.

“Lien” means any lien, mortgage, pledge, assignment, security interest, hypothecation, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing.

“Limited Conditionality Transaction” means an Acquisition or Investment (other than an intercompany Investment) permitted by this Agreement that the Borrower or a Restricted Subsidiary is contractually committed to consummate (it being understood that such commitment may be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in accordance with the terms of the applicable agreement) and the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.

“Loan” means a Tranche B Term Loan, an Incremental Loan of any Class, an Extended/Modified Loan of any Class or a Refinancing Loan of any Class.

“Long-Term Indebtedness” means any Indebtedness that, in conformity with GAAP, constitutes (or, when incurred, constituted) a long-term liability.

“Majority in Interest”, when used in reference to Lenders of any Class, means, at any time, Lenders having Term Loan Exposure of such Class representing more than 50% of the Term Loan Exposure of all the Lenders of such Class at such time. For purposes of this definition, the amount of Term Loan Exposures of any Class shall be determined by excluding the Term Loan Exposure of such Class of any Defaulting Lender.

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“Margin Stock” as defined in Regulation U.

“Material Acquisition” means any Acquisition, or a series of related Acquisitions, by the Borrower or any Restricted Subsidiary; provided that the portion of the Consolidated Adjusted EBITDA, calculated on a Pro Forma Basis for such Acquisition or Acquisitions, attributable to the Persons or the assets so acquired for the most recent period of 12 consecutive months for which financial statements are available at the time of the consummation thereof exceeds $10,000,000; provided further that the Specified Acquisition shall in any event constitute a Material Acquisition.

“Material Adverse Effect” means a material adverse effect on (a) the business, results of operations, assets or financial condition of the Borrower and the Restricted Subsidiaries, taken as a whole, (b) the ability of the Credit Parties to fully and timely perform their obligations under the Credit Documents, taken as a whole, (c) the legality, validity, binding effect or enforceability against the Credit Parties of any Credit Documents to which they are party or (d) the rights, remedies and benefits available to, or conferred upon, any Agent, any Arranger, any Lender or any Secured Party under the Credit Documents, taken as a whole.

“Material Disposition” means any Disposition, or a series of related Dispositions, by the Borrower or any Restricted Subsidiary of (a) all or substantially all the issued and outstanding Equity Interests in any Person or (b) assets comprising all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person; provided that the portion of the Consolidated Adjusted EBITDA for the most recent Test Period attributable to the Persons or assets so Disposed exceeds $10,000,000.

“Material Indebtedness” means Indebtedness (other than the Loans and Guarantees under the Credit Documents), or obligations in respect of one or more Hedge Agreements, of any one or more of the Borrower and the Restricted Subsidiaries in an aggregate principal amount of $12,000,000 or more, provided that any Permitted Section 6.1(e) Indebtedness, Permitted Incremental Equivalent Indebtedness, Permitted Credit Agreement Refinancing Indebtedness and Permitted Subordinated Indebtedness shall at all times constitute “Material Indebtedness”. In the case of any Material Indebtedness that is a Guarantee of any other Indebtedness, each reference to “Material Indebtedness” shall be deemed to include a reference to such Guaranteed Indebtedness. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Restricted Subsidiary in respect of any Hedge Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if such Hedge Agreement were terminated at such time.

“Material Real Estate Asset” means each Real Estate Asset owned in fee by a Credit Party that, together with the improvements thereon and all contiguous and all related parcels and the improvements thereon forming part of such Real Estate Asset, has a fair value, as of the Closing Date or as of the time of the acquisition thereof, of greater than $5,000,000 in the aggregate.

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“Material Subsidiary” means each Restricted Subsidiary (a) the consolidated total assets of which (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) equal 5.0% or more of the Consolidated Total Assets or (b) the consolidated revenues of which (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) equal 5.0% or more of the consolidated revenues of the Borrower and the Restricted Subsidiaries, in each case as of the end of or for the most recent period of four consecutive Fiscal Quarters of the Borrower for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the delivery of any such financial statements, as of the end of or for the period of four consecutive Fiscal Quarters ending with the last Fiscal Quarter included in the Historical Borrower Financial Statements); provided that if at the end of or for any such most recent period of four consecutive Fiscal Quarters the combined consolidated total assets or combined consolidated revenues of all Restricted Subsidiaries that under clauses (a) and (b) above would not constitute Material Subsidiaries would, but for this proviso, exceed 10.0% of the Consolidated Total Assets or 10.0% of the consolidated revenues of the Borrower and the Restricted Subsidiaries, then one or more of such excluded Restricted Subsidiaries shall for all purposes of this Agreement be deemed to be Material Subsidiaries in descending order based on the amounts (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) of their consolidated total assets or consolidated revenues, as the case may be, until such excess shall have been eliminated; provided further that the Borrower may specify any wholly owned Domestic Subsidiary to be a Material Subsidiary, irrespective of whether such Subsidiary meets the requirements set forth under clause (a) or (b) above. For purposes of this definition, the Consolidated Total Assets and consolidated revenues of the Borrower as of any date prior to, or for any period that commenced prior to, the Closing Date shall be determined on a Pro Forma Basis to give effect to the Merger and the other Transactions to occur on the Closing Date.

“Maturity Date” means the Tranche B Term Loan Maturity Date, the Incremental Maturity Date with respect to the Incremental Loans of any Class, the Extended/Modified Loan Maturity Date with respect to the Extended/Modified Loans of any Class or the Refinancing Maturity Date with respect to the Refinancing Loans of any Class, as the context requires.

“Merger” means the merger of the Acquired Company with and into Merger Sub, with Merger Sub surviving such merger as a wholly owned Subsidiary of the Borrower, pursuant to the Merger Agreement.

“Merger Agreement” means the Agreement and Plan of Merger dated as of August 26, 2017, as amended by the First Amendment to Agreement and Plan of Merger dated as of September 15, 2017, the Second Amendment to Agreement and Plan of Merger dated as of September 29, 2017, the Amended and Restated Third Amendment to Agreement and Plan of Merger dated as of October 27, 2017, the Fourth Amendment to Agreement and Plan of Merger, dated as of January 24, 2018, the Fifth Amendment to Agreement and Plan of Merger, dated as of January 25, 2018, the Sixth Amendment to Agreement and Plan of Merger, dated as of March 12, 2018, the Seventh Amendment to Agreement and Plan of Merger, dated as of April 4, 2018, the Eighth Amendment to Agreement and Plan of Merger, dated as of April 26, 2018, and the Ninth Amendment to Agreement and Plan of Merger, dated as of April 27, 2018, by and among the Borrower, Merger Sub and the Acquired Company, together with the exhibits (including the forms of the stockholders’ agreement and the registration rights agreement), disclosure letters and other documents relating thereto.

“Merger Sub” means Fusion BCHI Acquisition LLC, a Delaware limited liability company.

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“Moody’s” means Moody’s Investors Service, Inc., or any successor to its rating agency business.

“Mortgage” means a mortgage, deed of trust, assignment of leases and rents or other security document granting a Lien on any Material Real Estate Asset in favor of the Collateral Agent, for the benefit of the Secured Parties, as security for the Obligations. Each Mortgage shall be in form and substance reasonably satisfactory to the Collateral Agent.

“MSSF” means Morgan Stanley Senior Funding, Inc.

“MUFG” means MUFG Union Bank, N.A.

“Multiemployer Plan” means any Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) of ERISA.

“Net Proceeds” means, with respect to any event, (a) the Cash (which term, for purposes of this definition, shall include Cash Equivalents) proceeds received in respect of such event, including any Cash received in respect of any noncash proceeds, but only as and when received, net of (b) the sum, without duplication, of (i) all reasonable fees and out-of-pocket expenses (including any underwriting discounts and commissions) paid in connection with such event by the Borrower or any Restricted Subsidiary to Persons that are not Affiliates of the Borrower or any Restricted Subsidiary, (ii) in the case of any Asset Sale or Insurance/Condemnation Event, (A) the amount of all payments (including in respect of principal, accrued interest and premiums) required to be made by the Borrower and the Restricted Subsidiaries as a result of such event to repay Indebtedness of the Borrower or the Restricted Subsidiaries of the types referred to in clauses (a) through (e) of the definition of “Indebtedness” (other than Loans, Permitted Section 6.1(e) Indebtedness, Permitted Credit Agreement Refinancing Indebtedness, Permitted Incremental Equivalent Indebtedness, Permitted Subordinated Indebtedness and any Indebtedness owed to the Borrower or any Subsidiary) secured by the assets subject thereto, (B) the amount of all Taxes paid (or reasonably estimated to be payable) by the Borrower or any Restricted Subsidiary, and the amount of any reserves established by the Borrower or any Restricted Subsidiary in conformity with GAAP to fund purchase price adjustment, indemnification and similar contingent liabilities reasonably estimated to be payable that are directly attributable to the occurrence of such event and (C) the repayment of customer deposits required upon such Asset Sale or Insurance/Condemnation Event and (iii) in the case of any proceeds from any Asset Sale or Insurance/Condemnation Event affecting the assets of a Restricted Subsidiary that is not a wholly owned Subsidiary, the portion of such proceeds received by such Restricted Subsidiary attributable to the noncontrolling interests in such Restricted Subsidiary, in each case as determined reasonably and in good faith by the chief financial officer of the Borrower. For purposes of this definition, in the event any contingent liability reserve established with respect to any event as described in clause (b)(ii)(B) above shall be reduced, the amount of such reduction shall, except to the extent such reduction is made as a result of a payment having been made in respect of the contingent liabilities for which such reserve has been established, be deemed to be receipt, on the date of such reduction, of Cash proceeds in respect of such event.

“New Subordinated Note” means the subordinated unsecured note issued by the Borrower on the Closing Date to Holcombe T. Green, Jr. (or an entity majority-owned and Controlled by Holcombe T. Green, Jr. or his heirs, beneficiaries, trusts or estate) in an aggregate principal amount of $10,000,000.

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“Note” means a promissory note issued to any Lender pursuant to Section 2.6(c).

“Obligations” means all obligations of every nature of each Credit Party under this Agreement and the other Credit Documents, whether for principal, interest (including default interest accruing pursuant to Section 2.9 and interest (including such default interest) that would continue to accrue pursuant to the Credit Documents on any such obligation after the commencement of any proceeding under the Debtor Relief Laws with respect to any Credit Party, whether or not such interest is allowed or allowable against such Credit Party in any such proceeding), fees (including prepayment fees), expenses, indemnification or otherwise.

“Obligations Guarantee” means the Guarantee of the Obligations created under Section 7.

“OFAC” means the United States Treasury Department Office of Foreign Assets Control.

“Open Market Purchases” as defined in Section 10.6(i)(ii).

“Organizational Documents” means (a) with respect to any corporation or company, its certificate or articles of incorporation, organization or association, as amended, and its bylaws, as amended, (b) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any limited liability company, its certificate of formation or articles of organization, as amended, and its operating agreement, as amended. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.

“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 Credit Document, or sold or assigned an interest in any Loan or Credit Document).

“Other Taxes”means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.22).

“Pari Passu Intercreditor Agreement” means, with respect to any Permitted Pari Passu Secured Indebtedness, an intercreditor agreement, in form and substance reasonably satisfactory to the Collateral Agent and the Borrower, that contains terms and conditions that are within the range of terms and conditions customary for intercreditor agreements that are of the type that govern intercreditor relationships between holders of senior secured credit facilities and holders of the same type of Indebtedness as such Permitted Pari Passu Secured Indebtedness.

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“Participant Register” as defined in Section 10.6(g).

“PATRIOT Act”means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56).

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.

“Permitted Acquisition” means any Acquisition by the Borrower or any Restricted Subsidiary; provided that:

(a)  (i) in the case of any Acquisition of Equity Interests in a Person, each of such Person and its Subsidiaries will become a Restricted Subsidiary (or will be merged or consolidated with or into the Borrower or any Restricted Subsidiary, with the continuing or surviving Person being the Borrower (in the case of any such transaction involving the Borrower) or a Restricted Subsidiary) and (ii) in the case of any Acquisition of other assets, such assets will be owned by the Borrower or any Restricted Subsidiary;

(b)  all actions required to be taken with respect to such Person or such assets, as the case may be, in order to satisfy the requirements set forth in clauses (a), (b), (c) and (d) of the definition of the term “Collateral and Guarantee Requirement” (subject to the discretion of the Collateral Agent set forth in such definition) shall have been taken (or arrangements for the taking of such actions satisfactory to the Collateral Agent shall have been made) (it being understood that all other requirements set forth in such definition that are applicable to such Acquisition shall be required to be satisfied in accordance with (and within the time periods provided in) Sections 5.10 and 5.11);

(c)  the Total Net Leverage Ratio, determined as of the last day of the Test Period most recently ended prior to the consummation thereof (giving Pro Forma Effect to such Acquisition and any other Pro Forma Events in connection therewith (including incurrence of Indebtedness)), shall not be greater than the lesser of (i) the greater of (A) 3.65:1.00 and (B) the Total Net Leverage Ratio as of such last day (but determined prior to giving Pro Forma Effect to such Acquisition or any other Pro Forma Events in connection therewith (including incurrence of Indebtedness)) and (ii) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a); provided that the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower demonstrating that the condition set forth in this clause (c) have been satisfied; provided, further, that, in the case of any Limited Conditionality Transaction, at the election of the Borrower, the condition set forth in this clause (c) may be tested in accordance with Section 1.5;

(d)  the business of any such acquired Person, or such acquired assets, as the case may be, constitute a business permitted under Section 6.11;

(e)  immediately prior and after giving effect thereto, no Event of Default shall have occurred and be continuing or would result therefrom; provided that, in the case of any Limited Conditionality Transaction, at the election of the Borrower, the condition set forth in this clause (e) may be tested in accordance with Section 1.5; and

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(f)  the Acquisition Consideration paid in respect of such Acquisition shall not be in the form of Cash or Cash Equivalents unless the Fixed Charge Coverage Ratio, determined as of the last day of the Test Period most recently ended prior to the consummation thereof (giving Pro Forma Effect to such Acquisition and any other Pro Forma Events in connection therewith (including incurrence of Indebtedness)), (i) in the case of any such Acquisition consummated on or prior to the third anniversary of the Closing Date, shall be greater than or equal to 1.15:1.00 and (ii) in the case of any such Acquisition consummated at any time thereafter, shall be greater than or equal to 1.25:1.00; provided that the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower demonstrating that the condition set forth in this clause (f) has been satisfied; provided, further, that, in the case of any Limited Conditionality Transaction, at the election of the Borrower, the condition set forth in this clause (f) may be tested in accordance with Section 1.5.

“Permitted Credit Agreement Refinancing Indebtedness” means Indebtedness permitted under Section 6.1(i).

“Permitted Encumbrances” means:

(a)  Liens imposed by law for Taxes that are not overdue by more than 30 days or are being contested in compliance with Section 5.3, if adequate reserves with respect thereto are maintained by the applicable Person in conformity with GAAP;

(b)  carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law (other than any Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA), arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or are being contested in good faith by appropriate proceedings promptly and diligently conducted, if adequate reserves with respect thereto are maintained by the applicable Person in conformity with GAAP;

(c)  pledges and deposits made (i) in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws (other than any Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA) and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above;

(d)  pledges and deposits made (i) in the ordinary course of business to secure the performance of bids, trade contracts (other than for payment of Indebtedness), leases (other than capital leases), statutory obligations (other than any Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA), public utility services provided to the Borrower or a Restricted Subsidiary, surety, litigation and appeal bonds, performance bonds and other obligations of a like nature and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above;

(e)  judgment liens in respect of judgments that do not constitute an Event of Default under Section 8.1(h);

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(f)  easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower and the Restricted Subsidiaries, taken as a whole;

(g)  any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that is not violated by the current use and operation of the affected real property;

(h)  ground leases in respect of real property on which facilities owned or leased by the Borrower or any Restricted Subsidiary are located;

(i)  Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon;

(j) banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with depository institutions; provided that such deposit accounts or funds are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions on access by the Borrower or any Restricted Subsidiary in excess of those required by applicable banking regulations;

(k)  Liens arising by virtue of precautionary UCC financing statement filings (or similar filings under applicable law) regarding operating leases entered into by the Borrower and the Restricted Subsidiaries in the ordinary course of business;

(l)  Liens representing any interest or title of a licensor, lessor or sublicensor or sublessor, or a licensee, lessee or sublicensee or sublessee, in the property subject to any lease (other than any capital lease), license or sublicense or concession agreement permitted by this Agreement;

(m)  Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(n)  deposits of Cash with the owner or lessor of premises leased and operated by the Borrower or any Restricted Subsidiary to secure the performance of its obligations under the lease for such premises, in each case in the ordinary course of business;

(o)  Liens that are contractual rights of set-off; and

(p)  Liens on Cash and Cash Equivalents securing obligations in respect of Hedge Agreements permitted under Section 6.12;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, other than Liens referred to in clauses (c) and (d) above securing letters of credit, bank guarantees and similar instruments.

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“Permitted Holders” means (a) Holcombe T. Green, Jr., R. Kirby Godsey, Holcombe Green, III, Marvin S. Rosen and Matthew D. Rosen and their respective heirs, beneficiaries, trusts, estates and controlled Affiliates (including, for so long as such Person constitutes such a controlled Affiliate, BCHI Holdings, LLC, a Georgia limited liability company) and (b) any employee benefit plan of the Borrower or any Subsidiary, or any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.

“Permitted Incremental Equivalent Indebtedness” means Indebtedness permitted under Section 6.1(h).

“Permitted Intercreditor Agreement” means the Intercreditor Agreement, any Junior Lien Intercreditor Agreement, any Pari Passu Intercreditor Agreement or any Senior Lien Intercreditor Agreement.

“Permitted Junior Lien Secured Indebtedness” means any secured Indebtedness of the Borrower and/or any other Credit Party in the form of one or more series of junior lien secured bona fide “high yield” notes, bonds or debentures or junior lien secured term loans, and the Guarantees thereof by any Credit Party; provided that (a) such Indebtedness is secured by Liens on all or a portion of the Collateral on a junior priority basis with the Liens on the Collateral securing the Obligations and is not secured by any assets of the Borrower or any Subsidiary other than the Collateral, (b) such Indebtedness is not Guaranteed by any Person other than the Credit Parties and (c) the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of the holders of such Indebtedness shall have become party to a Junior Lien Intercreditor Agreement, providing that the Liens on the Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral securing the Obligations; provided that if such Indebtedness is the initial Permitted Junior Lien Secured Indebtedness incurred by the Borrower and the other Credit Parties, then the Borrower and the other Credit Parties shall have executed and delivered the Junior Lien Intercreditor Agreement (or an acknowledgement thereof in the form specified therein) and the Collateral Agent agrees to execute and deliver, on behalf of the Lenders and the other Secured Parties, the Junior Lien Intercreditor Agreement. It is understood and agreed that, notwithstanding the final paragraph of Section 6.1, Permitted Junior Lien Secured Indebtedness may only be incurred and outstanding in reliance on Section 6.1(e), 6.1(h) or 6.1(i).

“Permitted Lien” means any Lien permitted by Section 6.2.

“Permitted Pari Passu Secured Indebtedness” means any secured Indebtedness of the Borrower and/or any other Credit Party in the form of one or more series of senior secured bona fide “high yield” notes, bonds or debentures (but not loans), and the Guarantees thereof by any Credit Party; provided that (a) such Indebtedness is secured by Liens on all or a portion of the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations (it being understood that the determination as to whether such Liens are on a pari passu basis shall be made without regard to control of remedies) and is not secured by any assets of the Borrower or any Subsidiary other than the Collateral, (b) such Indebtedness is not Guaranteed by any Person other than the Credit Parties and (c) the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of the holders of such Indebtedness shall have become party to a Pari Passu Intercreditor Agreement providing that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Obligations (it being understood that the determination as to whether such Liens rank equal in priority shall be made without regard to control of remedies); provided that if such Indebtedness is the initial Permitted Pari Passu Secured Indebtedness incurred by the Borrower and the other Credit Parties, then the Borrower and the other Credit Parties shall have executed and delivered the Pari Passu Intercreditor Agreement (or an acknowledgement thereof in the form specified therein) and the Collateral Agent agrees to execute and deliver, on behalf of the Lenders and the other Secured Parties, the Pari Passu Intercreditor Agreement. It is understood and agreed that, notwithstanding the final paragraph of Section 6.1, Permitted Pari Passu Secured Indebtedness may only be incurred and outstanding in reliance on Section 6.1(e), 6.1(h) or 6.1(i).

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“Permitted Section 6.1(e) Indebtedness” means Indebtedness permitted under Section 6.1(e). As of the date hereof, Indebtedness under the First Lien Credit Agreement constitutes Permitted Section 6.1(e) Indebtedness.

“Permitted Section 6.1(e) Indebtedness Documents” means the First Lien Credit Agreement and the other First Lien Credit Documents and any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Permitted Section 6.1(e) Indebtedness.

“Permitted Senior Lien Secured Indebtedness” means any Permitted Section 6.1(e) Indebtedness that is secured by Liens on all or a portion of the Collateral on a senior basis to the Liens on the Collateral securing the Obligations; provided that (a) such Indebtedness is not secured by any assets of the Borrower or any Subsidiary other than the Collateral, (b) such Indebtedness is not Guaranteed by any Person other than the Credit Parties and (c) the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of the holders of such Indebtedness shall have become party to a Senior Lien Intercreditor Agreement, providing that the Liens on the Collateral securing such Indebtedness shall rank senior in priority to the Liens on the Collateral securing the Obligations; provided that if such Indebtedness is the initial Permitted Senior Lien Secured Indebtedness incurred by the Borrower and the other Credit Parties, then the Borrower and the other Credit Parties shall have executed and delivered the Senior Lien Intercreditor Agreement (or an acknowledgement thereof in the form specified therein) and the Collateral Agent agrees to execute and deliver, on behalf of the Lenders and the other Secured Parties, the Senior Lien Intercreditor Agreement. It is understood and agreed that, notwithstanding the final paragraph of Section 6.1, Permitted Senior Lien Secured Indebtedness may only be incurred and outstanding in reliance on Section 6.1(e).

“Permitted Subordinated Indebtedness” means Indebtedness permitted under Section 6.1(q). As of the date hereof, the Subordinated Notes constitute Permitted Subordinated Indebtedness.

“Permitted Subordinated Indebtedness Document” means the Subordinated Notes and any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Permitted Subordinated Indebtedness.

“Permitted Unsecured Indebtedness” means any Indebtedness of the Borrower and/or any other Credit Party in the form of one or more series of unsecured, senior or subordinated bona fide “high yield” notes, bonds or debentures or unsecured, senior or subordinated term loans; provided that (a) such Indebtedness is not secured by any Liens on any assets of the Borrower or any Subsidiary and (b) such Indebtedness is not Guaranteed by any Person other than the Credit Parties.

“Person” means any natural person, corporation, limited partnership, general partnership, limited liability company, limited liability partnership, joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and any Governmental Authority.

“Platform” means Debtdomain, IntraLinks/IntraAgency, SyndTrak or another similar website or other information platform.

“Pledge and Security Agreement” means the Second Lien Pledge and Security Agreement dated as of the date hereof, among the Borrower, the other Credit Parties and the Collateral Agent, substantially in the form of Exhibit J.

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“Post-Closing Letter Agreement” means the Second Lien Post-Closing Letter Agreement dated as of the date hereof, among the Borrower, the Administrative Agent and the Collateral Agent.

“Previously Absent Financial Maintenance Covenant” means, at any time, (a) any financial maintenance covenant that is not included in this Agreement at such time for the benefit of all Lenders and (b) any financial maintenance covenant that is included in this Agreement at such time for the benefit of all Lenders but has covenant levels or effectiveness triggers that are more restrictive on the Borrower and the Restricted Subsidiaries than the covenant levels or effectiveness triggers set forth in this Agreement at such time.

“Prime Rate” means the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 70% of the nation’s 10 largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Any Agent and any Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

“Private Lenders” means Lenders that wish to receive Private-Side Information.

“Private-Side Information” means any information with respect to the Borrower and the Subsidiaries that is not Public-Side Information.

“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to any Pro Forma Event, that such Pro Forma Event and the following transactions in connection therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable period of measurement for the applicable covenant or requirement: (a) historical income statement items (whether positive or negative) attributable to the property or Person, if any, subject to such Pro Forma Event, (i) in the case of a Disposition of a business unit, division, product line or line of business of the Borrower or any Restricted Subsidiary, a Disposition that otherwise results in a Restricted Subsidiary ceasing to be a Subsidiary or a designation of a Subsidiary as an Unrestricted Subsidiary, shall be excluded, and (ii) in the case of an Acquisition by the Borrower or a Restricted Subsidiary, whether by merger, consolidation or otherwise, or any other Investment that results in a Person becoming a Restricted Subsidiary or a designation of a Subsidiary as a Restricted Subsidiary, shall be included, (b) any repayment, retirement, redemption, satisfaction and discharge or defeasance of Indebtedness in connection therewith and (c) any Indebtedness incurred or assumed by the Borrower or any of the Restricted Subsidiaries in connection therewith, and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination (taking into account any hedging obligations applicable to such Indebtedness if such hedging obligation has a remaining term in excess of 12 months). “Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” in respect of any Pro Forma Event shall be calculated in a reasonable and factually supportable manner by the Borrower and in the manner that is consistent with the definition of Consolidated Adjusted EBITDA. For the avoidance of doubt, the amount of net cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrower in good faith to be realized as a result of actions taken or to be taken in connection with any Pro Forma Event may be included in Consolidated Adjusted EBITDA in the manner, and subject to the limitations, set forth in the definition of such term.

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“Pro Forma Event” means (a) any Acquisition by the Borrower or a Restricted Subsidiary, whether by merger, consolidation or otherwise, or any other Investment (other than intercompany Investments), (b) any Disposition of a business unit, division, product line or line of business of the Borrower or a Restricted Subsidiary and any other Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary, (c) any designation of a Subsidiary as a Restricted Subsidiary or as an Unrestricted Subsidiary, (d) any incurrence or repayment, retirement, redemption, satisfaction and discharge or defeasance of Indebtedness, (e) any Restricted Junior Payment and (f) any other transaction where the consummation thereof, or the determination of whether such transaction is permitted to be consummated under this Agreement, requires that a financial covenant or test be calculated on a Pro Forma Basis after giving Pro Forma Effect to such transaction.

“Pro Forma Financial Statements” means pro forma condensed combined balance sheet as of September 30, 2017 and the pro forma condensed consolidated statements of operations for the Fiscal Year ended December 31, 2016, in each case, of the Borrower and its consolidated Subsidiaries, prepared after giving effect to the Transactions as contemplated by such pro forma financial statements as if they had occurred as of the end of such period (in the case of such balance sheet) or on January 1, 2016 (in the case of such statement of operations), in each case as included in the Definitive Proxy Statement (Form DEF 14A) for the Borrower filed with the SEC on December 28, 2017, as amended by the Borrower’s Form 8-K filed with the SEC on February 13, 2018.

“Pro Rata Share” means, with respect to any Lender, at any time, (a) when used in reference to payments, computations and other matters relating to the Tranche B Term Loans or Tranche B Term Borrowings, the percentage obtained by dividing (i) the Tranche B Term Loan Exposure of such Lender at such time by (ii) the aggregate Tranche B Term Loan Exposure of all the Lenders at such time, (b) when used in reference to payments, computations and other matters relating to Commitments, Loans or Borrowings of any other Class, the percentage obtained by dividing (i) the Term Loan Exposure of such Lender with respect to such Class at such time by (ii) the aggregate Term Loan Exposure of all the Lenders with respect to such Class at such time, and (c) when used for any other purpose (including under Section 9.6), the percentage obtained by dividing (i) an amount equal to the sum of the Tranche B Term Loan Exposure and the Term Loan Exposure of each such other Class of such Lender at such time by (ii) an amount equal to the sum of the aggregate Tranche B Term Loan Exposure and the aggregate Term Loan Exposure of each such other Class of all the Lenders at such time.

“Projections” means the projections of the Borrower and the Restricted Subsidiaries for each Fiscal Quarter of Fiscal Year 2018 and for each Fiscal Year thereafter through and including Fiscal Year 2025 heretofore provided to the Lenders.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“Public Lenders” means Lenders that do not wish to receive Private-Side Information.

“Public-Side Information” means information that is either (a) available to all holders of Traded Securities of the Borrower or any Subsidiary or (b) not material non-public information (for purposes of United States federal, state or other applicable securities laws).

“Real Estate Asset” means any interest (fee, leasehold or otherwise) owned by any Credit Party in any real property.

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“Recipient” means any Agent and any Lender, as applicable.

“Refinancing Commitments” as defined in Section 2.25(a).

“Refinancing Facility Agreement” means a Refinancing Facility Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Refinancing Lenders, establishing Refinancing Commitments and effecting such other amendments hereto and to the other Credit Documents as are contemplated by Section 2.25.

“Refinancing Indebtedness” means, in respect of any Indebtedness (the “Original Indebtedness”), any Indebtedness that extends, renews or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that (a) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Original Indebtedness except by an amount not greater than accrued and unpaid interest on such Original Indebtedness, any original issue discount applicable to such Refinancing Indebtedness, any unused commitments in respect of such Original Indebtedness (only if and to the extent that, had such Original Indebtedness been incurred under such commitments at the time such Refinancing Indebtedness is incurred, it would have been permitted hereunder) and any reasonable fees, premiums and expenses relating to such extension, renewal or refinancing; (b) the stated final maturity of such Refinancing Indebtedness shall not be earlier than that of such Original Indebtedness, and such stated final maturity shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the stated final maturity of such Original Indebtedness (other than as a result of an acceleration of any such stated maturity upon an event of default or a voluntary termination by the Borrower or any Restricted Subsidiary of any commitments to extend credit in respect thereof); (c) the weighted average life to maturity of such Refinancing Indebtedness shall not be shorter than the remaining weighted average life to maturity of such Original Indebtedness (and, for purposes of determining the weighted average life to maturity of such Original Indebtedness, the effects of any prepayments made prior to the date of the determination shall be disregarded); (d) such Refinancing Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of any Restricted Subsidiary that shall not have been (or, in the case of after-acquired Restricted Subsidiaries, shall not have been required to become) an obligor in respect of such Original Indebtedness; (e) if such Original Indebtedness shall have been subordinated to the Obligations, such Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Lenders, provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent (with the Administrative Agent agreeing to provide a copy thereof, together with the drafts referred to below, to the Lenders promptly upon receipt) at least five Business Days prior to the incurrence of such Refinancing Indebtedness, together with drafts of the subordination terms to be applicable thereto, stating that the Borrower has determined in good faith that such subordination terms satisfy the requirement of this clause (e) shall be conclusive evidence that such terms satisfy such requirement unless the Administrative Agent or the Requisite Lenders notify the Borrower in writing within such five Business Day period that it or they disagree with such determination (including a reasonably detailed description of the basis upon which it or they disagree); (f) if such Original Indebtedness shall be Permitted Credit Agreement Refinancing Indebtedness or Permitted Incremental Equivalent Indebtedness, then (i) such Refinancing Indebtedness satisfies the Specified Permitted Indebtedness Documentation Requirements, (ii) if such Original Indebtedness was Permitted Pari Passu Secured Indebtedness, such Refinancing Indebtedness, if secured, shall be Permitted Pari Passu Secured Indebtedness or Permitted Junior Lien Secured Indebtedness and (iii) if such Original Indebtedness was Permitted Junior Lien Secured Indebtedness, such Refinancing Indebtedness, if secured, shall be Permitted Junior Lien Secured Indebtedness; (g) if such Original Indebtedness was Permitted Section 6.1(e) Indebtedness, then such Refinancing Indebtedness shall be Permitted Senior Lien Secured Indebtedness, Permitted Pari Passu Secured Indebtedness, Permitted Junior Lien Secured Indebtedness or Permitted Unsecured Indebtedness; and (h) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured (or, in the case of after-acquired assets, would be required to secure pursuant to the terms thereof) such Original Indebtedness or, to the extent such assets would have been required to secure such Original Indebtedness pursuant to the terms thereof, that are proceeds and products of, or after-acquired property that is affixed or incorporated into, the assets that secured such Original Indebtedness.

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“Refinancing Lender” as defined in Section 2.25(a).

“Refinancing Loans” as defined in Section 2.25(a).

“Refinancing Maturity Date” means, with respect to Refinancing Loans of any Class, the scheduled date on which such Refinancing Loans shall become due and payable in full hereunder, as specified in the applicable Refinancing Facility Agreement.

“Register” as defined in Section 2.6(b).

“Regulation D” means Regulation D of the Board of Governors.

“Regulation T” means Regulation T of the Board of Governors.

“Regulation U” means Regulation U of the Board of Governors.

“Regulation X” means Regulation X of the Board of Governors.

“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

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

“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or from, under, within or upon any building, structure, facility or fixture.

“Requisite Lenders” means, at any time, Lenders having or holding Tranche B Term Loan Exposure and Term Loan Exposure of any other Class representing more than 50% of the sum of the Tranche B Term Loan Exposure and Term Loan Exposure of each such other Class of all the Lenders at such time. For purposes of this definition, the amount of Tranche B Term Loan Exposure and Term Loan Exposure of any other Class shall be determined by excluding the Tranche B Term Loan Exposure and Term Loan Exposure of each such other Class of any Defaulting Lender.

“Restricted Junior Payment” means (a) any dividend or other distribution, direct or indirect (whether in Cash, Securities or other property), with respect to any Equity Interests in the Borrower or any Restricted Subsidiary, (b) any payment or distribution, direct or indirect (whether in Cash, Securities or other property), including any sinking fund or similar deposit, on account of any redemption, retirement, purchase, acquisition, exchange, conversion, cancelation or termination of, or any other return of capital with respect to, any Equity Interests in the Borrower or any Restricted Subsidiary, and (c) any payment or other distribution, direct or indirect (whether in Cash, Securities or other property) of or in respect of principal of or interest or premium on any Junior Indebtedness, or any payment or other distribution (whether in Cash, Securities or other property), including any sinking fund or similar deposit, on account of the redemption, retirement, purchase, acquisition, defeasance (including in-substance or legal defeasance), exchange, conversion, cancelation or termination of any Junior Indebtedness.

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“Restricted Subsidiary” means any Subsidiary that is not an Unrestricted Subsidiary.

“Retained ECF Percentage” means, with respect to any Fiscal Year, (a) 100% minus (b) the Applicable ECF Percentage with respect to such Fiscal Year.

“Returns” means (a) with respect to any Investment in the form of a loan or advance, the repayment to the investor in Cash or Cash Equivalents of principal thereof and (b) with respect to any other Investment, any return of capital received by the investor in Cash or Cash Equivalents in respect of such Investment.

“Rollover Indebtedness” means Indebtedness of any Credit Party issued to any Lender in lieu of such Lender’s applicable Pro Rata Share of any prepayment of any Borrowing made pursuant to Section 2.12(a)(i).

“S&P” means S&P Global Ratings, or any successor to its rating agency business.

“Sale/Leaseback Transaction” means an arrangement relating to property owned by the Borrower or any Restricted Subsidiary whereby the Borrower or such Restricted Subsidiary Disposes of such property to any Person and the Borrower or any Restricted Subsidiary leases such property, or other property that it intends to use for substantially the same purpose or purposes as the property Disposed of, from such Person or its Affiliates.

“Sanctioned Country” means, at any time, a country, region or territory that is itself the subject or target of any Sanctions (at the date of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the US Department of State, the US Department of Treasury (including OFAC), the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or the Department of Foreign Affairs, Trade and Development (Canada), (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled or 50% or more owned by any such Person or Persons described in clause (a) or (b) above.

“Sanctions” as defined in Section 4.21.

“Sanctions Laws” as defined in Section 4.21.

“SEC”means the United States Securities and Exchange Commission.

“Secured Parties” as defined in the Pledge and Security Agreement.

“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

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“Securities Act” means the Securities Act of 1933.

“Senior Lien Intercreditor Agreement” means, with respect to any Permitted Senior Lien Secured Indebtedness, the Intercreditor Agreement or any other intercreditor agreement, in form and substance reasonably satisfactory to the Collateral Agent and the Borrower, that contains terms and conditions that are within the range of terms and conditions customary for intercreditor agreements that are of the type that govern intercreditor relationships between holders of second lien secured credit facilities and holders of the same type of Indebtedness as such Permitted Senior Lien Secured Indebtedness.

“Senior Lien Obligations Discharge Date” shall be deemed to have occurred upon (a) payment in full in cash of the principal of all Indebtedness under the First Lien Credit Agreement and all the other Permitted Senior Lien Secured Indebtedness, (b) payment in full in cash of all other “Obligations” (as defined in the First Lien Credit Agreement) set forth in clause (a) of the definition of such term in the First Lien Credit Agreement (or any comparable term under any other Permitted Senior Lien Secured Indebtedness) that are due and payable or otherwise accrued and owing at or prior to the time such principal is paid (excluding, for the avoidance of doubt, contingent expense reimbursement and indemnification obligations that are not yet due and payable), (c) cancellation of or the entry into arrangements satisfactory to the issuer thereof with respect to all letters of credit issued and outstanding under the First Lien Credit Agreement or the obligations under which otherwise constitute Permitted Senior Lien Secured Indebtedness and (d) termination or expiration of all commitments to lend under the First Lien Credit Agreement or in respect of any other Permitted Senior Lien Secured Indebtedness, it being understood that notwithstanding any prior occurrence of a Senior Lien Obligations Discharge Date, if on any subsequent date any Permitted Senior Lien Secured Indebtedness shall be in effect or outstanding (or any such Permitted Senior Lien Secured Indebtedness shall be reinstated), from and after such date, no Senior Lien Obligations Discharge Date shall be deemed to have occurred for purposes of this Agreement.

“Solvency Certificate”means a Solvency Certificate executed by the chief financial officer of the Borrower substantially in the form of Exhibit K.

“Solvent” means, with respect to the Borrower and the Subsidiaries, on a consolidated basis, that as of the date of determination, (a) the sum of the debt and other liabilities (including contingent liabilities) of the Borrower and the Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present assets of the Borrower and the Subsidiaries, on a consolidated basis, (b) the capital of the Borrower and the Subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as conducted or proposed to be conducted, on a consolidated basis, (c) the Borrower and the Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that they will incur, debts and liabilities (including contingent liabilities), on a consolidated basis, beyond the ability of the Borrower and the Subsidiaries, on a consolidated basis, to pay such debts and liabilities as they become due (whether at maturity or otherwise) and (d) the Borrower and the Subsidiaries, on a consolidated basis, are “solvent” within the meaning given to that term and similar terms under any applicable Debtor Relief Laws and other applicable laws relating to preferences, fraudulent transfers and conveyances or transfers undervalue. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under GAAP).

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“Specified Acquisition” means an Acquisition identified to the Arrangers prior to the Closing Date (for the avoidance of doubt, not constituting the Acquisition of the Acquired Company), the business of which constitutes a business engaged in (or any business that is similar, complementary or related to, or a reasonable extension of, the business engaged in) by the Borrower and the Restricted Subsidiaries (excluding, for purposes of this definition, the Acquired Company and its Subsidiaries) on the Closing Date; provided that such Acquisition (a) if such Acquisition is consummated prior to the Escrow Cash Collateral Outside Date, to the extent of the Acquisition Consideration therefor (other than any portion thereof funded with Net Proceeds received (and not otherwise applied) by the Borrower after the Closing Date but on or prior to the date of consummation of such Acquisition from any issuance and sale of Equity Interests in the Borrower (other than any Disqualified Equity Interests and other than any Equity Interests issued or sold to any Subsidiary of the Borrower)), is consummated solely in reliance on Section 6.6(w) and (b) in any event, is consummated on or prior to December 31, 2018.

“Specified Permitted Indebtedness Documentation Requirements” means, with respect to any Indebtedness, the requirements that the terms of such Indebtedness (excluding interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment or redemption terms (including “no call” terms and other restrictions thereunder) and premiums) are, when taken as a whole, either (a) not materially more favorable to the lenders or holders providing such Indebtedness than those applicable under this Agreement when taken as a whole (other than terms benefitting such lenders or holders (i) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders or (ii) applicable only to periods after the latest Maturity Date in effect at the time of incurrence of such Indebtedness) or (b) solely in the case of Permitted Pari Passu Secured Indebtedness, otherwise on current market terms for such type of Indebtedness; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent (with the Administrative Agent agreeing to provide a copy thereof, together with any drafts referred to below, to the Lenders promptly upon receipt) at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this definition shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent or the Requisite Lenders notify the Borrower in writing within such five Business Day period that it or they disagree with such determination (including a reasonably detailed description of the basis upon which it or they disagree); provided further that such Indebtedness shall not include any Previously Absent Financial Maintenance Covenant unless such Previously Absent Financial Maintenance Covenant applies only to periods after the latest Maturity Date in effect at the time of incurrence of such Indebtedness or this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of all Lenders.

“State PUC” means any Governmental Authority of any State that exercises authority over intrastate telecommunications rates or provision of telecommunications services or the ownership, construction or operation of any intrastate network facility or telecommunications systems or over Persons that own, construct or operate an intrastate network facility or telecommunications systems, in each case by reason of the nature or type of the business subject to regulation and not pursuant to laws and regulations of general applicability to Persons conducting business in such state.

“Subordinated Indebtedness” of any Person means Indebtedness of such Person that is contractually subordinated in right of payment to any other Indebtedness of such Person, including, for the avoidance of doubt, the Subordinated Notes.

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“Subordinated Notes” means the Existing Subordinated Notes and the New Subordinated Note.

“Subsidiary” means, with respect to any Person (the “parent”) at any date, (a) any Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in conformity with GAAP as of such date and (b) any other Person  of which Equity Interests representing more than 50% of the equity value or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise specified, all references herein to Subsidiaries shall be deemed to refer to Subsidiaries of the Borrower.

“Supplemental Collateral Questionnaire” means a certificate in the form of Exhibit L or any other form approved by the Collateral Agent.

“Syndication Agent” means Goldman Sachs, in its capacity as syndication agent for the credit facility established under this Agreement.

“Tax” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term Loan Exposure” means, with respect to any Lender, for any Class of Commitments or Loans at any time, (a) prior to the making of the Loans of such Class, the Commitment of such Class of such Lender at such time and (b) after the making of the Loans of such Class, the aggregate principal amount of the Loans of such Class of such Lender at such time.

“Test Period” means, for any date of determination, the most recent period of four consecutive Fiscal Quarters of the Borrower for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the first delivery of any such financial statements, the period of four consecutive Fiscal Quarters of the Borrower ended December 31, 2017).

“Total Leverage Ratio” means the ratio, as of any date, of (a) Consolidated Total Debt as of such date to (b) Consolidated Adjusted EBITDA for the period of four consecutive Fiscal Quarters of the Borrower ended on such date (or, if such date is not the last day of a Fiscal Quarter, most recently prior to such date).

“Total Net Leverage Ratio” means the ratio, as of any date, of (a) Consolidated Total Net Debt as of such date to (b) Consolidated Adjusted EBITDA for the period of four consecutive Fiscal Quarters of the Borrower ended on such date (or, if such date is not the last day of a Fiscal Quarter, most recently prior to such date).

“Traded Securities” means any debt or equity Securities issued pursuant to a public offering registered under the Securities Act or Rule 144A offering or other similar private placement.

“Tranche B Term Borrowing” means a Borrowing comprised of Tranche B Term Loans.

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“Tranche B Term Loan” means a term loan made by a Lender to the Borrower pursuant to Section 2.1(a)(i).

“Tranche B Term Loan Commitment” means, with respect to any Lender, the commitment, if any, of such Lender to make a Tranche B Term Loan hereunder, expressed as an amount representing the maximum principal amount of the Tranche B Term Loan to be made by such Lender, subject to any increase or reduction pursuant to the terms and conditions hereof. The initial amount of each Lender’s Tranche B Term Loan Commitment, if any, is set forth on Schedule 2.1 or in the Assignment Agreement pursuant to which such Lender shall have assumed its Tranche B Term Loan Commitment. The aggregate amount of the Tranche B Term Loan Commitments as of the Closing Date is $85,000,000.

“Tranche B Term Loan Exposure” means, with respect to any Lender at any time, (a) prior to the making of Tranche B Term Loans hereunder, the Tranche B Term Loan Commitment of such Lender at such time and (b) after the making of Tranche B Term Loans hereunder, the aggregate principal amount of the Tranche B Term Loans of such Lender outstanding at such time.

“Tranche B Term Loan Maturity Date” means the date that is five years and six months after the Closing Date (or, if such date is not a Business Day, the immediately preceding Business Day).

“Transactions” means (a) the Financing Transactions, (b) the Closing Date Refinancing, (c) the Merger and the other transactions contemplated by the Merger Agreement, including the distribution of the Consumer/SMB Business and the consummation of the Fusion Global Arrangement or the dissolution of Fusion Global Services LLC, (d) the issuance of the New Subordinated Note, (e) the Closing Date Common Equity Issuance, (f) the issuance and sale of the Closing Date Preferred Stock and (g) the payment of fees and expenses in connection with the foregoing.

“Treasury Rate” means, as of any date of determination of the Yield Maintenance Amount, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Business Days prior to such date of determination (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date of determination to but excluding the date that is 18 months after the Closing Date; provided, however, that if the period from such date of determination to but excluding the date that is 18 months after the Closing Date is not equal to the constant maturity of the United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from such date of determination to but excluding the date that is 18 months after the Closing Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

“Type” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted Eurodollar Rate or the Base Rate.

“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.

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“Unrestricted Cash” means, on any date, Cash and Cash Equivalents (excluding, for the avoidance of doubt, security deposits held by the Borrower or any Restricted Subsidiary) owned on such date by the Borrower or any Restricted Subsidiary, as reflected on a balance sheet prepared as of such date in conformity with GAAP (but only to the extent the number reflected is a positive number), provided that (a) except in the case of any Cash or Cash Equivalents consisting of Vector Subordinated Note Collateral, such Cash and Cash Equivalents do not appear (and would not be required to appear) as “restricted” on a consolidated balance sheet of such Person prepared in conformity with GAAP, (b) such Cash and Cash Equivalents are free and clear of all Liens, other than (i) nonconsensual Liens permitted by Section 6.2 (including clause (a) of the definition of the term “Permitted Encumbrances”), (ii) Liens referred to in clause (i) of the definition of the term “Permitted Encumbrances”, (iii) Liens created under the Credit Documents and (iv) Liens securing any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, and (c) except in the case of contractual restrictions in respect of any Vector Subordinated Note Collateral pursuant to the Vector Subordinated Note Cash Collateral Control Agreement or the First Lien Credit Agreement, the use of such Cash and Cash Equivalents for application to the payment of Indebtedness is not prohibited in any material respect by applicable law or any material Contractual Obligation and such Cash and Cash Equivalents are not contractually restricted in any material respect from being distributed to the Borrower; provided further that the Escrow Cash Collateral shall not constitute Unrestricted Cash.

“Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower that is designated as an Unrestricted Subsidiary in the manner provided below and not subsequently redesignated as a “Restricted Subsidiary” in the manner provided below and (b) each Subsidiary of an Unrestricted Subsidiary.

The Borrower may designate any Subsidiary to be an “Unrestricted Subsidiary” by delivering to the Administrative Agent a certificate of the chief financial officer of the Borrower specifying such designation and certifying that such designated Subsidiary satisfies the requirements set forth in this definition; provided that no Subsidiary may be designated as an Unrestricted Subsidiary unless (a) immediately after giving Pro Forma Effect to such designation, no Default or Event of Default has occurred and is continuing or would result therefrom, (b) immediately after giving Pro Forma Effect to such designation, (i) the Total Net Leverage Ratio shall not be greater than the lesser of (A) 4.00:1.00 and (B) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a), in each case, determined as of the last day of the then most recently ended Test Period, and (ii) the combined “EBITDA” of all the Unrestricted Subsidiaries (calculated in accordance with the definition of the term Consolidated Adjusted EBITDA, mutatis mutandis) for the most recent period Test Period then ended shall not exceed 5% of the Consolidated Adjusted EBITDA for such Test Period, (c) such Subsidiary does not own any Equity Interests in any of the Restricted Subsidiaries, (d) neither such Subsidiary nor any of its Subsidiaries owns or holds any License that is required for the conduct of business in the ordinary course by the Borrower and the Restricted Subsidiaries or is otherwise material to the Borrower and the Restricted Subsidiaries, (e) each Subsidiary of such Subsidiary has been designated as (and, for so long as it is a Subsidiary of the Borrower, continues as) an “Unrestricted Subsidiary” in accordance with this definition, (f) the Investments in such Unrestricted Subsidiary by the Borrower and the Restricted Subsidiaries (including, after giving effect to the next sentence, those resulting from such designation) are permitted under Section 6.6, (g) such Subsidiary shall have been or will promptly be designated an “unrestricted subsidiary” (or otherwise not be subject to the covenants) under any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Indebtedness and any Permitted Subordinated Indebtedness and (h) no Subsidiary may be designated as an Unrestricted Subsidiary if it was previously an Unrestricted Subsidiary that has been redesignated as a Restricted Subsidiary. Upon the designation of any Subsidiary as an Unrestricted Subsidiary, the Borrower and the Restricted Subsidiaries shall be deemed to have made an Investment in such Unrestricted Subsidiary in an amount equal at the time of such designation to the fair value of such Subsidiary (as determined reasonably and in good faith by the chief financial officer of the Borrower). The Borrower shall cause each Unrestricted Subsidiary to satisfy at all times the requirements set forth in clauses (c), (d) and (g) above.

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The Borrower may designate any Unrestricted Subsidiary as a “Restricted Subsidiary” by delivering to the Administrative Agent a certificate of the chief financial officer of the Borrower specifying such redesignation and certifying that such redesignation satisfies the requirements set forth in this paragraph; provided that (a) immediately after giving Pro Forma Effect to such redesignation, no Default or Event of Default has occurred and is continuing or would result therefrom and (b) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence, at the time of such redesignation, of any Indebtedness, Liens and Investments of such Subsidiary existing at such time.

“Unrestricted Subsidiary Reconciliation Statement” means, with respect to any balance sheet or statement of comprehensive income, shareholders’ equity or cash flows of the Borrower, such financial statement (in substantially the same form) prepared on the basis of consolidating the accounts of the Borrower and the Restricted Subsidiaries and treating Unrestricted Subsidiaries as if they were not consolidated with the Borrower and otherwise eliminating all accounts of Unrestricted Subsidiaries, together with an explanation of reconciliation adjustments in reasonable detail.

“US Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code and a disregarded entity (for US federal income tax purposes) owned by such Person.

“US Tax Compliance Certificate” as defined in Section 2.19(g)(ii)(B)(3).

“Vector Collateral” means any assets of any Vector Lender provided as collateral to secure obligations of the Vector Lenders under the Vector Senior Loan Facility (including any such assets in the form of “Tranche B Term Loans” made under the First Lien Credit Agreement held by any Vector Lender).

“Vector Facility Arrangements” means the Vector Senior Loan Facility and the Vector Subordinated Note.

“Vector Lender” means Vector SPV or any Affiliate thereof that holds term loans made under the First Lien Credit Agreement and is an obligor under the Vector Senior Loan Facility.

“Vector Senior Loan Facility Lender” means Goldman Sachs or any of its Affiliates.

“Vector Senior Loan Facility” means the Credit Agreement dated as of May 4, 2018, among Vector SPV, as borrower, the Vector Senior Loan Facility Lender, Goldman Sachs, as administrative agent, and U.S. Bank National Association, as collateral agent and collateral custodian, pursuant to which, and on the terms and conditions set forth therein, the Vector Senior Loan Facility Lender shall make a senior secured loan to Vector SPV, which loan shall be secured by, among other things, the “Tranche B Term Loans” made under the First Lien Credit Agreement held by Vector SPV and a cash reserve funded in part with the proceeds of the Vector Subordinated Note.

“Vector SPV” means Vector Fusion Holdings (Cayman) Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands that is a subsidiary of Vector Capital V, L.P.

“Vector Subordinated Note” means the Subordinated Note dated May 4, 2018, and in a principal amount of $25,000,000, issued by Vector SPV to the Borrower for cash consideration of $25,000,000.

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“Vector Subordinated Note Cash Collateral Account” as defined in the First Lien Credit Agreement.

“Vector Subordinated Note Cash Collateral Control Agreement” as defined in the First Lien Credit Agreement.

“Vector Subordinated Note Collateral” as defined in the First Lien Credit Agreement.

“Weighted Average Yield” means, at any time, with respect to any Loan or other Indebtedness, the weighted average yield to stated maturity of such Loan or other Indebtedness based on the interest rate or rates applicable thereto and giving effect to all upfront or similar fees or original issue discount payable by the Borrower or any of its Affiliates to the Lenders or other applicable creditors advancing such Loan or other Indebtedness with respect thereto (but not any arrangement fees, structuring fees, commitment fees, underwriting fees or other fees not paid generally to all such Lenders or other applicable creditors, and excluding any ticking or amendment fees previously paid with respect to such Loans or other Indebtedness) (in each case, with upfront or similar fees or original issue discount being deemed to constitute like amounts of original issue discount, and such fees and original discount being equated to interest margins in a manner consistent with generally accepted financial practice based on an assumed life to maturity of the lesser of four years and the tenor of such Loan or other Indebtedness) and to any interest rate “floor”. For purposes of determining the Weighted Average Yield of any floating rate Indebtedness at any time, the rate of interest applicable to such Indebtedness at such time shall be assumed to be the rate applicable at all times prior to maturity; provided that appropriate adjustments shall be made for any scheduled changes in rates of interest provided for in the documents governing such Indebtedness. Determinations of the Weighted Average Yield shall be made in a manner consistent with accepted financial practice.

“wholly owned”, when used in reference to a Subsidiary of any Person, means that all the Equity Interests in such Subsidiary (other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under applicable law) are owned, beneficially and of record, by such Person, another wholly owned Subsidiary of such Person or any combination thereof.

“Wilmington Trust” as defined in the preamble hereto.

“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.

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“Yield Maintenance Amount” means, with respect to any Tranche B Term Loan that is prepaid pursuant to Section 2.12(a)(i) (for the avoidance of doubt, including on account of the requirements set forth in Section 2.25) or 2.13(c) or is subject to any amendment or other modification of this Agreement that, directly or indirectly, reduces the Weighted Average Yield of such Tranche B Term Loan (or is required to be assigned pursuant to Section 2.22 in connection with such amendment or modification), an amount equal to the present value of the sum of (a) the aggregate amount of interest that would have otherwise been payable on the principal amount of such Tranche B Term Loan so prepaid or subject to such amendment or modification (or assignment) (assuming that such Tranche B Term Loan will bear interest at a rate per annum equal to the sum of (i) the Adjusted Eurodollar Rate for an Interest Period of three months (giving effect to any floor rate) as of the date of such prepayment or amendment or modification (or assignment) plus (ii) the Applicable Rate with respect to Tranche B Term Loans that are Eurodollar Rate Loans) from the date of such prepayment or amendment or modification (or assignment) through the date that is 18 months after the Closing Date, plus (b) 4.00% of the principal amount of such Tranche B Term Loan so prepaid or subject to such amendment or modification (or assignment), discounted in accordance with accepted financial practice at a discount rate (applied on the same periodic basis as that on which interest on the Tranche B Term Loans is payable) equal to the Treasury Rate plus 50 basis points per annum. Determinations of the Yield Maintenance Amount shall be made in a manner consistent with accepted financial practice.

1.2.Accounting Terms; Pro Forma Calculations. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature used herein shall be construed in conformity with GAAP as in effect from time to time; provided that (i) if the Borrower, by notice to the Administrative Agent, shall request an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent or the Requisite Lenders, by notice to the Borrower, shall request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith and (ii) notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, (A) without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) (and related interpretations) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein, (B) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof, and (C) without giving effect to any change to GAAP occurring after the date hereof as a result of the adoption of any proposals set forth in the Proposed Accounting Standards Update, Leases (Topic 842), issued by the Financial Accounting Standards Board on May 16, 2013, or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on December 31, 2015. It is understood and agreed that when any term of an accounting or financial nature refers to a determination being made on a “consolidated basis”, when such reference is made with respect to the Borrower and the Restricted Subsidiaries (or any Restricted Subsidiary and its Restricted Subsidiaries), such determination shall exclude from such consolidation the accounts of the Unrestricted Subsidiaries.

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(b)All computations required to be made hereunder giving effect to any Acquisition, Disposition or other Pro Forma Event shall be calculated after giving Pro Forma Effect thereto (and, in the case of any computations made hereunder to determine whether such Acquisition, Disposition or other Pro Forma Event is permitted to be consummated hereunder, to any other such Pro Forma Event consummated since the first day of the period covered by any component of such Pro Forma computation and on or prior to the date of such computation) as if such Pro Forma Event occurred on the first day of the most recent Test Period. It is understood that, prior to the last day of the Test Period ending on June 30, 2018, for purposes of any provision hereof that requires compliance with Section 6.7(a) on a Pro Forma Basis, such compliance will be determined based on the ratio set forth in Section 6.7(a) that would be first applicable under such Section.

(c)Prior to the release of the Escrow Cash Collateral in accordance with Section 9.8(d)(ii), “Tranche B Term Loans” made under the First Lien Credit Agreement in an aggregate principal amount equal to the amount of Escrow Cash Collateral on deposit in the Escrow Cash Collateral Account at any time, but in no event in excess of the Escrow Cash Amount, shall be deemed not to be outstanding solely for purposes of determining actual compliance by the Borrower with Section 6.7(a).

1.3.Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Article, Section, Schedule or Exhibit shall be to an Article or a Section of, or a Schedule or an Exhibit to, this Agreement, unless otherwise specifically provided. 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”. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal, tangible and intangible assets and properties, including Cash, Securities, accounts and contract rights. The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders, writs and decrees, of all Governmental Authorities. The words “not otherwise applied”, and words of similar import, when used with reference to any amount of Net Proceeds of any issuance or sale of Equity Interests that is proposed to be applied to any particular use, payment or transaction, shall be construed to mean that such amount was not previously applied, or is not simultaneously being applied, to any other use, payment or transaction other than such particular use, payment or transaction. Except as otherwise expressly provided herein and unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document (including this Agreement and the other Credit Documents) 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 definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), and all references to any statute shall be construed as referring to all rules, regulations, rulings and official interpretations promulgated or issued thereunder, (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority or any self-regulating entity, any other Governmental Authority or entity that shall have succeeded to any or all functions thereof, and (d) 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. Terms defined in the UCC as in effect in the State of New York on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those definitions.

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1.4.Classification of Loans and Borrowings.For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a “Tranche B Term Loan” or “Tranche B Term Loan Borrowing”) or by Type (e.g., a “Eurodollar Rate Loan” or “Eurodollar Rate Borrowing”) or by Class and Type (e.g., a “Eurodollar Rate Tranche B Term Loan” or “Eurodollar Rate Tranche B Term Loan Borrowing”).

1.5.Conditionality Testing Date. Solely for purposes of determining compliance with any provision of this Agreement (including compliance with the Fixed Charge Coverage Ratio, the Total Leverage Ratio, the Total Net Leverage Ratio or any other financial metric, the absence of any Default or Event of Default and the accuracy of any representation or warranty) that expressly permits such compliance to be determined or tested in accordance with the provisions of this Section 1.5 in connection with a Limited Conditionality Transaction (but, for the avoidance of doubt, not for purposes of determining whether the Borrower has actually complied with Section 6.7 itself), the date of determination of whether such provision has been satisfied shall, at the option of the Borrower and upon delivery by the Borrower on or prior to the applicable LCT Test Date of a written notice to that effect to the Administrative Agent, be the date on which the definitive agreements for such Limited Conditionality Transaction are entered into (the “LCT Test Date”), with such determination to give effect on a Pro Forma Basis to such Limited Conditionality Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date. For the avoidance of doubt, if the Borrower has exercised such option and any of the ratios, financial metrics or amounts for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, financial metric or amount, including due to fluctuations in Consolidated Adjusted EBITDA, at or prior to the consummation of the Limited Conditionality Transaction, such ratio, financial metric or amount will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether such provision has been satisfied in connection with such Limited Conditionality Transaction. If the Borrower has exercised such option in connection with any Limited Conditionality Transaction, then, in connection with any subsequent calculation of ratios, financial metrics or amounts (but, for the avoidance of doubt, not for purposes of determining whether the Borrower has actually complied with Section 6.7 itself) on or following the relevant LCT Test Date and prior to the earlier of (a) the date on which such Limited Conditionality Transaction is consummated and (b) the date that the definitive agreements for such Limited Conditionality Transaction are terminated or expire without consummation of such Limited Conditionality Transaction (with the Borrower agreeing to provide the Administrative Agent with prompt notice thereof), any such ratio, financial metric or basket shall be calculated on a Pro Forma Basis assuming such Limited Conditionality Transaction and the other transactions in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) have been consummated.

1.6.Effectuation of Transactions. All references herein to the Borrower and the Subsidiaries or the Restricted Subsidiaries shall be deemed to be (unless the context otherwise requires) references to such Persons, and all the representations and warranties of the Borrower and the other Credit Parties contained in this Agreement and the other Credit Documents shall be deemed made, in each case, after giving effect to the Merger and the other Transactions to occur on the Closing Date.

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SECTION 2.LOANS

2.1.Loans. (a) Commitments. (i) Subject to the terms and conditions hereof, each Lender agrees to make, on the Closing Date, a term loan to the Borrower in Dollars in a principal amount not to exceed such Lender’s Tranche B Term Loan Commitment. Amounts borrowed pursuant to this Section 2.1(a)(i) that are repaid or prepaid may not be reborrowed. Each Lender’s Tranche B Term Loan Commitment shall terminate immediately and without any further action upon the making of a Tranche B Term Loan, as applicable, by such Lender or, if earlier, at 5:00 p.m. (New York City time) on the Closing Date.

(ii)Additional Classes of Commitments may be established as provided in Section 2.23 or 2.25, and the Loans thereunder shall be made in accordance with, and subject to the terms and conditions set forth in, such Section.

(b)Borrowing Mechanics for Loans.

(i)Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders of such Class proportionately to their applicable Pro Rata Shares. At the commencement of each Interest Period for any Eurodollar Rate Borrowing, such Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess of such amount; provided that a Eurodollar Rate Borrowing that results from a continuation of an outstanding Eurodollar Rate Borrowing may be in an aggregate amount that is equal to the amount of such outstanding Borrowing.

(ii)To request a Borrowing, the Borrower shall deliver to the Administrative Agent a fully completed and executed Funding Notice (A) in the case of a Eurodollar Rate Borrowing, not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Credit Date (which shall be a Business Day) and (B) in the case of a Base Rate Borrowing, not later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date (which shall be a Business Day) (or, in each case, with respect to any Borrowing of Incremental Loans or Refinancing Loans, not later than such other time as shall be specified therefor in the applicable Incremental Facility Agreement or Refinancing Facility Agreement). Promptly upon receipt by the Administrative Agent of a Funding Notice in accordance with this paragraph, the Administrative Agent shall notify each Lender of the applicable Class of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing. Following delivery of a Funding Notice for a Eurodollar Rate Borrowing, any failure to make such Borrowing shall be subject to Section 2.17(c).

(iii)Each Lender shall make the principal amount of each Loan required to be made by it hereunder on any Credit Date available to the Administrative Agent not later than 1:00 p.m. (New York City time) on such Credit Date (or, with respect to any Borrowing of Incremental Loans or Refinancing Loans, not later than such other time as shall be specified therefor in the applicable Incremental Facility Agreement or Refinancing Facility Agreement) by wire transfer of same day funds in Dollars to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make each such Loan available to the Borrower by promptly remitting the amounts so received, in like funds, to the account specified by the Borrower in the applicable Funding Notice.

2.2.[Reserved].

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2.3.[Reserved].

2.4.Pro Rata Shares; Obligations Several; Availability of Funds. (a) All Loans on the occasion of any Borrowing shall be made by the Lenders in proportion to their applicable Pro Rata Shares. The failure of any Lender to make any Loan shall not relieve any other Lender of its obligations hereunder; provided that the Commitments and other obligations of the Lenders hereunder are several, and no Lender shall be responsible for the failure of any other Lender to make any Loan or to satisfy any of its other obligations hereunder.

(b)Unless the Administrative Agent shall have been notified by a Lender prior to the applicable Credit Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested to be made on such Credit Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Credit Date and may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made the amount of its Loan available to the Administrative Agent, then such Lender and the Borrower severally agree to pay to the 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 the Borrower to but excluding the date of such payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, (A) at any time prior to the third Business Day following the date such amount is made available to the Borrower, the customary rate set by the Administrative Agent for the correction of errors among banks and (B) thereafter, the Base Rate or (ii) in the case of a payment to be made by the Borrower, the interest rate applicable hereunder to Base Rate Loans of the applicable Class. If the Borrower and such Lender shall both pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing.

2.5.Use of Proceeds. The Borrower will use the proceeds of the Tranche B Term Loans made on the Closing Date, together with the proceeds of the term loans made under the First Lien Credit Agreement on the Closing Date, the proceeds of the New Subordinated Note and the Closing Date Common Equity Issuance, (a) to consummate the Closing Date Refinancing, (b) to pay fees and expenses in connection with the Transactions and (c) to the extent any excess proceeds of the Tranche B Term Loans remain after the application of proceeds under clauses (a) and (b) above, for working capital and other general corporate purposes of the Borrower and the Restricted Subsidiaries. The Borrower will use the proceeds of any Incremental Loan for the purposes specified in the applicable Incremental Facility Agreement, and the proceeds of any Refinancing Loan solely for the repayment or prepayment of Borrowings as set forth in Section 2.25(c) and the payment of any related fees, premiums and expenses. The Borrower will use the proceeds of the “Tranche B Term Loans” made under the First Lien Credit Agreement on the Closing Date constituting Escrow Cash Collateral solely to consummate the Specified Acquisition or to make the mandatory prepayment of “Tranche B Term Loans” required under the First Lien Credit Agreement and, to the extent any excess proceeds thereof remain after such application in accordance with the provisions of the First Lien Credit Agreement, for working capital and other general corporate purposes of the Borrower and the Restricted Subsidiaries.

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2.6.Evidence of Debt; Register; Notes. (a) Lenders’ Evidence of Debt. Each Lender shall maintain records evidencing the Obligations of the Borrower owing to such Lender, including the principal amount of the Loans made by such Lender and each repayment and prepayment in respect thereof. Such records maintained by any Lender shall be prima facie evidence thereof, absent manifest error; provided that the failure to maintain any such records, or any error therein, shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance with the terms hereof; provided further that in the event of any inconsistency between the records maintained by any Lender and the records maintained by the Administrative Agent, the records maintained by the Administrative Agent shall govern and control.

(b)Register. The Administrative Agent shall maintain records of the name and address of, and the Commitments of and the principal amount of and stated interest on the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be prima facie evidence thereof, absent manifest error; provided that the failure to maintain the Register, or any error therein, shall not in any manner affect the obligation of any Lender to make a Loan or other payment hereunder or the obligation of the Borrower to pay any amounts due hereunder, in each case in accordance with the terms of this Agreement. The Register shall be available for inspection by the Borrower or any Lender (but, in the case of a Lender, only with respect to (i) any entry relating to such Lender’s Commitments or Loans and (ii) the identity of the other Lenders (but not information as to such other Lenders’ Commitments or Loans)) at any reasonable time and from time to time upon reasonable prior notice. The Borrower hereby designates the Person serving as the Administrative Agent to serve as the Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.6(b) and agrees that, in consideration of such Person serving in such capacity, such Person and its Related Parties shall constitute “Indemnitees”.

(c)Notes. Upon the request of any Lender by written notice to the Borrower (with a copy to the Administrative Agent), the Borrower shall promptly prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) to evidence such Lender’s Loans of any Class, which shall be substantially in the form attached hereto as Exhibit M.

2.7.Interest on Loans. (a) Subject to Section 2.9, each Loan of any Class shall bear interest on the outstanding principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:

(i)if a Base Rate Loan, at the Base Rate plus the Applicable Rate with respect to Loans of such Class; or

(ii)if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable Rate with respect to Loans of such Class.

The applicable Base Rate or Adjusted Eurodollar Rate shall be determined by the Administrative Agent, and such determination shall be conclusive and binding on the parties hereto, absent manifest error.

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(b)The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any Eurodollar Rate Borrowing, shall be selected by the Borrower pursuant to the applicable Funding Notice or Conversion/Continuation Notice delivered in accordance herewith; provided that there shall be no more than 10 (or such greater number as may be agreed to by the Administrative Agent) Eurodollar Rate Borrowings outstanding at any time. In the event the Borrower fails to specify in any Funding Notice the Type of the requested Borrowing, then the requested Borrowing shall be made as a Base Rate Borrowing. In the event the Borrower fails to deliver in accordance with Section 2.8 a Conversion/Continuation Notice with respect to any Eurodollar Rate Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Base Rate Borrowing. In the event the Borrower requests the making of, or the conversion to or continuation of, any Eurodollar Rate Borrowing but fails to specify in the applicable Funding Notice or Conversion/Continuation Notice the Interest Period to be applicable thereto, the Borrower shall be deemed to have specified an Interest Period of one month. No Borrowing of any Class may be converted into a Borrowing of another Class.

(c)Interest payable pursuant to Section 2.7(a) shall be computed (i) in the case of Base Rate Loans, on the basis of a 360-day year (or, in the case of Base Rate Loans determined by reference to the Prime Rate, a 365-day or 366-day year, as applicable), and (ii) in the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which such interest accrues. In computing interest on any Loan, 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 Eurodollar Rate Loan, the date of conversion of such Eurodollar 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 Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one day’s interest shall accrue on such Loan.

(d)Except as otherwise set forth herein, accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment Date applicable to such Loan, (ii) upon any voluntary or mandatory repayment or prepayment of such Loan, to the extent accrued on the amount being repaid or prepaid, (iii) on the Maturity Date applicable to such Loan and (iv) in the event of any conversion of a Eurodollar Rate Loan prior to the end of the Interest Period then applicable thereto, on the effective date of such conversion.

2.8.Conversion/Continuation. (a) Subject to Section 2.17, the Borrower shall have the option:

(i)to convert at any time all or any part of any Borrowing from one Type to the other Type; and

(ii)to continue, at the end of the Interest Period applicable to any Eurodollar Rate Borrowing, all or any part of such Borrowing as a Eurodollar Rate Borrowing and to elect an Interest Period therefor;

provided, in each case, that at the commencement of each Interest Period for any Eurodollar Rate Borrowing, such Borrowing shall be in an amount that complies with Section 2.1(b).

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In the event any Borrowing shall have been converted or continued in accordance with this Section 2.8 in part, such conversion or continuation shall be allocated ratably, in accordance with their applicable Pro Rata Shares, among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each part of such Borrowing resulting from such conversion or continuation shall be considered a separate Borrowing.

(b)To exercise its option pursuant to this Section 2.8, the Borrower shall deliver a fully completed and executed Conversion/Continuation Notice to the Administrative Agent (i) not later than 11:00 a.m. (New York City time) one Business Day in advance of the proposed Conversion/Continuation Date, in the case of a conversion to a Base Rate Borrowing, and (ii) not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Conversion/Continuation Date, in the case of a conversion to, or a continuation of, a Eurodollar Rate Borrowing. In lieu of delivering a Conversion/Continuation Notice, the Borrower may give the Administrative Agent, not later than the applicable time set forth above, telephonic notice of any proposed conversion or continuation; provided that such telephonic notice shall be promptly confirmed in writing by delivery to the Administrative Agent of a fully completed and executed Conversion/Continuation Notice. Except as otherwise provided herein, a Conversion/Continuation Notice for a conversion to, or a continuation of, any Eurodollar Rate Borrowing shall be irrevocable on and after the related Interest Rate Determination Date, and the Borrower shall be bound to effect a conversion or continuation in accordance therewith; any failure to effect such conversion or continuation in accordance therewith shall be subject to Section 2.17(c).

(c)Notwithstanding anything to the contrary herein, if an Event of Default under Section 8.1(a), 8.1(f) or 8.1(g) or, at the request of the Requisite Lenders (or a Majority in Interest of Lenders of any Class), any other Event of Default shall have occurred and be continuing, then no outstanding Borrowing (of the applicable Class, in the case of such a request by a Majority in Interest of Lenders of any Class) may be converted to or continued as a Eurodollar Rate Borrowing.

2.9.Default Interest. Notwithstanding anything to the contrary herein, upon the occurrence and during the continuance of any Event of Default under Section 8.1(a), 8.1(f) or 8.1(g), any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder shall bear interest (in the case of an Event of Default under Section 8.1(a), only on overdue amounts), payable on demand, after as well as before judgment, at a rate per annum equal to (a) in the case of the principal of any Loan, 2.00% per annum in excess of the interest rate otherwise applicable hereunder to such Loan or (b) in the case of any other amount, a rate (computed on the basis of a year of 360 days for the actual number of days elapsed) that is 2.00% per annum in excess of the highest interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.9 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 the Administrative Agent or any Lender.

2.10.Fees. (a) The Borrower agrees to pay on the Closing Date to Goldman Sachs, as an Arranger, for the account of each Lender, closing fees in an amount separately agreed among the Borrower and the Arrangers.

(b)The Borrower agrees to pay to the Administrative Agent, the Collateral Agent and the Arrangers, as applicable, such other fees in the amounts and at the times separately agreed upon (including pursuant to the Administrative Agent Fee Letter) in respect of the credit facilities provided herein.

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(c)Fees paid hereunder shall not be refundable or creditable under any circumstances.

2.11.Scheduled Installments; Repayment on Maturity Date. (a) To the extent not previously paid, all Tranche B Term Loans shall be due and payable on the Tranche B Term Loan Maturity Date.

(b)Subject to Section 2.11(c), the Borrower shall repay Loans of any Class established under Section 2.23, 2.24 or 2.25 in such amounts and on such date or dates as shall be specified therefor in the applicable Incremental Facility Agreement, Extension/Modification Agreement or Refinancing Facility Agreement. To the extent not previously paid, all Loans of any such Class shall be due and payable on the Maturity Date applicable to the Loans of such Class.

(c)The Installments of any Class of Loans established under Section 2.23, 2.24 or 2.25 shall be reduced in connection with any voluntary or mandatory prepayments of, or any repurchases by the Borrower of, the Loans of such Class in accordance with Section 2.14.

(d)Prior to any repayment of any Borrowings of any Class under this Section 2.11, the Borrower shall select the Borrowing or Borrowings of the applicable Class to be repaid and shall notify the Administrative Agent of such selection at least one Business Day in advance of such repayment. Each such notice may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Each repayment of a Borrowing shall be allocated among the Lenders holding Loans comprising such Borrowing in accordance with their applicable Pro Rata Shares.

2.12.Voluntary Prepayments; Call Protection.

(a) Voluntary Prepayments. (i) At any time and from time to time, the Borrower may, without premium or penalty (except as applicable under Section 2.12(b)) but subject to compliance with the conditions set forth in this Section 2.12(a) and with Section 2.17(c), prepay any Borrowing in whole or in part; provided that each such partial voluntary prepayment of any Borrowing shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess of such amount.

(ii)To make a voluntary prepayment pursuant to Section 2.12(a)(i), the Borrower shall notify the Administrative Agent not later than 11:00 a.m. (New York City time) (A) at least one Business Day prior to the date of prepayment, in the case of prepayment of Base Rate Borrowings, or (B) at least three Business Days prior to the date of prepayment, in the case of prepayment of Eurodollar Rate Borrowings. Each such notice shall specify the prepayment date (which shall be a Business Day) and the principal amount of each Borrowing or portion thereof to be prepaid, and may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Each such notice shall be irrevocable, and the principal amount of each Borrowing specified therein shall become due and payable on the prepayment date specified therein; provided that a notice of prepayment of any Borrowing pursuant to Section 2.12(a)(i) may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be rescinded by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the details thereof. Each voluntary prepayment of a Borrowing shall be allocated among the Lenders holding Loans comprising such Borrowing in accordance with their applicable Pro Rata Shares.

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(iii)Notwithstanding any other provision of this Section 2.12 to the contrary, in connection with a refinancing in full of the credit facilities established hereunder, any Lender may, with the consent of the Borrower, elect, by written agreement executed by the Borrower, such Lender and the Administrative Agent, to accept Rollover Indebtedness in lieu of all or any part of such Lender’s applicable Pro Rata Share of any prepayment of any Borrowing made pursuant to Section 2.12(a)(i).

(b)Tranche B Term Loan Call Protection. In the event that on or prior to the date that is 36 months after the Closing Date, all or any portion of the Tranche B Term Borrowings (i) are prepaid pursuant to Section 2.12(a)(i) (for the avoidance of doubt, including on account of the requirements set forth in Section 2.25) or 2.13(c) or (ii) are subject to any amendment or other modification of this Agreement that, directly or indirectly, reduces the Weighted Average Yield of any Tranche B Term Loans, then each Lender whose Tranche B Term Loans are so prepaid or subject to such amendment or modification, or which is required to assign any of its Tranche B Term Loans pursuant to Section 2.22 in connection with such amendment or modification, shall be paid a fee equal to (A) if such prepayment or amendment or modification (or such assignment) occurs on or prior to the date that is 18 months after the Closing Date, the Yield Maintenance Amount with respect to the principal amount so prepaid or subject to such amendment or modification (or such assignment), (B) if such prepayment or amendment or modification (or such assignment) occurs after the date that is 18 months after the Closing Date and on or prior to the date that is 24 months after the Closing Date, 4.00% of the aggregate principal amount of such Lender’s Tranche B Term Loans so prepaid or subject to such amendment or modification (or such assignment), and (C) if such prepayment or amendment or modification (or such assignment) occurs after the date that is 24 months after the Closing Date but on or prior to the date that is 36 months after the Closing Date, 2.00% of the aggregate principal amount of such Lender’s Tranche B Term Loans so prepaid or subject to such amendment or modification (or such assignment); provided that no such fee shall be due and payable if such prepayment or amendment or modification (or such assignment) occurs after the date that is 36 months after the Closing Date.

2.13.Mandatory Prepayments/Commitment Reductions. (a) Asset Sales. Subject to Section 2.13(i), not later than the fifth Business Day following the date of receipt by the Borrower or any Restricted Subsidiary of any Net Proceeds in respect of any Asset Sale, the Borrower shall prepay the Borrowings in an aggregate amount equal to 100% of such Net Proceeds; provided that the Borrower may, at least one Business Day prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be reinvested in non-current assets useful in the business of the Borrower and its Restricted Subsidiaries or in Permitted Acquisitions or other Acquisitions, in each case, within 365 days after the receipt of such Net Proceeds, and certifying that, as of the date thereof, no Event of Default has occurred and is continuing, in which case during such period the Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested by the end of such period (or within a period of 270 days thereafter if by the end of such initial 365-day period the Borrower or any of its Restricted Subsidiaries shall have entered into a binding agreement with a third party to so reinvest such Net Proceeds) shall be applied to prepay the Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Asset Sale that would otherwise be required pursuant to this Section 2.13(a) to be applied to prepay the Borrowings to prepay, repurchase or redeem any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Asset Sale (with the amount of the prepayment of the Borrowings that would otherwise have been required pursuant to this Section 2.13(a) being reduced accordingly), provided that (i) such portion shall not exceed the product of (A) the amount of such Net Proceeds multiplied by (B) a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Borrowings, in each case at the time of occurrence of such Asset Sale, and (ii) in the event the holders of such Permitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or redemption, the declined amount shall promptly (and in any event within 10 Business Days after the date of rejection) be applied to prepay the Borrowings.

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(b)Insurance/Condemnation Events. Subject to Section 2.13(i), not later than the fifth Business Day following the date of receipt by the Borrower or any Restricted Subsidiary, or by the Collateral Agent as loss payee, of any Net Proceeds in respect of any Insurance/Condemnation Event, the Borrower shall prepay the Borrowings in an aggregate amount equal to 100% of such Net Proceeds; provided that the Borrower may, at least one Business Day prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be reinvested in replacement assets (including through the repair, restoration or replacement of the damaged, destroyed or condemned assets) or other non-current assets useful in the business of the Borrower and its Restricted Subsidiaries or in Permitted Acquisitions or other Acquisitions, in each case, within 365 days after the receipt of such Net Proceeds, and certifying that, as of the date thereof, no Event of Default has occurred and is continuing, in which case during such period the Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested by the end of such period (or within a period of 270 days thereafter if by the end of such initial 365-day period the Borrower or any of its Restricted Subsidiaries shall have entered into a binding agreement with a third party to so reinvest such Net Proceeds) shall be applied to prepay the Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Insurance/Condemnation Event that would otherwise be required pursuant to this Section 2.13(b) to be applied to prepay the Borrowings to prepay, repurchase or redeem any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Insurance/Condemnation Event (with the amount of the prepayment of the Borrowings that would otherwise have been required pursuant to this Section 2.13(b) being reduced accordingly), provided that (i) such portion shall not exceed the product of (A) the amount of such Net Proceeds multiplied by (B) a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Borrowings, in each case at the time of occurrence of such Insurance/Condemnation Event, and (ii) in the event the holders of such Permitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or redemption, the declined amount shall promptly (and in any event within 10 Business Days after the date of rejection) be applied to prepay the Borrowings.

(c)Issuance of Debt. On the date of receipt by the Borrower or any Restricted Subsidiary of any Net Proceeds from the incurrence of any Indebtedness (other than any Indebtedness permitted to be incurred pursuant to Section 6.1), the Borrower shall prepay the Borrowings in an aggregate amount equal to 100% of such Net Proceeds.

(d)[Reserved].

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(e)Consolidated Excess Cash Flow. Subject to Section 2.13(i), in the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2019), the Borrower shall, not later than the earlier of (x) 95 days after the end of such Fiscal Year and (y) five Business Days after the delivery of the financial statements with respect to such Fiscal Year pursuant to Section 5.1(a), prepay the Borrowings of each Class in an aggregate principal amount equal to (i) the product of (A) the Applicable ECF Percentage for such Fiscal Year multiplied by (B) the Consolidated Excess Cash Flow for such Fiscal Year multiplied by (C) the percentage of the aggregate principal amount of the Borrowings of all Classes outstanding as of the end of such Fiscal Year represented by the Borrowings of such Class (but, in each case, disregarding for purposes of determining such percentage any prepayments or repurchases referred to in clause (ii) below) minus (ii) the sum of the aggregate principal amount of the Borrowings of such Class voluntarily prepaid by the Borrower pursuant to Section 2.12 or, to the extent of Cash spent, repurchased by the Borrower pursuant to Section 10.6(i)(i), minus (iii) the product of (A) the percentage of the aggregate principal amount of the Borrowings of all Classes outstanding as of the end of such Fiscal Year represented by the Borrowings of such Class (but, in each case, disregarding for purposes of determining such percentage any prepayments or repurchases referred to in clause (ii) above) multiplied by (B) the sum of (x) the aggregate principal amount of any optional prepayments, repurchases or redemptions of any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, that, in each case, constitutes Permitted Pari Passu Secured Indebtedness or Permitted Senior Lien Secured Indebtedness (and, in each case, does not constitute revolving loans), plus (y) the aggregate principal amount of any optional prepayments of any revolving loans under the First Lien Credit Agreement but solely to the extent the revolving commitments in respect thereof are permanently reduced in connection therewith (and solely to the extent of the amount of such permanent reduction and excluding any reduction in connection with a refinancing thereof), in each case under clauses (ii) and (iii) above, (I) to the extent such prepayments, repurchases or redemptions have not been financed with the proceeds of incurrences of Long-Term Indebtedness and (II) if such prepayments, repurchases or redemptions occurred (1) during such Fiscal Year (to the extent not applied to reduce any mandatory prepayment required under this Section 2.13(e) in respect of any prior Fiscal Year pursuant to clause (2) below) or (2) at the option of the Borrower, after the end of such Fiscal Year and prior to the time that the mandatory prepayment required under this Section 2.13(e) in respect of such Fiscal Year is due as provided above; provided that no prepayment shall be required under this Section 2.13(e) unless the amount thereof would equal or exceed $1,000,000.

(f)[Reserved].

(g)Notice and Certificate. At least one Business Day prior to any mandatory prepayment or reduction pursuant to this Section 2.13, the Borrower (i) shall notify the Administrative Agent in writing of such prepayment or reduction and (ii) shall deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower setting forth the calculation of the amount of the applicable prepayment or reduction. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid (with such specification to be in accordance with Section 2.14(b)), or the effective date and the amount of any such reduction, as applicable, and may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the details thereof. Each mandatory prepayment of any Borrowing shall be allocated among the Lenders holding Loans comprising such Borrowing in accordance with their applicable Pro Rata Shares and shall be subject to compliance with Section 2.17(c).

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(h)Foreign Restrictions and Taxes. Notwithstanding any other provisions of this Section 2.13 to the contrary, if the Borrower determines in good faith that (i) any Net Proceeds in respect of any Asset Sale by, or any Insurance/Condemnation Event affecting the assets of, a Restricted Subsidiary that is a CFC or a CFC Holding Company, or any portion of Consolidated Excess Cash Flow attributable to a Restricted Subsidiary that is a CFC or a CFC Holding Company, are prohibited, restricted or delayed by applicable foreign law (including currency controls) from being repatriated to the United States (and that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not CFCs or CFC Holding Companies (as determined by the Borrower in good faith, with such determination being permitted to disregard availability under the revolving commitments under any Permitted Section 6.1(e) Indebtedness (it being understood that the Borrower shall not be required to borrow under any such revolving commitments to make any such mandatory prepayment required under Section 2.13(a), 2.13(b) or 2.13(e))), such repatriation is reasonably required in order to provide the Borrower with the funds with which to make such prepayment as would otherwise be required hereunder), then the amount thereof so affected will not be required to be applied to prepay Borrowings as otherwise required under Section 2.13(a), 2.13(b) or 2.13(e), as applicable, provided that (A) the Borrower shall, and shall cause such CFC or CFC Holding Company to, use commercially reasonable efforts to take actions reasonably required by the applicable foreign law to permit such repatriation and (B) the Borrower shall, subject to Section 2.13(i), prepay Borrowings in accordance with such applicable Section in a principal amount equal to such affected amount (or a portion thereof) at such time as (x) the repatriation of such amount (or such portion thereof) becomes permitted under applicable foreign law or (y) the Borrower determines in good faith that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not CFCs or CFC Holding Companies (taking into account the foregoing considerations), funds are available in the United States to make such prepayment (or such portion thereof), provided further that any such prepayment shall no longer be required to be made with respect to any such amounts that, after the use of such commercially reasonable efforts, have not been repatriated prior to the date that is one year after the date the original prepayment was required to be made under Section 2.13(a), 2.13(b) or 2.13(e), as applicable, or (ii) that repatriation of any Net Proceeds in respect of any Asset Sale by, or any Insurance/Condemnation Event affecting the assets of, a Restricted Subsidiary that is a CFC or a CFC Holding Company, or any portion of Consolidated Excess Cash Flow attributable to a Restricted Subsidiary that is a CFC or a CFC Holding Company, would have a material adverse tax consequence (taking into account any withholding tax, any Subpart F inclusion and any foreign tax credit or benefit actually realized in connection with such repatriation) to the Borrower and the Restricted Subsidiaries (and that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not CFCs or CFC Holding Companies (as determined by the Borrower in good faith, with such determination being permitted to disregard availability under the revolving commitments under any Permitted Section 6.1(e) Indebtedness (it being understood that the Borrower shall not be required to borrow under any such revolving commitments to make any such mandatory prepayment required under Section 2.13(a), 2.13(b) or 2.13(e))), such repatriation is reasonably required in order to provide the Borrower with the funds with which to make such prepayment as would otherwise be required hereunder), then the amount thereof so affected will not be required to be applied to prepay Borrowings as otherwise required under Section 2.13(a), 2.13(b) or 2.13(e), as applicable, provided that the Borrower shall, subject to Section 2.13(i) prepay Borrowings in accordance with such applicable Section in a principal amount equal to such affected amount (or a portion thereof) at such time as (A) the repatriation of such amount (or such portion thereof) would no longer result in a material adverse tax consequence or (B) the Borrower determines in good faith that, in view of the available liquidity and working capital requirements of the Borrower and the Restricted Subsidiaries that are not CFCs or CFC Holding Companies (taking into account the foregoing considerations), funds are available in the United States to make such prepayment (or such portion thereof), provided further that any such prepayment shall no longer be required to be made after the date that is one year after the date the original prepayment was required to be made under Section 2.13(a), 2.13(b) or 2.13(e), as applicable.

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(i)Notwithstanding anything in this Section 2.13 to the contrary, until the Senior Lien Obligations Discharge Date, no mandatory prepayment of Loans pursuant to this Section 2.13 (other than pursuant to Section 2.13(c)) shall be required to be made, except, to the extent permitted under the First Lien Credit Agreement, the Intercreditor Agreement, any other Senior Lien Intercreditor Agreement then in effect and any other Permitted Senior Lien Secured Indebtedness then outstanding, with respect to the portion (if any) of the Net Proceeds of the applicable Asset Sale or Insurance/Condemnation Event or the portion (if any) of the Consolidated Excess Cash Flow for the applicable Fiscal Year, in each case, available after the required prepayment of Indebtedness under the First Lien Credit Agreement or prepayment, repurchase or redemption of other Permitted Senior Lien Secured Indebtedness, in each case, as a result of any portion thereof having been declined by the term lenders under the First Lien Credit Agreement in accordance with Section 2.14(c) thereof (and by the holders of such other Permitted Senior Lien Secured Indebtedness pursuant to any comparable provision thereof).

2.14.Application of Prepayments; Waivable Mandatory Prepayments.

(a) Application of Voluntary Prepayments and Repurchases. Any voluntary prepayment of Borrowings of any Class pursuant to Section 2.12(a) shall, in the case of Loans of any Class subject to scheduled amortization of principal, be applied to reduce any subsequent Installments to be paid pursuant to Section 2.11 with respect to Borrowings of such Class in the manner specified by the Borrower in the notice of prepayment relating thereto (or, if no such manner is specified in such notice, in direct order of maturity); provided that any prepayment of Borrowings of any such Class as contemplated by Section 2.25(b) shall be applied to reduce any subsequent Installments to be paid pursuant to Section 2.11 with respect to Borrowings of such Class in the manner specified in Section 2.25(c). Any repurchase of Loans of any Class as contemplated by Section 10.6(i) shall, in the case of Loans of any Class subject to scheduled amortization of principal, be applied to reduce any subsequent Installments to be paid pursuant to Section 2.11 with respect to Borrowings of such Class in the manner specified in Section 10.6(i).

(b)Application of Mandatory Prepayments. Any mandatory prepayment of Borrowings pursuant to Section 2.13 shall (i) be allocated among the Classes of Borrowings on a pro rata basis (in accordance with the aggregate principal amount of outstanding Borrowings of each such Class), provided that (A) any prepayment of Borrowings pursuant to Section 2.13(e) shall be allocated to each Class of Borrowings as set forth therein and (B) the amounts so allocable to Incremental Loans, Extended/Modified Loans or Refinancing Loans of any Class may be applied to other Borrowings as provided in the applicable Incremental Facility Agreement, Extension/Modification Agreement or Refinancing Facility Agreement and (ii) in the case of Loans of any Class subject to scheduled amortization of principal, be applied to reduce any subsequent Installments to be made pursuant to Section 2.11 with respect to Borrowings of such Class as provided in the applicable Incremental Facility Agreement, Extension/Modification Agreement or Refinancing Facility Agreement.

(c)Waivable Mandatory Prepayments. Notwithstanding anything herein to the contrary, any Lender may elect, by notice to the Administrative Agent (which may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing)) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Loans pursuant to Section 2.13 (other than Section 2.13(c)), in which case the aggregate amount of the prepayment that would have been applied to prepay Loans but was so declined shall be, first, applied by the Borrower on the required prepayment date to prepay or offer to redeem any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness to the extent required thereby and, second, to the extent of the remainder thereof that is not so applied to prepay or redeem such Indebtedness, shall be retained by the Borrower.

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2.15.General Provisions Regarding Payments. (a) All payments by the Borrower or any other Credit Party of principal, interest, fees and other amounts required to be made hereunder or under any other Credit Document shall be made by wire transfer of same day funds in Dollars, without defense, recoupment, set-off or counterclaim, free of any restriction or condition, to the account of the Administrative Agent in the United States of America most recently designated by it for such purpose and received by the Administrative Agent not later than 2:00 p.m. (New York City time) on the date due for the account of the Persons entitled thereto; provided that payments made pursuant to Sections 2.17(c), 2.18, 2.19, 10.2 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any payment received by it hereunder for the account of any other Person to the appropriate recipient promptly following receipt thereof.

(b)All payments in respect of the principal amount of any Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest then due and payable before application to principal.

(c)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 applicable Pro Rata Share of any Eurodollar Rate Borrowing, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.

(d)Subject to the proviso set forth in the definition of “Interest Period”, whenever any payment to be made hereunder with respect to any Loan 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.

(e)Any payment hereunder by or on behalf of the Borrower to the Administrative Agent that is not received by the Administrative Agent in same day funds prior to 2:00 p.m. (New York City time) on the date due shall, unless the Administrative Agent shall determine otherwise, be deemed to have been received, for purposes of computing interest and fees hereunder (including for purposes of determining the applicability of Section 2.9), on the Business Day immediately following the date of receipt (or, if later, the Business Day immediately following the date the funds received become available funds).

(f)If an Event of Default shall have occurred and the maturity of the Loans shall have been accelerated pursuant to Section 8.1, all payments or proceeds received by the Administrative Agent or the Collateral Agent in respect of any of the Obligations, or from any sale of, collection from or other realization upon all or any part of the Collateral, shall, subject to the requirements of any applicable Permitted Intercreditor Agreement, be applied in accordance with the application arrangements set forth in Section 5.02 of the Pledge and Security Agreement.

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(g)Unless the Administrative Agent shall have been notified by the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in its sole discretion, but shall not be obligated to, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to pay to the Administrative Agent forthwith on demand the amount so distributed to such Lender 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 the Administrative Agent (i) at any time prior to the third Business Day following the date such amount is distributed to it, the customary rate set by the Administrative Agent for the correction of errors among banks and (ii) thereafter, the Base Rate.

2.16.Ratable Sharing. The Lenders hereby agree among themselves that if any Lender shall, whether 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 Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a portion of the aggregate amount of any principal, interest and fees owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) resulting in such Lender receiving payment of a greater proportion of the Aggregate Amounts Due to such Lender than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify the Administrative Agent and each other Lender in writing of the receipt of such payment and (b) apply a portion of such payment to purchase (for cash at face value) participations in the Aggregate Amounts Due to the other Lenders so that all such payments of Aggregate Amounts Due shall be shared by all the Lenders ratably in accordance with the Aggregate Amounts Due to them; provided that, if all or part of such proportionately greater payment received by any purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of any Credit Party or otherwise, such purchase shall be rescinded and the purchase price paid for such participation shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Each Credit Party expressly consents to the foregoing arrangements and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, consolidation, set-off or counterclaim with respect to any and all monies owing by such Credit Party to such holder with respect thereto as fully as if such holder were owed the amount of the participation held by such holder. The provisions of this Section 2.16 shall not be construed to apply to (i) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement, including any payment made by the Borrower pursuant to Section 2.22 or any Extension/Modification Agreement, Incremental Facility Agreement or Refinancing Facility Agreement, (ii) any acceptance by any Lender of any Rollover Indebtedness in accordance with Section 2.12(a)(iii) or (iii) any payment obtained by any Lender as consideration for the assignment of or sale of a participation in Loans or other Obligations owing to it pursuant to and in accordance with the express terms of this Agreement.

2.17.Making or Maintaining Eurodollar Rate Loans.(a) Inability to Determine Applicable Interest Rate.

(i)If prior to the commencement of any Interest Period for a Eurodollar Rate Borrowing of any Class:

(A)the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period; or

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(B)the Administrative Agent is notified in writing by a Majority in Interest of the Lenders of such Class that the Adjusted Eurodollar Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Eurodollar Rate Borrowing for such Interest Period;

then the Administrative Agent shall give notice (which may be telephonic) thereof to the Borrower and the Lenders as promptly as practicable, whereupon, (x) no Loans of such Class may be made as, or converted to, Eurodollar Rate Loans until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, and (y) any Funding Notice or Conversion/Continuation Notice given by the Borrower with respect to the Loans in respect of which such determination was made shall be deemed rescinded by the Borrower. The Administrative Agent shall promptly notify the Borrower and the Lenders when such circumstances no longer exist.

(ii)If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (x) the circumstances set forth in Section 2.17(a)(i)(A) have arisen (including because the rate described in clause (a) of the definition of “Adjusted Eurodollar Rate” is not available or published on a current basis) and such circumstances are unlikely to be temporary or (y) the circumstances set forth in Section 2.17(a)(i)(A) have not arisen but the supervisor for the administrator of the rate described in clause (a) of the definition of “Adjusted Eurodollar Rate” or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the rate described in clause (a) of the definition of “Adjusted Eurodollar Rate” no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Adjusted Eurodollar Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans denominated in Dollars in the United States at such time, and the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate); provided that if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement. Such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Requisite Lenders stating that the Requisite Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph (but, in the case of the circumstances described in clause (y) above, only to the extent the rate described in clause (a) of the definition of “Adjusted Eurodollar Rate” for such Interest Period is not available or published at such time on a current basis), (1) no Loans of any Class may be made as, or converted to, Eurodollar Rate Loans and (2) any Funding Notice or Conversion/Continuation Notice given by the Borrower requesting the making of, or conversion to or continuation of, any Eurodollar Rate Borrowing shall be deemed rescinded by the Borrower.

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(b)Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date (i) any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, converting to or continuation of its Eurodollar Rate Loans has after the Closing Date become unlawful as a result of compliance by such Lender in good faith with any law (or would conflict with any treaty, rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) the Requisite Lenders shall have determined (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, converting to or continuation of their Eurodollar Rate Loans has become impracticable as a result of contingencies occurring after the Closing Date that materially and adversely affect the London interbank market or the position of the Lenders in that market, then, if such Lender or Lenders shall have provided notice thereof to the Administrative Agent and the Borrower, such Lender or each of such Lenders, as the case may be, shall be an “Affected Lender”. If the Administrative Agent and the Borrower receive a notice from (A) any Lender pursuant to clause (i) of the preceding sentence or (B) a notice from Lenders constituting Requisite Lenders pursuant to clause (ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, of the applicable Lender) to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by each applicable Affected Lender, (2) to the extent such determination by any Affected Lender relates to a Eurodollar Rate Loan then being requested by the Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, the applicable 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, (3) the Lenders’ (or in the case of any notice pursuant to clause (i) of the preceding sentence, the applicable Lender’s) obligations to maintain Eurodollar 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 (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent any such determination by an Affected Lender relates to a Eurodollar Rate Loan then being requested by the Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Borrower shall have the option, subject to Section 2.17(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving written notice (or telephonic notice promptly confirmed by written notice) thereof to the 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 the Administrative Agent shall promptly transmit to each other Lender). Each Affected Lender shall promptly notify the Administrative Agent and the Borrower when the circumstances that led to its notice pursuant to this Section 2.17(b) no longer exist.

(c)Compensation for Breakage or Non-Commencement of Interest Periods. In the event that (i) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in any Funding Notice (or any telephonic request for a borrowing) given by the Borrower (other than as a result of a failure by such Lender to make such Loan in accordance with its obligations hereunder), whether or not such notice may be rescinded in accordance with the terms hereof, (ii) a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in any Conversion/Continuation Notice (or a telephonic request given for any conversion or continuation) given by the Borrower, whether or not such notice may be rescinded in accordance with the terms hereof, (iii) any payment of any principal of any Eurodollar Rate Loan occurs on a day other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (iv) the conversion of any Eurodollar Rate Loan occurs on a day other than on the last day of an Interest Period applicable thereto, (v) any Eurodollar Rate Loan is assigned other than on the last day of an Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.22 or (vi) a prepayment of any Eurodollar Rate Loan does not occur on a date specified therefor in any notice of prepayment given by the Borrower, whether or not such notice may be rescinded in accordance with the terms hereof, the Borrower shall compensate each Lender for all losses, costs, expenses and liabilities that such Lender may sustain, including any loss incurred from obtaining, liquidating or employing losses from third parties, but excluding any loss of margin or any interest rate “floor”, for the period following any such payment, assignment or conversion or any such failure to borrow, pay, prepay, convert or continue. To request compensation under this Section 2.17(c), a Lender shall deliver to the Borrower a certificate setting forth in reasonable detail the basis and calculation of any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.17(c), which certificate shall be conclusive and binding absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

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

(e)Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.17 and under Section 2.18 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (a)(i) of the definition of the term Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided that each Lender may fund each of its Eurodollar 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 2.17 and under Section 2.18.

2.18.Increased Costs; Capital Adequacy and Liquidity. (a) Increased Costs Generally. 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 such reserve requirement reflected in the Adjusted Eurodollar Rate);

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

(iii)impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or any Loan made by such Lender;

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 or of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, from time to time upon request of such Lender or other Recipient, the Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

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

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(c)Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 2.18(a) or 2.18(b) and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(d)Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.18 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 2.18 for any increased costs incurred or reductions suffered more than 120 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’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 120-day period referred to above shall be extended to include the period of retroactive effect thereof).

(e)Certain Limitations. Notwithstanding any other provision of this Section to the contrary, no Lender shall request, or be entitled to receive, any compensation pursuant to this Section unless it shall be the general policy or practice of such Lender to seek compensation in similar circumstances under comparable provisions of other credit agreements, if any.

2.19.Taxes; Withholding, Etc. (a) [Reserved].

(b)Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.19) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c)Payment of Other Taxes by the Credit Parties. Each Credit Party shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(d)Indemnification by the Credit Parties. The Credit Parties shall jointly and severally indemnify each Recipient, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.19) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf (including in its capacity as the Collateral Agent) or on behalf of a Lender, shall be conclusive absent manifest error.

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(e)Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that no Credit Party has already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(g) 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 the Administrative Agent in connection with any Credit 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 the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set-off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 2.19(e).

(f)Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.19, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(g)Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.19(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)Without limiting the generality of the foregoing:

(A)Any Lender that is a US Person shall deliver to the Borrower and the Administrative Agent prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from United States federal backup withholding tax.

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(B)Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, US federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, US federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)executed originals of IRS Form W-8ECI;

(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit N-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “US Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(4)to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a US Tax Compliance Certificate substantially in the form of Exhibit N-2 or Exhibit N-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a US Tax Compliance Certificate substantially in the form of Exhibit N-4 on behalf of each such direct and indirect partner.

(C)Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in US federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.

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(D)If a payment made to a Lender under any Credit Document would be subject to US federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. For purposes of this Section 2.19, applicable law includes FATCA.

(iii)Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(h)Treatment of Certain Refunds. 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 2.19 (including by the payment of additional amounts pursuant to this Section 2.19), 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 2.19 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 Section 2.19(h) (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 Section 2.19(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.19(h) 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 Section 2.19(h) 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.

(i)Survival. Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

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2.20.Obligation to Mitigate. If any Lender becomes an Affected Lender or requests compensation under Section 2.18, or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 2.19, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the judgment of such Lender, such designation or assignment and delegation (a) would cause such Lender to cease to be an Affected Lender or would eliminate or reduce amounts payable pursuant to Section 2.18 or 2.19, as the case may be, in the future and (b) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment and delegation.

2.21.Defaulting Lenders. 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, the Commitments and Loans of such Defaulting Lender shall not be included in determining whether the Requisite Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Credit Document (including any consent to any amendment, waiver or other modification pursuant to Section 10.5); provided that any amendment, waiver or other modification that under clauses (i), (ii), (iii), (iv), (v) or (vi) of Section 10.5(b) requires the consent of all Lenders affected thereby shall require the consent of such Defaulting Lender in accordance with the terms thereof.

2.22.Replacement of Lenders. If (a) any Lender has become an Affected Lender, (b) any Lender requests compensation under Section 2.18, (c) the Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.19, (d) any Lender becomes and continues to be a Defaulting Lender or a Disqualified Institution or (e) any Lender fails to consent to a proposed waiver, amendment or other modification of any Credit Document, or to any departure of any Credit Party therefrom, that under Section 10.5 requires the consent of all the Lenders (or all the affected Lenders or all the Lenders or all the affected Lenders of the affected Class) and with respect to which the Requisite Lenders (or, in circumstances where Section 10.5(d) does not require the consent of the Requisite Lenders, a Majority in Interest of the Lenders of the affected Class) shall have granted their consent, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.6, including the consent requirements set forth therein), all its interests, rights and obligations under this Agreement and the other Credit Documents (other than existing rights to payment under Sections 2.17(c), 2.18 and 2.19) (or, in the case of any such assignment and delegation resulting from a failure to provide a consent, all such interests, rights and obligations under this Agreement and the other Credit Documents as a Lender of an applicable Class) to an Eligible Assignee that shall assume such obligations (which may be another Lender, if a Lender accepts such assignment and delegation); provided that (i) the Borrower shall have caused to be paid to the Administrative Agent the registration and processing fee referred to in Section 10.6(d), (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (including any amounts under Section 2.17(c)) and any prepayment fee under Section 2.12(b) (if applicable, in each case only to the extent such amounts relate to its interest as a Lender of an applicable Class) from the assignee (in the case of such principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (iii) such assignment and delegation does not conflict with applicable law, (iv) in the case of any such assignment and delegation resulting from a claim for compensation under Section 2.18 or payments required to be made pursuant to Section 2.19, such assignment will result in a reduction in such compensation or payments thereafter and (v) in the case of any such assignment and delegation resulting from the failure to provide a consent, the assignee shall have given such consent. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver or consent by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. Each party hereto agrees that an assignment and delegation required pursuant to this Section 2.22 may be effected pursuant to an Assignment Agreement executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto.

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2.23.Incremental Facilities. (a) The Borrower may on one or more occasions, by written notice to the Administrative Agent, request the establishment of Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments established hereunder on any date shall not exceed the Incremental Amount as of such date. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (ii) the amount of the Incremental Commitments being requested (it being agreed that (A) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (B) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed)).

(b)The terms and conditions of any Incremental Commitment and the Incremental Loans to be made thereunder shall be as set forth in the applicable Incremental Facility Agreement; provided that (i) no Incremental Maturity Date shall be earlier than the latest Maturity Date in effect on the date of incurrence of such Incremental Loans, (ii) the weighted average life to maturity of any Incremental Loans shall be no shorter than the longest remaining weighted average life to maturity of any other Class of Loans outstanding on the date of incurrence of such Incremental Loans (and, for purposes of determining the weighted average life to maturity of any such other Class of Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders, (iii) the Weighted Average Yield, determined as of the date of incurrence of such Incremental Loans, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans is increased, or fees to Lenders then holding the Tranche B Term Loans are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to equal the Weighted Average Yield with respect to such Incremental Loans minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to any Incremental Loans shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (iv) Incremental Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than pro rata) with the other Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to any other Loans, (v) any Incremental Commitments and any Loans thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Commitments and Loans, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties and (vi) except for the terms referred to above and subject to Section 2.23(c), to the extent the terms of any Incremental Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with those of the Tranche B Term Loans as in effect on the date of incurrence of such Incremental Loans, such differences shall be reasonably acceptable to the Administrative Agent (except for terms benefitting the Incremental Lenders (A) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders or (B) applicable only to periods after the latest Maturity Date in effect as of the date of incurrence of such Incremental Loans). In the event any Incremental Loans have the same terms as any existing Class of Loans then outstanding or any Extended/Modified Loans or Refinancing Loans then substantially concurrently established (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Incremental Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Loans or such Extended/Modified Loans or Refinancing Loans, and any scheduled Installments set forth in Section 2.11 with respect to any such Class of Loans may be increased to reflect scheduled amortization of such Incremental Loans.

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(c)The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving Pro Forma Effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom and the representations and warranties of each Credit Party set forth in the Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date; provided that, in the case of Incremental Commitments established to finance, in whole or in part, a Limited Conditionality Transaction, the conditions set forth in this clause (i) may be tested in accordance with Section 1.5 to the extent agreed by the Borrower and the Incremental Lenders providing such Incremental Commitments, all as set forth in the applicable Incremental Facility Agreement, (ii) the Administrative Agent shall have received a certificate, dated the date of effectiveness thereof and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions set forth in clause (i) above and, if such Incremental Commitments or any portion thereof are being established in reliance on clause (b) of the definition of the term “Incremental Amount”, setting forth a reasonably detailed calculation of the Incremental Amount under such clause, and (iii) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.23, including any amendments necessary to treat the applicable Incremental Commitments and Incremental Loans as a new Class of Commitments and Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share” and “Requisite Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.24 or refinanced under Section 2.25).

(d)Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents.

(e)Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Incremental Lender holding an Incremental Commitment of any Class shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.

(f)The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof.

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2.24.Extension/Modification Offers. (a) The Borrower may on one or more occasions, by written notice to the Administrative Agent, make one or more offers (each, an “Extension/Modification Offer”) to all the Lenders of any Class (each Class subject to such an Extension/Modification Offer being referred to as an “Extension/Modification Request Class”), on the same terms and conditions, and on a pro rata basis, to each Lender within any Extension/Modification Request Class, to make one or more Extension/Modification Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions of the requested Extension/Modification Permitted Amendment and (ii) the date on which such Extension/Modification Permitted Amendment is requested to become effective (which shall not be less than five Business Days or more than 60 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Extension/Modification Permitted Amendments shall become effective only with respect to the Loans of the Lenders of the Extension/Modification Request Class that accept the applicable Extension/Modification Offer (such Lenders, the “Extending/Modifying Lenders”) and, in the case of any Extending/Modifying Lender, only with respect to such Lender’s Loans of such Extension/Modification Request Class as to which such Lender’s acceptance has been made. Any Extended/Modified Loans shall constitute a separate Class of Loans from the Extension/Modification Request Class from which they were converted and, in the event any Extended/Modified Loans have the same terms as any existing Class of Loans then outstanding or any Incremental Loans or Refinancing Loans then substantially concurrently established (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Extended/Modified Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Loans or such Incremental Loans or Refinancing Loans, and any scheduled Installments set forth in Section 2.11 with respect to any such Class of Loans may be increased to reflect scheduled amortization of such Extended/Modified Loans. The Extension/Modification Offer shall not be required to be in any minimum amount or any minimum increment, provided that the Borrower may, at its option and subject to its right to waive any such condition in its sole discretion, specify as a condition to the effectiveness of any Extension/Modification Permitted Amendment that a minimum amount, as specified in the Extension/Modification Offer, of Loans of the Extension/Modification Request Class consent thereto. The Borrower may amend, revoke or replace any Extension/Modification Offer at any time prior to the effectiveness of the applicable Extension/Modification Agreement. In connection with any Extension/Modification Offer, the Borrower shall agree to such procedures, if any, as may be reasonably established by, or acceptable to, the Administrative Agent to accomplish the purposes of this Section 2.24.

(b)An Extension/Modification Permitted Amendment shall be effected pursuant to an Extension/Modification Agreement executed and delivered by the Borrower, each applicable Extending/Modifying Lender and the Administrative Agent; provided that no Extension/Modification Permitted Amendment shall become effective unless the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension/Modification Agreement. Each Extension/Modification Agreement may, without the consent of any Lender other than the applicable Extending/Modifying Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.24, including (i) a reduction to any scheduled Installments set forth in Section 2.11 with respect to Loans of the Extension/Modification Request Class to reflect the treatment of the Extended/Modified Loans as a new Class of Loans (it being understood that the amount of any scheduled amortization payable to any non-Extending/Modifying Lender with respect to its Loans of the Extension/Modification Request Class shall not be reduced as a result thereof) and (ii) any amendments necessary to treat the applicable Loans of the Extending/Modifying Lenders as a new “Class” of loans hereunder (including for purposes of prepayments and voting) (it being agreed that such new Class of Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share” and “Requisite Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5).

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2.25.Refinancing Facilities. (a) The Borrower may, on one or more occasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Classes of term loan commitments (the “Refinancing Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Lender”) will make term loans to the Borrower (the “Refinancing Loans”). Each such notice shall specify (i) the date on which the Borrower proposes that the Refinancing Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (ii) the amount of the Refinancing Commitments requested to be established and (iii) the identity of each Person proposed to become a Refinancing Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Refinancing Commitment may elect or decline, in its sole discretion, to provide such Refinancing Commitment and (y) any Person that the Borrower proposes to be a Refinancing Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed)).

(b)The terms and conditions of any Refinancing Commitments and the Refinancing Loans to be made thereunder shall be as determined by the Borrower and the applicable Refinancing Lenders and set forth in the applicable Refinancing Facility Agreement; provided that (i) the Refinancing Maturity Date of such Refinancing Loans shall not be earlier than the Maturity Date of the Class of Loans being refinanced, (ii) the weighted average life to maturity of such Refinancing Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Loans being refinanced (and, for purposes of determining the weighted average life to maturity of such Class of Loans being refinanced, the effects of any prepayments made prior to the date of the determination shall be disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Refinancing Loans shall be determined by the Borrower and the applicable Refinancing Lenders, (iii) in the case of any partial refinancing of the Tranche B Term Loans, the Weighted Average Yield with respect to such Refinancing Loans, determined as of the date of incurrence of such Refinancing Loans, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans to remain outstanding after such refinancing is increased, or fees to Lenders then holding the Tranche B Term Loans to remain outstanding after such refinancing are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to remain outstanding after such refinancing to equal the Weighted Average Yield with respect to such Refinancing Term Loans minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (iv) any Refinancing Loans may participate in any mandatory prepayments hereunder on a pro rata basis (or on a basis that is less than pro rata) with the other Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the other Loans, (v) any Refinancing Commitments and Refinancing Loans made thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Loans and Commitments hereunder, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties, and (vi) except for the terms referred to above, to the extent the terms of any Refinancing Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with those of the Class of Loans being refinanced, such differences shall be reasonably acceptable to the Administrative Agent (except for terms benefitting the Refinancing Lenders (A) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders or (B) applicable only to periods after the latest Maturity Date in effect as of the date of incurrence of such Refinancing Loans); provided further that clauses (i), (ii) and (vi) shall not apply if, at the time of the incurrence of such Refinancing Loans and after giving effect to the application of the proceeds thereof, such Refinancing Loans shall be the sole Class of Loans outstanding under this Agreement. In the event any Refinancing Loans have the same terms as any existing Class of Loans then outstanding or any Incremental Loans or Extended/Modified Loans then substantially concurrently established (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Refinancing Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Loans or such Incremental Loans or Extended/Modified Loans, and any scheduled Installments set forth in Section 2.11 with respect to any such Class of Loans may be increased to reflect scheduled amortization of such Refinancing Loans.

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(c)The Refinancing Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Lender providing such Refinancing Commitments and the Administrative Agent; provided that no Refinancing Commitments shall become effective unless (i) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection therewith, (ii) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Loans thereunder and shall repay or prepay then outstanding Borrowings of any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Borrowings, any original issue discount or upfront fees applicable to such Refinancing Loans and any reasonable fees, premium and expenses relating to such refinancing) and (iii) any such prepayment of Borrowings of any Class shall, if Loans of such Class are subject to scheduled amortization of principal, be applied to reduce any subsequent Installments to be made pursuant to Section 2.11 with respect to Borrowings of such Class on a pro rata basis (in accordance with the principal amounts of such Installments) and, in the case of a prepayment of Eurodollar Rate Borrowings, shall be subject to Section 2.17(c). Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.25, including any amendments necessary to treat the applicable Refinancing Commitments and Refinancing Loans as a new Class of Commitments or Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share” and “Requisite Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Loans to be extended under Section 2.24 or refinanced under this Section 2.25).

(d)Upon the effectiveness of a Refinancing Commitment of any Refinancing Lender, such Refinancing Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents.

(e)The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.25(a) and of the effectiveness of any Refinancing Commitments, in each case advising the Lenders of the details thereof.

SECTION 3.CONDITIONS PRECEDENT

3.1.Closing Date. This Agreement and the obligation of each Lender to make any Credit Extension shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 10.5):

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(a)Credit Agreement. The Administrative Agent shall have received from the Borrower and each Designated Subsidiary (including the Acquired Company and each of its Subsidiaries that is a Designated Subsidiary) and each other party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile or electronic image scan transmission) that such party has signed a counterpart of this Agreement.

(b)Organizational Documents; Incumbency. The Administrative Agent shall have received, in respect of the Borrower and each Designated Subsidiary (including the Acquired Company and each of its Subsidiaries that is a Designated Subsidiary), a certificate of such Person (or, in the case of a partnership, its general partner), dated the Closing Date and executed by the secretary or an assistant secretary or manager of such Person, attaching (i) a copy of each Organizational Document of such Person, which shall be certified as of the Closing Date or a recent date prior thereto by the appropriate Governmental Authority, (ii) signature and incumbency certificates of the officers/manager or general partner of such Person executing each Credit Document, (iii) resolutions of the Board of Managers, Board of Directors or similar governing body of such Person approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, certified as of the Closing Date by such secretary or assistant secretary or manager as being in full force and effect without modification or amendment, and (iv) a good standing certificate from the applicable Governmental Authority of such Person’s jurisdiction of organization, dated the Closing Date or a recent date prior thereto.

(c)Closing Date Refinancing. The Closing Date Refinancing shall have been consummated or shall be consummated substantially simultaneously with the initial funding of Loans on the Closing Date, and the Administrative Agent shall have received customary payoff letters with respect thereto or other evidence thereof reasonably satisfactory to the Administrative Agent and the Arrangers.

(d)Collateral and Guarantee Requirement. Subject to the final paragraph of this Section 3.1, the Collateral and Guarantee Requirement shall have been satisfied. The Collateral Agent shall have received a completed Collateral Questionnaire in form and substance reasonably satisfactory to the Collateral Agent and the Arrangers, dated the Closing Date and executed by an Authorized Officer of each of the Borrower and the Acquired Company, together with all attachments contemplated thereby, including the results of a search of the UCC (or equivalent) filings made with respect to the Credit Parties in the jurisdictions contemplated by the Collateral Questionnaire and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Collateral Agent and the Arrangers that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or substantially contemporaneously with the initial funding of Loans on the Closing Date will be, released.

(e)Evidence of Insurance. Subject to the final paragraph of this Section 3.1, the Collateral Agent shall have received a certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to the Collateral Agent and the Arrangers that the insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with customary endorsements naming the Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 5.5.

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(f)Opinions of Counsel. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated the Closing Date) of each of (i) Kelley Drye & Warren LLP, counsel for the Credit Parties, (ii) Kelley Drye & Warren LLP, regulatory counsel for the Credit Parties, (iii) Jones Day, Georgia counsel for the Credit Parties, and (iv) Spencer Fane LLP, Kansas counsel for the Credit Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers (and each Credit Party hereby instructs such counsel to deliver such opinion to the Administrative Agent).

(g)Fees and Expenses. The Borrower shall have paid to the Arrangers, the Administrative Agent and the Lenders all fees and expenses (including legal fees and expenses and recording fees) and other amounts due and payable on or prior to the Closing Date pursuant to the Credit Documents, the Engagement Letter and the Fee Letters.

(h)Solvency Certificate. The Administrative Agent shall have received the Solvency Certificate, dated the Closing Date and signed by the chief financial officer of the Borrower.

(i)Closing Date Certificate. The Administrative Agent shall have received the Closing Date Certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, together with all attachments thereto.

(j)Letter of Direction. The Administrative Agent and Goldman Sachs, as an Arranger, shall have received a duly executed letter of direction from the Borrower addressed to Goldman Sachs, as an Arranger, directing the disbursement on the Closing Date of the proceeds of the Loans to be made on such date.

(k)PATRIOT Act. At least five days prior to the Closing Date, the Lenders and the Administrative Agent shall have received all documentation and other information (including with respect to the Acquired Company and its Subsidiaries) required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.

(l)Consummation of the Merger. The Merger shall have been (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall be) consummated, pursuant to and on the terms set forth in the Merger Agreement. The Arrangers shall have received a copy of the Merger Agreement (including a copy of the Acquired Company Indemnity Letter Agreement), together with all closing deliverables thereunder, certified by an Authorized Officer of the Borrower as complete and correct.

(m)Distribution of the Consumer/SMB Business. The Consumer/SMB Business shall have been (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall be) distributed by the Acquired Company, pursuant to and on the terms set forth in the Merger Agreement. The Arrangers shall have received a copy of the definitive agreements relating to the distribution of the Consumer/SMB Business, together with all closing deliverables thereunder, certified by an Authorized Officer of the Acquired Company as complete and correct.

(n)Fusion Global Transactions. The Borrower shall have consummated (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall consummate) the Fusion Global Arrangement, pursuant to and on the terms set forth in the Merger Agreement. The Arrangers shall have received a copy of the definitive agreements relating to the Fusion Global Arrangement, together with all closing deliverables thereunder, certified by an Authorized Officer of the Borrower as complete and correct.

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(o)Subordinated Notes Issuance or Amendment. The Borrower shall have received (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall receive) gross cash proceeds of not less than $10,000,000 from the issuance of the New Subordinated Note. The Existing Subordinated Notes shall have been (or substantially concurrently with funding of the Tranche B Term Loans on the Closing Date shall be) amended and restated to, among other things, provide that the Existing Subordinated Notes are subordinated in right of payment to the Obligations and all Permitted Section 6.1(e) Indebtedness, Permitted Credit Agreement Refinancing Indebtedness and Permitted Incremental Equivalent Indebtedness (in each case, other than Subordinated Indebtedness) of the Borrower or any Guarantor Subsidiary, as applicable, in a manner reasonably satisfactory to the Arrangers. The Administrative Agent shall have received a copy of the Permitted Subordinated Indebtedness Documents with respect to the Subordinated Notes, certified by an Authorized Officer of the Borrower as complete and correct, and the terms and conditions of the Subordinated Notes, and the provisions of the Permitted Subordinated Indebtedness Documents with respect thereto, shall be reasonably satisfactory to the Arrangers.

(p)Closing Date Common Equity Issuance. The Closing Date Common Equity Issuance shall have occurred (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall occur), and the Borrower shall have received (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall receive) gross cash proceeds of not less than $4,999,998.50 therefrom. The Arrangers shall have received a copy of the definitive agreements relating to the Closing Date Common Equity Issuance, together with all closing deliverables thereunder, certified by an Authorized Officer of the Borrower as complete and correct.

(q)Closing Date Preferred Equity Issuance. The Borrower shall have issued and sold (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall issue and sell) the Closing Date Preferred Stock to Holcombe T. Green, Jr. (or an entity majority-owned and Controlled by Holcombe T. Green, Jr.), and the Borrower shall have received (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall receive) gross cash proceeds of not less than $14,700,000 therefrom. The Arrangers shall have received a copy of the definitive agreements relating to the Closing Date Preferred Stock, together with all closing deliverables relating thereto, all of which shall be in form and substance reasonably satisfactory to the Arrangers and certified by an Authorized Officer of the Borrower as complete and correct.

(r)Escrow Cash Collateral Arrangement. The Borrower shall have established the Escrow Cash Collateral Account (i) in which the Escrow Cash Collateral in an amount equal to the Escrow Cash Amount shall have been (or substantially concurrently with the funding of the Tranche B Term Loans on the Closing Date shall be) deposited to be held as cash collateral securing the Obligations pending release as contemplated by Section 9.8(d)(ii) and (ii) that is subject to the Escrow Cash Collateral Control Agreement, pursuant to which the Escrow Cash Collateral shall be subject to the sole control and dominion of the First Lien Representative (as defined in the Intercreditor Agreement), including as gratuitous bailee and gratuitous agent for the Collateral Agent in accordance with the terms of the Intercreditor Agreement.

Each Lender, by delivering its signature page to this Agreement, and funding its Loans on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, the Requisite Lenders or any other Lenders, as applicable, on the Closing Date.

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Notwithstanding the foregoing, solely with respect to the matters expressly identified in the Post-Closing Letter Agreement, the satisfaction by the Credit Parties of the foregoing conditions shall not be required on the Closing Date, and shall not be a condition to the making of the Credit Extensions on the Closing Date, but shall be required to be accomplished in accordance with the Post-Closing Letter Agreement.

3.2.Each Credit Extension. The obligation of each Lender to make any Credit Extension on any Credit Date, including the Closing Date, is subject to the satisfaction (or waiver in accordance with Section 10.5) of the following conditions precedent (it being understood and agreed that, in the case of any Loans the proceeds of which are intended to be applied to finance a Limited Conditionality Transaction, the conditions precedent set forth in clauses (b) and (c) below may be satisfied as of the applicable LCT Test Date in accordance with Section 1.5):

(a)the Administrative Agent shall have received a fully completed and executed Funding Notice;

(b)the representations and warranties of each Credit Party set forth in the Credit Documents shall be true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (ii) otherwise, in all material respects, in each case on and as of such Credit Date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date; and

(c)at the time of and immediately after giving effect to such Credit Extension, no Default or Event of Default shall have occurred and be continuing or would result therefrom.

On the date of any Credit Extension, the Borrower shall be deemed to have represented and warranted that the conditions specified in Sections 3.2(b) and 3.2(c) have been satisfied.

SECTION 4.REPRESENTATIONS AND WARRANTIES

In order to induce the Agents and the Lenders to enter into this Agreement and to make each Credit Extension to be made thereby, each Credit Party represents and warrants to each Agent and each Lender on the Closing Date and on each Credit Date as follows:

4.1.Organization; Requisite Power and Authority; Qualification. Each of the Borrower and the Restricted Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) has all requisite power and authority (i) to own and operate its properties and to carry on its business and operations as now conducted and (ii) in the case of the Credit Parties, to execute and deliver the Credit Documents to which it is a party and to perform the other Transactions to be performed by it and (c) is qualified to do business and in good standing under the laws of every jurisdiction where its assets are located or where such qualification is necessary to carry out its business and operations, except, in each case referred to in clauses (a) (other than with respect to the Borrower), (b)(i) and (c), where the failure so to be or so to have, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

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4.2.Equity Interests and Ownership. Schedule 4.2 sets forth, as of the Closing Date, the name and jurisdiction of organization of, and the percentage of each class of Equity Interests owned by the Borrower or any Subsidiary in, (a) each Subsidiary and (b) each joint venture and other Person in which the Borrower or any Subsidiary owns any Equity Interests, and identifies each Designated Subsidiary and each Material Subsidiary. The Equity Interests owned by any Credit Party in any Subsidiary have been duly authorized and validly issued and, to the extent such concept is applicable, are fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the Closing Date (i) there are no Equity Interests in any Restricted Subsidiary outstanding that upon exercise, conversion or exchange would require the issuance by any Restricted Subsidiary of any additional Equity Interests or other Securities exercisable for, convertible into, exchangeable for or evidencing the right to subscribe for or purchase any Equity Interests in any Restricted Subsidiary and (ii) there are no existing options, warrants, calls, rights, commitments or other agreements to which the Borrower or any Restricted Subsidiary is a party requiring the issuance by any Restricted Subsidiary of any additional Equity Interests or other Securities exercisable for, convertible into, exchangeable for or evidencing the right to subscribe for or purchase any Equity Interests in any Restricted Subsidiary.

4.3.Due Authorization. The Transactions to be entered into by each Credit Party have been duly authorized by all necessary corporate or other organizational and, if required, stockholder, shareholder or other equityholder action on the part of such Credit Party.

4.4.No Conflict. The Transactions do not and will not (a) violate any applicable law, including any order of any Governmental Authority, except to the extent any such violation, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (b) violate the Organizational Documents of the Borrower or any Restricted Subsidiary, (c) violate or result (alone or with notice or lapse of time, or both) in a default under any Contractual Obligation of the Borrower or any Restricted Subsidiary, or give rise to a right thereunder to require any payment, repurchase or redemption to be made by the Borrower or any Restricted Subsidiary, or give rise to a right of, or result in, any termination, cancelation or acceleration or right of renegotiation of any obligation thereunder, except to the extent any such violation, default, right or result, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, or (d) except for Liens created under the Credit Documents or the First Lien Credit Documents, result in or require the creation or imposition of any Lien on any asset of the Borrower or any Restricted Subsidiary.

4.5.Governmental Approvals. The Transactions do not and will not require any registration with, consent or approval of, notice to, or other action by any Governmental Authority, except (a) such as have been obtained or made and are in full force and effect, (b) filings and recordings with respect to the Collateral necessary to perfect Liens created under the Credit Documents or the First Lien Credit Documents and (c) filings and registrations under applicable securities laws relating to the Disposition by the Collateral Agent pursuant to the Pledge and Security Agreement of Collateral that constitute Securities.

4.6.Binding Obligation. Each Credit Document has been duly executed and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

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4.7.Historical Financial Statements; Projections; Pro Forma Financial Statements. (a) The Historical Borrower Financial Statements were prepared in conformity with GAAP and present fairly, in all material respects, the consolidated financial position of the Borrower and its Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of the Borrower and its Subsidiaries for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from normal year-end audit adjustments and the absence of footnotes. The Historical Acquired Company Financial Statements were prepared in conformity with GAAP and present fairly, in all material respects, the consolidated financial position of the Acquired Company and its Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of the Acquired Company and its Subsidiaries for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnotes. As of the Closing Date, neither the Borrower nor any Subsidiary has any contingent liability or liability for Taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the Historical Borrower Financial Statements, the Historical Acquired Company Financial Statements or the notes thereto and that, in any such case, is material in relation to the business, operations, assets or financial condition of the Borrower and the Subsidiaries, taken as a whole.

(b)The Projections have been prepared in good faith based upon assumptions that were believed by the Borrower to be reasonable at the time made, it being understood and agreed that the Projections are not a guarantee of financial performance and actual results may differ therefrom and such differences may be material.

(c)The Pro Forma Financial Statements (i) have been prepared by the Borrower in good faith based on assumptions that were believed by the Borrower to be reasonable at the time made and are believed by the Borrower to be reasonable on the Closing Date, (ii) accurately reflect in all material respects all adjustments necessary to give effect to the Transactions as contemplated by such Pro Forma Financial Statements and (iii) present fairly, in all material respects, the pro forma financial position and results of operations of the Borrower and the Subsidiaries as of the date and for the period stated therein as if the Transactions as contemplated by such Pro Forma Financial Statements had occurred on such date or at the beginning of such period, as the case may be.

4.8.No Material Adverse Effect. Since December 31, 2017, there has been no event or condition that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

4.9.Adverse Proceedings. There are no Adverse Proceedings that (a) individually or in the aggregate would reasonably be expected to have a Material Adverse Effect or (b) in any manner question the validity or enforceability of any of the Credit Documents or otherwise involve any of the Credit Documents or the Transactions.

4.10.Payment of Taxes. Except as otherwise permitted under Section 5.3, all Tax returns and reports of the Borrower and its Subsidiaries required to be filed by any of them have been timely filed, and all Taxes shown on such Tax returns to be due and payable, and all assessments, fees and other governmental charges upon the Borrower and the Subsidiaries and upon their properties, income, businesses and franchises that are due and payable, have been paid when due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books reserves with respect thereto to the extent required by GAAP or (b) to the extent that the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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4.11.Properties. (a) Title. The Borrower and each Restricted Subsidiary has (i) good, sufficient and marketable title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), (iii) valid licensed rights in (in the case of licensed interests in Intellectual Property) and (iv) good title to (in the case of all other personal property) all of their material assets reflected in the Historical Borrower Financial Statements or the Historical Acquired Company Financial Statements, as applicable, or, after the first delivery thereof, in the consolidated financial statements of the Borrower most recently delivered pursuant to Section 5.1, in each case except for assets disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted by this Agreement (including the Fusion Global Arrangement and the distribution of the Consumer/SMB Business) and except for Permitted Liens and defects that, individually or in the aggregate, do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Restricted Subsidiary.

(b)Real Estate. Set forth on Schedule 4.11(b) is true and complete list, as of the Closing Date, of all Real Estate Assets owned in fee by any Credit Party, identifying each Material Real Estate Asset, if any, and the proper jurisdiction for the filing of a Mortgage in respect thereof.

(c)Intellectual Property. The Borrower and each Restricted Subsidiary owns, or is licensed to use, all Intellectual Property that is necessary for the conduct of its business as currently conducted, and without conflict with the rights of any other Person, except to the extent any such conflict, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No Intellectual Property used by the Borrower or any Restricted Subsidiary in the operation of its business infringes upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any Intellectual Property owned or used by the Borrower or any Restricted Subsidiary is pending or, to the knowledge of the Borrower or any Restricted Subsidiary, threatened in writing against the Borrower or any Restricted Subsidiary that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

4.12.Environmental Matters. Except with respect to any matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any Subsidiary (a) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (b) has become subject to any Environmental Liability, (c) has received notice of any claim with respect to any Environmental Liability or (d) knows of any basis for any Environmental Liability.

4.13.No Defaults. No Default or Event of Default has occurred and is continuing.

4.14.Investment Company Act. None of the Credit Parties is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.

4.15.Federal Reserve Regulations. (a) None of the Borrower or the Subsidiaries is engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.

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(b)No portion of the proceeds of any Credit Extension will be used, directly or indirectly, for any purpose that entails a violation (including on the part of any Lender) of any of the regulations of the Board of Governors, including Regulations U and X. Not more than 25% of the value of the assets of the Borrower and the Restricted Subsidiaries subject to any restrictions on the sale, pledge or other Disposition of assets under this Agreement, any other Credit Document or any other agreement to which any Lender or Affiliate of a Lender is party will at any time be represented by Margin Stock.

4.16.Employee Benefit Plans. The Borrower, each Restricted Subsidiary and each of their respective ERISA Affiliates is in compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder with respect to each Employee Benefit Plan, and has performed all its obligations under each Employee Benefit Plan, except where such failure to comply or perform, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each Employee Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter or opinion letter from the IRS indicating that such Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such determination letter or opinion letter which would cause such Employee Benefit Plan to lose its qualified status. No liability to the PBGC (other than required premium payments), the IRS, any Employee Benefit Plan or any trust established under Title IV of ERISA has been or is expected to be incurred by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No ERISA Event or Foreign Plan Event has occurred or is reasonably expected to occur, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates. The present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or contributed to by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates (determined as of the end of the most recent plan year on the basis of assumptions used for purposes of Accounting Standards Codification Topic 715), did not exceed the aggregate current value of the assets of such Pension Plan. As of the most recent valuation date for each Multiemployer Plan for which the actuarial report is available, the potential liability of the Borrower, the Restricted Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e) of ERISA is zero. The Borrower, each Restricted Subsidiary and each of their respective ERISA Affiliates is not in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan. None of the Borrower or any of its Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA).

4.17.Solvency. On the Closing Date (after giving effect to the borrowing of the Tranche B Term Loans hereunder and the other Transactions to occur on such date), the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.

4.18.Compliance with Laws. The Borrower and each Subsidiary is in compliance with all applicable laws, including all orders and other restrictions imposed by any Governmental Authority, in respect of the conduct of its business and the ownership and operation of its properties (including compliance with all applicable Environmental Laws), except where such failure to comply, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

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4.19.Disclosure. None of the Lender Presentation, any other documents, certificates or statements or any other written information (other than financial projections (including financial estimates, budgets, forecasts and other forward-looking information) and information of general economic or industry-specific nature) furnished to any Arranger, any Agent or any Lender by or on behalf of the Borrower or any Subsidiary in connection with the negotiation of or pursuant to this Agreement or any other Credit Document or otherwise in connection with the transactions contemplated hereby or thereby, when taken as a whole, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which they were made (after giving effect to all supplements theretofore provided); provided that, with respect to financial projections, financial estimates, budgets, forecasts and other forward-looking information, the Credit Parties represent only that such information was prepared in good faith based upon estimates and assumptions believed by the Credit Parties to be reasonable at the time such information is so furnished (it being understood that such information is not a guarantee of financial or other performance and actual results may differ therefrom and that such differences may be material). There are no facts known to the Borrower or any Subsidiary (other than matters of a general economic or industry-specific nature) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and that have not been disclosed in such documents, certificates, statements or other information.

4.20.Collateral Matters. (a) The Pledge and Security Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral (as defined therein) and (i) when the Collateral (as defined therein) constituting certificated securities (as defined in the UCC) is delivered to the Collateral Agent (or its gratuitous bailee) without “notice of any adverse claims” (all within the meaning of the UCC), together with instruments of transfer duly endorsed in blank, the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the pledgors thereunder in such Collateral, prior and superior in right to any other Person (subject to the Intercreditor Agreement, any other Senior Lien Intercreditor Agreement and any Pari Passu Intercreditor Agreement), and (ii) when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the remaining Collateral (as defined therein) to the extent perfection can be obtained by filing UCC financing statements, prior and superior in right to any other Person, but subject to Permitted Liens.

(b)Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right, title and interest in and to the Real Estate Asset subject thereto and the proceeds thereof, and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute fully perfected security interests in all right, title and interest of the mortgagors in the Real Estate Assets subject thereto and the proceeds thereof, prior and superior in right to any other Person, but subject to the Permitted Liens.

(c)Upon the recordation of the Intellectual Property Security Agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in Section 4.20(a), the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the Intellectual Property in which a security interest may be perfected by filing in the United States Patent and Trademark Office or United States Copyright Office, in each case prior and superior in right to any other Person, but subject to Permitted Liens (it being understood that subsequent recordings in the United States Patent and Trademark Office or the United States Copyright Office may be necessary to perfect a security interest in such Intellectual Property acquired by the Credit Parties after the Closing Date).

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(d)Each Collateral Document, other than any Collateral Document referred to in the preceding paragraphs of this Section 4.20, upon execution and delivery thereof by the parties thereto and the making of the filings and taking of the other actions provided for therein, will be effective under applicable law to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral subject thereto, and will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the Collateral subject thereto to the extent perfection may be achieved by making the filings and taking the other actions provided for therein, prior and superior to the rights of any other Person, except for rights secured by Permitted Liens.

4.21.Sanctioned Persons; Anti-Corruption Laws; PATRIOT Act. None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower or any Subsidiary, employees, agents or Affiliates is a Sanctioned Person or otherwise the subject of any sanctions or economic embargoes administered or enforced by the US Department of State or the US Department of Treasury (including OFAC), the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Laws”). Each of the Borrower and its Subsidiaries and their respective directors, officers, and, to the knowledge of the Borrower or any Subsidiary, employees, agents or Affiliates is in compliance, in all material respects, with (a) all Sanctions Laws, (b) the United States Foreign Corrupt Practices Act of 1977, the Bribery Act 2010 of the United Kingdom and any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “Anti-Corruption Laws”) and (c) the PATRIOT Act and any other applicable terrorism and money laundering laws, rules, regulations and orders. No part of the proceeds of the Loans will be used, directly or indirectly, (i) for the purpose of financing any activities or business of or with any Person or in any country or territory that at such time is the subject of any Sanctions, (ii) 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 (iii) in any manner that would result in the violation of any Sanctions Laws applicable to any party hereto.

4.22.Communications Regulatory Matters.

(a)The businesses of the Borrower and its Subsidiaries are being conducted in compliance with all Communications Laws, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Borrower and the Restricted Subsidiaries possess all Licenses required to conduct their businesses in the ordinary course, and all such Licenses are in full force and effect.

(b)There is no condition, event or occurrence existing, nor, to the knowledge of the Borrower or any Subsidiary, is there any proceeding being conducted or threatened by any Governmental Authority, which would reasonably be expected to cause the termination, revocation, forfeiture, suspension, cancellation, adverse modification or non-renewal of any of the Licenses held by the Borrower or any Subsidiary, or the imposition of any penalty or fine by any Governmental Authority with respect to any such Licenses or the Borrower or any Subsidiary, in each case which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

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(c)There is no (i) outstanding decree, decision, judgment, or order that has been issued by the FCC or a State PUC against the Borrower or any Subsidiary or any License held by the Borrower or any Subsidiary or (ii) notice of violation, order to show cause, complaint, investigation, inquiry or other administrative or judicial proceeding pending or, to the knowledge of the Borrower or any Subsidiary, threatened by or before the FCC or a State PUC against the Borrower, any Subsidiary or any License held by the Borrower or any Subsidiary that, assuming an unfavorable decision, ruling or finding, in the case of each of (i) or (ii) above, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(d)Each of the Borrower and the Subsidiaries have filed with the FCC and State PUCs all necessary reports, documents, instruments, information or applications required to be filed pursuant to the Communications Laws, and have paid all fees, assessments and other charges required to be paid pursuant to the Communications Laws, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(e)Except as has been obtained or will be obtained prior to the Closing Date, no consent, approval, authorization, order or waiver of, or filing with, the FCC, the State PUCs or any other Governmental Authority is required under the Communications Laws to be obtained or made by the Borrower or any Subsidiary for (i) the execution, delivery and performance of this Agreement or the other Credit Documents or (ii) the consummation of the Merger and the other Transactions.

SECTION 5.AFFIRMATIVE COVENANTS

Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, each Credit Party covenants and agrees with the Agents and the Lenders that:

5.1.Financial Statements and Other Reports. The Borrower will deliver to the Administrative Agent and, where applicable, to the Lenders:

(a)Annual Financial Statements. Commencing with the Fiscal Year ending December 31, 2018, as soon as available, and in any event within 95 days after the end of each Fiscal Year, the consolidated balance sheet of the Borrower and the Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of operations, stockholders’ equity and cash flows of the Borrower and the Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, together with a report thereon of EisnerAmper LLP or an independent registered public accounting firm of recognized national standing (which report shall not contain a “going concern” or like statement, qualification, exception or emphasis or any qualification, exception or emphasis as to the scope of audit, provided that such report may contain a “going concern” statement solely as a result of an impending maturity within 12 months of any Loans or any Permitted Section 6.1(e) Indebtedness, Permitted Credit Agreement Refinancing Indebtedness or Permitted Incremental Equivalent Indebtedness or any prospective (but not actual) failure to comply with Section 6.7(a) or any financial maintenance covenant set forth in any Permitted Section 6.1(e) Indebtedness Documents in respect of any Permitted Senior Lien Secured Indebtedness), and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Borrower and its Subsidiaries as of the dates indicated and the consolidated results of operations and cash flows of the Borrower and its Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accounting firm in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;

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(b)Quarterly Financial Statements. Commencing with the first such Fiscal Quarter ending after the Closing Date, as soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of the Borrower and the Subsidiaries as of the end of such Fiscal Quarter and the related consolidated statements of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter (in the case of such statements of operations) and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, together with a Financial Officer Certification with respect thereto;

(c)Compliance Certificate and Unrestricted Subsidiary Reconciliation Statements. Together with each delivery of the consolidated financial statements of the Borrower and its Subsidiaries pursuant to Section 5.1(a) or 5.1(b), a completed Compliance Certificate executed by the chief financial officer of the Borrower and, if any Subsidiary shall be an Unrestricted Subsidiary, with respect to each such financial statement an Unrestricted Subsidiary Reconciliation Statement (which may be in a footnote form), which shall be accompanied by a Financial Officer Certification;

(d)Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in GAAP or in the application thereof since the date of the most recent balance sheet delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the first such delivery, since December 31, 2017), the consolidated financial statements of the Borrower delivered pursuant to Section 5.1(a) or 5.1(b) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such Section had no such change occurred, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation specifying in reasonable detail the effect of such change on such financial statements, including those for the prior period;

(e)Notice of Default and Material Adverse Effect. Promptly upon any officer of the Borrower or any Restricted Subsidiary obtaining knowledge of any event or condition set forth below, a certificate of an Authorized Officer of the Borrower setting forth the details of such event or condition and any action the Borrower or any Restricted Subsidiary has taken, is taking or proposes to take with respect thereto:

(i)the occurrence of any Default or Event of Default; or

(ii)any event or condition that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(f)Notice of Adverse Proceedings. Promptly upon any officer of the Borrower or any Restricted Subsidiary obtaining knowledge of (i) any Adverse Proceeding that would reasonably be expected to have a Material Adverse Effect or that in any manner questions the validity or enforceability of any of the Credit Documents or otherwise involves any of the Credit Documents or (ii) any material and adverse development in any Adverse Proceeding referred to in clause (i) above, in each case where such development has not previously been disclosed in writing by the Borrower to the Administrative Agent and the Lenders, a certificate of an Authorized Officer of the Borrower setting forth the details of such Adverse Proceeding or development;

(g)[Reserved];

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(h)Employee Benefit Plans. (i) Promptly upon any officer of the Borrower or any Restricted Subsidiary obtaining knowledge of the occurrence of any ERISA Event or Foreign Plan Event, a written notice specifying the nature thereof, what action the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the IRS, the Department of Labor, the PBGC or any other Governmental Authority with respect thereto; and (ii) with reasonable promptness after written request by the Administrative Agent, copies of (A) all material written notices received by the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event and (B) copies of such other material documents or governmental reports or filings relating to any Employee Benefit Plan with respect to which such ERISA Event has occurred as the Administrative Agent may reasonably request in writing;

(i)Financial Plan. As soon as available and in any event no later than 120 days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year, including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of comprehensive income and cash flows of the Borrower and the Subsidiaries for such Fiscal Year, and an explanation of the assumptions on which such forecasts are based,and (ii) forecasted consolidated statements of comprehensive income and cash flows of the Borrower and the Subsidiaries for each Fiscal Quarter of such Fiscal Year;

(j)Information Regarding Credit Parties and Collateral. Prompt written notice of any change in (i) any Credit Party’s legal name, (ii) any Credit Party’s form of organization, (iii) any Credit Party’s jurisdiction of organization, (iv) the location of the chief executive office of any Credit Party and (v) any Credit Party’s Federal Taxpayer Identification Number or state organizational identification number;

(k)Collateral Verification. Commencing with the Fiscal Year ending December 31, 2018, together with each delivery of the consolidated financial statements of the Borrower and its Subsidiaries pursuant to Section 5.1(a), a completed Supplemental Collateral Questionnaire executed by an Authorized Officer of the Borrower, together with all attachments contemplated thereby;

(l)Filed or Distributed Information. Promptly upon their becoming available, copies of all regular and periodic reports and all registration statements and prospectuses, if any, filed by the Borrower or any Restricted Subsidiary with the SEC or any Governmental Authority performing similar functions;

(m)Notice of Modifications of Permitted Section 6.1(e) Indebtedness Documents and Junior Indebtedness Documents. Promptly upon the effectiveness thereof, notice of any execution and delivery of any Permitted Section 6.1(e) Indebtedness Document or any credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Junior Indebtedness or of any amendment, waiver or other modification of any Permitted Section 6.1(e) Indebtedness Document or any such credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Junior Indebtedness, together with a copy thereof; and

(n)Other Information. Promptly after any request therefor, such other information regarding the business, operations, assets, liabilities (including contingent liabilities) and condition (financial or otherwise) of the Borrower or any Subsidiary, or compliance with the terms of any Credit Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.

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The Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed through the Platform, any document or notice that the Borrower has indicated contains Private-Side Information will not be posted on the portion of the Platform that is designated for Public Lenders, provided that the Borrower shall make any disclosure required so that each Unrestricted Subsidiary Reconciliation Statement shall be suitable for distribution to Public Lenders. The Borrower agrees to clearly designate all information provided to any Agent by or on behalf of any Credit Party that contains only Public-Side Information, and by doing so shall be deemed to have represented that such information contains only Public-Side Information. If the Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.1 contains Private-Side Information, the Administrative Agent reserves the right to post such document or notice solely on the portion of the Platform that is designated for Private Lenders.

Information required to be delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(l) shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on the Platform or shall be available on the website of the SEC at http://www.sec.gov or on the website of the Borrower at http://www.fusionconnect.com, provided, in each case, that the Borrower has notified the Administrative Agent that such information is available on such website and, if requested by the Administrative Agent, shall have provided hard copies to the Administrative Agent. Information required to be delivered pursuant to this Section 5.1 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with this Section 5.1. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.

5.2.Existence, Licenses, Etc. The Borrower and each Restricted Subsidiary will at all times preserve and keep in full force and effect (a) its existence and (b) all rights, franchises, licenses (including all Licenses) and permits necessary for the ordinary conduct of the business of the Borrower and the Restricted Subsidiaries; provided that (i) other than in the case of clause (a) above with respect to the Borrower, the foregoing shall not apply to the extent the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) the foregoing shall not prohibit any transaction permitted under Section 6.8.

5.3.Payment of Taxes. The Borrower and each Subsidiary will pay all Taxes imposed upon it or any of its properties prior to the time when any penalty or fine shall be incurred with respect thereto; provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted so long as an adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor or (b) the failure to make such payment would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

5.4.Maintenance of Properties. (a) The Borrower and each Restricted Subsidiary will maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all properties used or useful in the business of the Borrower and the Restricted Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof, in each case except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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(b)The Borrower and each Restricted Subsidiary will take all actions reasonably necessary to protect all Intellectual Property used or useful in the business of the Borrower and the Restricted Subsidiaries, including (i) protecting the secrecy and confidentiality of the confidential information and trade secrets of the Borrower and each Restricted Subsidiary by having and enforcing a policy requiring all employees, consultants, licensees, vendors and contractors to execute confidentiality agreements, (ii) taking all actions reasonably necessary to ensure that none of the trade secrets of the Borrower and any Restricted Subsidiary shall fall or has fallen into the public domain and (iii) protecting the secrecy and confidentiality of the source code of all computer software programs and applications owned or licensed by the Borrower and any Restricted Subsidiary by having and enforcing a policy requiring any licensees of such source code (including any licensees under any source code escrow agreement) to enter into license agreements with appropriate use and nondisclosure restrictions, except in each case where the failure to take any such action, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

5.5.Insurance. The Borrower and the Restricted Subsidiaries will maintain or cause to be maintained, with financially sound and reputable insurance companies, such public liability insurance, third-party property damage insurance, business interruption insurance and casualty insurance with respect to liabilities, losses or damage in respect of the assets and businesses of the Borrower and the Restricted Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in the same or similar businesses operating in the same or similar locations, in each case in such amounts (with no greater risk retention), covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Without limiting the generality of the foregoing, the Borrower and the Restricted Subsidiaries will maintain or cause to be maintained, with financially sound and reputable insurance companies, flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the Flood Program, in each case in compliance with any applicable regulations of the Board of Governors or other applicable law. Each such policy of insurance maintained by or on behalf of the Credit Parties shall (a) in the case of liability insurance policies (other than workers’ compensation and other policies for which such endorsements are not customary), name the Collateral Agent, for the benefit of the Secured Parties, as an additional insured thereunder and (b) in the case of business interruption and casualty insurance policies, contain a lender’s loss payable clause or endorsement, reasonably satisfactory in form and substance to the Collateral Agent, that names the Collateral Agent, for the benefit of the Secured Parties, as the lender’s loss payee thereunder, and shall provide that it shall not be canceled or not renewed (i) by reason of nonpayment of premium upon not less than 10 days’ prior written notice thereof by the insurer to the Collateral Agent (giving the Collateral Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason upon not less than 30 days’ (or such shorter number of days as may be agreed to by the Collateral Agent or as may be the maximum number of days permitted by applicable law) prior written notice thereof by the insurer to the Collateral Agent.

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5.6.Books and Records; Inspections. The Borrower and each Restricted Subsidiary will keep proper books of record and accounts in which full, true and correct entries in conformity in all material respects with GAAP and applicable law are made of all dealings and transactions in relation to its business and activities. The Borrower and each Restricted Subsidiary will permit the Administrative Agent or any Lender (pursuant to a request made through the Administrative Agent) (or their authorized representatives, agents or advisors) to visit and inspect any of its properties, to examine, copy and make extracts from its financial and accounting records and to discuss its business, operations, assets, liabilities (including contingent liabilities) and condition (financial or otherwise) with its officers and independent registered public accounting firm, all upon reasonable notice and at such reasonable times during normal business hours and as often as may reasonably be requested; provided, that so long as no Default or Event of Default has occurred and is continuing such visits and inspections to be limited to not more than one visit and inspection for the Administrative Agent and all Lenders (coordinated through the Administrative Agent) in any Fiscal Year.

5.7.Lenders Meetings. The Borrower will, upon the request of the Administrative Agent or the Requisite Lenders, participate in a telephonic conference with the Administrative Agent and Lenders once during each Fiscal Quarter to be held at such time as may be agreed to by the Borrower and the Administrative Agent.

5.8.Compliance with Laws. The Borrower and each Restricted Subsidiary will comply with all applicable laws (including all Environmental Laws and all orders of any Governmental Authorities), except (a) in the case of Sanctions Laws, the PATRIOT Act and other applicable anti-terrorism and money laundering laws and Anti-Corruption Laws, where failure to comply, individually or in the aggregate, is not material and (b) otherwise, where failure to comply, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

5.9.Environmental Matters. (a) Environmental Disclosure. The Borrower will deliver to the Administrative Agent and the Lenders, promptly upon the occurrence thereof, written notice describing in reasonable detail (i) any material Release required to be reported to any Governmental Authority under any applicable Environmental Laws, (ii) any remedial action taken by the Borrower, any Restricted Subsidiary or any other Person in response to any Release of Hazardous Materials Activities or any Environmental Liability that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, (iii) the Borrower or any Restricted Subsidiary obtaining knowledge of any occurrence or condition on any Material Real Estate Asset that would cause any Facility or any part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws, and (iv) any Environmental Liability involving the Borrower or any Restricted Subsidiary that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

(b)Environmental Response. The Borrower will, and will cause each Restricted Subsidiary to, take promptly any and all actions necessary to (i) cure any violation of applicable Environmental Laws by the Borrower or any Restricted Subsidiary that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (ii) make an appropriate response to any claim pursuant to Environmental Law against the Borrower or any Restricted Subsidiary and discharge any obligations it may have to any Person thereunder where failure to do so would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

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5.10.Subsidiaries. If any Person becomes a Restricted Subsidiary of the Borrower (or any Subsidiary of the Borrower not theretofore a Designated Subsidiary becomes a Designated Subsidiary, including as a result of a designation of any Unrestricted Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Material Subsidiary), the Borrower will, as promptly as practicable, and in any event within 30 days (or such longer period as the Administrative Agent may agree to in writing), notify the Administrative Agent in writing thereof and cause the Collateral and Guarantee Requirement to be satisfied with respect to such Restricted Subsidiary (if such Restricted Subsidiary is a Designated Subsidiary) and with respect to any Equity Interests in or Indebtedness of such Restricted Subsidiary owned by any Credit Party.

5.11.Additional Collateral. The Borrower will furnish to the Administrative Agent prompt written notice of (a) the acquisition by any Credit Party of a Material Real Estate Asset after the Closing Date and (b) the acquisition by any Credit Party of any other material assets (other than any assets constituting Excluded Property) after the Closing Date, other than any such assets constituting Collateral under the Collateral Documents in which the Collateral Agent shall have a valid, legal and perfected security interest (with the priority contemplated by the applicable Collateral Document) upon the acquisition thereof. The Borrower will, as promptly as practicable and in any event within 60 days (or such longer period as the Administrative Agent may agree to in writing), cause the requirements of clause (g) of the Collateral and Guarantee Requirement to be satisfied with respect to such Material Real Estate Asset.

5.12.Further Assurances. Each Credit Party will execute any and all further documents, financing statements, agreements and instruments, and take any and all further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents), that may be required under any applicable law, or that the Administrative Agent or the Collateral Agent may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied at all times (to the extent applicable, subject to the grace periods set forth in Sections 5.10 and 5.11) or otherwise to effectuate the provisions of the Credit Documents, all at the expense of the Credit Parties. The Borrower will provide to the Administrative Agent and the Collateral Agent, from time to time upon request, evidence reasonably satisfactory to the Administrative Agent or the Collateral Agent, as applicable, as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents.

5.13.Maintenance of Ratings. The Borrower will use commercially reasonable efforts to maintain continuously a public corporate family rating (or comparable public ratings) from Moody’s and a public corporate credit rating (or comparable public rating) from S&P, in each case in respect of the Borrower, and a public credit rating from each of Moody’s and S&P in respect of the Tranche B Term Loans (in each case, with no requirement as to any minimum rating).

5.14.Use of Proceeds. (a) The Borrower and the other Restricted Subsidiaries will use the proceeds of the Loans made hereunder solely for the purposes set forth in Section 2.5 and in compliance with Section 4.15(b).

(b)The Borrower will not request any Loans and no part of the proceeds of the Loans will be used, directly or indirectly, (i) for the purpose of financing any activities or business of or with any Person or in any country or territory that at such time is the subject of any Sanctions, (ii) 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 (iii) in any manner that would result in the violation of any Sanctions Laws applicable to any party hereto.

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5.15.Post-Closing Matters. The Credit Parties shall satisfy each of the requirements set forth in the Post-Closing Letter Agreement on or before the date specified in the Post-Closing Letter Agreement for each such requirement, or such later date as may be permitted with respect thereto pursuant to the terms of the Post-Closing Letter Agreement.

SECTION 6.NEGATIVE COVENANTS

Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, each Credit Party covenants and agrees with the Agents and the Lenders that:

6.1.Indebtedness. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, incur or remain liable with respect to any Indebtedness, except:

(a)Indebtedness created under the Credit Documents, including pursuant to Sections 2.23, 2.24 or 2.25;

(b)Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any Restricted Subsidiary; provided that (i) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Restricted Subsidiary, (ii) such Indebtedness shall be evidenced by the Intercompany Note, and, if owing to a Credit Party, shall have been pledged pursuant to the Pledge and Security Agreement, (iii) such Indebtedness owing by a Credit Party to a Restricted Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Indebtedness Subordination Agreement and (iv) such Indebtedness is permitted as an Investment under Section 6.6(d);

(c)Guarantees incurred in compliance with Section 6.6(e);

(d)Indebtedness existing on the date hereof and set forth on Schedule 6.1 and Refinancing Indebtedness in respect thereof;

(e)(i) Indebtedness of the Credit Parties under the First Lien Credit Agreement (or under any documents governing First Lien Permitted Incremental Equivalent Indebtedness) in an aggregate principal amount at any time outstanding, when taken together with the aggregate principal amount of Refinancing Indebtedness outstanding pursuant to clause (ii) below, not to exceed the sum of (A) $595,000,000, less (B) the aggregate principal amount of “Tranche B Term Loans” prepaid under the First Lien Credit Agreement pursuant to Section 2.13(d) thereof, plus (C) the aggregate principal amount of Indebtedness that may be incurred pursuant to Section 2.23 of the First Lien Credit Agreement (or any comparable successor provision); provided that if the First Lien Credit Agreement is amended, modified, waived or supplemented or replaced following the Closing Date, this clause (C) shall in no event allow on any date of determination an aggregate principal amount of Indebtedness to be incurred pursuant to this clause (C) that is in excess of the aggregate principal amount that could have been incurred on such date pursuant to the provisions of Section 2.23 in the First Lien Credit Agreement as in effect on the Closing Date; provided that, in the case of any Indebtedness incurred under this clause (e)(i), (I) such Indebtedness shall constitute Permitted Senior Lien Secured Indebtedness, Permitted Pari Passu Secured Indebtedness, Permitted Junior Lien Secured Indebtedness or Permitted Unsecured Indebtedness and (II) other than in the case of any such Indebtedness incurred under (or incurred pursuant to commitments existing under) the First Lien Credit Agreement on the Closing Date, the Administrative Agent shall have received a certificate, dated the date such Indebtedness is incurred and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions set forth in clause (i) above and, if such Indebtedness or any portion thereof is being incurred in reliance on clause (i)(C) above, setting forth a reasonably detailed calculation of the amount of Indebtedness permitted to be incurred under such clause; and (ii) Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii);

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(f)(i) Indebtedness of the Borrower or any Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets of the Borrower or any Restricted Subsidiary, including Capital Lease Obligations, provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, or (B) assumed in connection with the acquisition of any fixed or capital assets of the Borrower or any Restricted Subsidiary, provided, in the case of this clause (i), that at the time of incurrence of such Indebtedness and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding under this clause (i), together with the aggregate principal amount of Refinancing Indebtedness then outstanding under clause (ii) below and with the aggregate principal amount of Capital Lease Obligations outstanding under Section 6.1(n), shall not exceed the greater of (x) $42,000,000 and (y) 8.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period; and (ii) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii);

(g)(i) Indebtedness of any Person that becomes (other than as a result of a redesignation of an Unrestricted Subsidiary) a Restricted Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed or incurred by the Borrower or any Restricted Subsidiary after the date hereof in connection with an Acquisition permitted hereunder consummated by the Borrower or any Restricted Subsidiary after the date hereof (other than the Specified Acquisition), provided, in the case of this clause (i), that at the time of the Borrower or any Restricted Subsidiary becoming liable with respect to such Indebtedness (whether as a result of such Person becoming a Restricted Subsidiary (or such merger or consolidation) or such assumption), and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding under this clause (i), together with the aggregate principal amount of Refinancing Indebtedness then outstanding under clause (ii) below, shall not exceed the greater of (x) $30,000,000 and (y) 6.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period; and (ii) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii); provided further that the aggregate principal amount of all Indebtedness outstanding under this clause (g) incurred by Restricted Subsidiaries that are not Credit Parties, when aggregated with the aggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Credit Parties outstanding under Section 6.1(o), shall not at any time exceed $12,000,000;

(h)so long as, after giving Pro Forma Effect to the incurrence of such Indebtedness and the use of proceeds thereof (but without netting the Cash proceeds of such Indebtedness (and any other Indebtedness incurred substantially concurrently therewith), no Event of Default shall have occurred and be continuing and the Borrower shall be in compliance with the financial covenant set forth in Section 6.7(a), determined as of the last day of the then most recently ended Test Period (provided that to the extent the proceeds of such Indebtedness are intended to be applied to finance a Limited Conditionality Transaction, at the option of the Borrower, the foregoing conditions may be tested in accordance with Section 1.5), (i) Permitted Pari Passu Secured Indebtedness, Permitted Junior Lien Secured Indebtedness and Permitted Unsecured Indebtedness; provided that (A) the aggregate amount of Indebtedness incurred under this clause (h)(i) on any date shall not exceed the Incremental Amount as of such date, (B) the stated final maturity of such Indebtedness shall not be earlier than the latest Maturity Date in effect on the date such Indebtedness is incurred, (C) the weighted average life to maturity of any such Indebtedness shall be no shorter than the longest remaining weighted average life to maturity of any Class of Loans outstanding as of the date of the incurrence thereof (and, for purposes of determining the weighted average life to maturity of any such Class of Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded), (D) in the case of Permitted Pari Passu Secured Indebtedness, the Weighted Average Yield, determined as of the date of incurrence of such Indebtedness, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (D)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans is increased, or fees to Lenders then holding the Tranche B Term Loans are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to equal the Weighted Average Yield with respect to such Indebtedness minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (E) such Indebtedness satisfies the Specified Permitted Indebtedness Documentation Requirements and (F) the Administrative Agent shall have received a certificate, dated the date such Indebtedness is incurred and signed by an Authorized Officer of the Borrower, confirming the absence of Events of Default as required above and compliance with the conditions set forth in clause (A) above, setting forth a reasonably detailed calculation of compliance with Section 6.7(a) on a Pro Forma Basis and, if such Indebtedness or any portion thereof is being incurred in reliance on clause (b) of the definition of the term “Incremental Amount”, setting forth a reasonably detailed calculation of the Incremental Amount under such clause; provided further that such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be extended, renewed or refinanced with Long-Term Indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clauses (B) and (C) above so long as (x) such credit facility includes customary “rollover” provisions that are subject to no conditions precedent other than (I) the occurrence of the date specified for the “rollover” and (II) that no payment or bankruptcy event of default shall have occurred and be continuing and (y) assuming such credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clauses (B) and (C) above); and (ii) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii);

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(i)so long as, after giving Pro Forma Effect to the incurrence of such Indebtedness and the use of proceeds thereof (but without netting the Cash proceeds of such Indebtedness (and any other Indebtedness incurred substantially concurrently therewith), no Event of Default shall have occurred and be continuing and the Borrower shall be in compliance with the financial covenant set forth in Section 6.7(a), determined as of the last day of the then most recently ended Test Period, (i) Permitted Pari Passu Secured Indebtedness, Permitted Junior Lien Secured Indebtedness and Permitted Unsecured Indebtedness that, in each case, refinances, in whole or in part, any Loans; provided that (A) the original aggregate principal amount of such Indebtedness shall not exceed the aggregate principal amount of such Loans being refinanced (except by an amount no greater than accrued and unpaid interest on such Loans, any original issue discount or upfront fees applicable to such Indebtedness and any reasonable fees, premiums and expenses relating to such refinancing), (B) the stated final maturity of such Indebtedness shall not be earlier than the Maturity Date of the Class of Loans being refinanced in effect at the time such Indebtedness is incurred, (C) the weighted average life to maturity of such Indebtedness (if other than in the form of revolving loans) shall be no shorter than the remaining weighted average life to maturity of the Class of Loans being refinanced (and, for purposes of determining the weighted average life to maturity of such Class of Loans being refinanced, the effects of any prepayments made prior to the date of the determination shall be disregarded), (D) in the case of Permitted Pari Passu Secured Indebtedness (and only if, after giving effect to any substantially concurrent refinancing of Loans, any Tranche B Term Loans shall remain outstanding), the Weighted Average Yield, determined as of the date of incurrence of such Indebtedness, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (D)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans is increased, or fees to Lenders then holding the Tranche B Term Loans are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to equal the Weighted Average Yield with respect to such Indebtedness minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (E) such Loans being refinanced shall be repaid or prepaid substantially concurrently on the date such Indebtedness is incurred, (F) such Indebtedness satisfies the Specified Permitted Indebtedness Documentation Requirements and (G) the Administrative Agent shall have received a certificate, dated the date such Indebtedness is incurred and signed by an Authorized Officer of the Borrower, confirming the absence of Events of Default as required above and setting forth a reasonably detailed calculation of compliance with Section 6.7(a) on a Pro Forma Basis; provided further that such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be extended, renewed or refinanced with Long-Term Indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clauses (B) and (C) above so long as (x) such credit facility includes customary “rollover” provisions that are subject to no conditions precedent other than (I) the occurrence of the date specified for the “rollover” and (II) that no payment or bankruptcy event of default shall have occurred and be continuing and (y) assuming such credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clauses (B) and (C) above); and (ii) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (i) above or under this clause (ii);

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(j)to the extent constituting Indebtedness, indemnification obligations (other than in respect of any Indebtedness) incurred in connection with any Acquisition or other Investment permitted by Section 6.6 or any Disposition permitted by Section 6.8;

(k)Indebtedness in respect of netting services, overdraft protections and otherwise arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, overdraft or any similar services, in each case in the ordinary course of business;

(l)Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations of the Borrower or any Restricted Subsidiary (i) under workers’ compensation, unemployment insurance, health, disability or other employee benefits and other social security laws and (ii) under bids, trade contracts, leases (other than Capital Lease Obligations), supply and service agreements with vendors, statutory obligations, surety, litigation and appeal bonds, performance bonds and obligations of a like nature;

(m)Indebtedness of the Borrower or any other Credit Party in the form of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred in connection with any Acquisition consummated prior to the Closing Date or any Acquisition consummated after the Closing Date that is permitted by Section 6.6; provided that such Indebtedness is not secured by any Liens on the assets of the Borrower or any Restricted Subsidiary;

(n)Capital Lease Obligations arising under any Sale/Leaseback Transaction incurred in compliance with Section 6.9, provided that at the time of the consummation of such Sale/Leaseback Transaction and after giving Pro Forma Effect thereto and the use of the proceeds thereof, (i) the aggregate principal amount of Indebtedness then outstanding under this clause (n) shall not exceed the greater of (A) $18,000,000 and (B) 3.5% of Consolidated Total Assets as of the last day of the then most recently ended Test Period and (ii) the aggregate principal amount of Indebtedness then outstanding under this clause (n), together with the aggregate principal amount of Indebtedness outstanding under Section 6.1(f), shall not exceed the greater of (A) $42,000,000 and (B) 8.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period;

(o)other unsecured Indebtedness of the Borrower or any Restricted Subsidiary, provided that at the time of incurrence of such Indebtedness and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding under this clause (o), shall not exceed the greater of (i) $60,000,000 and (ii) 12.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period; provided further that the aggregate principal amount of all Indebtedness outstanding under this clause (o) incurred by Restricted Subsidiaries that are not Credit Parties, when aggregated with the aggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Credit Parties outstanding under Section 6.1(g), shall not at any time exceed $12,000,000;

(p)unsecured Indebtedness owed to current or former officers, directors, employees or consultants of the Borrower or any Restricted Subsidiary (or their respective estates, heirs, family members, spouses and former spouses, domestic partners and former domestic partners or beneficiaries under their respective estates) to finance the purchase or redemption of Equity Interests in the Borrower permitted by Section 6.4; provided that the aggregate principal amount of Indebtedness permitted under this clause (p) shall not exceed $6,000,000 at any time outstanding;

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(q)(i) Indebtedness of the Credit Parties under the New Subordinated Note and Refinancing Indebtedness in respect thereof, provided that (A) the aggregate principal amount of Indebtedness under this clause (q)(i) shall not exceed $10,000,000 and (B) the stated final maturity of such Indebtedness shall not be earlier than 91 days after the latest Maturity Date, and such Indebtedness shall not require any mandatory or scheduled prepayments, repurchases, redemptions or other repayments of principal thereof prior to such stated final maturity, and (ii) Indebtedness of the Credit Parties under the Existing Subordinated Notes and Refinancing Indebtedness in respect thereof, provided that (A) the aggregate principal amount of Indebtedness under this clause (q)(ii) shall not exceed (x) $3,276,175.38 plus (y) all interest on such Indebtedness paid-in-kind by the addition thereof to the outstanding principal amount of such Indebtedness after the Closing Date and (B) such Indebtedness shall not require any mandatory or scheduled prepayments, repurchases, redemptions or other repayments of principal thereof (other than regularly scheduled amortization payments required by the terms of the Existing Subordinated Notes as in effect on the Closing Date) prior to the stated final maturity thereof; provided further, in the case of any Indebtedness under this clause (q), (I) such Indebtedness shall not be secured by any Liens on any assets of the Borrower or any Subsidiary, and shall not be Guaranteed by any Person other than the Credit Parties, (II) in the case of any such Refinancing Indebtedness, the terms of such Indebtedness (excluding interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and any “call protection”) are, when taken as a whole, not more favorable to the lenders or holders providing such Indebtedness than (x) those applicable to the New Subordinated Note or the Existing Subordinated Notes, as applicable, as in effect on the Closing Date, when taken as a whole, or (y) those applicable under this Agreement when taken as a whole, provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent (with the Administrative Agent agreeing to provide a copy thereof, together with any drafts referred to below, to the Lenders promptly upon receipt) at least five Business Days prior to the incurrence of such Refinancing Indebtedness, together with a reasonably detailed description of the material terms of such Refinancing Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms satisfy the requirements of this clause (II) shall be conclusive evidence that such terms satisfy such requirement unless the Administrative Agent or the Requisite Lenders notify the Borrower in writing within such five Business Day period that it or they disagree with such determination (including a reasonable description of the basis upon which it or they disagree), and (III) such Indebtedness is subordinated in right of payment to the Obligations and all Permitted Section 6.1(e) Indebtedness, Permitted Credit Agreement Refinancing Indebtedness and Permitted Incremental Equivalent Indebtedness (in each case, other than Subordinated Indebtedness) of the Borrower or any Guarantor Subsidiary, as applicable, on terms no less favorable to the Secured Parties than the subordination terms applicable to the New Subordinated Note or the Existing Subordinated Notes, as applicable, as of the Closing Date;

(r)Indebtedness consisting of the financing of insurance premiums or take or pay obligations contained in supply arrangements that do not constitute Guarantees, in each case, incurred in the ordinary course of business; and

(s)to the extent constituting Indebtedness, all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in this Section 6.1.

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For purposes of determining compliance with this Section 6.1 (subject to the final sentence of each of the definitions of “Permitted Senior Lien Secured Indebtedness”, “Permitted Pari Passu Secured Indebtedness” and “Permitted Junior Lien Secured Indebtedness”), (i) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in this Section 6.1, the Borrower shall, in its sole discretion, classify such item of Indebtedness (or any portion thereof) and may include the amount and type of such Indebtedness in one or more of the above clauses, and the Borrower may later reclassify such item of Indebtedness (or any portion thereof) and include it in another of such clauses in which it could have been included at the time it was incurred (but not into any clause under which it could not have been included at the time it was incurred); provided that, notwithstanding the foregoing, the Subordinated Notes and any Refinancing Indebtedness in respect thereof may only be incurred in reliance on Section 6.1(q) and may not be reclassified and (ii) for purposes of assessing whether any Dollar limit set forth in any clause of this Section 6.1 has been observed in connection with incurrence of any Indebtedness, any other Indebtedness contemporaneously incurred pursuant to and in accordance with the other available clauses of this Section 6.1 that do not require such other Indebtedness to observe such Dollar limit shall be disregarded, even if such other Indebtedness is of the same tranche or series as such Indebtedness being incurred under such Dollar limit.

6.2.Liens. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, incur or permit to exist any Lien on or with respect to any asset of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired or licensed, or assign or sell any income, profits or revenues (including accounts receivable and royalties) or rights in respect of any thereof, except:

(a)Liens created under the Credit Documents;

(b)Permitted Encumbrances;

(c)any Lien on any asset of the Borrower or any Restricted Subsidiary existing on the date hereof and set forth on Schedule 6.2, and any extensions, renewals and replacements thereof; provided that (i) such Lien shall not apply to any other asset of the Borrower or any Restricted Subsidiary, other than to proceeds and products of, and after-acquired property that is affixed or incorporated into, the assets covered by such Lien, and (ii) such Lien shall secure only those obligations that it secures on the date hereof and any extensions, renewals and refinancings thereof that do not increase the outstanding principal amount thereof (except by an amount not greater than accrued and unpaid interest on such obligations and any reasonable fees, premiums and expenses relating to such extension, renewal or refinancing) and, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.1(d) as Refinancing Indebtedness in respect thereof;

(d)Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any Restricted Subsidiary; provided that (i) such Liens secure only Indebtedness outstanding under Section 6.1(f) and obligations relating thereto not constituting Indebtedness and (ii) such Liens shall not apply to any other asset of the Borrower or any Restricted Subsidiary, other than to proceeds and products of, and after-acquired property that is affixed or incorporated into, the assets covered by such Liens; provided further that individual financings of equipment or other fixed or capital assets otherwise permitted to be secured hereunder provided by any Person (or its Affiliates) may be cross-collateralized to other such financings provided by such Person (or its Affiliates);

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(e)any Lien existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any asset of any Person that becomes (other than as a result of a redesignation of an Unrestricted Subsidiary) a Restricted Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the date hereof prior to the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated), and any extensions, renewals and replacements thereof; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary (or such merger or consolidation), (ii) such Lien shall not apply to any other asset of the Borrower or any Restricted Subsidiary (other than, in the case of any such merger or consolidation, the assets of any special purpose merger Restricted Subsidiary that is a party thereto), other than to proceeds and products of, and after-acquired property that is affixed or incorporated into, the assets covered by such Lien or becomes subject to such Lien pursuant to an after-acquired property clause as in effect on the date of such acquisition or the date such Person becomes a Restricted Subsidiary (or is so merged or consolidated), and (iii) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary (or is so merged or consolidated), and any extensions, renewals and refinancings thereof that do not increase the outstanding principal amount thereof (except by an amount not greater than accrued and unpaid interest, fees and premiums (if any) with respect to such original obligations and reasonable fees and expenses arising from such extension, renewal or refinancing) and, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.1;

(f)Liens on the Collateral securing (i) Permitted Section 6.1(e) Indebtedness, (ii) “Specified Cash Management Services Obligations” (as defined in the First Lien Credit Agreement) or any comparable term in any other Permitted Section 6.1(e) Indebtedness Documents, (iii) “Specified Hedge Obligations” (as defined in the First Lien Credit Agreement) or any comparable term in any other Permitted Section 6.1(e) Indebtedness Documents and (iv) obligations relating to any of the foregoing not constituting Indebtedness;

(g)Liens on the Collateral securing Permitted Incremental Equivalent Indebtedness and obligations relating thereto not constituting Indebtedness;

(h)Liens on the Collateral securing Permitted Credit Agreement Refinancing Indebtedness and obligations relating thereto not constituting Indebtedness;

(i)in connection with any Disposition permitted under Section 6.8, customary rights and restrictions contained in agreements relating to such Disposition pending the completion thereof;

(j)in the case of (i) any Restricted Subsidiary that is not a wholly owned Subsidiary or (ii) the Equity Interests in any Person that is not a Restricted Subsidiary (including any Unrestricted Subsidiary), any encumbrance, restriction or other Lien, including any put and call arrangements, related to the Equity Interests in such Restricted Subsidiary or such other Person set forth (A) in its Organizational Documents or any related joint venture, shareholders’ or similar agreement, in each case so long as such encumbrance or restriction is applicable to all holders of the same class of Equity Interests or is otherwise of the type that is customary for agreements of such type or (B) in the case of clause (ii) above, in any agreement or document governing Indebtedness of such Person;

(k)any Lien on assets of any CFC or CFC Holding Company that is not a Designated Subsidiary; provided that (i) such Lien shall not apply to any Collateral (including any Equity Interests in any Subsidiary that constitute Collateral) or any other assets of the Borrower or any Restricted Subsidiary that is not a CFC or CFC Holding Company and (ii) such Lien shall secure only Indebtedness or other obligations of such CFC or CFC Holding Company permitted hereunder;

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(l)Liens solely on any cash earnest money deposits, escrow arrangements or similar arrangements made by the Borrower or any Restricted Subsidiary in connection with any letter of intent or purchase agreement for any Acquisition or Investment permitted hereunder;

(m)nonexclusive outbound licenses of Intellectual Property and leases or sub-leases of equipment or real property, in each case granted by the Borrower or any Restricted Subsidiary in the ordinary course of business that do not materially detract from the value of the affected asset or interfere with the ordinary conduct of business of the Borrower or any Restricted Subsidiary;

(n)any Lien in favor of the Borrower or any Restricted Subsidiary (other than Liens on assets of any Credit Party in favor of a Restricted Subsidiary that is not a Credit Party);

(o)Liens on fixed or capital assets subject to any Sale/Leaseback Transaction permitted under Section 6.9; provided that (i) such Liens secure only Indebtedness permitted by Section 6.1(n) and obligations relating thereto not constituting Indebtedness and (ii) such Liens shall not apply to any other asset of the Borrower or any Restricted Subsidiary, other than to proceeds and products of, and after-acquired property that is affixed or incorporated into, the assets covered by such Liens;

(p)(i) deposits made in the ordinary course of business to secure obligations to insurance carriers providing casualty, liability or other insurance to the Borrower and the Restricted Subsidiaries and (ii) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(q)Cash deposits not to exceed $6,000,000 at any time securing letters of credit, bank guarantees and similar instruments issued in currencies other than Dollars; and

(r)other Liens securing Indebtedness or other obligations; provided that the aggregate outstanding amount of Indebtedness and other obligations secured by Liens permitted by this clause (r) shall not exceed $30,000,000.

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6.3.No Further Negative Pledges. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its assets, whether now owned or hereafter acquired, to secure any Obligations; provided that the foregoing shall not apply to (a) restrictions and conditions imposed by law or by any Credit Document, (b) restrictions and conditions existing on the date hereof identified on Schedule 6.3, and amendments, modifications, extensions and renewals thereof (including any such extension or renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing such restriction or condition), provided, in each case, that the scope of any such restriction or condition shall not have been expanded as a result thereof, (c) in the case of any Restricted Subsidiary that is not a wholly owned Subsidiary or the Equity Interests in any Person that is not a Restricted Subsidiary (including any Unrestricted Subsidiary), restrictions and conditions imposed by the Organizational Documents of such Restricted Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement, provided, in each case, that such restrictions and conditions apply only to such Restricted Subsidiary and to any Equity Interests in such Restricted Subsidiary or to the Equity Interests in such other Person (including any Unrestricted Subsidiary), as applicable, (d) restrictions and conditions imposed by any agreement or document governing secured Indebtedness permitted by Section 6.1(f) or 6.1(n) or governing Liens permitted by Section 6.2(d), 6.2(l), 6.2(o), 6.2(p)(i) or 6.2(q) or by clause (c), (d) or (m) of the definition of “Permitted Encumbrances”, provided that such restrictions and conditions apply only to the assets securing such Indebtedness or subject to such Liens, (e) restrictions and conditions imposed by agreements relating to Indebtedness assumed in reliance on Section 6.1(g)(i) or Refinancing Indebtedness in respect thereof incurred in reliance on Section 6.1(g)(ii), provided that such restrictions and conditions apply only to Persons that are permitted under such Sections to be obligors in respect of such Indebtedness and are not less favorable to the Lenders than the restrictions and conditions imposed by such Indebtedness (or, in the case of any Refinancing Indebtedness, by the applicable Original Indebtedness) at the time such Indebtedness first became subject to Section 6.1, (f) in connection with the sale of any Equity Interests in a Subsidiary or any other assets, customary restrictions and conditions contained in agreements relating to such sale pending the completion thereof, provided that such restrictions and conditions apply only to the Subsidiary or the other assets to be sold and such sale is permitted under Section 6.8, (g) restrictions and conditions imposed by any agreement or document governing Indebtedness of any Restricted Subsidiary that is not, and is not required to become, a Credit Party hereunder, provided that such restrictions and conditions apply only to such Restricted Subsidiary, (h) restrictions and conditions imposed by customary provisions in leases, licenses and other agreements restricting the assignment thereof or, in the case of any lease or license, permitting to exist any Lien on the assets leased or licensed thereunder, (i) customary restrictions in respect of Intellectual Property contained in licenses or sublicenses of, or other grants of rights to use or exploit, such Intellectual Property, (k) restrictions and conditions contained in any Permitted Section 6.1(e) Indebtedness Document or any Permitted Subordinated Indebtedness Document, in each case, as in effect on the Closing Date and amendments, modifications, extensions and renewals thereof, provided, in each case, that the scope of any such restriction or condition shall not have been expanded as a result thereof, and (l) restrictions and conditions contained in any agreement or instrument evidencing or governing any Indebtedness permitted by Section 6.1(e), 6.1(g) (other than in respect of existing Indebtedness assumed in reliance thereon), 6.1(h), 6.1(i) or 6.1(o) to the extent, in the good faith judgment of the Borrower, such restrictions and conditions are on customary market terms for Indebtedness of such type and so long as the Borrower has determined in good faith that such restrictions and conditions would not reasonably be expected to impair in any material respect the ability of the Credit Parties to meet their obligations under the Credit Documents. Nothing in this Section 6.3 shall be deemed to modify the requirements set forth in the definition of the term “Collateral and Guarantee Requirement” or the obligations of the Credit Parties under Sections 5.10, 5.11 or 5.12 or under the Collateral Documents.

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6.4.Restricted Junior Payments. Neither the Borrower nor any Restricted Subsidiary will declare or pay or make, or agree to declare or pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that:

(a)each of the Borrower and any Restricted Subsidiary may declare and pay dividends with respect to its Equity Interests payable solely in additional Equity Interests in such Person to the extent not otherwise prohibited hereunder;

(b)any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, partnership or membership interests or other similar Equity Interests, and declare and make other Restricted Junior Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests (or, if not ratably, on a basis more favorable to the Borrower and the Restricted Subsidiaries);

(c)the Borrower may make payments in respect of, or repurchases of its Equity Interests deemed to occur upon the “cashless exercise” of, stock options, stock purchase rights, stock exchange rights or other equity-based awards if such payment or repurchase represents a portion of the exercise price of such options, rights or awards or withholding taxes, payroll taxes or other similar taxes due upon such exercise;

(d)the Borrower may make cash payments in lieu of the issuance of fractional shares representing Equity Interests in the Borrower in connection with the exercise of warrants, options or other Securities convertible into or exchangeable for common stock in the Borrower;

(e)the Borrower may make Restricted Junior Payments in respect of its Equity Interests pursuant to and in accordance with stock option plans or other benefit plans or agreements for, or otherwise make Restricted Junior Payments to redeem, retire, purchase or otherwise acquire any of its Equity Interests held by, future, present or former directors, officers, employees or consultants of the Borrower and the Restricted Subsidiaries; provided that (i) the aggregate amount of the Restricted Junior Payments made in reliance on this clause (e) in any Fiscal Year shall not exceed the sum of (A) $2,400,000 plus (B) an amount equal to any unutilized portion of such amount in clause (A) in any preceding Fiscal Year ended after the Closing Date and (ii) Restricted Junior Payments made in reliance on this clause (e) during any Fiscal Year shall be deemed to use, first, the amount set forth in clause (A) above for such Fiscal Year and, second, any portion of the amount set forth in clause (A) above for any preceding Fiscal Year that has been carried over to such Fiscal Year pursuant to clause (B) above;

(f)the Borrower and the Restricted Subsidiaries may make additional Restricted Junior Payments; provided that, immediately prior to the making thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (i) no Event of Default shall have occurred and be continuing, (ii) the Total Net Leverage Ratio, determined as of the last day of the then most recently ended Test Period, shall not exceed 1.40:1.00 and (iii) the Borrower shall be in compliance with Section 6.7(a);

(g)the Borrower and the Restricted Subsidiaries may make (i) regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness, other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof, and (ii) prepayments in respect of any Junior Indebtedness to the extent required by Section 2.14(c);

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(h)the Borrower and the other Credit Parties may refinance any Junior Indebtedness with the proceeds of other Indebtedness to the extent permitted under Section 6.1;

(i)so long as no Default or Event of Default shall have occurred and be continuing, the Borrower and the Restricted Subsidiaries may make other Restricted Junior Payments; provided that the aggregate amount of Restricted Junior Payments made in reliance on this clause (i) since the Closing Date shall not exceed $1,200,000;

(j)the Borrower and the Restricted Subsidiaries may make additional Restricted Junior Payments; provided that (i) immediately prior to the making thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (A) no Event of Default shall have occurred and be continuing and (B) the Total Net Leverage Ratio shall not be greater than the lesser of (x) 1.65:1.00 and (y) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a), in each case, determined as of the last day of the then most recently ended Test Period, (ii) the amount of any such Restricted Junior Payment shall not exceed the Available Basket Amount at the time such Restricted Junior Payment is made and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that all the requirements set forth in this clause (j) have been satisfied with respect to such Restricted Junior Payment and including reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clauses (i)(B) and (ii) above;

(k)any Restricted Junior Payment arising solely on account of any Permitted Holder using its Equity Interests in the Borrower to satisfy such Permitted Holders’ payment obligations under the Acquired Company Indemnity Letter Agreement;

(l)any Restricted Junior Payment required to be made to consummate the Iqmax Disposition; and

(m)the Borrower may redeem the Closing Date Preferred Stock solely with the Net Proceeds received (and not otherwise applied) by the Borrower substantially concurrently with the making of such redemption from any issuance and sale of Equity Interests in the Borrower (other than any Disqualified Equity Interests and other than any Equity Interests issued or sold to any Subsidiary of the Borrower); provided that, immediately prior to the making of such redemption, and immediately after giving Pro Forma Effect thereto, no Event of Default shall have occurred and be continuing.

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6.5.Restrictions on Subsidiary Distributions. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Restricted Subsidiary (a) to pay dividends or make other distributions on its Equity Interests owned by the Borrower or any Restricted Subsidiary, (b) to repay or prepay any Indebtedness owing by such Restricted Subsidiary to the Borrower or any Restricted Subsidiary, (c) to make loans or advances to the Borrower or any Restricted Subsidiary or to Guarantee the Obligations or (d) to transfer, lease or license any of its assets to the Borrower or any Restricted Subsidiary; provided that the foregoing shall not apply to (i) restrictions and conditions imposed by law or by any Credit Document, (ii) restrictions and conditions existing on the date hereof identified on Schedule 6.5, and amendments, modifications, extensions or renewals thereof (including any such extension or renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing such restriction or condition), provided, in each case, that the scope of any such restriction or condition shall not have been expanded as a result thereof, (iii) in the case of any Restricted Subsidiary that is not a wholly owned Subsidiary of the Borrower or, in the case of restrictions and conditions referred to in clause (d) above, the Equity Interests in any Person that is not a Restricted Subsidiary (including any Unrestricted Subsidiary), restrictions and conditions imposed by agreements and documents governing Indebtedness of such Restricted Subsidiary or such Person or its Organizational Documents or any related joint venture, shareholders’ or similar agreement, provided that such restrictions and conditions apply only to such Restricted Subsidiary or, in the case of restrictions and conditions referred to in clause (d) above, to any Equity Interests in such Restricted Subsidiary or such other Person (including any Unrestricted Subsidiary), as applicable, (iv) in the case of restrictions and conditions referred to clause in (d) above, restrictions and conditions imposed by any agreement relating to secured Indebtedness permitted by Section 6.1(f) or 6.1(n) or governing Liens permitted by Section 6.2(d), 6.2(l), 6.2(o), 6.2(p)(i) or 6.2(q) or by clause (c), (d) or (m) of the definition of “Permitted Encumbrances”, provided that such restrictions and conditions apply only to the assets securing such Indebtedness or subject to such Liens, (v) restrictions and conditions imposed by any agreement or document relating to Indebtedness assumed in reliance on Section 6.1(g)(i) or Refinancing Indebtedness in respect thereof incurred in reliance on Section 6.1(g)(ii), provided that such restrictions and conditions apply only to Persons that are permitted under such Section to be obligors in respect of such Indebtedness and are not less favorable to the Lenders than the restrictions and conditions imposed by such Indebtedness (or, in the case of any Refinancing Indebtedness, by the applicable Original Indebtedness) at the time such Indebtedness first became subject to Section 6.1, (vi) in connection with the sale of any Equity Interests in a Subsidiary or any other assets, customary restrictions and conditions contained in agreements relating to such sale pending the completion thereof, provided that such restrictions and conditions apply only to the Subsidiary or the other assets to be sold and such sale is permitted under Section 6.8, (vii) in the case of restrictions or conditions referred to in clauses (c) and (d) above, restrictions and conditions imposed by any agreement or document governing Indebtedness of any Restricted Subsidiary that is not, and is not required to become, a Credit Party hereunder, provided that such restrictions and conditions apply only to such Restricted Subsidiary, (viii) in the case of restrictions and conditions referred to in clause (d) above, restrictions and conditions imposed by customary provisions in leases, licenses and other agreements restricting the assignment thereof or, in the case of any lease or license, permitting to exist any Lien on the assets leased or licensed thereunder, (ix) restrictions on cash or deposits or net worth imposed by customers, suppliers or landlords under agreements entered into in the ordinary course of business, (x) in the case of restrictions and conditions referred to in clause (d) above, customary restrictions in respect of Intellectual Property contained in licenses or sublicenses of, or other grants of rights to use or exploit, such Intellectual Property, (xi) restrictions and conditions contained in any Permitted Section 6.1(e) Indebtedness Document or any Permitted Subordinated Indebtedness Document, in each case, as in effect on the Closing Date and amendments, modifications, extensions and renewals thereof, provided, in each case, that the scope of any such restriction or condition shall not have been expanded as a result thereof, (xii) restrictions and conditions contained in any agreement or instrument evidencing or governing any Indebtedness permitted by Section 6.1(e), 6.1(g) (other than in respect of existing Indebtedness assumed in reliance thereon), 6.1(h), 6.1(i) or 6.1(o) so long as the Borrower has determined in good faith that such restrictions and conditions would not reasonably be expected to impair in any material respect the ability of the Credit Parties to meet their obligations under the Credit Documents, and (xiii) in the case of restrictions and conditions referred to in clause (d) above, restrictions and conditions imposed by the Vector Facility Arrangements on the assignment or transfer by the Borrower of its rights under the Vector Subordinated Note. Nothing in this Section 6.5 shall be deemed to modify the requirements set forth in the definition of the term “Collateral and Guarantee Requirement” or the obligations of the Credit Parties under Sections 5.10, 5.11 or 5.12 or under the Collateral Documents.

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6.6.Investments. Neither the Borrower nor any Restricted Subsidiary will purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary of the Borrower prior thereto), hold, make or otherwise permit to exist any Investment in any other Person, or make any Acquisition, except:

(a)Investments in Cash and Cash Equivalents;

(b)Investments existing on the date hereof that are set forth on Schedule 6.6 (but not any additions thereto (including any capital contributions) made after the date hereof);

(c)Investments by the Borrower and the Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries; provided that (i) such investees are Restricted Subsidiaries prior to such Investments (or such Equity Interests in a Restricted Subsidiary are held as the result of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary), (ii) any such Equity Interests held by a Credit Party shall be pledged in accordance with the requirements of the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such Investments by the Credit Parties in, and loans and advances under clause (d) below by the Credit Parties to, and Guarantees under clause (e) by the Credit Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Credit Parties (excluding all such Investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not exceed $24,000,000 at any time outstanding;

(d)loans or advances made by the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by Section 6.1(b) and (ii) the amount of such loans and advances made by the Credit Parties to Restricted Subsidiaries that are not Credit Parties shall be subject to the limitation set forth in clause (c) above;

(e)Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Junior Indebtedness unless (A) such Restricted Subsidiary has Guaranteed the Obligations pursuant hereto and (B) in the case of Junior Indebtedness that is Subordinated Indebtedness such Guarantee is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of such Subordinated Indebtedness, (ii) a Subsidiary that has not Guaranteed the Obligations pursuant hereto shall not Guarantee any Indebtedness of any Credit Party and (iii) the aggregate amount of Indebtedness and other obligations of Subsidiaries that are not Credit Parties that is Guaranteed by any Credit Party shall be subject to the limitation set forth in clause (c) above;

(f)(i) Investments received in satisfaction or partial satisfaction of obligations thereof from financially troubled account debtors and (ii) deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Borrower and the Restricted Subsidiaries;

(g)Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.8;

(h)Investments by the Borrower or any Restricted Subsidiary that result solely from the receipt by the Borrower or any Restricted Subsidiary from any of its Subsidiaries of a dividend or other Restricted Junior Payment in the form of Equity Interests, evidences of Indebtedness or other Securities (but not any additions thereto made after the date of the receipt thereof);

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(i)Investments in the form of Hedge Agreements permitted under Section 6.12;

(j)payroll, travel and similar advances to directors, officers, employees and consultants of the Borrower or any Restricted Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses of the Borrower or such Restricted Subsidiary for accounting purposes and that are made in the ordinary course of business;

(k)loans or advances to directors, officers, employees and consultants (or their respective estates, heirs, family members, spouses and former spouses, domestic partners and former domestic partners or beneficiaries under their respective estates) of the Borrower or any Restricted Subsidiary in connection with such Person’s purchase of Equity Interests in the Borrower; provided that the aggregate amount of Investments permitted by this clause (k) (other than any such loan or advance where no Cash or Cash Equivalent is actually advanced by the Borrower or any Restricted Subsidiary) shall not exceed $6,000,000 at any time outstanding;

(l)Permitted Acquisitions; provided that the Acquisition Consideration with respect to any such Acquisition of Subsidiaries that do not become Guarantor Subsidiaries, or any Acquisitions by Subsidiaries that are not Guarantors, shall not cause the aggregate amount of all Acquisition Consideration paid in connection with all such Permitted Acquisitions made in each case in reliance on this clause (l) to exceed $6,000,000;

(m)any other Acquisition or other Investment (other than Investments between or among the Borrower or the Restricted Subsidiaries); provided that, immediately prior to the consummation thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (i) no Event of Default shall have occurred and be continuing and (ii) the Total Net Leverage Ratio shall not be greater than the lesser of (A) 2.15:1.00 and (B) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a), in each case, determined as of the last day of the then most recently ended Test Period; provided further that, in the case of any Limited Conditionality Transaction, at the option of the Borrower, the conditions set forth in clauses (i) and (ii) above may be tested in accordance with Section 1.5;

(n)any other Acquisition or other Investment; provided that (i) immediately prior to the consummation thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (A) no Event of Default shall have occurred and be continuing and (B) the Total Net Leverage Ratio shall not be greater than the lesser of (x) 2.15:1.00 and (y) the maximum Total Net Leverage Ratio permitted under the financial covenant set forth in Section 6.7(a), in each case, determined as of the last day of the then most recently ended Test Period, (ii) the Acquisition Consideration with respect to any such Acquisition or the amount of any such other Investment, in each case made in reliance on this clause (n), shall not exceed the Available Basket Amount at the time of the consummation thereof and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that all the requirements set forth in this clause (n) have been satisfied with respect to such Investment or Acquisition and including reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clauses (i) and (ii) above; provided further that, in the case of any Limited Conditionality Transaction, at the option of the Borrower, the condition set forth in clause (i) above may be tested in accordance with Section 1.5;

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(o)Investments not constituting Acquisitions; provided that the amount of any such Investment made in any Fiscal Year and outstanding in reliance on this clause (o) shall not cause the aggregate amount of all Investments made in such Fiscal Year and outstanding in reliance on this clause (o) to exceed for such Fiscal Year the sum of (i) $1,200,000 plus (ii) an amount equal to any unutilized portion of such amount in clause (i) in respect of any preceding Fiscal Year ended after the Closing Date; provided further that (A) the aggregate amount of Investments permitted by this clause (o) shall not exceed $6,000,000 at any time outstanding and (B) Investments made in reliance on this clause (o) during any Fiscal Year shall be deemed to use, first, the amount set forth in clause (i) above for such Fiscal Year and, second, any portion of the amount set forth in clause (i) above for any preceding Fiscal Year that has been carried over to such Fiscal Year pursuant to clause (ii) above;

(p)Investments (i) by the Borrower or any other Credit Party in any Restricted Subsidiary that is not a Credit Party to the extent made with Cash or Cash Equivalents necessary to fund an Acquisition permitted hereunder or (ii) consisting of the transfer or contribution to any CFC or CFC Holding Company of Equity Interests in any other CFC or CFC Holding Company or exchange of Indebtedness owing by any CFC or CFC Holding Company for Indebtedness, in a like amount, owing by another CFC or CFC Holding Company;

(q)Investments in the ordinary course of business consisting of (i) endorsements for collection or deposit and (ii) customary trade arrangements with customers;

(r)Guarantees of obligations of the Borrower or any Restricted Subsidiary in respect of leases (other than Capital Lease Obligations) entered into in the ordinary course of business;

(s)Investments held by a Person that becomes (other than as a result of a redesignation of an Unrestricted Subsidiary) a Restricted Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into the Borrower or a Restricted Subsidiary in a transaction permitted hereunder) after the Closing Date, provided that such Investments exist at the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated) and are not made in contemplation of or in connection with such Person becoming a Restricted Subsidiary (or such merger or consolidation);

(t)Investments held by any Unrestricted Subsidiary at the time such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of the term “Unrestricted Subsidiary”, provided that such Investments have not been made in contemplation of or in connection with such redesignation;

(u)the Merger;

(v)any other Acquisition or other Investment to the extent consideration therefor is made with Equity Interests, or with the Net Proceeds received (and not otherwise applied) by the Borrower within 120 consecutive days prior to the date of consummation of such Acquisition or Investment from any issuance and sale of Equity Interests, in each case, in the Borrower (other than any Disqualified Equity Interests, unless the issuance of such Disqualified Equity Interests is otherwise permitted hereunder, and other than any Equity Interests issued or sold to any Subsidiary of the Borrower);

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(w)any other Acquisition or other Investment consummated on or prior to December 31, 2018; provided that (i) immediately prior to the consummation thereof, and immediately after giving Pro Forma Effect thereto, including to any related incurrence of Indebtedness, (A) no Event of Default shall have occurred and be continuing and (B) the Total Leverage Ratio shall not be greater than 3.65:1.00, determined as of the last day of the then most recently ended Test Period, (ii) the Acquisition Consideration with respect to any such Acquisition or the amount of any such other Investment shall not cause the aggregate amount of all Acquisition Consideration paid in connection with all Acquisitions made, together with the aggregate amount of all Investments outstanding, in each case in reliance on this clause (w), to exceed $90,000,000, (iii) no Acquisition of, or Investment in, Subsidiaries that do not become Guarantor Subsidiaries, and no acquisition of assets by any Restricted Subsidiary that is not a Guarantor Subsidiary, may be made in reliance on this clause (w), (iv) all actions required to be taken with respect to any Person or assets acquired pursuant to such Acquisition or other Investment, as the case may be, in order to satisfy the requirements set forth in clauses (a), (b), (c) and (d) of the definition of the term “Collateral and Guarantee Requirement” (subject to the discretion of the Collateral Agent set forth in such definition) shall have been taken (or arrangements for the taking of such actions satisfactory to the Collateral Agent shall have been made) (it being understood that all other requirements set forth in such definition that are applicable to such Acquisition or Investment shall be required to be satisfied in accordance with (and within the time periods provided in) Sections 5.10 and 5.11) and (v) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that all the requirements set forth in this clause (w) have been satisfied with respect to such Acquisition or Investment and including reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clause (i) above; provided further that, in the case of any Limited Conditionality Transaction, at the option of the Borrower, the condition set forth in clause (i) above may be tested in accordance with Section 1.5; and

(x)Investments made by the Borrower on the Closing Date in the Vector Subordinated Note.

Notwithstanding anything to the contrary in this Section 6.6, neither the Borrower nor any Restricted Subsidiary shall make any Investment that results in or facilitates in any manner any Restricted Junior Payment not permitted under Section 6.4.

6.7.Financial Covenants. (a) Total Net Leverage Ratio. The Borrower will not permit the Total Net Leverage Ratio, as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending June 30, 2018, to exceed the correlative ratio set forth below:

Fiscal Quarter Ending	Total Net Leverage Ratio
June 30, 2018 and September 30, 2018	5.75:1.00
December 31, 2018	5.175:1.00
March 31, 2019 through December 31, 2019	4.60:1.00
March 31, 2020 through December 31, 2020	4.025:1.00
March 31, 2021 and thereafter	3.45:1.00

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(b)Capital Expenditures. The Borrower will not permit Consolidated Capital Expenditures in any Fiscal Year to exceed in the aggregate an amount equal to the greater of (i) $63,250,000 (such amount for any Fiscal Year being referred to as the “Base CapEx Amount” for such Fiscal Year) and (ii) if the Borrower or any Restricted Subsidiary shall have consummated any Material Acquisition (excluding the Merger) after the Closing Date, the Material Acquisition CapEx Amount for such Fiscal Year (determined as of the date of consummation of the Material Acquisition most recently consummated after the Closing Date and on or prior to the last day of such Fiscal Year); provided that (A) commencing with the Fiscal Year ending on December 31, 2018, the portion of the Base CapEx Amount for any Fiscal Year that has not been expended to make Consolidated Capital Expenditures during such Fiscal Year (but not in excess of 50% of the Base CapEx Amount for such Fiscal Year) may be carried over for expenditure in the immediately following Fiscal Year and (B) Consolidated Capital Expenditures made during any Fiscal Year shall be deemed to use, first, the Base CapEx Amount for such Fiscal Year and, second, any portion of the Base CapEx Amount for the immediately preceding Fiscal Year that has been carried over to such Fiscal Year pursuant to clause (A) above.

For purposes of the foregoing:

“Material Acquisition CapEx Amount” means, as of any date of determination for any Fiscal Year, an amount equal to 10% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for the most recent period of 12 consecutive months prior to the consummation of the Material Acquisition (other than the Merger) most recently consummated for which financial statements are available as of such date of determination, determined on a Pro Forma Basis to give effect to such Material Acquisition (and each other Material Acquisition that shall have been consummated during such period).

6.8.Fundamental Changes; Disposition of Assets; Equity Interests of Subsidiaries. (a) Neither the Borrower nor any Restricted Subsidiary will merge or consolidate with or into any other Person, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), and neither the Borrower nor any Restricted Subsidiary shall Dispose (whether in one transaction or in a series of transactions) of assets that represent all or substantially all of the assets of the Borrower and the Restricted Subsidiaries, on a consolidated basis, except that:

(i)any Person may merge into the Borrower in a transaction in which the Borrower is the surviving Person;

(ii)any Person (other than the Borrower) may merge or consolidate with or into any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary (and if any party to such merger or consolidation is a Guarantor Subsidiary, the surviving Person is a Guarantor Subsidiary);

(iii)any Restricted Subsidiary may merge or consolidate with or into any Person (other than the Borrower) in a transaction permitted under Section 6.8(b) in which, after giving effect to such transaction, the surviving Person is not a Subsidiary, except to the extent such transaction constitutes an Investment in a Restricted Subsidiary that is not a Credit Party permitted by Section 6.6;

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(iv)any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not disadvantageous to the Lenders in any material respect;

(v)the Borrower or any other Credit Party may Dispose of all or substantially all of its assets to the Borrower or to another Credit Party; and

(vi)the Merger may be consummated;

provided that, in the case of clauses (i), (ii) and (iii) above, any such merger or consolidation shall not be permitted unless it, and each Investment resulting therefrom, is also permitted under Section 6.6.

(b)Neither the Borrower nor any Restricted Subsidiary will Dispose of, or exclusively license, any asset, including any Equity Interest, owned by it, except:

(i)Dispositions of (A) inventory and obsolete, worn out or surplus equipment in the ordinary course of business, (B) leasehold improvements to landlords pursuant to the terms of leases in respect of any Leasehold Property and (C) Cash and Cash Equivalents;

(ii)Dispositions, and exclusive licenses, to any Credit Party;

(iii)Investments made in compliance with Sections 6.6 and 6.10;

(iv)Dispositions of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business consistent with past practice and not as part of any accounts receivables financing transaction;

(v)Dispositions of Equity Interests in, or Indebtedness or other Securities of, any Unrestricted Subsidiary, provided that all Dispositions made in reliance on this clause (v) shall be made for fair value (as determined reasonably and in good faith by the Borrower);

(vi)leases and licenses entered into by the Borrower or any Restricted Subsidiary as a licensor or lessor in the ordinary course of business, provided that such leases or license do not adversely affect in any material respect the value of the properties subject thereto (including the value thereof as Collateral) or interfere in any material respect with the ordinary conduct of business of the Borrower or any Restricted Subsidiary;

(vii)Dispositions of assets in any Insurance/Condemnation Event;

(viii)to the extent constituting Dispositions, Restricted Junior Payments made in compliance with Section 6.4;

(ix)other Dispositions of assets that are not permitted by any other clause of this Section 6.8(b); provided that (A) all Dispositions made in reliance on this clause (ix) shall be made for fair value and at least 75% Cash consideration, (B) the Net Proceeds thereof shall be applied as required by Section 2.13 and (C) no Default or Event of Default shall have occurred and be continuing at the time such Disposition is made or would result therefrom; and

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(x)the Iqmax Disposition.

(c)Notwithstanding anything to the contrary set forth herein, (i) neither the Borrower nor any Restricted Subsidiary will sell, transfer or otherwise dispose of any Equity Interests in any Restricted Subsidiary unless (A) such Equity Interests constitute all the Equity Interests in such Restricted Subsidiary held by the Borrower and the Restricted Subsidiaries and (B) immediately after giving effect to such transaction, the Borrower and the Restricted Subsidiaries shall otherwise be in compliance with Section 6.6 and (ii) no Restricted Subsidiary will issue any additional Equity Interests in such Restricted Subsidiary other than (A) to the Borrower or any Restricted Subsidiary in compliance with Section 6.4, (B) directors’ qualifying shares and (C) other nominal amounts of Equity Interests that are required to be held by other Persons under applicable law.

(d)The Borrower will not permit any Person other than the Borrower, or one or more of its Restricted Subsidiaries that is not a CFC or CFC Holding Company, to own any Equity Interests in any Restricted Subsidiary that is a Domestic Subsidiary (other than any Domestic Subsidiary that itself is a CFC Holding Company).

6.9.Sales and Leasebacks. Neither the Borrower nor any Restricted Subsidiary will enter into any Sale/Leaseback Transaction unless (a) any Capital Lease Obligations arising in connection therewith are permitted under Section 6.1(n) and (b) any Liens arising in connection therewith (including Liens deemed to arise in connection with any such Capital Lease Obligations) are permitted under Section 6.2(o).

6.10.Transactions with Affiliates. Neither the Borrower nor any Restricted Subsidiary will, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Borrower or such Restricted Subsidiary on terms that are less favorable to the Borrower or such Restricted Subsidiary, as the case may be, than those that would prevail in an arm’s-length transaction with unrelated third parties; provided that the foregoing restriction shall not apply to (a) transactions between or among the Credit Parties not involving any other Affiliate, (b) any Restricted Junior Payment permitted under Section 6.4, (c) issuances by the Borrower of Equity Interests (other than Disqualified Equity Interests) and receipt by the Borrower of capital contributions, (d) compensation and indemnification arrangements for directors, officers, employees and consultants of the Borrower or any Restricted Subsidiary entered into in the ordinary course of business (including, for the avoidance of doubt, grants of stock options, stock purchase rights, stock exchange rights or other equity-based awards to directors, employees and officers and any “key-man” insurance policy maintained by a Credit Party), (e) loans and advances permitted under Section 6.6(j) or 6.6(k), (f) the Transactions and the payment of fees and expenses in connection with the consummation of the Transactions, (g) the Acquired Company Indemnity Letter Agreement and (h) the transactions set forth on Schedule 6.10 (without giving effect to any amendment, restatement, supplement or other modification thereto after the Closing Date that could reasonably be expected to be adverse in any material respect to the Lenders).

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6.11.Conduct of Business. Neither the Borrower nor any Restricted Subsidiary will engage in any business other than the businesses engaged in by the Borrower and the Restricted Subsidiaries on the Closing Date (for the avoidance of doubt, after giving effect to the distribution of the Consumer/SMB Business as contemplated by Section 3.1(m) and the consummation of the Fusion Global Arrangement as contemplated by Section 3.1(n)), provided that the Borrower and the Restricted Subsidiaries shall be permitted to engage in any business that is similar, complementary or related to, or a reasonable extension of, the business engaged in by the Borrower and the Restricted Subsidiaries on the Closing Date (giving effect to the foregoing parenthetical).

6.12.Hedge Agreements. Neither the Borrower nor any Restricted Subsidiary will enter into any Hedge Agreement, except (a) Hedge Agreements entered into to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary has actual exposure (other than in respect of Equity Interests or Indebtedness of the Borrower or any Restricted Subsidiary) and (b) Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Restricted Subsidiary.

6.13.Amendments or Waivers of Organizational Documents and Certain Agreements. Neither the Borrower nor any Restricted Subsidiary will agree to any amendment, restatement, supplement or other modification to, or waiver of any of its rights under, (a) its Organizational Document, (b) any certificate of designation or other agreement or instrument governing or evidencing the Closing Date Preferred Stock or (c) any agreement or instrument governing or evidencing Junior Indebtedness, in each case, to the extent such amendment, modification or waiver could reasonably be expected to be adverse in any material respect to the Lenders, it being understood that any Junior Indebtedness may be modified to permit any extension or refinancing thereof to the extent otherwise permitted by this Agreement.

6.14.Fiscal Year. Neither the Borrower nor any Restricted Subsidiary will change its Fiscal Year to end on a date other than December 31.

SECTION 7.GUARANTEE

7.1.Guarantee of the Obligations. The Guarantors jointly and severally hereby irrevocably and unconditionally guarantee the due and punctual payment in full of all Obligations when and as the same shall become due. In furtherance of the foregoing, the Guarantors hereby jointly and severally agree that upon the failure of the Borrower or any other Person to pay any of the Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or any similar provision of, or stay imposed under, any other Debtor Relief Law), the Guarantors will upon demand pay, or cause to be paid, in Cash, to the Administrative Agent, for the ratable benefit of Secured Parties, an amount equal to the sum of all Obligations then due as aforesaid.

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7.2.Indemnity by the Borrower; Contribution by the Guarantors. (a) In addition to all such rights of indemnity and subrogation as any Guarantor Subsidiary may have under applicable law (but subject to Section 7.5), the Borrower agrees that (i) in the event a payment shall be made by any Guarantor Subsidiary under its Obligations Guarantee, the Borrower shall indemnify such Guarantor Subsidiary for the full amount of such payment and such Guarantor Subsidiary shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment and (ii) in the event any Collateral provided by any Guarantor Subsidiary shall be sold pursuant to any Collateral Document to satisfy in whole or in part any Obligations, the Borrower shall indemnify such Guarantor Subsidiary in an amount equal to the fair market value of the assets so sold.

(b)The Guarantor Subsidiaries desire to allocate among themselves, in a fair and equitable manner, their obligations arising under this Section 7 and under the Collateral Documents. Accordingly, in the event any payment or distribution is made on any date by a Guarantor Subsidiary under its Obligations Guarantee such that its Aggregate Payments exceed its Fair Share as of such date (such Guarantor Subsidiary being referred to as a “Claiming Guarantor”) and the Borrower does not indemnify such Claiming Guarantor in accordance with Section 7.2(a), such Claiming Guarantor shall be entitled to a contribution from each other Guarantor Subsidiary in an amount sufficient to cause each Guarantor Subsidiary’s Aggregate Payments to equal its Fair Share as of such date (and for all purposes of this Section 7.2(b), any sale or other dispositions of Collateral of a Guarantor Subsidiary pursuant to an exercise of remedies under any Collateral Document shall be deemed to be a payment by such Guarantor Subsidiary under its Obligations Guarantee in an amount equal to the fair market value of such Collateral, less any amount of the proceeds of such sale or other dispositions returned to such Guarantor Subsidiary). “Fair Share” means, with respect to any Guarantor Subsidiary as of any date of determination, an amount equal to (i) the ratio of (A) the Fair Share Contribution Amount with respect to such Guarantor Subsidiary to (B) the aggregate of the Fair Share Contribution Amounts with respect to all Guarantor Subsidiaries multiplied by (ii) the aggregate amount paid or distributed on or before such date by all Claiming Guarantors under their Obligations Guarantees. “Fair Share Contribution Amount” means, with respect to any Guarantor Subsidiary as of any date of determination, the maximum aggregate amount of the obligations of such Guarantor Subsidiary under its Obligations Guarantee that would not render its obligations thereunder subject to avoidance as a preference, fraudulent transfer or conveyance or transfer at undervalue under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state or foreign law; provided that solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Guarantor Subsidiary for purposes of this Section 7.2(b), any assets or liabilities of such Guarantor Subsidiary arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution under this Section 7 shall not be considered as assets or liabilities of such Guarantor Subsidiary. “Aggregate Payments” means, with respect to any Guarantor Subsidiary as of any date of determination, an amount equal to (A) the aggregate amount of all payments and distributions made on or before such date by such Guarantor Subsidiary in respect of its Obligations Guarantee (including any payments and distributions made under this Section 7.2(b)), minus (B) the aggregate amount of all payments received on or before such date by such Guarantor Subsidiary from the Borrower pursuant to Section 7.2(a) or the other Guarantor Subsidiaries pursuant to this Section 7.2(b). The amounts payable under this Section 7.2(b) shall be determined as of the date on which the related payment or distribution is made by the applicable Claiming Guarantor. The allocation among Guarantor Subsidiaries of their obligations as set forth in this Section 7.2(b) shall not be construed in any way to limit the liability of any Guarantor Subsidiary hereunder or under any Collateral Document.

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7.3.Liability of Guarantors Absolute. Each Guarantor agrees that its obligations under this Section 7 are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance that constitutes a legal or equitable discharge of a guarantor or surety other than payment in full in Cash of the Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:

(a)its Obligations Guarantee is a guarantee of payment when due and not of collectability and is a primary obligation of such Guarantor and not merely a contract of surety;

(b)the Administrative Agent may enforce its Obligations Guarantee upon the occurrence of an Event of Default notwithstanding the existence of any dispute between the Borrower and any Secured Party with respect to the existence of such Event of Default;

(c)the obligations of each Guarantor hereunder are independent of the obligations of the Borrower or of any other guarantor (including any other Guarantor) of the Obligations, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower, any such other Guarantor or any other Person and whether or not the Borrower, any such other Guarantor or any other Person is joined in any such action or actions;

(d)payment by any Guarantor of a portion, but not all, of the Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Obligations that has not been paid (and, without limiting the generality of the foregoing, if the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the 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 Obligations);

(e)any Secured Party may, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of the Obligations Guarantees or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability under this Section 7, at any time and from time to time (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the 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 guarantees of the Obligations and take and hold security for the payment of the Obligations, (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Obligations, any other guarantees of the Obligations or any other obligation of any Person (including any other Guarantor) with respect to the Obligations, (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect of the Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent herewith and any applicable security agreement, including foreclosure on any such security or exercise of a power of sale pursuant to one or more judicial or nonjudicial 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 any other Credit Party or any security for the Obligations, and (vi) exercise any other rights available to it under the Credit Documents; and

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(f)the Obligations Guarantees and the obligations of the Guarantors thereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason, including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them (in any case other than payment in full in Cash of the Obligations or release of a Guarantor Subsidiary’s Obligations Guarantee in accordance with Section 9.8(d)(ii)): (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 Credit Documents, at law, in equity or otherwise) with respect to the Obligations or any agreement relating thereto, or with respect to any other guarantee of or security for the payment of the 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) of any Credit Document or any agreement or instrument executed pursuant thereto, or of any other guarantee or security for the Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document or any agreement relating to such other guarantee or security, (iii) the 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 Credit Documents under which any Obligations arose or from the proceeds of any security for the Obligations, except to the extent such security also serves as collateral for Indebtedness other than the Obligations) to the payment of obligations other than the Obligations, even though any Secured Party could have elected to apply such payment to all or any part of the Obligations, (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of the Borrower or any Subsidiary and to any corresponding restructuring of the Obligations, (vi) any failure to perfect or continue perfection of a security interest in any collateral that secures any of the Obligations, (vii) any defenses, set-offs or counterclaims that the Borrower or any other Person may allege or assert against any Secured Party in respect of the Obligations, including failure of consideration, breach of warranty, 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, that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Obligations.

7.4.Waivers by the Guarantors. Each Guarantor hereby waives, for the benefit of the Secured Parties: (a) any right to require any Secured Party, as a condition of payment or performance by such Guarantor in respect of its obligations under this Section 7, (i) to proceed against the Borrower, any other guarantor (including any other Guarantor) of the Obligations or any other Person, (ii) to proceed against or exhaust any security held from the Borrower, any such other guarantor or any other Person, (iii) to proceed against or have resort to any balance of any deposit account or credit on the books of any Secured Party in favor of any Credit Party or any other Person, or (iv) to pursue any other remedy in the power of any Secured Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Borrower or any other Guarantor, including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Borrower or any other Guarantor from any cause other than payment in full in Cash of the Obligations; (c) any defense based upon any law that provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Secured Party’s errors or omissions in the administration of the Obligations; (e) (1) any principles or provisions of any law that are or might be in conflict with the terms hereof or any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default under the Credit Documents or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to the Borrower or any other Guarantor and notices of any of the matters referred to in Section 7.3 and any right to consent to any thereof; and (g) 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.

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7.5.Guarantors’ Rights of Subrogation, Contribution, Etc. Until the Obligations shall have been indefeasibly paid in full in Cash and the Commitments shall have terminated, each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against the Borrower or any other Guarantor or any of its assets in connection with its Obligations Guarantee or the performance by such Guarantor of its obligations thereunder, 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 indemnity that such Guarantor now has or may hereafter have against the Borrower with respect to the Obligations, including any such right of indemnity under Section 7.2(a), (b) any right to enforce, or to participate in, any claim, right or remedy that any Secured Party now has or may hereafter have against the Borrower, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by or for the benefit of any Secured Party. In addition, until the Obligations shall have been indefeasibly paid in full in Cash and the Commitments shall have terminated, each Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any other guarantor (including any other Guarantor) of the Obligations, including any such right of contribution under Section 7.2(b). Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnity 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 indemnity such Guarantor may have against the 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 Secured Party may have against the Borrower or any other Guarantor, to all right, title and interest any Secured Party may have in any such collateral or security, and to any right any Secured Party may have against such other Guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnity or contribution rights at any time when all Obligations shall not have been indefeasibly paid in full in Cash and all Commitments not having terminated, such amount shall be held in trust for the Administrative Agent, for the benefit of the Secured Parties, and shall forthwith be paid over to the Administrative Agent, for the benefit of Secured Parties, to be credited and applied against the Obligations, whether matured or unmatured, in accordance with the terms hereof.

7.6.Continuing Guarantee. The Obligations Guarantee is a continuing guarantee and shall remain in effect (except, in the case of a Guarantor Subsidiary, if such Guarantor Subsidiary’s Obligations Guarantee shall have been released in accordance with Section 9.8(d)(ii)) until all of the Obligations (excluding contingent obligations as to which no claim has been made) shall have been paid in full in Cash and the Commitments shall have terminated. Each Guarantor hereby irrevocably waives any right to revoke its Obligations Guarantee as to future transactions giving rise to any Obligations.

7.7.Authority of the Guarantors or the Borrower. It is not necessary for any Secured Party to inquire into the capacity or powers of any Guarantor or the Borrower or any Related Party acting or purporting to act on behalf of any such Person.

7.8.Financial Condition of the Credit Parties. Any Credit Extension may be made or continued from time to time without notice to or authorization from any Guarantor regardless of the financial or other condition of the Borrower or any Subsidiary at the time of any such making or continuation. No Secured Party shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of the Borrower or any Subsidiary. Each Guarantor has adequate means to obtain information from the Borrower and the Subsidiaries on a continuing basis concerning the financial condition of the Borrower and the Subsidiaries and their ability to perform the Obligations, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of the Borrower and the Subsidiaries and of all circumstances bearing upon the risk of nonpayment of the Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Secured Party to disclose any matter, fact or thing relating to the business, results of operations, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or any Subsidiary now or hereafter known by any Secured Party.

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7.9.Bankruptcy, Etc. (a) The obligations of the 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, reorganization, liquidation, arrangement or similar proceeding of the Borrower or any other Guarantor or by any defense that the 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 Obligations that accrues after the commencement of any case or proceeding referred to in Section 7.9(a) (or, if interest on any portion of the 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 Obligations if such case or proceeding had not been commenced) shall be included in the Obligations because it is the intention of the Guarantors and the Secured Parties that the Obligations that are guaranteed by the Guarantors pursuant to this Section 7 should be determined without regard to any rule of law or order that may relieve the Borrower or any Subsidiary of any portion of any Obligations. The Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay to the Administrative Agent, for the benefit of the Secured Parties, or allow the claim of any Secured Party or of the Administrative Agent, for the benefit of the Secured Parties, in respect of, any such interest accruing after the date on which such case or proceeding is commenced.

In the event that all or any portion of the Obligations are paid by the Borrower or any Subsidiary, the obligations of the Guarantors under this Section 7 shall continue and remain in full force and effect or be reinstated, as the case may be (notwithstanding any prior release of any Obligations Guarantee), in the event that all or any part of such payment(s) are rescinded or recovered directly or indirectly from any Secured Party as a preference, fraudulent transfer or conveyance or transfer at undervalue or otherwise, and any such payments that are so rescinded or recovered shall constitute Obligations for all purposes hereunder.

SECTION 8.EVENTS OF DEFAULT

8.1.Events of Default. If any one or more of the following conditions or events shall occur:

(a)Failure to Make Payments When Due. Failure by the Borrower (i) to pay, when due, any principal of any Loan, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise or (ii) to pay, within five Business Days after the date due, any interest on any Loan or any fee or any other amount due hereunder;

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(b)Default in Other Agreements. (i) Failure by the Borrower or any Restricted Subsidiary, after the expiration of any applicable grace period, to make any payment that shall have become due and payable (whether of principal, interest or otherwise) in respect of any Material Indebtedness, or (ii) any condition or event shall occur that results in any Material Indebtedness becoming due, or being required to be prepaid, repurchased, redeemed or defeased, prior to its stated maturity or, in the case of any Hedge Agreement, being terminated, or that enables or permits the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf, or, in the case of any Hedge Agreement, the applicable counterparty, with or without the giving of notice but only after the expiration of any applicable grace period, to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity or, in the case of any Hedge Agreement, to cause the termination thereof; provided that this clause (b) shall not apply to (A) any secured Indebtedness becoming due as a result of the voluntary sale or transfer of the assets securing such Indebtedness; (B) any Indebtedness becoming due as a result of a voluntary refinancing thereof permitted under Section 6.1; or (C) any Indebtedness becoming due as a result of a voluntary (or, to the extent permitted by Section 2.14(c) or, in the case of Permitted Pari Passu Secured Indebtedness, Sections 2.13(a), 2.13(b) and 2.13(e), mandatory) prepayment, repurchase, redemption or defeasance thereof permitted hereunder; provided further that, notwithstanding the foregoing, any such failure, condition or event referred to in clause (i) or (ii) above, in each case, arising under any Permitted Section 6.1(e) Indebtedness Documents in respect of any Permitted Senior Lien Secured Indebtedness (other than a payment event of default occurring at the final maturity thereof) shall not constitute a Default or Event of Default under this clause (b) unless and until the lenders or other holders of the applicable Permitted Section 6.1(e) Indebtedness shall have declared such Indebtedness or any portion thereof to be immediately due and payable or commenced the exercise of any remedies thereunder, in each case, in accordance with the applicable Permitted Section 6.1(e) Indebtedness Documents, as a result of such failure, condition or event;

(c)Breach of Certain Covenants. Failure of any Credit Party to perform or comply with any term or condition contained in Section 2.5, 5.1(e)(i), 5.2 (with respect to the Borrower only), 5.14 or 6;

(d)Breach of Representations, Etc. Any representation, warranty, certification or other statement made or deemed made by or on behalf of any Credit Party in any Credit Document or in any report, certificate or statement at any time provided in writing by or on behalf of any Credit Party pursuant to or in connection with any Credit Document or the Transactions shall be incorrect in any material respect as of the date made or deemed made (or if any representation or warranty is expressly stated to have been made as of a specific date incorrect in any material respect as of such specific date);

(e)Other Defaults under Credit Documents. Failure of any Credit Party to perform or comply with any term or condition contained herein or in any other Credit Document, other than any such term or condition referred to in any other clause of this Section 8.1, and, except as may be expressly set forth in any such other Credit Document, such failure shall not have been remedied within 30 days after receipt by the Borrower of notice from the Administrative Agent or the Requisite Lenders of such failure;

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(f)Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of the Borrower or any Restricted Subsidiary that is a Material Subsidiary in an involuntary case under any Debtor Relief Laws, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal, state or foreign law; or (ii) an involuntary case shall be commenced against the Borrower or any Restricted Subsidiary that is a Material Subsidiary under any Debtor Relief Laws; or a decree or order of a court having jurisdiction in the premises for the involuntary appointment of an interim receiver, receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower or any Restricted Subsidiary that is a Material Subsidiary, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower or any Restricted Subsidiary that is a Material Subsidiary, or over all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against all or a substantial part of the property of the Borrower or any Restricted Subsidiary that is a Material Subsidiary, and any such event described in this clause (ii) shall continue for 60 days without having been dismissed, bonded or discharged;

(g)Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or any Restricted Subsidiary that is a Material Subsidiary shall have an order for relief entered with respect to it or shall commence a voluntary case under any Debtor Relief Laws, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Laws, or shall consent to the appointment of or taking possession by an interim receiver, receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower or any Restricted Subsidiary that is a Material Subsidiary, or over all or a substantial part of its property (other than any liquidation permitted by Section 6.8(a)(iv)); or the Borrower or any other Restricted Subsidiary that is a Material Subsidiary shall make any general assignment for the benefit of creditors; or the Borrower or any Restricted Subsidiary that is a Material Subsidiary shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of the Borrower or any Restricted Subsidiary that is a Material Subsidiary (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to in this Section 8.1(g) or in Section 8.1(f);

(h)Judgments and Attachments. One or more judgments for the payment of money in an aggregate amount of $12,000,000 or more (other than any such judgment covered by insurance (other than under a self-insurance program) provided by a financially sound insurer to the extent a claim therefor has been made in writing and liability therefor has not been denied in writing by the insurer), shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;

(i)Employee Benefit Plans. The occurrence of one or more ERISA Events or Foreign Plan Events that have had, or could reasonably be expected to result in liability which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(j)Change of Control. A Change of Control shall occur;

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(k)Obligations Guarantees, Collateral Documents and other Credit Documents. Any Obligations Guarantee (other than any Obligations Guarantee by any Restricted Subsidiary that is not a Material Subsidiary) purported to be created under the Credit Documents for any reason shall cease to be, or shall be asserted by any Credit Party not to be, in full force and effect (other than in accordance with its terms), or shall be declared to be null and void; any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by any Credit Party not to be, a valid and perfected Lien on any material Collateral, with the priority required by the applicable Collateral Document, except as a result of (i) a Disposition of the applicable Collateral in a transaction permitted under the Credit Documents, (ii) the release thereof as provided in Section 9.8(d) or (iii) the Collateral Agent’s failure to maintain possession of any stock certificate, promissory note or other instrument delivered to it under the Collateral Documents; or this Agreement or any Collateral Document shall cease to be in full force and effect (other than in accordance with its terms), or shall be declared null and void, or any Credit Party shall contest the validity or enforceability of any Credit Document or deny that it has any further liability, including with respect to future advances by Lenders, under any Credit Document to which it is a party (other than in accordance with its terms);

(l)Intercreditor Agreement. (i) Any Credit Party shall knowingly contest, or knowingly support another Person in any action that seeks to contest, the validity or effectiveness of the Intercreditor Agreement or any other Permitted Intercreditor Agreement (other than pursuant to the terms hereof or thereof) or (ii) the Intercreditor Agreement, or any other Permitted Intercreditor Agreement entered into after the date hereof, shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any party thereto (other than pursuant to the terms hereof or thereof); or

(m)Certain Subordination Agreements. (i) Any Credit Party or any holder of Permitted Subordinated Indebtedness shall knowingly contest, or knowingly support another Person in any action that seeks to contest, the validity or effectiveness of the subordination of any Permitted Subordinated Indebtedness to the Obligations on the terms required under this Agreement or (ii) any agreement (including any subordination provisions set forth in the Permitted Subordinated Indebtedness Documents) providing for subordination of any Permitted Subordinated Indebtedness to the Obligations shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any Credit Party or any holder of such Permitted Subordinated Indebtedness;

THEN, (i) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g), automatically, and (ii) upon (A) the occurrence and during the continuance of any other Event of Default and (B) notice to the Borrower by the Administrative Agent provided at the request of (or with the consent of) the Requisite Lenders, (1) the Commitments shall immediately terminate, (2) the unpaid principal amount of and accrued interest on the Loans and all other Obligations shall immediately become due and payable, in each case without presentment, demand, protest or other requirement of any kind, all of which are hereby expressly waived by each Credit Party, and (3) the Administrative Agent may cause the Collateral Agent to enforce any and all Liens created pursuant to the Collateral Documents.

SECTION 9.AGENTS

9.1.Appointment of Agents. Wilmington Trust is hereby appointed Administrative Agent and Collateral Agent hereunder and under the other Credit Documents, and each Lender hereby authorizes Wilmington Trust to act as the Administrative Agent and the Collateral Agent in accordance with the terms hereof and of the other Credit Documents. Each such Agent hereby agrees to act in its capacity as such upon the express conditions contained herein and in the other Credit Documents, as applicable. Other than Sections 9.7 and 9.8(d), the provisions of this Section 9 are solely for the benefit of the Agents and the Lenders, and no Credit Party shall have any rights as a third party beneficiary of any such provisions. In performing its functions and duties hereunder, no Agent assumes, and shall not be deemed to have assumed, any obligation towards or relationship of agency or trust with or for the Borrower or any Subsidiary.

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9.2.Powers and Duties. Each Lender irrevocably authorizes each Agent to take such actions and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such actions, powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly specified herein and in the other Credit Documents. No Agent shall have, by reason hereof or of any of the other Credit Documents, a fiduciary relationship in respect of any Lender or any other Person (regardless of whether or not a Default or an Event of Default has occurred), it being understood and agreed that the use of the term “agent” (or any other similar term) herein or in any other Credit Documents with reference to any Agent is not intended to connote any fiduciary or other implied obligations arising under any agency doctrine of any applicable law, and that such term is used as a matter of market custom; and nothing herein or in any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose upon any Agent any obligations in respect hereof or of any of the other Credit Documents except as expressly set forth herein or therein. Without limiting the generality of the foregoing, no Agent shall, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, or be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity.

9.3.General Immunity.

(a)No Responsibility for Certain Matters. No Agent shall be responsible to any Lender for (i) the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or of any other Credit Document; (ii) the creation, perfection, maintenance, preservation, continuation or priority of any Lien or security interest created, purported to be created or required under any Credit Document; (iii) the value or the sufficiency of any Collateral; (iv) the satisfaction of any condition set forth in Section 3 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent; (v) the failure of any Credit Party, Lender or other Agent to perform its obligations hereunder or under any other Credit Document; or (vi) any representations, warranties, recitals or statements made herein or therein or in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to the Lenders or by or on behalf of any Credit Party to any Agent or any Lender in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or affairs of any Credit Party or any other Person liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Default or Event of Default (nor shall any Agent be deemed to have knowledge of the existence or possible existence of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower or any Lender) or to make any disclosures with respect to the foregoing. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from, or be responsible for any loss, cost or expense suffered by the Borrower, any Subsidiary or any Lender as a result of, confirmations of the amount of outstanding Loans, the calculation of the Yield Maintenance Amount or the Weighted Average Yield with respect to any Indebtedness, any exchange rate determination or currency conversion, the terms and conditions of any Permitted Intercreditor Agreement or any Permitted Subordinated Indebtedness Document or of any subordination terms applicable to any Permitted Subordinated Indebtedness, in each case except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

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(b)Exculpatory Provisions. None of any Agent or any of its Related Parties shall be liable to the Lenders for any action taken or omitted by such Agent under or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each Agent shall be entitled to refrain from the taking of any action (including the failure to take an action) in connection herewith or with any of the other Credit Documents or from the exercise of any power, discretion or authority (including the making of any requests, determinations, judgments, calculations or the expression of any satisfaction or approval) vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from the Requisite Lenders (or such other Lenders as may be required, or as such Agent shall believe in good faith to be required, to give such instructions under Section 10.5) and upon receipt of such instructions from the Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions; provided that such Agent shall not be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Credit Document or applicable law, including any action that may be in violation of the automatic stay under any Debtor Relief Laws. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any telephonic notice, electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise provided by the proper Person (whether or not such Person in fact meets the requirements set forth in the Credit Documents for being the signatory, sender or provider thereof) and on opinions and judgments of attorneys (who may be attorneys for the Borrower and the Subsidiaries), accountants, insurance consultants, architects, engineers and other experts or professional advisors selected by it, and such Agent shall not be liable for any action it takes or omits to take in good faith in reliance on any of the foregoing documents; and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of the Requisite Lenders (or such other Lenders as may be required, or as such Agent shall believe in good faith to be required, to give such instructions under Section 10.5). In determining compliance with any condition hereunder to the making of any Credit Extension that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume the satisfaction of such Lender unless the Administrative Agent shall have received written notice to the contrary from such Lender reasonably in advance of such Credit Extension.

(c)Delegation of Duties. Each Agent may perform any and all of its duties and exercise any and all of its powers, rights and remedies under this Agreement or any other Credit Document by or through any one or more sub-agents appointed by such Agent. Each Agent and any such of its sub-agents may perform any and all of its duties and exercise any and all of its powers, rights and remedies by or through their respective Affiliates. The exculpatory, indemnification and other provisions set forth in this Section 9.3 and in Sections 9.6 and 10.3 shall apply to any such sub-agent or Affiliate (and to their respective Related Parties) as if they were named as such Agent. No Agent shall be responsible for the negligence or misconduct of any sub-agent appointed by it except to the extent that a court of competent jurisdiction determines in a final, non-appealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by any Agent, (i) such sub-agent shall be a third party beneficiary under the exculpatory, indemnification and other provisions set forth in this Section 9.3 and Sections 9.6 and 10.3 and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such provisions directly, without the consent or joinder of any other Person, against any or all of the Credit Parties and the Lenders and (ii) such sub-agent shall only have obligations to such Agent, and not to any Credit Party, any Lender or any other Person, and no Credit Party, Lender or any other Person shall have any rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent.

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(d)Concerning Arrangers and Certain Other Indemnitees. Notwithstanding anything herein to the contrary, none of the Arrangers, the Syndication Agent or any of the co-agents, bookrunners or managers listed on the cover page hereof shall have any duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Administrative Agent, the Collateral Agent or a Lender hereunder or, in the case of any Auction Manager or any other Person appointed under the Credit Documents to serve as an agent or in a similar capacity, the duties and responsibilities that are expressly specified in the applicable Credit Documents with respect thereto, but all such Persons shall have the benefit of the exculpatory, indemnification and other provisions set forth in this Section 9 and in Section 10.3 and shall have all of the rights and benefits of a third party beneficiary with respect thereto, including an independent right of action to enforce such provisions directly, without the consent or joinder of any other Person, against any or all of the Credit Parties and the Lenders. The exculpatory, indemnification and other provisions set forth in this Section 9 and in Section 10.3 shall apply to any Affiliate or other Related Party of any Arranger or any Agent in connection with the arrangement and syndication of the credit facilities provided for herein (including pursuant to Section 2.23, 2.24 and 2.25) and any amendment, supplement or modification hereof or of any other Credit Document (including in connection with any Extension/Modification Offer), as well as activities as an Agent.

9.4.Acts in Individual Capacity. Nothing herein or in any other Credit Document shall in any way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. With respect to its Loans, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder. Each Agent 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 banking, trust, financial advisory, commodity, derivative or other business with the Borrower or any of its Affiliates as if it were not performing the duties and functions specified herein, and may accept fees and other consideration from the Borrower and its Affiliates for services in connection herewith and otherwise, in each case without having to account therefor to the Lenders. Each Agent and its Affiliates, when acting under any agreement in respect of any such activity or under any related agreements, will be acting for its own account as principal and will be under no obligation or duty as a result of such Agent’s role in connection with the credit facility provided herein or otherwise to take any action or refrain from taking any action (including refraining from exercising any right or remedy that might be available to it).

9.5.Lenders’ Representations, Warranties and Acknowledgments. (a) Each Lender represents and warrants that it has made, and will continue to make, its own independent investigation of the financial condition and affairs of the Borrower and the Subsidiaries in connection with Credit Extensions or taking or not taking action under or based upon any Credit Document, in each case without reliance on any Agent, any Arranger or any of their respective Related Parties. No Agent shall 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 to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Credit Extensions or at any time or times thereafter.

(b)Each Lender, by delivering its signature page to this Agreement,an Assignment Agreement, a Refinancing Facility Agreement or an Incremental Facility Agreement and funding its Loans on the Closing Date or by funding any Refinancing Loan or any Incremental Loan, as the case may be, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, the Requisite Lenders or any other Lenders, as applicable, on the Closing Date or as of the date of funding of such Refinancing Loans or Incremental Loans.

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(c)Each Lender acknowledges and agrees that Wilmington Trust or one or more of its Affiliates will be acting as the administrative agent and collateral agent under the First Lien Credit Agreement and may (but is not obligated to) act as administrative agent, collateral agent or a similar representative for the holders of any other Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness and any Permitted Incremental Equivalent Indebtedness and, in its capacity as the administrative agent and collateral agent under the First Lien Credit Agreement, is a party to the Intercreditor Agreement and, in such other capacities, may be a party to a Permitted Intercreditor Agreement. Each Lender and Credit Party waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against Wilmington Trust or any of its Affiliates any claims, causes of action, damages or liabilities of whatever kind or nature relating to any such conflict of interest.

9.6.Right to Indemnity. Each Lender, in proportion to its applicable Pro Rata Share (determined as set forth below), severally agrees to indemnify each Agent and each Related Party thereof, to the extent that such Agent or such Related Party shall not have been reimbursed by any Credit Party (and without limiting any Credit Party’s obligations under the Credit Documents to do so), for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses (including fees, expenses and other charges of counsel) or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against such Agent or any such Related Party in exercising the powers, rights and remedies, or performing the duties and functions, of such Agent under the Credit Documents or any other documents contemplated by or referred to therein or otherwise in relation to its capacity as an Agent; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided that in no event shall this sentence require any Lender to indemnify such Agent against any liability, obligation, loss, damage, penalty, claim, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s applicable Pro Rata Share thereof; and provided further that this sentence shall not be deemed to require any Lender to indemnify such Agent against any liability, obligation, loss, damage, penalty, claim, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. For purposes of this Section 9.6, “Pro Rata Share” shall be determined as of the time that the applicable indemnity payment is sought (or, in the event at such time all the Commitments shall have terminated and all the Loans shall have been repaid in full, as of the time most recently prior thereto when any Loans or Commitments remained outstanding).

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9.7.Successor Administrative Agent and Collateral Agent. Subject to the terms of this Section 9.7, the Administrative Agent may resign at any time from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Requisite Lenders, subject to, unless an Event of Default shall have occurred and is continuing, the prior written consent of the Borrower (not to be unreasonably withheld, conditioned or delayed), shall have the right to appoint a successor. If no successor shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within 30 days after the resigning Administrative Agent gives notice of its intent to resign, then the resigning Administrative Agent may, on behalf of the Lenders, appoint a successor; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender or a Disqualified Institution. If the Administrative Agent shall be a Defaulting Lender pursuant to clause (d) of the definition of such term, the Requisite Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and the Administrative Agent remove the Administrative Agent in its capacity as such and, subject to, unless an Event of Default shall have occurred and is continuing, the prior written consent of the Borrower (not to be unreasonably withheld, conditioned or delayed), appoint a successor. Any resignation or removal of the Administrative Agent shall be deemed to be a resignation of the Collateral Agent, and any successor Administrative Agent appointed pursuant to this Section 9.7 shall, upon its acceptance of such appointment, become the successor Collateral Agent for all purposes of the Credit Documents. Upon the acceptance of its appointment as Administrative Agent and Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning or removed Administrative Agent and Collateral Agent, and the resigning or removed Administrative Agent and Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents. The fees payable by the Borrower to a successor Administrative Agent and Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed by the Borrower and such successor.Notwithstanding the foregoing, in the event (a) no successor to a resigning Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the resigning Administrative Agent gives notice of its intent to resign, the resigning Administrative Agent may give notice of the effectiveness of its resignation to the Lenders and the Borrower or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment by the day that is 30 days following of the issuance of a notice of removal, the removal shall become effective on such 30th day, and on the date of effectiveness of such resignation or removal, as the case may be, (i) the resigning or removed Administrative Agent and Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents, provided that, solely for purposes of maintaining any security interest granted to the Collateral Agent under any Collateral Document for the benefit of the Secured Parties, the resigning or removed Collateral Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Collateral Agent, shall continue to hold such Collateral, in each case until such time as a successor Collateral Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the resigning or removed Collateral Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (ii) the Requisite Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning or removed Administrative Agent and Collateral Agent, provided that (A) all payments required to be made hereunder or under any other Credit Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent or the Collateral Agent shall also directly be given or made to each Lender. Following the effectiveness of the Administrative Agent’s and Collateral Agent’s resignation from its capacity as such, the provisions of this Section 9 and of Section 10.3 shall continue in effect for the benefit of such resigning or removed 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 it was acting as Administrative Agent or Collateral Agent, as applicable, and in respect of the matters referred to in the proviso under clause (a) above.

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9.8.Collateral Documents and Obligations Guarantee. (a) Agents under Collateral Documents and the Obligations Guarantee. Each Secured Party hereby further authorizes the Administrative Agent and the Collateral Agent to be the agent for and representative of the Secured Parties with respect to the Guarantees purported to be created under the Credit Documents, the Collateral and the Credit Documents and authorizes the Administrative Agent and the Collateral Agent to execute and deliver, on behalf of such Secured Party, any Collateral Documents that the Administrative Agent or the Collateral Agent determines in its discretion to execute and deliver in connection with the satisfaction of the Collateral and Guarantee Requirement (and hereby grants to the Administrative Agent and the Collateral Agent any power of attorney that may be required under any applicable law in connection with such execution and delivery on behalf of such Secured Party).

(b)Right to Realize on Collateral and Enforce Obligations Guarantee. Notwithstanding anything contained in any of the Credit Documents to the contrary, the Credit Parties, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) except with respect to the exercise of set-off rights of any Lender or with respect to a Secured Party’s right to file a proof of claim in any proceeding under the Debtor Relief Laws, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantees purported to be created under the Credit Documents, it being understood and agreed that all powers, rights and remedies under the Credit Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the terms thereof and that all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof and (ii) in the event of a foreclosure, exercise of a power of sale or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code, any analogous Debtor Relief Laws or any law relating to the granting or perfection of security interests), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code any analogous Debtor Relief Laws or any law relating to the granting or perfection of security interests) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Requisite Lenders (subject to procedures reasonably satisfactory to the Collateral Agent), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold or licensed at any such sale or other disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition. In connection with any such bid referred to in clause (ii) above, (A) the Collateral Agent shall be authorized to form one or more acquisition vehicles to make a bid, (B) the Collateral Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Collateral Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof, shall be governed, directly or indirectly, by the vote of the Requisite Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Requisite Lenders contained in Section 10.5(a), (C) the Collateral Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata among the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (D) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.

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(c)[Reserved].

(d)Release of Collateral and Obligations Guarantees. Notwithstanding anything to the contrary herein or in any other Credit Document:

(i)When all Obligations (excluding contingent obligations as to which no claim has been made) have been paid in full and all Commitments have terminated, upon request of the Borrower, the Administrative Agent and the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party) take such actions as shall be required to release its security interest in all Collateral, and to release all Guarantees provided for in any Credit Document.

(ii)(A) If (x) any Guarantor Subsidiary shall have been designated as an Unrestricted Subsidiary in accordance with the terms hereof or (y) all the Equity Interests in any Guarantor Subsidiary held by the Borrower and the Subsidiaries shall be sold or otherwise disposed of (including by merger or consolidation) in any transaction permitted by this Agreement, and as a result of such sale or other disposition such Guarantor Subsidiary shall cease to be a Subsidiary of the Borrower, such Guarantor Subsidiary shall, upon effectiveness of such designation, or the consummation of such sale or other disposition, automatically be discharged and released from its Obligations Guarantee and all security interests created by the Collateral Documents in Collateral owned by such Guarantor Subsidiary shall be automatically released, without any further action by any Secured Party or any other Person; provided that no such discharge or release shall occur unless substantially concurrently therewith, such Subsidiary shall have been discharged and released from its Guarantee of all Permitted Section 6.1(e) Indebtedness, all Permitted Credit Agreement Refinancing Indebtedness, all Permitted Incremental Equivalent Indebtedness and all Permitted Subordinated Indebtedness, and all Liens on the assets of such Subsidiary securing any such Indebtedness shall have been released.

(B)Upon any sale or other transfer by any Credit Party (other than to the Borrower or any Restricted Subsidiary) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 10.5, the security interests in such Collateral created by the Collateral Documents shall be automatically released, without any further action by any Secured Party or any other Person; provided that no such release shall occur unless substantially concurrently therewith, such Collateral shall cease to be subject to any security interests securing any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness and any Permitted Incremental Equivalent Indebtedness.

(C)The Escrow Cash Collateral shall be released from the Escrow Cash Collateral Account as provided in Section 9.8(d)(ii) of the First Lien Credit Agreement and upon such release, the Escrow Cash Collateral Control Agreement shall be terminated and all security interests created by the Escrow Cash Collateral Control Agreement or any other Collateral Document in the Escrow Cash Collateral shall be automatically released, without any further action by any Secured Party or any other Person.

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(D)The Vector Subordinated Note Collateral, including any Cash or Cash Equivalents on deposit in the Vector Subordinated Note Cash Collateral Account, and all security interests created by the Vector Subordinated Note Cash Collateral Account Control Agreement or any other Collateral Document in any Vector Subordinated Note Collateral shall be automatically released, without any further action by any Secured Party or any other Person, upon release of thereof under the First Lien Credit Documents, including as provided in Section 9.8(d)(ii) of the First Lien Credit Agreement.

(iii)Each Secured Party authorizes the Collateral Agent to subordinate, at the request of the Borrower, any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(d) or 6.2(o); provided that no such subordination shall occur unless substantially concurrently therewith, any Lien on such property securing any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness and any Permitted Incremental Equivalent Indebtedness shall also be so subordinated.

(iv)In connection with any termination, release or subordination pursuant to this Section 9.8(d), the Administrative Agent and the Collateral Agent shall execute and deliver to any Credit Party, at such Credit Party’s expense, all documents that such Credit Party shall reasonably request to evidence such termination, release or subordination. Any execution and delivery of documents pursuant to this Section 9.8(d) shall be without recourse to or warranty by the Administrative Agent or the Collateral Agent.

(e)Additional Exculpatory Provisions. The Collateral 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 any Collateral, the existence, priority or perfection of the Collateral Agent’s Lien on any Collateral or any certificate prepared by any Credit Party in connection therewith, nor shall the Collateral Agent be responsible or liable to the Secured Parties for any failure to monitor or maintain any portion of the Collateral.

(f)Acceptance of Benefits. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral or the Guarantees purported to be created under the Credit Documents, to have agreed to the provisions of this Section 9 (including the authorization and the grant of the power of attorney pursuant to Section 9.8(a)), Section 10.24 and all the other provisions of this Agreement relating to Collateral, any such Guarantee or any Collateral Document and to have agreed to be bound by the Credit Documents as a Secured Party thereunder. It is understood and agreed that the benefits of the Collateral and any such Guarantee to any Secured Party are made available on an express condition that, and is subject to, such Secured Party not asserting that it is not bound by the appointments and other agreements expressed herein to be made, or deemed herein to be made, by such Secured Party.

9.9.Withholding Taxes. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, or if the Administrative Agent reasonably determines that a payment was made to a Lender pursuant to this Agreement without deduction of applicable withholding Tax from such payment, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.

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9.10.Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Laws with respect to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(a)to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;

(b)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans 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, the Administrative Agent, the Collateral Agent and any other Secured Party (including any claim under Sections 2.7, 2.9, 2.15, 2.17, 2.18, 2.19, 10.2 and 10.3) allowed in such judicial proceeding; and

(c)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 proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to the Administrative Agent, in such capacity or in its capacity as the Collateral Agent, or to its Related Parties under the Credit Documents (including under Sections 10.2 and 10.3). To the extent that the payment of any such amounts due to the Administrative Agent, in such capacity or in its capacity as the Collateral Agent, or to its Related Parties out of the estate in any such proceeding shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other property that the Lenders or the other Secured Parties may be entitled to receive in such proceeding, whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender, or to vote in respect of the claim of any Lender in any such proceeding.

9.11.Certain ERISA Matters.

(a)Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true:

(i)such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments,

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(ii)the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,

(iii)(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or

(iv)such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(b)In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that:

(i)none of the Administrative Agent or the Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, the Loans or any documents related to hereto or thereto),

(ii)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

(iii)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),

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(iv)the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

(v)no fee or other compensation is being paid directly to the Administrative Agent or the Arrangers and their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Commitments or this Agreement.

(c)The Administrative Agent and the Arrangers and their respective Affiliates hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

9.12.Concerning the Vector Facility Arrangements. Each Lender and Credit Party acknowledges and agrees that Goldman Sachs or one or more of its Affiliates will be the Vector Senior Loan Facility Lender party to the Vector Facility Arrangements, and that any Vector Collateral provided as collateral to secure obligations of the Vector Lenders thereunder (including any such assets in the form of “Tranche B Term Loans” made under the First Lien Credit Agreement held by any Vector Lenders) is held by Goldman Sachs or any such Affiliate solely in its individual capacity, for its own benefit, and not in its capacity as an Agent for the benefit of any Secured Party. Each Lender and Credit Party further acknowledges and agrees that in exercising rights and remedies with respect to any Vector Collateral or otherwise in respect of the Vector Facility Arrangements, Goldman Sachs or any of its Affiliates may enforce the provisions of the Vector Facility Arrangements and exercise its rights thereunder, including enforcing the subordination provisions under the Vector Subordinated Note, directing the voting by any Vector Lender of its “Tranche B Term Loans” made under the First Lien Credit Agreement and making determinations of the current market value of the “Tranche B Term Loans” made under the First Lien Credit Agreement, and exercise remedies thereunder and under applicable law, all in such order and in such manner as it may determine in its sole discretion and as if it were not an Agent (or an Affiliate of an Agent) hereunder (and notwithstanding the fact that such exercise of rights and enforcement of remedies could have an adverse effect on the value of the loan made by the Borrower under the Vector Subordinated Note or its ability to obtain the repayment thereof), and will be under no obligation or duty as a result of its (or its Affiliate’s) role as an Agent or Lender hereunder to take any action or refrain from taking any action (including refraining from enforcing or exercising any right or remedy that might be available to it) in respect of the Vector Facility Arrangements (and that as a result of exercising rights and remedies with respect to any Vector Collateral, Goldman Sachs or any of its Affiliates may foreclose upon (and become and be a lender under the First Lien Credit Agreement holding a significant portion of the “Tranche B Term Loans” made under the First Lien Credit Agreement), and/or may assign or cause the assignment to any eligible assignee under the First Lien Credit Agreement of, all or any part of the “Tranche B Term Loans” made under the First Lien Credit Agreement held by the Vector Lenders that constitute Vector Collateral), and each Lender agrees not to assert, and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling or other similar right that may be available under applicable law with respect to the Vector Collateral. Each Lender and Credit Party waives any conflict of interest, now contemplated or arising hereafter, in connection with the Vector Facility Arrangements and agrees not to assert against Goldman Sachs or any of its Affiliates any claims, causes of action, damages or liabilities of whatever kind or nature relating to any such conflict of interest.

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SECTION 10.MISCELLANEOUS

10.1.Notices. Notices Generally. (a) Any notice or other communication hereunder given to any Credit Party, the Administrative Agent, the Collateral Agent or any Lender shall be given to such Person at its address, fax number or e-mail address as set forth on Schedule 10.1 or, in the case of any Lender, at such address, fax number or e-mail address as shall have been provided by such Lender to the Administrative Agent in writing; provided that, notwithstanding the foregoing, no notice or other communication hereunder may be provided to any Credit Party by means of a fax. Except in the case of notices and other communications expressly permitted to be given by telephone and as otherwise provided in Section 10.1(b), each notice or other communication hereunder shall be in writing and shall be delivered in person or sent by e-mail, courier service or certified or registered United States mail or, except for notices or other communications to any Credit Party, facsimile and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, when sent by facsimile as shown on the transmission report therefor (or, if not sent during normal business hours for the recipient, at the opening of business on the next Business Day for the recipient), as provided in Section 10.1(b) if sent by e-mail or upon receipt if sent by United States mail; provided that no notice or other communication given to the Administrative Agent or the Collateral Agent shall be effective until received by it; and provided further that any such notice or other communication shall, at the request of the Administrative Agent, be provided to any sub-agent appointed pursuant to Section 9.3(c) from time to time. Any party hereto may change its address (including its e-mail address, fax or telephone number) for notices and other communications hereunder by notice to each of the Administrative Agent and the Borrower.

(b)Electronic Communications.

(i)Notices and other communications to any Lender hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2 if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. Each of the Administrative Agent, the Collateral Agent and the Borrower may, 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 or rescinded by such Person by notice to each other such Person; provided, further, that notices and other communications to the Administrative Agent or the Collateral Agent may be delivered to it at the e-mail address specified in Section 10.1(a). Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address, if not sent during the normal business hours of the recipient, shall be deemed to have been sent at the opening of business on the next Business Day for the recipient; and (B) 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 (A) of notification that such notice or communication is available and identifying the website address therefor.

(ii)Each party hereto understands that the distribution of materials through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of the Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

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(iii)THE PLATFORM AND ANY APPROVED ELECTRONIC COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF THE AGENTS OR ANY OF THEIR RELATED PARTIES WARRANTS AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED ELECTRONIC COMMUNICATIONS OR THE PLATFORM, AND EACH OF THE AGENTS AND THEIR RELATED PARTIES EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS. 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 OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE PLATFORM OR THE APPROVED ELECTRONIC COMMUNICATIONS.

(iv)Each Credit Party and each Lender agrees that the Administrative Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.

(c)Private Side Information Contacts. Each Public Lender agrees to cause at least one individual at or acting on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public Side Information” portion of the Platform and that may contain Private-Side Information. In the event that any Public Lender has determined for itself not to access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) none of any Credit Party or any Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Credit Documents.

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10.2.Expenses. The Borrower agrees to pay promptly (a) all reasonable and documented out-of-pocket costs and expenses (including the reasonable fees, expenses and other charges of counsel) incurred by any Agent, any Arranger or any of their respective Affiliates in connection with the structuring, arrangement and syndication of the credit facilities provided for herein and any credit or similar facility refinancing, extending or replacing, in whole or in part, the credit facilities provided herein, including the preparation, execution, delivery and administration of this Agreement, the other Credit Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated thereby shall be consummated) or any other document or matter requested by the Borrower or any other Credit Party, (b) all reasonable and documented out-of-pocket costs and expenses of creating, perfecting, recording, maintaining and preserving Liens in favor of the Collateral Agent for the benefit of the Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and other charges of counsel to the Collateral Agent and of counsel providing any opinions that the Administrative Agent or the Collateral Agent may reasonably request in respect of the Collateral or the Liens created pursuant to the Collateral Documents, (c) all reasonable and documented out-of-pocket costs, fees, expenses and other charges of any auditors, accountants, consultants or appraisers of any Agent or Arranger, (d) all reasonable and documented out-of-pocket costs and expenses (including the reasonable fees, expenses and other charges of any appraisers, consultants, advisors and agents employed or retained by the Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral or any insurance process, and (e) after the occurrence and during the continuance of a Default or an Event of Default, all out-of-pocket costs and expenses, including reasonable fees, expenses and other charges of counsel and costs of settlement, incurred by any Agent, Arranger or Lender in enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder or under the other Credit Documents by reason of such Default or Event of Default (including in connection with the sale, lease or license of, collection from, or other realization upon any of the Collateral or the enforcement of any Obligations Guarantee) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work-out” or pursuant to any insolvency or bankruptcy cases or proceedings; provided that, in the case of clauses (a), (b), (c) and (d) above, costs and expenses with respect to counsel shall be limited to one firm of primary counsel, one firm of regulatory counsel and, if reasonably necessary, one firm of local counsel in each applicable jurisdiction for all Persons entitled to reimbursement under this Section 10.2 (and, if any such Person shall have advised the Borrower that there is an actual or perceived conflict of interest, one additional firm of primary counsel, one additional firm of regulatory counsel and, if reasonably necessary, one additional firm of local counsel in each applicable jurisdiction for each group of affected Persons that are similarly situated) (in each case, excluding allocated costs of in-house counsel). All amounts due under this Section 10.2 shall be payable promptly after written demand therefor.

10.3.Indemnity. (a) In addition to the payment of expenses pursuant to Section 10.2, each Credit Party agrees to defend (subject to the applicable Indemnitee’s selection of counsel), indemnify, pay and hold harmless each Agent (and each sub-agent thereof), Arranger and Lender and each of their respective Related Parties (each, an “Indemnitee”), from and against any and all Indemnified Liabilities. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH INDEMNIFIED LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY OR OUT OF ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY INDEMNITEE; provided that no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (i) the gross negligence or willful misconduct of such Indemnitee or its Related Parties, (ii) a material breach in bad faith by such Indemnitee or its Related Parties of its express obligations under this Agreement or (iii) any action, investigation, claim, litigation or proceeding not involving an act or omission by any Credit Party or the equityholders or Affiliates of any Credit Party (or the Related Parties of any Credit Party) that is brought by an Indemnitee against another Indemnitee (other than against any Agent or any Arranger (or any holder of any other title or role) in its capacity as such). This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent Indemnified Liabilities arising from any non-Tax claim.

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(b)To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Agent, any Arranger or any Lender or any Related Party of any of the foregoing on any theory of liability, for indirect, consequential, special or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or any 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 other Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, the syndication of the credit facilities provided for herein, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim for indirect, consequential, special or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

(c)Each Credit Party agrees that no Agent, Arranger or Lender or any Related Party of any of the foregoing will have any liability to any Credit Party or any Person asserting claims on behalf of or in right of any Credit Party or any other Person in connection with or as a result of this Agreement or any other Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith except (but subject to Section 10.3(b)), in the case of any Credit Party, to the extent that any losses, claims, damages, liabilities or expenses have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (i) the gross negligence or willful misconduct of such Agent, Arranger or Lender or its Related Parties in performing its obligations under this Agreement or any other Credit Document or (ii) a material breach in bad faith by such Agent, Arranger or Lender or its Related Parties of its express obligations under this Agreement.

10.4.Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default each Lender is hereby authorized by each Credit Party at any time or from time to time, without notice to any Credit Party, any such notice being hereby expressly waived, to set-off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender to or for the credit or the account of any Credit Party against and on account of the obligations and liabilities of any Credit Party to such Lender hereunder and under the other Credit Documents, including all claims of any nature or description arising out of or connected hereto or thereto, irrespective of whether or not (a) such Lender shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable and although such obligations and liabilities, or any of them, may be contingent or unmatured. Each Lender agrees to notify the Administrative Agent promptly after any such set-off and application; provided that the failure to give such notice shall not affect the validity of such set-off and application.

10.5.Amendments and Waivers. (a) Requisite Lenders’ Consent. Except as provided in Section 2.23, 2.24 or 2.25, none of this Agreement, any other Credit Document or any provision hereof or thereof may be waived, amended or modified, and no consent to any departure by any Credit Party therefrom may be made, except, subject to the additional requirements of Sections 10.5(b) and 10.5(c) and as otherwise provided in Sections 10.5(d) and 10.5(e), in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Requisite Lenders and, in the case of any other Credit Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent or the Collateral Agent, as applicable, and the Credit Party or Credit Parties that are parties thereto, in each case with the consent of the Requisite Lenders.

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(b)Affected Lenders’ Consent. In addition to any consent required pursuant to Section 10.5(a), without the written consent of each Lender that would be directly affected thereby, no waiver, amendment or other modification of this Agreement or any other Credit Document, or any consent to any departure by any Credit Party therefrom, shall be effective if the effect thereof would be to:

(i)increase any Commitment or postpone the scheduled expiration date of any Commitment (it being understood that no waiver, amendment or other modification of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Commitment of any Lender);

(ii)extend the scheduled final maturity date of any Loan;

(iii)[Reserved];

(iv)waive, reduce or postpone any scheduled amortization payment (but not any voluntary or mandatory prepayment) of any Loan;

(v)reduce the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.9 or Section 2.23(b)(iii)) or any fee or any premium payable hereunder (other than under Section 2.23(b)(iii)), or waive or postpone the time for payment of any such interest, fee or premium;

(vi)reduce the principal amount of any Loan;

(vii)waive, amend or otherwise modify any provision of this Section 10.5(b), Section 10.5(c) or any other provision of this Agreement or any other Credit Document that expressly provides that the consent of all Lenders is required to waive, amend or otherwise modify any rights thereunder or to make any determination or grant any consent thereunder (including such provision set forth in Section 10.6(a));

(viii)amend the percentage specified in the definition of the term “Requisite Lenders” or amend the term “Pro Rata Share” or waive, amend or otherwise modify Section 2.16 hereof or Section 5.02 of the Pledge and Security Agreement (and any comparable provision of any other Collateral Document) in a manner that would alter the pro rata sharing of payments required thereby; provided that additional extensions of credit made pursuant to Section 2.23, 2.24 or 2.25 shall be included, and with the consent of the Requisite Lenders other additional extensions of credit pursuant hereto may be included, in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis as the Commitments and the Loans are included on the Closing Date; or

(ix)release all or substantially all the Collateral from the Liens of the Collateral Documents, or all or substantially all the Guarantor Subsidiaries from the Guarantees created under the Credit Documents (or limit liability of all or substantially all the Guarantor Subsidiaries in respect of any such Guarantee), in each case except as expressly provided in the Credit Documents or any Senior Lien Intercreditor Agreement and except in connection with a “credit bid” undertaken by the Collateral Agent at the direction of the Requisite Lenders pursuant to section 363(k), section 1129(b)(2)(a)(ii) or any other section of the Bankruptcy Code or any other sale or other disposition of assets in connection with other Debtor Relief Laws or an enforcement action with respect to the Collateral permitted pursuant to the Credit Documents (in which case only the consent of the Requisite Lenders will be required for such release) (it being understood that (A) an amendment or other modification of the type of obligations secured by the Collateral Documents or Guaranteed hereunder or thereunder shall not be deemed to be a release of the Collateral from the Liens of the Collateral Documents or a release or limitation of any such Guarantee and (B) an amendment or other modification of Section 6.8 shall only require the consent of the Requisite Lenders);

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provided that, for the avoidance of doubt, all Lenders shall be deemed directly affected by any waiver, amendment or other modification, or any consent, described in the preceding clauses (vii), (viii) and (ix).

(c)Other Consents. No waiver, amendment or other modification of this Agreement or any other Credit Document, or any consent to any departure by any Credit Party therefrom, shall:

(i)(A) waive, amend or otherwise modify Section 2.14 or any other provision of any Credit Document in a manner that by its terms would disproportionately and adversely affect the rights or duties of Lenders of any Class differently than Lenders of any other Class, without the consent of Lenders representing a Majority in Interest of each affected Class, provided that the Requisite Lenders may waive, in whole or in part, any prepayment of Loans hereunder so long as the application, as between Classes, of any portion of such prepayment that is still required to be made is not altered, or (B) waive, amend or otherwise modify this Section 10.5(c)(i) or any other provision of this Agreement or any other Credit Document that expressly provides that the consent of all Lenders of any Class or a Majority in Interest of Lenders of any Class is required to waive, amend or otherwise modify any rights thereunder or to make any determination or grant any consent thereunder, in each case without the consent of each Lender of such Class or a Majority in Interest of the Lenders of such Class, as the case may be; provided that nothing in this Section 10.5(c)(i) shall be deemed to restrict the amendments contemplated by Section 2.23, 2.24 or 2.25;

(ii)waive, amend or otherwise modify the rights, duties, privileges, protections, indemnities, immunities or obligations of, or any fees or other amounts payable to, any Agent without the prior written consent of such Agent; or

(iii)waive, amend or otherwise modify the provisions of Section 9.12 without the prior written consent of Goldman Sachs (and Goldman Sachs shall be a third party beneficiary of such provisions and this Section 10.5(c)(iii) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such provisions and this Section 10.5(c)(iii) directly, without the consent or joinder of any other Person, against any or all of the Credit Parties and the Lenders).

(d)Class Amendments. Notwithstanding anything to the contrary in Section 10.5(a), any waiver, amendment or modification of this Agreement or any other Credit Document, or any consent to any departure by any Credit Party therefrom, that by its terms affects the rights or duties under this Agreement of the Lenders of a particular Class or Classes (but not Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite number or percentage in interest of each affected Class of Lenders that would be required to consent thereto under this Section 10.5 if such Class of Lenders were the only Class of Lenders hereunder at the time.

(e)Certain Permitted Amendments. Notwithstanding anything herein or in any other Credit Document to the contrary:

(i)any provision of this Agreement or any other Credit Document may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to cure any obvious error or any ambiguity, omission, defect or inconsistency of a technical nature, so long as the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Requisite Lenders stating that the Requisite Lenders object to such amendment;

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(ii)in connection with any transaction permitted by Section 2.23, 2.24 or 2.25, this Agreement and the other Credit Documents may be amended or modified as contemplated by Section 2.23, 2.24 or 2.25, including to add any covenant applicable to the Borrower and/or the Restricted Subsidiaries or any other provisions for the benefit of the Lenders;

(iii)in connection with the incurrence of any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, this Agreement and the other Credit Documents may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to add any covenant applicable to the Borrower and/or the Restricted Subsidiaries (including any Previously Absent Financial Maintenance Covenant) or any other provisions for the benefit of the Lenders;

(iv)the Administrative Agent and the Collateral Agent may, without the consent of any other Secured Party, (A) consent to a departure by any Credit Party from any covenant of such Credit Party set forth in this Agreement or any other Credit Document to the extent such departure is consistent with the authority of the Collateral Agent set forth in the definition of the term “Collateral and Guarantee Requirement” or (B) waive, amend or modify any provision in any Credit Document (other than this Agreement), or consent to a departure by any Credit Party therefrom, to the extent the Administrative Agent or the Collateral Agent determines that such waiver, amendment, modification or consent is necessary in order to eliminate any conflict between such provision and the terms of this Agreement;

(v)any provision of this Agreement or any other Credit Document may be amended by an agreement in writing entered into by the Borrower, the Administrative Agent and the Lenders that will remain parties hereto after giving effect to such amendment if (A) by the terms of such agreement the Commitments of each Lender not consenting to the amendment provided for therein shall be reduced to zero upon the effectiveness of such amendment and (B) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement; and

(vi)this Agreement and the other Credit Documents may be amended in the manner provided in Section 10.24, and the Collateral Documents may be amended as set forth the Intercreditor Agreement or any other Senior Lien Intercreditor Agreement.

Each Lender hereby expressly authorizes the Administrative Agent and/or the Collateral Agent to enter into any waiver, amendment or other modification of this Agreement and the other Credit Documents contemplated by this Section 10.5(e).

(f)Requisite Execution of Amendments, Etc. With the concurrence of any Lender, the Administrative Agent may, but shall have no obligation to, execute waivers, amendments, modifications or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it is given. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 10.5 shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.

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10.6.Successors and Assigns; Participations. (a) Generally. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby. No Credit Party’s rights or obligations under the Credit Documents, and no interest therein, may be assigned or delegated by any Credit Party (except, in the case of any Guarantor Subsidiary, any assignment or delegation by operation of law as a result of any merger or consolidation of such Guarantor Subsidiary permitted by Section 6.8) without the prior written consent of the Administrative Agent and each Lender, and any attempted assignment or delegation without such consent shall be null and void. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, the participants referred to in Section 10.6(g) (to the extent provided in clause (iii) of such Section) and, to the extent expressly contemplated hereby, Affiliates of any Agent or any Lender, the other Indemnitees and other express third party beneficiaries hereof) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)Register. The Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall deem and treat the Persons recorded as Lenders in the Register as Lenders hereunder for all purposes of this Agreement and the holders and owners of the corresponding Commitments and Loans recorded therein for all purposes hereof. No assignment or transfer of any Commitment or Loan shall be effective unless and until recorded in the Register, and following such recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and the assignee), shall be effective notwithstanding any defect in the Assignment Agreement relating thereto. Each assignment and transfer shall be recorded in the Register following receipt by the Administrative Agent of the fully executed Assignment Agreement, together with the required forms and certificates regarding tax matters and any fees payable in connection therewith, in each case as provided in Section 10.6(d); provided that the Administrative Agent shall not be required to accept such Assignment Agreement or so record the information contained therein if the Administrative Agent reasonably believes that such Assignment Agreement lacks any written consent required by this Section 10.6 or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment Agreement, any such duty and obligation being solely with the assigning Lender and the assignee. Each assigning Lender and the assignee, by its execution and delivery of an Assignment Agreement, shall be deemed to have represented to the Administrative Agent that all written consents required by this Section 10.6 with respect thereto (other than the consent of the Administrative Agent and the Borrower, if applicable) have been obtained and that such Assignment Agreement is otherwise duly completed and in proper form. The date of such recordation of an assignment and transfer is referred to herein as the “Assignment Effective Date” with respect thereto. Any request, authority or consent of any Person that, at the time of making such request or giving such authority or consent, is recorded in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.

(c)Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including all or a portion of its Commitment or Loans or other Obligations owing to it to:

(i)any Eligible Assignee of the type referred to in clause (a) of the definition of the term “Eligible Assignee” upon the giving of notice to the Borrower and the Administrative Agent; or

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(ii)any Eligible Assignee of the type referred to in clause (b) of the definition of the term “Eligible Assignee”, upon (A) the giving of notice to the Borrower and the Administrative Agent and (B) except in the case of assignments made by or to any Arranger or any Affiliate thereof during the primary syndication of any credit facilities established hereunder, receipt of prior written consent (each such consent not to be unreasonably withheld or delayed) of (1) the Borrower, provided that the consent of the Borrower to any assignment (x) shall not be required if an Event of Default shall have occurred and is continuing pursuant to Section 8.1(a), 8.1(f) or 8.1(g) and (y) shall be deemed to have been granted unless the Borrower shall have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof and (2) the Administrative Agent;

provided that:

(A)in the case of any such assignment or transfer (other than to any Eligible Assignee meeting the requirements of clause (i) above), the amount of the Commitment or Loans of any Class of the assigning Lender subject thereto shall not be less than $1,000,000 (with concurrent assignments to Eligible Assignees that are Affiliates or Related Funds thereof to be aggregated for purposes of the foregoing minimum assignment amount requirements) or, in each case, such lesser amount as shall be agreed to by the Borrower and the Administrative Agent or as shall constitute the aggregate amount of the Commitments or Loans of the applicable Class of the assigning Lender, provided that the consent of the Borrower to any lesser amount (x) shall not be required if an Event of Default shall have occurred and is continuing pursuant to Section 8.1(a), 8.1(f) or 8.1(g) and (y) shall be deemed to have been granted if notice shall be given to the Borrower requesting its consent to a lesser amount and the Borrower shall not have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received such request; and

(B)each partial assignment or transfer shall be of a uniform, and not varying, percentage of all rights and obligations of the assigning Lender hereunder; provided that a Lender may assign or transfer all or a portion of its Commitment or of the Loans owing to it of any Class without assigning or transferring any portion of its Commitment or of the Loans owing to it, as the case may be, of any other Class.

(d)Mechanics. Assignments and transfers of Loans and Commitments by Lenders shall be effected by the execution and delivery to the Administrative Agent of an Assignment Agreement. In connection with all assignments, there shall be delivered to the Administrative Agent such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee thereunder may be required to deliver pursuant to Section 2.19(g), together with payment to the Administrative Agent by the assignor or the assignee of a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable (i) in connection with an assignment by or to any Arranger or any Affiliate thereof during the primary syndication of any credit facilities established hereunder, (ii) in the case of an assignee that is an Affiliate or Related Fund of a Lender or a Person under common management with a Lender, (iii) in connection with an assignment by or to Goldman Sachs or any Affiliate thereof or (iv) otherwise waived by the Administrative Agent in its sole discretion).

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(e)Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof (or of any Incremental Facility Agreement or Refinancing Facility Agreement) or upon succeeding to an interest in the Commitments and Loans, as the case may be, represents and warrants as of the Closing Date (or, in the case of any Incremental Facility Agreement or Refinancing Facility Agreement, as of the date of the effectiveness thereof) or as of the applicable Assignment Effective Date, as applicable, that (i) it is an Eligible Assignee, (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be, (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other United States federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control) and (iv) it will not provide any information obtained by it in its capacity as a Lender to the Borrower, any Permitted Holder or any Affiliate of the Borrower. In the case of any assignment by or to any Vector Lender, the assignee or the assignor (in each case, if not a Vector Lender), as the case may be, acknowledges and agrees that in connection with such assignment, (A) such Vector Lender and its Affiliates may have MNPI (as defined below), (B) such assignee or assignor, as applicable, has independently, without reliance on such Vector Lender, the Administrative Agent, the Arrangers or any of their respective Affiliates, made its own analysis and determination to participate in such assignment notwithstanding such assignee’s or assignor’s lack of knowledge of any such MNPI, (C) none of such Vector Lender, the Administrative Agent, the Arrangers or any of their respective Affiliates shall have any liability to such assignee or assignor, as the case may be, and such assignee or assignor, as applicable, hereby waives and releases, to the extent permitted by applicable law, any claims it may have against such Vector Lender, the Administrative Agent, the Arrangers and their respective Affiliates, under applicable law or otherwise, with respect to the nondisclosure of any such MNPI and (D) such MNPI may not be available to the Administrative Agent, the Arrangers or the other Lenders. “MNPI” means material non-public information (for purposes of United States federal, state or other applicable securities laws) with respect to the Borrower, its Subsidiaries and their respective Securities, it being understood that MNPI may include information that is not available to Lenders, including Private Lenders. It is understood and agreed that the Administrative Agent and each Lender shall be entitled to rely, and shall incur no liability for relying, upon the representations and warranties and the acknowledgments and agreements of an assignee or assignor, as applicable, set forth in this Section 10.6(e) and in the applicable Assignment Agreement.

(f)Effect of Assignment. Subject to the terms and conditions of this Section 10.6, as of the Assignment Effective Date with respect to any assignment and transfer of any Commitment or Loan, (i) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent of its interest in such Commitment or Loan as reflected in the Register and shall thereafter be a party hereto and a “Lender” for all purposes hereof, (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned and transferred to the assignee, relinquish its rights (other than any rights that survive the termination hereof under Section 10.8) and be released from its obligations hereunder (and, in the case of an assignment covering all the remaining rights and obligations of an assigning Lender hereunder, such Lender shall cease to be a party hereto as a “Lender” on such Assignment Effective Date, provided that such assigning Lender shall continue to be entitled to the benefit of all rights that survive the termination hereof under Section 10.8), and provided further 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 such Lender’s having been a Defaulting Lender, and (iii) the assigning Lender shall, upon the effectiveness thereof or as promptly thereafter as practicable, surrender its applicable Notes (if any) to the Administrative Agent for cancellation, and thereupon the Borrower shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.

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(g)Participations.

(i)Each Lender shall have the right at any time to sell one or more participations to any Eligible Assignee in all or any part of its Commitments or Loans or in any other Obligation; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Credit Parties, the Administrative Agent, the Collateral Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender that sells a participation pursuant to this Section 10.6(g) shall, acting solely for United States federal income tax purposes as a non-fiduciary agent of the Borrower, maintain a register on which it records the name and address of each participant to which it has sold a participation and the principal amounts (and stated interest) of each such participant’s interest in the Commitments or Loans or other rights and obligations of such Lender under this Agreement or any other Credit Document (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or other rights and obligations under any Credit Document), except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other right or obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and solely to the IRS. 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 under this Agreement, notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(ii)The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder, except that any participation agreement may provide that the participant’s consent must be obtained with respect to the consent of such Lender to any waiver, amendment, modification or consent that is described in Section 10.5(b) that affects such participant or requires the approval of all the Lenders.

(iii)The Credit Parties agree that each participant shall be entitled to the benefits of Sections 2.17(c), 2.18 and 2.19 (subject to the requirements and limitations therein, including the requirements under Section 2.19(g) (it being understood that the documentation required under Section 2.19(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.6(c); provided that such participant (x) agrees to be subject to the provisions of Sections 2.20 and 2.22 as if it were an assignee under Section 10.6(c) and (y) such participant shall not be entitled to receive any greater payment under Section 2.18 or 2.19 with respect to any participation than the applicable Lender would have been entitled to receive with respect to such participation sold to such participant, 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. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided that such participant agrees to be subject to Section 2.16 as though it were a Lender.

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(h)Certain Other Assignments and Participations. In addition to any other assignment or participation permitted pursuant to this Section 10.6, any Lender may assign, pledge and/or grant a security interest in all or any portion of its Loans or the other Obligations owed to such Lender, and its Notes, if any, to secure obligations of such Lender, including to any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors and any operating circular issued by any Federal Reserve Bank or to any other central bank; provided that no Lender, as between the Borrower and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge; and provided further that in no event shall the applicable Federal Reserve Bank, other central bank, pledgee or trustee be considered to be a “Lender” hereunder.

(i)Loan Repurchases. Notwithstanding anything to the contrary contained in this Section 10.6 or any other provision of this Agreement, the Borrower may repurchase outstanding Loans, and each Lender shall have the right at any time to sell, assign or transfer all or a portion of its Loans to the Borrower, on the following basis:

(i)Loan Repurchase Auctions. The Borrower may conduct one or more modified Dutch auctions (each, an “Auction”) to repurchase all or any portion of the Loans of any Class, provided that (A) the Borrower delivers a written notice of such Auction to the Auction Manager and the Administrative Agent (for distribution to the Lenders of such Class) no later than 12:00 p.m.(New York City time) at least five Business Days in advance of a proposed commencement date of such Auction (or such shorter period as may be acceptable to the Administrative Agent), which notice shall specify (x) the dates on which such Auction will commence and conclude, (y) the maximum principal amount of Loans and the Class thereof that the Borrower desires to repurchase in such Auction and (z) the range of discounts to par at which the Borrower would be willing to repurchase such Loans, (B) the maximum dollar amount of such Auction shall be no less than an aggregate $10,000,000 or an integral multiple of $1,000,000 in excess thereof, (C) such Auction shall be open for at least two Business Days after the date of the commencement thereof, (D) such Auction shall be open for participation by all the Lenders of such Class on a ratable basis, (E) a Lender of such Class that elects to participate in such Auction will be permitted to tender for repurchase all or a portion of such Lender’s Loans of such Class, (F) each repurchase of Loans of any Class shall be of a uniform, and not varying, percentage of all rights of the assigning Lender hereunder with respect thereto (and shall be allocated among the Loans of such Class of such Lender in a manner that would result in such Lender’s remaining Loans of such Class being included in each Borrowing in accordance with its applicable Pro Rata Share thereof), (G) at the time of the commencement and conclusion of such Auction, no Event of Default shall have occurred and be continuing, (H) the Borrower shall not use the proceeds of revolving loans constituting Permitted 6.1(e) Indebtedness to make such repurchase and (I) such Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, so long as such procedures are consistent with this Section 10.6(i) and are reasonably acceptable to the Administrative Agent and the Borrower. In connection with any Auction, the Auction Manager and the Administrative Agent may request one or more certificates of an Authorized Officer of the Borrower as to the satisfaction of the conditions set forth in clauses (G) and (H) above.

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(ii)Open Market Purchases. The Borrower may repurchase all or any portion of the Loans of any Class on a non pro rata basis through open market purchases (each an “Open Market Purchase”), provided that (A) the Borrower delivers a written notice of such Open Market Purchase to the Administrative Agent promptly upon consummation thereof, (B) each repurchase of Loans of any Class shall be of a uniform, and not varying, percentage of all rights of the assigning Lender hereunder with respect thereto (and shall be allocated among the Loans of such Class of such Lender in a manner that would result in such Lender’s remaining Loans of such Class being included in each Borrowing in accordance with its applicable Pro Rata Share thereof), (C) at the time of and immediately following such Open Market Purchase, no Event of Default shall have occurred and be continuing and (D) the Borrower shall not use the proceeds of revolving loans constituting Permitted 6.1(e) Indebtedness to make such repurchase. In connection with any Open Market Purchase, the Administrative Agent may request one or more certificates of an Authorized Officer of the Borrower as to the satisfaction of the conditions set forth in clauses (C) and (D) above.

(iii)Concerning the Repurchased Loans. Repurchases by the Borrower of Loans pursuant to this Section 10.6(i) shall not constitute voluntary prepayments for purposes of Section 2.11 or 2.13. The aggregate principal amount of the Loans of any Class repurchased by the Borrower pursuant to this Section 10.6(i) shall, in the case of Loans of any Class subject to scheduled amortization of principal, be applied to reduce any subsequent Installments to be paid pursuant to Section 2.11 with respect to Loans of such Class in an inverse order of maturity. Upon the repurchase by the Borrower pursuant to this Section 10.6(i) of any Loans, such Loans shall, without further action by any Person, automatically be deemed cancelled and no longer outstanding (and may not be resold by the Borrower) for all purposes of this Agreement and the other Credit Documents, including with respect to (A) the making of, or the application of, any payments to the Lenders under this Agreement or any other Credit Document, (B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Credit Document or (C) the determination of Requisite Lenders, or for any similar or related purpose, under this Agreement or any other Credit Document. The Administrative Agent is authorized to make appropriate entries in the Register to reflect any cancelation of the Loans repurchased and cancelled pursuant to this Section 10.6(i). Any payment made by the Borrower in connection with a repurchase permitted by this Section 10.6(i) shall not be subject to the provisions of Section 2.15, 2.16 or 2.17(c). Failure by the Borrower to make any payment to a Lender required to be made in consideration of a repurchase of Loans permitted by this Section 10.6(i) shall not constitute a Default or an Event of Default under Section 8.1(a). Each Lender shall, to the extent that its Loans shall have been repurchased and assigned to the Borrower pursuant to this Section 10.6(i), relinquish its rights in respect thereof.

10.7.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.

10.8.Survival of Representations, Warranties and Agreements. All covenants, agreements, representations and warranties made by the Credit Parties in the Credit Documents and in the certificates or other documents delivered in connection with or pursuant to this Agreement or any other Credit Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Credit Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that any Agent, Arranger or Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any Credit Document is executed and delivered or any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of Sections 2.17(c), 2.18, 2.19, 9, 10.2, 10.3 and 10.4 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans or the termination of this Agreement or any provision hereof.

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10.9.No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent, Arranger or Lender in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver thereof or of any Default or Event of Default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege, or any abandonment or discontinuance of steps to enforce such power, right or privilege, preclude any other or further exercise thereof or the exercise of any other power, right or privilege. The powers, rights, privileges and remedies of the Agents, the Arrangers and the Lenders hereunder and under the other Credit Documents are cumulative and shall be in addition to and independent of all powers, rights, privileges and remedies they would otherwise have. Without limiting the generality of the foregoing, the execution and delivery of this Agreement or the making of any Loan hereunder shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Agent, Arranger or Lender may have had notice or knowledge of such Default or Event of Default at the time.

10.10.Marshalling; Payments Set Aside. None of the Agents, the Arrangers or the Lenders shall be under any obligation to marshal any assets in favor of any Credit Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or payments to any Agent, Arranger or Lender (or to the Administrative Agent or the Collateral Agent, on behalf of any Agent, Arranger or Lender), or any Agent, Arranger or Lender enforces any security interests or exercises any right 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, preferential or at undervalue, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Laws, any other state 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.

10.11.Severability. In case any provision in or obligation hereunder or under any other Credit 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.

10.12.Independent Nature of Lenders’ Rights. Nothing contained herein or in any other Credit Document, and no action taken by the Lenders pursuant hereto or thereto, shall be deemed to constitute the Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising hereunder and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.

10.13.Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

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10.14.APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

10.15.CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) BELOW, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (E) BELOW); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, THE ARRANGERS AND THE LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY CREDIT DOCUMENT OR ANY EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

10.16.WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP 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 TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO 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 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

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10.17.Confidentiality. Each Agent and each Lender shall hold all Confidential Information (as defined below) obtained by such Agent or such Lender in accordance with such Agent’s and such Lender’s customary procedures for handling confidential information of such nature, it being understood and agreed by the Borrower that, in any event, the Administrative Agent and the Collateral Agent may disclose Confidential Information to the Lenders and the other Agents and that each Agent and each Lender may disclose Confidential Information (a) to Affiliates of such Agent or Lender and to its and their respective Related Parties, independent auditors and other advisors, experts or agents who need to know such Confidential Information (and to other Persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.17) (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such Confidential Information confidential or shall otherwise be subject to an obligation of confidentiality), (b) to any potential or prospective assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of any Loans or other Obligations or any participations therein or to any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap or derivative transaction relating to the Borrower or any of its Affiliates and their obligations (provided that such assignees, transferees, participants, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 10.17 or other provisions at least as restrictive as this Section 10.17 or otherwise reasonably acceptable to the Administrative Agent, the Collateral Agent or the applicable Lender, as the case may be, and the Borrower, including pursuant to the confidentiality terms set forth in the Confidential Information Memorandum or other marketing materials relating to the credit facilities governed by this Agreement; and provided further that without the Borrower’s prior written consent, no such disclosure may be made to any Disqualified Institution), (c) on a confidential basis, to any rating agency, (d) on a confidential basis, to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans, (e) for purposes of establishing a “due diligence” defense or in connection with the exercise of any remedies hereunder or under any other Credit Document, (f) as required by law or pursuant to legal or judicial process (in which case, unless specifically prohibited by applicable law or court order, such Agent or such Lender shall make reasonable efforts to notify the Borrower promptly thereof), (g) as required or requested by any Governmental Authority or by any regulatory or quasi-regulatory authority (including any self-regulatory organization) having jurisdiction or claiming to have jurisdiction over such Agent or such Lender or any of their respective Affiliates, (h) received by it on a non-confidential basis from a source (other than the Borrower or its Affiliates or Related Parties) not known by it to be prohibited from disclosing such information to such persons by a legal, contractual or fiduciary obligation, (i) to the extent that such information was already in possession of such Agent or such Lender, as the case may be, or any of its Affiliates or is independently developed by it or any of its Affiliates and (j) with the consent of the Borrower. For purposes of the foregoing, “Confidential Information” means, with respect to any Agent or any Lender, any non-public information regarding the business, assets, liabilities and operations of the Borrower and the Subsidiaries obtained by such Agent or Lender under the terms of this Agreement and identified as confidential by the Borrower. In addition, each Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement and the other Credit Documents. It is agreed that, notwithstanding the restrictions of any prior confidentiality agreement binding on any Arranger or any Agent, such partiesmay disclose Confidential Information as provided in this Section 10.17.

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10.18.Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged 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 Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest that 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 Loans made 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 that 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, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest that would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of the Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration that 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 Loans made hereunder or be refunded to the Borrower.

10.19.Counterparts. 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. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

10.20.Effectiveness; Entire Agreement. Subject to Section 3, this Agreement shall become effective when it shall have been executed by the Administrative Agent and there shall have been delivered to the Administrative Agent counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS 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 (BUT DO NOT SUPERSEDE ANY PROVISIONS OF ANY ENGAGEMENT LETTER OR FEE LETTER BETWEEN OR AMONG ANY CREDIT PARTIES AND ANY AGENT OR ARRANGER OR ANY AFFILIATE OF ANY OF THE FOREGOING THAT BY THE TERMS OF SUCH DOCUMENTS ARE STATED TO SURVIVE THE EFFECTIVENESS OF THIS AGREEMENT, ALL OF WHICH PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT).

10.21.PATRIOT Act. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Credit Party that pursuant to the requirements of the PATRIOT Act it is required to obtain, verify and record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Credit Party in accordance with the PATRIOT Act.

10.22.Electronic Execution of Assignments. The words “execution”, “signed”, “signature” and words of like import in any Assignment 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.

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10.23.No Fiduciary Duty. Each Agent, each Arranger, each Lender and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”) may have economic interests that conflict with those of the Credit Parties, their equityholders and/or their Affiliates. Each Credit Party agrees that nothing in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Agent, Arranger or Lender, on the one hand, and such Credit Party or its equityholders or its Affiliates, on the other. The Credit Parties acknowledge and agree that (a) the transactions contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Agents, Arrangers and Lenders, on the one hand, and the Credit Parties, on the other, and (b) in connection therewith and with the process leading thereto, (i) no Agent, Arranger or Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its equityholders or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Agent, Arranger or Lender has advised, is currently advising or will advise any Credit Party, its equityholders or its Affiliates on other matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Credit Documents and (ii) each Agent, Arranger and Lender is acting solely as principal and not as the agent or fiduciary of any Credit Party, its management, equityholders, creditors or any other Person. Each Credit Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it has deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Credit Party agrees that it will not assert, and hereby waives to the maximum extent permitted by applicable law, any claim that any Agent, Arranger or Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Credit Party, in connection with any such transaction or the process leading thereto.

10.24.Permitted Intercreditor Agreements. (a) Each of the Lenders and the other Secured Parties acknowledges that obligations of the Credit Parties under the First Lien Credit Agreement are, and under any other Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness may be, secured by Liens on assets of the Credit Parties that constitute Collateral and that the relative Lien priority and other creditor rights of the Secured Parties and the secured parties under the First Lien Credit Agreement will be set forth in the Intercreditor Agreement, and the relative Lien priority and other creditor rights of the Secured Parties and the secured parties under any other Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness will be set forth in the applicable Permitted Intercreditor Agreement. Each of the Lenders and the other Secured Parties hereby acknowledges that it has received a copy of the Intercreditor Agreement. Each of the Lenders and the other Secured Parties hereby irrevocably authorizes and directs the Administrative Agent and the Collateral Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, (i) on the Closing Date, the Intercreditor Agreement and any documents relating thereto and (ii) from time to time upon the request of the Borrower, in connection with the establishment, incurrence, amendment, refinancing or replacement of any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, any Permitted Intercreditor Agreement (it being understood that the Administrative Agent and the Collateral Agent are hereby authorized and directed to determine the terms and conditions of any such Permitted Intercreditor Agreement as contemplated by the definition of the terms “Intercreditor Agreement”, “Junior Lien Intercreditor Agreement”, “Pari Passu Intercreditor Agreement” and “Senior Lien Intercreditor Agreement”) and any documents relating thereto.

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(b)Each of the Lenders and the other Secured Parties hereby irrevocably (i) consents to the treatment of Liens to be provided for under any Permitted Intercreditor Agreement, (ii) agrees that, upon the execution and delivery thereof, such Secured Party will be bound by the provisions of any Permitted Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the provisions of any Permitted Intercreditor Agreement, (iii) agrees that no Secured Party shall have any right of action whatsoever against the Administrative Agent or any Collateral Agent as a result of any action taken by the Administrative Agent or the Collateral Agent pursuant to this Section 10.24 or in accordance with the terms of any Permitted Intercreditor Agreement, (iv) authorizes and directs the Administrative Agent and the Collateral Agent to carry out the provisions and intent of each such document and (v) authorizes and directs the Administrative Agent and the Collateral Agent to take such actions as shall be required to release Liens on the Collateral in accordance with the terms of any Permitted Intercreditor Agreement.

(c)Each of the Lenders and the other Secured Parties hereby irrevocably further authorizes and directs the Administrative Agent and the Collateral Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of any Permitted Intercreditor Agreement that the Borrower may from time to time request and that are reasonably acceptable to the Administrative Agent (i) to give effect to any establishment, incurrence, amendment, extension, renewal, refinancing or replacement of any Obligations, any Permitted Section 6.1(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness, (ii) to confirm for any party that such Permitted Intercreditor Agreement is effective and binding upon the Administrative Agent and the Collateral Agent on behalf of the Secured Parties or (iii) to effect any other amendment, supplement or modification so long as the resulting agreement would constitute a Permitted Intercreditor Agreement if executed at such time as a new agreement.

(d)Each of the Lenders and the other Secured Parties hereby irrevocably further authorizes and directs the Administrative Agent and the Collateral Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of any Collateral Document to add or remove any legend that may be required pursuant to any Permitted Intercreditor Agreement.

(e)Each of the Administrative Agent and the Collateral Agent shall have the benefit of the provisions of Sections 9, 10.2 and 10.3 with respect to all actions taken by it pursuant to this Section 10.24 or in accordance with the terms of any Permitted Intercreditor Agreement to the full extent thereof.

(f)The provisions of this Section 10.24 are intended as an inducement to the secured parties under the First Lien Credit Documents or under any other Permitted Section 6.1(e) Indebtedness Documents, any Permitted Credit Agreement Refinancing Indebtedness or Permitted Incremental Equivalent Indebtedness to extend credit to the Borrower thereunder and such secured parties are intended third party beneficiaries of such provisions.

10.25.Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Credit 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:

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(a)the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which 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 Credit 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.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

FUSION CONNECT, INC., as Borrower
By:	/s/ Kevin Dotts
	Name: Kevin Dotts
	Title: Executive Vice President, Chief Financial Officer and Principal Accounting Officer

FUSION NBS ACQUISITION CORP. FUSION LLC FUSION BCHI ACQUISITION LLC BIRCH COMMUNICATIONS, LLC CBEYOND, INC. CBEYOND COMMUNICATIONS, LLC BIRCH MANAGEMENT LLC BIRCH TELECOM, LLC BIRCH TEXAS HOLDINGS, INC. BIRCH TELECOM OF KANSAS, LLC BIRCH TELECOM OF OKLAHOMA, LLC BIRCH TELECOM OF MISSOURI, LLC BIRCH TELECOM OF TEXAS LTD., L.L.P. BIRCAN HOLDINGS, LLC PRIMUS HOLDINGS, INC. FUSION MPHC ACQUISITION CORP., as Guarantors
By:	/s/ Kevin Dotts
	Name: Kevin Dotts
	Title: Executive Vice President, Chief Financial Officer and Principal Accounting Officer

[Signature Page to Fusion Second Lien Credit and Guaranty Agreement]

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WILMINGTON TRUST, NATIONAL ASSOCIATION, as the Administrative Agent and the Collateral Agent,
By:	/s/ Jamie Roseberg
	Name: Jamie Roseberg Title: Banking Officer

[Signature Page to Fusion Second Lien Credit and Guaranty Agreement]

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GOLDMAN SACHS LENDING PARTNERS LLC, as a Lender,
By:	/s/ Robert Ehudin
	Authorized Signatory Rober Ehudin

[Signature Page to Fusion Second Lien Credit and Guaranty Agreement]

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EXHIBIT A

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

ASSIGNMENT AGREEMENT

This Assignment and Assumption Agreement (this “Assignment”) is dated as of the Assignment Effective Date set forth below and is entered into by and between the Assignor identified below and the Assignee identified below. Capitalized terms used but not defined herein shall have the meanings given to them in the Second Lien Credit and Guaranty Agreement identified below (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions set forth in Annex 1 attached hereto and the Credit Agreement, as of the Assignment Effective Date inserted by the Administrative Agent as contemplated below, (a) the interest in and to all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor’s outstanding rights and obligations under the facility identified below (including any Guarantees included in such facilities) and (b) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor in its capacity as a Lender under the Credit Agreement against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the Transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (a) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (a) and (b) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and the Credit Agreement, without representation or warranty by the Assignor.

1.	Assignor: __________________________
2.	Assignee: __________________________
3.	Is the Assignee a Lender/an Affiliate of a Lender/a Related Fund? Yes:  No:  Specify if “Yes”.
4.	Borrower: Fusion Connect, Inc.
5.	Administrative Agent: Wilmington Trust, National Association, as the Administrative Agent under the Credit Agreement.
6.	Credit Agreement: Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018, among Fusion Connect, Inc., certain Subsidiaries of Fusion Connect, Inc. party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.
7.	Assigned Interest:

Facility Assigned	Aggregate Amount of Commitments/Loans of the Applicable Class of all Lenders	Amount of Commitment/Loans of the Applicable Class Assigned1	Percentage Assigned of Commitments/Loans of the Applicable Class of all Lenders2
Tranche B Term Loans	$______________	$______________	____________%
[ ]3	$______________	$______________	____________%

8. 

Assignment Effective Date: ______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH DATE SHALL BE THE ASSIGNMENT EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

9. 

Notice and Wire Instructions:

 [NAME OF ASSIGNOR] Notices: _________________________ _________________________ _________________________ Attention: Facsimile: with a copy to: _________________________ _________________________ _________________________ Attention: Facsimile: Wire Instructions:  [NAME OF ASSIGNEE] Notices: _________________________ _________________________ _________________________ Attention: Facsimile: with a copy to: _________________________ _________________________ _________________________ Attention: Facsimile: Wire Instructions:

1     In the case of any assignment (other than to an Eligible Assignee meeting the requirements of Section 10.6(c)(i) of the Credit Agreement), the amount of Commitment or Loans assigned shall not be less than $1,000,000 in the case of assignments of any Commitment or Loan of any Class, or, in each case, a lesser amount permitted under Section 10.6(c) of the Credit Agreement. Any partial assignment shall be of a uniform, and not varying, percentage of all rights and obligations of the Assignor unless otherwise permitted under Section 10.6(c)(ii)(B) of the Credit Agreement.

2     Set forth, to at least 9 decimals, as a percentage of the Loans of the applicable Class of all Lenders thereunder.

3     In the event any new Class of Loans is established under Section 2.23, 2.24 or 2.25 of the Credit Agreement, refer to the Class of Loans assigned.

The terms set forth in this Assignment are hereby agreed to:

ASSIGNOR:

[NAME OF ASSIGNOR]

By:_______________________

Name:

Title:

ASSIGNEE:

[NAME OF ASSIGNEE]

By:_______________________

Name:

Title:

[Consented to by:

FUSION CONNECT, INC.

By:_______________________

Name:

Title:]4

[Consented to and]5 Accepted by:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as

   Administrative Agent

By:_______________________

Authorized Person

4 If consent of the Borrower is required, and not deemed granted, under Section 10.6(c) of the Credit Agreement.

5 If consent of the Administrative Agent is required under Section 10.6(c) of the Credit Agreement.

ANNEX 1

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION AGREEMENT

1.

Representations and Warranties.

1.1.

Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Credit Document, other than this Assignment, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Credit Document, or any collateral thereunder, (iii) the financial condition of the Borrower, the Subsidiaries or any other Affiliate of the Borrower or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by the Borrower, the Subsidiaries or any other Affiliate of the Borrower or any other Person of any of their respective obligations under any Credit Document.

1.2.

Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is an Eligible Assignee, (iii) it has experience and expertise in the making of or investing in commitments or loans such as the Assigned Interest, (iv) it will acquire the Assigned Interest for its own account in the ordinary course and without a view to distribution of the Assigned Interest within the meaning of the Securities Act or the Exchange Act or other United States federal securities laws (it being understood that, subject to the provisions of Section 10.6 of the Credit Agreement, the disposition of the Assigned Interest or any interests therein shall at all times remain within its exclusive control), (v) it will not provide any information or materials obtained by it in its capacity as Lender to the Borrower, any Permitted Holder or any Affiliate of the Borrower, (vi) from and after the Assignment Effective Date, it shall be bound by the provisions of the Credit Agreement (including as to each Permitted Intercreditor Agreement) and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (vii) it has received a copy of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision, (viii) attached to this Assignment is any tax documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee, and (ix) it has reviewed the Memorandum for Lenders dated April 30, 2018 (the “Lender Memo”) posted by Goldman Sachs Lending Partners LLC (“Goldman Sachs”) on the Platform and (A) acknowledges the information contained therein, including the respective rights and obligations of the various parties described therein, and (B) confirms and agrees that none of the collateral (including any cash collateral) or other credit support provided by the SPV TLB Lender (as such term is defined in the Lender Memo) or the TLB Lender (as such term is defined in the Lender Memo) to Goldman Sachs will secure the Obligations and that the Assignee shall have no rights thereto or interests therein, and (b) agrees that (i) it will, independently and without reliance on any Agent, any Arranger, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at that time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.

1.3.

MNPI. In the case of any assignment by or to any Vector Lender, the Assignee or the Assignor (in each case, if not a Vector Lender), as the case may be, acknowledges and agrees that in connection with such assignment, (a) such Vector Lender and its Affiliates may have MNPI (as defined below), (b) such Assignee or Assignor, as applicable, has independently, without reliance on such Vector Lender, the Administrative Agent, the Arrangers or any of their respective Affiliates, made its own analysis and determination to participate in such assignment notwithstanding such Assignee’s or Assignor’s lack of knowledge of any such MNPI, (c) none of such Vector Lender, the Administrative Agent, the Arrangers or any of their respective Affiliates shall have any liability to such Assignee or Assignor, as the case may be, and such Assignee or Assignor, as applicable, hereby waives and releases, to the extent permitted by applicable law, any claims it may have against such Vector Lender, the Administrative Agent, the Arrangers and their respective Affiliates, under applicable law or otherwise, with respect to the nondisclosure of any such MNPI and (d) such MNPI may not be available to the Administrative Agent, the Arrangers or the other Lenders. “MNPI” means material non-public information (for purposes of United States federal, state or other applicable securities laws) with respect to the Borrower, its Subsidiaries and their respective Securities, it being understood that MNPI may include information that is not available to Lenders, including Private Lenders.

1.

Payments. From and after the Assignment Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts that have accrued to but excluding the Assignment Effective Date and to the Assignee for amounts that have accrued from and after the Assignment Effective Date.

2.

General Provisions. This Assignment shall be binding upon the parties hereto and their respective successors and assigns permitted in accordance with the Credit Agreement and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Assignment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Assignment by facsimile or other electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Assignment. THIS ASSIGNMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

EXHIBIT B

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

CLOSING DATE CERTIFICATE

May 4, 2018

The undersigned hereby certifies as follows:

1.I am an Authorized Officer of Fusion Connect, Inc., a Delaware corporation (the “Borrower”).

2.I have reviewed the terms of the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent, and in my opinion I have made, or have caused to be made under my supervision, such examination or investigation as is reasonably necessary to enable me to certify as to the matters referred to herein. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

3.Based upon my review and examination described in paragraph 2 above, I certify, on behalf of the Borrower, in my capacity as an Authorized Officer of the Borrower and not in my individual or personal capacity and without personal liability, that:

(a)the representations and warranties of each Credit Party set forth in the Credit Documents are true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects, and (ii) otherwise, in all material respects, in each case on and as of the date hereof, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty is so true and correct on and as of such earlier date;

(b)no Default or Event of Default has occurred and is continuing or would result from any Credit Extension made by a Lender on the date hereof; and

(c)subject to the final paragraph of Section 3.1 of the Credit Agreement, the Collateral and Guarantee Requirement has been satisfied.

The foregoing certifications are made and delivered as of the date first stated above.

FUSION CONNECT, INC.,
by
	Name: [●]
	Title: [●]

[Signature Page to Closing Date Certificate]

      EXHIBIT C

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

COMPLIANCE CERTIFICATE

[The form of this Compliance Certificate has been prepared for convenience only, and is not to affect, or to be taken into consideration in interpreting, the terms of the Credit Agreement referred to below. The obligations of the Borrower and the other Credit Parties under the Credit Agreement are as set forth in the Credit Agreement, and nothing in this Compliance Certificate, or the form hereof, shall modify such obligations or constitute a waiver of compliance therewith in accordance with the terms of the Credit Agreement. In the event of any conflict between the terms of this Compliance Certificate and the terms of the Credit Agreement, the terms of the Credit Agreement shall govern and control, and the terms of this Compliance Certificate are to be modified accordingly.]

Reference is made to the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

The undersigned hereby certifies, in [his][her] capacity as the chief financial officer of the Borrower and not in [his][her] individual capacity, as follows:

1.I am the chief financial officer of the Borrower.

2.[Attached as Schedule I hereto, pursuant to Section 5.1(a) of the Credit Agreement, are the consolidated balance sheet of the Borrower and the Subsidiaries as of the end of the Fiscal Year ended December 31, 20[ ], and the related consolidated statements of operations, shareholders’ equity and cash flows of the Borrower and the Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, together with a report thereon of [EisnerAmper LLP].]

[or]

[Attached as Schedule I hereto, pursuant to Section 5.1(b) of the Credit Agreement, are the consolidated balance sheet of the Borrower and the Subsidiaries as of the end of the Fiscal Quarter ended [         ], 20[ ], and the related consolidated statements of operations, stockholders’ equity and cash flows of the Borrower and the Subsidiaries for such Fiscal Quarter (in the case of such statements of operations) and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year. Such financial statements present fairly, in all material respects, the consolidated financial position of the Borrower and the Subsidiaries as of the dates indicated and the consolidated results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a consistent basis (except as otherwise disclosed in such financial statements), subject to changes resulting from normal year-end audit adjustments and the absence of footnotes.]

3.[Appended to Schedule I hereto is the Unrestricted Subsidiary Reconciliation Statement required by Section 5.1(c) of the Credit Agreement.]6

[Appended to Schedule I hereto [is][are] the statement(s) of reconciliation required by Section 5.1(d) of the Credit Agreement.]7

[Attached as Schedule II hereto is the consolidated plan and financial forecast for the Fiscal Year ending December 31, 20[ ] required by Section 5.1(i) of the Credit Agreement, including (a) a forecasted consolidated balance sheet and forecasted consolidated statements of comprehensive income and cash flows of the Borrower and the Subsidiaries for such Fiscal Year, and an explanation of the assumptions on which such forecasts are based, and (b) forecasted consolidated statements of comprehensive income and cash flows of the Borrower and the Subsidiaries for each Fiscal Quarter of such Fiscal Year. Such forecasted consolidated financial statements have been prepared in good faith based upon assumptions that are believed by the Borrower to be reasonable as of the date of this Compliance Certificate.]8

Set forth on Annex A hereto is a true and accurate calculation of the Total Net Leverage Ratio as of the end of the Fiscal Quarter ended [ ], 20[ ].

[Set forth on Annex B hereto is a true and accurate calculation of the aggregate Consolidated Capital Expenditures made during the Fiscal Year ended December 31, 20[ ].]9

[Set forth on Annex C hereto is a true and accurate calculation of the Consolidated Excess Cash Flow for the Fiscal Year ended December 31, 20[ ], together with a true and accurate calculation of the aggregate principal amount of prepayment of the Borrowings required under Section 2.13(e) of the Credit Agreement.]10

[Enclosed with this Compliance Certificate is a completed Supplemental Collateral Questionnaire required by Section 5.1(k) of the Credit Agreement.]11

I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a review in reasonable detail of the transactions and condition of the Borrower and the Subsidiaries during the accounting period covered by the attached financial statements. The foregoing examination did not disclose, and I have no knowledge of, the existence of any event or condition that constitutes a Default or an Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate, except as set forth in a separate attachment, if any, to this Compliance Certificate, describing in detail the nature of the condition or event, the period during which it has existed and the action that the Borrower or any Restricted Subsidiary has taken, is taking or proposes to take with respect to each such event or condition.

6 To be included only if required under Section 5.1(c) of the Credit Agreement. The Unrestricted Subsidiary Reconciliation Statement may be in a footnote form included in the financial statements attached as Schedule I.

7 To be included only if required under Section 5.1(d) of the Credit Agreement.

8 To be included in the Compliance Certificate delivering annual financial statements (to the extent then available, but in any event to be delivered within 120 days after the beginning of each Fiscal Year).

9 To be included in the Compliance Certificate delivering annual financial statements.

10 To be included in the Compliance Certificate delivering annual financial statements, commencing with the Fiscal Year ending December 31, 2019.

11 To be included in the Compliance Certificate delivering annual financial statements.

The foregoing certifications are made and delivered on [ ], 20[ ] pursuant to Section 5.1(c) of the Credit Agreement.

FUSION CONNECT, INC.,
by
	Name: [ ]
	Title: [ ]

ANNEX A

TO COMPLIANCE CERTIFICATE

AS OF THE END OF OR FOR THE PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS ENDED ON [mm/dd/yy]12

1.	Consolidated Net Income: (i) − (ii) =	$[___,___,___]
	(i)the net income (or loss) of the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in conformity with GAAP:	$[___,___,___]
	(ii)to the extent included in (i): (a) + (b) =	$[___,___,___]
	(a)the cumulative effect of a change in accounting principles during such period:	$[___,___,___]
	(b)the net income (or loss) of any Person (including any Unrestricted Subsidiary or any Person accounted for under the equity method of accounting) that is not the Borrower or a Restricted Subsidiary except, in the case of net income, to the extent of the amount of Cash dividends or similar Cash distribution actually paid by such Person to the Borrower or any Restricted Subsidiary during such period:	$[___,___,___]
2.	Consolidated Adjusted EBITDA:13 (i) + (ii) − (iii) =14	$[___,___,___]
	(i)Consolidated Net Income (see row 1 above):	$[___,___,___]
	(ii)to the extent deducted (and not added back) in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to (h) and (q) below, to the extent not already included in Consolidated Net Income), the sum for the Borrower and the Restricted Subsidiaries of the following amounts for such period:15 (a) + (b) + (c) + (d) + (e) + (f) + (g) + (h) + (i) + (j) + (k) + (l) + (m) + (n)  + (o) + (p) + (q) + (r) =	$[___,___,___]
	(a)total interest expense and, to the extent not reflected in such total interest expense, any losses on Hedge Agreements entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Hedge Agreements, and bank and letter of credit fees and costs of surety bonds in connection with financing activities:	$[___,___,___]

12 Present income statement information for the period of four consecutive Fiscal Quarters ended on such date, and balance sheet information as of such date.

13 For purposes of calculating Consolidated Adjusted EBITDA for any period, if during such period the Borrower or any Restricted Subsidiary shall have consummated a Material Acquisition or a Material Disposition, Consolidated Adjusted EBITDA for such period shall be calculated after giving Pro Forma Effect thereto in accordance with Section 1.2(b) of the Credit Agreement.

14 Subject to the immediately preceding note, Consolidated Adjusted EBITDA for (A) the Fiscal Quarter ended March 31, 2017, shall be deemed to be equal to $37,350,000, (B) the Fiscal Quarter ended June 30, 2017, shall be deemed to be equal to $40,745,000, (C) the Fiscal Quarter ended September 30, 2017, shall be deemed to be equal to $39,783,000 and (D) the Fiscal Quarter ended December 31, 2017, shall be deemed to be equal to $43,778,000.

15 Items to be set forth without duplication.

(b)provision for Federal, state and foreign taxes based on income, profits or capital gains, including in respect of repatriated funds:	$[___,___,___]
(c)depreciation and amortization, including amortization of intangible assets established through purchase accounting and amortization of deferred financing fees or costs, but excluding amortization of any other prepaid cash expense that was paid and not expensed in a prior period:	$[___,___,___]
(d)non-cash charges, including impairment charges and any other write-down or write-off of assets, noncash fair value adjustments of Investments and noncash stock-based and similar incentive-based compensation (including with respect to any profits interest relating to membership interests in any partnership or limited liability company), but excluding any such noncash charge or loss to the extent that it represents an amortization of a prepaid cash expense that was paid and not expensed in a prior period or write-down or write-off with respect to accounts receivable (including any addition to bad debt reserves or bad debt expense) or inventory:	$[___,___,___]
(e)extraordinary losses, determined in conformity with GAAP:	$[___,___,___]
(f)unusual or non-recurring charges, including, in each case, to the extent unusual or non-recurring, operating expenses directly attributable to the implementation of cost savings initiatives, merger costs, severance costs, relocation costs, integration and facilities’ opening costs, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of facilities, costs associated with tax projects/audits and costs consisting of professional, consulting or other fees relating to any of the foregoing;provided that the aggregate amount added back pursuant to this clause (f) and pursuant to clauses (g), (m) and, other than with respect to the Approved Cost Savings16, (h) for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B) above, calculated prior to giving effect to any addback pursuant to this clause (f) or pursuant to clause (g), (h) or (m):	$[___,___,___]

16 “Approved Cost Savings” means “run rate” net cost savings, operating expense reductions and other operating improvements and synergies attributable to (a) the Transactions and reflected in the model delivered to the Arrangers prior to the Closing Date or (b) the Specified Acquisition and reflected in the quality of earnings report delivered to the Arrangers in respect of the Specified Acquisition prior to the Closing Date;provided that, in the case of this clause (b), (i) such Acquisition is consummated on or prior to December 31, 2018 and (ii) the Approved Cost Savings permitted by this clause (b) shall not exceed $16,700,000 in the aggregate.

(g)restructuring charges, accruals and reserves (including restructuring charges related to the Merger or to Acquisitions consummated after the Closing Date);provided that the aggregate amount added back pursuant to this clause (g) and pursuant to clauses (f), (m) and, other than with respect to the Approved Cost Savings, (h) for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B), calculated prior to giving effect to any addback pursuant to this clause (g) or pursuant to clause (f), (h) or (m):	$[___,___,___]
(h)the amount of “run rate” net cost savings, operating expense reductions and other operating improvements and synergies reasonably projected by the Borrower in good faith to be realized in connection with the Transactions or any other Pro Forma Event or the implementation of any operational initiative, including the termination, abandonment or discontinuance of operations and product lines (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of the applicable Test Period), net of the amount of actual benefits realized during such period from such actions;provided that (A) such cost savings, operating expense reductions and other operating improvements and synergies are reasonably identifiable, factually supportable and reasonably expected to be realized within 12 months after the Closing Date or within 12 months after the consummation of such other Pro Forma Event or the adoption of such initiative, as applicable, (B) no cost savings, operating expense reductions and other operating improvements and synergies shall be added pursuant to this clause (h) to the extent duplicative of any items otherwise added in calculating Consolidated Adjusted EBITDA, whether pursuant to the requirement of Section 1.2(b) of the Credit Agreement or otherwise, for such period and (C) other than with respect to the Approved Cost Savings, the aggregate amount added back pursuant to this clause (h) and pursuant to clauses (f), (g) and (m) for any Test Period shall not exceed (x) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (y) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (x) and (y) above, calculated prior to giving effect to any addback pursuant to this clause (h) or pursuant to clause (f), (g) or (m):	$[___,___,___]
(i)the amount of any noncontrolling interest consisting of income of any Restricted Subsidiary that is not wholly owned by the Borrower attributable to noncontrolling Equity Interests of third parties in such Restricted Subsidiary:	$[___,___,___]

(j)after-tax losses attributable to any Disposition of assets (other than Dispositions in the ordinary course of business):	$[___,___,___]
(k)the amount of any net losses from discontinued operations, determined in conformity with GAAP:	$[___,___,___]
(l)(A) transaction fees, costs and expenses incurred in connection with the Transactions prior to the Closing Date, (B) transaction fees, costs and expenses in an aggregate amount not to exceed $1,500,000 incurred in connection with the Transactions after the Closing Date but prior to the one year anniversary of the Closing Date and (C) transaction fees, costs and expenses in an aggregate amount not to exceed $1,000,000 incurred on or prior to December 31, 2018 in connection with the Specified Acquisition (whether or not the Specified Acquisition is consummated):	$[___,___,___]
(m)transaction fees, costs and expenses incurred during such period, or any amortization thereof for such period, in connection with any Acquisition, any Investment (other than intercompany Investments in the ordinary course of business), any Disposition (other than Dispositions in the ordinary course of business), any incurrence, repayment or refinancing of Indebtedness (or any amendment or other modification of any Indebtedness) or any issuance of Equity Interests, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed;provided that the aggregate amount added back pursuant to this clause (m) and pursuant to clauses (f), (g) and, other than with respect to the Approved Cost Savings, (h) for any Test Period shall not exceed (A) for any Test Period ending on or prior to December 31, 2018, 5% of Consolidated Adjusted EBITDA for such Test Period and (B) for any Test Period ending thereafter, 15% of Consolidated Adjusted EBITDA for such Test Period, in the case of each of clauses (A) and (B) above, calculated prior to giving effect to any addback pursuant to this clause (m) or pursuant to clause (f), (g) or (h):	$[___,___,___]
(n)any loss attributable to the early extinguishment of Indebtedness or obligations under any Hedge Agreement:	$[___,___,___]
(o)any unrealized loss attributable to the mark-to-market movement in the valuation of obligations under any Hedge Agreement pursuant to FASB Accounting Standards Codification 815, as amended:	$[___,___,___]
(p)any unrealized loss attributable to the mark-to-market movement in the valuation of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830:	$[___,___,___]

(q)any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Acquisition or Disposition (other than in the ordinary course of business) permitted under the Credit Documents or in connection with any Insurance/Condemnation Event (disregarding the exception in the definition of such term), including lost profits covered by business interruption insurance, in each case, to the extent (A) actually reimbursed by the applicable third party insurer or other third party during such period or (B) (1) the Borrower has received notification from the applicable third party insurer or other third party that it intends to reimburse such expenses, charges or losses or such lost profits and (2) there exists reasonable evidence that such expenses, charges or losses or lost profits will in fact be reimbursed by such insurer or other third party within 270 days after the related amount is first added to Consolidated Adjusted EBITDA pursuant to this clause (q), provided that no amount may be added pursuant to this clause (q) to the extent that (x) such insurer or other third party shall have denied in writing reimbursement for such amount and (y) such amount has not actually been reimbursed within 270 days after it is first added to Consolidated Adjusted EBITDA pursuant to this clause (q) (with a deduction for any amount so added back to the extent not so reimbursed within such 270 days):	$[___,___,___]
(r)any contingent or deferred payments (including earnout payments, noncompete payments and consulting payments) actually made to sellers during such period in connection with any Acquisition, and any losses for such period arising from the remeasurement of the fair value of any liability recorded with respect to any earnout or other contingent or deferred consideration arising from any Acquisition:	$[___,___,___]
(iii)to the extent included in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to clause (i) below, to the extent not already deducted from Consolidated Net Income), the sum for the Borrower and the Restricted Subsidiaries of the following amounts for such period:17 (a) + (b) +(c) + (d) + (e) + (f) + (g) + (h) + (i) =	$[___,___,___]
(a)non-cash gains or items of income (other than the accrual of revenue in the ordinary course), excluding any non-cash items of income in respect of which Cash was received in a prior period or will be received in a future period:	$[___,___,___]
(b)extraordinary gains or items of income, determined in conformity with GAAP:	$[___,___,___]

17 Items to be set forth without duplication.

	(c)unusual or non-recurring gains or items of income:	$[___,___,___]
	(d)gains attributable to any Disposition of assets (other than Dispositions in the ordinary course of business):	$[___,___,___]
	(e)the amount of any net income from discontinued operations, determined in conformity with GAAP:	$[___,___,___]
	(f)any gain attributable to the early extinguishment of Indebtedness or obligations under any Hedge Agreement:	$[___,___,___]
	(g)any unrealized gain attributable to the mark-to-market movement in the valuation of obligations under any Hedge Agreement pursuant to FASB Accounting Standards Codification 815, as amended:	$[___,___,___]
	(h)any unrealized gain attributable to the mark-to-market movement in the valuation of amounts denominated in foreign currencies resulting from the application of FASB Accounting Standards Codification 830:	$[___,___,___]
	(i)the amount of any noncontrolling interest consisting of losses of any Restricted Subsidiary that is not wholly owned by the Borrower attributable to noncontrolling Equity Interests of third parties in such Restricted Subsidiary:	$[___,___,___]
3.	Consolidated Total Net Debt:18 (i) + (ii) + (iii) + (iv) + (v) + (vi) − (vii) =	$[___,___,___]
	(i) the sum of the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding as of such date, in the amount that would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a) of the Credit Agreement), consisting solely of Indebtedness for borrowed money, obligations evidenced by bonds, debentures, notes or similar instruments and purchase money indebtedness:	$[___,___,___]
	(ii) the aggregate amount of Capital Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding as of such date:	$[___,___,___]
	(iii) to the extent the amount thereof would be required to be reflected on a balance sheet prepared as of such date on a consolidated basis in conformity with GAAP (but subject to Section 1.2(a) of the Credit Agreement), the aggregate amount of purchase price adjustments, earnouts, deferred compensation or other similar arrangements incurred by the Borrower and the Restricted Subsidiaries in connection with any Acquisition:	$[___,___,___]

18 Items to be set forth without duplication.

	(iv) the aggregate amount outstanding as of such date of unreimbursed drawings or other disbursements under all letters of credit and letters of guaranty in respect of which the Borrower or any Restricted Subsidiary is an account party:	$[___,___,___]
	(v) all obligations, contingent or otherwise, of the Borrower or any Restricted Subsidiary in respect of bankers’ acceptances outstanding as of such date:	$[___,___,___]
	(vi) Guarantees outstanding as of such date by the Borrower or any Restricted Subsidiary of Indebtedness of the type described in clauses (i) through (v) above of any Person other than the Borrower or any Restricted Subsidiary:	$[___,___,___]
	(vii) the aggregate amount of Unrestricted Cash as of such date (but disregarding the proceeds of Indebtedness that is incurred on such date):19	$[___,___,___]
4.	Total Net Leverage Ratio: (i) / (ii) =	[ ]:1.00
	Consolidated Total Net Debt (see row 3 above):	$[___,___,___]
	Consolidated Adjusted EBITDA (see row 2 above):	$[___,___,___]

19 With respect to the calculation of Consolidated Total Net Debt for purposes of testing the covenant set forth in Section 6.7(a) of the Credit Agreement (including any such testing to determine compliance therewith on a Pro Forma Basis as required by any other provision of the Credit Agreement), the aggregate amount of such Unrestricted Cash deducted pursuant to this clause (vii) shall not exceed $30,000,000.

ANNEX B

TO COMPLIANCE CERTIFICATE

FOR THE FISCAL YEAR ENDED [mm/dd/yy]

2.	Capital Expenditures
	(i) Consolidated Capital Expenditures20:	$[___,___,___]
	(ii) Maximum permitted Consolidated Capital Expenditures: (a) + (b) =	$[___,___,___]
	(a)the greater of (1) and (2) (1) Base CapEx Amount:	$[___,___,___] $63,250,000
	(2) if the Borrower or any Restricted Subsidiary shall have consummated any Material Acquisition (excluding the Merger) after the Closing Date, the Material Acquisition CapEx Amount21 for such Fiscal Year (determined as of the date of consummation of the Material Acquisition most recently consummated after the Closing Date and on or prior to the last day of such Fiscal Year):	$[___,___,___]
	(b)permitted carryover of unused Base CapEx Amount from prior Fiscal Year, if any22:	$[___,___,___]

20 “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures made by the Borrower and the Restricted Subsidiaries during such period that are required to be included in “purchase of property, plant and equipment” or similar items on a consolidated statement of cash flows, or that are otherwise required to be capitalized on a consolidated balance sheet, of the Borrower and the Restricted Subsidiaries for such period prepared in conformity with GAAP;provided that Consolidated Capital Expenditures shall not include any expenditures (a) to the extent made with Net Proceeds reinvested pursuant to Section 2.13(a) or 2.13(b) of the Credit Agreement or (b) that constitute an Acquisition permitted under Section 6.6 of the Credit Agreement;provided further that, except for purposes of calculating Consolidated Excess Cash Flow for any period, in the event the Borrower or any Restricted Subsidiary consummates an Acquisition, Consolidated Capital Expenditures shall not include any such expenditures made by any Person, business unit, division, product line or line of business acquired pursuant to such Acquisition, in each case, prior to the date of the consummation of such Acquisition.

21 “Material Acquisition CapEx Amount” means, as of any date of determination for any Fiscal Year, an amount equal to 10% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for the most recent period of 12 consecutive months prior to the consummation of the Material Acquisition (other than the Merger) most recently consummated for which financial statements are available as of such date of determination, determined on a Pro Forma Basis to give effect to such Material Acquisition (and each other Material Acquisition that shall have been consummated during such period).

22 (A) commencing with the Fiscal Year ending on December 31, 2018, the portion of the Base CapEx Amount for any Fiscal Year that has not been expended to make Consolidated Capital Expenditures during such Fiscal Year (but not in excess of 50% of the Base CapEx Amount for such Fiscal Year) may be carried over for expenditure in the immediately following Fiscal Year and (B) Consolidated Capital Expenditures made during any Fiscal Year shall be deemed to use, first, the Base CapEx Amount for such Fiscal Year and, second, any portion of the Base CapEx Amount for the immediately preceding Fiscal Year that has been carried over to such Fiscal Year pursuant to clause (A) above.

ANNEX C

TO COMPLIANCE CERTIFICATE

FOR THE FISCAL YEAR ENDED [mm/dd/yy]

3.	Consolidated Excess Cash Flow: (i) − (ii) =	$[___,___,___]
	(i) the sum, without duplication, of: (a) + (b) + (c) + (d) + (e) + (f) + (g) =	$[___,___,___]
	(a)Consolidated Net Income for such period:	$[___,___,___]
	(b)the aggregate amount of all non-cash charges (including depreciation expense, amortization expense and deferred tax expense), to the extent deducted in arriving at Consolidated Net Income:	$[___,___,___]
	(c)the sum of (A) the amount, if any, by which Consolidated Working Capital decreased during such period (except as a result of the reclassification of items from short-term to long-term or vice versa) and (B) the net amount, if any, by which the consolidated deferred revenues of the Borrower and the Restricted Subsidiaries increased during such period, in each case, other than any such decreases or increases, as applicable, arising from an Acquisition or from a Disposition of assets (other than in the ordinary course of business) by the Borrower or any of the Restricted Subsidiaries completed during such period:	$[___,___,___]
	(d)the aggregate amount of net non-cash loss on any Disposition of assets by the Borrower and the Restricted Subsidiaries (other than Dispositions in the ordinary course of business), to the extent deducted in arriving at Consolidated Net Income:	$[___,___,___]
	(e)the aggregate amount of cash payments received in respect of Hedge Agreements during such period, to the extent not included in arriving at Consolidated Net Income:	$[___,___,___]
	(f)the aggregate amount of any non-cash loss for such period attributable to the early extinguishment of Indebtedness or Hedge Agreements, to the extent deducted in arriving at such Consolidated Net Income:	$[___,___,___]
	(g)income tax expense, to the extent deducted in arriving at such Consolidated Net Income:	$[___,___,___]
	(ii) the sum, without duplication, of: (a) + (b) + (c) + (d) + (e) + (f) + (g) + (h) + (i) + (j) + (k) + (l) + (m) + (n) + (o) =	$[___,___,___]
	(a)the aggregate amount of all non-cash credits included in arriving at Consolidated Net Income:	$[___,___,___]

(b)without duplication of amounts deducted pursuant to clause (k) below in any prior period, the Consolidated Capital Expenditures23 made by the Borrower and the Restricted Subsidiaries in Cash during such period, except to the extent financed with Excluded Sources:

$[___,___,___]

(c)the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries repaid or prepaid (including, to the extent of Cash spent, through repurchases and redemptions) by the Borrower and the Restricted Subsidiaries in Cash during such period (including (A) the principal component of payments in respect of Capital Lease Obligations, (B) scheduled Installments of Loans made pursuant to Section 2.11 of the Credit Agreement and scheduled installments of term loans made pursuant to Section 2.11 of the First Lien Credit Agreement (or any comparable provision in any other Permitted Section 6.1(e) Indebtedness Document), (C) the amount of any mandatory prepayment of Loans, any Permitted Pari Passu Secured Indebtedness or any Permitted Senior Lien Secured Indebtedness actually made with the Net Proceeds of an Asset Sale or an Insurance/Condemnation Event, in each case, to the extent such Net Proceeds resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, and (D) to the extent of Cash spent, repurchases by the Borrower of Loans pursuant to Section 10.6(i)(ii) of the Credit Agreement, but excluding (1) all other repayments or prepayments (including repurchases and redemptions) of Loans, Permitted Pari Passu Secured Indebtedness and Permitted Senior Lien Secured Indebtedness, (2) all repayments or prepayments (including repurchases and redemptions) of any revolving credit loans (other than in respect of any revolving credit facility to the extent there is an equivalent permanent reduction in commitments thereunder, other than in connection with a refinancing thereof) and (3) repayments or prepayments (including repurchases and redemptions) of Junior Indebtedness (it being understood and agreed that any amount excluded pursuant to clauses (1) through (3) above may not be deducted under any other clause of this definition)), except to the extent financed with Excluded Sources:

$[___,___,___]

23 “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures made by the Borrower and the Restricted Subsidiaries during such period that are required to be included in “purchase of property, plant and equipment” or similar items on a consolidated statement of cash flows, or that are otherwise required to be capitalized on a consolidated balance sheet, of the Borrower and the Restricted Subsidiaries for such period prepared in conformity with GAAP;provided that Consolidated Capital Expenditures shall not include any expenditures (a) to the extent made with Net Proceeds reinvested pursuant to Section 2.13(a) or 2.13(b) of the Credit Agreement or (b) that constitute an Acquisition permitted under Section 6.6 of the Credit Agreement;provided further that, except for purposes of calculating Consolidated Excess Cash Flow for any period, in the event the Borrower or any Restricted Subsidiary consummates an Acquisition, Consolidated Capital Expenditures shall not include any such expenditures made by any Person, business unit, division, product line or line of business acquired pursuant to such Acquisition, in each case, prior to the date of the consummation of such Acquisition.

(d)the aggregate amount of net non-cash gain on any Disposition of assets by the Borrower and the Restricted Subsidiaries (other than Dispositions in the ordinary course of business), to the extent included in arriving at Consolidated Net Income:	$[___,___,___]
(e)the sum of (i) the amount, if any, by which Consolidated Working Capital increased during such period (except as a result of the reclassification of items from short-term to long-term or vice versa) and (ii) the net amount, if any, by which the consolidated deferred revenues of the Borrower and the Restricted Subsidiaries decreased during such period, in each case, other than any such increases or decreases, as applicable, arising from an Acquisition or from a Disposition of assets (other than in the ordinary course of business) by the Borrower or any of the Restricted Subsidiaries completed during such period:	$[___,___,___]
(f)the aggregate amount of any non-cash gain for such period attributable to the early extinguishment of Indebtedness, Hedge Agreements or other derivative instruments, to the extent included in arriving at Consolidated Net Income:	$[___,___,___]
(g)the aggregate amount of Cash payments made by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, except to the extent financed with Excluded Sources:	$[___,___,___]
(h)without duplication of amounts deducted pursuant to clause (k) below in any prior period, the aggregate amount of Cash paid by the Borrower and the Restricted Subsidiaries during such period to consummate any Acquisition or Investment (other than intercompany Investments) permitted under Section 6.6(l), 6.6(m) or 6.6(o) of the Credit Agreement, except to the extent financed with Excluded Sources:	$[___,___,___]
(i)the aggregate amount of Restricted Junior Payments permitted by Section 6.4(e), 6.4(g)(i) or 6.4(i) of the Credit Agreement paid by the Borrower and the Restricted Subsidiaries in Cash during such period, except to the extent financed with Excluded Sources:	$[___,___,___]
(j)the aggregate amount of any premium, make-whole or penalty payments actually paid in Cash by the Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, except to the extent financed with Excluded Sources:	$[___,___,___]

(k)without duplication of amounts deducted from Excess Cash Flow in any prior period, the aggregate Contract Consideration entered into prior to or during such period relating to Acquisitions or Consolidated Capital Expenditures, in each case, to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrower following the end of such period;provided that to the extent that the aggregate amount of Cash actually utilized to finance such Acquisitions or Consolidated Capital Expenditures during such period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Consolidated Excess Cash Flow at the end of such period of four consecutive Fiscal Quarters:	$[___,___,___]
(l)to the extent not deducted in arriving at Consolidated Net Income, directors’ fees (including salary and bonus) and board consulting fees and related reimbursement of reasonable out-of-pocket expenses paid by the Borrower and the Restricted Subsidiaries in Cash in such period:	$[___,___,___]
(m)to the extent not deducted in arriving at Consolidated Net Income, transaction fees, costs and expenses incurred in connection with the Transactions or any Acquisition paid by the Borrower and the Restricted Subsidiaries in Cash in such period:	$[___,___,___]
(n)to the extent not deducted in arriving at Consolidated Net Income, income taxes, including penalties and interest, paid by the Borrower and the Restricted Subsidiaries in Cash in such period:	$[___,___,___]
(o)to the extent not deducted in arriving at Consolidated Net Income, the aggregate amount of Cash payments made by the Borrower and the Restricted Subsidiaries in respect of Hedge Agreements during such period:	$[___,___,___]

EXHIBIT D

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

FUSION CONNECT, INC.

420 Lexington Avenue

Suite 1718

New York, New York 10170

Wilmington Trust, National Association

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

Attention: Josh James

Telephone: (612) 217-5637

Fax: (612) 217-5651

Email: jjames@wilmingtontrust.com

CONVERSION/CONTINUATION NOTICE

Reference is made to the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

Pursuant to Section 2.8 of the Credit Agreement, the Borrower hereby notifies the Administrative Agent of the following information with respect to the conversion or continuation requested hereby:

1.

Class (e.g., Tranche B Term) and Type (e.g., Base Rate or Eurodollar Rate) of existing Borrowing to which this request applies24:

_______________________________________________

4.Principal amount of existing Borrowing to be converted/continued25:

______________________________________________

3. 

Type (e.g., Base Rate or Eurodollar Rate) and principal amount of each new Borrowing resulting from the requested conversion/continuation26:

______________________________________________

5.

Interest Period of each new Borrowing resulting from the requested conversion/continuation (if applicable)27:

______________________________________________

5. 

Effective date of election28: __________________________________________

Date: [ ], 20[  ]

FUSION CONNECT, INC.

By: __________________________

Name:

Title:

24     If a Eurodollar Rate Borrowing, specify last day of current Interest Period.

25     If different options are being elected with respect to different portions of the existing Borrowing, indicate the portions thereof to be allocated to each resulting Borrowing.

26     Base Rate Borrowing or Eurodollar Rate Borrowing. If different options are being elected with respect to different portions of the Borrowing, specify type for each resulting new Borrowing.

27     Applicable only if the resulting Borrowing is to be a Eurodollar Rate Borrowing, and subject to the definition of “Interest Period”, which generally allows the Borrower to request one, two, three or six month periods (or such longer period as consented to by each Lender of the applicable Class of Loans and notified in writing to the Administrative Agent). If no election of Interest Period is specified, then the Borrower will be deemed to have specified an Interest Period of one month. If different options are being elected with respect to different portions of the existing Borrowing, specify for each resulting Borrowing.

28 Must be a Business Day. Conversion/Continuation Notice to be delivered to the Administrative Agent (a) in the case of a conversion to a Base Rate Borrowing, not later than 11:00 a.m. (New York City time) one Business Day in advance of the proposed Conversion/Continuation Date and (b) in the case of a conversion to, or a continuation of, a Eurodollar Rate Borrowing, not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Conversion/Continuation Date.

EXHIBIT E

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

SECOND LIEN COUNTERPART AGREEMENT

This SECOND LIEN COUNTERPART AGREEMENT, dated [ ], 20[ ] (this “Counterpart Agreement”), is delivered pursuant to the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

SECTION 1. In accordance with Section 5.10 of the Credit Agreement, the undersigned by its signature below becomes a Guarantor Subsidiary under the Credit Agreement with the same force and effect as if originally named therein as a Guarantor Subsidiary, and the undersigned hereby (a) agrees to all the terms and provisions of the Credit Agreement applicable to it as a Guarantor Subsidiary (and, accordingly, as a Credit Party) thereunder and (b) in furtherance of the foregoing, hereby irrevocably and unconditionally guarantees, jointly and severally with the other Guarantors, the due and punctual payment in full of all Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or any similar provision of any other Debtor Relief Law), all in accordance with, and subject to the provisions of, Section 7 of the Credit Agreement.

SECTION 2. The undersigned hereby represents and warrants, as to itself, that the representations and warranties set forth in Sections 4.1, 4.3, 4.4, 4.5 and 4.6 of the Credit Agreement are true and correct on and as of the date hereof.

SECTION 3. The undersigned agrees to execute any and all further documents, agreements and instruments, and take all such further actions, that the Administrative Agent may reasonably request to effectuate the transactions contemplated by, and to carry out the intent of, this Counterpart Agreement.

SECTION 4. Neither this Counterpart Agreement nor any provision hereof may be waived, amended or modified, and no consent to any departure by the undersigned therefrom may be made, except in accordance with the Credit Agreement. Any notice or other communication herein required or permitted to be given shall be given pursuant to Section 10.1 of the Credit Agreement. In case any provision in or obligation under this Counterpart Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

SECTION 5. THIS COUNTERPART AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the undersigned has caused this Second Lien Counterpart Agreement to be duly executed and delivered by its duly authorized officer as of the date above first written.

[NAME OF DESIGNATED SUBSIDIARY]

By: _______

Name:

Title:

ACKNOWLEDGED AND ACCEPTED,

as of the date above first written:

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Administrative Agent

By:_____________________

Name:

Title:

EXHIBIT F

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

FUSION CONNECT, INC.

420 Lexington Avenue

Suite 1718

New York, New York 10170

Wilmington Trust, National Association

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

Attention: Josh James

Telephone: (612) 217-5637

Fax: (612) 217-5651

Email: jjames@wilmingtontrust.com

FUNDING NOTICE

Reference is made to the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.

Pursuant to Section 2.1 of the Credit Agreement, the Borrower desires that Lenders make the following Loans to the Borrower in accordance with the applicable terms and conditions of the Credit Agreement on [ ], 20[ ] (the “Credit Date”):

Tranche B Term Loans29: □           Base Rate Loans: □ Eurodollar Rate Loans, with an initial Interest Period of ________ month(s)30: $[___,___,___] $[___,___,___]

Wiring instructions for account to which

proceeds of Loans are to be remitted:                                                                                                 [ ]

The Borrower hereby certifies that:31

(a) The representations and warranties of each Credit Party set forth in the Credit Documents are true and correct (i) in the case of the representations and warranties qualified as to materiality in the text thereof, in all respects, and (ii) otherwise, in all material respects, in each case on and as of the Credit Date set forth above, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty is so true and correct on and as of such earlier date.

(b) At the time of and immediately after giving effect to such Credit Extension, no Default or Event of Default has occurred and is continuing or would result therefrom.

Date: [ ], 20[ ] 

FUSION CONNECT, INC.

By:           ________________________________

Name:

Title:

29 Funding Notice must be delivered to the Administrative Agent (a) with respect to a Base Rate Borrowing, not later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date (which shall be a Business Day) and (b) with respect to a Eurodollar Rate Borrowing, not later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Credit Date (which shall be a Business Day) (or, in each case, with respect to any Borrowing of Incremental Loans or Refinancing Loans, not later than such other time as shall be specified therefor in the applicable Incremental Facility Agreement or Refinancing Facility Agreement). Eurodollar Rate Borrowings generally shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess of such amount..

30 Subject to the definition of “Interest Period”, which generally allows the Borrower to request one, two, three or six month periods (or such longer period as consented to by each Lender of the applicable Class of Loans and notified in writing to the Administrative Agent). If no election is specified, then the Borrower will be deemed to have specified an Interest Period of one month.

31 In the case of any Loans the proceeds of which are intended to be applied to finance a Limited Conditionality Transaction, the certifications set forth in clauses (a) and (b) may be satisfied as of the applicable LCT Test Date in accordance with Section 1.5 of the Credit Agreement.

  EXHIBIT G

       TO FUSION CONNECT, INC.

 SECOND LIEN CREDIT AND GUARANTY AGREEMENT

SECOND LIEN INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT, dated as of May 4, 2018 (this “Agreement”), among FUSION CONNECT, INC., a Delaware corporation (the “Borrower”), the other Intercompany Lenders and Intercompany Debtors (each as defined below) from time to time party hereto and Wilmington Trust, National Association, as Administrative Agent.

Reference is made to the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

The Credit Agreement provides that Indebtedness owing by a Credit Party to any Restricted Subsidiary that is not a Credit Party shall be subordinated in right of payment to the Obligations. For purposes of this Agreement, (a) “Intercompany Indebtedness” means any Indebtedness owed by any Credit Party to any Restricted Subsidiary that is not a Credit Party, together with all interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the principal of such Indebtedness and all other monetary obligations of any Credit Party arising from or in respect of such Indebtedness, including obligations to pay fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) each of the Credit Parties, in its capacity as an obligor in respect of any Intercompany Indebtedness, is referred to herein as an “Intercompany Debtor”, (c) each of the Restricted Subsidiaries that is not a Credit Party, in its capacity as an obligee in respect of any Intercompany Indebtedness, is referred to herein as an “Intercompany Lender” and (d) the Lenders, the Agents (including former Agents, as applicable) and the other Secured Parties are sometimes collectively referred to as “Senior Lenders”.

The Senior Lenders have agreed to extend credit to the Borrower, and to permit the Credit Parties to incur Intercompany Indebtedness, subject to the terms and conditions set forth in the Credit Agreement. The Borrower and the other Restricted Subsidiaries are required to execute and deliver this Agreement pursuant to the terms of the Credit Agreement. In accordance with the Credit Agreement, each of the Restricted Subsidiaries party hereto that is not a Credit Party desires to enter into this Agreement in order to subordinate, on the terms set forth herein, its rights, as an Intercompany Lender, to payment under any Intercompany Indebtedness to the prior payment in full in cash or immediately available funds of the Obligations (other than contingent obligations as to which no claim has been made). The Intercompany Lenders are Affiliates of the Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in order to induce the Senior Lenders to extend such credit. Accordingly, the parties hereto agree as follows:

1.Definitions and Construction. Terms defined in the Credit Agreement or the Pledge and Security Agreement referred to therein, as applicable, are used herein (including the preliminary statements hereto) as defined therein. The rules of construction specified in Section 1.3 of the Credit Agreement shall apply to this Agreement, mutatis mutandis.

2.Subordination. (a) Each Intercompany Lender hereby agrees that all its right, title and interest in, to and under any Intercompany Indebtedness owed to it by any Intercompany Debtor shall be subordinate, and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Obligations of such Intercompany Debtor until the payment in full in cash or immediately available funds of all Obligations of such Intercompany Debtor (such Obligations, including interest thereon (including interest accruing at the default rate specified in the Credit Agreement) accruing after the commencement of any proceedings referred to in paragraph (b) of this Section, whether or not such interest is an allowed or allowable claim in such proceeding, being hereinafter collectively referred to as “Senior Indebtedness”).

(a)In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relating to any Intercompany Debtor or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of any Intercompany Debtor, whether or not involving insolvency or bankruptcy, then (i) the holders of Senior Indebtedness shall be paid in full in cash or immediately available funds in respect of all amounts constituting Senior Indebtedness before any Intercompany Lender shall be entitled to receive (whether directly or indirectly), or make any demand for, any payment or distribution of any kind or character, whether in cash securities or other property (other than Restructured Debt Securities (as defined below)), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, from such Intercompany Debtor on account of any Intercompany Indebtedness owed by such Intercompany Debtor to such Intercompany Lender (provided that the foregoing shall not impair the right of any such Intercompany Lender to file a proof of claim in any such proceeding in accordance with the terms hereof) and (ii) until the holders of Senior Indebtedness are paid in full in cash or immediately available funds in respect of all amounts constituting Senior Indebtedness, any payment or distribution to which such Intercompany Lender would otherwise be entitled, whether in cash, property or securities (other than a payment of debt securities of such Intercompany Debtor that are subordinated and junior in right of payment to the Senior Indebtedness to at least the same extent as the Intercompany Indebtedness described in this Agreement is subordinated and junior in right of payment to the Senior Indebtedness then outstanding (such securities being hereinafter referred to as “Restructured Debt Securities”)) shall instead be made to the holders of Senior Indebtedness.

(b)If any Event of Default has occurred and is continuing and the Administrative Agent has provided prior written notice to the Borrower requesting that no such payment or distribution, or no such forgiveness or reduction, be made, then (i) no payment or distribution of any kind or character, whether in cash securities or other property (other than Restructured Debt Securities), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be made by or on behalf of any Intercompany Debtor with respect to any Intercompany Indebtedness owed to any Intercompany Lender and (ii) no Intercompany Indebtedness owing by any Intercompany Debtor to any Intercompany Lender shall be forgiven or otherwise reduced in any way, other than as a result of payment of such amount in full in cash or immediately available funds.

(c)If any payment or distribution of any kind or character, whether in cash, securities or other property (other than Restructured Debt Securities), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, with respect to any Intercompany Indebtedness shall (despite these subordination provisions) be received by any Intercompany Lender from any Intercompany Debtor in violation of paragraph (b) or (c) of this Section prior to all Senior Indebtedness having been paid in full in cash or immediately available funds (other than contingent obligations as to which no claim has been made), such payment or distribution shall be held by such Intercompany Lender (segregated from other property of such Intercompany Lender) for the benefit of the Administrative Agent, and shall be paid over or delivered to the Administrative Agent promptly upon receipt to the extent necessary to pay all Senior Indebtedness in full in cash or immediately available funds.

(d)Each Intercompany Lender and each Intercompany Debtor hereby agrees that the subordination provisions set forth in this Agreement are for the benefit of the Administrative Agent and the other holders of Senior Indebtedness. The Administrative Agent may, on behalf of itself and such other holders of Senior Indebtedness, proceed to enforce these subordination provisions set forth herein.

3.Waivers and Consents. (a) Each Intercompany Lender waives, to the extent permitted by applicable law, the right to compel that any property or asset of any Intercompany Debtor or any property or asset of any other Credit Party be applied in any particular order to discharge the Obligations. Each Intercompany Lender expressly waives, to the extent permitted by applicable law, the right to require the Administrative Agent or any other Senior Lender to proceed against any Intercompany Debtor, any guarantor of any Obligation or any other Person, or to pursue any other remedy in its or their power that such Intercompany Lender cannot pursue and that would lighten such Intercompany Lender’s burden, notwithstanding that the failure of the Administrative Agent or any other Senior Lender to do so may thereby prejudice such Intercompany Lender. Each Intercompany Lender agrees that it shall not be discharged, exonerated or have its obligations hereunder reduced (i) by the Administrative Agent’s or any other Senior Lender’s delay in proceeding against or enforcing any remedy against any Intercompany Debtor, any guarantor of any Obligation or any other Person; (ii) by the Administrative Agent or any other Senior Lender releasing any Intercompany Debtor, any guarantor of any Obligation or any other Person from all or any part of the Obligations; or (iii) by the discharge of any Intercompany Debtor, any guarantor of any Obligation or any other Person by an operation of law or otherwise, with or without the intervention or omission of the Administrative Agent or any other Senior Lender.

(a)Each Intercompany Lender waives, to the extent permitted by applicable law, all rights and defenses arising out of an election of remedies by the Administrative Agent or any other Senior Lender, even though that election of remedies, including any nonjudicial foreclosure with respect to any property or asset securing any Obligation, has impaired the value of such Intercompany Lender’s rights of subrogation, reimbursement, or contribution against any Intercompany Debtor or any other Credit Party. Each Intercompany Lender expressly waives, to the extent permitted by law, any rights or defenses (other than the defense of payment or performance) it may have by reason of protection afforded to any Intercompany Debtor or any other Credit Party with respect to the Obligations pursuant to any anti-deficiency laws or other laws of similar import that limit or discharge the principal debtor’s indebtedness upon judicial or nonjudicial foreclosure of property or assets securing any Obligation.

(b)Each Intercompany Lender agrees that, without the necessity of any reservation of rights against it, and without notice to or further assent by it, any demand for payment of any Obligation made by the Administrative Agent or any other Senior Lender may be rescinded in whole or in part by such Person, and any Obligation may be continued, and the Obligations or the liability of any Intercompany Debtor or any other Credit Party obligated thereunder, or any right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered or released by the Administrative Agent or any other Senior Lender, in each case without notice to or further assent by such Intercompany Lender, which will remain bound hereunder, and without impairing, abridging, releasing or affecting the subordination provided for herein.

(c)Each Intercompany Lender waives, to the extent permitted by applicable law, any and all notice of the creation, renewal, extension or accrual of any of the Obligations, and any and all notice of or proof of reliance by the Senior Lenders upon this Agreement. The Obligations, and any of them, shall be deemed conclusively to have been created, contracted or incurred, and the consent to create the obligations of any Intercompany Debtor in respect of the Intercompany Indebtedness of such Intercompany Debtor shall be deemed conclusively to have been given, in reliance upon this Agreement. Each Intercompany Lender waives, to the extent permitted by applicable law, any protest, demand for payment and notice of default in respect of the Obligations.

4.Obligations Unconditional. All rights and interests of the Administrative Agent and the other Senior Lenders hereunder, and all agreements and obligations of each Intercompany Lender and each Intercompany Debtor hereunder, shall remain in full force and effect irrespective of:

(a)any lack of validity or enforceability of the Credit Agreement or any other Credit Document;

(b)any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations or any amendment or waiver or other modification, whether by course of conduct or otherwise, of, or consent to departure from, the Credit Agreement or any other Credit Document;

(c)any exchange, release or nonperfection of any Lien in any Collateral, or any release, amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of or consent to departure from, any guarantee of any Obligation; or

(d)any other circumstances that might otherwise constitute a defense available to, or a discharge of, any Intercompany Debtor in respect of the Obligations or of such Intercompany Lender or such Intercompany Debtor in respect of the subordination provisions set forth herein (other than the payment in full in cash or immediately available funds of the Obligations).

5.Waiver of Claims. (a) To the maximum extent permitted by law, each Intercompany Lender waives any claim it might have against the Administrative Agent or any other 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 the Administrative Agent or any other Senior Lender or any Related Party of any of the foregoing with respect to any exercise of rights or remedies under the Credit Documents in the absence of the gross negligence or wilful misconduct of such Person or its Related Parties (such absence to be presumed unless otherwise determined by a final, non-appealable judgment of a court of competent jurisdiction). None of the Administrative Agent or any other Senior Lender or any Related Party of any of the foregoing shall be liable to any Intercompany Lender for failure to demand, collect or realize upon any of the Collateral or any guarantee of any Obligation, 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 such Intercompany Lender or any other Person or to take any other action whatsoever with regard to the Collateral, or any part thereof, except to the extent such liability has been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Person or its Related Parties.

(a)Each Intercompany Lender, for itself and on behalf of its successors and assigns, hereby waives, to the extent permitted by applicable law, any and all now existing or hereafter arising rights it may have to require the Senior Lenders to marshal assets for the benefit of such Intercompany Lender, or to otherwise direct the timing, order or manner of any sale, collection or other enforcement of the Collateral or enforcement of any rights or remedies under the Credit Documents. The Senior Lenders are under no duty or obligation, and each Intercompany Lender hereby waives, to the extent permitted by applicable law, any right it may have to compel any Senior Lender, to pursue any Intercompany Debtor or any other Credit Party that may be liable for the Obligations, or to enforce any Lien in any Collateral.

(b)Each Intercompany Lender hereby waives, to the extent permitted by applicable law, and releases all rights which a guarantor or surety with respect to the Senior Indebtedness could exercise.

6.Notices. All communications and notices hereunder shall be in writing and given in the manner provided in Section 10.1 of the Credit Agreement. All communications and notices to any Intercompany Lender or Intercompany Debtor shall be given to it in care of the Borrower in the manner provided in Section 10.1 of the Credit Agreement.

7.Waivers; Amendment. (a) No failure or delay by the Administrative Agent or any other Senior Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the other Senior Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Intercompany Lender or any Intercompany Debtor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No notice or demand on any Intercompany Lender or any Intercompany Debtor in any case shall entitle any Intercompany Lender or any Intercompany Debtor to any other or further notice or demand in similar or other circumstances.

(a)Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Administrative Agent, the Borrower and the Intercompany Lenders or Intercompany Debtors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 10.5 of the Credit Agreement.

8.Successors and Assigns. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns permitted hereby.

(a)The Administrative Agent and the other Secured Parties shall have a full and unfettered right to assign or otherwise transfer the whole or any part of the benefit of this Agreement to any Person to whom all or a corresponding part of the Obligations are assigned or transferred in accordance with the Credit Agreement or pursuant to applicable law, all without impairing, abridging, releasing or affecting the subordination provided for herein.

9.Survival of Agreement. All covenants, agreements, representations and warranties made by the Intercompany Lenders and the Intercompany Debtors in this Agreement shall be considered to have been relied upon by the Administrative Agent and the other Senior Lenders and shall survive the execution and delivery of this Agreement, regardless of any investigation made by or on behalf of the Administrative Agent or any other Senior Lender and notwithstanding that the Administrative Agent or any other Senior Lender may have had notice or knowledge of any default hereunder or incorrect representation or warranty at the time this Agreement is executed and delivered and shall continue in full force and effect until terminated in accordance with Section 17. The provisions of Section 5 shall survive and remain in full force and effect regardless of the termination of this Agreement or any provision hereof. This Agreement shall apply in respect of the Obligations notwithstanding any intermediate payment in whole or in part of the Obligations and shall apply to the ultimate balance of the Obligations.

10.Counterparts; Effectiveness; Several Agreement. 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. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall become effective as to any Intercompany Lender or Intercompany Debtor when a counterpart hereof executed on behalf of such Intercompany Lender or Intercompany Debtor shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the Administrative Agent and delivered to the Borrower. This Agreement shall be construed as a separate agreement with respect to each Intercompany Lender and each Intercompany Debtor and may be amended, modified, supplemented, waived or released with respect to any Intercompany Lender or Intercompany Debtor without the approval of any other Intercompany Lender or Intercompany Debtor and without affecting the obligations of any other Intercompany Lender or Intercompany Debtor hereunder.

11.Severability. In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

12.Further Assurances. The Borrower, each other Intercompany Lender and each other Intercompany Debtor agrees that it will execute any and all further documents, agreements and instruments, and take all such further actions that may be required under any applicable law, or that the Administrative Agent may reasonably request for the purposes of obtaining or preserving the full benefits of the subordination provisions set forth herein and of the rights and powers herein granted, all at the expense of the Borrower or such Intercompany Lenders or such Intercompany Debtors.

13.GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; APPOINTMENT OF SERVICE OF PROCESS AGENT. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

(a)EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE JURISDICTION OF ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE BORROWER, EACH OTHER INTERCOMPANY LENDER AND EACH OTHER INTERCOMPANY DEBTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING BROUGHT BY IT OR ANY OF ITS AFFILIATES SHALL BE BROUGHT, AND SHALL BE HEARD AND DETERMINED, EXCLUSIVELY IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY OTHER SENIOR LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST THE BORROWER, ANY OTHER INTERCOMPANY LENDER, ANY OTHER INTERCOMPANY DEBTOR OR ANY OF ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(b)Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section 13. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, any defense of forum non conveniens to the maintenance of such action or proceeding in any such court.

(c)Each party hereto irrevocably consents to the service of process by mailing of copies of such process in the manner provided for notices in Section 6. Nothing in this Agreement will affect the right of any party to this Agreement or any Secured Party to serve process in any other manner permitted by law.

14.WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO 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 14 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR TO THE TRANSACTIONS CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

15.Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or to be taken into consideration in interpreting, this Agreement.

16.Provisions Define Relative Rights. The subordination provisions set forth herein are intended solely for the purpose of defining the relative rights of the Intercompany Lenders and the Intercompany Debtors, on the one hand, and the Administrative Agent and the other Secured Parties, on the other, and no other Person shall have any right, benefit or other interest under these subordination provisions.

17.Termination. This Agreement and the subordination provisions set forth herein shall automatically terminate when all the Obligations (other than contingent obligations as to which no claim has been made) have been paid in full in cash or immediately available funds and all Commitments have terminated. If (a) any Restricted Subsidiary shall have been designated as an Unrestricted Subsidiary in accordance with the terms of the Credit Agreement or (b) all the Equity Interests in any Restricted Subsidiary held by the Borrower and the Subsidiaries shall be sold or otherwise disposed of (including by merger or consolidation) in any transaction permitted by the Credit Agreement, and as a result of such sale or other disposition such Restricted Subsidiary shall cease to be a Subsidiary of the Borrower, then such Restricted Subsidiary shall, upon effectiveness of such designation, or the consummation of such sale or other disposition, automatically be discharged and released from its obligations hereunder;provided that that no such discharge and release shall occur unless substantially concurrently therewith, such Restricted Subsidiary shall cease to be subject to any obligations under any subordination agreement with respect to intercompany Indebtedness in favor of any Permitted Section 6.10(e) Indebtedness, any Permitted Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Indebtedness and any Permitted Subordinated Indebtedness.

18.Additional Subsidiaries. Pursuant to the Credit Agreement, certain Restricted Subsidiaries not a party hereto on the Closing Date are required to enter into this Agreement. Upon execution and delivery to the Administrative Agent after the date hereof by any Restricted Subsidiary of a counterpart signature page hereto, such Restricted Subsidiary shall become a party hereto with the same force and effect as if originally named as such herein. The execution and delivery of such a counterpart signature page shall not require the consent of any party hereto. The rights and obligations under this Agreement of each other party hereto shall remain in full force and effect notwithstanding the addition of any new Restricted Subsidiary as a party to this Agreement.

6.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

FUSION CONNECT, INC.,
by
	Name:
	Title:

[Signature Page to Intercompany Indebtedness Subordination Agreement]

[ ]
by
	Name:
	Title:

[Signature Page to Intercompany Indebtedness Subordination Agreement]

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent,
by
	Name:
	Title:

[Signature Page to Intercompany Indebtedness Subordination Agreement]

EXHIBIT H

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

GLOBAL INTERCOMPANY NOTE

May 4, 2018

FOR VALUE RECEIVED, each of the undersigned, to the extent a borrower from time to time from any other Person listed on the signature pages hereto (each, in such capacity, a “Payor”), hereby promises to pay on demand to such other Person listed below (each, in such capacity, a “Payee”), in lawful money of the United States of America, or in such other currency as agreed to by such Payor and such Payee, in immediately available funds, at such location as such Payee shall from time to time designate, the unpaid principal amount of all Indebtedness owed by such Payor to such Payee. Each Payor promises also to pay interest on the unpaid principal amount of all such Indebtedness in like money at said location from the date that such Indebtedness was incurred until it is paid in full at such rate per annum as shall be agreed upon from time to time by such Payor and such Payee.

Reference is made to (a) that certain First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “First Lien Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent (in its capacity as collateral agent, the “First Lien Collateral Agent”), and (b) that certain Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, supplemented or otherwise modified from time to time, the “Second Lien Credit Agreement” and, together with the First Lien Credit Agreement, the “Credit Agreements”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent (in its capacity as collateral agent, the “Second Lien Collateral Agent” and, together with the First Lien Collateral Agent, the “Collateral Agents”).

Capitalized terms used in this Global Intercompany Note (this “Note”) but not otherwise defined herein shall have the meanings given to them in (a) the First Lien Credit Agreement, or in the Pledge and Security Agreement referred to therein, or (b) the Second Lien Credit Agreement, or in the Pledge and Security Agreement referred to therein, as applicable.

This Note is subject to the terms of each Credit Agreement, and shall be pledged by each Payee that is a Credit Party to each Collateral Agent, for the benefit of the related Secured Parties, pursuant to the related Credit Documents as security for the payment and performance in full of the Obligations under each Credit Agreement and the related other Credit Documents, to the extent required pursuant to the terms thereof. Each Payee hereby acknowledges and agrees that upon the occurrence and during the continuance of an Event of Default under a Credit Agreement, (a) the applicable Collateral Agent may exercise any and all rights of any Credit Party with respect to this Note and (b) upon demand of the applicable Collateral Agent, all amounts evidenced by this Note that are owed by any Payor to any Credit Party shall become immediately due and payable, without presentment, demand, protest or notice of any kind (it being understood that the applicable Collateral Agent may make any such demand for all or any subset of the amounts owing to such Credit Party and upon any or all Payors obligated to such Credit Party, all without the consent or permission of any Payor or Payee). Each Payor also hereby acknowledges and agrees that this Note constitutes notice of assignment for security, pursuant to the relevant Credit Documents, of the Indebtedness and all other amounts evidenced by this Note and further acknowledges the receipt of such notice of assignment for security.

Upon the commencement of any insolvency or bankruptcy proceeding, or any receivership, liquidation, reorganization or other similar proceeding in connection therewith, in respect of any Payor owing any amounts evidenced by this Note to any Credit Party, or in respect of all or a substantial part of any such Payor’s property, or upon the commencement of any proceeding for voluntary liquidation, dissolution or other winding up of any such Payor, all amounts evidenced by this Note owing by such Payor to any and all Credit Parties shall become immediately due and payable, without presentment, demand, protest or notice of any kind.

Each Payee is hereby authorized to record all loans and advances made by it to any Payor (all of which shall be evidenced by this Note), and all repayments or prepayments thereof, in its books and records, such books and records constituting prima facie evidence of the accuracy of the information contained therein;provided, however, that the failure of any such Payee to so record any such information in accordance with this clause shall not affect any such Payor’s obligations hereunder.

Each Payor hereby waives diligence, presentment, demand, protest or notice of any kind whatsoever in connection with this Note. All payments under this Note shall be made without set-off, counterclaim or deduction of any kind.

This Note shall be binding upon each Payor and its successors and assigns, and the terms and provisions of this Note shall inure to the benefit of each Payee and its successors and assigns, including subsequent holders hereof.

From time to time after the date hereof, additional Restricted Subsidiaries of the Borrower may become parties hereto (as Payor and/or Payee, as the case may be) by executing a counterpart signature page to this Note (each additional Restricted Subsidiary, an “Additional Party”). Upon delivery of such counterpart signature page to the Payees, notice of which is hereby waived by the other Payors, each Additional Party shall be a Payor and/or a Payee, as the case may be, and shall be as fully a party hereto as if such Additional Party were an original signatory hereof. Each Payor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Payor or Payee hereunder. This Note shall be fully effective as to any Payor or Payee that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Payor or Payee hereunder.

No amendment, modification or waiver of, or consent with respect to, any provisions of this Note shall be effective unless the same shall be in writing and signed and delivered by each Payor and Payee whose rights or obligations shall be affected thereby;provided that, until such time as (a) all the Obligations (other than contingent obligations as to which no claim has been made and the Specified Hedge Obligations and Specified Cash Management Services Obligations) under each Credit Agreement and the related other Credit Documents have been paid in full in cash or immediately available funds, (b) all Commitments have terminated and (c) no Letter of Credit shall be outstanding, as applicable, each Administrative Agent shall have provided its prior written consent to such amendment, modification, waiver or consent (which consent shall not be unreasonably withheld or delayed).

THIS NOTE AND ALL INDEBTEDNESS EVIDENCED HEREBY ARE SUBJECT TO THE SUBORDINATION PROVISIONS OF (a) THE INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT, DATED AS OF MAY 4, 2018 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “SECOND LIEN INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT”), AMONG THE BORROWER, SUBSIDIARIES OF THE BORROWER PARTY THERETO AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT UNDER THE SECOND LIEN CREDIT AGREEMENT, AND (b) THE INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT, DATED AS OF MAY 4, 2018 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “SECOND LIEN INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT” AND, TOGETHER WITH THE SECOND LIEN INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT, THE “INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENTS”), AMONG THE BORROWER, SUBSIDIARIES OF THE BORROWER PARTY THERETO AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT UNDER THE SECOND LIEN CREDIT AGREEMENT. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, NEITHER THE PRINCIPAL OF NOR THE INTEREST ON, NOR ANY OTHER AMOUNTS PAYABLE IN RESPECT OF, ANY INDEBTEDNESS CREATED OR EVIDENCED BY THIS NOTE SHALL BE PAID OR PAYABLE, EXCEPT TO THE EXTENT PERMITTED UNDER THE INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENTS, WHICH ARE INCORPORATED HEREIN BY REFERENCE WITH THE SAME FORCE AND EFFECT AS IF FULLY SET FORTH HEREIN.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

PAYORS:

FUSION CONNECT, INC.,
by
	Name:
	Title:

FUSION NBS ACQUISITION CORP. FUSION, LLC FUSION BCHI ACQUISITION, LLC BIRCH COMMUNICATIONS, LLC CBEYOND, INC. CBEYOND COMMUNICATIONS, LLCBIRCH MANAGEMENT LLC BIRCH TELECOM LLC BIRCH TEXAS HOLDINGS, INC. BIRCH TELECOM OF KANSAS, LLC BIRCH TELECOM OF OKLAHOMA, LLC BIRCH TELECOM OF MISSOURI, LLC BIRCH TELECOM OF TEXAS LTD., L.L.P. BIRCAN HOLDINGS, LLCPRIMUS HOLDINGS, INC.FUSION MPHC ACQUISITION CORP.,
By:
	Name:
	Title:

PRIMUS MANAGEMENT ULCBIRCAN MANAGEMENT ULC,
by
	Name:
	Title:

[Signature Page to Global Intercompany Note]

PAYEES:

FUSION CONNECT, INC.,
by
	Name:
	Title:

FUSION NBS ACQUISITION CORP. FUSION, LLC FUSION BCHI ACQUISITION, LLC BIRCH COMMUNICATIONS, LLC CBEYOND, INC. CBEYOND COMMUNICATIONS, LLCBIRCH MANAGEMENT LLC BIRCH TELECOM LLC BIRCH TEXAS HOLDINGS, INC. BIRCH TELECOM OF KANSAS, LLC BIRCH TELECOM OF OKLAHOMA, LLC BIRCH TELECOM OF MISSOURI, LLC BIRCH TELECOM OF TEXAS LTD., L.L.P. BIRCAN HOLDINGS, LLCPRIMUS HOLDINGS, INC.FUSION MPHC ACQUISITION CORP.,
By:
	Name:
	Title:

PRIMUS MANAGEMENT ULCBIRCAN MANAGEMENT ULC,
by
	Name:
	Title:

[Signature Page to Global Intercompany Note]

EXHIBIT I

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

FORM OF INTERCREDITOR AGREEMENT

[See attached]

EXHIBIT J

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

FORM OF SECOND LIEN PLEDGE AND SECURITY AGREEMENT

[See attached]

EXHIBIT K

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

SOLVENCY CERTIFICATE

Date: May 4, 2018

To the Administrative Agent and each of the Lenders

party to the Credit Agreement referred to below:

Pursuant Section 3.1(h) of the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent, the undersigned, solely in the undersigned’s capacity as the chief financial officer of the Borrower, hereby certifies, on behalf of the Borrower and not in the undersigned’s individual or personal capacity and without personal liability, that, as of the Closing Date, after giving effect to the Transactions contemplated thereby (including the making of the Loans on the Closing Date and the application of the proceeds thereof):

(a) the sum of the debt and other liabilities (including contingent liabilities) of the Borrower and the Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present assets of the Borrower and the Subsidiaries, on a consolidated basis;

(b) the capital of the Borrower and the Subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as conducted or proposed to be conducted, on a consolidated basis;

(c) the Borrower and the Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that they will incur, debts and liabilities (including contingent liabilities), on a consolidated basis, beyond the ability of the Borrower and the Subsidiaries, on a consolidated basis, to pay such debts and liabilities as they become due (whether at maturity or otherwise); and

(d) the Borrower and the Subsidiaries, on a consolidated basis, are “solvent” within the meaning given to that term and similar terms under any applicable Debtor Relief Laws and other applicable laws relating to preferences, fraudulent transfers and conveyances or transfers undervalue.

For purposes of this Solvency Certificate, the amount of any contingent liability at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria for accrual under GAAP).

Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.

The undersigned is familiar with the business and financial position of the Borrower and the Subsidiaries. In reaching the conclusions set forth in this Solvency Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the business proposed to be conducted by the Borrower and the Subsidiaries after consummation of the Transactions.

IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate, solely in the undersigned’s capacity as the chief financial officer of the Borrower, on behalf of the Borrower and not in the undersigned’s individual or personal capacity and without personal liability, as of the date first stated above.

FUSION CONNECT, INC.
by
	Name:
	Title:

EXHIBIT L

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

SUPPLEMENTAL COLLATERAL QUESTIONNAIRE

Reference is made to (a) the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (the “First Lien Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and as collateral agent (in its capacity as collateral agent, the “First Lien Collateral Agent”), and (b) the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (the “Second Lien Credit Agreement” and, together with the First Lien Credit Agreement, the “Credit Agreements”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and as collateral agent (in its capacity as collateral agent, the “Second Lien Collateral Agent” and, together with the First Lien Collateral Agent, the “Collateral Agents”). Capitalized terms used but not otherwise defined herein shall have the meanings specified in (i) the First Lien Credit Agreement or the Pledge and Security Agreement referred to therein or (ii) the Second Lien Credit Agreement or the Pledge and Security Agreement referred to therein, as applicable.

This Supplemental Collateral Questionnaire dated as of [          ], 20[ ] is delivered pursuant to Section 5.1(k) of each Credit Agreement, and supplements the information set forth in the Collateral Questionnaire delivered on the Closing Date (as supplemented from time to time by each Supplemental Collateral Questionnaire delivered after the Closing Date and prior to the date hereof, the “Prior Collateral Questionnaire”) with respect to each Credit Party (which term, for purposes of this Supplemental Collateral Questionnaire, shall be deemed to include each New Subsidiary as defined in each Pledge and Security Agreement).

The undersigned, an Authorized Officer of the Borrower, solely in his/her capacity as an Authorized Officer, and not individually and without personal liability, hereby certifies to each Collateral Agent and the related other Secured Parties as follows:

SECTION1.Legal Names. Schedule 1 hereto sets forth the exact legal name of each Credit Party, as such name appears in its certificate of organization, and indicates changes, if any, in the foregoing information compared to the information set forth on Schedule 1 of the Prior Collateral Questionnaire.

SECTION2.Jurisdictions and Locations. Schedule 2A hereto sets forth (a) the jurisdiction of organization and the form of organization of each Credit Party, (b) the organizational identification number, if any, assigned to each Credit Party by such jurisdiction and the federal taxpayer identification number, if any, of such Credit Party and (c) the address (including the county) of the chief executive office of each Credit Party, and indicates changes, if any, in the foregoing information compared to the information set forth on Schedule 2A of the Prior Collateral Questionnaire.

SECTION3.Status of Filings. All UCC financing statements (including fixtures filings and transmitting utility filings, as applicable) and all Intellectual Property Security Agreements or supplements thereto have been filed of record in each applicable governmental office in order that, to the extent perfection can be obtained by filing UCC financing statements and recordation of a security agreement with the United States Patent and Trademark Office or the United States Copyright Office, the security interests created under the Collateral Documents (as defined in each Credit Agreement) shall be perfected for a period of not less than 18 months after the date of this Supplemental Collateral Questionnaire (except as noted in Schedule 3 hereto with respect to any continuation statements to be filed within such period).

SECTION4.Equity Interests. Schedule 4 hereto sets forth a true and complete list, for each Credit Party, of all the stock, partnership interests, limited liability company membership interests or other Equity Interests owned by such Credit Party, specifying the issuer and certificate number of (if certificated), and the number and percentage of ownership represented by, such Equity Interests, and indicates changes, if any, in such list compared to the list set forth on Schedule 4 of the Prior Collateral Questionnaire.

SECTION5.Debt Instruments. Schedule 5 hereto sets forth a true and complete list, for each Credit Party, of all debt securities, promissory notes and other evidence of Indebtedness held by such Credit Party, including (a) all intercompany notes between or among the Borrower and the other Restricted Subsidiaries and (b) all promissory notes in the principal amount of $1,000,000 or more owed to the Borrower or any other Credit Party, in each case specifying the creditor and debtor thereunder and the type and outstanding principal amount thereof, and indicates changes, if any, in such list compared to the list set forth on Schedule 5 of the Prior Collateral Questionnaire.

SECTION6.Material Real Estate Assets. Schedule 6 hereto sets forth a true and complete list, with respect to each Material Real Estate Asset, of (a) the exact name of the Person that owns such property, as such name appears in its certificate of organization or formation, (b) if different from the name identified pursuant to clause (a) above, the name of the current record owner of such property, as such name appears in the records of the county recorder’s office for such property identified pursuant to clause (c) below, and (c) the county recorder’s office in which a Mortgage with respect to such property must be filed or recorded in order for each Collateral Agent to provide constructive notice to third parties of its mortgage lien.

SECTION7.Intellectual Property. Schedule 7 hereto sets forth, in proper form for filing with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, a true and complete list of each Credit Party’s (a) Copyrights, Copyright Applications and exclusive Copyright Licenses (where a Credit Party is a licensee), (b) Patents and Patent Applications and (c) Trademarks and Trademark Applications, in each case specifying the name of the registered owner, title, type or mark, registration or application number, expiration date (if already registered) (except with respect to Copyrights and exclusive Copyright Licenses) or filing date, a brief description thereof and, if applicable, the licensee and licensor, and indicates changes, if any, in such list compared to the list set forth on Schedule 7 of the Prior Collateral Questionnaire.

SECTION8.Commercial Tort Claims. Schedule 8 hereto sets forth a true and complete list of commercial tort claims in excess of $2,000,000 held by any Credit Party, including a brief description thereof, and indicates changes, if any, in such list compared to the list set forth on Schedule 8 of the Prior Collateral Questionnaire.

SECTION9.Insurance. Schedule 9 hereto sets forth a true and complete list of all insurance policies (including life and disability insurance policies) maintained by the Credit Parties, and indicates changes, if any, in such list compared to the list set forth on Schedule 9 of the Prior Collateral Questionnaire.

SECTION10.Other Collateral. Schedule 10 hereto sets forth a true and complete list of all of the following types of collateral, if any, owned or held by each Credit Party, and indicates changes, if any, in such list compared to the list set forth on Schedule 10 of the Prior Collateral Questionnaire: (a) all agreements and contracts with any Governmental Authority, (b) all FCC Licenses and (c) all state telecommunications licenses.

SECTION11.Unusual Transactions. All Accounts of the Credit Parties have been originated by the Credit Parties in the ordinary course of business.

SECTION12.Transmitting Utility Companies. Schedule 12 hereto sets forth (a) the exact legal name of any Credit Party that may be a transmitting utility (as defined in the UCC) and (b) the address(es) where such Credit Party owns any fixtures.

[Signature page follows]

IN WITNESS WHEREOF, the undersigned have duly executed this Supplemental Collateral Questionnaire on this [ ] day of [ ], 20[ ].

FUSION CONNECT, INC.,
by
	Name:
	Title:

Schedule 1

Legal Names

Exact Legal Name French Form of Name (if applicable)

Schedule 2A

Jurisdictions and Locations

Credit Party Jurisdiction of Organization Form of Organization Organizational Identification Number(if any) Federal Taxpayer Identification Number (if any) Chief Executive Office Address (including county)

Schedule 3

Continuation Statement Filings

Credit Party Jurisdiction of Organization UCC Financing Statement to be Continued

Schedule 4

Equity Interests

Credit Party Issuer Type of Organization Number of Shares Owned Total Shares Outstanding Percentage of Interest Pledged Certificate No. (if uncertificated, please indicate so)

Schedule 5

Debt Instruments

Credit Party Debtor Type of Instrument Outstanding Principal Amount

Schedule 6

Material Real Estate Assets

Credit Party/Name of Owner Name/Address/City/State/Zip Code County/ Parish UCC Filing Office/Local Filing Office

Schedule 7

Intellectual Property

I.

Copyrights

Registered Owner Title Registration Number Expiration Date

II.

Copyright Applications

Registered Owner Title Application Number Date Filed

III.

Exclusive Copyright Licenses (where a Credit Party is a licensee)

Licensee Licensor Title Registration Number Expiration Date

IV.

Patents

Registered Owner Title of Patent Country Type Registration Number Issue Date Expiration

V.

Patent Applications

Registered Owner Title of Patent Country Type Application Number Date Filed

VI.

      Trademarks

Registered Owner Mark Country Application No. Registration No. Registration Date Expiration Date

VII.

Trademark Applications

Registered Owner Mark Country Application No. Filing Date

Schedule 8

Commercial Tort Claims

Schedule 9

Insurance

Insurance Policy Coverage Scope of Coverage Lead Insurance Carrier Limit of Liability Term Deductibles or Self-Insured Retention

Schedule 10

Other Collateral

Schedule 12

Transmitting Utility

Credit Party Jurisdiction where Transmitting Utility Equipment is Held

   EXHIBIT M

TO FUSION CONNECT, INC.

     SECOND LIEN CREDIT AND GUARANTY AGREEMENT

FORM OF NOTE

$_________ [          ], 20__

FOR VALUE RECEIVED, the undersigned, FUSION CONNECT, INC., a Delaware corporation (the “Borrower”), hereby unconditionally promises to pay to ________________________ (the “Lender”) or its registered assigns, in lawful money of the United States of America and in same day funds, (a) the principal amount of ____________ DOLLARS ($___________) or (b) if less, the aggregate unpaid principal amount of all [Tranche B Term] Loans made by the Lender to the Borrower pursuant to the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent, on such dates and in such amounts as are set forth in the Credit Agreement. Capitalized terms used in this Note but not otherwise defined herein shall have the meanings given to them in the Credit Agreement.

The Borrower also promises to pay interest in like money on the unpaid principal amount hereof from time to time outstanding from and including the date hereof until maturity (whether by acceleration or otherwise) and, after maturity, until paid, at the rates per annum and on the dates specified in the Credit Agreement.

The holder of this Note (this “Note”) is authorized to endorse on Schedule A attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each [Tranche B Term] Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of a Eurodollar Rate Loan, the length of each Interest Period with respect thereto. The failure to make any such endorsement shall not affect the obligations of the Borrower in respect of any such [Tranche B Term] Loan.

This Note (a) is one of the Notes referred to in the Credit Agreement, (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional prepayment in whole or in part as provided in the Credit Agreement. Reference is made to the Credit Agreement for provisions for the acceleration of the maturity hereof. This Note may not be transferred except in compliance with the terms of the Credit Agreement. Transfers of this Note must be recorded in the Register maintained by the Administrative Agent pursuant to the terms of the Credit Agreement.

THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

FUSION CONNECT, INC.

By:________________________________

Name:

Title:

[Signature Page to Note]

SCHEDULE A

to Note

LOANS, CONTINUATIONS, CONVERSIONS AND

REPAYMENTS OF EURODOLLAR RATE LOANS

Date Amount of Eurodollar Rate Loans Amount Continued or Converted to Eurodollar Rate Loans Interest Period and Eurodollar Rate with Respect Thereto Amount of Principal of Eurodollar Rate Loans Repaid Amount of Eurodollar Rate Loans Converted to Base Rate Loans Unpaid Principal Balance of Eurodollar Rate Loans Notation Made By

SCHEDULE B

to Note

LOANS, CONVERSIONS AND

REPAYMENTS OF BASE RATE LOANS

Date Amount of Base Rate Loans Amount Convertedto Base Rate Loans Amount of Principal of Base Rate Loans Repaid Amount of Base Rate Loans Converted to Eurodollar Rate Loans Unpaid Principal Balance of Base Rate Loans Notation Made By

EXHIBIT N-1

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

US TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For US Federal Income Tax Purposes)

Reference is hereby made to the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.19(g)(ii)(B)(3) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (b) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]
By:
	Name:
	Title:

Date: ________ __, 20[ ]

EXHIBIT N-2

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

US TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For US Federal Income Tax Purposes)

Reference is hereby made to the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.19(g)(ii)(B)(4) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.

The undersigned has furnished its participating Lender with a certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (b) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:
	Name:
	Title:

Date: ________ __, 20[ ]

EXHIBIT N-3

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

US TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For US Federal Income Tax Purposes)

Reference is hereby made to the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.19(g)(ii)(B)(4) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the participation in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such participation, (c) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:
	Name:
	Title:

Date: ________ __, 20[ ]

EXHIBIT N-4

TO FUSION CONNECT, INC.

SECOND LIEN CREDIT AND GUARANTY AGREEMENT

US TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For US Federal Income Tax Purposes)

Reference is hereby made to the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.19(g)(ii)(B)(4) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (c) with respect to the extension of credit pursuant to this Credit Agreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (ii) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]
By:
	Name:
	Title:

Date: ________ __, 20[ ]

EX-10.11

EXECUTION VERSION

FIRST LIEN PLEDGE AND SECURITY AGREEMENT

dated as of

May 4, 2018,

among

FUSION CONNECT, INC.,

THE OTHER GRANTORS PARTY HERETO

and

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Collateral Agent

Table of Contents

Page
ARTICLE I
DEFINITIONS	1
SECTION 1.01. Credit Agreement and UCC	1
SECTION 1.02. Other Defined Terms	2
ARTICLE II
PLEDGE OF SECURITIES	7
SECTION 2.01. Pledge	7
SECTION 2.02. Delivery of the Pledged Collateral	7
SECTION 2.03. Representations and Warranties	8
SECTION 2.04. Certification of Limited Liability Company and Limited Partnership Interests	9
SECTION 2.05. Registration in Nominee Name; Denominations	9
SECTION 2.06. Voting Rights; Dividends and Interest	9
SECTION 2.07. Collateral Agent Not a Partner or Limited Liability Company Member	11
ARTICLE III
SECURITY INTERESTS IN PERSONAL PROPERTY	11
SECTION 3.01. Security Interest	11
SECTION 3.02. Representations and Warranties	12
SECTION 3.03. Covenants	14
SECTION 3.04. Other Actions	15
ARTICLE IV
SPECIAL PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL	16
SECTION 4.01. Grant of License to Use Intellectual Property	16
SECTION 4.02. Protection of Collateral	17
ARTICLE V
REMEDIES	18
SECTION 5.01. Remedies Upon Default	18
SECTION 5.02. Application of Proceeds	19
ARTICLE VI
MISCELLANEOUS	21
SECTION 6.01. Notices	21
SECTION 6.02. Waivers; Amendment	21
SECTION 6.03. Collateral Agent’s Fees and Expenses; Indemnification	22
SECTION 6.04. Independence of Covenants	23
SECTION 6.05. Survival of Agreement	23
SECTION 6.06. Counterparts; Effectiveness; Several Agreement	23
SECTION 6.07. Severability	24
SECTION 6.08. Set-Off	24
SECTION 6.09. APPLICABLE LAW	24
SECTION 6.10. CONSENT TO JURISDICTION	24
SECTION 6.11. WAIVER OF JURY TRIAL	25
SECTION 6.12. Headings	25
SECTION 6.13. Marshalling; Payments Set Aside	25
SECTION 6.14. Security Interest Absolute	25
SECTION 6.15. Termination or Release	26
SECTION 6.16. Additional Grantors	26
SECTION 6.17. Collateral Agent Appointed Attorney-in-Fact	27
SECTION 6.18. General Authority of the Collateral Agent	27
SECTION 6.19. Recourse	28
SECTION 6.20. Mortgages	28
SECTION 6.21. Permitted Intercreditor Agreements	28
SECTION 6.22. Regulatory Matters	29

SCHEDULES
Schedule I -	Pledged Equity; Pledged Debt
Schedule II -	Commercial Tort Claims
Schedule III -	Intellectual Property
EXHIBITS
Exhibit I   -	Form of Second Lien Pledge and Security Agreement Supplement
Exhibit II  -	Form of Second Lien Copyright Security Agreement
Exhibit III -	Form of Second Lien Patent Security Agreement
Exhibit IV -	Form of Second Lien Trademark Security Agreement

 

i

FIRST LIEN PLEDGE AND SECURITY AGREEMENT, dated as of May 4, 2018, among FUSION CONNECT, INC., a Delaware corporation (the “ Borrower”), the other GRANTORS party hereto from time to time and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Collateral Agent for the Secured Parties (as defined below).

Reference is made to the First Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, as Guarantor Subsidiaries, the Lenders party thereto and Wilmington Trust, as Administrative Agent and Collateral Agent.

The Lenders and the Issuing Banks have agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders and the Issuing Banks to extend such credit are conditioned upon, among other things, the execution and delivery of this Agreement by each Grantor. The Grantors are Affiliates of one another, will derive substantial direct and indirect benefits from the extensions of credit to the Borrower pursuant to the Credit Agreement, and are willing to execute and deliver this Agreement in order to induce the Lenders and the Issuing Banks to extend such credit. This Agreement is subject to the Intercreditor Agreement, which governs the relative rights and priorities of the First Lien Secured Parties (as defined in the Intercreditor Agreement) and the Second Lien Secured Parties (as defined in the Intercreditor Agreement) and certain other matters as described therein. Accordingly, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Credit Agreement and UCC. Capitalized terms used in this Agreement, including the preamble and the introductory paragraphs hereto, and not otherwise defined herein have the meanings specified in the Credit Agreement.

(b)         As used herein, each of the following terms has the meaning specified in the UCC (as defined herein):

Term	UCC Section
Certificated Security	8-102
Chattel Paper	9-102
Commercial Tort Claim	9-102
Deposit Account	9-102
Document	9-102
Fixtures	9-102
Goods	9-102
Instrument	9-102
Inventory	9-102
Investment Property	9-102
Letter-of-Credit Right	9-102
Money	1-201
Payment Intangible	9-102
Proceeds	9-102
Promissory Note	9-102
Securities Account	8-501
Security Entitlement Supporting Obligations	8-102 9-102
Uncertificated Security	8-102

1

(c)         The rules of construction specified in Section 1.3 of the Credit Agreement also apply to this Agreement, mutatis mutandis.

SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“Account(s)” means “accounts” as defined in Section 9-102 of the UCC, and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, or (c) arising out of the use of a credit or charge card or information contained on or for use with the card.

“Account Debtor” means any Person that is or that may become obligated to any Grantor under, with respect to or on account of an Account or a Payment Intangible.

“After-Acquired Intellectual Property” has the meaning assigned to such term in Section 4.02(d).

“Agreement” means this First Lien Pledge and Security Agreement.

“Article 9 Collateral” has the meaning assigned to such term in Section 3.01(a).

“Bankruptcy Event of Default” means any Event of Default under Section 8.1(f) or 8.1(g) of the Credit Agreement.

“Blue Sky Laws” has the meaning assigned to such term in Section 5.01.

“Borrower” has the meaning assigned to such term in the preamble.

“Collateral” means the Article 9 Collateral and the Pledged Collateral; provided that all references to “Collateral” in Section 5.02 shall, unless the context requires otherwise, also refer to Real Estate Assets subject to a Mortgage.

“Collateral Agent” means Wilmington Trust, in its capacity as collateral agent for the Secured Parties under the Credit Documents, and its successors in such capacity as provided in the Credit Agreement.

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“Commercial Software License(s)” means any non-exclusive license of commercially available (on non-discriminatory pricing terms) computer software to a Grantor from a commercial software provider (e.g., “shrink-wrap”, “browse-wrap” or “click-wrap” software licenses) or a license of freely available computer software from a licensor of free or open source software.

“Copyright License” means any written agreement, now or hereafter in effect, granting any right to any third party under any Copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any right to any Grantor under any Copyright now or hereafter owned by any third party, and all rights of such Grantor under any such agreement.

“Copyrights” means all of the following now owned or hereafter acquired by or assigned to any Grantor (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, whether registered or unregistered and whether published or unpublished, (b) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations, pending applications for registration and renewals in the United States Copyright Office, including those listed on Schedule III, (c) all rights and privileges arising under applicable law with respect to such Grantor’s use of such copyrights, (d) all reissues, renewals, continuations and extensions thereof and amendments thereto, (e) all income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect to the foregoing, including damages and payments for past, present or future infringements thereof, (f) all rights corresponding thereto throughout the world and (g) all rights to sue for past, present or future infringements thereof.

“Credit Agreement” has the meaning assigned to such term in the preliminary statement of this Agreement.

“Domain Names” means all Internet domain names and associated URL addresses in or to which any Grantor now or hereafter has any right, title or interest.

“Equipment” means (a) any “equipment” as such term is defined in Article 9 of the UCC and shall also include, but shall not be limited to, all machinery, equipment, furnishings, appliances, furniture, fixtures, tools, and vehicles now or hereafter owned by any Grantor in each case, regardless of whether characterized as equipment under the UCC and (b) and any and all additions, substitutions and replacements of any of the foregoing and all accessions thereto, wherever located, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefore, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.

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 “General Intangibles” has the meaning provided in Article 9 of the UCC and shall in any event include all choses in action and causes of action and all other intangible personal property of every kind and nature (other than Accounts) now owned or hereafter acquired by any Grantor, as the case may be, including corporate or other business records, indemnification claims, contract rights (including rights under customer contracts, leases, whether entered into as lessor or lessee, Hedge Agreements and other agreements), goodwill, registrations, franchises, tax refund claims, licenses (including Licenses), permits, concessions and authorizations and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Grantor.

“Grantor” means each of the Borrower and each Guarantor Subsidiary.

“Guarantor Subsidiaries” means, collectively, (a) the Restricted Subsidiaries party to this Agreement on the Closing Date and (b) each Restricted Subsidiary that becomes a party to this Agreement after the Closing Date pursuant to Section 6.16, provided that any Restricted Subsidiary that is designated as an Unrestricted Subsidiary in accordance with the Credit Agreement shall cease to be a Guarantor Subsidiary subject to and in accordance with the provisions of Section 9.8(d)(ii) of the Credit Agreement.

“Intellectual Property” means all intellectual and similar property of every kind and nature now owned or hereafter acquired by any Grantor, including rights in inventions, rights in designs, utility models, Patents, Copyrights, Intellectual Property Licenses, Trademarks, trade secrets, confidential or proprietary technical and business information, rights in know how, rights in show how or other data or information, rights in software, rights in databases, all other proprietary information, including but not limited to Domain Names.

“Intellectual Property Collateral” means Collateral consisting of Intellectual Property.

“Intellectual Property Security Agreements” has the meaning assigned to such term in Section 3.02(d).

“Intellectual Property License” means any Patent License, Trademark License, Copyright License, Commercial Software License or other license or sublicense agreement granting rights under Intellectual Property to which any Grantor is a party, including those listed on Schedule III.

“Patent License” means any written agreement, now or hereafter in effect, granting to any third party any right to develop, commercialize, import, make, have made, offer for sale, use or sell any invention on which a Patent, now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any such right with respect to any invention on which a Patent, now or hereafter owned by any third party, is in existence, and all rights of any Grantor under any such agreement.

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“Patents” means all of the following now owned or hereafter acquired by any Grantor (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, including those listed on Schedule III, (b) all rights and privileges arising under applicable law with respect to such Grantor’s use of any patents, (c) all inventions and improvements described and claimed therein, (d) all reissues, divisions, continuations, renewals, extensions, reexaminations, supplemental examinations, inter partes reviews, adjustments and continuations-in-part thereof and amendments thereto, (e) all income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect to any of the foregoing including damages and payments for past, present or future infringements thereof, (f) all rights corresponding thereto throughout the world, including the right to prevent others from making, having made, using, selling, offering to sell, importing or exporting the inventions claimed therein and (g) rights to sue for past, present or future infringements thereof.

“Pledge and Security Agreement Supplement” means an instrument substantially in the form of Exhibit I hereto.

“Pledged Collateral” has the meaning assigned to such term in Section 2.01.

“Pledged Debt” has the meaning assigned to such term in Section 2.01.

“Pledged Equity” has the meaning assigned to such term in Section 2.01.

“Pledged Securities” means any Promissory Notes, stock certificates, limited liability membership interests or other Securities, certificates or Instruments now or hereafter included in the Pledged Collateral, including all Pledged Equity, Pledged Debt and all other certificates, instruments or other documents representing or evidencing any Pledged Collateral.

“Secured Obligations” means the “Obligations” as defined in the Credit Agreement, it being acknowledged and agreed that the term “Secured Obligations” as used herein shall include each extension of credit under the Credit Agreement, whether outstanding on the date of this Agreement or extended or arising from time to time after the date of this Agreement.

“Secured Parties” means (a) the Administrative Agent, (b) the Collateral Agent, (c) the Arrangers, the Syndication Agents and each other Person appointed under the Credit Documents to serve in an agent or similar capacity, including any Auction Manager, (d) the Lenders, (e) the Issuing Banks, (f) each counterparty to any Hedge Agreement the obligations under which constitute Specified Hedge Obligations, (g) each provider of Cash Management Services the obligations in respect of which constitute Specified Cash Management Services Obligations, (h) the beneficiaries of each indemnification obligation undertaken by any Credit Party under any Credit Document, (i) the other holders from time to time of the Secured Obligations and (j) the successors and permitted assigns of each of the foregoing.

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“Security” means a “security” as such term is defined in Article 8 of the UCC and, in any event, shall include any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Security Interest” has the meaning assigned to such term in Section 3.01(a).

“Trademark License” means any written agreement, now or hereafter in effect, granting to any third party any right to use any Trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any Trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.

“Trademarks” means all of the following now owned or hereafter acquired by any Grantor (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, the goodwill of the business symbolized thereby or associated therewith, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule III, (b) all rights and privileges arising under applicable law with respect to such Grantor’s use of any trademarks, (c) all reissues, continuations, extensions and renewals thereof and amendments thereto, (d) all income, fees, royalties, damages and payments now and hereafter due and/or payable with respect to any of the foregoing, including damages, claims and payments for past, present or future infringements thereof, (e) all rights corresponding thereto throughout the world and (f) rights to sue for past, present and future infringements or dilutions thereof or other injuries thereto.

“UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York; provided that, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.

“Wilmington Trust” has the meaning assigned to such term in the preamble.

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ARTICLE II

PLEDGE OF SECURITIES

SECTION 2.01. Pledge. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under: (a) all Equity Interests now owned or at any time hereafter acquired by it (including those Equity Interests listed opposite the name of such Grantor on Schedule I) and all certificates and other instruments representing all such Equity Interests; provided that the Pledged Equity shall not include more than 65% of the outstanding voting Equity Interests in any CFC or CFC Holding Company (collectively, the “Pledged Equity”); (b) all Promissory Notes and all Instruments evidencing Indebtedness now owned or at any time hereafter acquired by it (including those listed opposite the name of such Grantor on Schedule I) (the “Pledged Debt”); (c) all other property that may be delivered to and held by the Collateral Agent pursuant to the terms of this Section 2.01 or Section 2.02; (d) subject to Section 2.06, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the Pledged Equity and the Pledged Debt; (e) subject to Section 2.06, all rights and privileges of such Grantor with respect to the securities and other property referred to in clauses (a), (b), (c) and (d) above; and (f) all Proceeds of, and Security Entitlements in respect of, any of the foregoing (the items referred to in clauses (a) through (f) above being collectively referred to as the “Pledged Collateral”); provided that the Pledged Collateral shall not include any item referred to in clauses (a) through (f) above if, for so long as and to the extent such item constitutes Excluded Property.

SECTION 2.02. Delivery of the Pledged Collateral. On the Closing Date (in the case of any Grantor that grants a Lien on any of its assets hereunder on the Closing Date) or on the date on which it signs and delivers a Pledge and Security Agreement Supplement (in the case of any other Grantor), each Grantor shall deliver or cause to be delivered to the Collateral Agent, for the benefit of the Secured Parties, any and all Pledged Securities (other than (i) any Uncertificated Securities, but only for so long as such Securities remain uncertificated, and (ii) certificates or instruments representing Equity Interests in any Subsidiary that is not a Material Subsidiary) to the extent such Pledged Securities, in the case of Promissory Notes and other Instruments evidencing Indebtedness, are required to be delivered pursuant to Section 2.02(b). Thereafter, whenever such Grantor acquires any other Pledged Security (other than (A) any Uncertificated Securities, but only for so long as such Uncertificated Securities remain uncertificated, and (B) certificates or instruments representing Equity Interests in any Subsidiary that is not a Material Subsidiary), such Grantor shall promptly, and in any event within 30 days (or such longer period as the Collateral Agent may agree to in writing), deliver or cause to be delivered to the Collateral Agent such Pledged Security as Collateral hereunder to the extent such Pledged Securities, in the case of Promissory Notes and Instruments evidencing Indebtedness, are required to be delivered pursuant to Section 2.02(b).

(b)         Each Grantor will cause (i) the Borrower and each Restricted Subsidiary to execute and deliver a counterpart of each of the Intercompany Note and the Intercompany Indebtedness Subordination Agreement and (ii) all Indebtedness for borrowed money in an aggregate principal amount of $1,000,000 or more owed to such Grantor by any other Person (other than the Borrower or a Restricted Subsidiary) to be evidenced by a duly executed Promissory Note, and shall cause each such Promissory Note, the Intercompany Note and each other Promissory Note (if any) evidencing any Indebtedness of the Borrower or any Restricted Subsidiary that is owing to such Grantor, to be pledged and delivered to the Collateral Agent, for the benefit of the Secured Parties, (A) on the date hereof, in the case of any such Indebtedness existing on the date hereof (or, in the case of any Grantor that becomes a party hereto after the date hereof, on the date such Grantor becomes a party hereto, in the case of any such Indebtedness existing on such date) or (B) promptly following the incurrence thereof, in the case of any such Indebtedness incurred after the date hereof (or such other date), in each case pursuant to the terms hereof.

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(c)         Upon delivery to the Collateral Agent, (i) any Pledged Securities required to be delivered pursuant to Section 2.02(a) or 2.02(b) shall be accompanied by undated stock or note powers duly executed by the applicable Grantor in blank or other instruments of transfer reasonably satisfactory to the Collateral Agent and by such other instruments and documents as the Collateral Agent may reasonably request and (ii) all other property comprising part of the Pledged Collateral required to be delivered pursuant to Section 2.02(a) or 2.02(b) shall be accompanied by undated proper instruments of assignment duly executed by the applicable Grantor and such other instruments or documents as the Collateral Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing such Pledged Securities, which schedule shall be deemed to supplement Schedule I and be made a part hereof; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.

(d)         The assignment, pledge and security interest granted in Section 2.01 are granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Pledged Collateral.

SECTION 2.03. Representations and Warranties. Each Grantor, jointly and severally, represents and warrants, as to itself and the other Grantors, to and with the Collateral Agent, for the benefit of the Secured Parties, that:

(a)         Schedule I correctly sets forth, as of the Closing Date and as of each date on which a supplement to Schedule I is delivered pursuant to Section 2.02(c) or 6.15, (i) all the Equity Interests owned by each Grantor, specifying the issuer and certificate number of (if applicable), and the number and percentage ownership represented by, such Equity Interests, and (ii) all the Pledged Debt of each Grantor, specifying the debtor thereof and the outstanding principal amount thereof as of the Closing Date, and includes all Equity Interests, Promissory Notes and Instruments required to be pledged by each Grantor hereunder in order to satisfy the Collateral and Guarantee Requirement;

(b)         the Pledged Equity issued by any Subsidiary and the Pledged Debt (solely with respect to Pledged Debt issued by a Person other than the Borrower or any Subsidiary, to the best of the Grantors’ knowledge) have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Equity (other than Pledged Equity consisting of limited liability company interests or partnership interests which, pursuant to the relevant organizational or formation documents, cannot be fully paid and non-assessable), are fully paid and non-assessable and (ii) in the case of Pledged Debt (solely with respect to Pledged Debt issued by a Person other than the Borrower or any Subsidiary, to the best of the Grantors’ knowledge), are legal, valid and binding obligations of the issuers thereof, subject to applicable Debtor Relief Laws and general principles of equity; and

(c)         each Grantor holds the Pledged Securities indicated on Schedule I as owned by such Grantor free and clear of all Liens, other than (i) Liens created by the Collateral Documents and (ii) other Permitted Liens.

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SECTION 2.04. Certification of Limited Liability Company and Limited Partnership Interests. Each Grantor acknowledges and agrees that, to the extent any interest in any limited liability company or limited partnership controlled by any Grantor and pledged under Section 2.01 is a “security” within the meaning of Article 8 of the UCC and is governed by Article 8 of the UCC, such interest shall be represented by a certificate that is promptly delivered to the Collateral Agent pursuant to the terms hereof. Each Grantor further acknowledges and agrees that with respect to any interest in any limited liability company or limited partnership controlled on or after the date hereof by such Grantor and pledged hereunder that is not a “security” within the meaning of Article 8 of the UCC, such Grantor shall at no time elect to treat any such interest as a “security” within the meaning of Article 8 of the UCC, nor shall any such interest in any limited liability company or limited partnership controlled on or after the date hereof by such Grantor be represented by a certificate, unless such election and such interest is thereafter represented by a certificate that is promptly delivered to the Collateral Agent pursuant to the terms hereof.

SECTION 2.05. Registration in Nominee Name; Denominations. If an Event of Default shall occur and be continuing and, other than in the case of a Bankruptcy Event of Default, the Collateral Agent shall have notified the Borrower of its intent to exercise such rights, (a) the Collateral Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to cause each of the Pledged Securities to be transferred of record into the name of the Collateral Agent or into the name of its nominee (as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or assigned in blank or in favor of the Collateral Agent and (b) to the extent permitted by the documentation governing such Pledged Securities and applicable law, the Collateral Agent shall have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement. Each Grantor will promptly give to the Collateral Agent copies of any material notices received by it with respect to Pledged Securities registered in the name of such Grantor. Each Grantor will take any and all actions reasonably requested by the Collateral Agent to facilitate compliance with this Section 2.05.

SECTION 2.06. Voting Rights; Dividends and Interest. (a) Unless and until an Event of Default shall have occurred and be continuing and, other than in the case of a Bankruptcy Event of Default, the Collateral Agent shall have notified the Borrower that the rights of the Grantors under this Section 2.06 are being suspended:

(i)           Each Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Credit Documents.

(ii)           The Collateral Agent shall promptly execute and deliver to each Grantor, or cause to be executed and delivered to such Grantor, all such proxies, powers of attorney and other instruments as such Grantor may reasonably request in writing for the purpose of enabling such Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to Section 2.06(a)(i), in each case as shall be specified in such request.

(iii)           Each Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral, to the extent (and only to the extent) that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the other Credit Documents and applicable laws; provided that any noncash dividends, interest, principal or other distributions that would constitute Pledged Equity or Pledged Debt, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Collateral, and, if received by any Grantor, shall be held in trust for the benefit of the Collateral Agent and the applicable Secured Parties and shall, if certificated and to the extent required by Section 2.02, be forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement reasonably requested by the Collateral Agent). So long as no Event of Default has occurred and is continuing, the Collateral Agent shall promptly deliver to each Grantor any Pledged Securities in its possession if requested to be delivered to the issuer thereof in connection with any exchange or redemption of such Pledged Securities.

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(b)         Upon the occurrence and during the continuance of an Event of Default and, other than in the case of a Bankruptcy Event of Default, after the Collateral Agent shall have notified the Borrower of the suspension of the rights of the Grantors under Section 2.06(a)(iii), all rights of any Grantor to dividends, interest, principal or other distributions that such Grantor is authorized to receive pursuant to Section 2.06(a)(iii) shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions as part of the Pledged Collateral, subject to Section 2.07 and the last sentence of this Section 2.06(b). All dividends, interest, principal or other distributions received by any Grantor contrary to the provisions of this Section 2.06 shall be held in trust for the benefit of the Collateral Agent and the other Secured Parties and shall be forthwith delivered to the Collateral Agent upon demand in the same form as so received (with any necessary endorsement reasonably requested by the Collateral Agent). Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this Section 2.06(b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property, shall be held as security for the payment and performance of the Secured Obligations and shall be applied in accordance with the provisions of Section 5.02. After all Events of Default have been cured or waived, and the Borrower has delivered to the Collateral Agent a certificate of an Authorized Officer to such effect, the Collateral Agent shall promptly repay to each Grantor (without interest) all dividends, interest, principal or other distributions that such Grantor would otherwise be permitted to retain pursuant to the terms of Section 2.06(a)(iii) in the absence of an Event of Default and that remain in such account.

(c)         Upon the occurrence and during the continuance of an Event of Default and, other than in the case of a Bankruptcy Event of Default, after the Collateral Agent shall have notified the Borrower of the suspension of the rights of the Grantors under Section 2.06(a)(i), all rights of any Grantor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to Section 2.06(a)(i), and the obligations of the Collateral Agent under Section 2.06(a)(ii), shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers subject to Section 2.07 and the last sentence of this Section 2.06(c); provided that, unless otherwise directed by the Requisite Lenders in writing, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Grantors to exercise such rights. After all Events of Default have been cured or waived, and the Borrower has delivered to the Collateral Agent a certificate of an Authorized Officer to such effect, each Grantor shall have the exclusive right to exercise the voting and/or consensual rights and powers that such Grantor would otherwise be entitled to exercise pursuant to the terms of Section 2.06(a)(i), and the obligations of the Collateral Agent under Section 2.06(a)(ii) shall be reinstated.

(d)         Any notice given by the Collateral Agent to the Borrower under Section 2.05 or Section 2.06(a) (i) may be given by telephone if promptly confirmed in writing, (ii) may be given with respect to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under Section 2.06(a)(i) or 2.06(a)(iii) in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.

SECTION 2.07. Collateral Agent Not a Partner or Limited Liability Company Member. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, and neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the absolute owner of Pledged Equity consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.

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ARTICLE III

SECURITY INTERESTS IN PERSONAL PROPERTY

SECTION 3.01. Security Interest. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, all right, title and interest in, to and under any and all of the following assets and properties now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):

(i)            all Accounts;

(ii)           all Chattel Paper;

(iii)           all Documents;

(iv)           all Equipment;

(v)            all General Intangibles, including all Intellectual Property, all Licenses and all Payment Intangibles;

(vi)           all Instruments;

(vii)           all Inventory;

(viii)          all Goods and Fixtures;

(ix)            all Investment Property;

(x)            all Money, cash, cash equivalents, Deposit Accounts and Securities Accounts;

(xi)            all Letter-of-Credit Rights;

(xii)            all Commercial Tort Claims described on Schedule II from time to time, as such Schedule may be supplemented from time to time pursuant to Section 3.04(c);

(xiii)           all Supporting Obligations;

(xiv)          all Security Entitlements in any or all of the foregoing;

(xv)           all books and records pertaining to the Article 9 Collateral; and

(xvi)          to the extent not otherwise included above, all Proceeds and products of any and all of the foregoing (including proceeds of all insurance policies) and all collateral security and guarantees given by any Person with respect to any of the foregoing.

(b)         Notwithstanding anything herein to the contrary, if, for so long and to the extent as any asset constitutes Excluded Property, the Security Interest granted under this Section 3.01 shall not attach to, and Article 9 Collateral shall not include, such asset; provided, however, that the Security Interest shall immediately attach to, and Article 9 Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.

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(c)         Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings and transmitting utility filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect and (ii) contain the information required by Article 9 of the UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (A) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor, (B) whether such Grantor is a transmitting utility and (C) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon reasonable request. Each Grantor hereby ratifies its authorization for the Collateral Agent (or its designee) to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.

(d)         Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by such Grantor hereunder, without the signature of such Grantor, and naming such Grantor, as debtor, and the Collateral Agent, as secured party.

(e)         The Security Interest and the security interest granted pursuant to Article II are granted as security only and, except as expressly set forth herein, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral.

(f)         Notwithstanding anything to the contrary herein, to the extent this Agreement or any other Credit Document purports to grant or to require any Grantor to grant to the Collateral Agent a security interest in any License, the Collateral Agent shall only have a security interest in such License at such times and to the extent that a security interest in such License is permitted under applicable law, including the applicable Communications Law. The Security Interest granted in Proceeds of such License is intended to include, and hereby includes, the economic value of the Licenses, all rights incident or appurtenant to the Licenses and the right to receive all monies and consideration derived from or in connection with the sale, assignment or lease of or the transfer of control over the Licenses. If at any time in the future the Communications Law permits any Grantor to grant a security interest in any License, this Agreement shall be deemed to grant a security interest in such License immediately thereupon without any further action by or notice to any Grantor, the Collateral Agent or any Lender or other Secured 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 the Collateral Agent.

SECTION 3.02. Representations and Warranties. (a) Each Grantor, jointly and severally, represents and warrants, as to itself and the other Grantors, to the Collateral Agent for the benefit of the Secured Parties that:

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(b)         Each Grantor has good and valid rights in (not subject to any Liens other than Permitted Liens) and/or good and marketable title in the Article 9 Collateral with respect to which it has purported to grant a Security Interest hereunder, and has full power and authority to grant to the Collateral Agent the Security Interest in such Article 9 Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person other than any consent or approval that has been obtained.

(c)         The information set forth in the Collateral Questionnaire, including the exact legal name of each Grantor and its jurisdiction of organization, is correct and complete in all material respects as of the Closing Date. The UCC financing statements prepared by or on behalf of the Grantors based upon the information provided in the Collateral Questionnaire (or specified by notice from the applicable Grantor to the Collateral Agent after the Closing Date in the case of filings, recordings or registrations required by Section 5.10 or 5.11 of the Credit Agreement) are all the filings, recordings and registrations (other than any filings required to be made in the United States Patent and Trademark Office and the United States Copyright Office in order to perfect the Security Interest in Article 9 Collateral consisting of United States registered Patents (and Patents for which United States applications for registration are pending), United States registered Trademarks (and Trademarks for which United States applications for registration are pending), United States registered Copyrights (and Copyrights for which United States applications for registration are pending) and United States exclusive registered Copyright Licenses) that are necessary to establish a legal, valid and perfected security interest in favor of the Collateral Agent (for the benefit of the Secured Parties) in respect of all Article 9 Collateral in which the Security Interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the UCC. Each Grantor represents and warrants that, as of the Closing Date, fully executed copies of the Patent Security Agreement and the Trademark Security Agreement, in each case containing a description of all Article 9 Collateral consisting of United States registered Patents (and Patents for which registration applications are pending) and United States registered Trademarks (and Trademarks for which registration applications are pending), respectively, have been provided for recording by the United States Patent and Trademark Office pursuant to 35 U.S.C. § 261 or 15 U.S.C. § 1060 and the regulations thereunder.

(d)         The Security Interest constitutes (i) a legal and valid security interest in all the Article 9 Collateral securing the payment and performance of the Secured Obligations, (ii) subject to the filings described in Section 3.02(c), a perfected security interest in all Article 9 Collateral in which a security interest may be perfected by filing, recording or registering a financing statement in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the UCC and (iii) a security interest that shall be perfected in all Intellectual Property Collateral in which a security interest may be perfected upon the receipt and recording of the UCC financing statements in the relevant filing offices and the relevant Copyright Security Agreement, Patent Security Agreement and/or Trademark Security Agreement, as applicable (the “Intellectual Property Security Agreements”), with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. The Security Interest is and shall be prior to any other Lien on any of the Article 9 Collateral in existence on the date hereof, other than Permitted Liens (excluding Permitted Liens that are required to be junior to the Security Interest) that are contemplated by Section 6.2 of the Credit Agreement.

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(e)         The Article 9 Collateral is owned by the Grantors free and clear of any Lien, except for Permitted Liens. None of the Grantors has filed or consented to the filing of (i) any financing statement or analogous document under the UCC or any other applicable laws covering any Article 9 Collateral, (ii) any assignment in which any Grantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with the United States Patent and Trademark Office or the United States Copyright Office, (iii) any notice under the Assignment of Claims Act or (iv) any assignment in which any Grantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, for Permitted Liens.

SECTION 3.03. Covenants. (a) Each Grantor shall, at its own expense, take any and all commercially reasonable actions necessary to defend title to the Article 9 Collateral against all Persons and to defend the Security Interest of the Collateral Agent in the Article 9 Collateral and the priority thereof against any Lien other than a Permitted Lien.

(b)         Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Collateral Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any reasonable and documented or invoiced out-of-pocket fees and Taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements (including fixture filings and transmitting utility filings) or other documents in connection herewith or therewith. Each Grantor will provide to the Collateral Agent, from time to time upon request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created pursuant to this Agreement.

(c)         Each Grantor agrees to maintain, at its own cost and expense, such complete and accurate records with respect to the Article 9 Collateral owned by it as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged, and, at such time or times as the Collateral Agent may reasonably request, promptly to prepare and deliver to the Collateral Agent a duly certified schedule or schedules in form and detail reasonably satisfactory to the Collateral Agent showing the identity, amount and location of any and all Article 9 Collateral. In addition, subject to Section 5.6 of the Credit Agreement, the Collateral Agent and such Persons as the Collateral Agent may reasonably designate shall have the right, at the Grantors’ own cost and expense, to inspect the Article 9 Collateral, all records (including its records in respect of accounts receivables) related thereto (and to make extracts and copies from such records) and the premises upon which any of the Article 9 Collateral is located, to discuss the Grantors’ affairs with the officers of the Grantors and their independent registered public accounting firm and to verify, in the manner and under the procedures determined by the Collateral Agent in good faith to be reasonable, the identity, validity, amount, quality, quantity, value, condition, location and status of, or any other matter relating to, the Article 9 Collateral, including Accounts and Payment Intangibles, provided that unless an Event of Default has occurred and is continuing, the Collateral Agent may not contact Account Debtors or other third parties without the prior written consent of the relevant Grantor.

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(d)         At its option, the Collateral Agent may, but shall not be obligated to, discharge past due Taxes, assessments, charges, fees and Liens at any time levied or placed on the Article 9 Collateral and not permitted by the Credit Agreement, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Grantor fails to do so as required by the Credit Agreement or this Agreement, and each Grantor jointly and severally agrees to reimburse the Collateral Agent within 10 Business Days after demand for any payment made or any reasonable expense incurred by the Collateral Agent pursuant to the foregoing authorization (and any such payment made or expense incurred shall be additional Secured Obligations secured hereby). Nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees and Liens and maintenance as set forth herein or in the other Credit Documents.

(e)         Each Grantor (rather than the Collateral Agent or any other Secured Party) shall remain liable (as between itself and any relevant counterparty) to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Article 9 Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the other Secured Parties from and against any and all liability for such performance.

(f)         None of the Grantors shall make or permit to be made any transfer of the Article 9 Collateral and each Grantor shall remain at all times in possession or control of the Article 9 Collateral owned by it, in each case, except that unless and until the Collateral Agent shall notify the Grantors that an Event of Default shall have occurred and be continuing and that during the continuance thereof the Grantors shall not sell, convey, lease, assign, transfer or otherwise dispose of any Article 9 Collateral (which notice may be given by telephone if promptly confirmed in writing), the Grantors may use, transfer and dispose of the Article 9 Collateral in any lawful manner not inconsistent with the provisions of this Agreement, the Credit Agreement or any other Credit Document.

(g)         None of the Grantors will, without the Collateral Agent’s prior written consent, grant any extension of the time of payment of any Accounts or Payment Intangibles included in the Article 9 Collateral, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than extensions, compromises, settlements, releases, credits or discounts granted or made in the ordinary course of business and in accordance with past practice or in connection with any proceeding under any Debtor Relief Laws.

(h)         The Grantors, at their own expense, shall maintain or cause to be maintained insurance in accordance with the requirements set forth in Section 5.5 of the Credit Agreement. Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and its designees) as such Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, upon the occurrence and during the continuance of an Event of Default, of making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required pursuant to Section 5.5 of the Credit Agreement, or to pay any premium in whole or part relating thereto, the Collateral Agent may, but shall not be obligated to, without waiving or releasing any obligation or liability of the Grantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent deems advisable. All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable by the Grantors to the Collateral Agent within 10 Business Days after demand and shall be additional Secured Obligations secured hereby.

SECTION 3.04. Other Actions. In order to further insure the attachment, perfection and priority of, and the ability of the Collateral Agent to enforce, the Security Interest, each Grantor agrees, in each case at such Grantor’s own expense, to take the following actions with respect to the following Article 9 Collateral:

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(a)         Instruments. Subject to Article II, if any Grantor shall at any time hold or acquire any Instrument constituting Collateral and evidencing an amount equal to or in excess of $1,000,000 such Grantor shall forthwith endorse, assign and deliver the same to the Collateral Agent for the benefit of the Secured Parties, accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably request.

(b)         Investment Property. Except to the extent otherwise provided in Article II, if any Grantor shall at any time hold or acquire any Pledged Equity that consists of Certificated Securities, such Grantor shall forthwith endorse, assign and deliver the same to the Collateral Agent for the benefit of the applicable Secured Parties, accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably request.

(c)         Commercial Tort Claims. If any Grantor shall at any time after the date of this Agreement acquire a Commercial Tort Claim as to which the claim thereunder is $2,000,000 or more, such Grantor shall promptly notify the Collateral Agent thereof in a writing signed by such Grantor and provide supplements to Schedule II describing the details thereof and shall grant to the Collateral Agent a security interest therein and in the proceeds thereof, all upon the terms of this Agreement. In the event any Supplemental Collateral Questionnaire or Pledge and Security Agreement Supplement shall set forth any Commercial Tort Claim, Schedule II shall be deemed to be supplemented to include the reference to such Commercial Tort Claim (and the description thereof), in the same form as such reference and description are set forth on such Supplemental Collateral Questionnaire or Pledge and Security Agreement Supplement.

ARTICLE IV

SPECIAL PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL

SECTION 4.01. Grant of License to Use Intellectual Property. Without limiting the provisions of Section 3.01 or any other rights of the Collateral Agent as the holder of a Security Interest in any Intellectual Property Collateral, for the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable, nonexclusive license (exercisable without payment of rent, royalty or other compensation to the Grantors) to use, license or sublicense any of the Intellectual Property Collateral now owned or hereafter acquired by such Grantor, and wherever the same may be located (whether or not any license agreement by and between any Grantor and any other Person relating to the use of such Intellectual Property Collateral may be terminated hereafter), and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof and, to the extent permitted by applicable law, the right to prosecute and maintain all Intellectual Property Collateral and the right to sue for infringement of the Intellectual Property Collateral. The use of such license by the Collateral Agent may only be exercised, at the option of the Collateral Agent, during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon the Grantors notwithstanding any subsequent cure of an Event of Default. Each Grantor further agrees to cooperate with the Collateral Agent in any attempt to prosecute or maintain the Intellectual Property Collateral or sue for infringement of the Intellectual Property Collateral.

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SECTION 4.02. Protection of Collateral. (a) Except to the extent permitted by Section 4.02(e), or to the extent that failure to act could not reasonably be expected to have a Material Adverse Effect, with respect to registration or pending application of each item of its Intellectual Property Collateral for which such Grantor has standing to do so, each Grantor agrees to take, at its expense, all steps, including in the U.S. Patent and Trademark Office, the U.S. Copyright Office and any other Governmental Authority located in the United States, (i) to maintain the validity and enforceability of any registered Intellectual Property Collateral and maintain such Intellectual Property Collateral in full force and effect, and (ii) to pursue the registration and maintenance of each Patent, Trademark, or Copyright registration or application, now or hereafter included in such Intellectual Property Collateral of such Grantor, including the payment of required fees and taxes, the filing of responses to office actions issued by the U.S. Patent and Trademark Office, the U.S. Copyright Office or other Governmental Authorities, the filing of applications for renewal or extension, the filing of affidavits under Sections 8 and 15 of the U.S. Trademark Act, the filing of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions, the payment of maintenance fees and the participation in interference, reexamination, opposition, cancellation, infringement and misappropriation proceedings.

(b)         Except to the extent permitted by Section 4.02(e), or to the extent that failure to act could not reasonably be expected to have a Material Adverse Effect, no Grantor shall do or permit any act or knowingly omit to do any act whereby any of its Intellectual Property Collateral may lapse, be terminated, or become invalid or unenforceable or placed in the public domain (or, in case of a trade secret, lose its competitive value).

(c)         Except to the extent permitted by Section 4.02(e), or to the extent that failure to act could not reasonably be expected to have a Material Adverse Effect, each Grantor shall take all steps to preserve and protect each item of its Intellectual Property Collateral, including maintaining the quality of any and all products or services used or provided in connection with any of the Trademarks, consistent with the quality of the products and services as of the date hereof, and taking all steps necessary to ensure that all licensed users of any of the Trademarks abide by the applicable license’s terms with respect to the standards of quality.

(d)         Each Grantor agrees that, should it obtain an ownership or other interest in any Intellectual Property Collateral after the Closing Date (the “After-Acquired Intellectual Property”) (i) the provisions of this Agreement shall automatically apply thereto, and (ii) any such After-Acquired Intellectual Property and, in the case of Trademarks, the goodwill symbolized thereby, shall automatically become part of the Intellectual Property Collateral subject to the terms and conditions of this Agreement with respect thereto.

(e)         Notwithstanding the foregoing provisions of this Section 4.02 or elsewhere in this Agreement, nothing in this Agreement shall prevent any Grantor from discontinuing the use or maintenance of any of its Intellectual Property Collateral, the enforcement of license agreements or the pursuit of actions against infringers, to the extent permitted by the Credit Agreement if such Grantor determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business.

(f)         Upon and during the continuance of an Event of Default, each Grantor shall, if requested by the Collateral Agent, use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor of each Intellectual Property License to effect the assignment of all such Grantor’s right, title and interest thereunder to the Collateral Agent or its designee.

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ARTICLE V

REMEDIES

SECTION 5.01. Remedies Upon Default. Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Collateral Agent shall have the right to exercise any and all rights afforded to a secured party with respect to the Secured Obligations under this Agreement, the UCC or other applicable law, and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased (it being acknowledged and agreed that the Grantors are not required to obtain any waiver or consent from any owner of such leased premises in connection with such occupancy or attempted occupancy) by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) withdraw any and all cash or other Collateral from any Deposit Account or Securities Account and apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in Section 5.02; (v) subject to the mandatory requirements of applicable law and the notice requirements described below, sell or otherwise dispose of all or any part of the Collateral securing the Secured Obligations at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate; and (vi) with respect to any Intellectual Property Collateral, on demand, cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Intellectual Property Collateral by the applicable Grantors to the Collateral Agent, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Intellectual Property Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine, provided, however, that such terms shall include all terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the Intellectual Property Collateral at issue, such as, without limitation, notice, quality control and inurement provisions with regard to trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and confidentiality protections for trade secrets. Each Grantor acknowledges and recognizes that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, (b) private sales so made may be at prices and upon other terms less favorable to the seller than if such securities were sold at public sales, (c) neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Collateral for the period of time necessary to permit such securities to be registered for public sale under the Securities Act or the Blue Sky Laws and (d) private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. To the maximum extent permitted by applicable law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any sale of Collateral 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 appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

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The Collateral Agent shall give the applicable Grantors 10 days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice (if any) of such sale. The Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. In the event of a foreclosure, exercise of a power of sale or a similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code, any analogous Debtor Relief Laws or any law relating to the granting or perfection of security interests), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code, any analogous Debtor Relief Laws or any law relating to the granting or perfection of security interests) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Requisite Lenders and in accordance with Section 9.8(b) of the Credit Agreement, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold or licensed at any such sale or other disposition, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition. For purposes of determining the Grantors’ rights in the Collateral, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, the Collateral Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full, provided, however, that such terms shall include terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the Intellectual Property Collateral at issue, such as, without limitation, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and protecting the confidentiality of trade secrets. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court appointed receiver. Any sale pursuant to the provisions of this Section 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the UCC or its equivalent in other jurisdictions.

SECTION 5.02. Application of Proceeds. Subject to any Permitted Intercreditor Agreement then in effect, the Collateral Agent shall apply the proceeds of any collection or sale of Collateral, including any Collateral consisting of cash, as follows:

FIRST, to the payment of all costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection, sale, foreclosure or realization or otherwise in connection with this Agreement, any other Credit Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Administrative Agent hereunder or under any other Credit Document on behalf of any Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Credit Document;

SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and

THIRD, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct.

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The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. It is understood and agreed that the Grantors shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations, including any attorney’s fees and other expenses incurred by the Collateral Agent or any other Secured Party to collect such deficiencies.

Notwithstanding anything to the contrary contained herein or in any other Credit Document, the Collateral Agent shall not be required to apply (and shall not incur any liability for not applying) the proceeds of any collection or sale of Collateral, including any Collateral consisting of cash, in the manner set forth above in this Section 5.02 to any Specified Cash Management Services Obligations or any Specified Hedge Obligations unless either (a) such Specified Cash Management Services Obligations or Specified Hedge Obligations are owed to the Collateral Agent or an Affiliate thereof or (b) the Collateral Agent shall have received, prior to the time of such application (it being understood that (i) such notice may be provided after such Obligations have been incurred and whether or not an Event of Default has occurred and is continuing and (ii) such Specified Cash Management Services Obligations and Specified Hedge Obligations shall continue to be Secured Obligations whether or not any such notice has been provided), written notice of the existence and amount thereof, together with such supporting documentation as the Collateral Agent may reasonably request, from the applicable counterparty to any Hedge Agreement the obligations under which constitute such Specified Hedge Obligations or the applicable provider of Cash Management Services the obligations in respect of which constitute such Specified Cash Management Services Obligations (it being further agreed that the Collateral Agent shall not be required to make any inquiry as to the existence of, or to verify the payment of or that satisfactory arrangements have been made with respect to the payment of, any Specified Cash Management Services Obligations or any Specified Hedge Obligations, in each case, unless such Specified Cash Management Services Obligations or Specified Hedge Obligations are owed to the Collateral Agent or an Affiliate thereof or the Collateral Agent shall have received such written notice and such supporting documentation in respect thereof from such applicable counterparty or provider). Whenever the Collateral Agent is required to determine for any purposes of this Agreement the existence or amount of any Specified Cash Management Services Obligation or any Specified Hedge Obligation in respect of which it shall have previously received notice pursuant to the preceding sentence, it shall request written certification of such existence or amount from the Borrower and shall be entitled to make such determination on the basis of such certification; provided,however, that if, notwithstanding the request of the Collateral Agent, the Borrower shall fail or refuse reasonably promptly to certify as to the existence or amount of any Specified Cash Management Services Obligation or any Specified Hedge Obligation, the Collateral Agent shall be entitled to determine such existence or amount by such method as the Collateral Agent may, in the exercise of its good faith judgment, determine. The Collateral Agent may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any holder of any Specified Cash Management Services Obligation or any Specified Hedge Obligation or any other Person as a result of such determination or any action taken pursuant thereto.

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Notwithstanding anything to the contrary contained herein or in any other Credit Document, any value received by the Collateral Agent or any other Secured Party in respect of any Vector Subordinated Note Collateral, including any prepayment, repayment or other amount or value received in respect of the Vector Subordinate Note and any amounts on deposit in the Vector Subordinated Note Cash Collateral Account, whether resulting from the exercise of remedies under any Credit Document or otherwise and whether constituting Collateral consisting of Cash or Cash Equivalents or the proceeds of any collection or sale of any Vector Subordinated Note Collateral or otherwise, shall be applied (a) FIRST, to the payment in full of all Secured Obligations in the form of accrued and unpaid interest and fees in respect of all Revolving Commitments, Revolving Loans and Letters of Credit, (b) SECOND, to the payment in full of all outstanding Revolving Loans, (c) THIRD, to the Cash Collateralization of Letters of Credit in an amount equal to 103% of the Letter of Credit Usage as of such time and (d) FOURTH, to the payment in full of any and all other the Secured Obligations owed to the Revolving Lenders in their capacities as such (all such amounts so applied to be distributed among the Revolving Lenders in accordance with their Pro Rata Shares of the Revolving Exposure on the date of any such distribution), in each case, prior to any application in accordance with the first paragraph of this Section 5.02 or any other application required by any other provisions of the Credit Documents; provided that any Cash or Cash Equivalents released to the Borrower from the Vector Subordinated Note Cash Collateral Account in accordance with Section 9.8(d)(ii)(D) of the Credit Agreement shall, upon such release, no longer be subject to the provisions of this paragraph.

ARTICLE VI

MISCELLANEOUS

SECTION 6.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 10.1 of the Credit Agreement. All communications and notices hereunder to a Grantor other than the Borrower shall be given to it in care of the Borrower.

SECTION 6.02. Waivers; Amendment. (a) No failure or delay on the part of any Agent, any Arranger, any Lender or any Issuing Bank in exercising any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver thereof or of any Default or Event of Default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege, or any abandonment or discontinuance of steps to enforce such power, right or privilege, preclude any other or further exercise thereof or the exercise of any other power, right or privilege. The powers, rights, privileges and remedies of the Agents, the Arrangers, the Lenders and the Issuing Banks hereunder and under the other Credit Documents are cumulative and shall be in addition to and independent of all powers, rights, privileges and remedies they would otherwise have. Without limiting the generality of the foregoing, the execution and delivery of this Agreement or any other Credit Document or the making of any Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Agent, any Arranger, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time. No waiver of any provision of this Agreement or consent to any departure by any Grantor therefrom shall in any event be effective unless the same shall be permitted by Section 6.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given

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(b)         Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Grantor or Grantors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 10.5 of the Credit Agreement.

SECTION 6.03. Collateral Agent’s Fees and Expenses; Indemnification. (a) The parties hereto agree that the Collateral Agent shall be entitled to reimbursement of its reasonable and documented out-of-pocket expenses incurred hereunder as provided in Section 10.2 of the Credit Agreement.

(b)         Without limitation of its indemnification obligations under the other Credit Documents, each Grantor, jointly and severally, agrees to indemnify the Collateral Agent and the other Indemnitees against, and hold each Indemnitee harmless from any and all Indemnified Liabilities incurred by or asserted against any such Indemnitee to the extent such Grantor would be required to do so pursuant to Section 10.3 of the Credit Agreement.

(c)         Any such amounts payable as provided hereunder shall be additional Secured Obligations secured hereby and by the other Collateral Documents. The provisions of this Section 6.03 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Credit Document, the consummation of the transactions contemplated hereby, the repayment of any of the Secured Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Credit Document, or any investigation made by or on behalf of the Collateral Agent or any other Secured Party. All amounts due under this Section 6.03 shall be payable promptly after written demand therefor.

(d)         To the extent permitted by applicable law, no Grantor shall assert, and each Grantor hereby waives, any claim against any Agent, any Arranger, any Lender, any Issuing Bank or any Related Party of any of the foregoing, on any theory of liability, for indirect, consequential, special or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or any 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 other Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, the syndication of the credit facilities provided for in the Credit Agreement, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Grantor hereby waives, releases and agrees not to sue upon any such claim for indirect, consequential, special or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

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(e)         Each Grantor agrees that none of any Agent, any Arranger, any Lender, any Issuing Bank or any Related Party of any of the foregoing will have any liability to any Grantor or any Person asserting claims on behalf of or in right of any Grantor or any other Person in connection with or as a result of this Agreement or any other Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith except (but subject to Section 6.03(d)), in the case of any Grantor, to the extent that any losses, claims, damages, liabilities or expenses have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (i) the gross negligence or willful misconduct of such Agent, such Arranger, such Lender or such Issuing Bank or its Related Parties in performing its express obligations under this Agreement or any other Credit Document or (ii) a material breach in bad faith by such Agent, Arranger, Lender or Issuing Bank or its Related Parties of its express obligations under the Credit Agreement.

SECTION 6.04. 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.

SECTION 6.05. Survival of Agreement. All covenants, agreements, representations and warranties made by the Credit Parties in this Agreement and in the certificates or other documents delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Agents, the Arrangers, the Lenders and the Issuing Banks and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any Agent, any Arranger, any Lender and any Issuing Bank or on its behalf and notwithstanding that any Agent, any Arranger, any Lender or any Issuing Bank may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time this Agreement is executed and delivered or any credit is extended under the Credit Agreement. Such covenants and agreements made by the Credit Parties shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under the Credit Agreement or any other Credit Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.

SECTION 6.06. Counterparts; Effectiveness; Several Agreement. 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. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall become effective as to any Grantor when a counterpart hereof executed on behalf of such Grantor shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such Grantor and the Collateral Agent and their respective permitted successors and assigns, and shall inure to the benefit of such Grantor, the Collateral Agent and the other Secured Parties and their respective permitted successors and assigns, except that no Grantor shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement or the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each Grantor and may be amended, modified, supplemented, waived or released with respect to any Grantor without the approval of any other Grantor and without affecting the obligations of any other Grantor hereunder.

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SECTION 6.07. Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

SECTION 6.08. Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default each Lender and each Issuing Bank is hereby authorized by each Grantor at any time or from time to time, without notice to any Grantor, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender or such Issuing Bank to or for the credit or the account of any Grantor against and on account of the obligations and liabilities of any Grantor to such Lender or such Issuing Bank hereunder and under the other Credit Documents, including all claims of any nature or description arising out of or connected hereto or thereto, irrespective of whether or not (a) such Lender or such Issuing Bank shall have made any demand hereunder or under the other Credit Documents or (b) the principal of or the interest on the Loans or any amounts in respect of the Letters of Credit or any other amounts due hereunder or under any other Credit Document shall have become due and payable and although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of set-off, all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 of the Credit Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders.

SECTION 6.09. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 6.10. CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) BELOW, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING HERETO OR ANY OTHER COLLATERAL DOCUMENT, OR ANY OF THE SECURED OBLIGATIONS, SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (E) BELOW); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 6.01; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE GRANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, THE ARRANGER AND THE LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS HEREUNDER OR UNDER ANY OTHER COLLATERAL DOCUMENT OR ANY EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

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SECTION 6.11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR THE 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 TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO 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 6.11 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

SECTION 6.12. Headings. Article and Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

SECTION 6.13. Marshalling; Payments Set Aside. None of the Agents, the Arrangers, the Lenders or the Issuing Banks shall be under any obligation to marshal any assets in favor of any Grantor or any other Person or against or in payment of any or all of the Secured Obligations. To the extent that any Grantor makes a payment or payments to any Agent, any Arranger, any Lender or any Issuing Bank (or to the Administrative Agent or the Collateral Agent, on behalf of any Agent, any Arranger, any Lender or any Issuing Bank), or any Agent, any Arranger, any Lender or any Issuing Bank enforces any security interests or exercises any right 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, preferential or at undervalue, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Laws, any other state 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.

SECTION 6.14. Security Interest Absolute. All rights of the Collateral Agent hereunder, the Security Interest, the grant of a security interest in the Pledged Collateral and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Credit Document, any agreement with respect to any of the Secured Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Credit Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Secured Obligations or (d) subject only to termination of a Grantor’s obligations hereunder in accordance with the terms of Section 9.8 of the Credit Agreement, but without prejudice to reinstatement rights under Section 7.9 of the Credit Agreement, any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Secured Obligations or this Agreement.

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SECTION 6.15. Termination or Release. (a) This Agreement, the Security Interest and all other security interests granted hereby shall terminate with respect to all Secured Obligations when all Secured Obligations (excluding contingent obligations as to which no claim has been made and the Specified Hedge Obligations and Specified Cash Management Services Obligations) have been paid in full, all Commitments have terminated and no Letter of Credit shall be outstanding.

(b)         A Guarantor Subsidiary shall automatically be released from its obligations hereunder and the Security Interest in the Collateral of such Guarantor Subsidiary shall be automatically released in the circumstances set forth in Section 9.8(d) of the Credit Agreement.

(c)         The Security Interest in any Collateral shall be automatically released in the circumstances set forth in Section 9.8(d) of the Credit Agreement.

(d)         In connection with any termination or release pursuant to Section 6.15(a), 6.15(b) or 6.15(c), the Collateral Agent shall promptly (i) execute and deliver to any Grantor, at such Grantor’s expense, all documents that such Grantor shall reasonably request to evidence such termination or release and (ii) subject to the provisions of any Permitted Intercreditor Agreement, return or cause to be returned to such Grantor all Collateral that is subject to such release and is held or controlled by the Collateral Agent. Any execution and delivery of documents, or performing of other actions, pursuant to this Section 6.15 shall be without recourse to or warranty by the Collateral Agent.

(e)         At any time that any Grantor desires that the Collateral Agent take any action described in Section 6.15(d), such Grantor shall, upon request of the Collateral Agent, deliver to the Collateral Agent a certificate of an Authorized Officer of the Borrower certifying that the release of the applicable Collateral is permitted pursuant to Section 6.15(a), 6.15(b) or 6.15(c). The Collateral Agent shall have no liability whatsoever to any Secured Party as the result of any release of any Collateral by it as permitted (or which the Collateral Agent in good faith believes to be permitted) by this Section 6.15.

SECTION 6.16. Additional Grantors. Pursuant to Section 5.10 of the Credit Agreement, certain Restricted Subsidiaries of the Borrower may or are required to enter in this Agreement from time to time as Grantors. Upon execution and delivery by the Collateral Agent and a Restricted Subsidiary of a Pledge and Security Agreement Supplement, such Restricted Subsidiary shall become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of any Pledge and Security Agreement Supplement shall not require the consent of any other Grantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.

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SECTION 6.17. Collateral Agent Appointed Attorney-in-Fact. Each Grantor hereby appoints the Collateral Agent the true and lawful attorney-in-fact of such Grantor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof at any time after the occurrence and during the continuance of an Event of Default, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Collateral Agent’s name or in the name of such Grantor: (a) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to sign the name of any Grantor on any invoice or bill of lading relating to any of the Collateral; (d) to send verifications of Accounts or Payment Intangibles to any Account Debtor; (e) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (f) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (g) to notify, or to require any Grantor to notify, Account Debtors to make payment directly to the Collateral Agent or to a Collateral Account and adjust, settle or compromise the amount of payment of any Account or Payment Intangible; (h) to make, settle and adjust claims in respect of Collateral under policies of insurance and to endorse the name of such Grantor on any check, draft, instrument or any other item of payment with respect to the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto; and (i) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes; provided that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and none of the Collateral Agent, any other Secured Party or any Related Party of any of the foregoing shall be responsible to any Grantor for any act or failure to act hereunder, except for its own gross negligence or willful misconduct or a material breach in bad faith by it of its express obligations under this Agreement, in each case, as determined by the final non-appealable judgment of a court of competent jurisdiction. Notwithstanding anything to the contrary contained herein or in any other Credit Document, neither the Administrative Agent nor the Collateral Agent shall have any responsibility for the preparing, recording, filing, re-recording or re-filing of any financing statements (amendments or continuations) or other instruments in any public office.

SECTION 6.18. General Authority of the Collateral Agent. By acceptance of the benefits of this Agreement and any other Collateral Documents, each Secured Party (whether or not a signatory hereto) shall be deemed irrevocably (a) to consent to the appointment of the Collateral Agent as its agent hereunder and under such other Collateral Documents, (b) to confirm that the Collateral Agent shall have the authority to act as the exclusive agent of such Secured Party for the enforcement of any provisions of this Agreement and such other Collateral Documents against any Grantor, the exercise of remedies hereunder or thereunder and the giving or withholding of any consent or approval hereunder or thereunder relating to any Collateral or any Grantor’s obligations with respect thereto, (c) to agree that it shall not take any action to enforce any provisions of this Agreement or any other Collateral Document against any Grantor, to exercise any remedy hereunder or thereunder or to give any consents or approvals hereunder or thereunder except as expressly provided in this Agreement or any other Collateral Document and (d) to agree to be bound by the terms of this Agreement, any other Collateral Documents and any Permitted Intercreditor Agreement then in effect. BY ACCEPTING THE BENEFITS OF THIS AGREEMENT AND THE SECURITY INTERESTS CREATED HEREBY, EACH SECURED PARTY ACKNOWLEDGES THE PROVISIONS OF SECTION 9 OF THE CREDIT AGREEMENT, INCLUDING THE RIGHTS, POWERS, PRIVILEGES, PROTECTIONS, INDEMNITIES AND IMMUNITIES OF THE AGENTS, AND AGREES TO BE BOUND BY SUCH PROVISIONS AS FULLY AS IF THEY WERE SET FORTH HEREIN.

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SECTION 6.19. Recourse. This Agreement is made with full recourse to each Grantor and pursuant to and upon all the warranties, representations, covenants and agreements on the part of such Grantor contained herein, in the Credit Agreement and the other Credit Documents and otherwise in writing in connection herewith or therewith, with respect to the Secured Obligations of each applicable Secured Party. It is the desire and intent of each Grantor and each Secured Party that this Agreement shall be enforced against each Grantor to the fullest extent permissible under the laws applied in each jurisdiction in which enforcement is sought.

SECTION 6.20. Mortgages. In the event that any of the Collateral hereunder is also subject to a valid and enforceable Lien under the terms of a Mortgage and the terms thereof are inconsistent with the terms of this Agreement, then with respect to such Collateral, the terms of such Mortgage shall control in the case of Fixtures and Real Estate Asset leases, letting and licenses of, and contracts, and agreements relating to the lease of, Real Estate Assets, and the terms of this Agreement shall control in the case of all other Collateral.

SECTION 6.21. Permitted Intercreditor Agreements. (a) Notwithstanding anything to the contrary herein, the Collateral Agent acknowledges and agrees that no Grantor shall be required to take or refrain from taking any action at the request of the Collateral Agent with respect to the Collateral if such action or inaction would be inconsistent with the terms of any Permitted Intercreditor Agreement then in effect.

(b)         Notwithstanding anything to the contrary herein but subject to any Permitted Intercreditor Agreement then in effect, in the event that any Permitted Second Lien Indebtedness Document or any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness provides for the grant of a security interest or pledge over the assets of any Grantor and such assets do not otherwise constitute Collateral under this Agreement or any other Credit Document, such Grantor shall (i) promptly grant a security interest in or pledge such assets to secure the Secured Obligations, (ii) promptly take any actions necessary to perfect such security interest or pledge to the extent set forth in such Permitted Second Lien Indebtedness Document or such other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness and (iii) take all other steps reasonably requested by the Collateral Agent in connection with the foregoing.

(c)         Nothing contained in any Permitted Intercreditor Agreement shall be deemed to modify any of the provisions of this Agreement, which, as among the Grantors and the Collateral Agent, shall remain in full force and effect in accordance with its terms.

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SECTION 6.22. Regulatory Matters. (a) Notwithstanding anything in any Credit Document to the contrary, the Collateral Agent, on behalf of the Secured Parties, agrees that to the extent prior FCC or State PUC approval is required pursuant to Communications Laws for (i) the operation and effectiveness of any right or remedy hereunder or under any other Collateral Document or (ii) taking any action that may be taken by the Collateral Agent hereunder or under the other Collateral Documents, such right, remedy or actions will be subject to any such prior FCC or State PUC, as applicable, approval having been obtained by or in favor of the Collateral Agent, on behalf of the Secured Parties. Notwithstanding anything herein to the contrary, the Collateral Agent, on behalf of the Secured Parties, acknowledges that, to the extent required by the FCC or any applicable State PUC, the voting rights in the Pledged Securities, as well as de jure, de facto and negative control over all FCC or State PUC authorizations, shall remain with the Grantors even if an Event of Default has occurred and is continuing until the FCC and/or State PUC(s), as applicable, shall have given its prior consent to the exercise of securityholder rights by a purchaser at a public or private sale of the Pledged Securities or to the exercise of such rights by a receiver, trustee, conservator or other agent duly appointed in accordance with the applicable law. The Grantors shall, upon the occurrence and during the continuance of an Event of Default, at the Collateral Agent’s request, file or cause to be filed such applications for approval and shall take such other actions reasonably required by the Collateral Agent to obtain each such FCC or State PUC approval or consent as is necessary to transfer ownership and control to the Collateral Agent, on behalf of the Secured Parties, or their successors, assigns or designees, of the Licenses held by the Grantors. To enforce the provisions of this Section 6.22, the Collateral Agent is empowered to request the appointment of a receiver from any court of competent jurisdiction. Such receiver shall be instructed to seek from the FCC and every applicable State PUC an involuntary transfer of control of any such License for the purpose of seeking a bona fide purchaser to whom control will ultimately be transferred. Upon the occurrence and during the continuance of an Event of Default, at the Collateral Agent’s request, the Grantors shall further use their reasonable best efforts to assist in obtaining approval of the FCC and/or applicable State PUC(s), if required, for any action or transactions contemplated hereby, including the preparation, execution and filing with the FCC and/or applicable State PUC(s) of the assignor’s or transferor’s portion of any application for consent to the assignment of any License or transfer of control, or notice of such assignment or transfer, as applicable, necessary or appropriate under the FCC’s and/or any applicable State PUC(s)’ rules and regulations for approval of the transfer or assignment of any portion of the Collateral, together with any License or other authorization.

(b)         The Grantors acknowledge that the assignment or transfer of Licenses is integral to the Secured Parties’ realization of the value of the Collateral, that there is no adequate remedy at law for failure by the Grantors to comply with the provisions of this Section 6.22 and that such failure would not be adequately compensable in damages, and therefore agree that this Section 6.22 may be specifically enforced.

(c)         Notwithstanding anything in this Agreement or in any other Credit Document to the contrary, neither the Collateral Agent nor any other Secured Party shall, without first obtaining the approval of the FCC and/or any applicable State PUC (where required), take any action hereunder or under any other Collateral Document that would constitute or result in any assignment of a License, change of material control or ownership of any Grantor, or any assignment or transfer of the material operating assets of any Grantor if such assignment, change of material control or ownership or assignment or transfer of material operating assets would require the approval of the FCC or any such applicable State PUC under applicable law (including the FCC’s and any such applicable State PUC’s rules and regulations).

[Remainder of page intentionally left blank]

29

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

FUSION CONNECT, INC., FUSION NBS ACQUISITION CORP., FUSION, LLC, FUSION BCHI ACQUISITION LLC, BIRCH COMMUNICATIONS, LLC, CBEYOND, INC., CBEYOND COMMUNICATIONS, LLC, BIRCH MANAGEMENT LLC BIRCH TELECOM LLC, BIRCH TEXAS HOLDINGS, INC., BIRCH TELECOM OF KANSAS, LLC, BIRCH TELECOM OF OKLAHOMA, LLC, BIRCH TELECOM OF MISSOURI, LLC, BIRCH TELECOM OF TEXAS LTD., L.L.P., BIRCAN HOLDINGS, LLC PRIMUS HOLDINGS, INC. FUSION MPHC ACQUISITION CORP., as Grantors
By:	/s/ Kevin Dotts
	Name: Kevin Dotts
	Title: Executive Vice President, Chief Financial Officer and Principal Accounting Officer

[Signature Page to Fusion First Lien Pledge and Security Agreement]

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent
By:	/s/ Jamie Roseberg
	Name: Jamie Roseberg Title: Banking Officer

[Signature Page to Fusion First Lien Pledge and Security Agreement]

Schedule I

Pledged Equity; Pledged Debt

Pledged Equity:

Credit Party	Issuer	Type of Organization	Number of Shares/ Interests Owned	Total Shares/Interests Outstanding	Percentage of Interest Pledged	Certificate No. (if uncertificated, please indicate so)
Fusion Connect, Inc.	Fusion BCHI Acquisition LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Fusion Connect, Inc.	Fusion NBS Acquisition Corp.	C corp.	100	1	100%	1
Fusion NBS Acquisition Corp.	Fusion LLC	Limited Liability Company	1 Unit	1 Unit	100%	Uncertificated
Fusion BCHI Acquisition LLC	Birch Communications, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Cbeyond, Inc.	C corp.	100	100	100%	2
Cbeyond, Inc.	Cbeyond Communications, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Birch Telecom, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Birch Texas Holdings, Inc.	C corp.	100	100	100%	2
Birch Communications, LLC	Birch Telecom of Kansas, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Birch Telecom of Oklahoma, LLC	Limited Liability Company	N/A	N/A	100%	uncertificated
Birch Communications, LLC	Birch Telecom of Missouri, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Primus Holdings, Inc.	C corp.	100	100	100%	2
Birch Communications, LLC Is the 99% limited partner and Birch Texas Holdings, Inc. is the General Partner	Birch Telecom of Texas Ltd., L.L.P.	Limited Liability Partnership	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Bircan Holdings, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Primus Holdings, Inc.	Primus Management ULC [Not a Credit Party]	Unlimited Liability Company	100	100	65%	C-2 C-3
Birch Communications, LLC	Birch Management LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Fusion Connect, Inc.	Fusion MPHC Acquisition Corp.	C corp.	100	100	100%	1

Pledged Debt:

Credit Party	Debtor	Type of Instrument	Outstanding Principal Amount
All Credit Parties Fusion Connect, Inc. Fusion Connect, Inc.	All credit parties Fusion Global Services, LLC (to be renamed) Vector Fusion Holdings (Cayman) Ltd.	Intercompany note Secured Note Unsecured Note	N/A $613,748.71 $25,000,000

Schedule II

Commercial Tort Claims

None.

Schedule III

Intellectual Property

I. 

Copyrights/Copyright Applications

Registered Owner	Copyright	Registration/Application No.	Application Date/ Registration Date	Expiration Date
None.

II. 

Exclusive Copyright Licenses (where a Credit Party is a licensee)

Licensee	Licensor	Title	Registration Number	Expiration Date
None.

III. 

Patents/Patent Applications

Registered Owner	Patent	Application No./Registration No.	Application Date/ Registration Date	Expiration Date
Cbeyond Communications, LLC	Client Application	12369185 / 8219652	02/11/2009/ 07/10/2012	N/A
Cbeyond Communications, LLC	Data Storage Testing	12493546 / 9697210	06/29/2009/ 07/04/2017	N/A
Primus Holdings, Inc.	Call Screening System and Method	2597377 /2,597,377 (Canada)	08/15/2007/ 11/16/2010	N/A
Primus Holdings, Inc.	Call Screening System and Method	12/673,377 / 8577002 (US)	02/18/2011/ 11/05/2013	N/A

IV. 

Trademarks/Trademark Applications - USA

Registered Owner	Trademark	Registration No.	Registration Date	Next Renewal Date
Fusion Telecommunications International, Inc.	“Clear Connections in the Cloud”	4,775,318	July 21, 2015	July 21, 2021
PingTone Communications, Inc.	“PingTone Communications”	2,880,663	September 7, 2004	September 7, 2024
Apptix, Inc.	“Apptix”	4,054,446	November 15, 2011	November 15, 2021
Apptix, Inc.	“Cloud Alliance Network & Design”	4,780,287	July 28, 2015	July 28, 2025
Apptix, Inc.	“Cloud Alliance Network & Design”	4,780,288	July 28, 2015	July 28, 2025
Apptix, Inc.	“Cloud Alliance Network & Design”	4,861,836	September 15, 2015	December 1, 2025
Apptix, Inc.	“Mailstreet”	2,840,397	May 11, 2004	May 11, 2024
Apptix, Inc.	“Mailstreet”	4,054,447	November 15, 2011	November 15, 2021
Bircan Management ULC	“Telegroup”	2048650	April 1, 1997	Not renewed--Will be cancelled
Birch Communications, LLC	“Econsole”	86/081,954 4745290	May 26, 2015	May 26, 2025
Birch Telecom, LLC	“B Birch and design”	4826853	October 6, 2015	October 6, 2025
Birch Telecom, LLC	“Birch”	2467503	July 10, 2001	July 10, 2021
Birch Telecom, LLC	“Birch Branch Out”	4261286	December 18, 2012	December 18, 2022
Birch Telecom, LLC	“Birch Communications and design”	3549607	December 23, 2008	December 23, 2018
Birch Telecom, LLC	“Birch leaf logo”	N/A	Not registered	N/A
Birch Telecom, LLC	“Birch Power Merchant”	4397170	September 3, 2013	September 3, 2023
Birch Telecom, LLC	“Birch Telecom”	2186707	September 1, 1998	September 1, 2018
Birch Telecom, LLC	“Birch Telecom and design”	2325801	March 7, 2000	March 7, 2020
Birch Telecom, LLC	“Birchlink”	2962432	June 14, 2005	June 14, 2025
Birch Telecom, LLC	“Branch Out”	4261289	December 18, 2012	December 18, 2022
Birch Telecom, LLC	“Branch Out”	4261291	December 18, 2012	December 18, 2022
Birch Telecom, LLC	“Home Connection”	2908160	December 7, 2004	December 7, 2024
Birch Telecom, LLC	“Mighty Mouth”	2503776	November 6, 2001	November 6, 2021
Birch Telecom, LLC	“Service. Savings. Simplicity”	2616143	September 10, 2002	September 10, 2022
Birch Telecom, LLC	“Sp@ce Host”	2691468	February 25, 2003	February 25, 2023
Birch Telecom, LLC	“Sprawler”	3047178	January 24, 2006	January 24, 2026
Birch Telecom, LLC	“Your Business Best Friend”	2558118	April 9, 2002	April 9, 2022
Cbeyond Communications, LLC	“Beyondoffice”	2805009	February 27, 2003	January 13, 2024
Cbeyond Communications, LLC	“Beyondvoice”	2805009	January 13, 2004	January 13, 2024
Cbeyond Communications, LLC	“Beyondvoice”	2793909	December 16, 2003	December 16, 2023
Cbeyond Communications, LLC	“Beyondvoice”	2794512	December 16, 2003	December 16, 2023

Cbeyond Communications, LLC	“Beyondvoice I”	2763714	September 16, 2003	September 16, 2023
Cbeyond Communications, LLC	“Beyondvoice I”	2761638	September 9, 2003	September 9, 2023
Cbeyond Communications, LLC	“Beyondvoice II”	2763713	September 16, 2003	September 16, 2023
Cbeyond Communications, LLC	“Beyondvoice II”	2816962	February 24, 2004	February 24, 2024
Cbeyond Communications, LLC	“C and eye design”	2597070	July 23, 2002	July 23, 2022
Cbeyond Communications, LLC	“Connect Securely to Our Cloud Cbeyond This Building is Certified Cloud Ready at the Speed of Light	4528389	May 13, 2014	May 13, 2024
Cbeyond Communications, LLC	“Netpbx”	3600474	March 31, 2009	March 31, 2019
Cbeyond Communications, LLC	“Netsip”	3600503	March 31, 2009	March 31, 2019
Cbeyond Communications, LLC	“The Last Communications Company a Small Business Will Ever Need”	2671389	January 7, 2003	January 7, 2023
Cbeyond Communications, LLC	“Totalcloud”	4382713	August 13, 2013	August 13, 2023
Cbeyond Communications, LLC	“Totalnetwork”	4385711	August 13, 2013	August 13, 2023
Cbeyond Communications, LLC	“TotalVoice”	4441587	November 26, 2013	November 26, 2023
Cbeyond Communications, LLC	“Your Technology Ally”	4355485	June 18, 2013	June 18, 2023
Primus Holdings, Inc.	“Primus”	2679710	January 28, 2003	January 28, 2023
Primus Holdings, Inc.	“Primus”	2694591	March 11, 2003	March 11, 2023
Primus Holdings, Inc.	“Primus”	2194625	October 13, 1998	October 13, 2018
Primus Holdings, Inc.	“PTGI”	4226291	October 16, 2012	October 16, 2022
Primus Holdings, Inc.	“PTGI”	4195302	August 21, 2012	August 21, 2022
Bircan Holdings, LLC	“Telegroup”	2048650	April 1, 1997	April 1, 2027

EXHIBIT I

TO FIRST LIEN PLEDGE AND SECURITY AGREEMENT

[FORM OF] SUPPLEMENT NO. __, dated as of [   ] (this “Supplement”), to the First Lien Pledge and Security Agreement dated as of May 4, 2018 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Pledge and Security Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), the other Grantors party thereto from time to time and Wilmington Trust, National Association (“Wilmington Trust”), as Collateral Agent for the Secured Parties.

Reference is made to the First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, as Administrative Agent and Collateral Agent. Capitalized terms used in this Supplement and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement or the Pledge and Security Agreement, as applicable.

The Grantors have entered into the Pledge and Security Agreement in order to induce the Lenders and the Issuing Banks to make Loans and other extensions of credit. Section 6.16 of the Pledge and Security Agreement provides that additional Restricted Subsidiaries of the Borrower may become Grantors under the Pledge and Security Agreement by execution and delivery of an instrument substantially in the form of this Supplement. The undersigned Restricted Subsidiary (the “New Subsidiary”) is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Grantor under the Pledge and Security Agreement in order to induce the Lenders and the Issuing Banks to make additional Loans and other extensions of credit and as consideration for permitting to remain outstanding Loans and other extensions of credit previously made.

Accordingly, the Collateral Agent and the New Subsidiary agree as follows:

SECTION 1. In accordance with Section 6.16 of the Pledge and Security Agreement, the New Subsidiary by its signature below becomes a Grantor under the Pledge and Security Agreement with the same force and effect as if originally named therein as a Grantor, and the New Subsidiary hereby (a) agrees to all the terms and provisions of the Pledge and Security Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof (or, to the extent that such representations and warranties specifically refer to an earlier date, as of such earlier date). In furtherance of the foregoing, the New Subsidiary, as security for the payment and performance in full of the Secured Obligations hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest in, all of the New Subsidiary’s right, title and interest in, to and under the Collateral (as defined in the Pledge and Security Agreement) of the New Subsidiary, whether now owned or at any time hereafter acquired by the New Subsidiary or in which the New Subsidiary now has or at any time in the future may acquire any right, title or interest. Each reference to a “Grantor” in the Pledge and Security Agreement shall be deemed to include the New Subsidiary. The Pledge and Security Agreement is hereby incorporated herein by reference.

SECTION 2. The New Subsidiary represents and warrants to the Collateral Agent and the other Secured Parties that (a) the execution and delivery of this Supplement by it have been duly authorized by all necessary corporate or other organizational and, if required, stockholder or other equityholder action on the part of the New Subsidiary and (b) this Supplement has been duly executed and delivered by the New Subsidiary and is the legally valid and binding obligation of the New Subsidiary, enforceable against the New Subsidiary in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

SECTION 3. This Supplement 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. Delivery of an executed counterpart of a signature page of this Supplement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Supplement. This Supplement shall become effective when the Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary and the Collateral Agent has executed a counterpart hereof.

SECTION 4. The New Subsidiary hereby represents and warrants that (a) Schedule A hereto sets forth, as of the date hereof, the true and correct legal name of the New Subsidiary, its jurisdiction of organization and the location of its chief executive office, and whether the New Subsidiary is a transmitting utility (as defined in the UCC) and, if applicable, the location where its transmitting utility equipment is held, (b) Schedule B hereto sets forth (and such Schedule hereby supplements Schedule I set forth in the Pledge and Security Agreement), as of the date hereof, a true and complete list of (i) all the Pledged Equity of the New Subsidiary, specifying the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by such Pledged Equity, and (ii) all the Pledged Debt of the New Subsidiary, specifying the issuer thereof and the principal amount thereof as of the date hereof, and includes all Equity Interests, Promissory Notes and Instruments owned by the New Subsidiary required to be pledged hereunder in order to satisfy the Collateral and Guarantee Requirement, (c) Schedule C hereto sets forth, as of the date hereof, a true and complete list of (i) all Copyrights that have been registered and Copyrights for which registration applications are pending, (ii) all exclusive Copyright Licenses under which the New Subsidiary is a licensee, (iii) all Patents that have been granted and Patents for which applications are pending and (iv) all Trademarks that have been registered and Trademarks for which registration applications are pending and that, in each case, are owned by the New Subsidiary, in each case truly and completely specifying the name of the registered owner, title, type or mark, registration or application number, expiration date (if already registered) or filing date, a brief description thereof and, if applicable, the licensee and licensor and (d) Schedule D hereto sets forth, as of the date hereof, each Commercial Tort Claim of the New Subsidiary as to which the claim thereunder is $2,000,000 or more in existence on the date hereof.

SECTION 5. Except as expressly supplemented hereby, the Pledge and Security Agreement shall remain in full force and effect. This Supplement constitutes a Credit Document for all purpose of the Credit Agreement and the other Credit Documents.

SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 7. In case any provision in or obligation hereunder or under any other Credit 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.

SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 6.01 of the Pledge and Security Agreement.

SECTION 9. The New Subsidiary agrees to reimburse the Collateral Agent for its actual reasonable and documented out-of-pocket expenses in connection with this Supplement, including all reasonable and documented fees and expenses of counsel for the Collateral Agent.

IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have duly executed this Supplement to the Pledge and Security Agreement as of the day and year first above written.

[NAME OF NEW SUBSIDIARY],
by
	Name:
	Title:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent,
By:
	Name: Title:

Schedule A

NEW SUBSIDIARY

Legal Name Jurisdiction of Organization Location of Chief Executive Office (including county) Transmitting utility? If so, jurisdiction where transmitting utility equipment is held

Schedule B

PLEDGED EQUITY; PLEDGED DEBT

EQUITY INTERESTS

Credit Party Issuer Type of Organization Number of Shares/Units Owned Total Shares/Units Outstanding Percentage of Interest Pledged Certificate No. (if uncertificated, please indicate so)

DEBT INSTRUMENTS

Credit Party Debtor Type of Instrument Outstanding Principal Amount

Schedule C

INTELLECTUAL PROPERTY

I.            

Copyrights and Copyright Applications

Property Description Registration Status

II.            

Exclusive Copyright Licenses (where the New Subsidiary is a licensee)

Licensee Licensor Title Registration Number Expiration Date

III.            

Patents

Title Country Type Registration Number Issue Date Expiration Date

IV.            

Patent Applications

Title Country Type Application Number Date Filed

V.            

Trademarks

Trademark Registration No./Application No. Application Date/Registration No. Goods/Services

VI.            

Trademark Applications

Trademark Application No. Filing Date

Schedule D

COMMERCIAL TORT CLAIMS

EXHIBIT II

TO FIRST LIEN PLEDGE AND SECURITY AGREEMENT

[FORM OF] FIRST LIEN COPYRIGHT SECURITY AGREEMENT, dated as of [__________], 20[__] (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among the ENTITIES IDENTIFIED AS GRANTORS ON THE SIGNATURE PAGES HERETO (collectively, the “Grantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Collateral Agent for the Secured Parties.

WHEREAS, the Grantors are party to the First Lien Pledge and Security Agreement, dated as of May 4, 2018 (the “Pledge and Security Agreement”), among Fusion Connect, Inc., a Delaware corporation, the other Grantors party thereto from time to time and Wilmington Trust, as Collateral Agent, pursuant to which the Grantors granted a security interest to the Collateral Agent in the Copyright Collateral (as defined below) and are required to execute and deliver this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:

SECTION 1. Defined Terms.Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.

SECTION 2. Grant of Security Interest. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under any and all of the following assets now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Copyright Collateral”):

(a)           (i) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, whether registered or unregistered and whether published or unpublished, (ii) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations, pending applications for registration and renewals in the United States Copyright Office, including those listed on Schedule A under the heading “Copyright Registrations and Applications”, (iii) all rights and privileges arising under applicable law with respect to such Grantor’s use of such copyrights, (iv) all reissues, renewals, continuations and extensions thereof and amendments thereto, (v) all income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect to the foregoing, including damages and payments for past, present or future infringements thereof, (vi) all rights corresponding thereto throughout the world and (vii) all rights to sue for past, present or future infringements thereof; and

(b)           any and all written agreement, now or hereafter in effect, granting any right to any third party under any Copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any right to any Grantor under any Copyright now or hereafter owned by any third party, and all rights of such Grantor under any such agreement, including each such agreement set forth on Schedule A under the heading “Exclusive Copyright Licenses”.

Notwithstanding anything herein to the contrary, if, for so long and to the extent as any such asset constitutes Excluded Property, the security interest granted under this Section 2 shall not attach to, and the Copyright Collateral shall not include, such asset; provided, however, that the security interest granted under this Section 2 shall immediately attach to, and the Copyright Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.

SECTION 3. Security Agreement. The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Copyright Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.

SECTION 4. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 5. Counterparts. This Agreement may be executed in one or more counterparts and by different parties hereto in separate 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.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

[NAME OF GRANTOR]

By:

Name:

Title:

[ADD SIGNATURE BLOCKS FOR ANY OTHER GRANTORS]

[Signature Page to First Lien Copyright Security Agreement]

Accepted and Agreed:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent,
by
	Name: Title:

[Signature Page to First Lien Copyright Security Agreement]

SCHEDULE A

to

FIRST LIEN COPYRIGHT SECURITY AGREEMENT

Copyright Registrations and Applications

Registered Owner Property Description Registration Status

Exclusive Copyright Licenses (where a Grantor is a licensee)

Licensee Licensor Title Registration Number Expiration Date

EXHIBIT III

TO FIRST LIEN PLEDGE AND SECURITY AGREEMENT

FIRST LIEN PATENT SECURITY AGREEMENT, dated as of [__________], 20[__] (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is made among THE ENTITIES IDENTIFIED AS GRANTORS ON THE SIGNATURE PAGES HERETO (collectively, the “Grantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Collateral Agent for the Secured Parties.

WHEREAS, the Grantors are party to the First Lien Pledge and Security Agreement, dated as of May 4, 2018 (the “Pledge and Security Agreement”), among Fusion Connect, Inc., a Delaware corporation, the other Grantors party thereto from time to time and Wilmington Trust, as Collateral Agent, pursuant to which the Grantors granted a security interest to the Collateral Agent in the Patent Collateral (as defined below) and are required to execute and deliver this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:

SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.

SECTION 2. Grant of Security Interest. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under any and all of the following assets now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Patent Collateral”): (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, including those listed on Schedule A under the heading “Patents and Patent Applications”, (b) all rights and privileges arising under applicable law with respect to such Grantor’s use of any patents, (c) all inventions and improvements described and claimed therein, (d) all reissues, divisions, continuations, renewals, extensions, reexaminations, supplemental examinations, inter partes reviews, adjustments and continuations-in-part thereof and amendments thereto, (e) all income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect to any of the foregoing including damages and payments for past, present or future infringements thereof, (f) all rights corresponding thereto throughout the world, including the right to prevent others from making, having made, using, selling, offering to sell, importing or exporting the inventions claimed therein and (g) rights to sue for past, present or future infringements thereof.

Notwithstanding anything herein to the contrary, if, for so long and to the extent as any such asset constitutes Excluded Property, the security interest granted under this Section 2 shall not attach to, and the Patent Collateral shall not include, such asset, provided, however, that the security interest granted under this Section 2 shall immediately attach to, and the Patent Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.

SECTION 3. Security Agreement. The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Patent Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.

SECTION 4. GOVERNING LAW.THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 5. Counterparts.This Agreement may be executed in one or more counterparts and by different parties hereto in separate 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.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

[NAME OF GRANTOR]

By:

Name:

Title:

[ADD SIGNATURE BLOCKS FOR ANY OTHER GRANTORS]

[Signature Page to First Lien Patent Security Agreement]

Accepted and Agreed:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent,
by
	Name: Title:

[Signature Page to First Lien Patent Security Agreement]

SCHEDULE A

to

FIRST LIEN PATENT SECURITY AGREEMENT

Patent and Patent Applications

Patents

Registered Owner Title of Patent Country Type Registration Number Issue Date Expiration Date

Patent Applications

Registered Owner Title of Patent Country Type Application Number Date Filed

Schedule A-1

EXHIBIT IV

TO FIRST LIEN PLEDGE AND SECURITY AGREEMENT

FIRST LIEN TRADEMARK SECURITY AGREEMENT, dated as of [__________], 20[__] (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is made among THE ENTITIES IDENTIFIED AS GRANTORS ON THE SIGNATURE PAGES HERETO (collectively, the “Grantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Collateral Agent for the Secured Parties.

WHEREAS, the Grantors are party to the First Lien Pledge and Security Agreement, dated as of May 4, 2018 (the “Pledge and Security Agreement”), among Fusion Connect, Inc., a Delaware corporation, the other Grantors party thereto from time to time and Wilmington Trust, as Collateral Agent, pursuant to which the Grantors granted a security interest to the Collateral Agent in the Trademark Collateral (as defined below) and are required to execute and deliver this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:

SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.

SECTION 2. Grant of Security. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under any and all of the following assets now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Trademark Collateral”): (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, the goodwill of the business symbolized thereby or associated therewith, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule A under the heading “Trademark Registrations and Applications”, (b) all rights and privileges arising under applicable law with respect to such Grantor’s use of any trademarks, (c) all reissues, continuations, extensions and renewals thereof and amendments thereto, (d) all income, fees, royalties, damages and payments now and hereafter due and/or payable with respect to any of the foregoing, including damages, claims and payments for past, present or future infringements thereof, (e) all rights corresponding thereto throughout the world and (f) rights to sue for past, present and future infringements or dilutions thereof or other injuries thereto.

Exhibit IV-2

Notwithstanding anything herein to the contrary, (a) in no event shall the Trademark Collateral include or the security interest granted under this Section 2 attach to any “intent to use” application for registration of a Trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent to use application under applicable federal law and (b) if, for so long and to the extent as any such asset constitutes Excluded Property, the security interest granted under this Section 2 shall not attach to, and the Trademark Collateral shall not include, such asset, provided, however, that the security interest granted under this Section 2 shall immediately attach to, and the Trademark Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.

SECTION 3. Security Agreement. The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.

SECTION 4. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 5. Counterparts. This Agreement may be executed in one or more counterparts and by different parties hereto in separate 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.

Exhibit IV-2

IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

[NAME OF GRANTOR]

By:

Name:

Title:

[ADD SIGNATURE BLOCKS FOR ANY OTHER GRANTORS]

[Signature Page to First Lien Trademark Security Agreement]

Accepted and Agreed:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent,
by
	Name: Title:

[Signature Page to First Lien Trademark Security Agreement]

SCHEDULE A

to

FIRST LIEN TRADEMARK SECURITY AGREEMENT

Trademark Registrations and Applications

Trademarks

Registered Owner Trademark Registration No./Application No. Application Date/Registration Date

Trademark Applications

Registered Owner Trademark Application No. Filing Date

Schedule A-1

EX-10.12

EXECUTION VERSION

SECOND LIEN PLEDGE AND SECURITY AGREEMENT

dated as of

May 4, 2018,

among

FUSION CONNECT, INC.,

THE OTHER GRANTORS PARTY HERETO

and

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Collateral Agent

Table of Contents

Page

ARTICLE I
DEFINITIONS	1
SECTION 1.01. Credit Agreement and UCC	1
SECTION 1.02. Other Defined Terms	2
ARTICLE II
PLEDGE OF SECURITIES	6
SECTION 2.01. Pledge	6
SECTION 2.02. Delivery of the Pledged Collateral	7
SECTION 2.03. Representations and Warranties	7
SECTION 2.04. Certification of Limited Liability Company and Limited Partnership Interests	8
SECTION 2.05. Registration in Nominee Name; Denominations	8
SECTION 2.06. Voting Rights; Dividends and Interest	8
SECTION 2.07. Collateral Agent Not a Partner or Limited Liability Company Member	10
ARTICLE III
SECURITY INTERESTS IN PERSONAL PROPERTY	10
SECTION 3.01. Security Interest	10
SECTION 3.02. Representations and Warranties	12
SECTION 3.03. Covenants	14
SECTION 3.04. Other Actions	16
ARTICLE IV
SPECIAL PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL	16
SECTION 4.01. Grant of License to Use Intellectual Property	16
SECTION 4.02. Protection of Collateral	17
ARTICLE V
REMEDIES	18
SECTION 5.01. Remedies Upon Default	18
SECTION 5.02. Application of Proceeds	20
ARTICLE V I
MISCELLANEOUS	20
SECTION 6.01. Notices	20
SECTION 6.02. Waivers; Amendment	21
SECTION 6.03. Collateral Agent’s Fees and Expenses; Indemnification	21
SECTION 6.04. Independence of Covenants	22
SECTION 6.05. Survival of Agreement	22
SECTION 6.06. Counterparts; Effectiveness; Several Agreement	22
SECTION 6.07. Severability	23
SECTION 6.08. Set-Off	23
SECTION 6.09. APPLICABLE LAW	23
SECTION 6.10. CONSENT TO JURISDICTION	23
SECTION 6.11. WAIVER OF JURY TRIAL	24
SECTION 6.12. Headings	24
SECTION 6.13. Marshalling; Payments Set Aside	24
SECTION 6.14. Security Interest Absolute	24
SECTION 6.15. Termination or Release	25
SECTION 6.16. Additional Grantors	25
SECTION 6.17. Collateral Agent Appointed Attorney-in-Fact	26
SECTION 6.18. General Authority of the Collateral Agent	27
SECTION 6.19. Recourse	27
SECTION 6.20. Mortgages	27
SECTION 6.21. Permitted Intercreditor Agreements	27
SECTION 6.22. Regulatory Matters	28

SCHEDULES
Schedule I -	Pledged Equity; Pledged Debt
Schedule II -	Commercial Tort Claims
Schedule III -	Intellectual Property
EXHIBITS
Exhibit I   -	Form of Second Lien Pledge and Security Agreement Supplement
Exhibit II  -	Form of Second Lien Copyright Security Agreement
Exhibit III -	Form of Second Lien Patent Security Agreement
Exhibit IV -	Form of Second Lien Trademark Security Agreement

i

SECOND LIEN PLEDGE AND SECURITY AGREEMENT, dated as of May 4, 2018, among FUSION CONNECT, INC., a Delaware corporation (the “Borrower”), the other GRANTORS party hereto from time to time and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Collateral Agent for the Secured Parties (as defined below).

Reference is made to the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, as Guarantor Subsidiaries, the Lenders party thereto and Wilmington Trust, as Administrative Agent and Collateral Agent.

The Lenders have agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such credit are conditioned upon, among other things, the execution and delivery of this Agreement by each Grantor. The Grantors are Affiliates of one another, will derive substantial direct and indirect benefits from the extensions of credit to the Borrower pursuant to the Credit Agreement, and are willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit. This Agreement is subject to the Intercreditor Agreement, which governs the relative rights and priorities of the First Lien Secured Parties (as defined in the Intercreditor Agreement) and the Second Lien Secured Parties (as defined in the Intercreditor Agreement) and certain other matters as described therein. Accordingly, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Credit Agreement and UCC. (a) Capitalized terms used in this Agreement, including the preamble and the introductory paragraphs hereto, and not otherwise defined herein have the meanings specified in the Credit Agreement.

(b)         As used herein, each of the following terms has the meaning specified in the UCC (as defined herein):

Term	UCC Section
Certificated Security	8-102
Chattel Paper	9-102
Commercial Tort Claim	9-102
Deposit Account	9-102
Document	9-102
Fixtures	9-102
Goods	9-102
Instrument	9-102
Inventory	9-102
Investment Property	9-102
Letter-of-Credit Right	9-102
Money	1-201
Payment Intangible	9-102
Proceeds	9-102
Promissory Note	9-102
Securities Account	8-501
Security Entitlement Supporting Obligations	8-102 9-102
Uncertificated Security	8-102

1

(c)         The rules of construction specified in Section 1.3 of the Credit Agreement also apply to this Agreement, mutatis mutandis.

SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“Account(s)” means “accounts” as defined in Section 9-102 of the UCC, and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, or (c) arising out of the use of a credit or charge card or information contained on or for use with the card.

“Account Debtor” means any Person that is or that may become obligated to any Grantor under, with respect to or on account of an Account or a Payment Intangible.

“After-Acquired Intellectual Property” has the meaning assigned to such term in Section 4.02(d).

“Agreement” means this Second Lien Pledge and Security Agreement.

“Article 9 Collateral” has the meaning assigned to such term in Section 3.01(a).

“Bankruptcy Event of Default” means any Event of Default under Section 8.1(f) or 8.1(g) of the Credit Agreement.

“Blue Sky Laws” has the meaning assigned to such term in Section 5.01.

“Borrower” has the meaning assigned to such term in the preamble.

“Collateral” means the Article 9 Collateral and the Pledged Collateral; provided that all references to “Collateral” in Section 5.02 shall, unless the context requires otherwise, also refer to Real Estate Assets subject to a Mortgage.

“Collateral Agent” means Wilmington Trust, in its capacity as collateral agent for the Secured Parties under the Credit Documents, and its successors in such capacity as provided in the Credit Agreement.

2

“Commercial Software License(s)” means any non-exclusive license of commercially available (on non-discriminatory pricing terms) computer software to a Grantor from a commercial software provider (e.g., “shrink-wrap”, “browse-wrap” or “click-wrap” software licenses) or a license of freely available computer software from a licensor of free or open source software.

“Copyright License” means any written agreement, now or hereafter in effect, granting any right to any third party under any Copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any right to any Grantor under any Copyright now or hereafter owned by any third party, and all rights of such Grantor under any such agreement.

“Copyrights” means all of the following now owned or hereafter acquired by or assigned to any Grantor (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, whether registered or unregistered and whether published or unpublished, (b) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations, pending applications for registration and renewals in the United States Copyright Office, including those listed on Schedule III, (c) all rights and privileges arising under applicable law with respect to such Grantor’s use of such copyrights, (d) all reissues, renewals, continuations and extensions thereof and amendments thereto, (e) all income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect to the foregoing, including damages and payments for past, present or future infringements thereof, (f) all rights corresponding thereto throughout the world and (g) all rights to sue for past, present or future infringements thereof.

“Credit Agreement” has the meaning assigned to such term in the preliminary statement of this Agreement.

“Domain Names” means all Internet domain names and associated URL addresses in or to which any Grantor now or hereafter has any right, title or interest.

“Equipment” means (a) any “equipment” as such term is defined in Article 9 of the UCC and shall also include, but shall not be limited to, all machinery, equipment, furnishings, appliances, furniture, fixtures, tools, and vehicles now or hereafter owned by any Grantor in each case, regardless of whether characterized as equipment under the UCC and (b) and any and all additions, substitutions and replacements of any of the foregoing and all accessions thereto, wherever located, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefore, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.

 “General Intangibles” has the meaning provided in Article 9 of the UCC and shall in any event include all choses in action and causes of action and all other intangible personal property of every kind and nature (other than Accounts) now owned or hereafter acquired by any Grantor, as the case may be, including corporate or other business records, indemnification claims, contract rights (including rights under customer contracts, leases, whether entered into as lessor or lessee, Hedge Agreements and other agreements), goodwill, registrations, franchises, tax refund claims, licenses (including Licenses), permits, concessions and authorizations and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Grantor.

3

“Grantor” means each of the Borrower and each Guarantor Subsidiary.

“Guarantor Subsidiaries” means, collectively, (a) the Restricted Subsidiaries party to this Agreement on the Closing Date and (b) each Restricted Subsidiary that becomes a party to this Agreement after the Closing Date pursuant to Section 6.16, provided that any Restricted Subsidiary that is designated as an Unrestricted Subsidiary in accordance with the Credit Agreement shall cease to be a Guarantor Subsidiary subject to and in accordance with the provisions of Section 9.8(d)(ii) of the Credit Agreement.

“Intellectual Property” means all intellectual and similar property of every kind and nature now owned or hereafter acquired by any Grantor, including rights in inventions, rights in designs, utility models, Patents, Copyrights, Intellectual Property Licenses, Trademarks, trade secrets, confidential or proprietary technical and business information, rights in know how, rights in show how or other data or information, rights in software, rights in databases, all other proprietary information, including but not limited to Domain Names.

“Intellectual Property Collateral” means Collateral consisting of Intellectual Property.

“Intellectual Property Security Agreements” has the meaning assigned to such term in Section 3.02(d).

“Intellectual Property License” means any Patent License, Trademark License, Copyright License, Commercial Software License or other license or sublicense agreement granting rights under Intellectual Property to which any Grantor is a party, including those listed on Schedule III.

“Patent License” means any written agreement, now or hereafter in effect, granting to any third party any right to develop, commercialize, import, make, have made, offer for sale, use or sell any invention on which a Patent, now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any such right with respect to any invention on which a Patent, now or hereafter owned by any third party, is in existence, and all rights of any Grantor under any such agreement.

“Patents” means all of the following now owned or hereafter acquired by any Grantor (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, including those listed on Schedule III, (b) all rights and privileges arising under applicable law with respect to such Grantor’s use of any patents, (c) all inventions and improvements described and claimed therein, (d) all reissues, divisions, continuations, renewals, extensions, reexaminations, supplemental examinations, inter partes reviews, adjustments and continuations-in-part thereof and amendments thereto, (e) all income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect to any of the foregoing including damages and payments for past, present or future infringements thereof, (f) all rights corresponding thereto throughout the world, including the right to prevent others from making, having made, using, selling, offering to sell, importing or exporting the inventions claimed therein and (g) rights to sue for past, present or future infringements thereof.

4

“Pledge and Security Agreement Supplement” means an instrument substantially in the form of Exhibit I hereto.

“Pledged Collateral” has the meaning assigned to such term in Section 2.01.

“Pledged Debt” has the meaning assigned to such term in Section 2.01.

“Pledged Equity” has the meaning assigned to such term in Section 2.01.

“Pledged Securities” means any Promissory Notes, stock certificates, limited liability membership interests or other Securities, certificates or Instruments now or hereafter included in the Pledged Collateral, including all Pledged Equity, Pledged Debt and all other certificates, instruments or other documents representing or evidencing any Pledged Collateral.

“Secured Obligations” means the “Obligations” as defined in the Credit Agreement, it being acknowledged and agreed that the term “Secured Obligations” as used herein shall include each extension of credit under the Credit Agreement, whether outstanding on the date of this Agreement or extended or arising from time to time after the date of this Agreement.

“Secured Parties” means (a) the Administrative Agent, (b) the Collateral Agent, (c) the Arrangers, the Syndication Agents and each other Person appointed under the Credit Documents to serve in an agent or similar capacity, including any Auction Manager, (d) the Lenders, (e) the beneficiaries of each indemnification obligation undertaken by any Credit Party under any Credit Document, (f) the other holders from time to time of the Secured Obligations and (g) the successors and permitted assigns of each of the foregoing.

“Security” means a “security” as such term is defined in Article 8 of the UCC and, in any event, shall include any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Security Interest” has the meaning assigned to such term in Section 3.01(a).

“Trademark License” means any written agreement, now or hereafter in effect, granting to any third party any right to use any Trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any Trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.

5

“Trademarks” means all of the following now owned or hereafter acquired by any Grantor (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, the goodwill of the business symbolized thereby or associated therewith, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule III, (b) all rights and privileges arising under applicable law with respect to such Grantor’s use of any trademarks, (c) all reissues, continuations, extensions and renewals thereof and amendments thereto, (d) all income, fees, royalties, damages and payments now and hereafter due and/or payable with respect to any of the foregoing, including damages, claims and payments for past, present or future infringements thereof, (e) all rights corresponding thereto throughout the world and (f) rights to sue for past, present and future infringements or dilutions thereof or other injuries thereto.

“UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York; provided that, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.

“Wilmington Trust” has the meaning assigned to such term in the preamble.

ARTICLE II

PLEDGE OF SECURITIES

SECTION 2.01. Pledge. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under: (a) all Equity Interests now owned or at any time hereafter acquired by it (including those Equity Interests listed opposite the name of such Grantor on Schedule I) and all certificates and other instruments representing all such Equity Interests; provided that the Pledged Equity shall not include more than 65% of the outstanding voting Equity Interests in any CFC or CFC Holding Company (collectively, the “Pledged Equity”); (b) all Promissory Notes and all Instruments evidencing Indebtedness now owned or at any time hereafter acquired by it (including those listed opposite the name of such Grantor on Schedule I) (the “Pledged Debt”); (c) all other property that may be delivered to and held by the Collateral Agent pursuant to the terms of this Section 2.01 or Section 2.02; (d) subject to Section 2.06, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the Pledged Equity and the Pledged Debt; (e) subject to Section 2.06, all rights and privileges of such Grantor with respect to the securities and other property referred to in clauses (a), (b), (c) and (d) above; and (f) all Proceeds of, and Security Entitlements in respect of, any of the foregoing (the items referred to in clauses (a) through (f) above being collectively referred to as the “Pledged Collateral”); provided that the Pledged Collateral shall not include any item referred to in clauses (a) through (f) above if, for so long as and to the extent such item constitutes Excluded Property.

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SECTION 2.02. Delivery of the Pledged Collateral. (a) On the Closing Date (in the case of any Grantor that grants a Lien on any of its assets hereunder on the Closing Date) or on the date on which it signs and delivers a Pledge and Security Agreement Supplement (in the case of any other Grantor), each Grantor shall deliver or cause to be delivered to the Collateral Agent, for the benefit of the Secured Parties, any and all Pledged Securities (other than (i) any Uncertificated Securities, but only for so long as such Securities remain uncertificated, and (ii) certificates or instruments representing Equity Interests in any Subsidiary that is not a Material Subsidiary) to the extent such Pledged Securities, in the case of Promissory Notes and other Instruments evidencing Indebtedness, are required to be delivered pursuant to Section 2.02(b). Thereafter, whenever such Grantor acquires any other Pledged Security (other than (A) any Uncertificated Securities, but only for so long as such Uncertificated Securities remain uncertificated, and (B) certificates or instruments representing Equity Interests in any Subsidiary that is not a Material Subsidiary), such Grantor shall promptly, and in any event within 30 days (or such longer period as the Collateral Agent may agree to in writing), deliver or cause to be delivered to the Collateral Agent such Pledged Security as Collateral hereunder to the extent such Pledged Securities, in the case of Promissory Notes and Instruments evidencing Indebtedness, are required to be delivered pursuant to Section 2.02(b).

(b)         Each Grantor will cause (i) the Borrower and each Restricted Subsidiary to execute and deliver a counterpart of each of the Intercompany Note and the Intercompany Indebtedness Subordination Agreement and (ii) all Indebtedness for borrowed money in an aggregate principal amount of $1,000,000 or more owed to such Grantor by any other Person (other than the Borrower or a Restricted Subsidiary) to be evidenced by a duly executed Promissory Note, and shall cause each such Promissory Note, the Intercompany Note and each other Promissory Note (if any) evidencing any Indebtedness of the Borrower or any Restricted Subsidiary that is owing to such Grantor, to be pledged and delivered to the Collateral Agent, for the benefit of the Secured Parties, (A) on the date hereof, in the case of any such Indebtedness existing on the date hereof (or, in the case of any Grantor that becomes a party hereto after the date hereof, on the date such Grantor becomes a party hereto, in the case of any such Indebtedness existing on such date) or (B) promptly following the incurrence thereof, in the case of any such Indebtedness incurred after the date hereof (or such other date), in each case pursuant to the terms hereof.

(c)         Upon delivery to the Collateral Agent, (i) any Pledged Securities required to be delivered pursuant to Section 2.02(a) or 2.02(b) shall be accompanied by undated stock or note powers duly executed by the applicable Grantor in blank or other instruments of transfer reasonably satisfactory to the Collateral Agent and by such other instruments and documents as the Collateral Agent may reasonably request and (ii) all other property comprising part of the Pledged Collateral required to be delivered pursuant to Section 2.02(a) or 2.02(b) shall be accompanied by undated proper instruments of assignment duly executed by the applicable Grantor and such other instruments or documents as the Collateral Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing such Pledged Securities, which schedule shall be deemed to supplement Schedule I and be made a part hereof; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.

(d)         The assignment, pledge and security interest granted in Section 2.01 are granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Pledged Collateral.

SECTION 2.03. Representations and Warranties. Each Grantor, jointly and severally, represents and warrants, as to itself and the other Grantors, to and with the Collateral Agent, for the benefit of the Secured Parties, that:

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(a)         Schedule I correctly sets forth, as of the Closing Date and as of each date on which a supplement to Schedule I is delivered pursuant to Section 2.02(c) or 6.15, (i) all the Equity Interests owned by each Grantor, specifying the issuer and certificate number of (if applicable), and the number and percentage ownership represented by, such Equity Interests, and (ii) all the Pledged Debt of each Grantor, specifying the debtor thereof and the outstanding principal amount thereof as of the Closing Date, and includes all Equity Interests, Promissory Notes and Instruments required to be pledged by each Grantor hereunder in order to satisfy the Collateral and Guarantee Requirement;

(b)         the Pledged Equity issued by any Subsidiary and the Pledged Debt (solely with respect to Pledged Debt issued by a Person other than the Borrower or any Subsidiary, to the best of the Grantors’ knowledge) have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Equity (other than Pledged Equity consisting of limited liability company interests or partnership interests which, pursuant to the relevant organizational or formation documents, cannot be fully paid and non-assessable), are fully paid and non-assessable and (ii) in the case of Pledged Debt (solely with respect to Pledged Debt issued by a Person other than the Borrower or any Subsidiary, to the best of the Grantors’ knowledge), are legal, valid and binding obligations of the issuers thereof, subject to applicable Debtor Relief Laws and general principles of equity; and

(c)         each Grantor holds the Pledged Securities indicated on Schedule I as owned by such Grantor free and clear of all Liens, other than (i) Liens created by the Collateral Documents and (ii) other Permitted Liens.

SECTION 2.04. Certification of Limited Liability Company and Limited Partnership Interests. Each Grantor acknowledges and agrees that, to the extent any interest in any limited liability company or limited partnership controlled by any Grantor and pledged under Section 2.01 is a “security” within the meaning of Article 8 of the UCC and is governed by Article 8 of the UCC, such interest shall be represented by a certificate that is promptly delivered to the Collateral Agent pursuant to the terms hereof. Each Grantor further acknowledges and agrees that with respect to any interest in any limited liability company or limited partnership controlled on or after the date hereof by such Grantor and pledged hereunder that is not a “security” within the meaning of Article 8 of the UCC, such Grantor shall at no time elect to treat any such interest as a “security” within the meaning of Article 8 of the UCC, nor shall any such interest in any limited liability company or limited partnership controlled on or after the date hereof by such Grantor be represented by a certificate, unless such election and such interest is thereafter represented by a certificate that is promptly delivered to the Collateral Agent pursuant to the terms hereof.

SECTION 2.05. Registration in Nominee Name; Denominations. If an Event of Default shall occur and be continuing and, other than in the case of a Bankruptcy Event of Default, the Collateral Agent shall have notified the Borrower of its intent to exercise such rights, (a) the Collateral Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to cause each of the Pledged Securities to be transferred of record into the name of the Collateral Agent or into the name of its nominee (as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or assigned in blank or in favor of the Collateral Agent and (b) to the extent permitted by the documentation governing such Pledged Securities and applicable law, the Collateral Agent shall have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement. Each Grantor will promptly give to the Collateral Agent copies of any material notices received by it with respect to Pledged Securities registered in the name of such Grantor. Each Grantor will take any and all actions reasonably requested by the Collateral Agent to facilitate compliance with this Section 2.05.

SECTION 2.06. Voting Rights; Dividends and Interest. (a) Unless and until an Event of Default shall have occurred and be continuing and, other than in the case of a Bankruptcy Event of Default, the Collateral Agent shall have notified the Borrower that the rights of the Grantors under this Section 2.06 are being suspended:

(i)           Each Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Credit Documents.

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(ii)           The Collateral Agent shall promptly execute and deliver to each Grantor, or cause to be executed and delivered to such Grantor, all such proxies, powers of attorney and other instruments as such Grantor may reasonably request in writing for the purpose of enabling such Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to Section 2.06(a)(i), in each case as shall be specified in such request.

(iii)           Each Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral, to the extent (and only to the extent) that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the other Credit Documents and applicable laws; provided that any noncash dividends, interest, principal or other distributions that would constitute Pledged Equity or Pledged Debt, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Collateral, and, if received by any Grantor, shall be held in trust for the benefit of the Collateral Agent and the applicable Secured Parties and shall, if certificated and to the extent required by Section 2.02, be forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement reasonably requested by the Collateral Agent). So long as no Event of Default has occurred and is continuing, the Collateral Agent shall promptly deliver to each Grantor any Pledged Securities in its possession if requested to be delivered to the issuer thereof in connection with any exchange or redemption of such Pledged Securities.

(b)         Upon the occurrence and during the continuance of an Event of Default and, other than in the case of a Bankruptcy Event of Default, after the Collateral Agent shall have notified the Borrower of the suspension of the rights of the Grantors under Section 2.06(a)(iii), all rights of any Grantor to dividends, interest, principal or other distributions that such Grantor is authorized to receive pursuant to Section 2.06(a)(iii) shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions as part of the Pledged Collateral, subject to Section 2.07 and the last sentence of this Section 2.06(b). All dividends, interest, principal or other distributions received by any Grantor contrary to the provisions of this Section 2.06 shall be held in trust for the benefit of the Collateral Agent and the other Secured Parties and shall be forthwith delivered to the Collateral Agent upon demand in the same form as so received (with any necessary endorsement reasonably requested by the Collateral Agent). Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this Section 2.06(b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property, shall be held as security for the payment and performance of the Secured Obligations and shall be applied in accordance with the provisions of Section 5.02. After all Events of Default have been cured or waived, and the Borrower has delivered to the Collateral Agent a certificate of an Authorized Officer to such effect, the Collateral Agent shall promptly repay to each Grantor (without interest) all dividends, interest, principal or other distributions that such Grantor would otherwise be permitted to retain pursuant to the terms of Section 2.06(a)(iii) in the absence of an Event of Default and that remain in such account.

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(c)         Upon the occurrence and during the continuance of an Event of Default and, other than in the case of a Bankruptcy Event of Default, after the Collateral Agent shall have notified the Borrower of the suspension of the rights of the Grantors under Section 2.06(a)(i), all rights of any Grantor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to Section 2.06(a)(i), and the obligations of the Collateral Agent under Section 2.06(a)(ii), shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers subject to Section 2.07 and the last sentence of this Section 2.06(c); provided that, unless otherwise directed by the Requisite Lenders in writing, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Grantors to exercise such rights. After all Events of Default have been cured or waived, and the Borrower has delivered to the Collateral Agent a certificate of an Authorized Officer to such effect, each Grantor shall have the exclusive right to exercise the voting and/or consensual rights and powers that such Grantor would otherwise be entitled to exercise pursuant to the terms of Section 2.06(a)(i), and the obligations of the Collateral Agent under Section 2.06(a)(ii) shall be reinstated.

(d)         Any notice given by the Collateral Agent to the Borrower under Section 2.05 or Section 2.06(a) (i) may be given by telephone if promptly confirmed in writing, (ii) may be given with respect to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under Section 2.06(a)(i) or 2.06(a)(iii) in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.

SECTION 2.07. Collateral Agent Not a Partner or Limited Liability Company Member. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, and neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the absolute owner of Pledged Equity consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.

ARTICLE III

SECURITY INTERESTS IN PERSONAL PROPERTY

SECTION 3.01. Security Interest. (a) As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, all right, title and interest in, to and under any and all of the following assets and properties now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):

(i)           all Accounts;

(ii)           all Chattel Paper;

(iii)           all Documents;

(iv)           all Equipment;

(v)           all General Intangibles, including all Intellectual Property, all Licenses and all Payment Intangibles;

(vi)           all Instruments;

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(vii)           all Inventory;

(viii)          all Goods and Fixtures;

(ix)           all Investment Property;

(x)           all Money, cash, cash equivalents, Deposit Accounts and Securities Accounts;

(xi)           all Letter-of-Credit Rights;

(xii)           all Commercial Tort Claims described on Schedule II from time to time, as such Schedule may be supplemented from time to time pursuant to Section 3.04(c);

(xiii)          all Supporting Obligations;

(xiv)           all Security Entitlements in any or all of the foregoing;

(xv)           all books and records pertaining to the Article 9 Collateral; and

(xvi)          to the extent not otherwise included above, all Proceeds and products of any and all of the foregoing (including proceeds of all insurance policies) and all collateral security and guarantees given by any Person with respect to any of the foregoing.

(b)         Notwithstanding anything herein to the contrary, if, for so long and to the extent as any asset constitutes Excluded Property, the Security Interest granted under this Section 3.01 shall not attach to, and Article 9 Collateral shall not include, such asset; provided, however, that the Security Interest shall immediately attach to, and Article 9 Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.

(c)         Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings and transmitting utility filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect and (ii) contain the information required by Article 9 of the UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (A) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor, (B) whether such Grantor is a transmitting utility and (C) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon reasonable request. Each Grantor hereby ratifies its authorization for the Collateral Agent (or its designee) to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.

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(d)         Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by such Grantor hereunder, without the signature of such Grantor, and naming such Grantor, as debtor, and the Collateral Agent, as secured party.

(e)         The Security Interest and the security interest granted pursuant to Article II are granted as security only and, except as expressly set forth herein, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral.

(f)         Notwithstanding anything to the contrary herein, to the extent this Agreement or any other Credit Document purports to grant or to require any Grantor to grant to the Collateral Agent a security interest in any License, the Collateral Agent shall only have a security interest in such License at such times and to the extent that a security interest in such License is permitted under applicable law, including the applicable Communications Law. The Security Interest granted in Proceeds of such License is intended to include, and hereby includes, the economic value of the Licenses, all rights incident or appurtenant to the Licenses and the right to receive all monies and consideration derived from or in connection with the sale, assignment or lease of or the transfer of control over the Licenses. If at any time in the future the Communications Law permits any Grantor to grant a security interest in any License, this Agreement shall be deemed to grant a security interest in such License immediately thereupon without any further action by or notice to any Grantor, the Collateral Agent or any Lender or other Secured 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 the Collateral Agent.

SECTION 3.02. Representations and Warranties. (a) Each Grantor, jointly and severally, represents and warrants, as to itself and the other Grantors, to the Collateral Agent for the benefit of the Secured Parties that:

(b)         Each Grantor has good and valid rights in (not subject to any Liens other than Permitted Liens) and/or good and marketable title in the Article 9 Collateral with respect to which it has purported to grant a Security Interest hereunder, and has full power and authority to grant to the Collateral Agent the Security Interest in such Article 9 Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person other than any consent or approval that has been obtained.

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(c)         The information set forth in the Collateral Questionnaire, including the exact legal name of each Grantor and its jurisdiction of organization, is correct and complete in all material respects as of the Closing Date. The UCC financing statements prepared by or on behalf of the Grantors based upon the information provided in the Collateral Questionnaire (or specified by notice from the applicable Grantor to the Collateral Agent after the Closing Date in the case of filings, recordings or registrations required by Section 5.10 or 5.11 of the Credit Agreement) are all the filings, recordings and registrations (other than any filings required to be made in the United States Patent and Trademark Office and the United States Copyright Office in order to perfect the Security Interest in Article 9 Collateral consisting of United States registered Patents (and Patents for which United States applications for registration are pending), United States registered Trademarks (and Trademarks for which United States applications for registration are pending), United States registered Copyrights (and Copyrights for which United States applications for registration are pending) and United States exclusive registered Copyright Licenses) that are necessary to establish a legal, valid and perfected security interest in favor of the Collateral Agent (for the benefit of the Secured Parties) in respect of all Article 9 Collateral in which the Security Interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the UCC. Each Grantor represents and warrants that, as of the Closing Date, fully executed copies of the Patent Security Agreement and the Trademark Security Agreement, in each case containing a description of all Article 9 Collateral consisting of United States registered Patents (and Patents for which registration applications are pending) and United States registered Trademarks (and Trademarks for which registration applications are pending), respectively, have been provided for recording by the United States Patent and Trademark Office pursuant to 35 U.S.C. § 261 or 15 U.S.C. § 1060 and the regulations thereunder.

(d)         The Security Interest constitutes (i) a legal and valid security interest in all the Article 9 Collateral securing the payment and performance of the Secured Obligations, (ii) subject to the filings described in Section 3.02(c), a perfected security interest in all Article 9 Collateral in which a security interest may be perfected by filing, recording or registering a financing statement in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the UCC and (iii) a security interest that shall be perfected in all Intellectual Property Collateral in which a security interest may be perfected upon the receipt and recording of the UCC financing statements in the relevant filing offices and the relevant Copyright Security Agreement, Patent Security Agreement and/or Trademark Security Agreement, as applicable (the “Intellectual Property Security Agreements”), with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. The Security Interest is and shall be prior to any other Lien on any of the Article 9 Collateral in existence on the date hereof, other than Permitted Liens (excluding Permitted Liens that are required to be junior to the Security Interest) that are contemplated by Section 6.2 of the Credit Agreement.

(e)         The Article 9 Collateral is owned by the Grantors free and clear of any Lien, except for Permitted Liens. None of the Grantors has filed or consented to the filing of (i) any financing statement or analogous document under the UCC or any other applicable laws covering any Article 9 Collateral, (ii) any assignment in which any Grantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with the United States Patent and Trademark Office or the United States Copyright Office, (iii) any notice under the Assignment of Claims Act or (iv) any assignment in which any Grantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, for Permitted Liens.

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SECTION 3.03. Covenants. (a) Each Grantor shall, at its own expense, take any and all commercially reasonable actions necessary to defend title to the Article 9 Collateral against all Persons and to defend the Security Interest of the Collateral Agent in the Article 9 Collateral and the priority thereof against any Lien other than a Permitted Lien.

(b)         Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Collateral Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any reasonable and documented or invoiced out-of-pocket fees and Taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements (including fixture filings and transmitting utility filings) or other documents in connection herewith or therewith. Each Grantor will provide to the Collateral Agent, from time to time upon request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created pursuant to this Agreement.

(c)         Each Grantor agrees to maintain, at its own cost and expense, such complete and accurate records with respect to the Article 9 Collateral owned by it as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged, and, at such time or times as the Collateral Agent may reasonably request, promptly to prepare and deliver to the Collateral Agent a duly certified schedule or schedules in form and detail reasonably satisfactory to the Collateral Agent showing the identity, amount and location of any and all Article 9 Collateral. In addition, subject to Section 5.6 of the Credit Agreement, the Collateral Agent and such Persons as the Collateral Agent may reasonably designate shall have the right, at the Grantors’ own cost and expense, to inspect the Article 9 Collateral, all records (including its records in respect of accounts receivables) related thereto (and to make extracts and copies from such records) and the premises upon which any of the Article 9 Collateral is located, to discuss the Grantors’ affairs with the officers of the Grantors and their independent registered public accounting firm and to verify, in the manner and under the procedures determined by the Collateral Agent in good faith to be reasonable, the identity, validity, amount, quality, quantity, value, condition, location and status of, or any other matter relating to, the Article 9 Collateral, including Accounts and Payment Intangibles, provided that unless an Event of Default has occurred and is continuing, the Collateral Agent may not contact Account Debtors or other third parties without the prior written consent of the relevant Grantor.

(d)         At its option, the Collateral Agent may, but shall not be obligated to, discharge past due Taxes, assessments, charges, fees and Liens at any time levied or placed on the Article 9 Collateral and not permitted by the Credit Agreement, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Grantor fails to do so as required by the Credit Agreement or this Agreement, and each Grantor jointly and severally agrees to reimburse the Collateral Agent within 10 Business Days after demand for any payment made or any reasonable expense incurred by the Collateral Agent pursuant to the foregoing authorization (and any such payment made or expense incurred shall be additional Secured Obligations secured hereby). Nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees and Liens and maintenance as set forth herein or in the other Credit Documents.

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(e)         Each Grantor (rather than the Collateral Agent or any other Secured Party) shall remain liable (as between itself and any relevant counterparty) to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Article 9 Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the other Secured Parties from and against any and all liability for such performance.

(f)         None of the Grantors shall make or permit to be made any transfer of the Article 9 Collateral and each Grantor shall remain at all times in possession or control of the Article 9 Collateral owned by it, in each case, except that unless and until the Collateral Agent shall notify the Grantors that an Event of Default shall have occurred and be continuing and that during the continuance thereof the Grantors shall not sell, convey, lease, assign, transfer or otherwise dispose of any Article 9 Collateral (which notice may be given by telephone if promptly confirmed in writing), the Grantors may use, transfer and dispose of the Article 9 Collateral in any lawful manner not inconsistent with the provisions of this Agreement, the Credit Agreement or any other Credit Document.

(g)         None of the Grantors will, without the Collateral Agent’s prior written consent, grant any extension of the time of payment of any Accounts or Payment Intangibles included in the Article 9 Collateral, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than extensions, compromises, settlements, releases, credits or discounts granted or made in the ordinary course of business and in accordance with past practice or in connection with any proceeding under any Debtor Relief Laws.

(h)         The Grantors, at their own expense, shall maintain or cause to be maintained insurance in accordance with the requirements set forth in Section 5.5 of the Credit Agreement. Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and its designees) as such Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, upon the occurrence and during the continuance of an Event of Default, of making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required pursuant to Section 5.5 of the Credit Agreement, or to pay any premium in whole or part relating thereto, the Collateral Agent may, but shall not be obligated to, without waiving or releasing any obligation or liability of the Grantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent deems advisable. All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable by the Grantors to the Collateral Agent within 10 Business Days after demand and shall be additional Secured Obligations secured hereby.

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SECTION 3.04. Other Actions. In order to further insure the attachment, perfection and priority of, and the ability of the Collateral Agent to enforce, the Security Interest, each Grantor agrees, in each case at such Grantor’s own expense, to take the following actions with respect to the following Article 9 Collateral:

(a)         Instruments. Subject to Article II, if any Grantor shall at any time hold or acquire any Instrument constituting Collateral and evidencing an amount equal to or in excess of $1,000,000 such Grantor shall forthwith endorse, assign and deliver the same to the Collateral Agent for the benefit of the Secured Parties, accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably request.

(b)         Investment Property. Except to the extent otherwise provided in Article II, if any Grantor shall at any time hold or acquire any Pledged Equity that consists of Certificated Securities, such Grantor shall forthwith endorse, assign and deliver the same to the Collateral Agent for the benefit of the applicable Secured Parties, accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably request.

(c)         Commercial Tort Claims. If any Grantor shall at any time after the date of this Agreement acquire a Commercial Tort Claim as to which the claim thereunder is $2,000,000 or more, such Grantor shall promptly notify the Collateral Agent thereof in a writing signed by such Grantor and provide supplements to Schedule II describing the details thereof and shall grant to the Collateral Agent a security interest therein and in the proceeds thereof, all upon the terms of this Agreement. In the event any Supplemental Collateral Questionnaire or Pledge and Security Agreement Supplement shall set forth any Commercial Tort Claim, Schedule II shall be deemed to be supplemented to include the reference to such Commercial Tort Claim (and the description thereof), in the same form as such reference and description are set forth on such Supplemental Collateral Questionnaire or Pledge and Security Agreement Supplement.

ARTICLE IV

SPECIAL PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL

SECTION 4.01. Grant of License to Use Intellectual Property. Without limiting the provisions of Section 3.01 or any other rights of the Collateral Agent as the holder of a Security Interest in any Intellectual Property Collateral, for the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable, nonexclusive license (exercisable without payment of rent, royalty or other compensation to the Grantors) to use, license or sublicense any of the Intellectual Property Collateral now owned or hereafter acquired by such Grantor, and wherever the same may be located (whether or not any license agreement by and between any Grantor and any other Person relating to the use of such Intellectual Property Collateral may be terminated hereafter), and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof and, to the extent permitted by applicable law, the right to prosecute and maintain all Intellectual Property Collateral and the right to sue for infringement of the Intellectual Property Collateral. The use of such license by the Collateral Agent may only be exercised, at the option of the Collateral Agent, during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon the Grantors notwithstanding any subsequent cure of an Event of Default. Each Grantor further agrees to cooperate with the Collateral Agent in any attempt to prosecute or maintain the Intellectual Property Collateral or sue for infringement of the Intellectual Property Collateral.

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SECTION 4.02. Protection of Collateral. (a) Except to the extent permitted by Section 4.02(e), or to the extent that failure to act could not reasonably be expected to have a Material Adverse Effect, with respect to registration or pending application of each item of its Intellectual Property Collateral for which such Grantor has standing to do so, each Grantor agrees to take, at its expense, all steps, including in the U.S. Patent and Trademark Office, the U.S. Copyright Office and any other Governmental Authority located in the United States, (i) to maintain the validity and enforceability of any registered Intellectual Property Collateral and maintain such Intellectual Property Collateral in full force and effect, and (ii) to pursue the registration and maintenance of each Patent, Trademark, or Copyright registration or application, now or hereafter included in such Intellectual Property Collateral of such Grantor, including the payment of required fees and taxes, the filing of responses to office actions issued by the U.S. Patent and Trademark Office, the U.S. Copyright Office or other Governmental Authorities, the filing of applications for renewal or extension, the filing of affidavits under Sections 8 and 15 of the U.S. Trademark Act, the filing of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions, the payment of maintenance fees and the participation in interference, reexamination, opposition, cancellation, infringement and misappropriation proceedings.

(b)         Except to the extent permitted by Section 4.02(e), or to the extent that failure to act could not reasonably be expected to have a Material Adverse Effect, no Grantor shall do or permit any act or knowingly omit to do any act whereby any of its Intellectual Property Collateral may lapse, be terminated, or become invalid or unenforceable or placed in the public domain (or, in case of a trade secret, lose its competitive value).

(c)         Except to the extent permitted by Section 4.02(e), or to the extent that failure to act could not reasonably be expected to have a Material Adverse Effect, each Grantor shall take all steps to preserve and protect each item of its Intellectual Property Collateral, including maintaining the quality of any and all products or services used or provided in connection with any of the Trademarks, consistent with the quality of the products and services as of the date hereof, and taking all steps necessary to ensure that all licensed users of any of the Trademarks abide by the applicable license’s terms with respect to the standards of quality.

(d)         Each Grantor agrees that, should it obtain an ownership or other interest in any Intellectual Property Collateral after the Closing Date (the “After-Acquired Intellectual Property”) (i) the provisions of this Agreement shall automatically apply thereto, and (ii) any such After-Acquired Intellectual Property and, in the case of Trademarks, the goodwill symbolized thereby, shall automatically become part of the Intellectual Property Collateral subject to the terms and conditions of this Agreement with respect thereto.

(e)         Notwithstanding the foregoing provisions of this Section 4.02 or elsewhere in this Agreement, nothing in this Agreement shall prevent any Grantor from discontinuing the use or maintenance of any of its Intellectual Property Collateral, the enforcement of license agreements or the pursuit of actions against infringers, to the extent permitted by the Credit Agreement if such Grantor determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business.

(f)         Upon and during the continuance of an Event of Default, each Grantor shall, if requested by the Collateral Agent, use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor of each Intellectual Property License to effect the assignment of all such Grantor’s right, title and interest thereunder to the Collateral Agent or its designee.

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ARTICLE V

REMEDIES

SECTION 5.01. Remedies Upon Default.  Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Collateral Agent shall have the right to exercise any and all rights afforded to a secured party with respect to the Secured Obligations under this Agreement, the UCC or other applicable law, and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased (it being acknowledged and agreed that the Grantors are not required to obtain any waiver or consent from any owner of such leased premises in connection with such occupancy or attempted occupancy) by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) withdraw any and all cash or other Collateral from any Deposit Account or Securities Account and apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in Section 5.02; (v) subject to the mandatory requirements of applicable law and the notice requirements described below, sell or otherwise dispose of all or any part of the Collateral securing the Secured Obligations at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate; and (vi) with respect to any Intellectual Property Collateral, on demand, cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Intellectual Property Collateral by the applicable Grantors to the Collateral Agent, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Intellectual Property Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine, provided, however, that such terms shall include all terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the Intellectual Property Collateral at issue, such as, without limitation, notice, quality control and inurement provisions with regard to trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and confidentiality protections for trade secrets. Each Grantor acknowledges and recognizes that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, (b) private sales so made may be at prices and upon other terms less favorable to the seller than if such securities were sold at public sales, (c) neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Collateral for the period of time necessary to permit such securities to be registered for public sale under the Securities Act or the Blue Sky Laws and (d) private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. To the maximum extent permitted by applicable law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any sale of Collateral 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 appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

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The Collateral Agent shall give the applicable Grantors 10 days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice (if any) of such sale. The Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. In the event of a foreclosure, exercise of a power of sale or a similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code, any analogous Debtor Relief Laws or any law relating to the granting or perfection of security interests), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code, any analogous Debtor Relief Laws or any law relating to the granting or perfection of security interests) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Requisite Lenders and in accordance with Section 9.8(b) of the Credit Agreement, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold or licensed at any such sale or other disposition, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition. For purposes of determining the Grantors’ rights in the Collateral, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, the Collateral Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full, provided, however, that such terms shall include terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the Intellectual Property Collateral at issue, such as, without limitation, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and protecting the confidentiality of trade secrets. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court appointed receiver. Any sale pursuant to the provisions of this Section 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the UCC or its equivalent in other jurisdictions.

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SECTION 5.02. Application of Proceeds. Subject to any Permitted Intercreditor Agreement then in effect, the Collateral Agent shall apply the proceeds of any collection or sale of Collateral, including any Collateral consisting of cash, as follows:

FIRST, to the payment of all costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection, sale, foreclosure or realization or otherwise in connection with this Agreement, any other Credit Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Administrative Agent hereunder or under any other Credit Document on behalf of any Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Credit Document;

SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and

THIRD, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct.

The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. It is understood and agreed that the Grantors shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations, including any attorney’s fees and other expenses incurred by the Collateral Agent or any other Secured Party to collect such deficiencies.

ARTICLE VI

MISCELLANEOUS

SECTION 6.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 10.1 of the Credit Agreement. All communications and notices hereunder to a Grantor other than the Borrower shall be given to it in care of the Borrower.

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SECTION 6.02. Waivers; Amendment. (a) No failure or delay on the part of any Agent, any Arranger or any Lender in exercising any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver thereof or of any Default or Event of Default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege, or any abandonment or discontinuance of steps to enforce such power, right or privilege, preclude any other or further exercise thereof or the exercise of any other power, right or privilege. The powers, rights, privileges and remedies of the Agents, the Arrangers and the Lenders hereunder and under the other Credit Documents are cumulative and shall be in addition to and independent of all powers, rights, privileges and remedies they would otherwise have. Without limiting the generality of the foregoing, the execution and delivery of this Agreement or any other Credit Document or the making of any Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Agent, any Arranger or any Lender may have had notice or knowledge of such Default or Event of Default at the time. No waiver of any provision of this Agreement or consent to any departure by any Grantor therefrom shall in any event be effective unless the same shall be permitted by Section 6.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given

(b)         Subject to any Permitted Intercreditor Agreement then in effect, neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Grantor or Grantors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 10.5 of the Credit Agreement.

SECTION 6.03. Collateral Agent’s Fees and Expenses; Indemnification. (a) The parties hereto agree that the Collateral Agent shall be entitled to reimbursement of its reasonable and documented out-of-pocket expenses incurred hereunder as provided in Section 10.2 of the Credit Agreement.

(b)         Without limitation of its indemnification obligations under the other Credit Documents, each Grantor, jointly and severally, agrees to indemnify the Collateral Agent and the other Indemnitees against, and hold each Indemnitee harmless from any and all Indemnified Liabilities incurred by or asserted against any such Indemnitee to the extent such Grantor would be required to do so pursuant to Section 10.3 of the Credit Agreement.

(c)         Any such amounts payable as provided hereunder shall be additional Secured Obligations secured hereby and by the other Collateral Documents. The provisions of this Section 6.03 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Credit Document, the consummation of the transactions contemplated hereby, the repayment of any of the Secured Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Credit Document, or any investigation made by or on behalf of the Collateral Agent or any other Secured Party. All amounts due under this Section 6.03 shall be payable promptly after written demand therefor.

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(d)         To the extent permitted by applicable law, no Grantor shall assert, and each Grantor hereby waives, any claim against any Agent, any Arranger, any Lender or any Related Party of any of the foregoing, on any theory of liability, for indirect, consequential, special or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or any 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 other Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, the syndication of the credit facilities provided for in the Credit Agreement, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Grantor hereby waives, releases and agrees not to sue upon any such claim for indirect, consequential, special or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

(e)         Each Grantor agrees that none of any Agent, any Arranger, any Lender or any Related Party of any of the foregoing will have any liability to any Grantor or any Person asserting claims on behalf of or in right of any Grantor or any other Person in connection with or as a result of this Agreement or any other Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith except (but subject to Section 6.03(d)), in the case of any Grantor, to the extent that any losses, claims, damages, liabilities or expenses have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (i) the gross negligence or willful misconduct of such Agent, such Arranger or such Lender or its Related Parties in performing its express obligations under this Agreement or any other Credit Document or (ii) a material breach in bad faith by such Agent, Arranger or Lender or its Related Parties of its express obligations under the Credit Agreement.

SECTION 6.04. 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.

SECTION 6.05. Survival of Agreement. All covenants, agreements, representations and warranties made by the Credit Parties in this Agreement and in the certificates or other documents delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Agents, the Arrangers and the Lenders and shall survive the execution and delivery of this Agreement and the making of any Loans, regardless of any investigation made by any Agent, any Arranger and any Lender or on its behalf and notwithstanding that any Agent, any Arranger or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time this Agreement is executed and delivered or any credit is extended under the Credit Agreement. Such covenants and agreements made by the Credit Parties shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under the Credit Agreement or any other Credit Document is outstanding and unpaid and so long as the Commitments have not expired or terminated.

SECTION 6.06. Counterparts; Effectiveness; Several Agreement. 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. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall become effective as to any Grantor when a counterpart hereof executed on behalf of such Grantor shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such Grantor and the Collateral Agent and their respective permitted successors and assigns, and shall inure to the benefit of such Grantor, the Collateral Agent and the other Secured Parties and their respective permitted successors and assigns, except that no Grantor shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement or the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each Grantor and may be amended, modified, supplemented, waived or released with respect to any Grantor without the approval of any other Grantor and without affecting the obligations of any other Grantor hereunder.

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SECTION 6.07. Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

SECTION 6.08. Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default each Lender is hereby authorized by each Grantor at any time or from time to time, without notice to any Grantor, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender to or for the credit or the account of any Grantor against and on account of the obligations and liabilities of any Grantor to such Lender hereunder and under the other Credit Documents, including all claims of any nature or description arising out of or connected hereto or thereto, irrespective of whether or not (a) such Lender shall have made any demand hereunder or under the other Credit Documents or (b) the principal of or the interest on the Loans or any other amounts due hereunder or under any other Credit Document shall have become due and payable and although such obligations and liabilities, or any of them, may be contingent or unmatured.

SECTION 6.09. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 6.10. CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) BELOW, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING HERETO OR ANY OTHER COLLATERAL DOCUMENT, OR ANY OF THE SECURED OBLIGATIONS, SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (E) BELOW); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 6.01; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE GRANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, THE ARRANGER AND THE LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS HEREUNDER OR UNDER ANY OTHER COLLATERAL DOCUMENT OR ANY EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

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SECTION 6.11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR THE 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 TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO 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 6.11 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

SECTION 6.12. Headings. Article and Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

SECTION 6.13. Marshalling; Payments Set Aside

. None of the Agents, the Arrangers or the Lenders shall be under any obligation to marshal any assets in favor of any Grantor or any other Person or against or in payment of any or all of the Secured Obligations. To the extent that any Grantor makes a payment or payments to any Agent, any Arranger or any Lender (or to the Administrative Agent or the Collateral Agent, on behalf of any Agent, any Arranger or any Lender), or any Agent, any Arranger or any Lender enforces any security interests or exercises any right 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, preferential or at undervalue, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Laws, any other state 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.

SECTION 6.14. Security Interest Absolute. All rights of the Collateral Agent hereunder, the Security Interest, the grant of a security interest in the Pledged Collateral and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Credit Document, any agreement with respect to any of the Secured Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Credit Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Secured Obligations or (d) subject only to termination of a Grantor’s obligations hereunder in accordance with the terms of Section 9.8 of the Credit Agreement, but without prejudice to reinstatement rights under Section 7.9 of the Credit Agreement, any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Secured Obligations or this Agreement.

24

SECTION 6.15. Termination or Release. (a) This Agreement, the Security Interest and all other security interests granted hereby shall terminate with respect to all Secured Obligations when all Secured Obligations (excluding contingent obligations as to which no claim has been made) have been paid in full and all Commitments have terminated.

(b)         A Guarantor Subsidiary shall automatically be released from its obligations hereunder and the Security Interest in the Collateral of such Guarantor Subsidiary shall be automatically released in the circumstances set forth in Section 9.8(d) of the Credit Agreement.

(c)         The Security Interest in any Collateral shall be automatically released in the circumstances set forth in Section 9.8(d) of the Credit Agreement.

(d)         In connection with any termination or release pursuant to Section 6.15(a), 6.15(b) or 6.15(c), the Collateral Agent shall promptly (i) execute and deliver to any Grantor, at such Grantor’s expense, all documents that such Grantor shall reasonably request to evidence such termination or release and (ii) subject to the provisions of any Permitted Intercreditor Agreement, return or cause to be returned to such Grantor all Collateral that is subject to such release and is held or controlled by the Collateral Agent. Any execution and delivery of documents, or performing of other actions, pursuant to this Section 6.15 shall be without recourse to or warranty by the Collateral Agent.

(e)         At any time that any Grantor desires that the Collateral Agent take any action described in Section 6.15(d), such Grantor shall, upon request of the Collateral Agent, deliver to the Collateral Agent a certificate of an Authorized Officer of the Borrower certifying that the release of the applicable Collateral is permitted pursuant to Section 6.15(a), 6.15(b) or 6.15(c). The Collateral Agent shall have no liability whatsoever to any Secured Party as the result of any release of any Collateral by it as permitted (or which the Collateral Agent in good faith believes to be permitted) by this Section 6.15.

SECTION 6.16. Additional Grantors. Pursuant to Section 5.10 of the Credit Agreement, certain Restricted Subsidiaries of the Borrower may or are required to enter in this Agreement from time to time as Grantors. Upon execution and delivery by the Collateral Agent and a Restricted Subsidiary of a Pledge and Security Agreement Supplement, such Restricted Subsidiary shall become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of any Pledge and Security Agreement Supplement shall not require the consent of any other Grantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.

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SECTION 6.17. Collateral Agent Appointed Attorney-in-Fact. Each Grantor hereby appoints the Collateral Agent the true and lawful attorney-in-fact of such Grantor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof at any time after the occurrence and during the continuance of an Event of Default, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Collateral Agent’s name or in the name of such Grantor: (a) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to sign the name of any Grantor on any invoice or bill of lading relating to any of the Collateral; (d) to send verifications of Accounts or Payment Intangibles to any Account Debtor; (e) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (f) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (g) to notify, or to require any Grantor to notify, Account Debtors to make payment directly to the Collateral Agent or to a Collateral Account and adjust, settle or compromise the amount of payment of any Account or Payment Intangible; (h) to make, settle and adjust claims in respect of Collateral under policies of insurance and to endorse the name of such Grantor on any check, draft, instrument or any other item of payment with respect to the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto; and (i) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes; provided that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and none of the Collateral Agent, any other Secured Party or any Related Party of any of the foregoing shall be responsible to any Grantor for any act or failure to act hereunder, except for its own gross negligence or willful misconduct or a material breach in bad faith by it of its express obligations under this Agreement, in each case, as determined by the final non-appealable judgment of a court of competent jurisdiction. Notwithstanding anything to the contrary contained herein or in any other Credit Document, neither the Administrative Agent nor the Collateral Agent shall have any responsibility for the preparing, recording, filing, re-recording or re-filing of any financing statements (amendments or continuations) or other instruments in any public office.

SECTION 6.18. General Authority of the Collateral Agent. By acceptance of the benefits of this Agreement and any other Collateral Documents, each Secured Party (whether or not a signatory hereto) shall be deemed irrevocably (a) to consent to the appointment of the Collateral Agent as its agent hereunder and under such other Collateral Documents, (b) to confirm that the Collateral Agent shall have the authority to act as the exclusive agent of such Secured Party for the enforcement of any provisions of this Agreement and such other Collateral Documents against any Grantor, the exercise of remedies hereunder or thereunder and the giving or withholding of any consent or approval hereunder or thereunder relating to any Collateral or any Grantor’s obligations with respect thereto, (c) to agree that it shall not take any action to enforce any provisions of this Agreement or any other Collateral Document against any Grantor, to exercise any remedy hereunder or thereunder or to give any consents or approvals hereunder or thereunder except as expressly provided in this Agreement or any other Collateral Document and (d) to agree to be bound by the terms of this Agreement, any other Collateral Documents and any Permitted Intercreditor Agreement then in effect. BY ACCEPTING THE BENEFITS OF THIS AGREEMENT AND THE SECURITY INTERESTS CREATED HEREBY, EACH SECURED PARTY ACKNOWLEDGES THE PROVISIONS OF SECTION 9 OF THE CREDIT AGREEMENT, INCLUDING THE RIGHTS, POWERS, PRIVILEGES, PROTECTIONS, INDEMNITIES AND IMMUNITIES OF THE AGENTS, AND AGREES TO BE BOUND BY SUCH PROVISIONS AS FULLY AS IF THEY WERE SET FORTH HEREIN.

26

SECTION 6.19. Recourse. This Agreement is made with full recourse to each Grantor and pursuant to and upon all the warranties, representations, covenants and agreements on the part of such Grantor contained herein, in the Credit Agreement and the other Credit Documents and otherwise in writing in connection herewith or therewith, with respect to the Secured Obligations of each applicable Secured Party. It is the desire and intent of each Grantor and each Secured Party that this Agreement shall be enforced against each Grantor to the fullest extent permissible under the laws applied in each jurisdiction in which enforcement is sought.

SECTION 6.20. Mortgages. In the event that any of the Collateral hereunder is also subject to a valid and enforceable Lien under the terms of a Mortgage and the terms thereof are inconsistent with the terms of this Agreement, then with respect to such Collateral, the terms of such Mortgage shall control in the case of Fixtures and Real Estate Asset leases, letting and licenses of, and contracts, and agreements relating to the lease of, Real Estate Assets, and the terms of this Agreement shall control in the case of all other Collateral.

SECTION 6.21. Permitted Intercreditor Agreements. (a) Notwithstanding anything to the contrary herein, the Liens granted to the Collateral Agent under this Agreement and the exercise of the rights and remedies of the Collateral Agent hereunder and under any of the other Collateral Documents are subject to the provisions of the Intercreditor Agreement and any other Permitted Intercreditor Agreement then in effect. Notwithstanding anything to the contrary herein, the Collateral Agent acknowledges and agrees that no Grantor shall be required to take or refrain from taking any action at the request of the Collateral Agent with respect to the Collateral if such action or inaction would be inconsistent with the terms of any Permitted Intercreditor Agreement then in effect. In the event of any conflict or inconsistency between the provisions of the Intercreditor Agreement or any other Permitted Intercreditor Agreement then in effect and this Agreement, the provisions of the Intercreditor Agreement or such other Permitted Intercreditor Agreement, as applicable, shall control.

(b)         Notwithstanding anything to the contrary herein but subject to any Permitted Intercreditor Agreement then in effect, in the event that any Permitted Section 6.1(e) Indebtedness Document or any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness provides for the grant of a security interest or pledge over the assets of any Grantor and such assets do not otherwise constitute Collateral under this Agreement or any other Credit Document, such Grantor shall (i) promptly grant a security interest in or pledge such assets to secure the Secured Obligations, (ii) promptly take any actions necessary to perfect such security interest or pledge to the extent set forth in such Permitted Section 6.1(e) Indebtedness Document or such other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness and (iii) take all other steps reasonably requested by the Collateral Agent in connection with the foregoing.

(c)         Nothing contained in any Permitted Intercreditor Agreement shall be deemed to modify any of the provisions of this Agreement, which, as among the Grantors and the Collateral Agent, shall remain in full force and effect in accordance with its terms.

27

SECTION 6.22. Regulatory Matters. (a) Notwithstanding anything in any Credit Document to the contrary, the Collateral Agent, on behalf of the Secured Parties, agrees that to the extent prior FCC or State PUC approval is required pursuant to Communications Laws for (i) the operation and effectiveness of any right or remedy hereunder or under any other Collateral Document or (ii) taking any action that may be taken by the Collateral Agent hereunder or under the other Collateral Documents, such right, remedy or actions will be subject to any such prior FCC or State PUC, as applicable, approval having been obtained by or in favor of the Collateral Agent, on behalf of the Secured Parties. Notwithstanding anything herein to the contrary, the Collateral Agent, on behalf of the Secured Parties, acknowledges that, to the extent required by the FCC or any applicable State PUC, the voting rights in the Pledged Securities, as well as de jure, de facto and negative control over all FCC or State PUC authorizations, shall remain with the Grantors even if an Event of Default has occurred and is continuing until the FCC and/or State PUC(s), as applicable, shall have given its prior consent to the exercise of securityholder rights by a purchaser at a public or private sale of the Pledged Securities or to the exercise of such rights by a receiver, trustee, conservator or other agent duly appointed in accordance with the applicable law. The Grantors shall, upon the occurrence and during the continuance of an Event of Default, at the Collateral Agent’s request, file or cause to be filed such applications for approval and shall take such other actions reasonably required by the Collateral Agent to obtain each such FCC or State PUC approval or consent as is necessary to transfer ownership and control to the Collateral Agent, on behalf of the Secured Parties, or their successors, assigns or designees, of the Licenses held by the Grantors. To enforce the provisions of this Section 6.22, the Collateral Agent is empowered to request the appointment of a receiver from any court of competent jurisdiction. Such receiver shall be instructed to seek from the FCC and every applicable State PUC an involuntary transfer of control of any such License for the purpose of seeking a bona fide purchaser to whom control will ultimately be transferred. Upon the occurrence and during the continuance of an Event of Default, at the Collateral Agent’s request, the Grantors shall further use their reasonable best efforts to assist in obtaining approval of the FCC and/or applicable State PUC(s), if required, for any action or transactions contemplated hereby, including the preparation, execution and filing with the FCC and/or applicable State PUC(s) of the assignor’s or transferor’s portion of any application for consent to the assignment of any License or transfer of control, or notice of such assignment or transfer, as applicable, necessary or appropriate under the FCC’s and/or any applicable State PUC(s)’ rules and regulations for approval of the transfer or assignment of any portion of the Collateral, together with any License or other authorization.

(b)         The Grantors acknowledge that the assignment or transfer of Licenses is integral to the Secured Parties’ realization of the value of the Collateral, that there is no adequate remedy at law for failure by the Grantors to comply with the provisions of this Section 6.22 and that such failure would not be adequately compensable in damages, and therefore agree that this Section 6.22 may be specifically enforced.

(c)         Notwithstanding anything in this Agreement or in any other Credit Document to the contrary, neither the Collateral Agent nor any other Secured Party shall, without first obtaining the approval of the FCC and/or any applicable State PUC (where required), take any action hereunder or under any other Collateral Document that would constitute or result in any assignment of a License, change of material control or ownership of any Grantor, or any assignment or transfer of the material operating assets of any Grantor if such assignment, change of material control or ownership or assignment or transfer of material operating assets would require the approval of the FCC or any such applicable State PUC under applicable law (including the FCC’s and any such applicable State PUC’s rules and regulations).

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

FUSION CONNECT, INC.,

FUSION NBS ACQUISITION CORP.,

FUSION, LLC,

FUSION BCHI ACQUISITION LLC,

BIRCH COMMUNICATIONS, LLC,

CBEYOND, INC.,

CBEYOND COMMUNICATIONS, LLC,

BIRCH MANAGEMENT LLC

BIRCH TELECOM LLC,

BIRCH TEXAS HOLDINGS, INC.,

BIRCH TELECOM OF KANSAS, LLC,

BIRCH TELECOM OF OKLAHOMA, LLC,

BIRCH TELECOM OF MISSOURI, LLC,

BIRCH TELECOM OF TEXAS LTD., L.L.P.,

BIRCAN HOLDINGS, LLC

PRIMUS HOLDINGS, INC.

FUSION MPHC ACQUISITION CORP., as Grantors

By:	/s/ Kevin Dotts
	Name: Kevin Dotts
	Title: Executive Vice President, Chief Financial Officer and Principal Accounting Officer

[Signature Page to Fusion Second Lien Pledge and Security Agreement]

29

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent
By:	/s/ Jamie Roseberg
	Name: Jamie Roseberg Title: Banking Officer

[Signature Page to Fusion Second Lien Pledge and Security Agreement]

Schedule I

Pledged Equity; Pledged Debt

Pledged Equity:

Credit Party	Issuer	Type of Organization	Number of Shares/ Interests Owned	Total Shares/Interests Outstanding	Percentage of Interest Pledged	Certificate No. (if uncertificated, please indicate so)
Fusion Connect, Inc.	Fusion BCHI Acquisition LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Fusion Connect, Inc.	Fusion NBS Acquisition Corp.	C corp.	100	1	100%	1
Fusion NBS Acquisition Corp.	Fusion LLC	Limited Liability Company	1 Unit	1 Unit	100%	Uncertificated
Fusion BCHI Acquisition LLC	Birch Communications, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Cbeyond, Inc.	C corp.	100	100	100%	2
Cbeyond, Inc.	Cbeyond Communications, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Birch Telecom, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Birch Texas Holdings, Inc.	C corp.	100	100	100%	2
Birch Communications, LLC	Birch Telecom of Kansas, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Birch Telecom of Oklahoma, LLC	Limited Liability Company	N/A	N/A	100%	uncertificated
Birch Communications, LLC	Birch Telecom of Missouri, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Primus Holdings, Inc.	C corp.	100	100	100%	2
Birch Communications, LLC Is the 99% limited partner and Birch Texas Holdings, Inc. is the General Partner	Birch Telecom of Texas Ltd., L.L.P.	Limited Liability Partnership	N/A	N/A	100%	Uncertificated
Birch Communications, LLC	Bircan Holdings, LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Primus Holdings, Inc.	Primus Management ULC [Not a Credit Party]	Unlimited Liability Company	100	100	65%	C-2 C-3
Birch Communications, LLC	Birch Management LLC	Limited Liability Company	N/A	N/A	100%	Uncertificated
Fusion Connect, Inc.	Fusion MPHC Acquisition Corp.	C corp.	100	100	100%	1

Pledged Debt:

Credit Party	Debtor	Type of Instrument	Outstanding Principal Amount
All Credit Parties Fusion Connect, Inc. Fusion Connect, Inc.	All credit parties Fusion Global Services, LLC (to be renamed) Vector Fusion Holdings (Cayman) Ltd.	Intercompany note Secured Note Unsecured Note	N/A $613,748.71 $25,000,000

Schedule II

Commercial Tort Claims

None.

Schedule III

Intellectual Property

I. 

Copyrights/Copyright Applications

Registered Owner	Copyright	Registration/Application No.	Application Date/ Registration Date	Expiration Date
None.

II. 

Exclusive Copyright Licenses (where a Credit Party is a licensee)

Licensee	Licensor	Title	Registration Number	Expiration Date
None.

III. 

Patents/Patent Applications

Registered Owner	Patent	Application No./Registration No.	Application Date/ Registration Date	Expiration Date
Cbeyond Communications, LLC	Client Application	12369185 / 8219652	02/11/2009/ 07/10/2012	N/A
Cbeyond Communications, LLC	Data Storage Testing	12493546 / 9697210	06/29/2009/ 07/04/2017	N/A
Primus Holdings, Inc.	Call Screening System and Method	2597377 /2,597,377 (Canada)	08/15/2007/ 11/16/2010	N/A
Primus Holdings, Inc.	Call Screening System and Method	12/673,377 / 8577002 (US)	02/18/2011/ 11/05/2013	N/A

IV. 

Trademarks/Trademark Applications - USA

Registered Owner	Trademark	Registration No.	Registration Date	Next Renewal Date
Fusion Telecommunications International, Inc.	“Clear Connections in the Cloud”	4,775,318	July 21, 2015	July 21, 2021
PingTone Communications, Inc.	“PingTone Communications”	2,880,663	September 7, 2004	September 7, 2024
Apptix, Inc.	“Apptix”	4,054,446	November 15, 2011	November 15, 2021
Apptix, Inc.	“Cloud Alliance Network & Design”	4,780,287	July 28, 2015	July 28, 2025
Apptix, Inc.	“Cloud Alliance Network & Design”	4,780,288	July 28, 2015	July 28, 2025
Apptix, Inc.	“Cloud Alliance Network & Design”	4,861,836	September 15, 2015	December 1, 2025
Apptix, Inc.	“Mailstreet”	2,840,397	May 11, 2004	May 11, 2024
Apptix, Inc.	“Mailstreet”	4,054,447	November 15, 2011	November 15, 2021
Bircan Management ULC	“Telegroup”	2048650	April 1, 1997	Not renewed--Will be cancelled
Birch Communications, LLC	“Econsole”	86/081,954 4745290	May 26, 2015	May 26, 2025
Birch Telecom, LLC	“B Birch and design”	4826853	October 6, 2015	October 6, 2025
Birch Telecom, LLC	“Birch”	2467503	July 10, 2001	July 10, 2021
Birch Telecom, LLC	“Birch Branch Out”	4261286	December 18, 2012	December 18, 2022
Birch Telecom, LLC	“Birch Communications and design”	3549607	December 23, 2008	December 23, 2018
Birch Telecom, LLC	“Birch leaf logo”	N/A	Not registered	N/A
Birch Telecom, LLC	“Birch Power Merchant”	4397170	September 3, 2013	September 3, 2023
Birch Telecom, LLC	“Birch Telecom”	2186707	September 1, 1998	September 1, 2018
Birch Telecom, LLC	“Birch Telecom and design”	2325801	March 7, 2000	March 7, 2020
Birch Telecom, LLC	“Birchlink”	2962432	June 14, 2005	June 14, 2025
Birch Telecom, LLC	“Branch Out”	4261289	December 18, 2012	December 18, 2022
Birch Telecom, LLC	“Branch Out”	4261291	December 18, 2012	December 18, 2022
Birch Telecom, LLC	“Home Connection”	2908160	December 7, 2004	December 7, 2024
Birch Telecom, LLC	“Mighty Mouth”	2503776	November 6, 2001	November 6, 2021
Birch Telecom, LLC	“Service. Savings. Simplicity”	2616143	September 10, 2002	September 10, 2022
Birch Telecom, LLC	“Sp@ce Host”	2691468	February 25, 2003	February 25, 2023
Birch Telecom, LLC	“Sprawler”	3047178	January 24, 2006	January 24, 2026
Birch Telecom, LLC	“Your Business Best Friend”	2558118	April 9, 2002	April 9, 2022
Cbeyond Communications, LLC	“Beyondoffice”	2805009	February 27, 2003	January 13, 2024

Cbeyond Communications, LLC	“Beyondvoice”	2805009	January 13, 2004	January 13, 2024
Cbeyond Communications, LLC	“Beyondvoice”	2793909	December 16, 2003	December 16, 2023
Cbeyond Communications, LLC	“Beyondvoice”	2794512	December 16, 2003	December 16, 2023
Cbeyond Communications, LLC	“Beyondvoice I”	2763714	September 16, 2003	September 16, 2023
Cbeyond Communications, LLC	“Beyondvoice I”	2761638	September 9, 2003	September 9, 2023
Cbeyond Communications, LLC	“Beyondvoice II”	2763713	September 16, 2003	September 16, 2023
Cbeyond Communications, LLC	“Beyondvoice II”	2816962	February 24, 2004	February 24, 2024
Cbeyond Communications, LLC	“C and eye design”	2597070	July 23, 2002	July 23, 2022
Cbeyond Communications, LLC	“Connect Securely to Our Cloud Cbeyond This Building is Certified Cloud Ready at the Speed of Light	4528389	May 13, 2014	May 13, 2024
Cbeyond Communications, LLC	“Netpbx”	3600474	March 31, 2009	March 31, 2019
Cbeyond Communications, LLC	“Netsip”	3600503	March 31, 2009	March 31, 2019
Cbeyond Communications, LLC	“The Last Communications Company a Small Business Will Ever Need”	2671389	January 7, 2003	January 7, 2023
Cbeyond Communications, LLC	“Totalcloud”	4382713	August 13, 2013	August 13, 2023
Cbeyond Communications, LLC	“Totalnetwork”	4385711	August 13, 2013	August 13, 2023
Cbeyond Communications, LLC	“TotalVoice”	4441587	November 26, 2013	November 26, 2023
Cbeyond Communications, LLC	“Your Technology Ally”	4355485	June 18, 2013	June 18, 2023
Primus Holdings, Inc.	“Primus”	2679710	January 28, 2003	January 28, 2023
Primus Holdings, Inc.	“Primus”	2694591	March 11, 2003	March 11, 2023
Primus Holdings, Inc.	“Primus”	2194625	October 13, 1998	October 13, 2018
Primus Holdings, Inc.	“PTGI”	4226291	October 16, 2012	October 16, 2022
Primus Holdings, Inc.	“PTGI”	4195302	August 21, 2012	August 21, 2022
Bircan Holdings, LLC	“Telegroup”	2048650	April 1, 1997	April 1, 2027

EXHIBIT I

TO SECOND LIEN PLEDGE AND SECURITY AGREEMENT

[FORM OF] SUPPLEMENT NO. __, dated as of [   ] (this “Supplement”), to the Second Lien Pledge and Security Agreement dated as of May 4, 2018 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Pledge and Security Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), the other Grantors party thereto from time to time and Wilmington Trust, National Association (“Wilmington Trust”), as Collateral Agent for the Secured Parties.

Reference is made to the Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain Subsidiaries of the Borrower party thereto, the Lenders party thereto and Wilmington Trust, as Administrative Agent and Collateral Agent. Capitalized terms used in this Supplement and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement or the Pledge and Security Agreement, as applicable.

The Grantors have entered into the Pledge and Security Agreement in order to induce the Lenders to make Loans and other extensions of credit. Section 6.16 of the Pledge and Security Agreement provides that additional Restricted Subsidiaries of the Borrower may become Grantors under the Pledge and Security Agreement by execution and delivery of an instrument substantially in the form of this Supplement. The undersigned Restricted Subsidiary (the “New Subsidiary”) is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Grantor under the Pledge and Security Agreement in order to induce the Lenders to make additional Loans and other extensions of credit and as consideration for permitting to remain outstanding Loans and other extensions of credit previously made.

Accordingly, the Collateral Agent and the New Subsidiary agree as follows:

SECTION 1. In accordance with Section 6.16 of the Pledge and Security Agreement, the New Subsidiary by its signature below becomes a Grantor under the Pledge and Security Agreement with the same force and effect as if originally named therein as a Grantor, and the New Subsidiary hereby (a) agrees to all the terms and provisions of the Pledge and Security Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof (or, to the extent that such representations and warranties specifically refer to an earlier date, as of such earlier date). In furtherance of the foregoing, the New Subsidiary, as security for the payment and performance in full of the Secured Obligations hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest in, all of the New Subsidiary’s right, title and interest in, to and under the Collateral (as defined in the Pledge and Security Agreement) of the New Subsidiary, whether now owned or at any time hereafter acquired by the New Subsidiary or in which the New Subsidiary now has or at any time in the future may acquire any right, title or interest. Each reference to a “Grantor” in the Pledge and Security Agreement shall be deemed to include the New Subsidiary. The Pledge and Security Agreement is hereby incorporated herein by reference.

SECTION 2. The New Subsidiary represents and warrants to the Collateral Agent and the other Secured Parties that (a) the execution and delivery of this Supplement by it have been duly authorized by all necessary corporate or other organizational and, if required, stockholder or other equityholder action on the part of the New Subsidiary and (b) this Supplement has been duly executed and delivered by the New Subsidiary and is the legally valid and binding obligation of the New Subsidiary, enforceable against the New Subsidiary in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

SECTION 3. This Supplement 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. Delivery of an executed counterpart of a signature page of this Supplement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Supplement. This Supplement shall become effective when the Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary and the Collateral Agent has executed a counterpart hereof.

SECTION 4. The New Subsidiary hereby represents and warrants that (a) Schedule A hereto sets forth, as of the date hereof, the true and correct legal name of the New Subsidiary, its jurisdiction of organization and the location of its chief executive office, and whether the New Subsidiary is a transmitting utility (as defined in the UCC) and, if applicable, the location where its transmitting utility equipment is held, (b) Schedule B hereto sets forth (and such Schedule hereby supplements Schedule I set forth in the Pledge and Security Agreement), as of the date hereof, a true and complete list of (i) all the Pledged Equity of the New Subsidiary, specifying the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by such Pledged Equity, and (ii) all the Pledged Debt of the New Subsidiary, specifying the issuer thereof and the principal amount thereof as of the date hereof, and includes all Equity Interests, Promissory Notes and Instruments owned by the New Subsidiary required to be pledged hereunder in order to satisfy the Collateral and Guarantee Requirement, (c) Schedule C hereto sets forth, as of the date hereof, a true and complete list of (i) all Copyrights that have been registered and Copyrights for which registration applications are pending, (ii) all exclusive Copyright Licenses under which the New Subsidiary is a licensee, (iii) all Patents that have been granted and Patents for which applications are pending and (iv) all Trademarks that have been registered and Trademarks for which registration applications are pending and that, in each case, are owned by the New Subsidiary, in each case truly and completely specifying the name of the registered owner, title, type or mark, registration or application number, expiration date (if already registered) or filing date, a brief description thereof and, if applicable, the licensee and licensor and (d) Schedule D hereto sets forth, as of the date hereof, each Commercial Tort Claim of the New Subsidiary as to which the claim thereunder is $2,000,000 or more in existence on the date hereof.

SECTION 5. Except as expressly supplemented hereby, the Pledge and Security Agreement shall remain in full force and effect. This Supplement constitutes a Credit Document for all purpose of the Credit Agreement and the other Credit Documents.

SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 7. In case any provision in or obligation hereunder or under any other Credit 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.

SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 6.01 of the Pledge and Security Agreement.

SECTION 9. The New Subsidiary agrees to reimburse the Collateral Agent for its actual reasonable and documented out-of-pocket expenses in connection with this Supplement, including all reasonable and documented fees and expenses of counsel for the Collateral Agent.

IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have duly executed this Supplement to the Pledge and Security Agreement as of the day and year first above written.

[NAME OF NEW SUBSIDIARY],
by
	Name:
	Title:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent,
by
	Name: Title:

Schedule A

NEW SUBSIDIARY

Legal Name Jurisdiction of Organization Location of Chief Executive Office (including county) Transmitting utility? If so, jurisdiction where transmitting utility equipment is held

Schedule B

PLEDGED EQUITY; PLEDGED DEBT

EQUITY INTERESTS

Credit Party Issuer Type of Organization Number of Shares/Units Owned Total Shares/Units Outstanding Percentage of Interest Pledged Certificate No. (if uncertificated, please indicate so)

DEBT INSTRUMENTS

Credit Party Debtor Type of Instrument Outstanding Principal Amount

Schedule C

INTELLECTUAL PROPERTY

I.            

Copyrights and Copyright Applications

Property Description Registration Status

II.            

Exclusive Copyright Licenses (where the New Subsidiary is a licensee)

Licensee Licensor Title Registration Number Expiration Date

III.            

Patents

Title Country Type Registration Number Issue Date Expiration Date

IV.            

Patent Applications

Title Country Type Application Number Date Filed

V.            

Trademarks

Trademark Registration No./Application No. Application Date/Registration No. Goods/Services

VI.            

Trademark Applications

Trademark Application No. Filing Date

Schedule D

COMMERCIAL TORT CLAIMS

EXHIBIT II

TO SECOND LIEN PLEDGE AND SECURITY AGREEMENT

[FORM OF] SECOND LIEN COPYRIGHT SECURITY AGREEMENT, dated as of [__________], 20[__] (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among the ENTITIES IDENTIFIED AS GRANTORS ON THE SIGNATURE PAGES HERETO (collectively, the “Grantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Collateral Agent for the Secured Parties.

WHEREAS, the Grantors are party to the Second Lien Pledge and Security Agreement, dated as of May 4, 2018 (the “Pledge and Security Agreement”), among Fusion Connect, Inc., a Delaware corporation, the other Grantors party thereto from time to time and Wilmington Trust, as Collateral Agent, pursuant to which the Grantors granted a security interest to the Collateral Agent in the Copyright Collateral (as defined below) and are required to execute and deliver this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:

SECTION 1. Defined Terms.Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.

SECTION 2. Grant of Security Interest. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under any and all of the following assets now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Copyright Collateral”):

(a)           (i) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, whether registered or unregistered and whether published or unpublished, (ii) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations, pending applications for registration and renewals in the United States Copyright Office, including those listed on Schedule A under the heading “Copyright Registrations and Applications”, (iii) all rights and privileges arising under applicable law with respect to such Grantor’s use of such copyrights, (iv) all reissues, renewals, continuations and extensions thereof and amendments thereto, (v) all income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect to the foregoing, including damages and payments for past, present or future infringements thereof, (vi) all rights corresponding thereto throughout the world and (vii) all rights to sue for past, present or future infringements thereof; and

(b)           any and all written agreement, now or hereafter in effect, granting any right to any third party under any Copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any right to any Grantor under any Copyright now or hereafter owned by any third party, and all rights of such Grantor under any such agreement, including each such agreement set forth on Schedule A under the heading “Exclusive Copyright Licenses”.

Notwithstanding anything herein to the contrary, if, for so long and to the extent as any such asset constitutes Excluded Property, the security interest granted under this Section 2 shall not attach to, and the Copyright Collateral shall not include, such asset; provided, however, that the security interest granted under this Section 2 shall immediately attach to, and the Copyright Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.

SECTION 3. Security Agreement. The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Copyright Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.

SECTION 4. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 5. Counterparts. This Agreement may be executed in one or more counterparts and by different parties hereto in separate 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.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

[NAME OF GRANTOR]

By:

Name:

Title:

[ADD SIGNATURE BLOCKS FOR ANY OTHER GRANTORS]

[Signature Page to Second Lien Copyright Security Agreement]

Accepted and Agreed:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent,
by
	Name: Title:

[Signature Page to Second Lien Copyright Security Agreement]

SCHEDULE A

to

SECOND LIEN COPYRIGHT SECURITY AGREEMENT

Copyright Registrations and Applications

Registered Owner Property Description Registration Status

Exclusive Copyright Licenses (where a Grantor is a licensee)

Licensee Licensor Title Registration Number Expiration Date

EXHIBIT III

TO SECOND LIEN PLEDGE AND SECURITY AGREEMENT

SECOND LIEN PATENT SECURITY AGREEMENT, dated as of [__________], 20[__] (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is made among THE ENTITIES IDENTIFIED AS GRANTORS ON THE SIGNATURE PAGES HERETO (collectively, the “Grantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Collateral Agent for the Secured Parties.

WHEREAS, the Grantors are party to the Second Lien Pledge and Security Agreement, dated as of May 4, 2018 (the “Pledge and Security Agreement”), among Fusion Connect, Inc., a Delaware corporation, the other Grantors party thereto from time to time and Wilmington Trust, as Collateral Agent, pursuant to which the Grantors granted a security interest to the Collateral Agent in the Patent Collateral (as defined below) and are required to execute and deliver this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:

SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.

SECTION 2. Grant of Security Interest. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under any and all of the following assets now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Patent Collateral”): (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, including those listed on Schedule A under the heading “Patents and Patent Applications”, (b) all rights and privileges arising under applicable law with respect to such Grantor’s use of any patents, (c) all inventions and improvements described and claimed therein, (d) all reissues, divisions, continuations, renewals, extensions, reexaminations, supplemental examinations, inter partes reviews, adjustments and continuations-in-part thereof and amendments thereto, (e) all income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect to any of the foregoing including damages and payments for past, present or future infringements thereof, (f) all rights corresponding thereto throughout the world, including the right to prevent others from making, having made, using, selling, offering to sell, importing or exporting the inventions claimed therein and (g) rights to sue for past, present or future infringements thereof.

Notwithstanding anything herein to the contrary, if, for so long and to the extent as any such asset constitutes Excluded Property, the security interest granted under this Section 2 shall not attach to, and the Patent Collateral shall not include, such asset, provided, however, that the security interest granted under this Section 2 shall immediately attach to, and the Patent Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.

SECTION 3. Security Agreement. The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Patent Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.

SECTION 4. GOVERNING LAW.THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 5. Counterparts.This Agreement may be executed in one or more counterparts and by different parties hereto in separate 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.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

[NAME OF GRANTOR]

By:

Name:

Title:

[ADD SIGNATURE BLOCKS FOR ANY OTHER GRANTORS]

[Signature Page to Second Lien Patent Security Agreement]

Accepted and Agreed:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent,
by
	Name: Title:

[Signature Page to Second Lien Patent Security Agreement]

SCHEDULE A

to

SECOND LIEN PATENT SECURITY AGREEMENT

Patent and Patent Applications

Patents

Registered Owner Title of Patent Country Type Registration Number Issue Date Expiration Date

Patent Applications

Registered Owner Title of Patent Country Type Application Number Date Filed

Schedule A-1

EXHIBIT IV

TO SECOND LIEN PLEDGE AND SECURITY AGREEMENT

SECOND LIEN TRADEMARK SECURITY AGREEMENT, dated as of [__________], 20[__] (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is made among THE ENTITIES IDENTIFIED AS GRANTORS ON THE SIGNATURE PAGES HERETO (collectively, the “Grantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Collateral Agent for the Secured Parties.

WHEREAS, the Grantors are party to the Second Lien Pledge and Security Agreement, dated as of May 4, 2018 (the “Pledge and Security Agreement”), among Fusion Connect, Inc., a Delaware corporation, the other Grantors party thereto from time to time and Wilmington Trust, as Collateral Agent, pursuant to which the Grantors granted a security interest to the Collateral Agent in the Trademark Collateral (as defined below) and are required to execute and deliver this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:

SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.

SECTION 2. Grant of Security. As security for the payment and performance in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under any and all of the following assets now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Trademark Collateral”): (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, the goodwill of the business symbolized thereby or associated therewith, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule A under the heading “Trademark Registrations and Applications”, (b) all rights and privileges arising under applicable law with respect to such Grantor’s use of any trademarks, (c) all reissues, continuations, extensions and renewals thereof and amendments thereto, (d) all income, fees, royalties, damages and payments now and hereafter due and/or payable with respect to any of the foregoing, including damages, claims and payments for past, present or future infringements thereof, (e) all rights corresponding thereto throughout the world and (f) rights to sue for past, present and future infringements or dilutions thereof or other injuries thereto.

Exhibit IV-2

Notwithstanding anything herein to the contrary, (a) in no event shall the Trademark Collateral include or the security interest granted under this Section 2 attach to any “intent to use” application for registration of a Trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent to use application under applicable federal law and (b) if, for so long and to the extent as any such asset constitutes Excluded Property, the security interest granted under this Section 2 shall not attach to, and the Trademark Collateral shall not include, such asset, provided, however, that the security interest granted under this Section 2 shall immediately attach to, and the Trademark Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.

SECTION 3. Security Agreement. The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.

SECTION 4. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 5. Counterparts. This Agreement may be executed in one or more counterparts and by different parties hereto in separate 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.

Exhibit IV-2

IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

[NAME OF GRANTOR]

By:

Name:

Title:

[ADD SIGNATURE BLOCKS FOR ANY OTHER GRANTORS]

[Signature Page to Second Lien Trademark Security Agreement]

Accepted and Agreed:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent,
by
	Name: Title:

[Signature Page to Second Lien Trademark Security Agreement]

SCHEDULE A

to

SECOND LIEN TRADEMARK SECURITY AGREEMENT

Trademark Registrations and Applications

Trademarks

Registered Owner Trademark Registration No./Application No. Application Date/Registration Date

Trademark Applications

Registered Owner Trademark Application No. Filing Date

Schedule A-1

EX-10.13

INTERCREDITOR AGREEMENT

dated as of

May 4, 2018,

among

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as First Lien Representative,

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Second Lien Representative,

EACH ADDITIONAL FIRST LIEN OBLIGATIONS REPRESENTATIVE

and

EACH ADDITIONAL SECOND LIEN OBLIGATIONS REPRESENTATIVE

TABLE OF CONTENTS

Page

ARTICLE I
DEFINITIONS
SECTION 1.01.	Defined Terms	1
SECTION 1.02.	Terms Generally	14
ARTICLE II
LIEN PRIORITIES
SECTION 2.01.	Relative Priorities	15
SECTION 2.02.	Prohibition on Contesting Liens	15
SECTION 2.03.	Similar Liens and Agreements	16
SECTION 2.04.	No Separate Liens	16
SECTION 2.05.	Perfection of Liens	17
SECTION 2.06.	Certain Cash Collateral	17
ARTICLE III
ENFORCEMENT OF RIGHTS; MATTERS RELATING TO COLLATERAL
SECTION 3.01.	Exercise of Rights and Remedies	18
SECTION 3.02.	No Interference	20
SECTION 3.03.	Rights as Unsecured Creditors	22
SECTION 3.04.	Automatic Release of Second Priority Liens	23
SECTION 3.05.	Insurance and Condemnation Awards	24
ARTICLE IV
PAYMENTS
SECTION 4.01.	Application of Proceeds	25
SECTION 4.02.	Payment Over	26
SECTION 4.03.	Certain Agreements with Respect to Invalid or Unenforceable Liens	26
ARTICLE V
BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS

i

ARTICLE VI
INSOLVENCY OR LIQUIDATION PROCEEDINGS
SECTION 6.01.	Finance and Sale Matters	28
SECTION 6.02.	Relief from the Automatic Stay	31
SECTION 6.03.	Reorganization Securities	31
SECTION 6.04.	Post-Petition Interest	31
SECTION 6.05.	Certain Waivers by the Second Lien Secured Parties	32
SECTION 6.06.	Certain Voting Matters	32
SECTION 6.07.	Subordination Agreement	32
ARTICLE VII
OTHER AGREEMENTS
SECTION 7.01.	Matters Relating to Loan Documents	33
SECTION 7.02.	Effect of Refinancing of Indebtedness under Loan Documents	36
SECTION 7.03.	No Waiver by First Lien Secured Parties	37
SECTION 7.04.	Reinstatement	38
SECTION 7.05.	Further Assurances	38
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
ARTICLE IX
NO RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE
SECTION 9.01.	No Reliance; Information	39
SECTION 9.02.	No Warranties or Liability	39
SECTION 9.03.	Obligations Absolute	40
ARTICLE X
MISCELLANEOUS
SECTION 10.01.	Notices	41
SECTION 10.02.	Conflicts	41
SECTION 10.03.	Effectiveness; Survival	41
SECTION 10.04.	Severability	42
SECTION 10.05.	Amendments; Waivers	42

ii

SECTION 10.06.	Subrogation	44
SECTION 10.07.	APPLICABLE LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVERS	45
SECTION 10.08.	WAIVER OF JURY TRIAL	46
SECTION 10.09.	Parties in Interest	46
SECTION 10.10.	Specific Performance	47
SECTION 10.11.	Headings	47
SECTION 10.12.	Counterparts	47
SECTION 10.13.	Provisions Solely to Define Relative Rights	47
SECTION 10.14.	Intercreditor Agreement Acknowledgement	47
SECTION 10.15.	Dealings with Borrower, Grantors and Guarantors	47
SECTION 10.16.	Agents and Representatives	48

ANNEXES

Annex I 

-            

Second Lien Security Documents Legends

Annex II     

-            

Form of Intercreditor Agreement Acknowledgement

iii

INTERCREDITOR AGREEMENT dated as of May 4, 2018 (this “Agreement”), among WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as collateral agent for the First Lien Lenders (as defined below) (in such capacity, the “First Lien Representative”), WILMINGTON TRUST, as collateral agent for the Second Lien Lenders (as defined below) (in such capacity, the “Second Lien Representative”), and each ADDITIONAL FIRST LIEN OBLIGATIONS REPRESENTATIVE and each ADDITIONAL SECOND LIEN OBLIGATIONS REPRESENTATIVE that, in each case, shall have become a party hereto pursuant to Section 10.05(b).

Reference is made to (a) the First Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “First Lien Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower from time to time party thereto, the lenders from time to time party thereto (the “First Lien Lenders”) and Wilmington Trust, as administrative agent and collateral agent, (b) the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “Second Lien Credit Agreement” and, together with the First Lien Credit Agreement, the “Credit Agreements”), among the Borrower, certain Subsidiaries of the Borrower from time to time party thereto, the lenders from time to time party thereto (the “Second Lien Lenders”) and Wilmington Trust, as administrative agent and collateral agent, (c) the First Lien Pledge and Security Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “First Lien Pledge and Security Agreement”), among the Borrower, certain Subsidiaries of the Borrower from time to time party thereto and the First Lien Representative, (d) the Second Lien Pledge and Security Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the “Second Lien Pledge and Security Agreement”), among the Borrower, certain Subsidiaries of the Borrower from time to time party thereto and the Second Lien Representative, and (e) the other Security Documents referred to in the Credit Agreements.

WHEREAS, the First Lien Lenders have agreed to make loans and other extensions of credit to the Borrower pursuant to the First Lien Credit Agreement on the condition, among others, that the First Lien Secured Obligations shall be secured by first priority Liens on, and security interests in, the Collateral.

WHEREAS, the Second Lien Lenders have agreed to make loans to the Borrower pursuant to the Second Lien Credit Agreement on the condition, among others, that the Second Lien Secured Obligations shall be secured by second priority Liens on, and security interests in, the Collateral.

WHEREAS, the Credit Agreements require, among other things, that the parties thereto set forth in this Agreement, among other things, their respective rights, obligations and remedies with respect to the Collateral.

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01.Defined Terms. As used in the Agreement (including the preliminary statements hereto), the following terms shall have the meanings specified below:

“Account(s)” means “accounts” as defined in Article 9 of the Uniform Commercial Code and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, or (c) arising out of the use of a credit or charge card or information contained on or for use with the card.

“Account Debtor” means any Person that is or that may become obligated to any Grantor under, with respect to or on account of an Account or a “payment intangible” as defined in Article 9 of the Uniform Commercial Code.

“Additional First Lien Obligations” means Indebtedness of the Grantors incurred following the date of this Agreement (together with all obligations in respect of such Indebtedness, including all principal, premium, interest, fees, attorney’s fees, costs, charges, expenses, reimbursement obligations, indemnities, guarantees, and all other amounts payable under or secured by any Additional First Lien Obligations Agreement (including, in each case, any such Additional First Lien Obligations arising or accruing during the pendency of any Insolvency or Liquidation Proceeding), notwithstanding that any such Additional First Lien Obligations or claims therefor shall be disallowed, voided or subordinated in any Insolvency or Liquidation Proceeding or under any Bankruptcy Law or other applicable law) to the extent (a) such Indebtedness and such obligations in respect of such Indebtedness are permitted by the terms of the First Lien Credit Agreement, the Second Lien Credit Agreement, each Additional Second Lien Obligations Agreement then in effect and each other Additional First Lien Obligations Agreement then in effect to be secured by Liens on the Collateral ranking pari passu in priority with the First Priority Liens and the Liens on the Collateral securing other Additional First Lien Obligations (without regard to the control of remedies) and senior in priority to the Second Priority Liens and to the Liens on the Collateral securing any Additional Second Lien Obligations, (b) the Grantors have granted Liens on the Collateral to secure such Indebtedness and such obligations in respect of such Indebtedness (it being agreed that First Lien Secured Obligations incurred or issued after the date hereof (i) under the First Lien Loan Documents, (ii) in respect of “Specified Hedge Obligations” (as defined in the First Lien Credit Agreement) and (iii) in respect of “Specified Cash Management Services Obligations” (as defined in the First Lien Credit Agreement) shall not constitute Additional First Lien Obligations) and (c) neither any Grantor nor any Affiliate thereof has granted any Lien on any property, asset, right or interest other than the Collateral to secure such Indebtedness unless the First Lien Secured Obligations incurred or issued (i) under the First Lien Loan Documents, (ii) in respect of “Specified Hedge Obligations” (as defined in the First Lien Loan Documents) and (iii) in respect of “Specified Cash Management Services Obligations” (as defined in the First Lien Credit Agreement) have been secured by a pari passu Lien granted by such Grantor or Affiliate on such other property, asset, right or interest.

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“Additional First Lien Obligations Agreement” means the indenture, credit agreement or other definitive agreement under which any Additional First Lien Obligations are incurred.

“Additional First Lien Obligations Representative” means any Person appointed to act as trustee, collateral agent or a similar representative for the holders of Additional First Lien Obligations pursuant to any Additional First Lien Obligations Agreement.

“Additional Second Lien Obligations” means Indebtedness of the Grantors incurred following the date of this Agreement (together with all obligations in respect of such Indebtedness, including all principal, premium, interest, fees, attorney’s fees, costs, charges, expenses, reimbursement obligations, indemnities, guarantees, and all other amounts payable under or secured by any Additional Second Lien Obligations Agreement (including, in each case, any such Additional Second Lien Obligations arising or accruing during the pendency of any Insolvency or Liquidation Proceeding), notwithstanding that any such Additional Second Lien Obligations or claims therefor shall be disallowed, voided or subordinated in any Insolvency or Liquidation Proceeding or under any Bankruptcy Law or other applicable law) to the extent (a) such Indebtedness and such obligations in respect of such Indebtedness are permitted by the terms of the First Lien Credit Agreement, the Second Lien Credit Agreement, each Additional First Lien Obligations Agreement then in effect and each other Additional Second Lien Obligations Agreement then in effect to be secured by Liens on the Collateral ranking junior in priority to the First Priority Liens and to the Liens on the Collateral securing Additional First Lien Obligations and pari passu in priority to the Second Priority Liens and to the Liens on the Collateral securing any Additional Second Lien Obligations (without regard to the control of remedies) and (b) the Grantors have granted Liens on the Collateral to secure such Indebtedness and such obligations in respect of such Indebtedness (it being agreed that Second Lien Secured Obligations incurred or issued after the date hereof under the Second Lien Loan Documents shall not constitute Additional Second Lien Obligations).

“Additional Second Lien Obligations Agreement” means the indenture, credit agreement or other definitive agreement under which any Additional Second Lien Obligations are incurred.

“Additional Second Lien Obligations Representative” means any Person appointed to act as trustee, collateral agent or a similar representative for the holders of Additional Second Lien Obligations pursuant to any Additional Second Lien Obligations Agreement.

“Affiliate” means, with respect to a specified Person, another Person that directly or indirectly Controls or is Controlled by or is under common Control with the Person specified.

“Agreement” has the meaning assigned to such term in the preamble hereto.

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“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereinafter in effect, or any successor statute.

“Bankruptcy Law” means the Bankruptcy Code and any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law.

“Borrower” has the meaning assigned to such term in the preliminary statement of this Agreement.

“Business Day” means any day other than a Saturday or Sunday, a day that is a legal holiday under the laws of the State of New York or a day on which banking institutions located in such State are authorized or required by law to remain closed.

“Capped First Lien Loan Document Obligations” means First Lien Loan Document Obligations (or any Refinancing thereof constituting New First Lien Obligations in accordance with the provisions of Section 7.02(a)) in the form of (a) the principal amount of loans outstanding under the First Lien Credit Agreement (or under any Refinancing thereof constituting New First Lien Obligations in accordance with the provisions of Section 7.02(a)) and (b) the “Letter of Credit Usage” (as defined in the First Lien Credit Agreement) (or any comparable successor term) outstanding under the First Lien Credit Agreement (or under any Refinancing thereof constituting New First Lien Obligations in accordance with the provisions of Section 7.02(a)). For the avoidance of doubt, Capped First Lien Loan Document Obligations shall not include First Lien Secured Obligations in respect of “Hedge Agreements” (as defined in the First Lien Credit Agreement) (or any comparable successor term) and the First Lien Secured Cash Management Obligations or, in each case, any comparable successor terms under any indenture, credit agreement or other definitive agreement evidencing any Refinancing of the First Lien Secured Obligations constituting New First Lien Obligations in accordance with the provisions of Section 7.02(a).

“Collateral” means the First Lien Collateral and the Second Lien Collateral.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Credit Agreements” has the meaning assigned to such term in the preliminary statement of this Agreement.

“DIP Financing” has the meaning assigned to such term in Section 6.01(a).

“DIP Financing Liens” has the meaning assigned to such term in Section 6.01(a).

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“Discharge of Excess First Lien Obligations” means, subject to Sections 7.02(a) and 7.04, (a) payment in full in cash or immediately available funds of the principal of and interest (including interest accruing during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such Insolvency or Liquidation Proceeding) and premium, if any, on the Excess First Lien Obligations, (b) payment in full in cash or immediately available funds of all other Excess First Lien Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (excluding, for the avoidance of doubt, contingent expense reimbursement and indemnification obligations that are not yet due and payable), (c) cancellation of or the entry into arrangements satisfactory to the First Lien Representative and the applicable Issuing Bank (as defined in the First Lien Credit Agreement) with respect to all letters of credit issued and outstanding under the First Lien Credit Agreement that constitute Excess First Lien Obligations and (d) termination or expiration of all commitments to lend and all obligations to issue or extend letters of credit under the First Lien Credit Agreement that constitute Excess First Lien Obligations.

“Discharge of First Lien Loan Document Obligations” means, subject to Sections 7.02(a) and 7.04, (a) payment in full in cash or immediately available funds of the principal of and interest (including interest accruing during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such Insolvency or Liquidation Proceeding) and premium, if any, on the First Lien Loan Document Obligations, (b) payment in full in cash or immediately available funds of all other First Lien Loan Document Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (excluding, for the avoidance of doubt, contingent expense reimbursement and indemnification obligations that are not yet due and payable), (c) cancellation of or the entry into arrangements satisfactory to the First Lien Representative and the applicable Issuing Bank (as defined in the First Lien Credit Agreement) with respect to all letters of credit issued and outstanding under the First Lien Credit Agreement and (d) termination or expiration of all commitments to lend and all obligations to issue or extend letters of credit under the First Lien Credit Agreement.

“Discharge of First Lien Secured Obligations” means, subject to Sections 7.02(a) and 7.04, the occurrence of (a) the Discharge of First Lien Loan Document Obligations, (b) cancellation of or the entry into arrangements satisfactory to the First Lien Representative and each applicable hedging counterparty with respect to all obligations under Hedge Agreements (as defined in the First Lien Credit Agreement) that constitute First Lien Secured Obligations, (c) payment in full in cash or immediately available funds of all First Lien Secured Cash Management Obligations that constitute First Lien Secured Obligations, (d) payment in full in cash or immediately available funds of all other First Lien Secured Obligations that are due and payable or otherwise accrued and owing at or prior to the time the foregoing payments are made (excluding, in the case of this clause (d), contingent expense reimbursement and indemnification obligations that are not yet due and payable) and (e) adequate provision reasonably satisfactory to the applicable First Lien Secured Parties having been made for any contingent or unliquidated First Lien Secured Obligations related to claims, causes of action or liabilities that have theretofore been asserted in writing by the First Lien Secured Parties and for which reimbursement or indemnification is required under the First Lien Loan Documents.

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“Discharge of Second Lien Secured Obligations” means, subject to Section 7.02(b), (a) payment in full in cash or immediately available funds of the principal of and interest (including interest accruing during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such Insolvency or Liquidation Proceeding) and premium, if any, on the Second Lien Secured Obligations, (b) payment in full in cash or immediately available funds of all other Second Lien Secured Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (excluding, for the avoidance of doubt, contingent expense reimbursement and indemnification obligations that are not yet due and payable) and (c) adequate provision reasonably satisfactory to the applicable Second Lien Secured Parties having been made for any contingent or unliquidated Second Lien Secured Obligations related to claims, causes of action or liabilities that have theretofore been asserted in writing by the Second Lien Secured Parties and for which reimbursement or indemnification is required under the Second Lien Loan Documents.

“Disposition” means any sale, lease, exchange, transfer or other disposition. “Dispose” has a correlative meaning.

“Enforcement Action” means any action under applicable law to: (a) foreclose, execute, levy or collect on, take possession or control of, sell or otherwise realize upon (judicially or non-judicially), or lease, license or otherwise exercise or enforce remedial rights with respect to Collateral (including by way of set-off, notification of a public or private sale or other disposition under the Uniform Commercial Code or other applicable law, notification to Account Debtors, notification to third parties under control agreements, or exercise of rights under landlord or bailee consents or similar arrangements, if applicable), (b) solicit bids from third parties to conduct the liquidation or Disposition of any Collateral, or, solely to the extent such action is not a Second Lien Permitted Action, to engage or retain sales brokers, marketing agents, investment bankers, accountants, appraisers, auctioneers or other third parties for the purposes of marketing, promoting and selling any Collateral, (c) to credit bid in respect of any Collateral in satisfaction of Indebtedness or other First Lien Secured Obligations or Second Lien Secured Obligations secured thereby or (d) to otherwise enforce a security interest or exercise another right or remedy as a secured creditor pertaining to any Collateral (other than, to the extent the Grantors fail to perform any action required under any protective covenant relating to the Collateral under any Security Document, the performance thereof by the First Lien Representative or the Second Lien Representative, in each case to the extent permitted by the applicable Security Documents) at law, in equity or pursuant to the First Lien Loan Documents or Second Lien Loan Documents (including the commencement of applicable legal proceedings or other actions with respect to all or any portion of the Collateral, including seeking relief from or modification of an automatic stay or any other stay in an Insolvency or Liquidation Proceeding, to facilitate the actions described in the preceding clause (a), (b) or (c), and exercising voting rights in respect of Equity Interests comprising Collateral).

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“Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or acquire any of the foregoing (other than, prior to the date of such conversion, Indebtedness that is convertible into any such Equity Interests).

“Excess First Lien Obligations” means the sum of (a) the portion of the Capped First Lien Loan Document Obligations that is in excess of the Maximum First Lien Principal Amount, plus (b) without duplication, unpaid interest and fees solely to the extent accrued with respect to such portion of the Capped First Lien Loan Document Obligations.

“Excess Second Lien Obligations” means the sum of (a) the portion of principal of the Second Lien Secured Obligations that is in excess of the Maximum Second Lien Principal Amount, plus (b) without duplication, unpaid interest and fees solely to the extent accrued with respect to such portion of the Second Lien Secured Obligations.

“First Lien Collateral” means all “Collateral”, as defined in the First Lien Credit Agreement, and any other assets of any Grantor now or at any time hereafter subject, or purported under the terms of any First Lien Security Document to be made subject, to any Lien securing any First Lien Secured Obligations.

“First Lien Credit Agreement” has the meaning assigned to such term in the preliminary statement of this Agreement.

“First Lien Lenders” has the meaning assigned to such term in the preliminary statement of this Agreement.

“First Lien Loan Documents” means the “Credit Documents”, as defined in the First Lien Credit Agreement.

“First Lien Loan Document Obligations” means the “Obligations”, as defined in the First Lien Credit Agreement, set forth in clause (a) of the definition of such term in the First Lien Credit Agreement (including any such “Obligations” arising or accruing under Section 2.1, 2.2, 2.3, 2.23, 2.24 or 2.25 of the First Lien Credit Agreement or during the pendency of any Insolvency or Liquidation Proceeding), notwithstanding that any such “Obligations” or claims therefor shall be disallowed, voided or subordinated in any Insolvency or Liquidation Proceeding or under any Bankruptcy Law or other applicable law. Notwithstanding the foregoing, for all purposes under this Agreement (other than the definition of “Capped First Lien Loan Document Obligations”), Excess First Lien Obligations shall not be included in the First Lien Loan Document Obligations.

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“First Lien Mortgages” means, collectively, each mortgage, deed of trust, leasehold mortgage, assignment of leases and rents, modifications and any other agreement, document or instrument pursuant to which a Lien on real property is granted to secure any First Lien Secured Obligations or under which rights or remedies with respect to any such Lien are governed.

“First Lien Pledge and Security Agreement” has the meaning assigned to such term in the preliminary statement of this Agreement.

“First Lien Refinancing Notice” has the meaning assigned to such term in Section 7.02(a).

“First Lien Representative” has the meaning assigned to such term in the preamble to this Agreement.

“First Lien Required Lenders” means the “Requisite Lenders”, as defined in the First Lien Credit Agreement.

“First Lien Secured Cash Management Obligations” means the “Specified Cash Management Services Obligations”, as defined in the First Lien Credit Agreement (including any such “Specified Cash Management Services Obligations” arising or accruing during the pendency of any Insolvency or Liquidation Proceeding), notwithstanding that any such “Specified Cash Management Services Obligations” or claims therefor shall be disallowed, voided or subordinated in any Insolvency or Liquidation Proceeding or under any Bankruptcy Law or other applicable law.

“First Lien Secured Obligations” means the “Secured Obligations”, as defined in the First Lien Pledge and Security Agreement (including any such “Secured Obligations” arising or accruing under Section 2.1, 2.2, 2.3, 2.23, 2.24 or 2.25 of the First Lien Credit Agreement or during the pendency of any Insolvency or Liquidation Proceeding), notwithstanding that any such “Secured Obligations” or claims therefor shall be disallowed, voided or subordinated in any Insolvency or Liquidation Proceeding or under any Bankruptcy Law or other applicable law. Notwithstanding the foregoing, for all purposes under this Agreement (other than the definition of “First Priority Liens” and Sections 3.02(a)(vii), 6.03, 9.01 and 10.13), Excess First Lien Obligations shall not be included in the First Lien Secured Obligations.

“First Lien Secured Parties” means the “Secured Parties”, as defined in the First Lien Pledge and Security Agreement.

“First Lien Security Documents” means the “Collateral Documents”, as defined in the First Lien Credit Agreement, and any other agreement, document or instrument pursuant to which a Lien is granted or purported to be granted to secure any First Lien Secured Obligations or under which rights or remedies with respect to any such Lien are governed.

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“First Priority Liens” means all Liens on the First Lien Collateral securing the First Lien Secured Obligations, whether created under the First Lien Security Documents or acquired by possession, statute (including any judgment lien), operation of law, subrogation or otherwise.

“Governmental Authority” means any federal, state, municipal, national, supranational or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the United States of America, any State thereof or the District of Columbia or a foreign entity or government (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).

“Grantors” means the Borrower, each other Guarantor and each other Person that shall have created or purported to create any First Priority Lien or any Second Priority Lien on all or any part of its assets to secure any First Lien Secured Obligations or any Second Lien Secured Obligations.

“Guarantors” means the Borrower and each Subsidiary that has guaranteed, or that may from time to time hereafter guarantee, the First Lien Secured Obligations or the Second Lien Secured Obligations, whether by executing and delivering the First Lien Credit Agreement or the Second Lien Credit Agreement, as applicable, a counterpart agreement thereto or otherwise.

“Indebtedness” means and includes all obligations that constitute “Indebtedness”, as defined in the First Lien Credit Agreement or the Second Lien Credit Agreement, as applicable.

“Insolvency or Liquidation Proceeding” means (a) any voluntary or involuntary proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor, (b) any voluntary or involuntary appointment of a trustee, examiner, custodian, receiver, liquidator or similar official for any Grantor or for all or a substantial part of the property or assets of any Grantor, (c) any voluntary or involuntary winding-up or liquidation of any Grantor, or (d) a general assignment for the benefit of creditors by any Grantor.

“Lien” means any lien, mortgage, pledge, assignment, security interest, hypothecation, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing.

“Loan Documents” means the First Lien Loan Documents and the Second Lien Loan Documents.

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“Maximum First Lien Principal Amount” means the sum of (a) the excess of (i) 110% of the amount equal to the sum of (A) $595,000,000 plus (B) the aggregate amount of “Incremental Commitments” (as defined in the First Lien Credit Agreement) (or any comparable successor term) established from time to time under Section 2.23 of the First Lien Credit Agreement (or any comparable successor provision) or pursuant to any comparable successor provisions in any Refinancing thereof, in each case, to the extent (1) if the establishment of such Incremental Commitments (or any comparable successor term) is conditioned upon the absence of any event of default under the First Lien Credit Agreement (or any event of default under any Refinancing thereof), no such event of default (or event of default under any such Refinancing) shall have occurred and be continuing at the time of establishment of such Incremental Commitments (or any comparable successor term) (it being understood and agreed that any such event of default (or event of default under any such Refinancing) may be waived prior to the establishment of such Incremental Commitments (or any comparable successor term)) and (2) such First Lien Credit Agreement provisions and such comparable successor provisions, taken as a whole, do not permit an aggregate amount of such Incremental Commitments (or any such comparable successor term) in excess of the amount that would have been permitted to be established as Incremental Commitments under such First Lien Credit Agreement provisions as in effect on the date hereof, it being understood that any such Incremental Commitments (or any such comparable successor term) established as permitted under such First Lien Credit Agreement provisions as in effect on the date hereof (or as permitted pursuant to such comparable successor provisions, subject to the foregoing limitations in this definition on the amount thereof) shall be included in the Maximum First Lien Principal Amount under this clause (B) whether or not such Incremental Commitments shall have subsequently terminated or been Refinanced and whether or not any financial ratio tests the satisfaction of which were a condition to such establishment continue to be satisfied on the date of determination of “Maximum First Lien Principal Amount” so long as such financial ratio tests were satisfied as of the time set forth in such condition, over (ii) the sum of (A) the aggregate principal amount of all repayments and prepayments of term loans outstanding under the First Lien Credit Agreement or under any Refinancing thereof that are First Lien Loan Document Obligations actually made from and after the date hereof, (B) permanent reductions of commitments under the revolving credit facility provided for in the First Lien Credit Agreement or in any Refinancing thereof actually made from and after the date hereof (excluding any permanent reductions of such commitments resulting from the commencement of any Insolvency or Liquidation Proceeding or resulting from the exercise by any or all of the First Lien Secured Parties of their right to reduce or terminate such commitments following the occurrence and during the continuance of any event of default under the First Lien Credit Agreement (or any event of default under any Refinancing thereof), but only if the principal amount of revolving credit loans shall have been prepaid and any “Letter of Credit Usage” (as defined in the First Lien Credit Agreement) (or any comparable successor term) shall have been reduced (and all accrued and unpaid interest and fees in respect thereof have been paid in full), in each case, to the extent required in order for the sum thereof not to exceed the revolving credit commitments as so reduced and (C) permanent reductions of unfunded commitments under any incremental term loan facility provided for in the First Lien Credit Agreement or in any Refinancing thereof actually made from and after the date hereof, and excluding, in the case of each of clauses (A), (B) and (C) above, repayments, prepayments and reductions in connection with a Refinancing thereof or a “roll-up” of such First Lien Loan Document Obligations (or such Refinancing thereof) or such revolving credit commitments in connection with a DIP Financing, plus (b) the sum, without duplication, of (i) the aggregate amount of all interest, fees and premiums, in each case, accrued in respect of or attributable to any First Lien Loan Document Obligations that has been paid in-kind or capitalized and (ii) the aggregate amount of all interest, fees and premium (if any) in respect of or attributable to any First Lien Loan Document Obligations that are included in the principal amount of any Refinancing thereof, any original issue discount applicable to any such Refinancing and any fees (including upfront fees), costs and expenses relating to such Refinancing. It is understood and agreed that any Incremental Commitments (or any such comparable successor term) that are established by the First Lien Lenders in good faith in reliance on any written determination or certification by or on behalf of the Borrower or the other Grantors that any financial ratio test or other condition (including as to the absence of any event of default) to the establishment thereof has been satisfied shall be included under clause (a)(i)(B) above even if subsequently to the establishment thereof it shall be determined that such written determination or certification was inaccurate and such financial ratio test or other condition was not in fact satisfied.

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“Maximum Second Lien Principal Amount” means the sum of (a) the excess of (i) 110% of the amount equal to the sum of (A) $85,000,000 plus (B) the aggregate amount of “Incremental Commitments” (as defined in the Second Lien Credit Agreement) (or any comparable successor term) established from time to time under Section 2.23 of the Second Lien Credit Agreement (or any comparable successor provision) or pursuant to any comparable successor provisions in any Refinancing thereof, in each case, to the extent (1) if the establishment of such Incremental Commitments (or any comparable successor term) is conditioned upon the absence of any event of default under the Second Lien Credit Agreement (or any event of default under any Refinancing thereof), no such event of default (or event of default under any such Refinancing) shall have occurred and be continuing at the time of establishment of such Incremental Commitments (or any comparable successor term) (it being understood and agreed that any such event of default (or event of default under any such Refinancing) may be waived prior to the establishment of such Incremental Commitments (or any comparable successor term)) and (2) such Second Lien Credit Agreement provisions and such comparable successor provisions, taken as a whole, do not permit an aggregate amount of such Incremental Commitments (or any such comparable successor term) in excess of the amount that would have been permitted to be established as Incremental Commitments under such Second Lien Credit Agreement provisions as in effect on the date hereof, it being understood that any such Incremental Commitments (or any such comparable successor term) established as permitted under such Second Lien Credit Agreement provisions as in effect on the date hereof (or as permitted pursuant to such comparable successor provisions, subject to the foregoing limitations in this definition on the amount thereof) shall be included in the Maximum Second Lien Principal Amount under this clause (B) whether or not such Incremental Commitments shall have subsequently terminated or been Refinanced and whether or not any financial ratio tests the satisfaction of which were a condition to such establishment continue to be satisfied on the date of determination of “Maximum Second Lien Principal Amount” so long as such financial ratio tests were satisfied as of the time set forth in such condition, over (ii) the sum of (A) the aggregate principal amount of all repayments and prepayments of term loans outstanding under the Second Lien Credit Agreement or under any Refinancing thereof that are Second Lien Secured Obligations actually made from and after the date hereof and (B) permanent reductions of unfunded commitments under any incremental term loan facility provided for in the Second Lien Credit Agreement or in any Refinancing thereof actually made from and after the date hereof, and excluding, in the case of each of clauses (A) and (B) above, repayments, prepayments and reductions in connection with a Refinancing thereof or a “roll-up” of such Second Lien Secured Obligations (or such Refinancing thereof) in connection with a DIP Financing, plus (b) the sum, without duplication, of (i) the aggregate amount of all interest, fees and premiums, in each case, accrued in respect of or attributable to any Second Lien Secured Obligations that has been paid in-kind or capitalized and (ii) the aggregate amount of all interest, fees and premium (if any) in respect of or attributable to any Second Lien Secured Obligations that are included in the principal amount of any Refinancing thereof, any original issue discount applicable to any such Refinancing and any fees (including upfront fees), costs and expenses relating to such Refinancing. It is understood and agreed that any Incremental Commitments (or any such comparable successor term) that are established by the Second Lien Lenders in good faith in reliance on any written determination or certification by or on behalf of the Borrower or the other Grantors that any financial ratio test or other condition (including as to the absence of any event of default) to the establishment thereof has been satisfied shall be included under clause (a)(i)(B) above even if subsequently to the establishment thereof it shall be determined that such written determination or certification was inaccurate and such financial ratio test or other condition was not in fact satisfied.

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“New First Lien Loan Documents” has the meaning assigned to such term in Section 7.02(a).

“New First Lien Obligations” has the meaning assigned to such term in Section 7.02(a).

“New First Lien Representative” has the meaning assigned to such term in Section 7.02(a).

“New Second Lien Loan Documents” has the meaning assigned to such term in Section 7.02(b).

“New Second Lien Obligations” has the meaning assigned to such term in Section 7.02(b).

“New Second Lien Representative” has the meaning assigned to such term in Section 7.02(b).

“Officer’s Certificate” has the meaning assigned to such term in Section 10.15.

“Person” means any natural person, corporation, limited partnership, general partnership, limited liability company, limited liability partnership, joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and any Governmental Authority.

“Pledged or Controlled Collateral” means Collateral as to which perfection can be accomplished by the possession or control (as such term is defined in the Uniform Commercial Code) of such Collateral or of any account in which such Collateral is held.

“Proceeds” means (a) all “proceeds” as defined in Article 9 of the Uniform Commercial Code and (b) whatever is recovered when Collateral is sold, exchanged, collected, or Disposed of, whether voluntarily or involuntarily, including any additional or replacement collateral provided during any Insolvency or Liquidation Proceeding and any payment or property received in any Insolvency or Liquidation Proceeding under Section 1129 of the Bankruptcy Code on account of any “secured claim” (within the meaning of Section 506(b) of the Bankruptcy Code or similar Bankruptcy Law).

“Purchase” has the meaning assigned to such term in Section 3.01(d).

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“Purchase Event” means the occurrence of any of the following: (a) receipt by the Second Lien Representative of written notice from the First Lien Representative that the Indebtedness then outstanding under the First Lien Credit Agreement has been accelerated, (b) the commencement of an Insolvency or Liquidation Proceeding with respect to any Grantor, (c) the exercise of remedies following an event of default under the applicable First Lien Loan Documents undertaken by any First Lien Representative or any First Lien Secured Party against any material portion of the Collateral under the First Lien Loan Documents or (d) an event of default under any First Lien Loan Document as a result of any Grantor’s failure to pay any principal or interest in respect of First Lien Secured Obligations when due and such failure to pay remains unremedied and event of default remains unwaived for a period of 30 days.

“Purchase Notice” means an irrevocable notice delivered by the Second Lien Representative indicating the intention of the applicable Second Lien Secured Parties to exercise the purchase option under Section 3.01(d) and setting forth the date of the intended purchase, which shall be (a) not fewer than five days, nor more than 10 days, after the delivery of such notice to the First Lien Representative and (b) not more than 30 days after (i) the Second Lien Representative received written notice from the First Lien Representative of any Purchase Event set forth in clause (a), (c) or (d) of the definition thereof or (ii) the occurrence of any Purchase Event set forth in clause (b) of the definition thereof.

“Recovery” has the meaning assigned to such term in Section 7.04.

“Refinance” means, in respect of any Indebtedness or commitment, to refinance, extend, renew, restructure or replace or to issue other Indebtedness or commitment in exchange or replacement for, such Indebtedness or commitment, in whole or in part. “Refinanced” and “Refinancing” have correlative meanings.

“Release” has the meaning assigned to such term in Section 3.04.

“Reorganization Securities” has the meaning assigned to such term in Section 6.03.

“Representatives” means the First Lien Representative and the Second Lien Representative.

“Second Lien Collateral” means all “Collateral”, as defined in the Second Lien Credit Agreement, and any other assets of any Grantor now or at any time hereafter subject, or purported under the terms of any Second Lien Security Document to be made subject, to any Lien securing any Second Lien Secured Obligations.

“Second Lien Credit Agreement” has the meaning assigned to such term in the preliminary statement of this Agreement.

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“Second Lien Lenders” has the meaning assigned to such term in the preliminary statement of this Agreement.

“Second Lien Loan Documents” means the “Credit Documents”, as defined in the Second Lien Credit Agreement.

“Second Lien Mortgages” means, collectively, each mortgage, deed of trust, leasehold mortgage, assignment of leases and rents, modifications and any other agreement, document or instrument pursuant to which any Lien on real property is granted to secure any Second Lien Secured Obligations or under which rights or remedies with respect to any such Lien are governed.

“Second Lien Permitted Actions” has the meaning assigned to such term in Section 3.01(a).

“Second Lien Pledge and Security Agreement” has the meaning assigned to such term in the preliminary statement of this Agreement.

“Second Lien Refinancing Notice” has the meaning assigned to such term in Section 7.02(b).

“Second Lien Representative” has the meaning assigned to such term in the preamble to this Agreement.

“Second Lien Required Lenders” means the “Requisite Lenders”, as defined in the Second Lien Credit Agreement.

“Second Lien Secured Obligations” means the “Secured Obligations”, as defined in the Second Lien Pledge and Security Agreement (including any such “Secured Obligations” arising or accruing under Section 2.1, 2.23, 2.24 or 2.25 of the Second Lien Credit Agreement or during the pendency of any Insolvency or Liquidation Proceeding) (or any Refinancing thereof constituting New Second Lien Obligations in accordance with the provisions of Section 7.02(b)) notwithstanding that any such “Secured Obligations” or claims therefor shall be disallowed, voided or subordinated in any Insolvency or Liquidation Proceeding or under any Bankruptcy Law or other applicable law.

“Second Lien Secured Parties” means the “Secured Parties”, as defined in the Second Lien Pledge and Security Agreement.

“Second Lien Security Documents” means the “Collateral Documents”, as defined in the Second Lien Credit Agreement, and any other agreement, document or instrument pursuant to which a Lien is granted or purported to be granted to secure any Second Lien Secured Obligations or under which rights or remedies with respect to any such Lien are governed.

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“Second Priority Liens” means all Liens on the Second Lien Collateral securing the Second Lien Secured Obligations, whether created under the Second Lien Security Documents or acquired by possession, statute (including any judgment lien), operation of law, subrogation or otherwise.

“Secured Parties” means the First Lien Secured Parties and the Second Lien Secured Parties, or any one of them.

“Security Documents” means the First Lien Security Documents and the Second Lien Security Documents.

“Standstill Period” has the meaning assigned to such term in Section 3.02(a).

“Subsidiary” means, with respect to any Person (the “parent”) at any date, (a) any Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in conformity with United States generally accepted accounting principles as of such date and (b) any other Person of which Equity Interests representing more than 50% of the equity value or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, by the parent or one or more Subsidiaries of the parent or by the parent and one or more Subsidiaries of the parent. Unless otherwise specified, all references herein to Subsidiaries shall be deemed to refer to Subsidiaries of the Borrower.

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.

“Wilmington Trust” has the meaning assigned to such term in the preamble to this Agreement.

SECTION 1.02.Terms Generally. 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”. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal, tangible and intangible assets and properties, including cash, securities, accounts and contract rights. The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders, writs and decrees, of all Governmental Authorities. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document (including this Agreement and the Loan Documents) 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 definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to (i) any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein), (ii) the Borrower or any other Grantor shall be construed to include the Borrower or such Grantor as debtor and debtor-in-possession and any receiver or trustee for the Borrower or any other Grantor, as the case may be, in any Insolvency or Liquidation Proceeding, and (iii) in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) 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 and (e) all references herein to Articles or Sections shall be construed to refer to Articles or Sections of this Agreement.

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ARTICLE II

LIEN PRIORITIES

SECTION 2.01.Relative Priorities. Notwithstanding the date, manner or order of grant, attachment or perfection of any Second Priority Lien or any First Priority Lien, and notwithstanding any provision of the UCC or any other applicable law or the provisions of any Security Document or any other Loan Document or any other circumstance whatsoever, the Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, and the First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, hereby agrees that so long as the Discharge of First Lien Secured Obligations has not occurred, (a) any First Priority Lien now or hereafter held by or for the benefit of any First Lien Secured Party shall be senior in right, priority, operation, effect and all other respects to any and all Second Priority Liens, and the First Priority Liens shall be and remain senior in right, priority, operation, effect and all other respects to any Second Priority Liens for all purposes, whether or not any First Priority Liens are subordinated in any respect to any other Lien securing any other obligation of the Borrower, any other Grantor or any other Person and (b) any Second Priority Lien now or hereafter held by or for the benefit of any Second Lien Secured Party shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all First Priority Liens; provided that, so long as the Discharge of Second Lien Secured Obligations (other than Excess Second Lien Obligations) has not occurred, any Lien on the Collateral securing any Excess First Lien Obligations now or hereafter held by or on behalf of any First Lien Secured Party shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all Liens on the Collateral securing any of the Second Lien Secured Obligations (other than any Excess Second Lien Obligations); provided further that, so long as the Discharge of Excess First Lien Obligations has not occurred, any Lien on the Collateral securing any Excess Second Lien Obligations now or hereafter held by or on behalf of any Second Lien Secured Party shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all Liens on the Collateral securing any of the Excess First Lien Obligations.

SECTION 2.02.Prohibition on Contesting Liens. Each of the First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, and the Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that it will not, and hereby waives any right to, contest or join or otherwise support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the existence, validity, enforceability, perfection or priority of any Second Priority Lien or any First Priority Lien, as the case may be; provided that (a) nothing in this Agreement shall be construed to prevent or impair the rights of the First Lien Representative or any other First Lien Secured Party to enforce this Agreement, including the priority of the Liens securing the First Lien Secured Obligations or the provisions for exercise of remedies, and (b) nothing in this Agreement shall be construed to prevent or impair the rights of the Second Lien Representative or any other Second Lien Secured Party to enforce this Agreement.

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SECTION 2.03.Similar Liens and Agreements. The parties hereto acknowledge and agree that it is their intention that the First Lien Collateral and the Second Lien Collateral be identical. In furtherance of the foregoing, the parties hereto agree:

(a)to cooperate in good faith in order to determine, upon any reasonable request in writing by the First Lien Representative or the Second Lien Representative, the specific assets included in the First Lien Collateral and the Second Lien Collateral, the steps taken to perfect the First Priority Liens and the Second Priority Liens thereon and the identity of the respective parties obligated under the First Lien Loan Documents and the Second Lien Loan Documents; and

(b)that the documents, agreements and instruments creating or evidencing the Second Lien Collateral and the Second Priority Liens shall be in all material respects in the same form as the documents, agreements and instruments creating or evidencing the First Lien Collateral and the First Priority Liens, other than with respect to the first priority and second priority nature of the Liens created or evidenced thereunder, the identity of the Secured Parties that are parties thereto or secured thereby and other matters contemplated by this Agreement.

SECTION 2.04.No Separate Liens. The parties hereto agree that, so long as the Discharge of First Lien Secured Obligations has not occurred, (a) neither the Second Lien Representative nor any other Second Lien Secured Party shall acquire or hold, or accept from any Grantor or any of its Subsidiaries, any Lien on any asset or property of any Grantor or any of its Subsidiaries (and none of the Grantors shall, or shall permit any of its Subsidiaries to, grant any such Lien) securing any Second Lien Secured Obligations unless such asset or property is also subject to a Lien securing the First Lien Secured Obligations and (b) neither the First Lien Representative nor any other First Lien Secured Party shall acquire or hold, or accept from any Grantor or any of its Subsidiaries, any Lien on any asset or property of any Grantor or any of its Subsidiaries (and none of the Grantors shall, or shall permit any of its Subsidiaries to, grant any such Lien) securing any First Lien Secured Obligations unless such asset or property is also subject to a Lien securing the Second Lien Secured Obligations (including on account of the agreements of the First Lien Representative pursuant to Article V hereof), with each such Lien to be subject to the provisions of this Agreement. To the extent that the provisions of the immediately preceding sentence are not complied with for any reason, without limiting any other right or remedy available to any Secured Party hereunder, the Second Lien Representative agrees, for itself and on behalf of the other Second Lien Secured Parties, that any amounts received by or distributed to any Second Lien Secured Party pursuant to or as a result of any Lien acquired, held, accepted or granted in contravention of this Section 2.04 shall be subject to Section 4.02.

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SECTION 2.05.Perfection of Liens. Except for the agreements of the First Lien Representative and the Second Lien Representative pursuant to Article V hereof, (a) none of the First Lien Representative and the other First Lien Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral for the benefit of the Second Lien Representative or the other Second Lien Secured Parties and (b) none of the Second Lien Representative and the other Second Lien Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral for the benefit of the First Lien Representative or the other First Lien Secured Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as among the First Lien Secured Parties and the Second Lien Secured Parties and shall not impose on either Representative or the other Secured Parties represented by such Representative any obligations in respect of the disposition of Proceeds of any Collateral which would conflict with any prior perfected claims in such Proceeds in favor of any other Person or any order or decree of any court or governmental authority or any applicable law.

SECTION 2.06.Certain Cash Collateral. Notwithstanding anything in this Agreement or any other First Lien Loan Document or Second Lien Loan Document to the contrary, collateral consisting of cash and cash equivalents pledged to secure First Lien Loan Document Obligations under any First Lien Loan Document consisting of reimbursement obligations in respect of letters of credit issued thereunder shall be applied as specified in the relevant First Lien Loan Document and will not constitute Collateral (or First Lien Collateral or Second Lien Collateral) hereunder.

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ARTICLE III

ENFORCEMENT OF RIGHTS; MATTERS RELATING TO COLLATERAL

SECTION 3.01.Exercise of Rights and Remedies. (a) So long as the Discharge of First Lien Secured Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced, the First Lien Representative and the other First Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies (including any right of setoff) with respect to the Collateral (including making determinations regarding the release, Disposition or restrictions with respect to the Collateral), or to commence or seek to commence and maintain or seek to maintain any Enforcement Action, in each case, without any consultation with or the consent of the Second Lien Representative or any other Second Lien Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, any Second Lien Secured Party may file a proof of claim or statement of interest with respect to the Second Lien Secured Obligations and vote on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition or extension), in each case, to the extent not in contravention of the terms of this Agreement; provided that no Second Lien Secured Party shall be a petitioning creditor or otherwise make any filing or take any action (or join any other Person in making any filing or taking any action) to commence any Insolvency or Liquidation Proceeding; (ii) the Second Lien Representative may take any action to preserve or protect the validity, enforceability and perfection of the Second Priority Liens (but not to enforce such Liens), provided that no such action is, or could reasonably be expected to be, (A) adverse to the First Priority Liens or the rights of the First Lien Representative or any other First Lien Secured Party to exercise remedies in respect thereof or (B) otherwise in contravention of the terms of this Agreement, including the automatic release of the Second Priority Liens provided in Section 3.04; (iii) the Second Lien Secured Parties may 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, subordination or recharacterization of the claims of any of the Second Lien Secured Parties, including any claims secured by the Collateral, or the avoidance or subordination of any Second Priority Lien (other than pursuant to the terms of this Agreement) or otherwise make any agreements or file any motions pertaining to the Second Lien Secured Obligations or the Second Priority Liens, in each case, to the extent not in contravention of the terms of this Agreement; (iv) the Second Lien Secured Parties may exercise rights and remedies available to unsecured creditors to the extent (and only to the extent) provided in Section 3.03; (v) the Second Lien Secured Parties may join (but not exercise any control over) a judicial foreclosure or Lien enforcement proceeding with respect to the Collateral initiated by the First Lien Representative, to the extent that such action does not, and could not reasonably be expected to, materially interfere with any Enforcement Action by the First Lien Secured Parties and otherwise is not in contravention of the terms of this Agreement, it being further agreed that no Second Lien Secured Party may receive any Proceeds thereof unless expressly permitted herein; (vi) the Second Lien Secured Parties may bid for or purchase any Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the First Lien Representative, or any sale of any Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may not include a “credit bid” in respect of any Second Lien Secured Obligations unless the proceeds of such bid are otherwise sufficient to cause the Discharge of First Lien Secured Obligations; (vii) subject to Section 3.02(a), the Second Lien Representative and the other Second Lien Secured Parties may commence or seek to commence, and maintain or seek to maintain, any Enforcement Action after the termination of the Standstill Period; (viii) the Second Lien Representative may inspect or appraise the Collateral so long as such actions do not interfere with, hinder or delay, in any manner, any enforcement or exercise of any rights or remedies of the First Lien Secured Parties under the First Lien Loan Documents or this Agreement and otherwise are not in contravention of the terms of this Agreement; (ix) the Second Lien Secured Parties may seek or commence an action to obtain specific performance or injunctive relief to compel a Grantor to comply with the delivery of financial information, the further assurances regarding perfection of Liens and the maintenance of insurance covenants under the Second Lien Loan Documents, to the extent such action is not an Enforcement Action, does not seek to enjoin a Disposition of Collateral consented to or approved by the First Lien Representative and otherwise is not in contravention of the terms of this Agreement; (x) the Second Lien Secured Parties may accelerate the Indebtedness under the Second Lien Loan Documents in accordance with the terms thereof; and (xi) the Second Lien Secured Parties may take any action or exercise any right to the extent (and only to the extent) provided in Article VI (the permitted actions described in clauses (i) through (xi) are collectively referred to herein as the “Second Lien Permitted Actions”). Except for the Second Lien Permitted Actions, unless and until the Discharge of First Lien Secured Obligations has occurred, the sole right of the Second Lien Representative and the other Second Lien Secured Parties with respect to the Collateral shall be to receive the Proceeds of the Collateral, if any, remaining after the Discharge of First Lien Secured Obligations has occurred and in accordance with the Second Lien Loan Documents and applicable law.

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(b)In exercising rights and remedies with respect to the Collateral, the First Lien Representative and the other First Lien Secured Parties may enforce the provisions of the First Lien Loan Documents, exercise remedies thereunder and under applicable law and take other Enforcement Actions, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law or any other applicable law.

(c)The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Loan Document shall be deemed to restrict in any way the rights and remedies of the First Lien Representative or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement and the other First Lien Loan Documents.

(d)Notwithstanding anything in this Agreement to the contrary, within 30 days following the occurrence of a Purchase Event, the Second Lien Representative or another representative acting on behalf of the Second Lien Secured Parties may, at the sole expense and effort of the Second Lien Secured Parties, upon delivery of a Purchase Notice to the Borrower and the First Lien Representative, require the First Lien Secured Parties to transfer and assign to the Second Lien Secured Parties on the date specified in such Purchase Notice in accordance with the definition thereof, without warranty or representation or recourse, all (but not less than all) of the First Lien Secured Obligations (such transfer and assignment, the “Purchase”); provided that (i) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction and shall be effected pursuant to an assignment agreement in form reasonably satisfactory to the First Lien Representative, (ii) the Second Lien Secured Parties shall have paid to the First Lien Representative, for the account of the First Lien Secured Parties, in cash or immediately available funds, an amount equal to 100% of the principal of such Indebtedness (including any unreimbursed drawings under letters of credit but excluding any undrawn letters of credit) plus all accrued and unpaid interest thereon plus all accrued and unpaid fees plus all the other First Lien Secured Obligations then outstanding (other than any acceleration prepayment penalties or premiums) (which shall include (A) with respect to any letters of credit outstanding under the First Lien Credit Agreement, an amount in cash or immediately available funds equal to 103% of the aggregate face amount thereof (other than any portion of such amount that represents unreimbursed drawings thereunder), (B) with respect to Hedge Agreements (as defined in the First Lien Credit Agreement) that constitute First Lien Secured Obligations, 100% of the aggregate amount of such First Lien Secured Obligations (giving effect to any netting arrangements) that the applicable Grantor would be required to pay if such Hedge Agreements were terminated at such time, (C) with respect to Specified Cash Management Services Agreements (as defined in the First Lien Credit Agreement), the net aggregate amount then owing to creditors thereunder to the extent constituting First Lien Secured Obligations, including all amounts owing to such creditors as a result of the termination (or early termination) thereof, and (D) an amount reasonably calculated by the First Lien Representative with respect to any contingent or unliquidated First Lien Secured Obligations related to claims, causes of action or liabilities that have theretofore been asserted in writing by the First Lien Secured Parties and for which indemnification or reimbursement is required under the First Lien Loan Documents) and (iii) each First Lien Secured Party is permitted to retain all rights to indemnification provided in the relevant First Lien Loan Documents for all claims and other amounts relating to periods prior to such transfer of the First Lien Secured Obligations (provided that such rights and claims shall not be secured by the Collateral after the consummation of the Purchase). In order to effectuate the Purchase, the First Lien Representative shall calculate, upon the written request of the Second Lien Representative from time to time, the amount in cash or immediately available funds that would be necessary so to purchase the First Lien Secured Obligations (based on information available to it, and shall use commercially reasonable efforts to obtain information not available to it necessary to perform such calculation).

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(e)The First Lien Representative shall provide to the Second Lien Representative, and the Second Lien Representative shall provide to the First Lien Representative, reasonable prior notice of its initial material Enforcement Action.

SECTION 3.02.No Interference. (a) The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that, so long as the Discharge of First Lien Secured Obligations has not occurred, and whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:

(i)except for Second Lien Permitted Actions, will not (A) commence (or file with any court documents that seek to commence) or maintain or seek to maintain any Enforcement Action, (B) commence (or file with any court documents that seek to commence) or join with any Person (other than the First Lien Representative) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to any Enforcement Action or (C) commence (or file with any court documents that seek to commence) or join with any Person (other than the First Lien Representative) in commencing any involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor; provided, however, that the Second Lien Representative may commence or seek to commence, and maintain or seek to maintain, any Enforcement Action, or join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 150 days has elapsed (which period shall be tolled during any period in which the First Lien Representative is not entitled, on behalf of the First Lien Secured Parties, to take any Enforcement Action with respect to any Collateral as a result of (x) any injunction issued by a court of competent jurisdiction (which the First Lien Representative is diligently seeking to vacate) or (y) the automatic stay or any other stay or prohibition in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Representative has delivered to the First Lien Representative written notice (with a copy to the Borrower) of the occurrence of an event of default under the Second Lien Loan Documents (the “Standstill Period”); provided that all other provisions of this Agreement (including the turnover provisions of Article IV or Article VI) are complied with; provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Second Lien Representative or any other Second Lien Secured Party commence (or file with any court documents that seek to commence) or maintain or seek to maintain any Enforcement Action, or commence (or file with any court documents that seek to commence), join with any Person in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to any Enforcement Action, if the First Lien Representative or any other First Lien Secured Party shall have commenced, and shall be diligently pursuing any Enforcement Action with respect to any Collateral or any such action or proceeding;

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(ii)will not contest, protest or object to any Enforcement Action sought or maintained by the First Lien Representative or any other First Lien Secured Party relating to the Collateral under the First Lien Loan Documents or otherwise, so long as the Second Priority Liens attach to the Proceeds thereof subject to the relative priorities set forth in Section 2.01 and such Enforcement Action is not in contravention of the terms of this Agreement and applicable law;

(iii)subject to the rights of the Second Lien Secured Parties under clause (i) above, will not contest, protest or object to the forbearance by the First Lien Representative or any other First Lien Secured Party from commencing or pursuing any Enforcement Action or to the terms or conditions applicable to any such forbearance;

(iv)will not, except for the Second Lien Permitted Actions, take or receive any Collateral, or any Proceeds thereof or payment with respect thereto (other than, subject to Sections 6.01 and 6.03, Reorganization Securities), in connection with any Enforcement Action with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;

(v)will not, except for the Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any material respect, any enforcement or exercise of any rights or remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;

(vi)will not, except for the Second Lien Permitted Actions, contest, protest or object to the manner in which the First Lien Representative or any other First Lien Secured Party may seek to enforce or collect the First Lien Secured Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Representative or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, provided that any such action or failure to act is not in contravention of this Agreement and applicable law, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar statutory right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and

(vii)will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, and hereby waive any right, to contest, challenge or question the validity or enforceability of any First Lien Secured Obligation or any First Lien Security Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement.

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SECTION 3.03.Rights as Unsecured Creditors. The Second Lien Representative and the other Second Lien Secured Parties may, in accordance with the terms of the Second Lien Loan Documents and applicable law, enforce rights and exercise remedies against the Borrower and any Guarantor that are available to unsecured creditors (other than initiating or joining in an involuntary case or proceeding under any Insolvency or Liquidation Proceeding with respect to any Grantor or taking any other Enforcement Action); provided that no such action is in contravention of the terms of this Agreement (including Article VI hereof). Nothing in this Agreement shall prohibit the receipt by the Second Lien Representative or any other Second Lien Secured Party of the required payments of principal, premium, interest, fees and other amounts due under the Second Lien Loan Documents so long as such receipt is not the direct or indirect result of a distribution or recovery in any Insolvency or Liquidation Proceeding in contravention of this Agreement (but subject to Section 4.02), any Enforcement Action by the Second Lien Representative or any other Second Lien Secured Party in contravention of this Agreement or any other enforcement or exercise by the Second Lien Representative or any other Second Lien Secured Party of rights or remedies as a secured creditor (including any right of setoff) in contravention of this Agreement or enforcement in contravention of this Agreement of any Second Priority Lien (including any judgment lien resulting from the exercise of remedies available to an unsecured creditor, to the extent such judgment lien applies to Collateral), with the Second Lien Representative, on behalf of itself and the other Second Lien Secured Parties, hereby agreeing that any amounts received by or distributed to any Second Lien Secured Party in contravention of the foregoing shall be subject to Section 4.02.

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SECTION 3.04.Automatic Release of Second Priority Liens. (a) If, in connection with (i) any Disposition of any Collateral permitted under the terms of the First Lien Loan Documents or (ii) the enforcement or exercise of any rights or remedies with respect to the Collateral, including any Disposition of Collateral, the First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, (A) releases the First Priority Liens on any Collateral or (B) releases any Guarantor the Equity Interests in which are subject to such Disposition or such enforcement or exercise from its obligations under its guarantee of the First Lien Secured Obligations (in each case, a “Release”), other than any such Release granted (except as a result of the enforcement or exercise of any rights or remedies pursuant to clause (ii) above) in connection with the Discharge of First Lien Loan Document Obligations, then the Second Priority Liens on such Collateral, and the obligations of such Guarantor under its guarantee of the Second Lien Secured Obligations, shall be immediately, automatically, unconditionally and simultaneously released, and upon delivery to the Second Lien Representative of an Officer’s Certificate stating that any such Release in respect of the First Lien Secured Obligations has become effective (or shall become effective concurrently with such release of the Second Priority Liens on such Collateral granted to the Second Lien Secured Parties and the Second Lien Representative or the release of the obligations of such Guarantor under its guarantee of the Second Lien Secured Obligations, as the case may be) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor or Guarantor, the Second Lien Representative shall, for itself and on behalf of the other Second Lien Secured Parties, promptly execute and deliver to the First Lien Representative, the relevant Grantor or such Guarantor, at the Borrower’s or the other Grantor’s or Guarantor’s sole cost and expense and without any representation or warranty, such termination statements, releases and other documents as the First Lien Representative or the relevant Grantor or Guarantor may reasonably request to effectively confirm such Release; providedthat, in the case of any Disposition of Collateral, notwithstanding the release of the Second Priority Liens thereon, the Second Priority Liens shall attach to the Proceeds thereof subject to the relative priorities set forth in Section 2.01 (and, for the avoidance of doubt, nothing in the foregoing shall be deemed to be a release of the Second Priority Liens on any such Proceeds, it being the express intent of the Second Lien Secured Parties that the Second Priority Liens attach to such Proceeds); provided further that (x) in the case of any Disposition of any Collateral (other than any such Disposition in connection with the enforcement or exercise of any rights or remedies with respect to such Collateral or pursuant to an Insolvency or Liquidation Proceeding), the Second Priority Liens on such Collateral shall not be so released if such Disposition is not permitted under the terms of the Second Lien Credit Agreement or such Disposition is to the Borrower or any of its Affiliates and (y) in the case of any Disposition of any Collateral, the Second Priority Liens shall not be so released without the consent of the Second Lien Representative unless the net cash Proceeds of such Disposition will be applied (if applicable, upon judicial approval of such application) to permanently repay or prepay (or otherwise reduce, in the case of a “credit bid”) (1) the First Lien Secured Obligations, it being understood that any such repayment or prepayment of principal of Capped First Lien Loan Document Obligations shall reduce the Maximum First Lien Principal Amount by an equal amount, or (2) any DIP Financing. In the case of any Disposition of any Collateral by the First Lien Representative (other than pursuant to any Insolvency or Liquidation Proceeding), the First Lien Representative (I) shall provide the Second Lien Representative with at least 10 Business Days’ prior written notice of such Disposition and (II) shall take reasonable care (as determined in the reasonable credit judgment of the First Lien Representative) to conduct such Disposition in a commercially reasonable manner (it being understood that the First Lien Representative shall have no obligation to postpone any such Disposition in order to achieve a higher price).

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(b)Until the Discharge of First Lien Loan Document Obligations occurs, the Second Lien Representative, for itself and on behalf of each other Second Lien Secured Party, hereby appoints the First Lien Representative, and any officer or agent of the First Lien Representative, with full power of substitution, as the attorney-in-fact of each Second Lien Secured Party for the purpose of carrying out the express provisions of this Section 3.04 and taking any action and executing any instrument that the First Lien Representative reasonably deems necessary to accomplish the purposes of this Section 3.04 (including any endorsements or other instruments of transfer or release), which appointment is irrevocable and coupled with an interest.

SECTION 3.05.Insurance and Condemnation Awards. So long as the Discharge of First Lien Secured Obligations has not occurred, the First Lien Representative and the other First Lien Secured Parties shall have the exclusive right, subject to the rights of the Grantors under the First Lien Loan Documents, to settle and adjust claims in respect of Collateral under policies of insurance covering Collateral and to approve any award granted in any condemnation or similar proceeding, or any deed in lieu of condemnation, in respect of the Collateral. All Proceeds of any such policy and any such award, or any payments with respect to a deed in lieu of condemnation, shall (a) first, prior to the Discharge of First Lien Secured Obligations and subject to the rights of the Grantors under the First Lien Loan Documents, be paid to the First Lien Representative for the benefit of First Lien Secured Parties pursuant to the terms of the First Lien Loan Documents, (b) second, after the Discharge of First Lien Secured Obligations and subject to the rights of the Grantors under the Second Lien Loan Documents, be paid to the Second Lien Representative for the benefit of the Second Lien Secured Parties pursuant to the terms of the Second Lien Loan Documents until the Discharge of Second Lien Secured Obligations (other than Excess Second Lien Obligations), (c) third, after the Discharge of Second Lien Secured Obligations (other than Excess Second Lien Obligations), be paid to the First Lien Representative for the benefit of the First Lien Secured Parties pursuant to the terms of the First Lien Loan Documents on account of the Excess First Lien Obligations, (d) fourth, after the Discharge of Excess First Lien Obligations, be paid to the Second Lien Representative for the benefit of the Second Lien Secured Parties pursuant to the terms of the Second Lien Loan Documents on account of the Excess Second Lien Obligations and (e) fifth, be paid to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Lien Secured Obligations has occurred, if the Second Lien Representative or any other Second Lien Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment, it shall transfer and pay over such proceeds to the First Lien Representative in accordance with Section 4.02.

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ARTICLE IV

PAYMENTS

SECTION 4.01.Application of Proceeds. So long as the Discharge of First Lien Secured Obligations has not occurred, any Collateral or Proceeds thereof received by the First Lien Representative in connection with any Enforcement Action or in connection with any Insolvency or Liquidation Proceeding shall be applied by the First Lien Representative to the First Lien Secured Obligations in accordance with the terms of the First Lien Loan Documents. Upon the Discharge of First Lien Secured Obligations, (a) if the Discharge of Second Lien Secured Obligations (other than Excess Second Lien Obligations) has not occurred, subject to Section 2.05, the First Lien Representative shall deliver (without any representation, warranty or recourse) to the Second Lien Representative any remaining Collateral and any Proceeds thereof then held by it in the same form as received, together with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the Second Lien Representative to the Second Lien Secured Obligations (other than Excess Second Lien Obligations) and (b) so long as the Discharge of Second Lien Secured Obligations (other than Excess Second Lien Obligations) has not occurred, any Collateral or Proceeds thereof received by the Second Lien Representative pursuant to clause (a) of this sentence or in connection with any Enforcement Action or in connection with any Insolvency or Liquidation Proceeding shall be applied by the Second Lien Representative to the Second Lien Secured Obligations (other than Excess Second Lien Obligations) in accordance with the terms of the Second Lien Loan Documents. Upon the Discharge of Second Lien Secured Obligations (other than Excess Second Lien Obligations), (i) if the Discharge of Excess First Lien Obligations has not occurred, subject to Section 2.05, the Second Lien Representative shall deliver (without any representation, warranty or recourse) to the First Lien Representative any remaining Collateral and any Proceeds thereof then held by it in the same form as received, together with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the First Lien Representative to the Excess First Lien Obligations and (ii) so long as the Discharge of Excess First Lien Obligations has not occurred, any Collateral or Proceeds thereof received by the First Lien Representative pursuant to clause (i) of this sentence or in connection with any Enforcement Action or in connection with any Insolvency or Liquidation Proceeding shall be applied by the First Lien Representative to the Excess First Lien Obligations in accordance with the terms of the First Lien Loan Documents. Upon the Discharge of Excess First Lien Obligations, (A) if the Discharge of Second Lien Secured Obligations has not occurred, subject to Section 2.05, the First Lien Representative shall deliver (without any representation, warranty or recourse) to the Second Lien Representative any remaining Collateral and any Proceeds thereof then held by it in the same form as received, together with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the Second Lien Representative to the Excess Second Lien Obligations and (B) if the Discharge of Second Lien Secured Obligations has also occurred, the First Lien Representative or the Second Lien Representative, as applicable, shall deliver (without any representation, warranty or recourse) to the Person entitled thereto any remaining Collateral and any Proceeds thereof then held by it in the same form as received, together with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct.

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SECTION 4.02.Payment Over. So long as the Discharge of First Lien Secured Obligations has not occurred, any Collateral, or any Proceeds thereof or payment in connection therewith or on account thereof (together with assets or Proceeds subject to Liens referred to in the final sentence of Section 2.04 or in the final proviso of Section 6.01(b) or amounts referred to in the parenthetical at the end of Section 3.03 or Collateral, Proceeds or distributions referred to in the last two sentences of Section 7.04), received by the Second Lien Representative or any other Second Lien Secured Party as a distribution or recovery in any Insolvency or Liquidation Proceeding (other than any post-petition amounts received by the Second Lien Secured Parties as contemplated by Section 6.04(b) or Reorganization Securities), or in connection with any Enforcement Action, or in connection with any insurance policy claim or any condemnation award (or deed in lieu of condemnation), shall be segregated and held in trust and promptly transferred or paid over to the First Lien Representative for the benefit of the First Lien Secured Parties in the same form as received, together with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Lien Secured Obligations occurs, the Second Lien Representative, for itself and on behalf of each other Second Lien Secured Party, hereby appoints the First Lien Representative, and any officer or agent of the First Lien Representative, with full power of substitution, the attorney-in-fact of each Second Lien Secured Party for the purpose of carrying out the express provisions of this Section 4.02 and taking any action and executing any instrument that the First Lien Representative reasonably deems necessary to accomplish the purposes of this Section 4.02, which appointment is irrevocable and coupled with an interest.

SECTION 4.03.Certain Agreements with Respect to Invalid or Unenforceable Liens. Notwithstanding anything to the contrary contained herein, if in any Insolvency or Liquidation Proceeding a determination is made that any Lien encumbering any Collateral is not valid, perfected or enforceable for any reason, or is subordinated in any respect to any other Liens, then the Second Lien Representative and the other Second Lien Secured Parties agree that any distribution or recovery they may receive with respect to, or on account of, the value of the assets intended to constitute such Collateral or any Proceeds thereof shall (for so long as the Discharge of First Lien Secured Obligations has not occurred) be segregated and held in trust and promptly paid over to the First Lien Representative for the benefit of the First Lien Secured Parties in the same form as received without recourse, representation or warranty (other than a representation of the Second Lien Representative that it has not otherwise sold, assigned, transferred or pledged any right, title or interest in and to such distribution or recovery) but with any necessary endorsements or as a court of competent jurisdiction may otherwise direct until such time as the Discharge of First Lien Secured Obligations has occurred. Until the Discharge of First Lien Secured Obligations occurs, the Second Lien Representative, for itself and on behalf of each other Second Lien Secured Party, hereby appoints the First Lien Representative, and any officer or agent of the First Lien Representative, with full power of substitution, the attorney-in-fact of each Second Lien Secured Party for the limited purpose of carrying out the express provisions of this Section 4.03 and taking any action and executing any instrument that the First Lien Representative reasonably deems necessary to accomplish the purposes of this Section 4.03, which appointment is irrevocable and coupled with an interest.

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ARTICLE V

BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS

(a)The First Lien Representative agrees that if it shall at any time hold a First Priority Lien on any Pledged or Controlled Collateral and if such Pledged or Controlled Collateral is in fact in the possession or under the control of the First Lien Representative, or of agents or bailees of the First Lien Representative, the First Lien Representative shall, solely for the purpose of perfecting by possession or control, as applicable, the Second Priority Liens granted under the Second Lien Loan Documents and subject to the terms and conditions of this Article V, also hold and control such Pledged or Controlled Collateral as gratuitous bailee and gratuitous agent for the Second Lien Representative and hereby acknowledges that it has control of any Pledged or Controlled Collateral in its control on behalf of and for the benefit of the Second Lien Representative.

(b)So long as the Discharge of First Lien Secured Obligations has not occurred, the First Lien Representative shall be entitled to deal with the Pledged or Controlled Collateral in accordance with the terms of this Agreement and the other First Lien Loan Documents and applicable law as if the Second Priority Liens did not exist. The obligations and responsibilities of the First Lien Representative to the Second Lien Representative and the other Second Lien Secured Parties under this Article V shall be limited solely to holding or controlling the Pledged or Controlled Collateral as gratuitous bailee or gratuitous agent for the Second Lien Representative, and transferring the Pledged or Controlled Collateral, in each case, subject to the terms and conditions of this Article V. Without limiting the foregoing, the First Lien Representative shall have no obligation or responsibility to ensure that any Pledged or Controlled Collateral is genuine or owned by any of the Grantors or to preserve the rights or benefits of any Person. The First Lien Representative acting pursuant to this Article V shall not, by reason of this Agreement, any other Security Document or any other document, have a fiduciary relationship in respect of any other First Lien Secured Party, the Second Lien Representative or any other Second Lien Secured Party. The parties recognize that the interest of the First Lien Representative, on the one hand, and the Second Lien Representative and the other Second Lien Secured Parties, on the other hand, may differ, and the First Lien Representative may act in its own interest without taking into account the interest of the Second Lien Representative or any other Second Lien Secured Party.

(c)Upon the Discharge of First Lien Secured Obligations, the First Lien Representative shall transfer the possession and control of the Pledged or Controlled Collateral (other than with respect to any deposit account as to which control is maintained pursuant to Section 9-104(a)(1) of the Uniform Commercial Code), together with any necessary endorsements but without recourse, representation or warranty, (i) if the Second Lien Secured Obligations are outstanding at such time, to the Second Lien Representative, and (ii) if no Second Lien Secured Obligations are outstanding at such time, to the applicable Grantor, in each case so as to allow such Person to obtain possession and control of such Pledged or Controlled Collateral. In connection with any transfer under clause (i) of the immediately preceding sentence, the First Lien Representative agrees to take all commercially reasonable actions as shall be reasonably requested by the Second Lien Representative to permit the Second Lien Representative to obtain, for the benefit of the Second Lien Secured Parties, a first priority security interest in the Pledged or Controlled Collateral.

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(d)The Second Lien Representative agrees that if it shall at any time prior to the Discharge of First Lien Secured Obligations hold a Second Priority Lien on any Pledged or Controlled Collateral and if, notwithstanding the provisions of this Agreement (and disregarding any control the Second Lien Representative might have solely as a result of the foregoing provisions of this Article V), such Pledged or Controlled Collateral is in fact in the possession or under the control of the Second Lien Representative, or of agents or bailees of the Second Lien Representative, the Second Lien Representative shall (i) solely for the purpose of perfecting by possession or control, as applicable, the First Priority Liens granted under the First Lien Loan Documents, also hold and control such Pledged or Controlled Collateral as gratuitous bailee and gratuitous agent for the First Lien Representative (and hereby acknowledges that it has control of any Pledged or Controlled Collateral in its control on behalf of and for the benefit of the First Lien Representative), (ii) promptly inform the First Lien Representative thereof and (iii) other than with respect to any deposit account as to which control is maintained pursuant to Section 9-104(a)(1) of the Uniform Commercial Code, transfer the possession and control of such Pledged or Controlled Collateral, together with any necessary endorsements but without recourse, representation or warranty, to the First Lien Representative and, in connection therewith, take all commercially reasonable actions as shall be reasonably requested by the First Lien Representative to permit the First Lien Representative to obtain, for the benefit of the First Lien Secured Parties, a first priority security interest in such Pledged or Controlled Collateral.

ARTICLE VI

INSOLVENCY OR LIQUIDATION PROCEEDINGS

SECTION 6.01.Finance and Sale Matters. (a) Until the Discharge of First Lien Loan Document Obligations has occurred, the Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that, in the event of any Insolvency or Liquidation Proceeding, the Second Lien Secured Parties:

(i)will be deemed to have consented to, and will not oppose or object to (or support any other Person in opposing or objecting to), the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, that is consented to, or not opposed or objected to, by the First Lien Representative or any other representative authorized by the First Lien Secured Parties (and neither the Second Lien Representative nor any Second Lien Secured Party shall seek any relief in connection therewith that is in conflict with the relief being sought by the First Lien Secured Parties (it being understood that the foregoing shall not affect the rights of the Second Lien Secured Parties to seek adequate protection as provided in Section 6.01(b)));

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(ii)will be deemed to have consented to, and will not oppose or object to (or support any other Person in opposing or objecting to), any post-petition financing provided by one or more of the First Lien Secured Parties under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law (a “DIP Financing”), or the Liens securing any DIP Financing (“DIP Financing Liens”), that is consented to, or not opposed or objected to, by the First Lien Representative or any other representative authorized by the First Lien Secured Parties and, to the extent that (A) such DIP Financing Liens are senior to, or rank pari passu with, the First Priority Liens securing the First Lien Secured Obligations, (B) the economic terms of such DIP Financing (i.e., the interest rate, fees, original issue discount and other similar terms) and the scheduled amortization applicable to such DIP Financing are on commercially reasonable terms, (C) such DIP Financing does not compel the Borrower or any other Grantor to seek confirmation of a specific plan of reorganization of which the material terms are set forth in the DIP Financing documentation or a related document (it being agreed that the inclusion of termination events or milestones in the DIP Financing documentation shall not be deemed to constitute such a condition), (D) the DIP Financing documentation does not expressly require the sale, disposition or liquidation of all or any material portion of the Collateral prior to a default under the DIP Financing documentation, (E) the Second Lien Secured Parties are not required to release their Liens on the Collateral as a condition to such DIP Financing and (F) the sum of (x) the aggregate outstanding principal amount of loans and letters of credit under, together with the aggregate amount of undrawn commitments under, any DIP Financing (after giving effect to any Refinancing or “roll-up” of First Lien Loan Document Obligations) plus (y) the aggregate outstanding amount of the Capped First Lien Loan Document Obligations does not exceed the Maximum First Lien Principal Amount, the Second Lien Representative will, for itself and on behalf of the other Second Lien Secured Parties, subordinate (and will be deemed to have subordinated) the Second Priority Liens to (1) the First Priority Liens and the DIP Financing Liens on the terms of this Agreement and (2) any customary “carve-out” for U.S. trustee fees specified in the financing order relating to such DIP Financing;

(iii)except to the extent permitted by Section 6.01(b), in connection with the use of cash collateral as described in clause (i) above or a DIP Financing, will not request adequate protection or any other relief in connection with such use of cash collateral, DIP Financing or DIP Financing Liens; and

(iv)will be deemed to have consented to, and will not oppose or object to (or support any other Person in opposing or objecting to) any Disposition of any Collateral free and clear of the Second Priority Liens or other claims under Section 363 of the Bankruptcy Code (provided that the Second Lien Representative may object to the Disposition on any grounds that may be asserted by an unsecured creditor), or any comparable provision of any other Bankruptcy Law, if the First Lien Secured Parties, or a representative authorized by the First Lien Secured Parties, shall consent to, or not oppose or object to, such Disposition; providedthat, in the case of any such Disposition, notwithstanding the release of the Second Priority Liens thereon, the Second Priority Liens shall attach to the Proceeds thereof subject to the relative priorities set forth in Section 2.01 (and, for the avoidance of doubt, nothing in the foregoing shall be deemed to be a release of the Second Priority Liens on any such Proceeds, it being the express intent of the Second Lien Secured Parties that the Second Priority Liens attach to such Proceeds).

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Notwithstanding anything to the contrary contained herein, nothing in this Section 6.01(a) shall prohibit any Second Lien Secured Party from proposing a DIP Financing so long as (A) no First Lien Secured Party has offered to provide a DIP Financing within three days of commencement of any Insolvency or Liquidation Proceeding, (B) the DIP Financing Liens with respect to such DIP Financing are junior to the First Priority Liens securing the First Lien Secured Obligations, (C) the economic terms of such DIP Financing (i.e., the interest rate, fees, original issue discount and other similar terms) and the scheduled amortization applicable to such DIP Financing are on commercially reasonable terms, (D) such DIP Financing does not compel the Borrower or any other Grantor to seek confirmation of a specific plan of reorganization of which the material terms are set forth in the DIP Financing documentation or a related document (it being agreed that the inclusion of termination events or milestones in the DIP Financing documentation shall not be deemed to constitute such a condition), (E) the DIP Financing documentation does not expressly require the sale, disposition or liquidation of all or any material portion of the Collateral prior to a default under the DIP Financing documentation, (F) the First Lien Secured Parties are not required to release their Liens on the Collateral as a condition to such DIP Financing and (G) the sum of (x) the aggregate outstanding principal amount of loans and letters of credit under, together with the aggregate amount of undrawn commitments under, any such DIP Financing (after giving effect to any Refinancing or “roll-up” of Second Lien Secured Obligations) plus (y) the aggregate outstanding principal amount of the Second Lien Secured Obligations does not exceed the Maximum Second Lien Principal Amount plus $30,000,000.

(b)The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that, until the Discharge of First Lien Loan Document Obligations has occurred, no Second Lien Secured Party shall contest, or join or otherwise support any other Person in contesting, (i) any request by the First Lien Representative or any other First Lien Secured Party for adequate protection or (ii) any objection, based on a claim of a lack of adequate protection, by the First Lien Representative or any other First Lien Secured Party to any motion, relief, action or proceeding. Notwithstanding the immediately preceding sentence, (A) if any First Lien Secured Party is granted adequate protection in the form of a replacement Lien or a Lien on additional collateral, the Second Lien Representative may, for itself and on behalf of the other Second Lien Secured Parties, seek or request adequate protection in the form of a replacement Lien or a Lien on such additional collateral, which Liens will be subordinated to the First Priority Liens and DIP Financing Liens on the same basis as the other Second Priority Liens are subordinated to the First Priority Liens under this Agreement, and (B) the Second Lien Representative and other Second Lien Secured Parties may seek adequate protection with respect to their rights in the Collateral in any Insolvency or Liquidation Proceeding in the form of (x) Liens on additional collateral or replacement Liens on the Collateral, provided that, in either such case, as adequate protection for the First Lien Secured Obligations, the First Lien Representative, on behalf of the First Lien Secured Parties, is also granted (or has previously been granted) a senior Lien on such additional collateral or senior replacement Liens on the Collateral, as applicable, (y) an administrative expense claim (including a superpriority administrative claim), provided that, as adequate protection for the First Lien Secured Obligations, the First Lien Representative, on behalf of the First Lien Secured Parties, is also granted (or has previously been granted) an administrative expense claim that is senior and prior to the administrative expense claim (including any superpriority administrative claim) of the Second Lien Representative and the Second Lien Secured Parties, or (z) the current payment of out-of-pocket fees and expenses of counsel and advisors incurred by the Second Lien Representative; provided further that, in the case of each of clauses (x) and (y), (I) to the extent the First Lien Secured Parties are not granted such adequate protection in the applicable form, any amounts recovered by or distributed to any Second Lien Secured Party pursuant to or as a result of any such Lien on additional collateral, any such replacement Lien or any such administrative expense claim granted to or for the benefit of the Second Lien Secured Parties shall be subject to Section 4.02 and (II) the Second Lien Secured Parties shall have agreed (and by virtue of accepting any such adequate protection shall be deemed to have agreed) pursuant to Section 1129(a)(9) of the Bankruptcy Code that any Section 507(b) claims arising in respect of any adequate protection granted to the Second Lien Secured Parties may be paid under a plan of reorganization in any form having a value on the effective date of such plan equal to the allowed amount of such claims (i.e., are not required to be paid solely in cash). It is understood and agreed that nothing in clause (B) above shall modify or otherwise affect the other agreements by or on behalf of the Second Lien Representative or the Second Lien Secured Parties set forth in this Agreement (including the agreements to consent to or not to oppose or object that are set forth in Section 6.01(a)). Until the Discharge of First Lien Loan Document Obligations has occurred, the Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that, in the event of any Insolvency or Liquidation Proceeding, except to the extent permitted by the foregoing provisions of this Section 6.01(b), the Second Lien Secured Parties will not assert any claim (or support any other Person in asserting any claim) under Section 507(b) of the Bankruptcy Code.

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SECTION 6.02.Relief from the Automatic Stay. The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that, so long as the Discharge of First Lien Loan Document Obligations has not occurred, no Second Lien Secured Party shall, without the prior written consent of the First Lien Representative, seek or request relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of any part of the Collateral, any Proceeds thereof or any Second Priority Lien.

SECTION 6.03.Reorganization Securities. Nothing in this Agreement prohibits or limits the right of the Second Lien Representative or any other Second Lien Secured Party to receive and retain any debt or equity obligations or securities that are issued by a reorganized debtor pursuant to a plan of reorganization or similar dispositive restructuring plan in connection with any Insolvency or Liquidation Proceeding (any such debt or equity obligations or securities, “Reorganization Securities”). If, in any Insolvency or Liquidation Proceeding, Reorganization Securities are so permitted to be distributed on account of both the First Lien Secured Obligations and the Second Lien Secured Obligations, then, to the extent the Reorganization Securities distributed on account of the First Lien Secured Obligations and on account of the Second Lien Secured Obligations are secured by Liens upon the same assets or property, the provisions of this Agreement will survive the distribution of such Reorganization Securities pursuant to such plan and will apply with like effect to the Liens securing such Reorganization Securities.

SECTION 6.04.Post-Petition Interest. (a) The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that no Second Lien Secured Party shall oppose or seek to challenge (or support any other Person in opposing or challenging) any claim by the First Lien Representative or any other First Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Lien Secured Obligations consisting of post-petition interest, fees, expenses or indemnities to the extent of the value of the First Priority Liens (it being understood and agreed that such value shall be determined without regard to the existence of the Second Priority Liens on the Collateral).

(b)The First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, agrees that no First Lien Secured Party shall oppose or seek to challenge (or support any other Person in opposing or challenging) any claim by the Second Lien Representative or any other Second Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of Second Lien Secured Obligations consisting of post-petition interest, fees, expenses or indemnities to the extent of the value of the Second Priority Liens (it being understood and agreed that such value shall be determined taking into account the First Priority Liens on the Collateral and the amount of the First Lien Secured Obligations secured thereby).

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SECTION 6.05.Certain Waivers by the Second Lien Secured Parties. The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, waives any claim any Second Lien Secured Party may hereafter have against any First Lien Secured Party arising out of (a) the election by any First Lien Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, or (b) any use of cash collateral or financing arrangement, or any grant of a security interest in the Collateral, in any Insolvency or Liquidation Proceeding to the extent that the same is not in contravention of this Agreement.

SECTION 6.06.Certain Voting Matters. Each of the First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, and the Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that, without the written consent of the other, it will not seek to vote with the other as a single class in connection with any plan of reorganization in any Insolvency or Liquidation Proceeding.

SECTION 6.07.Subordination Agreement. The parties hereto expressly acknowledge that this Agreement is intended to constitute a “subordination agreement” within the scope of Section 510(a) of the Bankruptcy Code, which will be effective before, during and after the commencement of an Insolvency or Liquidation Proceeding. All references in this Agreement to any Grantor will include such Person as a debtor-in-possession and any receiver or trustee for such Person in an Insolvency or Liquidation Proceeding.

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ARTICLE VII

OTHER AGREEMENTS

SECTION 7.01.Matters Relating to Loan Documents. (a) The First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms, and the Indebtedness under the First Lien Credit Agreement may be Refinanced, in each case, without the consent of any Second Lien Secured Party; provided, however, that, without the consent of the Second Lien Required Lenders, no such amendment, restatement, supplement, modification or Refinancing (or successive amendments, restatements, supplements, modifications or Refinancings) shall (i) contravene the provisions of this Agreement, (ii) directly increase the interest rate margins accruing on the principal of loans and letters of credit under the First Lien Credit Agreement or any Refinancing thereof (determined on a weighted average basis) to an amount greater than 3.00% per annum above the applicable interest rate margins accruing on the principal of loans and letters of credit under the First Lien Credit Agreement as in effect on the date hereof (excluding, without limitation, any underlying benchmark rates or any fluctuations thereof, any benchmark rate “floor” not exceeding 1.00% per annum in respect of any eurodollar rate “floor” or 2.00% per annum in respect of any alternate base rate “floor”, any default rate not exceeding 2.00% per annum, any interest or fees that are paid-in-kind (and not paid in cash until the final scheduled maturity date of the First Lien Secured Obligations or any Refinancing thereof, as applicable), any original issue discount, upfront fees and prepayment premiums and any fees payable in connection with any amendment, restatement, supplement, modification, Refinancing, waiver, consent or similar agreement), (iii) add or modify in a manner adverse to the interests of the Second Lien Secured Parties any express prohibition or restriction on the payment of the Second Lien Secured Obligations except as set forth in Section 7.01(b) or in the First Lien Credit Agreement as in effect on the date hereof, (iv) modify (A) any of the restrictions as set forth in the First Lien Credit Agreement as in effect on the date hereof on assignment of, or participation in, all or any portion of the First Lien Secured Obligations or Excess First Lien Obligations to the Borrower or any Affiliate (including any Subsidiary) thereof or (B) any of the requirements as set forth in the First Lien Credit Agreement as in effect on the date hereof that any First Lien Secured Obligations or Excess First Lien Obligations acquired by the Borrower are deemed automatically cancelled and no longer outstanding,(v) restrict the amendment or other modification of the Second Lien Loan Documents or impose express restrictions or conditions on any Refinancing thereof except as set forth in Section 7.01(b) or in the First Lien Credit Agreement as in effect on the date hereof or (vi) amend, modify, affect the rights, duties, privileges, protections, indemnities or immunities of, or otherwise impose duties that are adverse on, the Second Lien Representative without its prior written consent; providedfurther that, in the event of a Refinancing, the holders of the Indebtedness resulting from any such Refinancing, or a duly authorized agent on their behalf (to the extent such holders and the agent of such holders, in such capacity, are not already bound by the terms of this Agreement), agree in writing to be bound by the terms of this Agreement pursuant to an amendment effected in accordance with Section 10.05.

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(b)The Second Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms, in each case, without the consent of any First Lien Secured Party; provided, however, that, without the consent of the First Lien Required Lenders, no such amendment, restatement, supplement, modification or Refinancing (or successive amendments, restatements, supplements, modifications or Refinancings) shall (i) contravene the provisions of this Agreement, (ii) directly increase the interest rate margins accruing on the principal of loans under the Second Lien Credit Agreement or any Refinancing thereof (determined on a weighted average basis) to an amount greater than 3.00% per annum above the applicable interest rate margins accruing on the principal of loans under the Second Lien Credit Agreement as in effect on the date hereof (excluding, without limitation, any underlying benchmark rates or any fluctuations thereof, any benchmark rate “floor” not exceeding 1.00% per annum in respect of any eurodollar rate “floor” or 2.00% per annum in respect of any alternate base rate “floor”, any default rate not exceeding 2.00% per annum, any interest or fees that are paid-in-kind (and not paid in cash until the final scheduled maturity date of the Second Lien Secured Obligations or any Refinancing thereof, as applicable), any original issue discount, upfront fees and prepayment premiums and any fees payable in connection with any amendment, restatement, supplement, modification, Refinancing, waiver, consent or similar agreement), (iii) shorten the final scheduled maturity date or decrease the weighted average life to maturity of any Indebtedness constituting Second Lien Secured Obligations or any Refinancing thereof, (iv) provide for new affirmative covenants, new negative covenants, new financial maintenance covenants, new events of default or modifications of existing exceptions, baskets, levels or thresholds in negative covenants, financial maintenance covenants or events of default that are more restrictive on the Grantors, unless, in each case, the Borrower has provided written notice thereof to the First Lien Representative and has offered to make (and, at the request of the First Lien Representative, the Borrower has made) a corresponding change to the First Lien Loan Documents (with the same percentage “cushion” applicable to such covenants or events of default as in effect on the date hereof), (v) add any express prohibition or restriction on the payment of the First Lien Secured Obligations, (vi) restrict the amendment or other modification of the First Lien Loan Documents or impose express restrictions or conditions on any Refinancing thereof except as set forth in Section 7.01(a) or in the Second Lien Credit Agreement as in effect on the date hereof or (vii) amend, modify, affect the rights, duties, privileges, protections, indemnities or immunities of, or otherwise impose duties that are adverse on, the First Lien Representative without its prior written consent; providedfurther that, in the event of a Refinancing, the holders of the Indebtedness resulting from any such Refinancing, or a duly authorized agent on their behalf (to the extent such holders and the agent of such holders, in such capacity, are not already bound by the terms of this Agreement), agree in writing to be bound by the terms of this Agreement pursuant to an amendment effected in accordance with Section 10.05.

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(c)The Second Lien Representative agrees that the Second Lien Credit Agreement shall contain provisions substantially similar to those set forth in Section 10.24 of the Second Lien Credit Agreement as in effect on the date hereof, or similar provisions approved by the First Lien Representative, which approval shall not be unreasonably withheld or delayed, and each Second Lien Security Document shall contain the provisions set forth on Annex I hereto, or similar provisions approved by the First Lien Representative, which approval shall not be unreasonably withheld or delayed. The Second Lien Representative further agrees that each Second Lien Mortgage covering any Collateral shall contain such other language as the First Lien Representative may reasonably request to reflect the subordination of such Second Lien Mortgage to the First Lien Security Document covering such Collateral pursuant to this Agreement.

(d)[Reserved].

(e)The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, and the First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, acknowledge and agree that (i) the grants of Liens pursuant to the First Lien Security Documents and the Second Lien Security Documents constitute two separate and distinct grants of Liens, and (ii) because of, among other things, their differing rights in the Collateral, the Second Lien Secured Obligations are fundamentally different from the First Lien Secured Obligations (as defined without reference to the final sentence of the definition of such term) and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Lien Secured Parties and the Second Lien Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then each of the parties hereto hereby acknowledges and agrees that, subject to the provisions hereof (including Sections 2.01 and 4.01), all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all Second Lien Secured Obligations held by the Second Lien Secured Parties) to satisfy the First Lien Secured Obligations, the First Lien Secured Parties shall be entitled to receive, in addition to amounts otherwise distributed to them in respect of principal, pre-petition interest and other claims constituting First Lien Secured Obligations, all amounts owing in respect of post-petition interest, including any additional interest payable pursuant to the First Lien Credit Agreement, arising from or related to a default, which is included in the First Lien Secured Obligations but which is disallowed as a claim in any Insolvency or Liquidation Proceeding) before any distribution is made in respect of the claims held by the Second Lien Secured Parties with respect to the Collateral, and the Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees to turn over to the First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, amounts otherwise received or receivable by the Second Lien Secured Parties to the extent necessary to effectuate the intent of this sentence (with respect to the payment of post-petition interest), even if such turnover has the effect of reducing the claim or recovery of the Second Lien Secured Parties.

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SECTION 7.02.Effect of Refinancing of Indebtedness under Loan Documents. (a) If, substantially contemporaneously with the Discharge of First Lien Loan Document Obligations, the Borrower Refinances the Indebtedness outstanding under the First Lien Loan Documents and provided that (i) such Refinancing is permitted hereby, (ii) the Borrower gives to the Second Lien Representative advance written notice (the “First Lien Refinancing Notice”) electing the application of the provisions of this Section 7.02(a) to such Refinancing Indebtedness, provided that no First Lien Refinancing Notice shall be required to be given in respect of, and the provisions of this Section 7.02(a) shall apply automatically to, any Refinancing Indebtedness incurred under the First Lien Credit Agreement (including pursuant to Section 2.25 thereof), and (iii) the holders of such Refinancing Indebtedness, and the trustee, collateral agent or similar representative of such holders (to the extent such holders and the trustee, collateral agent or similar representative of such holders, in such capacity, are not already bound by the terms of this Agreement), agree in writing to be bound by the terms of this Agreement pursuant to an amendment effected in accordance with Section 10.05, then (A) such Discharge of First Lien Loan Document Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, (B) such Refinancing Indebtedness and all other obligations under the indenture, credit agreement or other definitive agreement evidencing such Refinancing Indebtedness (the “New First Lien Obligations”) shall automatically be treated as First Lien Secured Obligations for all purposes of this Agreement (but, for the avoidance of doubt, shall be subject to the cap limitations in the definitions of the terms “First Lien Loan Document Obligations” and “First Lien Secured Obligations”), including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, (C) the indenture, credit agreement or other definitive agreement evidencing such Refinancing Indebtedness and the security and other documents relating thereto (the “New First Lien Loan Documents”) shall automatically be treated as the First Lien Credit Agreement and the First Lien Loan Documents and, in the case of New First Lien Loan Documents that are security documents, as the First Lien Security Documents for all purposes of this Agreement, (D) the trustee, collateral agent or similar representative for the holders of the New First Lien Obligations under the New First Lien Loan Documents (the “New First Lien Representative”) shall be deemed to be the First Lien Representative for all purposes of this Agreement and (E) the holders of the Indebtedness under the New First Lien Loan Documents shall be deemed to be the First Lien Lenders for all purposes of this Agreement.

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(b)If, substantially contemporaneously with the Discharge of Second Lien Secured Obligations, the Borrower Refinances the Indebtedness outstanding under the Second Lien Loan Documents and provided that (i) such Refinancing is permitted hereby, (ii) the Borrower gives to the First Lien Representative advance written notice (the “Second Lien Refinancing Notice”) electing the application of the provisions of this Section 7.02(b) to such Refinancing Indebtedness, provided that no Second Lien Refinancing Notice shall be required to be given in respect of, and the provisions of this Section 7.02(b) shall apply automatically to, any Refinancing Indebtedness incurred under the Second Lien Credit Agreement (including pursuant to Section 2.25 thereof), and (iii) the holders of such Refinancing Indebtedness, and the trustee, collateral agent or similar representative of such holders (to the extent such holders and the trustee, collateral agent or similar representative of such holders, in such capacity, are not already bound by the terms of this Agreement), agree in writing to be bound by the terms of this Agreement pursuant to an amendment effected in accordance with Section 10.05, then (A) such Discharge of Second Lien Secured Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, (B) such Refinancing Indebtedness and all other obligations under the indenture, credit agreement or other definitive agreement evidencing such Refinancing Indebtedness (the “New Second Lien Obligations”) shall automatically be treated as Second Lien Secured Obligations for all purposes of this Agreement (but, for the avoidance of doubt, shall be subject to the cap limitation in the definition of the term “Maximum Second Lien Principal Amount”), including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, (C) the indenture, credit agreement or other definitive agreement evidencing such Refinancing Indebtedness and the security and other documents relating thereto (the “New Second Lien Loan Documents”) shall automatically be treated as the Second Lien Credit Agreement and the Second Lien Loan Documents and, in the case of New Second Lien Loan Documents that are security documents, as the Second Lien Security Documents for all purposes of this Agreement, (D) the trustee, collateral agent or similar representative for the holders of the New Second Lien Obligations under the New Second Lien Loan Documents (the “New Second Lien Representative”) shall be deemed to be the Second Lien Representative for all purposes of this Agreement and (E) the holders of the Indebtedness under the New Second Lien Loan Documents shall be deemed to be the Second Lien Lenders for all purposes of this Agreement.

SECTION 7.03.No Waiver by First Lien Secured Parties. Other than with respect to the Second Lien Permitted Actions, nothing contained herein shall prohibit or in any way limit the First Lien Representative or any other First Lien Secured Party from opposing, challenging or objecting to, in any Insolvency or Liquidation Proceeding or otherwise, any action taken, or any claim made, by the Second Lien Representative or any other Second Lien Secured Party, including any request by the Second Lien Representative or any other Second Lien Secured Party for adequate protection or any exercise by the Second Lien Representative or any other Second Lien Secured Party of any of its rights and remedies under the Second Lien Loan Documents or otherwise, or any proposal by the Second Lien Representative or any other Second Lien Secured Party to provide any DIP Financing.

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SECTION 7.04.Reinstatement. If, in any Insolvency or Liquidation Proceeding or otherwise, all or part of any payment with respect to the First Lien Secured Obligations previously made shall be rescinded, invalidated, avoided, declared to be fraudulent or preferential, set aside, or otherwise required to be transferred to a debtor-in-possession, trustee, receiver or similar Person or the estate of any Grantor (a “Recovery”) for any reason whatsoever, then the First Lien Secured Obligations shall be reinstated to the extent of the amount so subject to Recovery as if such payment had not occurred (and the Discharge of First Lien Secured Obligations shall be deemed not to have occurred) and, if theretofore terminated, this Agreement shall be reinstated in full force and effect and such prior termination shall not diminish, release, discharge, impair or otherwise affect the Lien priorities and the relative rights and obligations of the First Lien Secured Parties and the Second Lien Secured Parties provided for herein. Upon any such reinstatement of First Lien Secured Obligations, each Second Lien Secured Party will deliver to the First Lien Representative, in accordance with Section 4.02, any Collateral or Proceeds thereof received between the Discharge of First Lien Secured Obligations and such reinstatement.

SECTION 7.05.Further Assurances. Each of the First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, and the Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees that it will execute, or will cause to be executed, any and all further documents, agreements and instruments, and take all such further actions, as may be required under any applicable law, or which the First Lien Representative or the Second Lien Representative may reasonably request, to effectuate the terms of this Agreement, including the relative Lien priorities provided for herein.

ARTICLE VIII

REPRESENTATIONS AND WARRANTIES

Each Representative party hereto represents and warrants to the other Representative as follows:

(a)Such Representative is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder.

(b)This Agreement has been duly executed and delivered by such Representative and constitutes a legal, valid and binding obligation of such Representative, enforceable in accordance with its terms.

(c)Such Representative has been authorized by the First Lien Lenders (in the case of First Lien Representative) and the Second Lien Lenders (in the case of the Second Lien Representative) to enter into this Agreement.

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ARTIVLE IX

NO RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE

SECTION 9.01.No Reliance; Information. Each Representative, for itself and on behalf of the applicable other Secured Parties, acknowledges that (a) it and such Secured Parties have, independently and without reliance upon, in the case of the First Lien Secured Parties, any Second Lien Secured Party and, in the case of the Second Lien Secured Parties, any First Lien Secured Party, and based on such documents and information as they have deemed appropriate, made their own credit analysis and decision to enter into the Loan Documents to which they are party and (b) it and such Secured Parties will, independently and without reliance upon, in the case of the First Lien Secured Parties, any Second Lien Secured Party and, in the case of the Second Lien Secured Parties, any First Lien Secured Party, and based on such documents and information as they shall from time to time deem appropriate, continue to make their own credit decision in taking or not taking any action under this Agreement or any other Loan Document to which they are party. The First Lien Secured Parties and the Second Lien Secured Parties shall have no duty to disclose to any Second Lien Secured Party or to any First Lien Secured Party, respectively, any information relating to the Borrower or any of the Subsidiaries, or any other circumstance bearing upon the risk of nonpayment of any of the First Lien Secured Obligations or the Second Lien Secured Obligations, as the case may be, that is known or becomes known to any of them or any of their Affiliates. In the event any First Lien Secured Party or any Second Lien Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to, respectively, any Second Lien Secured Party or any First Lien Secured Party, it shall be under no obligation (i) to make, and shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of the information so provided, (ii) to provide any additional information or to provide any such information on any subsequent occasion or (iii) to undertake any investigation.

SECTION 9.02.No Warranties or Liability. (a) The First Lien Representative, for itself and on behalf of the other First Lien Secured Parties, acknowledges and agrees that, except for the representations and warranties set forth in Article VIII, neither the Second Lien Representative nor any other Second Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Second Lien Loan Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, acknowledges and agrees that, except for the representations and warranties set forth in Article VIII, neither the First Lien Representative nor any other First Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the First Lien Loan Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.

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(b)The Second Lien Representative and the other Second Lien Secured Parties shall have no express or implied duty to the First Lien Representative or any other First Lien Secured Party, and the First Lien Representative and the other First Lien Secured Parties shall have no express or implied duty to the Second Lien Representative or any other Second Lien Secured Party, to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of a default or an event of default under any First Lien Loan Document and any Second Lien Loan Document (other than, in each case, this Agreement), regardless of any knowledge thereof which they may have or be charged with.

(c)The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, agrees no First Lien Secured Party shall have any liability to the Second Lien Representative or any other Second Lien Secured Party, and hereby waives any claim against any First Lien Secured Party, arising out of any and all actions which the First Lien Representative or the other First Lien Secured Parties may take or permit or omit to take with respect to (i) the First Lien Loan Documents (other than this Agreement), (ii) the collection of the First Lien Secured Obligations or (iii) the maintenance of, the preservation of, the foreclosure upon or the Disposition of any Collateral.

SECTION 9.03.Obligations Absolute. The Lien priorities provided for herein and the respective rights, interests, agreements and obligations hereunder of the First Lien Representative and the other First Lien Secured Parties and the Second Lien Representative and the other Second Lien Secured Parties shall remain in full force and effect irrespective of:

(a)any lack of validity or enforceability of any Loan Document;

(b)any change in the time, place or manner of payment of, or in any other term of (including, subject to the limitations set forth in Section 7.01(a), the Refinancing of), all or any portion of the First Lien Secured Obligations, it being specifically acknowledged that a portion of the First Lien Secured Obligations consists or may consist of Indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed;

(c)any amendment, waiver or other modification, whether by course of conduct or otherwise, of any Loan Document;

(d)the securing of any First Lien Secured Obligations or Second Lien Secured Obligations with any additional collateral or guarantees, or any exchange, release, voiding, avoidance or non-perfection of any security interest in any Collateral or any other collateral or any release of any guarantee securing any First Lien Secured Obligations or Second Lien Secured Obligations; or

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(e)the commencement of an Insolvency or Liquidation Proceeding or any other circumstances that otherwise might constitute a defense available to, or a discharge of, the Borrower, any other Grantor or any other Person in respect of the First Lien Secured Obligations or this Agreement, or any of the Second Lien Secured Parties in respect of this Agreement.

ARTIVLE X

MISCELLANEOUS

SECTION 10.01.Notices. Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax or email, as follows:

(a)if to the First Lien Representative, to Wilmington Trust, National Association, as Collateral Agent, 50 South Sixth Street, Suite 1290, Minneapolis, MN 55402, Attention: Fusion First Lien Loan Administrator, Email: jjames@wilmingtontrust.com, and

(b)if to the Second Lien Representative, to Wilmington Trust, National Association, as Collateral Agent, 50 South Sixth Street, Suite 1290, Minneapolis, MN 55402, Attention: Fusion Second Lien Loan Administrator, Email: jjames@wilmingtontrust.com.

All notices and other communications given to any party hereto in accordance with the provisions of this Agreement 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 fax shall be deemed to have been given when sent; and notices and other communications sent to an email 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 email or other written acknowledgement), 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.

SECTION 10.02.Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the other Loan Documents, the provisions of this Agreement shall control.

SECTION 10.03.Effectiveness; Survival. This Agreement shall become effective when executed and delivered by the parties hereto. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, hereby waives any and all rights the Second Lien Secured Parties may now or hereafter have under applicable law to revoke this Agreement or any of the provisions of this Agreement.

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SECTION 10.04.Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 10.05.Amendments; Waivers. (a) No failure or delay on the part of any party hereto in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by Section 10.05(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.

(b)Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the First Lien Representative and the Second Lien Representative; provided that:

(i) no such agreement shall amend, modify or otherwise affect the rights or obligations of any Grantor without the Borrower’s prior written consent;

(ii)in connection with any Refinancing contemplated by Section 7.01(a) or 7.01(b), the First Lien Representative and the Second Lien Representative shall enter (and are hereby authorized to enter without the consent of any other Secured Party), at the written request and expense of the Borrower, into such amendments or other modifications or supplements of this Agreement as are reasonably necessary or appropriate to add the new trustee, collateral agent or similar representative in respect of such Refinancing Indebtedness as a party hereto and to provide such new trustee, collateral agent or similar representative, and the other holders of such Refinancing Indebtedness, the rights and obligations hereunder of the Representative in respect of, or the holders of, the Indebtedness or other First Lien Secured Obligations or Second Lien Secured Obligations being Refinanced and to otherwise reflect such Refinancing (and in connection therewith to provide for technical modifications to this Agreement to facilitate the foregoing), it being the intent that such amendments or other modifications (A) establish that the Liens on any Collateral securing any Refinancing Indebtedness in respect of First Lien Secured Obligations will have the same priorities relative to the Liens on such Collateral securing Second Lien Secured Obligations as the Liens that secured the Indebtedness being Refinanced had immediately prior to such Refinancing, (B) establish that the Liens on any Collateral securing any Refinancing Indebtedness in respect of Second Lien Secured Obligations will have the same priorities relative to the Liens on such Collateral securing First Lien Secured Obligations as the Liens that secured the Indebtedness being Refinanced had immediately prior to such Refinancing, (C) provide to the parties benefited by the Liens on any Collateral securing such Refinancing Indebtedness in respect of First Lien Secured Obligations the same rights and obligations relative to the parties holding Liens on such Collateral securing Second Lien Secured Obligations as the parties that were benefited by the Liens that secured such Indebtedness or other First Lien Secured Obligations being Refinanced had immediately prior to such Refinancing and (D) provide to the parties benefited by the Liens on any Collateral securing such Refinancing Indebtedness in respect of Second Lien Secured Obligations the same rights and obligations relative to the parties holding Liens on such Collateral securing First Lien Secured Obligations as the parties that were benefited by the Liens that secured such Indebtedness or other Second Lien Secured Obligations being Refinanced had immediately prior to such Refinancing;

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(iii)in connection with the incurrence of any Additional First Lien Obligations, the First Lien Representative and the Second Lien Representative shall enter (and are hereby authorized to enter without the consent of any other Secured Party), at the written request and expense of the Borrower, into such amendments or other modifications or supplements of this Agreement as are reasonably necessary or appropriate to add an Additional First Lien Obligations Representative as a party hereto, to provide such Additional First Lien Obligations Representative and the other holders of such Additional First Lien Obligations rights and obligations hereunder substantially identical to those of the First Lien Representative and the other First Lien Secured Parties (subject, with respect to the exercise of remedies and certain other rights set forth herein, to the allocation of control between the First Lien Secured Parties and the holders of such Additional First Lien Obligations in the manner agreed by them) and otherwise to treat such Additional First Lien Obligations and any Liens on any assets of the Borrower or any Subsidiary securing such Additional First Lien Obligations in a manner that is substantially identical to the treatment hereunder of the First Lien Secured Obligations and the First Priority Liens (and in connection therewith to provide for technical modifications to this Agreement to facilitate the foregoing, including, for the avoidance of doubt, modifications to the cap limitations (but not any increase in the aggregate amount of such cap limitations, except to the extent otherwise permitted by the Second Lien Loan Documents then extant) in the definition of the term “Maximum First Lien Principal Amount” and in Section 6.01(a)(ii) (and modifications to related definitions) to include such Additional First Lien Obligations in such cap limitations in a manner that is substantially identical to the treatment hereunder of the First Lien Loan Document Obligations and the First Lien Secured Obligations); and

(iv)in connection with the incurrence of any Additional Second Lien Obligations, the First Lien Representative and the Second Lien Representative shall enter (and are hereby authorized to enter without the consent of any other Secured Party), at the written request and expense of the Borrower, into such amendments or other modifications or supplements of this Agreement as are reasonably necessary or appropriate to add an Additional Second Lien Obligations Representative as a party hereto, to provide such Additional Second Lien Obligations Representative and the other holders of such Additional Second Lien Obligations rights and obligations substantially similar to those of the Second Lien Representative and the other Second Lien Secured Parties (subject, with respect to the exercise of remedies and certain other rights set forth herein, to the allocation of control between the Second Lien Secured Parties and the holders of such Additional Second Lien Obligations in the manner agreed by them) and otherwise to treat such Additional Second Lien Obligations and any Liens on any assets of the Borrower or any Subsidiary securing such Additional Second Lien Obligations in a manner that reflects the status thereof as Additional Second Lien Obligations secured on a basis, and Liens that are, junior to the First Priority Liens and the Liens securing any Additional First Lien Obligations (and in connection therewith to provide for technical modifications to this Agreement to facilitate the foregoing).

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(c)Notwithstanding the terms of Section 10.05(b), in the event that the Second Lien Representative has not commenced the actions contemplated by Section 10.05(b)(ii) or 10.05(b)(iii) in connection with any permitted Refinancing of the First Lien Secured Obligations or the incurrence of any Additional First Lien Obligations, as applicable, within 10 Business Days after the delivery by the Borrower to the Second Lien Representative of a written request to do so, then, unless the Second Lien Representative has provided written notice to the Borrower and the First Lien Representative within such 10 Business Day period setting forth in reasonable detail the basis for its determination that it is not required to take such action in accordance with Section 10.05(b)(ii) or 10.05(b)(iii), as applicable, the First Lien Representative, without the consent of the Second Lien Representative, is authorized to amend or otherwise modify this Agreement in the manner set forth in Section 10.05(b)(ii) or 10.05(b)(iii), as applicable; provided that such Refinancing or Additional First Lien Obligations, as applicable (and any Liens relating thereto), are permitted under the Second Lien Loan Documents then extant.

(d)Notwithstanding the terms of Section 10.05(b), in the event that the First Lien Representative does not take the actions contemplated by Section 10.05(b)(ii) or 10.05(b)(iv) in connection with any permitted Refinancing of the Second Lien Secured Obligations or the incurrence of any Additional Second Lien Obligations, as applicable, within 10 Business Days after the delivery by the Borrower to the First Lien Representative of a written request to do so, then, unless the First Lien Representative has provided written notice to the Borrower and the Second Lien Representative within such 10 Business Day period setting forth in reasonable detail the basis for its determination that it is not required to take such action in accordance with Section 10.05(b)(ii) or 10.05(b)(iv), as applicable, the Second Lien Representative, without the consent of the First Lien Representative, is authorized to amend or otherwise modify this Agreement in the manner set forth in Section 10.05(b)(ii) or 10.05(b)(iv), as applicable; provided that such Refinancing or Additional Second Lien Obligations, as applicable (and any Liens relating thereto), are permitted under the First Lien Loan Documents then extant.

SECTION 10.06.Subrogation. The Second Lien Representative, for itself and on behalf of the other Second Lien Secured Parties, hereby waives any rights of subrogation it or they may acquire as a result of any payment hereunder until the Discharge of First Lien Secured Obligations has occurred; provided,however, that, as between the Borrower and the other Grantors, on the one hand, and the Second Lien Secured Parties, on the other hand, any such payment that is paid over to the First Lien Representative pursuant to this Agreement shall be deemed not to reduce any of the Second Lien Secured Obligations unless and until the Discharge of First Lien Secured Obligations shall have occurred and the First Lien Representative delivers any such payment to the Second Lien Representative.

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SECTION 10.07.APPLICABLE LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVERS. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

(b)ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO OR ANY OTHER SECURED PARTY OR GRANTOR ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH REPRESENTATIVE, FOR ITSELF AND ITS RELATED SECURED PARTIES AND ITS AND THEIR PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS, (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.01, (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER IT AND ITS PROPERTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT AND (V) AGREES THAT A FINAL JUDGMENT IN ANY SUCH PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

(c)BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH REPRESENTATIVE, FOR ITSELF AND ITS RELATED SECURED PARTIES AND ITS AND THEIR PROPERTIES, IRREVOCABLY AGREES THAT THE ONLY NECESSARY PARTIES TO ANY AND ALL JUDICIAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE PARTIES HERETO, EXCEPT WHERE IN ANY SUCH JUDICIAL PROCEEDING RELIEF (INCLUDING INJUNCTIVE RELIEF OR THE RECOVERY OF MONEY) IS BEING SOUGHT DIRECTLY AGAINST OR FROM A PERSON THAT IS NOT A PARTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND CONSISTENT WITH THE PROVISIONS OF SECTIONS 10.13, NONE OF THE FIRST LIEN SECURED PARTIES (OTHER THAN THE FIRST LIEN REPRESENTATIVE) OR THE SECOND LIEN SECURED PARTIES (OTHER THAN THE SECOND LIEN REPRESENTATIVE) SHALL BE NECESSARY OR OTHERWISE APPROPRIATE PARTIES TO ANY SUCH JUDICIAL PROCEEDINGS, UNLESS IN SUCH JUDICIAL PROCEEDING SUMS ARE BEING SOUGHT TO BE RECOVERED DIRECTLY FROM SUCH PERSONS, INCLUDING PURSUANT TO SECTION 4.02, OR THE PROVISIONS OF THIS AGREEMENT ARE SOUGHT TO BE ENFORCED DIRECTLY AGAINST SUCH PERSONS.

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SECTION 10.08.WAIVER OF JURY TRIAL. EACH REPRESENTATIVE, FOR ITSELF AND ON BEHALF OF ITS RELATED SECURED PARTIES, HEREBY WAIVES ITS AND THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING UNDER THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH REPRESENTATIVE, FOR ITSELF AND ON BEHALF OF ITS RELATED SECURED PARTIES, ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT AND THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH REPRESENTATIVE, FOR ITSELF AND ON BEHALF OF ITS RELATED SECURED PARTIES, 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 10.08 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

SECTION 10.09.Parties in Interest. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other First Lien Secured Parties and Second Lien Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement. Other than with respect to Sections 7.02, 10.05(b), 10.05(c), and 10.05(d), which shall also inure to the benefit of the Borrower, no other Person, including any trustee, debtor-in-possession, creditor trust or other representative of an estate or creditor of any Grantor (including where such estate or creditor representative is the beneficiary of a Lien securing Collateral by virtue of the avoidance of such Lien in an Insolvency or Liquidation Proceeding), shall have or be entitled to assert rights or benefits hereunder.

(b)If either the First Lien Representative or the Second Lien Representative resigns or is replaced pursuant to the First Lien Loan Documents or the Second Lien Loan Documents, as applicable, its successor will be party to this Agreement with all the rights, and subject to all the obligations of the predecessor First Lien Representative or the Second Lien Representative, as applicable, of this Agreement.

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SECTION 10.10.Specific Performance. Each Representative may demand specific performance of this Agreement and, on behalf of itself and the respective other Secured Parties, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action which may be brought by the respective Secured Parties. No bond shall be required as a condition to the specific performance by any Secured Parties.

SECTION 10.11.Headings. Article and Section headings used herein and the Table of Contents hereto are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 10.12.Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 10.03. Delivery of an executed signature page to this Agreement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be as effective as delivery of a manually signed counterpart of this Agreement.

SECTION 10.13.Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties, on the one hand, and the Second Lien Secured Parties, on the other hand. Except as expressly provided in Section 10.09(a), none of the Borrower or any other Grantor or any other creditor thereof shall have any rights or obligations, and none of the Borrower, any other Grantor or any Guarantor may rely on the terms hereof. Nothing in this Agreement is intended to or shall impair the obligations of the Borrower or any other Grantor or any Guarantor, which are absolute and unconditional, to pay the First Lien Secured Obligations and the Second Lien Secured Obligations as and when the same shall become due and payable in accordance with their terms.

SECTION 10.14.Intercreditor Agreement Acknowledgement.Reference is made to the Intercreditor Agreement Acknowledgement, substantially in the form of Annex II hereto, executed and delivered in respect of this Agreement (a) on the date hereof by the Borrower and each other Grantor that is a Grantor on the date hereof and (b) after the date hereof, pursuant to the terms of the Credit Agreements, by each Subsidiary that becomes a Grantor after the date hereof.

SECTION 10.15.Dealings with Borrower, Grantors and Guarantors. Upon any application, demand or request by the Borrower or any other Grantors or Guarantors to any Representative to take or permit any action under any of the provisions of this Agreement or under any Security Document (if such action is subject to the provisions hereof), the Borrower or such other Grantor or Guarantor, as appropriate, shall furnish to such Representative a certificate of an authorized officer (an “Officer’s Certificate”) stating that all conditions precedent, if any provided for in this Agreement or such Security Document, as the case may be, relating to the proposed action have been complied with, except that in the case of any such application, demand or request as to which the furnishing of such document is specifically required by any provisions of this Agreement or any Security Document relating to such particular application, demand or request, no additional certificate or opinion need be furnished.

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SECTION 10.16.Agents and Representatives. It is understood and agree that (a) the First Lien Representative is entering into this Agreement in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement and the provisions of Section 9 of the First Lien Credit Agreement applicable to the Agents (as defined therein) thereunder shall also apply to the First Lien Representative hereunder and (b) the Second Lien Representative is entering into this Agreement in its capacity as administrative agent and collateral agent under the Second Lien Credit Agreement and the provisions of Section 9 of the Second Lien Credit Agreement applicable to the Agents (as defined therein) thereunder shall also apply to the Second Lien Representative hereunder.

[Signature pages follow.]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

WILMINGTON TRUST, NATIONAL ASSOCIATION, as First Lien Representative,
By	/s/ Jamie Roseberg
	Name: Jamie Roseberg Title: Banking Officer

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Second Lien Representative,
By	/s/ Jamie Roseberg
	Name: Jamie Roseberg Title: Banking Officer

[Signature Page to Fusion Intercreditor Agreement]

INTERCREDITOR AGREEMENT ACKNOWLEDGEMENT

Reference is made to the Intercreditor Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among Wilmington Trust, National Association, as First Lien Representative, Wilmington Trust, National Association, as Second Lien Representative, each Additional First Lien Obligations Representative that may become a party thereto and each Additional Second Lien Obligations Representative that may become a party thereto. Capitalized terms used but not defined herein have the meanings assigned thereto in the Intercreditor Agreement.

1.           Acknowledgements and Agreements. Each of Fusion Connect, Inc., a Delaware corporation (the “Borrower”), and each of the undersigned Subsidiaries of the Borrower (together with the Borrower, collectively, the “Grantors”) acknowledges that it has received a copy of the Intercreditor Agreement and consents thereto, agrees to recognize all rights granted thereby to the First Lien Representative, the other First Lien Secured Parties, the Second Lien Representative and the other Second Lien Secured Parties, and agrees that it will not do any act or perform any obligation that is not in accordance with the agreements set forth in the Intercreditor Agreement. Each Grantor further acknowledges and agrees that (i) as between the Grantors and the First Lien Representative and the other First Lien Secured Parties, the First Lien Loan Documents remain in full force and effect as written and are in no way modified by the Intercreditor Agreement and nothing in the Intercreditor Agreement shall impair the obligations of the Grantors to pay principal, interest, fees and other amounts as provided in the First Lien Loan Documents, (ii) as between the Grantors and the Second Lien Representative and the other Second Lien Secured Parties, the Second Lien Loan Documents remain in full force and effect as written and are in no way modified by the Intercreditor Agreement and nothing in the Intercreditor Agreement shall impair the obligations of the Grantors to pay principal, interest, fees and other amounts as provided in the Second Lien Loan Documents, (iii) except as expressly provided in Section 10.09(a) of the Intercreditor Agreement, no Grantor is a beneficiary or third party beneficiary of the Intercreditor Agreement and (iv) except as expressly provided in Section 10.09(a) of the Intercreditor Agreement, no Grantor has any rights under the Intercreditor Agreement, no Grantor may assert or enforce any rights or benefits under the Intercreditor Agreement, and no Grantor may rely on the terms of the Intercreditor Agreement.

2.           Notices. Notices and other communications to the Borrower or any other Grantor hereunder and under the Intercreditor Agreement shall be in writing and shall be delivered by hand or overnight courier service, or mailed by certified or registered mail to it at (or to it in c/o) Fusion Connect, Inc., 420 Lexington Avenue, Suite 1718, New York, New York 10170, Attention: James P. Prenetta, Jr., Executive Vice President and General Counsel.

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All notices and other communications given to the Borrower or any other Grantor in accordance with the provisions hereof sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; 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.

3.           Counterparts. This Acknowledgement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Acknowledgement by facsimile transmission or in electronic format (i.e., “pdf” or “tif”) shall be as effective as delivery of a manually signed counterpart of this Acknowledgement.

4.           Additional Subsidiaries. Pursuant to the Credit Agreements, certain Subsidiaries not party hereto on the date hereof may be required to enter into this Acknowledgement. Upon execution and delivery to the Representatives after the date hereof by any Subsidiary of a counterpart signature page hereto, such Subsidiary shall become a party hereto with the same force and effect as if originally named as such herein. The execution and delivery of such a counterpart signature page shall not require the consent of any party hereto. The rights and obligations under this Acknowledgement of each other party hereto shall remain in full force and effect notwithstanding the addition of any new Subsidiary as a party to this Acknowledgement.

5.           APPLICABLE LAW. THIS ACKNOWLEDGEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

6.           Credit Document. This Acknowledgement shall constitute a First Lien Loan Document and a Second Lien Loan Document.

7.           Miscellaneous. The provisions of Sections 10.07(b), 10.07(c) and 10.08 of the Intercreditor Agreement will apply with like effect to this Acknowledgement, mutatis mutandis, as though the references therein to each party thereto or each Representative refer instead to each Grantor. The First Lien Representative, the other First Lien Secured Parties, the Second Lien Representative and the other Second Lien Secured Parties are the intended beneficiaries of this Acknowledgement.

[Signature pages follow.]

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ACKNOWLEDGED AS OF THE DATE FIRST WRITTEN ABOVE:

FUSION CONNECT, INC., FUSION NBS ACQUISITION CORP., FUSION LLC,FUSION BCHI ACQUISITION LLC, BIRCH COMMUNICATIONS, LLC, CBEYOND, INC., CBEYOND COMMUNICATIONS, LLC, BIRCH MANAGEMENT LLC, BIRCH TELECOM, LLC, BIRCH TEXAS HOLDINGS, INC., BIRCH TELECOM OF KANSAS, LLC, BIRCH TELECOM OF OKLAHOMA, LLC, BIRCH TELECOM OF MISSOURI, LLC, BIRCH TELECOM OF TEXAS LTD., L.L.P., BIRCAN HOLDINGS, LLC, PRIMUS HOLDINGS, INC., FUSION MPHC ACQUISITION CORP.,
by
	/s/ James P. Prenetta, Jr.
	Name: James P. Prenetta, Jr. Title: Executive Vice President and General Counsel

[Signature Page to Acknowledgment to Fusion Intercreditor Agreement]

ANNEX I

Provision for the Second Lien Security Documents

“Reference is made to the Intercreditor Agreement dated as of May 4, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among Wilmington Trust, National Association, as First Lien Representative (as defined therein), Wilmington Trust, National Association, as Second Lien Representative (as defined therein), each Additional First Lien Obligations Representative (as defined therein) that may become a party thereto and each Additional Second Lien Obligations Representative (as defined therein) that may become a party thereto. Notwithstanding anything herein to the contrary, the lien and security interest granted to the [Collateral Agent], for the benefit of the [Secured Parties], pursuant to this Agreement and the exercise of any right or remedy by the [Collateral Agent] and the other [Secured Parties] hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of the Intercreditor Agreement and this Agreement, the provisions of the Intercreditor Agreement shall control.”

EX-10.14

DEPOSIT ACCOUNT CONTROL AGREEMENT

(Blocked Account)

This Deposit Account Control Agreement (Blocked Account) (this “Agreement”) is entered into as of May 4, 2018, by Fusion Connect, Inc., a Delaware corporation (“Borrower”), Wilmington Trust, National Association, a national banking association (“First Lien Secured Party”), and East West Bank, a California banking corporation (“Deposit Holder”). All references herein to the “Uniform Commercial Code” refers to the Uniform Commercial Code as in effect from time to time in the State of New York. Terms defined in the Uniform Commercial Code have the same meanings when used herein.

RECITALS

A.           Borrower, First Lien Secured Party, as administrative agent and collateral agent (in such capacities, the “First Lien Agent”), the guarantors from time to time party thereto and the lenders from time to time party thereto are parties to that certain First Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as the same may hereafter be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”).

B.           On the date hereof, First Lien Secured Party will deposit $62,000,000 of the proceeds of certain term loans being made under the Credit Agreement into the Account (as defined below), which Account shall constitute the Escrow Cash Collateral Account under and as defined in the Credit Agreement.

C.           Borrower has granted to (a) First Lien Secured Party a first-priority security interest in the account listed under Schedule A to this Agreement and related rights and property (the “Account”) pursuant to that certain First Lien Pledge and Security Agreement, dated as of May 4, 2018, executed by Borrower and the other grantors from time to time party thereto in favor of First Lien Secured Party, as the First Lien Agent, and (b) Wilmington Trust, National Association (“Second Lien Secured Party”), as administrative agent and collateral agent (in such capacities, the “Second Lien Agent”) under that certain Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018 (as the same may hereafter be amended, supplemented, amended and restated or otherwise modified from time to time), among Borrower, the Second Lien Agent, the guarantors from time to time party thereto and the lenders from time to time party thereto, a second-priority security interest in the Account pursuant to that certain Second Lien Pledge and Security Agreement, dated as of May 4, 2018, executed by Borrower and the other grantors from time to time party thereto in favor of Second Lien Secured Party.

D.           Borrower and First Lien Secured Party are requesting that Deposit Holder enter into this Agreement to perfect First Lien Secured Party’s security interests in the Account by control (and to enable First Lien Secured Party to hold and control the Account as gratuitous bailee and gratuitous agent for Second Lien Secured Party in accordance with that certain Intercreditor Agreement, dated as of May 4, 2018, among the First Lien Representative, the Second Lien Representative and each Additional First Lien Obligations Representative from time to time party thereto and each Additional Second Lien Obligations Representative from time to time party thereto, each as defined therein).

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E.           Deposit Holder is willing to act as Deposit Holder, but only under the terms of this Agreement. Deposit Holder has no obligation or duties with respect to any other agreements between Borrower and First Lien Secured Party or Second Lien Secured Party.

AGREEMENT

1.

Security Interest.

Deposit Holder acknowledges the security interests of First Lien Secured Party and Second Lien Secured Party in the Account. Borrower ratifies and confirms the security interests it has granted to each of First Lien Secured Party and Second Lien Secured Party in the Account. This Agreement evidences First Lien Secured Party’s control over the Account.

2.

Control of Account by First Lien Secured Party; Borrower’s Rights in Account.

2.1Notwithstanding any separate agreement Borrower may have with Deposit Holder, First Lien Secured Party shall be entitled at any time to give Deposit Holder instructions as to the withdrawal or disposition of available funds from time to time credited to the Account, or as to any other matters relating to the Account, all without further consent of Borrower or any other person. Deposit Holder shall, and is fully entitled to, rely upon any such instructions from First Lien Secured Party even if such instructions are contrary to any instructions or demands that Borrower may give to Deposit Holder. Between Borrower and First Lien Secured Party, First Lien Secured Party agrees that that it shall provide instructions to Deposit Holder in accordance with the terms of the Credit Agreement.

2.2Deposit Holder acknowledges and agrees that (a) in accordance with paragraph 2.1 above, it shall comply with the instructions originated by First Lien Secured Party directing disposition of any available funds from time to time credited to the Account without further consent of Borrower; (b) First Lien Secured Party now has exclusive control of the Account for purposes of Sections 9-312(b) and 9-314 of the Uniform Commercial Code, (c) Borrower does not have a right to make withdrawals or otherwise transact on the Account and (d) the Account will be maintained as a “deposit account” as defined in Section 9-102(a)(29) of the Uniform Commercial Code. Notwithstanding anything to the contrary contained herein, if at any time Deposit Holder shall receive conflicting orders or instructions from First Lien Secured Party and Borrower, Deposit Holder shall follow the orders or instructions of First Lien Secured Party, and not the orders or instructions of Borrower.

2.3Borrower represents and warrants to First Lien Secured Party and Deposit Holder that it has not assigned or granted a security interest in the Account, except to First Lien Secured Party and Second Lien Secured Party. Borrower will not permit the Account to become subject to any other pledge, assignment, lien, charge or encumbrance of any kind, other than security interests of First Lien Secured Party and Second Lien Secured Party referred to herein.

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3.

Deposit Holder’s Responsibility.

3.1Deposit Holder shall have no duty to inquire or determine whether Borrower’s obligations to First Lien Secured Party are in default or whether First Lien Secured Party or Borrower is entitled, under any separate agreement between First Lien Secured Party and Borrower, to give any instructions relating to the Account. Deposit Holder shall have no responsibility or liability to First Lien Secured Party or Borrower for complying with any order or instruction, whether oral or written, concerning the Account, except to the extent such compliance would violate the provisions of this Agreement, or Deposit Holder acted with gross negligence or engaged in willful misconduct. Deposit Holder shall have no responsibility or liability to First Lien Secured Party or Borrower for losses or liabilities resulting from any failure to comply with instructions relating to the Account or delay in complying with such instructions if the failure or delay is due to circumstances beyond Deposit Holder’s reasonable control, including without limitation interruptions of communications facilities, civil unrest, acts of God, wars, or terrorist attacks, and provided Deposit Holder had reasonable opportunity to act thereon. Without limiting the foregoing, in no event shall Deposit Holder have any liability for indirect, punitive, exemplary or consequential loss or damages, including without limitation lost profits, whether or not any claim for such loss or such damages is based on tort or contract or Deposit Holder knew or should have known the likelihood of such damages in any circumstances.

3.2Upon reasonable opportunity for Deposit Holder to act after receipt of First Lien Secured Party’s instructions to that effect and continuing on each Business Day thereafter, Deposit Holder shall transfer all available balances in the Account to First Lien Secured Party at the account specified in such instructions. Any disposition of funds Deposit Holder makes in response to instructions from First Lien Secured Party is subject to Deposit Holder’s standard policies, procedures and documentation governing the type of disposition made. Borrower agrees to pay all fees for the transfer of funds as per instructions. Funds are not available if, in the reasonable determination of Deposit Holder, they are subject to a dispute or legal process preventing their withdrawal. A “Business Day” is each day except Saturdays, Sundays, or a day on which Deposit Holder is authorized or required by applicable law, regulation or executive order to close in New York.

3.3Deposit Holder may rely on notices and communications it believes in good faith to be genuine and given by the appropriate party.

4.

Priority of Security Interests; Rights Reserved by Deposit Holder.

Deposit Holder agrees that all of its present and future rights against the Account are subordinate to the security interests of First Lien Secured Party and Second Lien Secured Party therein; provided, however, that it is agreed that nothing herein subordinates or waives, and that Deposit Holder expressly reserves, all of its present and future rights (whether described as rights of setoff, banker’s lien, chargeback or otherwise, and whether available to Deposit Holder under the law or under any other agreement between Deposit Holder and Borrower concerning the Account or otherwise) with respect to (a) items deposited to the Account and returned unpaid, whether for insufficient funds or for any other reason, and without regard to the timeliness of return of any such item; (b) overdrafts on the Account; (c) automated clearing house entries; (d) claims of breach of the Uniform Commercial Code’s transfer or presentment warranties made against Deposit Holder in connection with items deposited to the Account; and (e) Deposit Holder’s usual and customary charges for services rendered in connection with the Account, to the extent that, in each case, Borrower has not separately paid or reimbursed Deposit Holder therefore. To the extent the Account is a certificate of deposit or time deposit, Deposit Holder will be entitled to deduct any applicable early withdrawal penalty prior to disbursing funds from such Account in response to instructions from First Lien Secured Party.

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5.

Statements.

In addition to the original deposit account statement for the Account which is provided to Borrower, Deposit Holder will send duplicate statements to First Lien Secured Party. Borrower authorizes Deposit Holder to provide any additional information relating to the Account to First Lien Secured Party upon its request without Borrower’s further consent.

6.

Notice of Adverse Claims; Record of Security Interest.

6.1Deposit Holder represents to First Lien Secured Party that Deposit Holder has not received notice of any lien, encumbrance or other claim to the Account from any other person (other than Second Lien Secured Party) and has not entered into, and covenants with First Lien Secured Party that it will not enter into, any agreement with any other person by which Deposit Holder is obligated to comply with instructions from such other person as to the disposition of funds from the Account or other dealings with the Account. Deposit Holder will use commercially reasonable efforts, subject to applicable law, to promptly notify First Lien Secured Party if any other person claims that it has a property interest in the Account (other than Second Lien Secured Party) or seeks to enter into a deposit account control agreement or similar agreement with respect to the Account.

6.2Deposit Holder further represents and warrants that it has marked its books and records to indicate the security interests of First Lien Secured Party and Second Lien Secured Party in and liens upon the Account.

7.

Returned Items.

Borrower and First Lien Secured Party understand and agree that Deposit Holder will pay returned items by debiting the Account. Borrower agrees to pay the amount of any returned item immediately upon demand to the extent that there are not sufficient funds in the Account to cover such amount on the day of the debit. First Lien Secured Party agrees that First Lien Secured Party will pay any such amount that is not paid in full by Borrower within twenty (20) days after written demand on First Lien Secured Party by Deposit Holder, up to the amount of any proceeds received by First Lien Secured Party under this Agreement. Borrower further agrees to make additional deposits into the Account as necessary to maintain a balance in the Account equal to the Escrow Cash Amount (as defined in the Credit Agreement). “Returned item” means (a) any item deposited to the Account and returned unpaid, whether for insufficient funds or for any other reason and without regard to timeliness of the return or on any drawee’s notice of non-payment; (b) any item subject to a Commercial Code or Regulation CC (12 CFR Section 229), as in effect from time to time; (c) any automated clearing house entry credited to the Account and returned unpaid or subject to an adjustment entry under applicable clearing house rules, whether for insufficient funds or any other reason; (d) any credit to the Account from a merchant card transaction, against which a contractual demand of chargeback has been made; and (e) any credit made to the Account in error.

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8.

Indemnity.

Borrower and, to the extent not indemnified by Borrower with ten (10) Business Days’ prior written demand, First Lien Secured Party, agree to indemnify Deposit Holder, its officers, directors, employees and agents against claims, demands, losses, liabilities, damages, costs and reasonable expenses arising out of this Agreement including any reasonable fees and costs incurred by Deposit Holder in complying with instructions or requests given by First Lien Secured Party hereunder, and including reasonable attorneys’ fees and disbursements and the reasonable estimate of the allocated costs and expenses of in-house legal counsel and staff, except to the extent the claims, losses, liabilities, damages, costs or expenses are caused by Deposit Holder’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. IN NO EVENT WILL DEPOSIT HOLDER BE LIABLE TO ANY PARTY FOR PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES.

9.

Termination.

First Lien Secured Party may terminate this Agreement at any time by written notice to Deposit Holder and Borrower. Deposit Holder may terminate this Agreement on thirty (30) days’ prior written notice to First Lien Secured Party and Borrower. Borrower may not terminate this Agreement except with written consent of First Lien Secured Party.

10.

Governing Law.

10.1This Agreement and the rights and obligations of the parties hereunder (including any claims sounding in contract law or tort law arising out of the subject matter hereof and any determinations with respect to post-judgment interest) shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of New York, without regard to conflict of laws principles thereof that would result in the application of any law other than the law of the State of New York.

10.2Deposit Holder’s jurisdiction for purposes of Section 9-304 of the Uniform Commercial Code shall be the State of New York.

11.

Entire Agreement.

This Agreement is the entire agreement among the parties regarding the subject matter hereof and supersedes any prior agreements and contemporaneous oral agreements of the parties concerning its subject matter. This Agreement will control over any conflicting agreement between Deposit Holder and Borrower.

12.

Amendments.

No amendment of, or waiver of a right under, this Agreement will be binding unless it is in writing and signed by Borrower, First Lien Secured Party and Deposit Holder.

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13.

Severability.

To the extent a provision of this Agreement is unenforceable, this Agreement will be construed as if the unenforceable provision were omitted.

14.

Successors and Assigns.

The provisions of this Agreement shall be binding upon and inure to the benefit of Deposit Holder, First Lien Secured Party and Borrower and their respective successors and assigns.

15.

Notices.

All notices, instructions and/or communications to a party under this Agreement will be in writing and will be sent to the party’s address set forth below or to such other address as the party may notify the other parties.

First Lien Secured Party: 

Wilmington Trust, National Association

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

Attention: Josh James

Email: jjames@wilmingtontrust.com

Borrower: 

Fusion Connect, Inc.

Address: 420 Lexington Ave, Suite 1718

New York, NY 10170

Attention: General Counsel

Email: jprenetta@fusionconnect.com

Deposit Holder: 

East West Bank

Address: 9300 Flair Drive #100W

El Monte, CA 91731

Attention: Central Relationship Service

Email: centralrelationshipservice@eastwestbank.com

With copy to:

East West Bank

Telecommunications Lending

135 North Los Robles Ave, 2nd Floor

Pasadena, CA 91101

Email: richard.vian@eastwestbank.com

            david.hill@eastwestbank.com

To the extent that Deposit Holder is precluded from making demand or giving notice hereunder by reason of the commencement of a bankruptcy or similar proceeding, then such demand or notice shall be deemed to have been made or given at the commencement of such proceeding.

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16.

Deposit Account Agreement.

The Account shall also be governed by the Deposit Holder’s account agreement and applicable fee schedules, provided however that in event of conflict, this Agreement shall control.

17.

No agency, etc.

Nothing contained in this Agreement shall create any agency, fiduciary, joint venture or partnership relationship between or among Borrower, First Lien Secured Party and Deposit Holder.

18.

Counterparts.

This Agreement may be executed in counterparts, each of which shall be an original, and all of which shall constitute one and the same agreement.

19.

Waiver of Jury Trial.

EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO 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 19 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

[Signature pages follow.]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

FIRST LIEN SECURED PARTY

Wilmington Trust, National Association, a National Banking Association

By: /s/ Joshua G. James                        

Name: Joshua G. James

Title: Vice President

BORROWER

Fusion Connect, Inc., a Delaware corporation

By: /s/ James P. Prenetta, Jr.                                

Name: James P. Prenetta, Jr.

Title: Executive Vice Present and General Counsel

DEPOSIT HOLDER

East West Bank, a California Banking Corporation

By: /s/ Richard Vian                             

Name: Richard Vian

Title: Senior Vice President

[Signature Page to Deposit Account Control Agreement]

EX-10.15

THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN ANNEX A ATTACHED HERETO TO THE SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A ATTACHED HERETO) OWED BY MAKER (AS DEFINED BELOW) AND THE OTHER CREDIT PARTIES (AS DEFINED IN THE CREDIT AGREEMENTS REFERRED TO BELOW) PURSUANT TO (A) THAT CERTAIN FIRST LIEN CREDIT AND GUARANTY AGREEMENT DATED AS OF MAY 4, 2018 (THE “FIRST LIEN CREDIT AGREEMENT”) AMONG FUSION CONNECT, INC. (“PARENT”), MAKER AND CERTAIN OTHER SUBSIDIARIES OF PARENT, WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS THE FIRST LIEN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, (B) THAT CERTAIN SECOND LIEN CREDIT AND GUARANTY AGREEMENT DATED AS OF MAY 4, 2018 (THE “SECOND LIEN CREDIT AGREEMENT” AND, TOGETHER WITH THE FIRST LIEN CREDIT AGREEMENT, THE “CREDIT AGREEMENTS”) AMONG PARENT, MAKER AND CERTAIN OTHER SUBSIDIARIES OF PARENT, WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS THE SECOND LIEN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, AND (C) THE OTHER SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A ATTACHED HERETO); AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE SUBORDINATION PROVISIONS SET FORTH IN ANNEX A ATTACHED HERETO.

Date: May 4, 2018 Amount $1,475,316.78

AMENDED AND RESTATED SUBORDINATED PROMISSORY NOTE

FOR VALUE RECEIVED, Fusion BCHI Acquisition LLC (as successor in interest by merger to Birch Communications Holdings, Inc.), a Delaware limited liability company (“Maker”), hereby promises to pay to Holcombe T. Green, Jr. (together with his heirs, successors and permitted assigns, the “Holder”) at his offices, or at such other place as Holder may from time to time direct, in lawful money of the United States, the principal sum of ONE MILLION FOUR HUNDRED SEVENTY FIVE THOUSAND THREE HUNDRED SIXTEEN and 78/100 DOLLARS ($1,475,316.78), or such lesser amount as shall then be outstanding hereunder, on March 31, 2019, with interest (computed on the basis of a 360-day year payable for the number of days actually elapsed) on the unpaid balance thereof at the rate of 12% per annum until the principal hereof shall have become due and payable. Subject in all respects to the subordination provisions set forth in Annex A attached hereto, all interest hereon shall be payable quarterly in arrears on each Interest Payment Date (as defined below).

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, accrued and unpaid interest shall be payable on the last day of each of March, June, September and December of each year (each an “Interest Payment Date”) commencing June 30, 2018.

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, the outstanding principal amount hereof will be due and payable as follows: (i) two consecutive installments of $491,772.26 shall be due and payable on September 30, 2018 and December 31, 2018, respectively; and (ii) a final installment of the entire remaining outstanding principal balance shall be due and payable in full on March 31, 2019, together with all accrued but unpaid interest thereon.

Events of Default. Each of the following shall constitute an “Event of Default”:

(i)            Maker fails to pay any amount due hereunder within ten (10) days of demand by Holder therefor;

(ii)           Maker fails to comply with or to perform in accordance with, or otherwise breaches, any other provision contained in this Note that is not cured within thirty (30) days after such failure first occurs; or

(iii)        the execution of an assignment for the benefit of creditors by Maker or the filing or commencement of any proceedings for relief under any applicable bankruptcy laws or insolvency laws or any laws relating to the relief of debtors, readjustment of any indebtedness, reorganization, composition, extension of debt, or the appointment of a trustee for, by or against Maker.

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, upon and after the occurrence of an Event of Default, Holder shall have the right, without presentment, notice, or demand of any kind, to accelerate this Note and to declare all of the obligations of Maker under this Note due and payable immediately, and to exercise all of Holder’s rights and remedies as provided in this Note or under applicable law; provided that, upon the occurrence of an Event of Default under clause (iii) above, all obligations of Maker under this Note shall automatically become due and payable immediately. Maker hereby waives presentment, demand for payment, notice of nonpayment, protests, notice of protests, notice of dishonor and all other notices in connection with this Note.

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Notwithstanding any other provision contained in this Note, the aggregate interest rate per annum charged with respect to this Note (including, without limitation, all charges and fees deemed to be interest pursuant to applicable law), shall not exceed the maximum rate per annum permitted by applicable law. In the event that the aggregate interest rate per annum payable with respect to this Note (including, without limitation, all charges and fees deemed to be interest under applicable laws) exceeds the maximum legal rate, (i) Maker shall only pay interest at the maximum permitted rate, (ii) Maker shall continue to make such interest payments at the maximum permitted rate until all such interest payments and other charges and fees payable hereunder (in the absence of such legal limitations) have been paid in full, (iii) any interest in excess of the maximum permitted rate received by the Holder shall, at the Holder’s option, be applied to a prepayment of the principal amount of this Note or refunded to Maker, and (iv) neither Maker nor any other Person shall have any right of action against the Holder for any damages or penalties arising out of the payment or collection of any such excess interest. In determining whether the interest contracted for, charged, or received with respect to this Note exceeds the maximum permitted rate, the Holder 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 this Note.

Payments of principal of and interest on this Note are to be made in lawful money of the United States of America at the address shown in the register maintained by the Holder for such purpose or at such other place as the Holder shall have designated.

This Note re-evidences certain outstanding obligations previously evidenced by that certain Subordinated Promissory Note dated October 28, 2016, in the original face amount of $3,425,000.00 issued by the Maker to Holder (the “Previous Note”). The face amount of this Note reflects (i) a principal payment made on the date hereof in the amount of $1,712,500 and (ii) an offset to the principal amount hereunder on the date hereof in the amount of $920,000, such amount representing a payable owing from Holder to Maker. This Note is not in payment or satisfaction of the Previous Note, nor is this Note in any way intended to constitute a novation of the Previous Note.

THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS THEREOF, BUT OTHERWISE WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF THE LAW THEREOF.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties have duly executed, or have caused their duly authorized officer or representative to execute, this Note as of the date first above written.

MAKER:

FUSION BCHI ACQUISITION LLC

By: /s/ Kevin M. Dotts

Name: Kevin M. Dotts

Title: Chief Financial Officer

Address:

420 Lexington Ave., Suite 1718

New York, New York 10170

[SIGNATURES CONTINUE ON NEXT PAGE]

 [Bircan Sub Note – Green]

HOLDER:

/s/ Holcombe T. Green, Jr.  

Holcombe T. Green, Jr.

Address:

320 Interstate North Parkway SE, Suite 300

Atlanta, Georgia 30339

 [Bircan Sub Note – Green]

Annex A

to Subordinated Promissory Note

SUBORDINATION PROVISIONS

1.           Definitions.

1.1           General Terms. As used in these Subordination Provisions, the following terms shall have the following meanings:

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

“Collateral” means, collectively, (a) the “Collateral” as such term is defined in the First Lien Credit Agreement, (b) the “Collateral” as such term is defined in the Second Lien Credit Agreement and (c) any other property (including equity interests) on which liens are purported to be granted pursuant to any Senior Indebtedness Agreement as security for any Senior Indebtedness.

“Distribution” means any payment, distribution or dividend (whether in respect of principal, interest, fees or otherwise), whether in cash, in kind, securities or any other property, or security for any such payment, distribution or dividend.

“Event” has the meaning set forth in Section 2.2(c).

“First Lien Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement, and its successors and assigns in such capacity.

“First Lien Credit Agreement” means the First Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Parent, Maker, certain other subsidiaries of Parent from time to time party thereto, the lenders from time to time party thereto and the First Lien Agent, as the foregoing now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Parent” means Fusion Connect, Inc., a Delaware corporation, and its successors and assigns.

“Second Lien Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the Second Lien Credit Agreement, and its successors and assigns in such capacity.

“Second Lien Credit Agreement” means the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Parent, Maker, certain other subsidiaries of Parent from time to time party thereto, the lenders from time to time party thereto and the Second Lien Agent, as the foregoing now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Senior Creditors” means, collectively, (a) the “Secured Parties” as such term is defined in the First Lien Credit Agreement, (b) the “Secured Parties” as such term is defined in the Second Lien Credit Agreement, (c) any other holders of Senior Indebtedness and (d) the Senior Representatives of any of the foregoing.

Annex A-1

“Senior Default” means a Default or an Event of Default (or any comparable term) under (and as defined in) any Senior Indebtedness Agreement.

“Senior Indebtedness” means, collectively, (a) all “Obligations” as such term is defined in the First Lien Credit Agreement, (b) all “Obligations” as such term is defined in the Second Lien Credit Agreement and (c) all obligations of every nature of Parent, Maker and each of Parent’s other subsidiaries under (i) any “Permitted Second Lien Indebtedness”, “Permitted Credit Agreement Refinancing Indebtedness” or “Permitted Incremental Equivalent Indebtedness” in each case as such term is defined in the First Lien Credit Agreement or (ii) any “Permitted Section 6.1(e) Indebtedness”, “Permitted Credit Agreement Refinancing Indebtedness” or “Permitted Incremental Equivalent Indebtedness” in each case as such term is defined in the Second Lien Credit Agreement, whether for principal, interest (including default interest accruing pursuant to the terms of the Senior Indebtedness Agreements in respect of such Senior Indebtedness and interest (including such default interest) that would continue to accrue pursuant to such Senior Indebtedness Agreements on any such obligations after the commencement of any proceeding under the Bankruptcy Code or other applicable law or the occurrence of any other Event with respect to Parent, Maker or such other subsidiary, whether or not such interest is allowed or allowable against Parent, Maker or such other subsidiary in any such proceeding), reimbursement obligations, fees (including prepayment fees), expenses, indemnification or otherwise; provided that Senior Indebtedness shall not include any indebtedness of Parent, Maker or any of Parent’s other subsidiaries described in this clause (c) that is contractually subordinated in right of payment to any other indebtedness of Parent, Maker or such other subsidiary. Senior Indebtedness shall continue to constitute Senior Indebtedness, notwithstanding the fact that such Senior Indebtedness or any claim for such Senior Indebtedness is subordinated, avoided or disallowed under the Bankruptcy Code or other applicable law.

“Senior Indebtedness Agreements” means, collectively, (a) the First Lien Credit Agreement, the other “Credit Documents” as such term is defined in the First Lien Credit Agreement executed and/or delivered in connection with the First Lien Credit Agreement as from time to time in effect, (b) the Second Lien Credit Agreement and the other “Credit Documents” as such term is defined in the Second Lien Credit Agreement executed and/or delivered in connection with the Second Lien Credit Agreement as from time to time in effect and (c) any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders from time to time of any Senior Indebtedness, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Senior Representatives” means, collectively, (a) the First Lien Agent, (b) the Second Lien Agent and (c) any other agent, trustee or other representative of the holders from time to time of any Senior Indebtedness.

“Subordinated Indebtedness” means all principal, interest and other amounts payable or chargeable in connection with the Subordinated Note and any other Subordinated Lending Agreement.

“Subordinated Lender” means the Holder and its heirs, successors and assigns. References to the Subordinated Lender as “it” is intended to mean the Subordinated Lender notwithstanding that the Subordinated Lender is a natural person.

x A-2

“Subordinated Lending Agreements” means, collectively, (a) the Subordinated Note, including the Subordination Provisions, and (b) all agreements, documents and instruments now or at any time hereafter executed and/or delivered by Maker or any other Person to, with or in favor of the Subordinated Lender in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Subordinated Note” means the Amended and Restated Subordinated Promissory Note, dated as of May 4, 2018, executed by Maker, payable to the order of the Subordinated Lender, in an aggregate principal amount of up to $1,475,316.78, as may be amended, amended and restated, refinanced, extended, supplemented and/or otherwise modified from time to time in accordance with the terms of the Subordinated Note and the Senior Indebtedness Agreements.

“Subordination Provisions” means the provisions of this Annex A.

1.2           Other Terms. Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Subordinated Note.

2.           Covenants. Each of Maker and the Subordinated Lender, and any transferee of any Subordinated Indebtedness, hereby covenants that until the Senior Indebtedness shall have been indefeasibly paid in full and satisfied in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements shall have been irrevocably terminated, all in accordance with the terms of the Senior Indebtedness Agreements, it will comply with such of the Subordination Provisions hereof as are applicable to it:

2.1           Transfers. These Subordination Provisions constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, Senior Indebtedness, and the Senior Representatives thereof, and such provisions are made for the benefit of the holders of Senior Indebtedness, and the Senior Representative thereof, and such holders, and the Senior Representative thereof, are hereby made obligees and express third party beneficiaries hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions. The Subordinated Lender covenants that any transferee from it of any Subordinated Indebtedness shall, prior to acquiring such interest, execute and deliver a joinder to, or acknowledgment of, the Subordination Terms in form and substance reasonably satisfactory to the First Lien Agent and the Second Lien Agent.

2.2           Subordination Provisions. Notwithstanding any other provision of the Subordinated Lending Agreements to the contrary, any Distribution with respect to the Subordinated Indebtedness is and shall be expressly junior and subordinated in right of payment to all amounts due and owing upon all Senior Indebtedness outstanding from time to time. Specifically, but not by way of limitation:

x A-3

(a)           Payments. If a Senior Default shall have occurred and be continuing, and, other than in the case of a Senior Default arising in respect of any Event, any Senior Representative or other Senior Creditor shall have provided prior written notice to Maker that no Distribution be made, then (i) no Distribution of any kind or character, whether in cash securities or other property, and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be made by or on behalf of Maker with respect to the Subordinated Note to the Subordinated Lender and (ii) no amounts payable under the Subordinated Note shall be forgiven or otherwise reduced in any way.

(b)           Limitation on Remedies. The Subordinated Lender shall not be entitled to exercise any remedies as a creditor or commence any other action or proceeding to recover any amounts due or to become due with respect to the Subordinated Indebtedness prior to the indefeasible payment in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) of all Senior Indebtedness and the irrevocable termination of the Senior Indebtedness Agreements.

(c)           Prior Payment of Senior Indebtedness in Bankruptcy, etc. In the event of any insolvency or bankruptcy proceedings relative to Maker or its property, or any receivership, liquidation, reorganization or other similar proceedings in connection therewith, or, in the event of any proceedings for voluntary liquidation, dissolution or other winding up of Maker or distribution or marshalling of its assets or any composition with creditors of Maker, whether or not involving insolvency or bankruptcy, or if Maker shall cease its operations, call a meeting of its creditors or no longer do business as a going concern (each individually or collectively, an “Event”), then all Senior Indebtedness shall be indefeasibly paid in full and satisfied in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements irrevocably terminated before any Distribution shall be made on account of any Subordinated Indebtedness. Any such Distribution which would, but for the provisions hereof, be payable or deliverable in respect of the Subordinated Indebtedness, shall be paid or delivered directly to the Senior Creditors or their respective Senior Representatives, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, until amounts owing upon Senior Indebtedness shall have been indefeasibly paid in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements irrevocably terminated.

(d)           Power of Attorney. To enable the Senior Creditors to assert and enforce their rights hereunder in any proceeding referred to in Section 2.2(c) or upon the happening of any Event, each Senior Representative or any Person whom it may designate is hereby irrevocably appointed attorney-in-fact for the Subordinated Lender with full power to act in the place and stead of the Subordinated Lender, including the right to make, present, and file and to vote such proofs of claim against Maker on account of all or any part of the Subordinated Indebtedness as such Senior Representative may deem advisable and to receive and collect any and all payments made thereon and to apply the same on account of the Senior Indebtedness. The Subordinated Lender will execute and deliver to any Senior Representative such instruments as may be required by such Senior Representative to enforce any and all Subordinated Indebtedness, to effectuate the aforesaid power of attorney and to effect collection of any and all payments which may be made at any time on account thereof, and the Subordinated Lender hereby irrevocably appoints each Senior Representative as the lawful attorney and agent of the Subordinated Lender to execute such instruments on behalf of the Subordinated Lender and hereby further authorizes the Senior Representatives to file such instruments in any appropriate public office.

x A-4

(e)           Payments Held in Trust. Should any Distribution or the proceeds thereof, in respect of the Subordinated Indebtedness, be collected or received by the Subordinated Lender or any Affiliate (as such term is defined in Rule 405 of Regulation C adopted by the Securities and Exchange Commission pursuant to the Securities Act of 1933) of the Subordinated Lender at a time when the Subordinated Lender is not permitted to receive any such Distribution or proceeds thereof, including if same is collected or received when there is or would be after giving effect to such payment a Senior Default, then the Subordinated Lender will forthwith deliver, or cause to be delivered, the same to the Senior Representatives, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, in precisely the form held by the Subordinated Lender (except for any necessary endorsement) and until so delivered, the same shall be held in trust by the Subordinated Lender, or any such Affiliate, as the property of the Senior Representatives and shall not be commingled with other property of the Subordinated Lender or any such Affiliate.

(f)           Subrogation. Subject to the prior indefeasible payment in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) of the Senior Indebtedness and the irrevocable termination of the Senior Indebtedness Agreements, to the extent that any Senior Creditor or any Senior Representative thereof has received any Distribution on the applicable Senior Indebtedness which, but for the Subordination Provisions hereof, would have been applied to the Subordinated Indebtedness, the Subordinated Lender shall be subrogated to then or thereafter rights of such Senior Creditor or such Senior Representative thereof, including, without limitation, the right to receive any Distribution made on the applicable Senior Indebtedness until the principal of, interest on and other charges due under the Subordinated Indebtedness shall be indefeasibly paid in full and, for the purposes of such subrogation, no Distribution to any Senior Creditor or any Senior Representative thereof to which the Subordinated Lender would be entitled except for the Subordination Provisions hereof shall, as between Maker, its creditors (other than the Senior Creditors and the Senior Representatives) and the Subordinated Lender, be deemed to be a Distribution by Maker to or on account of Senior Indebtedness, it being understood that the provisions hereof are and are intended solely for the purpose of defining the relative rights of the Subordinated Lender on the one hand, and the Senior Creditors on the other hand.

(g)           Scope of Subordination. The Subordination Provisions hereof are solely to define the relative rights of the Subordinated Lender and the Senior Creditors. Nothing in this Annex A shall impair, as between Maker and the Subordinated Lender the unconditional and absolute obligation of Maker to punctually pay the principal, interest and any other amounts and obligations owing under the Subordinated Note and the Subordinated Lending Agreements in accordance with the terms thereof, subject to the rights of the Senior Creditors hereunder.

x A-5

2.3           Unsecured Creditor of Maker. The Subordinated Lender hereby agrees and acknowledges that the Subordinated Indebtedness is an unsecured obligation of Maker.

3.           Miscellaneous.

3.1           Survival of Rights. The rights of the Senior Creditors to enforce the Subordination Provisions shall not be prejudiced or impaired by any act or omitted act of Maker, the Subordinated Lender or any Senior Creditor, including, without limitation, forbearance, waiver, consent, compromise, amendment, extension, renewal, or taking or release of security in respect of any Senior Indebtedness or noncompliance by Maker with such provisions, regardless of the actual or imputed knowledge of any Senior Creditor.

3.2           Bankruptcy Financing Issues. The Subordinated Note shall continue in full force and effect after the filing of any petition (“Petition”) by or against Maker under the Bankruptcy Code and all converted or succeeding cases in respect thereof. All references herein to Maker shall be deemed to apply to Maker as debtor-in-possession and to a trustee for Maker. If Maker shall become subject to a proceeding under the Bankruptcy Code, and if any Senior Creditors shall desire to permit the use of cash collateral or to provide post-Petition financing from such Senior Creditors to Maker under the Bankruptcy Code, the Subordinated Lender agrees as follows: (a) adequate notice to Subordinated Lender shall be deemed to have been provided for such consent or post-Petition financing if the Subordinated Lender receives notice thereof three (3) Business Days (or such shorter notice as is given to the Senior Creditors or the Senior Representatives thereof) prior to the earlier of (i) any hearing on a request to approve such post-petition financing or (ii) the date of entry of an order approving same and (b) no objection will be raised by the Subordinated Lender to any such use of cash collateral or such post-Petition financing from such Senior Creditors.

3.3           Insurance Proceeds. The Senior Representatives of any Senior Indebtedness that is secured by any Collateral, as holders of a senior security interest on the Collateral insured shall have the sole and exclusive right, as against the Subordinated Lender, to adjust settlement of insurance claims in the event of any covered loss, theft or destruction of such Collateral. All proceeds of such insurance shall inure to the applicable Senior Representatives, to the extent of the applicable Senior Creditors’ claim, and the Subordinated Lender shall cooperate (if necessary) in a reasonable manner in effecting the payment of insurance proceeds to the applicable Senior Creditors. In the event the applicable Senior Representatives, in their sole discretion or pursuant to agreement with Maker, permits Maker to utilize the proceeds of insurance to replace Collateral, the consent of such Senior Representatives thereto shall be deemed to include the consent of the Subordinated Lender.

3.4           Receipt of Agreements. The Subordinated Lender hereby acknowledges that it has delivered to each Senior Representative a correct and complete copy of the Subordinated Lending Agreements as in effect on the date hereof. The Subordinated Lender, solely for the payment of the Subordinated Note, hereby acknowledges receipt of a correct and complete copy of each of the Senior Indebtedness Agreements as in effect on the date hereof.

3.5           No Amendment of Subordinated Lending Agreements. So long as any Senior Indebtedness Agreement remains in effect, neither Maker nor the Subordinated Lender shall enter into any amendment, waiver or modification of the Subordinated Lending Agreements, without the prior written consent of the Senior Representatives.

x A-6

3.6           Amendments to Senior Indebtedness Agreements. Nothing contained herein shall in any manner limit or restrict the ability of the Senior Creditors to increase or change the terms of the Senior Indebtedness under any Senior Indebtedness Agreements, or to otherwise waive, amend or modify the terms and conditions of the Senior Indebtedness Agreements, in such manner as the applicable Senior Creditors and Maker shall mutually determine. The Subordinated Lender hereby consents to any and all such waivers, amendments, modifications and compromises, and any other renewals, extensions, indulgences, releases of collateral or other accommodations granted by the Senior Creditors to Maker from time to time, and agrees that none of such actions shall in any manner affect or impair the subordination established hereby in respect of the Subordinated Indebtedness.

3.7           Notice of Default and Certain Events. The Subordinated Lender shall notify the Senior Representatives of the occurrence of any of the following as applicable:

(a)           the obtaining of actual knowledge of the occurrence of any Event of Default under any of the Subordinated Notes;

(b)           the acceleration of any Subordinated Indebtedness by the Subordinated Lender; or

(c)           the granting of any waiver of any Event of Default by the Subordinated Lender.

3.8           Binding Effect; Governing Law. The Subordination Provisions shall be a continuing agreement and shall be binding upon Maker and the Subordinated Lender and their respective heirs, successors and assigns and inure to the benefit of the Senior Creditors, Maker and the Subordinated Lender and their respective heirs, successors and assigns, shall be irrevocable and shall remain in full force and effect until the Senior Indebtedness shall have been satisfied or indefeasibly paid in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements shall have been irrevocably terminated, but shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any amount paid by or on behalf of Maker with regard to the Senior Indebtedness is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Maker, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee, custodian, or similar officer, for Maker or any substantial part of its property, or otherwise, all as though such payments had not been made. No action which any Senior Creditor or Maker may take or refrain from taking with respect to the Senior Indebtedness, including any amendments thereto, shall affect the Subordination Provisions or the obligations of Maker or the Subordinated Lender hereunder. The headings in the Subordination Provisions are for convenience of reference only, and shall not alter or otherwise affect the meaning hereof. THE SUBORDINATION PROVISIONS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF MAKER, THE SUBORDINATED LENDER AND THE SENIOR CREDITORS SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS THEREOF, BUT OTHERWISE WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF THE LAW THEREOF.

x A-7

3.9           Waiver of Substantive Consolidation. By its acceptance of the Subordinated Note, the Subordinated Lender agrees that, in any proceeding under the Bankruptcy Code or any proceeding under any similar law, it will not, directly or indirectly, request, join in or support any request, or provide any assistance or encouragement or solicit any other Person to make any request, for substantive consolidation of Maker with any one or more of its subsidiaries or parent entities or for a determination that piercing the corporate veil, alter ego or any similar theory is applicable to Maker and one or more of its subsidiaries or parent entities and waive any and all rights they may have to do so. In the event that Maker is substantively consolidated with any or more of its subsidiaries or parent entities, the Subordinated Lender agrees that it will not benefit from such substantive consolidation and will be treated as if the substantive consolidation did not occur (and any such benefit that would have accrued to the Subordinated Lender shall be turned over to the creditors of the subsidiary or subsidiaries that are so substantively consolidated). The Subordinated Lender acknowledges that the Senior Creditors are expressly relying on the separateness of Maker from its subsidiaries and parent entities, and agrees that the Senior Creditors may rely on the agreements and waivers in this paragraph.

4.           PROCEEDINGS. SUBJECT TO CLAUSE (E) BELOW, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST MAKER, THE SUBORDINATED LENDER OR ANY SENIOR CREDITOR ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING OR ACCEPTING THE SUBORDINATED NOTE, EACH OF MAKER AND THE SUBORDINATED LENDER, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (E) BELOW); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN THE SIGNATURE PAGES TO THE SUBORDINATED NOTE; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PERSON IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE SENIOR CREDITORS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST MAKER OR THE SUBORDINATED LENDER IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER THE SUBORDINATION PROVISIONS, THE SUBORDINATED LENDING AGREEMENTS OR THE SENIOR INDEBTEDNESS AGREEMENTS OR ANY EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

x A-8

5.           WAIVER OF JURY TRIAL. EACH OF MAKER AND THE SUBORDINATED LENDER HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM OR THE SENIOR CREDITORS RELATING TO THE SUBJECT MATTER HEREOF. 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 HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF MAKER AND THE SUBORDINATED LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH OF THEM AND THE SENIOR CREDITORS HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THE SUBORDINATED LENDING AGREEMENTS AND/OR THE SENIOR INDEBTEDNESS AGREEMENTS, AND THAT EACH OF THEM AND THE SENIOR CREDITORS WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH OF MAKER AND THE SUBORDINATED LENDER 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 5 AND EXECUTED BY EACH OF MAKER AND THE SUBORDINATED LENDER AND CONSENTED TO IN WRITING BY EACH SENIOR REPRESENTATIVE), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THE SUBORDINATION PROVISIONS MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

6.           Maker Acknowledgement. Maker agrees that (a) nothing contained in the Subordination Provisions shall be deemed to amend, modify, supersede or otherwise alter the terms of the respective agreements between Maker and any Senior Creditor or between Maker and the Subordinated Lender and (b) the Subordination Provisions are solely for the benefit of the Senior Creditors and the Subordinated Lender and shall not give Maker, its successors or assigns, or any other Person any rights vis-à-vis any Senior Creditor or the Subordinated Lender.

x A-9

EX-10.16

THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN ANNEX A ATTACHED HERETO TO THE SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A ATTACHED HERETO) OWED BY MAKER (AS DEFINED BELOW) AND THE OTHER CREDIT PARTIES (AS DEFINED IN THE CREDIT AGREEMENTS REFERRED TO BELOW) PURSUANT TO (A) THAT CERTAIN FIRST LIEN CREDIT AND GUARANTY AGREEMENT DATED AS OF MAY 4, 2018 (THE “FIRST LIEN CREDIT AGREEMENT”) AMONG FUSION CONNECT, INC. (“PARENT”), MAKER AND CERTAIN OTHER SUBSIDIARIES OF PARENT, WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS THE FIRST LIEN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, (B) THAT CERTAIN SECOND LIEN CREDIT AND GUARANTY AGREEMENT DATED AS OF MAY 4, 2018 (THE “SECOND LIEN CREDIT AGREEMENT” AND, TOGETHER WITH THE FIRST LIEN CREDIT AGREEMENT, THE “CREDIT AGREEMENTS”) AMONG PARENT, MAKER AND CERTAIN OTHER SUBSIDIARIES OF PARENT, WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS THE SECOND LIEN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, AND (C) THE OTHER SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A ATTACHED HERETO); AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE SUBORDINATION PROVISIONS SET FORTH IN ANNEX A ATTACHED HERETO.

Date: May 4, 2018 Amount $1,276,336.68

AMENDED AND RESTATED SUBORDINATED PROMISSORY NOTE

FOR VALUE RECEIVED, Fusion BCHI Acquisition LLC (as successor in interest by merger to Birch Communications Holdings, Inc.), a Delaware limited liability company (“Maker”), hereby promises to pay to R. Kirby Godsey (together with his heirs, successors and permitted assigns, the “Holder”) at his offices, or at such other place as Holder may from time to time direct, in lawful money of the United States, the principal sum of ONE MILLION TWO HUNDRED SEVENTY SIX THOUSAND THREE HUNDRED THIRTY-SIX and 68/100 DOLLARS ($1,276,336.68), or such lesser amount as shall then be outstanding hereunder, on March 31, 2019, with interest (computed on the basis of a 360-day year payable for the number of days actually elapsed) on the unpaid balance thereof at the rate of 12% per annum until the principal hereof shall have become due and payable. Subject in all respects to the subordination provisions set forth in Annex A attached hereto, all interest hereon shall be payable quarterly in arrears on each Interest Payment Date (as defined below).

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, accrued and unpaid interest shall be payable on the last day of each of March, June, September and December of each year (each an “Interest Payment Date”) commencing June 30, 2018.

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, the outstanding principal amount hereof will be due and payable as follows: (i) two consecutive installments of $425,445.56 shall be due and payable on September 30, 2018 and December 31, 2018, respectively; and (ii) a final installment of the entire remaining outstanding principal balance shall be due and payable in full on March 31, 2019, together with all accrued but unpaid interest thereon.

Events of Default. Each of the following shall constitute an “Event of Default”:

(i)            Maker fails to pay any amount due hereunder within ten (10) days of demand by Holder therefor;

(ii)           Maker fails to comply with or to perform in accordance with, or otherwise breaches, any other provision contained in this Note that is not cured within thirty (30) days after such failure first occurs; or

(iii)         the execution of an assignment for the benefit of creditors by Maker or the filing or commencement of any proceedings for relief under any applicable bankruptcy laws or insolvency laws or any laws relating to the relief of debtors, readjustment of any indebtedness, reorganization, composition, extension of debt, or the appointment of a trustee for, by or against Maker.

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, upon and after the occurrence of an Event of Default, Holder shall have the right, without presentment, notice, or demand of any kind, to accelerate this Note and to declare all of the obligations of Maker under this Note due and payable immediately, and to exercise all of Holder’s rights and remedies as provided in this Note or under applicable law; provided that, upon the occurrence of an Event of Default under clause (iii) above, all obligations of Maker under this Note shall automatically become due and payable immediately. Maker hereby waives presentment, demand for payment, notice of nonpayment, protests, notice of protests, notice of dishonor and all other notices in connection with this Note.

-2-

Notwithstanding any other provision contained in this Note, the aggregate interest rate per annum charged with respect to this Note (including, without limitation, all charges and fees deemed to be interest pursuant to applicable law), shall not exceed the maximum rate per annum permitted by applicable law. In the event that the aggregate interest rate per annum payable with respect to this Note (including, without limitation, all charges and fees deemed to be interest under applicable laws) exceeds the maximum legal rate, (i) Maker shall only pay interest at the maximum permitted rate, (ii) Maker shall continue to make such interest payments at the maximum permitted rate until all such interest payments and other charges and fees payable hereunder (in the absence of such legal limitations) have been paid in full, (iii) any interest in excess of the maximum permitted rate received by the Holder shall, at the Holder’s option, be applied to a prepayment of the principal amount of this Note or refunded to Maker, and (iv) neither Maker nor any other Person shall have any right of action against the Holder for any damages or penalties arising out of the payment or collection of any such excess interest. In determining whether the interest contracted for, charged, or received with respect to this Note exceeds the maximum permitted rate, the Holder 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 this Note.

Payments of principal of and interest on this Note are to be made in lawful money of the United States of America at the address shown in the register maintained by the Holder for such purpose or at such other place as the Holder shall have designated.

This Note re-evidences certain outstanding obligations previously evidenced by that certain Subordinated Promissory Note dated October 28, 2016, in the original face amount of $1,825,000.00 issued by the Maker to Holder (the “Previous Note”). The face amount of this Note reflects a principal payment made on the date hereof in the amount of $912,500. This Note is not in payment or satisfaction of the Previous Note, nor is this Note in any way intended to constitute a novation of the Previous Note.

THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS THEREOF, BUT OTHERWISE WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF THE LAW THEREOF.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

[Bircan Sub Note – Godsey]

-3-

IN WITNESS WHEREOF, the parties have duly executed, or have caused their duly authorized officer or representative to execute, this Note as of the date first above written.

MAKER:

FUSION BCHI ACQUISITION LLC

By: /s/ Kevin M. Dotts                              

Name: Kevin M. Dotts

Title: Chief Financial Officer

Address:

420 Lexington Ave., Suite 1718

New York, New York 10170

[SIGNATURES CONTINUE ON NEXT PAGE]

 [Bircan Sub Note – Godsey]

HOLDER:

/s/ R. Kirby Godsey___________________

R. Kirby Godsey

Address:

320 Interstate North Parkway SE, Suite 300

Atlanta, Georgia 30339

 [Bircan Sub Note – Godsey]

Annex A

to Subordinated Promissory Note

SUBORDINATION PROVISIONS

1.           Definitions.

1.1         General Terms. As used in these Subordination Provisions, the following terms shall have the following meanings:

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

“Collateral” means, collectively, (a) the “Collateral” as such term is defined in the First Lien Credit Agreement, (b) the “Collateral” as such term is defined in the Second Lien Credit Agreement and (c) any other property (including equity interests) on which liens are purported to be granted pursuant to any Senior Indebtedness Agreement as security for any Senior Indebtedness.

“Distribution” means any payment, distribution or dividend (whether in respect of principal, interest, fees or otherwise), whether in cash, in kind, securities or any other property, or security for any such payment, distribution or dividend.

“Event” has the meaning set forth in Section 2.2(c).

“First Lien Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement, and its successors and assigns in such capacity.

“First Lien Credit Agreement” means the First Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Parent, Maker, certain other subsidiaries of Parent from time to time party thereto, the lenders from time to time party thereto and the First Lien Agent, as the foregoing now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

Parent” means Fusion Connect, Inc., a Delaware corporation, and its successors and assigns.

“Second Lien Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the Second Lien Credit Agreement, and its successors and assigns in such capacity.

“Second Lien Credit Agreement” means the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Parent, Maker, certain other subsidiaries of Parent from time to time party thereto, the lenders from time to time party thereto and the Second Lien Agent, as the foregoing now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Senior Creditors” means, collectively, (a) the “Secured Parties” as such term is defined in the First Lien Credit Agreement, (b) the “Secured Parties” as such term is defined in the Second Lien Credit Agreement, (c) any other holders of Senior Indebtedness and (d) the Senior Representatives of any of the foregoing.

Annex A-1

“Senior Default” means a Default or an Event of Default (or any comparable term) under (and as defined in) any Senior Indebtedness Agreement.

“Senior Indebtedness” means, collectively, (a) all “Obligations” as such term is defined in the First Lien Credit Agreement, (b) all “Obligations” as such term is defined in the Second Lien Credit Agreement and (c) all obligations of every nature of Parent, Maker and each of Parent’s other subsidiaries under (i) any “Permitted Second Lien Indebtedness”, “Permitted Credit Agreement Refinancing Indebtedness” or “Permitted Incremental Equivalent Indebtedness” in each case as such term is defined in the First Lien Credit Agreement or (ii) any “Permitted Section 6.1(e) Indebtedness”, “Permitted Credit Agreement Refinancing Indebtedness” or “Permitted Incremental Equivalent Indebtedness” in each case as such term is defined in the Second Lien Credit Agreement, whether for principal, interest (including default interest accruing pursuant to the terms of the Senior Indebtedness Agreements in respect of such Senior Indebtedness and interest (including such default interest) that would continue to accrue pursuant to such Senior Indebtedness Agreements on any such obligations after the commencement of any proceeding under the Bankruptcy Code or other applicable law or the occurrence of any other Event with respect to Parent, Maker or such other subsidiary, whether or not such interest is allowed or allowable against Parent, Maker or such other subsidiary in any such proceeding), reimbursement obligations, fees (including prepayment fees), expenses, indemnification or otherwise; provided that Senior Indebtedness shall not include any indebtedness of Parent, Maker or any of Parent’s other subsidiaries described in this clause (c) that is contractually subordinated in right of payment to any other indebtedness of Parent, Maker or such other subsidiary. Senior Indebtedness shall continue to constitute Senior Indebtedness, notwithstanding the fact that such Senior Indebtedness or any claim for such Senior Indebtedness is subordinated, avoided or disallowed under the Bankruptcy Code or other applicable law.

“Senior Indebtedness Agreements” means, collectively, (a) the First Lien Credit Agreement, the other “Credit Documents” as such term is defined in the First Lien Credit Agreement executed and/or delivered in connection with the First Lien Credit Agreement as from time to time in effect, (b) the Second Lien Credit Agreement and the other “Credit Documents” as such term is defined in the Second Lien Credit Agreement executed and/or delivered in connection with the Second Lien Credit Agreement as from time to time in effect and (c) any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders from time to time of any Senior Indebtedness, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Senior Representatives” means, collectively, (a) the First Lien Agent, (b) the Second Lien Agent and (c) any other agent, trustee or other representative of the holders from time to time of any Senior Indebtedness.

“Subordinated Indebtedness” means all principal, interest and other amounts payable or chargeable in connection with the Subordinated Note and any other Subordinated Lending Agreement.

“Subordinated Lender” means the Holder and its heirs, successors and assigns. References to the Subordinated Lender as “it” is intended to mean the Subordinated Lender notwithstanding that the Subordinated Lender is a natural person.

x A-2

“Subordinated Lending Agreements” means, collectively, (a) the Subordinated Note, including the Subordination Provisions, and (b) all agreements, documents and instruments now or at any time hereafter executed and/or delivered by Maker or any other Person to, with or in favor of the Subordinated Lender in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Subordinated Note” means the Amended and Restated Subordinated Promissory Note, dated as of May 4, 2018, executed by Maker, payable to the order of the Subordinated Lender, in an aggregate principal amount of up to $1,475,316.78, as may be amended, amended and restated, refinanced, extended, supplemented and/or otherwise modified from time to time in accordance with the terms of the Subordinated Note and the Senior Indebtedness Agreements.

“Subordination Provisions” means the provisions of this Annex A.

1.2           Other Terms. Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Subordinated Note.

2.            Covenants. Each of Maker and the Subordinated Lender, and any transferee of any Subordinated Indebtedness, hereby covenants that until the Senior Indebtedness shall have been indefeasibly paid in full and satisfied in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements shall have been irrevocably terminated, all in accordance with the terms of the Senior Indebtedness Agreements, it will comply with such of the Subordination Provisions hereof as are applicable to it:

2.1           Transfers. These Subordination Provisions constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, Senior Indebtedness, and the Senior Representatives thereof, and such provisions are made for the benefit of the holders of Senior Indebtedness, and the Senior Representative thereof, and such holders, and the Senior Representative thereof, are hereby made obligees and express third party beneficiaries hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions. The Subordinated Lender covenants that any transferee from it of any Subordinated Indebtedness shall, prior to acquiring such interest, execute and deliver a joinder to, or acknowledgment of, the Subordination Terms in form and substance reasonably satisfactory to the First Lien Agent and the Second Lien Agent.

2.2         Subordination Provisions. Notwithstanding any other provision of the Subordinated Lending Agreements to the contrary, any Distribution with respect to the Subordinated Indebtedness is and shall be expressly junior and subordinated in right of payment to all amounts due and owing upon all Senior Indebtedness outstanding from time to time. Specifically, but not by way of limitation:

x A-3

(a)           Payments. If a Senior Default shall have occurred and be continuing, and, other than in the case of a Senior Default arising in respect of any Event, any Senior Representative or other Senior Creditor shall have provided prior written notice to Maker that no Distribution be made, then (i) no Distribution of any kind or character, whether in cash securities or other property, and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be made by or on behalf of Maker with respect to the Subordinated Note to the Subordinated Lender and (ii) no amounts payable under the Subordinated Note shall be forgiven or otherwise reduced in any way.

(b)         Limitation on Remedies. The Subordinated Lender shall not be entitled to exercise any remedies as a creditor or commence any other action or proceeding to recover any amounts due or to become due with respect to the Subordinated Indebtedness prior to the indefeasible payment in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) of all Senior Indebtedness and the irrevocable termination of the Senior Indebtedness Agreements.

(c)           Prior Payment of Senior Indebtedness in Bankruptcy, etc. In the event of any insolvency or bankruptcy proceedings relative to Maker or its property, or any receivership, liquidation, reorganization or other similar proceedings in connection therewith, or, in the event of any proceedings for voluntary liquidation, dissolution or other winding up of Maker or distribution or marshalling of its assets or any composition with creditors of Maker, whether or not involving insolvency or bankruptcy, or if Maker shall cease its operations, call a meeting of its creditors or no longer do business as a going concern (each individually or collectively, an “Event”), then all Senior Indebtedness shall be indefeasibly paid in full and satisfied in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements irrevocably terminated before any Distribution shall be made on account of any Subordinated Indebtedness. Any such Distribution which would, but for the provisions hereof, be payable or deliverable in respect of the Subordinated Indebtedness, shall be paid or delivered directly to the Senior Creditors or their respective Senior Representatives, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, until amounts owing upon Senior Indebtedness shall have been indefeasibly paid in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements irrevocably terminated.

(d)           Power of Attorney. To enable the Senior Creditors to assert and enforce their rights hereunder in any proceeding referred to in Section 2.2(c) or upon the happening of any Event, each Senior Representative or any Person whom it may designate is hereby irrevocably appointed attorney-in-fact for the Subordinated Lender with full power to act in the place and stead of the Subordinated Lender, including the right to make, present, and file and to vote such proofs of claim against Maker on account of all or any part of the Subordinated Indebtedness as such Senior Representative may deem advisable and to receive and collect any and all payments made thereon and to apply the same on account of the Senior Indebtedness. The Subordinated Lender will execute and deliver to any Senior Representative such instruments as may be required by such Senior Representative to enforce any and all Subordinated Indebtedness, to effectuate the aforesaid power of attorney and to effect collection of any and all payments which may be made at any time on account thereof, and the Subordinated Lender hereby irrevocably appoints each Senior Representative as the lawful attorney and agent of the Subordinated Lender to execute such instruments on behalf of the Subordinated Lender and hereby further authorizes the Senior Representatives to file such instruments in any appropriate public office.

x A-4

(e)           Payments Held in Trust. Should any Distribution or the proceeds thereof, in respect of the Subordinated Indebtedness, be collected or received by the Subordinated Lender or any Affiliate (as such term is defined in Rule 405 of Regulation C adopted by the Securities and Exchange Commission pursuant to the Securities Act of 1933) of the Subordinated Lender at a time when the Subordinated Lender is not permitted to receive any such Distribution or proceeds thereof, including if same is collected or received when there is or would be after giving effect to such payment a Senior Default, then the Subordinated Lender will forthwith deliver, or cause to be delivered, the same to the Senior Representatives, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, in precisely the form held by the Subordinated Lender (except for any necessary endorsement) and until so delivered, the same shall be held in trust by the Subordinated Lender, or any such Affiliate, as the property of the Senior Representatives and shall not be commingled with other property of the Subordinated Lender or any such Affiliate.

(f)           Subrogation. Subject to the prior indefeasible payment in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) of the Senior Indebtedness and the irrevocable termination of the Senior Indebtedness Agreements, to the extent that any Senior Creditor or any Senior Representative thereof has received any Distribution on the applicable Senior Indebtedness which, but for the Subordination Provisions hereof, would have been applied to the Subordinated Indebtedness, the Subordinated Lender shall be subrogated to then or thereafter rights of such Senior Creditor or such Senior Representative thereof, including, without limitation, the right to receive any Distribution made on the applicable Senior Indebtedness until the principal of, interest on and other charges due under the Subordinated Indebtedness shall be indefeasibly paid in full and, for the purposes of such subrogation, no Distribution to any Senior Creditor or any Senior Representative thereof to which the Subordinated Lender would be entitled except for the Subordination Provisions hereof shall, as between Maker, its creditors (other than the Senior Creditors and the Senior Representatives) and the Subordinated Lender, be deemed to be a Distribution by Maker to or on account of Senior Indebtedness, it being understood that the provisions hereof are and are intended solely for the purpose of defining the relative rights of the Subordinated Lender on the one hand, and the Senior Creditors on the other hand.

(g)           Scope of Subordination. The Subordination Provisions hereof are solely to define the relative rights of the Subordinated Lender and the Senior Creditors. Nothing in this Annex A shall impair, as between Maker and the Subordinated Lender the unconditional and absolute obligation of Maker to punctually pay the principal, interest and any other amounts and obligations owing under the Subordinated Note and the Subordinated Lending Agreements in accordance with the terms thereof, subject to the rights of the Senior Creditors hereunder.

x A-5

2.3           Unsecured Creditor of Maker. The Subordinated Lender hereby agrees and acknowledges that the Subordinated Indebtedness is an unsecured obligation of Maker.

3.             Miscellaneous.

3.1           Survival of Rights. The rights of the Senior Creditors to enforce the Subordination Provisions shall not be prejudiced or impaired by any act or omitted act of Maker, the Subordinated Lender or any Senior Creditor, including, without limitation, forbearance, waiver, consent, compromise, amendment, extension, renewal, or taking or release of security in respect of any Senior Indebtedness or noncompliance by Maker with such provisions, regardless of the actual or imputed knowledge of any Senior Creditor.

3.2           Bankruptcy Financing Issues. The Subordinated Note shall continue in full force and effect after the filing of any petition (“Petition”) by or against Maker under the Bankruptcy Code and all converted or succeeding cases in respect thereof. All references herein to Maker shall be deemed to apply to Maker as debtor-in-possession and to a trustee for Maker. If Maker shall become subject to a proceeding under the Bankruptcy Code, and if any Senior Creditors shall desire to permit the use of cash collateral or to provide post-Petition financing from such Senior Creditors to Maker under the Bankruptcy Code, the Subordinated Lender agrees as follows: (a) adequate notice to Subordinated Lender shall be deemed to have been provided for such consent or post-Petition financing if the Subordinated Lender receives notice thereof three (3) Business Days (or such shorter notice as is given to the Senior Creditors or the Senior Representatives thereof) prior to the earlier of (i) any hearing on a request to approve such post-petition financing or (ii) the date of entry of an order approving same and (b) no objection will be raised by the Subordinated Lender to any such use of cash collateral or such post-Petition financing from such Senior Creditors.

3.3           Insurance Proceeds. The Senior Representatives of any Senior Indebtedness that is secured by any Collateral, as holders of a senior security interest on the Collateral insured shall have the sole and exclusive right, as against the Subordinated Lender, to adjust settlement of insurance claims in the event of any covered loss, theft or destruction of such Collateral. All proceeds of such insurance shall inure to the applicable Senior Representatives, to the extent of the applicable Senior Creditors’ claim, and the Subordinated Lender shall cooperate (if necessary) in a reasonable manner in effecting the payment of insurance proceeds to the applicable Senior Creditors. In the event the applicable Senior Representatives, in their sole discretion or pursuant to agreement with Maker, permits Maker to utilize the proceeds of insurance to replace Collateral, the consent of such Senior Representatives thereto shall be deemed to include the consent of the Subordinated Lender.

3.4           Receipt of Agreements. The Subordinated Lender hereby acknowledges that it has delivered to each Senior Representative a correct and complete copy of the Subordinated Lending Agreements as in effect on the date hereof. The Subordinated Lender, solely for the payment of the Subordinated Note, hereby acknowledges receipt of a correct and complete copy of each of the Senior Indebtedness Agreements as in effect on the date hereof.

3.5           No Amendment of Subordinated Lending Agreements. So long as any Senior Indebtedness Agreement remains in effect, neither Maker nor the Subordinated Lender shall enter into any amendment, waiver or modification of the Subordinated Lending Agreements, without the prior written consent of the Senior Representatives.

x A-6

3.6           Amendments to Senior Indebtedness Agreements. Nothing contained herein shall in any manner limit or restrict the ability of the Senior Creditors to increase or change the terms of the Senior Indebtedness under any Senior Indebtedness Agreements, or to otherwise waive, amend or modify the terms and conditions of the Senior Indebtedness Agreements, in such manner as the applicable Senior Creditors and Maker shall mutually determine. The Subordinated Lender hereby consents to any and all such waivers, amendments, modifications and compromises, and any other renewals, extensions, indulgences, releases of collateral or other accommodations granted by the Senior Creditors to Maker from time to time, and agrees that none of such actions shall in any manner affect or impair the subordination established hereby in respect of the Subordinated Indebtedness.

3.7           Notice of Default and Certain Events. The Subordinated Lender shall notify the Senior Representatives of the occurrence of any of the following as applicable:

(a)           the obtaining of actual knowledge of the occurrence of any Event of Default under any of the Subordinated Notes;

(b)           the acceleration of any Subordinated Indebtedness by the Subordinated Lender; or

(c)           the granting of any waiver of any Event of Default by the Subordinated Lender.

3.8           Binding Effect; Governing Law. The Subordination Provisions shall be a continuing agreement and shall be binding upon Maker and the Subordinated Lender and their respective heirs, successors and assigns and inure to the benefit of the Senior Creditors, Maker and the Subordinated Lender and their respective heirs, successors and assigns, shall be irrevocable and shall remain in full force and effect until the Senior Indebtedness shall have been satisfied or indefeasibly paid in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements shall have been irrevocably terminated, but shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any amount paid by or on behalf of Maker with regard to the Senior Indebtedness is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Maker, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee, custodian, or similar officer, for Maker or any substantial part of its property, or otherwise, all as though such payments had not been made. No action which any Senior Creditor or Maker may take or refrain from taking with respect to the Senior Indebtedness, including any amendments thereto, shall affect the Subordination Provisions or the obligations of Maker or the Subordinated Lender hereunder. The headings in the Subordination Provisions are for convenience of reference only, and shall not alter or otherwise affect the meaning hereof. THE SUBORDINATION PROVISIONS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF MAKER, THE SUBORDINATED LENDER AND THE SENIOR CREDITORS SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS THEREOF, BUT OTHERWISE WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF THE LAW THEREOF.

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3.9           Waiver of Substantive Consolidation. By its acceptance of the Subordinated Note, the Subordinated Lender agrees that, in any proceeding under the Bankruptcy Code or any proceeding under any similar law, it will not, directly or indirectly, request, join in or support any request, or provide any assistance or encouragement or solicit any other Person to make any request, for substantive consolidation of Maker with any one or more of its subsidiaries or parent entities or for a determination that piercing the corporate veil, alter ego or any similar theory is applicable to Maker and one or more of its subsidiaries or parent entities and waive any and all rights they may have to do so. In the event that Maker is substantively consolidated with any or more of its subsidiaries or parent entities, the Subordinated Lender agrees that it will not benefit from such substantive consolidation and will be treated as if the substantive consolidation did not occur (and any such benefit that would have accrued to the Subordinated Lender shall be turned over to the creditors of the subsidiary or subsidiaries that are so substantively consolidated). The Subordinated Lender acknowledges that the Senior Creditors are expressly relying on the separateness of Maker from its subsidiaries and parent entities, and agrees that the Senior Creditors may rely on the agreements and waivers in this paragraph.

4.           PROCEEDINGS. SUBJECT TO CLAUSE (E) BELOW, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST MAKER, THE SUBORDINATED LENDER OR ANY SENIOR CREDITOR ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING OR ACCEPTING THE SUBORDINATED NOTE, EACH OF MAKER AND THE SUBORDINATED LENDER, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (E) BELOW); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN THE SIGNATURE PAGES TO THE SUBORDINATED NOTE; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PERSON IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE SENIOR CREDITORS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST MAKER OR THE SUBORDINATED LENDER IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER THE SUBORDINATION PROVISIONS, THE SUBORDINATED LENDING AGREEMENTS OR THE SENIOR INDEBTEDNESS AGREEMENTS OR ANY EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

x A-8

5.           WAIVER OF JURY TRIAL. EACH OF MAKER AND THE SUBORDINATED LENDER HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM OR THE SENIOR CREDITORS RELATING TO THE SUBJECT MATTER HEREOF. 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 HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF MAKER AND THE SUBORDINATED LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH OF THEM AND THE SENIOR CREDITORS HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THE SUBORDINATED LENDING AGREEMENTS AND/OR THE SENIOR INDEBTEDNESS AGREEMENTS, AND THAT EACH OF THEM AND THE SENIOR CREDITORS WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH OF MAKER AND THE SUBORDINATED LENDER 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 5 AND EXECUTED BY EACH OF MAKER AND THE SUBORDINATED LENDER AND CONSENTED TO IN WRITING BY EACH SENIOR REPRESENTATIVE), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THE SUBORDINATION PROVISIONS MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

6.           Maker Acknowledgement. Maker agrees that (a) nothing contained in the Subordination Provisions shall be deemed to amend, modify, supersede or otherwise alter the terms of the respective agreements between Maker and any Senior Creditor or between Maker and the Subordinated Lender and (b) the Subordination Provisions are solely for the benefit of the Senior Creditors and the Subordinated Lender and shall not give Maker, its successors or assigns, or any other Person any rights vis-à-vis any Senior Creditor or the Subordinated Lender.

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EX-10.17

THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN ANNEX A ATTACHED HERETO TO THE SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A ATTACHED HERETO) OWED BY MAKER (AS DEFINED BELOW) AND THE OTHER CREDIT PARTIES (AS DEFINED IN THE CREDIT AGREEMENTS REFERRED TO BELOW) PURSUANT TO (A) THAT CERTAIN FIRST LIEN CREDIT AND GUARANTY AGREEMENT DATED AS OF MAY 4, 2018 (THE “FIRST LIEN CREDIT AGREEMENT”) AMONG FUSION CONNECT, INC. (“PARENT”), MAKER AND CERTAIN OTHER SUBSIDIARIES OF PARENT, WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS THE FIRST LIEN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, (B) THAT CERTAIN SECOND LIEN CREDIT AND GUARANTY AGREEMENT DATED AS OF MAY 4, 2018 (THE “SECOND LIEN CREDIT AGREEMENT” AND, TOGETHER WITH THE FIRST LIEN CREDIT AGREEMENT, THE “CREDIT AGREEMENTS”) AMONG PARENT, MAKER AND CERTAIN OTHER SUBSIDIARIES OF PARENT, WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS THE SECOND LIEN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, AND (C) THE OTHER SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A ATTACHED HERETO); AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE SUBORDINATION PROVISIONS SET FORTH IN ANNEX A ATTACHED HERETO.

Date: May 4, 2018 Amount $524,521.92

AMENDED AND RESTATED SUBORDINATED PROMISSORY NOTE

FOR VALUE RECEIVED, Fusion BCHI Acquisition LLC (as successor in interest by merger to Birch Communications Holdings, Inc.), a Delaware limited liability company (“Maker”), hereby promises to pay to Holcombe T. Green, Jr. 2013 Five-Year Annuity Trust (together with its successors and permitted assigns, the “Holder”) at his offices, or at such other place as Holder may from time to time direct, in lawful money of the United States, the principal sum of FIVE HUNDRED TWENTY FOUR THOUSAND FIVE HUNDRED TWENTY-0NE and 92/100 DOLLARS ($524,521.92), or such lesser amount as shall then be outstanding hereunder, on March 31, 2019, with interest (computed on the basis of a 360-day year payable for the number of days actually elapsed) on the unpaid balance thereof at the rate of 12% per annum until the principal hereof shall have become due and payable. Subject in all respects to the subordination provisions set forth in Annex A attached hereto, all interest hereon shall be payable quarterly in arrears on each Interest Payment Date (as defined below).

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, accrued and unpaid interest shall be payable on the last day of each of March, June, September and December of each year (each an “Interest Payment Date”) commencing June 30, 2018.

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, the outstanding principal amount hereof will be due and payable as follows: (i) two consecutive installments of $174,840.64 shall be due and payable on September 30, 2018 and December 31, 2018, respectively; and (ii) a final installment of the entire remaining outstanding principal balance shall be due and payable in full on March 31, 2019, together with all accrued but unpaid interest thereon.

Events of Default. Each of the following shall constitute an “Event of Default”:

(i)            Maker fails to pay any amount due hereunder within ten (10) days of demand by Holder therefor;

(ii)           Maker fails to comply with or to perform in accordance with, or otherwise breaches, any other provision contained in this Note that is not cured within thirty (30) days after such failure first occurs; or

(iii)        the execution of an assignment for the benefit of creditors by Maker or the filing or commencement of any proceedings for relief under any applicable bankruptcy laws or insolvency laws or any laws relating to the relief of debtors, readjustment of any indebtedness, reorganization, composition, extension of debt, or the appointment of a trustee for, by or against Maker.

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, upon and after the occurrence of an Event of Default, Holder shall have the right, without presentment, notice, or demand of any kind, to accelerate this Note and to declare all of the obligations of Maker under this Note due and payable immediately, and to exercise all of Holder’s rights and remedies as provided in this Note or under applicable law; provided that, upon the occurrence of an Event of Default under clause (iii) above, all obligations of Maker under this Note shall automatically become due and payable immediately. Maker hereby waives presentment, demand for payment, notice of nonpayment, protests, notice of protests, notice of dishonor and all other notices in connection with this Note.

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Notwithstanding any other provision contained in this Note, the aggregate interest rate per annum charged with respect to this Note (including, without limitation, all charges and fees deemed to be interest pursuant to applicable law), shall not exceed the maximum rate per annum permitted by applicable law. In the event that the aggregate interest rate per annum payable with respect to this Note (including, without limitation, all charges and fees deemed to be interest under applicable laws) exceeds the maximum legal rate, (i) Maker shall only pay interest at the maximum permitted rate, (ii) Maker shall continue to make such interest payments at the maximum permitted rate until all such interest payments and other charges and fees payable hereunder (in the absence of such legal limitations) have been paid in full, (iii) any interest in excess of the maximum permitted rate received by the Holder shall, at the Holder’s option, be applied to a prepayment of the principal amount of this Note or refunded to Maker, and (iv) neither Maker nor any other Person shall have any right of action against the Holder for any damages or penalties arising out of the payment or collection of any such excess interest. In determining whether the interest contracted for, charged, or received with respect to this Note exceeds the maximum permitted rate, the Holder 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 this Note.

Payments of principal of and interest on this Note are to be made in lawful money of the United States of America at the address shown in the register maintained by the Holder for such purpose or at such other place as the Holder shall have designated.

This Note re-evidences certain outstanding obligations previously evidenced by that certain Subordinated Promissory Note dated October 28, 2016, in the original face amount of $750,000.00 issued by the Maker to Holder (the “Previous Note”). The face amount of this Note reflects a principal payment made on the date hereof in the amount of $375,000. This Note is not in payment or satisfaction of the Previous Note, nor is this Note in any way intended to constitute a novation of the Previous Note.

THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS THEREOF, BUT OTHERWISE WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF THE LAW THEREOF.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties have duly executed, or have caused their duly authorized officer or representative to execute, this Note as of the date first above written.

MAKER:

FUSION BCHI ACQUISITION LLC

By: /s/ Kevin M. Dotts                              

Name: Kevin M. Dotts

Title: Chief Financial Officer

Address:

420 Lexington Ave., Suite 1718

New York, New York 10170

[SIGNATURES CONTINUE ON NEXT PAGE]

 [Bircan Sub Note – Green Trust]

HOLDER:

HOLCOMBE T. GREEN, JR. 2013 FIVE-YEAR ANNUITY TRUST

By: /s/ Holcombe T. Green, Jr. 

Name: Holcombe T. Green, Jr.

Title: Trustee

Address:

320 Interstate North Parkway SE, Suite 300

Atlanta, Georgia 30339

 [Bircan Sub Note – Green Trust]

Annex A

to Subordinated Promissory Note

SUBORDINATION PROVISIONS

1.           Definitions.

1.1           General Terms. As used in these Subordination Provisions, the following terms shall have the following meanings:

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

“Collateral” means, collectively, (a) the “Collateral” as such term is defined in the First Lien Credit Agreement, (b) the “Collateral” as such term is defined in the Second Lien Credit Agreement and (c) any other property (including equity interests) on which liens are purported to be granted pursuant to any Senior Indebtedness Agreement as security for any Senior Indebtedness.

“Distribution” means any payment, distribution or dividend (whether in respect of principal, interest, fees or otherwise), whether in cash, in kind, securities or any other property, or security for any such payment, distribution or dividend.

“Event” has the meaning set forth in Section 2.2(c).

“First Lien Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement, and its successors and assigns in such capacity.

“First Lien Credit Agreement” means the First Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Parent, Maker, certain other subsidiaries of Parent from time to time party thereto, the lenders from time to time party thereto and the First Lien Agent, as the foregoing now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Parent” means Fusion Connect, Inc., a Delaware corporation, and its successors and assigns.

“Second Lien Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the Second Lien Credit Agreement, and its successors and assigns in such capacity.

“Second Lien Credit Agreement” means the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Parent, Maker, certain other subsidiaries of Parent from time to time party thereto, the lenders from time to time party thereto and the Second Lien Agent, as the foregoing now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Senior Creditors” means, collectively, (a) the “Secured Parties” as such term is defined in the First Lien Credit Agreement, (b) the “Secured Parties” as such term is defined in the Second Lien Credit Agreement, (c) any other holders of Senior Indebtedness and (d) the Senior Representatives of any of the foregoing.

Annex A-1

“Senior Default” means a Default or an Event of Default (or any comparable term) under (and as defined in) any Senior Indebtedness Agreement.

“Senior Indebtedness” means, collectively, (a) all “Obligations” as such term is defined in the First Lien Credit Agreement, (b) all “Obligations” as such term is defined in the Second Lien Credit Agreement and (c) all obligations of every nature of Parent, Maker and each of Parent’s other subsidiaries under (i) any “Permitted Second Lien Indebtedness”, “Permitted Credit Agreement Refinancing Indebtedness” or “Permitted Incremental Equivalent Indebtedness” in each case as such term is defined in the First Lien Credit Agreement or (ii) any “Permitted Section 6.1(e) Indebtedness”, “Permitted Credit Agreement Refinancing Indebtedness” or “Permitted Incremental Equivalent Indebtedness” in each case as such term is defined in the Second Lien Credit Agreement, whether for principal, interest (including default interest accruing pursuant to the terms of the Senior Indebtedness Agreements in respect of such Senior Indebtedness and interest (including such default interest) that would continue to accrue pursuant to such Senior Indebtedness Agreements on any such obligations after the commencement of any proceeding under the Bankruptcy Code or other applicable law or the occurrence of any other Event with respect to Parent, Maker or such other subsidiary, whether or not such interest is allowed or allowable against Parent, Maker or such other subsidiary in any such proceeding), reimbursement obligations, fees (including prepayment fees), expenses, indemnification or otherwise; provided that Senior Indebtedness shall not include any indebtedness of Parent, Maker or any of Parent’s other subsidiaries described in this clause (c) that is contractually subordinated in right of payment to any other indebtedness of Parent, Maker or such other subsidiary. Senior Indebtedness shall continue to constitute Senior Indebtedness, notwithstanding the fact that such Senior Indebtedness or any claim for such Senior Indebtedness is subordinated, avoided or disallowed under the Bankruptcy Code or other applicable law.

“Senior Indebtedness Agreements” means, collectively, (a) the First Lien Credit Agreement, the other “Credit Documents” as such term is defined in the First Lien Credit Agreement executed and/or delivered in connection with the First Lien Credit Agreement as from time to time in effect, (b) the Second Lien Credit Agreement and the other “Credit Documents” as such term is defined in the Second Lien Credit Agreement executed and/or delivered in connection with the Second Lien Credit Agreement as from time to time in effect and (c) any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders from time to time of any Senior Indebtedness, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Senior Representatives” means, collectively, (a) the First Lien Agent, (b) the Second Lien Agent and (c) any other agent, trustee or other representative of the holders from time to time of any Senior Indebtedness.

“Subordinated Indebtedness” means all principal, interest and other amounts payable or chargeable in connection with the Subordinated Note and any other Subordinated Lending Agreement.

“Subordinated Lender” means the Holder and its heirs, successors and assigns. References to the Subordinated Lender as “it” is intended to mean the Subordinated Lender notwithstanding that the Subordinated Lender is a natural person.

x A-2

“Subordinated Lending Agreements” means, collectively, (a) the Subordinated Note, including the Subordination Provisions, and (b) all agreements, documents and instruments now or at any time hereafter executed and/or delivered by Maker or any other Person to, with or in favor of the Subordinated Lender in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Subordinated Note” means the Amended and Restated Subordinated Promissory Note, dated as of May 4, 2018, executed by Maker, payable to the order of the Subordinated Lender, in an aggregate principal amount of up to $1,475,316.78, as may be amended, amended and restated, refinanced, extended, supplemented and/or otherwise modified from time to time in accordance with the terms of the Subordinated Note and the Senior Indebtedness Agreements.

“Subordination Provisions” means the provisions of this Annex A.

1.2           Other Terms. Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Subordinated Note.

2.           Covenants. Each of Maker and the Subordinated Lender, and any transferee of any Subordinated Indebtedness, hereby covenants that until the Senior Indebtedness shall have been indefeasibly paid in full and satisfied in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements shall have been irrevocably terminated, all in accordance with the terms of the Senior Indebtedness Agreements, it will comply with such of the Subordination Provisions hereof as are applicable to it:

2.1           Transfers. These Subordination Provisions constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, Senior Indebtedness, and the Senior Representatives thereof, and such provisions are made for the benefit of the holders of Senior Indebtedness, and the Senior Representative thereof, and such holders, and the Senior Representative thereof, are hereby made obligees and express third party beneficiaries hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions. The Subordinated Lender covenants that any transferee from it of any Subordinated Indebtedness shall, prior to acquiring such interest, execute and deliver a joinder to, or acknowledgment of, the Subordination Terms in form and substance reasonably satisfactory to the First Lien Agent and the Second Lien Agent.

2.2           Subordination Provisions. Notwithstanding any other provision of the Subordinated Lending Agreements to the contrary, any Distribution with respect to the Subordinated Indebtedness is and shall be expressly junior and subordinated in right of payment to all amounts due and owing upon all Senior Indebtedness outstanding from time to time. Specifically, but not by way of limitation:

(a)           Payments. If a Senior Default shall have occurred and be continuing, and, other than in the case of a Senior Default arising in respect of any Event, any Senior Representative or other Senior Creditor shall have provided prior written notice to Maker that no Distribution be made, then (i) no Distribution of any kind or character, whether in cash securities or other property, and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be made by or on behalf of Maker with respect to the Subordinated Note to the Subordinated Lender and (ii) no amounts payable under the Subordinated Note shall be forgiven or otherwise reduced in any way.

x A-3

(b)           Limitation on Remedies. The Subordinated Lender shall not be entitled to exercise any remedies as a creditor or commence any other action or proceeding to recover any amounts due or to become due with respect to the Subordinated Indebtedness prior to the indefeasible payment in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) of all Senior Indebtedness and the irrevocable termination of the Senior Indebtedness Agreements.

(c)           Prior Payment of Senior Indebtedness in Bankruptcy, etc. In the event of any insolvency or bankruptcy proceedings relative to Maker or its property, or any receivership, liquidation, reorganization or other similar proceedings in connection therewith, or, in the event of any proceedings for voluntary liquidation, dissolution or other winding up of Maker or distribution or marshalling of its assets or any composition with creditors of Maker, whether or not involving insolvency or bankruptcy, or if Maker shall cease its operations, call a meeting of its creditors or no longer do business as a going concern (each individually or collectively, an “Event”), then all Senior Indebtedness shall be indefeasibly paid in full and satisfied in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements irrevocably terminated before any Distribution shall be made on account of any Subordinated Indebtedness. Any such Distribution which would, but for the provisions hereof, be payable or deliverable in respect of the Subordinated Indebtedness, shall be paid or delivered directly to the Senior Creditors or their respective Senior Representatives, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, until amounts owing upon Senior Indebtedness shall have been indefeasibly paid in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements irrevocably terminated.

(d)           Power of Attorney. To enable the Senior Creditors to assert and enforce their rights hereunder in any proceeding referred to in Section 2.2(c) or upon the happening of any Event, each Senior Representative or any Person whom it may designate is hereby irrevocably appointed attorney-in-fact for the Subordinated Lender with full power to act in the place and stead of the Subordinated Lender, including the right to make, present, and file and to vote such proofs of claim against Maker on account of all or any part of the Subordinated Indebtedness as such Senior Representative may deem advisable and to receive and collect any and all payments made thereon and to apply the same on account of the Senior Indebtedness. The Subordinated Lender will execute and deliver to any Senior Representative such instruments as may be required by such Senior Representative to enforce any and all Subordinated Indebtedness, to effectuate the aforesaid power of attorney and to effect collection of any and all payments which may be made at any time on account thereof, and the Subordinated Lender hereby irrevocably appoints each Senior Representative as the lawful attorney and agent of the Subordinated Lender to execute such instruments on behalf of the Subordinated Lender and hereby further authorizes the Senior Representatives to file such instruments in any appropriate public office.

x A-4

(e)           Payments Held in Trust. Should any Distribution or the proceeds thereof, in respect of the Subordinated Indebtedness, be collected or received by the Subordinated Lender or any Affiliate (as such term is defined in Rule 405 of Regulation C adopted by the Securities and Exchange Commission pursuant to the Securities Act of 1933) of the Subordinated Lender at a time when the Subordinated Lender is not permitted to receive any such Distribution or proceeds thereof, including if same is collected or received when there is or would be after giving effect to such payment a Senior Default, then the Subordinated Lender will forthwith deliver, or cause to be delivered, the same to the Senior Representatives, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, in precisely the form held by the Subordinated Lender (except for any necessary endorsement) and until so delivered, the same shall be held in trust by the Subordinated Lender, or any such Affiliate, as the property of the Senior Representatives and shall not be commingled with other property of the Subordinated Lender or any such Affiliate.

(f)           Subrogation. Subject to the prior indefeasible payment in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) of the Senior Indebtedness and the irrevocable termination of the Senior Indebtedness Agreements, to the extent that any Senior Creditor or any Senior Representative thereof has received any Distribution on the applicable Senior Indebtedness which, but for the Subordination Provisions hereof, would have been applied to the Subordinated Indebtedness, the Subordinated Lender shall be subrogated to then or thereafter rights of such Senior Creditor or such Senior Representative thereof, including, without limitation, the right to receive any Distribution made on the applicable Senior Indebtedness until the principal of, interest on and other charges due under the Subordinated Indebtedness shall be indefeasibly paid in full and, for the purposes of such subrogation, no Distribution to any Senior Creditor or any Senior Representative thereof to which the Subordinated Lender would be entitled except for the Subordination Provisions hereof shall, as between Maker, its creditors (other than the Senior Creditors and the Senior Representatives) and the Subordinated Lender, be deemed to be a Distribution by Maker to or on account of Senior Indebtedness, it being understood that the provisions hereof are and are intended solely for the purpose of defining the relative rights of the Subordinated Lender on the one hand, and the Senior Creditors on the other hand.

(g)           Scope of Subordination. The Subordination Provisions hereof are solely to define the relative rights of the Subordinated Lender and the Senior Creditors. Nothing in this Annex A shall impair, as between Maker and the Subordinated Lender the unconditional and absolute obligation of Maker to punctually pay the principal, interest and any other amounts and obligations owing under the Subordinated Note and the Subordinated Lending Agreements in accordance with the terms thereof, subject to the rights of the Senior Creditors hereunder.

x A-5

2.3           Unsecured Creditor of Maker. The Subordinated Lender hereby agrees and acknowledges that the Subordinated Indebtedness is an unsecured obligation of Maker.

3.           Miscellaneous.

3.1           Survival of Rights. The rights of the Senior Creditors to enforce the Subordination Provisions shall not be prejudiced or impaired by any act or omitted act of Maker, the Subordinated Lender or any Senior Creditor, including, without limitation, forbearance, waiver, consent, compromise, amendment, extension, renewal, or taking or release of security in respect of any Senior Indebtedness or noncompliance by Maker with such provisions, regardless of the actual or imputed knowledge of any Senior Creditor.

3.2           Bankruptcy Financing Issues. The Subordinated Note shall continue in full force and effect after the filing of any petition (“Petition”) by or against Maker under the Bankruptcy Code and all converted or succeeding cases in respect thereof. All references herein to Maker shall be deemed to apply to Maker as debtor-in-possession and to a trustee for Maker. If Maker shall become subject to a proceeding under the Bankruptcy Code, and if any Senior Creditors shall desire to permit the use of cash collateral or to provide post-Petition financing from such Senior Creditors to Maker under the Bankruptcy Code, the Subordinated Lender agrees as follows: (a) adequate notice to Subordinated Lender shall be deemed to have been provided for such consent or post-Petition financing if the Subordinated Lender receives notice thereof three (3) Business Days (or such shorter notice as is given to the Senior Creditors or the Senior Representatives thereof) prior to the earlier of (i) any hearing on a request to approve such post-petition financing or (ii) the date of entry of an order approving same and (b) no objection will be raised by the Subordinated Lender to any such use of cash collateral or such post-Petition financing from such Senior Creditors.

3.3           Insurance Proceeds. The Senior Representatives of any Senior Indebtedness that is secured by any Collateral, as holders of a senior security interest on the Collateral insured shall have the sole and exclusive right, as against the Subordinated Lender, to adjust settlement of insurance claims in the event of any covered loss, theft or destruction of such Collateral. All proceeds of such insurance shall inure to the applicable Senior Representatives, to the extent of the applicable Senior Creditors’ claim, and the Subordinated Lender shall cooperate (if necessary) in a reasonable manner in effecting the payment of insurance proceeds to the applicable Senior Creditors. In the event the applicable Senior Representatives, in their sole discretion or pursuant to agreement with Maker, permits Maker to utilize the proceeds of insurance to replace Collateral, the consent of such Senior Representatives thereto shall be deemed to include the consent of the Subordinated Lender.

3.4           Receipt of Agreements. The Subordinated Lender hereby acknowledges that it has delivered to each Senior Representative a correct and complete copy of the Subordinated Lending Agreements as in effect on the date hereof. The Subordinated Lender, solely for the payment of the Subordinated Note, hereby acknowledges receipt of a correct and complete copy of each of the Senior Indebtedness Agreements as in effect on the date hereof.

3.5           No Amendment of Subordinated Lending Agreements. So long as any Senior Indebtedness Agreement remains in effect, neither Maker nor the Subordinated Lender shall enter into any amendment, waiver or modification of the Subordinated Lending Agreements, without the prior written consent of the Senior Representatives.

x A-6

3.6           Amendments to Senior Indebtedness Agreements. Nothing contained herein shall in any manner limit or restrict the ability of the Senior Creditors to increase or change the terms of the Senior Indebtedness under any Senior Indebtedness Agreements, or to otherwise waive, amend or modify the terms and conditions of the Senior Indebtedness Agreements, in such manner as the applicable Senior Creditors and Maker shall mutually determine. The Subordinated Lender hereby consents to any and all such waivers, amendments, modifications and compromises, and any other renewals, extensions, indulgences, releases of collateral or other accommodations granted by the Senior Creditors to Maker from time to time, and agrees that none of such actions shall in any manner affect or impair the subordination established hereby in respect of the Subordinated Indebtedness.

3.7           Notice of Default and Certain Events. The Subordinated Lender shall notify the Senior Representatives of the occurrence of any of the following as applicable:

(a)           the obtaining of actual knowledge of the occurrence of any Event of Default under any of the Subordinated Notes;

(b)           the acceleration of any Subordinated Indebtedness by the Subordinated Lender; or

(c)           the granting of any waiver of any Event of Default by the Subordinated Lender.

3.8           Binding Effect; Governing Law. The Subordination Provisions shall be a continuing agreement and shall be binding upon Maker and the Subordinated Lender and their respective heirs, successors and assigns and inure to the benefit of the Senior Creditors, Maker and the Subordinated Lender and their respective heirs, successors and assigns, shall be irrevocable and shall remain in full force and effect until the Senior Indebtedness shall have been satisfied or indefeasibly paid in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements shall have been irrevocably terminated, but shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any amount paid by or on behalf of Maker with regard to the Senior Indebtedness is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Maker, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee, custodian, or similar officer, for Maker or any substantial part of its property, or otherwise, all as though such payments had not been made. No action which any Senior Creditor or Maker may take or refrain from taking with respect to the Senior Indebtedness, including any amendments thereto, shall affect the Subordination Provisions or the obligations of Maker or the Subordinated Lender hereunder. The headings in the Subordination Provisions are for convenience of reference only, and shall not alter or otherwise affect the meaning hereof. THE SUBORDINATION PROVISIONS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF MAKER, THE SUBORDINATED LENDER AND THE SENIOR CREDITORS SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS THEREOF, BUT OTHERWISE WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF THE LAW THEREOF.

x A-7

3.9           Waiver of Substantive Consolidation. By its acceptance of the Subordinated Note, the Subordinated Lender agrees that, in any proceeding under the Bankruptcy Code or any proceeding under any similar law, it will not, directly or indirectly, request, join in or support any request, or provide any assistance or encouragement or solicit any other Person to make any request, for substantive consolidation of Maker with any one or more of its subsidiaries or parent entities or for a determination that piercing the corporate veil, alter ego or any similar theory is applicable to Maker and one or more of its subsidiaries or parent entities and waive any and all rights they may have to do so. In the event that Maker is substantively consolidated with any or more of its subsidiaries or parent entities, the Subordinated Lender agrees that it will not benefit from such substantive consolidation and will be treated as if the substantive consolidation did not occur (and any such benefit that would have accrued to the Subordinated Lender shall be turned over to the creditors of the subsidiary or subsidiaries that are so substantively consolidated). The Subordinated Lender acknowledges that the Senior Creditors are expressly relying on the separateness of Maker from its subsidiaries and parent entities, and agrees that the Senior Creditors may rely on the agreements and waivers in this paragraph.

4.           PROCEEDINGS. SUBJECT TO CLAUSE (E) BELOW, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST MAKER, THE SUBORDINATED LENDER OR ANY SENIOR CREDITOR ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING OR ACCEPTING THE SUBORDINATED NOTE, EACH OF MAKER AND THE SUBORDINATED LENDER, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (E) BELOW); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN THE SIGNATURE PAGES TO THE SUBORDINATED NOTE; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PERSON IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE SENIOR CREDITORS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST MAKER OR THE SUBORDINATED LENDER IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER THE SUBORDINATION PROVISIONS, THE SUBORDINATED LENDING AGREEMENTS OR THE SENIOR INDEBTEDNESS AGREEMENTS OR ANY EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

x A-8

5.           WAIVER OF JURY TRIAL. EACH OF MAKER AND THE SUBORDINATED LENDER HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM OR THE SENIOR CREDITORS RELATING TO THE SUBJECT MATTER HEREOF. 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 HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF MAKER AND THE SUBORDINATED LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH OF THEM AND THE SENIOR CREDITORS HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THE SUBORDINATED LENDING AGREEMENTS AND/OR THE SENIOR INDEBTEDNESS AGREEMENTS, AND THAT EACH OF THEM AND THE SENIOR CREDITORS WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH OF MAKER AND THE SUBORDINATED LENDER 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 5 AND EXECUTED BY EACH OF MAKER AND THE SUBORDINATED LENDER AND CONSENTED TO IN WRITING BY EACH SENIOR REPRESENTATIVE), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THE SUBORDINATION PROVISIONS MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

6.           Maker Acknowledgement. Maker agrees that (a) nothing contained in the Subordination Provisions shall be deemed to amend, modify, supersede or otherwise alter the terms of the respective agreements between Maker and any Senior Creditor or between Maker and the Subordinated Lender and (b) the Subordination Provisions are solely for the benefit of the Senior Creditors and the Subordinated Lender and shall not give Maker, its successors or assigns, or any other Person any rights vis-à-vis any Senior Creditor or the Subordinated Lender.

x A-9

EX-10.18

THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN ANNEX A ATTACHED HERETO TO THE SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A ATTACHED HERETO) OWED BY MAKER (AS DEFINED BELOW) AND THE OTHER CREDIT PARTIES (AS DEFINED IN THE CREDIT AGREEMENTS REFERRED TO BELOW) PURSUANT TO (A) THAT CERTAIN FIRST LIEN CREDIT AND GUARANTY AGREEMENT DATED AS OF May 4, 2018 (THE “FIRST LIEN CREDIT AGREEMENT”) AMONG MAKER, CERTAIN SUBSIDIARIES OF MAKER, WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS THE FIRST LIEN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, (B) THAT CERTAIN SECOND LIEN CREDIT AND GUARANTY AGREEMENT DATED AS OF May 4, 2018 (THE “SECOND LIEN CREDIT AGREEMENT” AND, TOGETHER WITH THE FIRST LIEN CREDIT AGREEMENT, THE “CREDIT AGREEMENTS”) AMONG MAKER, CERTAIN SUBSIDIARIES OF MAKER, WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS THE SECOND LIEN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, AND (C) THE OTHER SENIOR INDEBTEDNESS (AS DEFINED IN ANNEX A ATTACHED HERETO); AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE SUBORDINATION PROVISIONS SET FORTH IN ANNEX A ATTACHED HERETO.

THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) AS DEFINED BY SECTION 1273(A)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER OF THIS NOTE MAY CONTACT THE CHIEF FINANCIAL OFFICER OF MAKER FOR INFORMATION CONCERNING THE ISSUE PRICE, AMOUNT OF OID AND YIELD TO MATURITY OF THIS NOTE.

Date: May 4, 2018 Amount $10,000,000.00

SUBORDINATED PROMISSORY NOTE

FOR VALUE RECEIVED, Fusion Connect, Inc., a Delaware corporation (“Maker”), hereby promises to pay to Holcombe T. Green, Jr. (together with his heirs, successors and permitted assigns, the “Holder”) at its offices, or at such other place as Holder may from time to time direct, in lawful money of the United States, the principal sum of TEN MILLION AND 00/100 DOLLARS ($10,000,000.00), on the date that is 91 days following the latest applicable Maturity Date under the Second Lien Credit Agreement, with interest (computed on the basis of a 360-day year payable for the number of days actually elapsed) on the unpaid balance thereof at the rate of 13% per annum until the principal hereof shall have become due and payable. Subject in all respects to the subordination provisions set forth in Annex A attached hereto, all interest hereon shall be payable quarterly in arrears on each Interest Payment Date (as defined below).

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Subject in all respects to the subordination provisions set forth in Annex A attached hereto, accrued and unpaid interest shall be payable on the last day of each of March, June, September and December of each year (each an “Interest Payment Date”) commencing June 30, 2018.

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, in the event that on or prior to the date that is 36 months after the date, hereof all or any portion of the outstanding principal amount hereof is prepaid, then the Holder shall be paid a fee equal to (A) if such prepayment occurs on or prior to the date that is 18 months after the date hereof, the Yield Maintenance Amount (as defined in the Second Lien Credit Agreement) with respect to the principal amount so prepaid, (B) if such prepayment occurs after the date that is 18 months after the date hereof and on or prior to the date that is 24 months after the date hereof, 4.00% of the principal amount so prepaid, and (C) if such prepayment occurs after the date that is 24 months after the date hereof but on or prior to the date that is 36 months after the date hereof, 2.00% of the principal amount so prepaid; provided that (i) no such fee shall be due and payable if such prepayment or amendment or modification (or such assignment) occurs after the date that is 36 months after the Closing Date and (ii) such fee shall be due a payable only if a fee shall also be due and payable under Section 2.12(b) of the Second Lien Credit Agreement as a result of such prepayment.

Events of Default. Each of the following shall constitute an “Event of Default”:

(i)            Maker fails to pay any amount due hereunder within ten (10) days of demand by Holder therefor;

(ii)           Maker fails to comply with or to perform in accordance with, or otherwise breaches, any other provision contained in this Note that is not cured within thirty (30) days after such failure first occurs; or

(iii)           the execution of an assignment for the benefit of creditors by Maker or the filing or commencement of any proceedings for relief under any applicable bankruptcy laws or insolvency laws or any laws relating to the relief of debtors, readjustment of any indebtedness, reorganization, composition, extension of debt, or the appointment of a trustee for, by or against Maker.

Subject in all respects to the subordination provisions set forth in Annex A attached hereto, upon and after the occurrence of an Event of Default, Holder shall have the right, without presentment, notice, or demand of any kind, to accelerate this Note and to declare all of the obligations of Maker under this Note due and payable immediately, and to exercise all of Holder’s rights and remedies as provided in this Note or under applicable law; provided that, upon the occurrence of an Event of Default under clause (iii) above, all obligations of Maker under this Note shall automatically become due and payable immediately. Maker hereby waives presentment, demand for payment, notice of nonpayment, protests, notice of protests, notice of dishonor and all other notices in connection with this Note.

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Notwithstanding any other provision contained in this Note, the aggregate interest rate per annum charged with respect to this Note (including, without limitation, all charges and fees deemed to be interest pursuant to applicable law), shall not exceed the maximum rate per annum permitted by applicable law. In the event that the aggregate interest rate per annum payable with respect to this Note (including, without limitation, all charges and fees deemed to be interest under applicable laws) exceeds the maximum legal rate, (i) Maker shall only pay interest at the maximum permitted rate, (ii) Maker shall continue to make such interest payments at the maximum permitted rate until all such interest payments and other charges and fees payable hereunder (in the absence of such legal limitations) have been paid in full, (iii) any interest in excess of the maximum permitted rate received by the Holder shall, at the Holder’s option, be applied to a prepayment of the principal amount of this Note or refunded to Maker, and (iv) neither Maker nor any other Person shall have any right of action against the Holder for any damages or penalties arising out of the payment or collection of any such excess interest. In determining whether the interest contracted for, charged, or received with respect to this Note exceeds the maximum permitted rate, the Holder 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 this Note.

Payments of principal of and interest on this Note are to be made in lawful money of the United States of America at the address shown in the register maintained by the Holder for such purpose or at such other place as the Holder shall have designated.

This Note shall not be assigned, transferred or otherwise disposed of to any Person (as defined below) other than to a Person majority-owned and Controlled by (as defined in the First Lien Credit Agreement) Holcombe T. Green, Jr. “Person” means any natural person, corporation, limited partnership, general partnership, limited liability company, limited liability partnership, joint stock company, joint venture, association, company, trust, bank, trust company, land trust and business trust or other organization, whether or not a legal entity.

Maker and Holder each acknowledge and agree that this Note has been issued by Maker to Holder for an amount equal to 96.0% of the original face amount hereof.

THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS THEREOF, BUT OTHERWISE WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF THE LAW THEREOF.

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IN WITNESS WHEREOF, the parties have duly executed, or have caused their duly authorized officer or representative to execute, this Note as of the date first above written.

MAKER:

FUSION CONNECT, INC.

By: /s/ Kevin M. Dotts

Name: Kevin M. Dotts

Title: Chief Financial Officer

Address:

420 Lexington Ave., Suite 1718

New York, New York 10170

[SIGNATURES CONTINUE ON NEXT PAGE]

HOLDER:

/s/ Holcombe T. Green, Jr.

Holcombe T. Green, Jr.

Address:

320 Interstate North Parkway SE, Suite 300

Atlanta, Georgia 30339

Annex A

to Subordinated Promissory Note

SUBORDINATION PROVISIONS

1.Definitions.

1.1General Terms. As used in these Subordination Provisions, the following terms shall have the following meanings:

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

“Collateral” means, collectively, (a) the “Collateral” as such term is defined in the First Lien Credit Agreement, (b) the “Collateral” as such term is defined in the Second Lien Credit Agreement and (c) any other property (including equity interests) on which liens are purported to be granted pursuant to any Senior Indebtedness Agreement as security for any Senior Indebtedness.

“Distribution” means any payment, distribution or dividend (whether in respect of principal, interest, fees or otherwise), whether in cash, in kind, securities or any other property, or security for any such payment, distribution or dividend.

“Event” has the meaning set forth in Section 2.2(c).

“First Lien Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement, and its successors and assigns in such capacity.

“First Lien Credit Agreement” means the First Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Maker, certain subsidiaries of Maker from time to time party thereto, the lenders from time to time party thereto and the First Lien Agent, as the foregoing now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Second Lien Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the Second Lien Credit Agreement, and its successors and assigns in such capacity.

“Second Lien Credit Agreement” means the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Maker, certain subsidiaries of Maker from time to time party thereto, the lenders from time to time party thereto and the Second Lien Agent, as the foregoing now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Senior Creditors” means, collectively, (a) the “Secured Parties” as such term is defined in the First Lien Credit Agreement, (b) the “Secured Parties” as such term is defined in the Second Lien Credit Agreement, (c) any other holders of Senior Indebtedness and (d) the Senior Representatives of any of the foregoing.

“Senior Default” means a Default or an Event of Default (or any comparable term) under (and as defined in) any Senior Indebtedness Agreement.

Annex A-1

“Senior Indebtedness” means, collectively, (a) all “Obligations” as such term is defined in the First Lien Credit Agreement, (b) all “Obligations” as such term is defined in the Second Lien Credit Agreement and (c) all obligations of every nature of Maker and each of its subsidiaries under (i) any “Permitted Second Lien Indebtedness”, “Permitted Credit Agreement Refinancing Indebtedness” or “Permitted Incremental Equivalent Indebtedness” in each case as such term is defined in the First Lien Credit Agreement or (ii) any “Permitted Section 6.1(e) Indebtedness”, “Permitted Credit Agreement Refinancing Indebtedness” or “Permitted Incremental Equivalent Indebtedness” in each case as such term is defined in the Second Lien Credit Agreement, whether for principal, interest (including default interest accruing pursuant to the terms of the Senior Indebtedness Agreements in respect of such Senior Indebtedness and interest (including such default interest) that would continue to accrue pursuant to such Senior Indebtedness Agreements on any such obligations after the commencement of any proceeding under the Bankruptcy Code or other applicable law or the occurrence of any other Event with respect to Maker or such subsidiary, whether or not such interest is allowed or allowable against Maker or such subsidiary in any such proceeding), reimbursement obligations, fees (including prepayment fees), expenses, indemnification or otherwise; provided that Senior Indebtedness shall not include any indebtedness of Maker or any of its subsidiaries described in this clause (c) that is contractually subordinated in right of payment to any other indebtedness of Maker or such subsidiary. Senior Indebtedness shall continue to constitute Senior Indebtedness, notwithstanding the fact that such Senior Indebtedness or any claim for such Senior Indebtedness is subordinated, avoided or disallowed under the Bankruptcy Code or other applicable law.

“Senior Indebtedness Agreements” means, collectively, (a) the First Lien Credit Agreement, the other “Credit Documents” as such term is defined in the First Lien Credit Agreement executed and/or delivered in connection with the First Lien Credit Agreement as from time to time in effect, (b) the Second Lien Credit Agreement and the other “Credit Documents” as such term is defined in the Second Lien Credit Agreement executed and/or delivered in connection with the Second Lien Credit Agreement as from time to time in effect and (c) any other credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders from time to time of any Senior Indebtedness, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Senior Representatives” means, collectively, (a) the First Lien Agent, (b) the Second Lien Agent and (c) any other agent, trustee or other representative of the holders from time to time of any Senior Indebtedness.

“Subordinated Indebtedness” means all principal, interest and other amounts payable or chargeable in connection with the Subordinated Note and any other Subordinated Lending Agreement.

“Subordinated Lender” means the Holder and its successors and assigns.

Annex A-2

“Subordinated Lending Agreements” means, collectively, (a) the Subordinated Note, including the Subordination Provisions, and (b) all agreements, documents and instruments now or at any time hereafter executed and/or delivered by Maker or any other Person to, with or in favor of the Subordinated Lender in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Subordinated Note” means the Subordinated Promissory Note, dated as of May 4, 2018, executed by Maker, payable to the order of the Subordinated Lender, in an aggregate principal amount of up to $10,000,000, as may be amended, amended and restated, refinanced, extended, supplemented and/or otherwise modified from time to time in accordance with the terms of the Subordinated Note and the Senior Indebtedness Agreements.

“Subordination Provisions” means the provisions of this Annex A.

1.2Other Terms. Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Subordinated Note.

2.Covenants. Each of Maker and the Subordinated Lender, and any transferee of any Subordinated Indebtedness, hereby covenants that until the Senior Indebtedness shall have been indefeasibly paid in full and satisfied in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements shall have been irrevocably terminated, all in accordance with the terms of the Senior Indebtedness Agreements, it will comply with such of the Subordination Provisions hereof as are applicable to it:

2.1Transfers. These Subordination Provisions constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, Senior Indebtedness, and the Senior Representatives thereof, and such provisions are made for the benefit of the holders of Senior Indebtedness, and the Senior Representative thereof, and such holders, and the Senior Representative thereof, are hereby made obligees and express third party beneficiaries hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions.

2.2Subordination Provisions. Notwithstanding any other provision of the Subordinated Lending Agreements to the contrary, any Distribution with respect to the Subordinated Indebtedness is and shall be expressly junior and subordinated in right of payment to all amounts due and owing upon all Senior Indebtedness outstanding from time to time. Specifically, but not by way of limitation:

(a)Payments. If a Senior Default shall have occurred and be continuing, and, other than in the case of a Senior Default arising in respect of any Event, any Senior Representative or other Senior Creditor shall have provided prior written notice to Maker that no Distribution be made, then (i) no Distribution of any kind or character, whether in cash securities or other property, and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be made by or on behalf of Maker with respect to the Subordinated Note to the Subordinated Lender and (ii) no amounts payable under the Subordinated Note shall be forgiven or otherwise reduced in any way.

Annex A-3

(b)Limitation on Remedies. The Subordinated Lender shall not be entitled to exercise any remedies as a creditor or commence any other action or proceeding to recover any amounts due or to become due with respect to the Subordinated Indebtedness prior to the indefeasible payment in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) of all Senior Indebtedness and the irrevocable termination of the Senior Indebtedness Agreements.

(c)Prior Payment of Senior Indebtedness in Bankruptcy, etc. In the event of any insolvency or bankruptcy proceedings relative to Maker or its property, or any receivership, liquidation, reorganization or other similar proceedings in connection therewith, or, in the event of any proceedings for voluntary liquidation, dissolution or other winding up of Maker or distribution or marshalling of its assets or any composition with creditors of Maker, whether or not involving insolvency or bankruptcy, or if Maker shall cease its operations, call a meeting of its creditors or no longer do business as a going concern (each individually or collectively, an “Event”), then all Senior Indebtedness shall be indefeasibly paid in full and satisfied in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements irrevocably terminated before any Distribution shall be made on account of any Subordinated Indebtedness. Any such Distribution which would, but for the provisions hereof, be payable or deliverable in respect of the Subordinated Indebtedness, shall be paid or delivered directly to the Senior Creditors or their respective Senior Representatives, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, until amounts owing upon Senior Indebtedness shall have been indefeasibly paid in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements irrevocably terminated.

(d)Power of Attorney. To enable the Senior Creditors to assert and enforce their rights hereunder in any proceeding referred to in Section 2.2(c) or upon the happening of any Event, each Senior Representative or any Person whom it may designate is hereby irrevocably appointed attorney-in-fact for the Subordinated Lender with full power to act in the place and stead of the Subordinated Lender, including the right to make, present, and file and to vote such proofs of claim against Maker on account of all or any part of the Subordinated Indebtedness as such Senior Representative may deem advisable and to receive and collect any and all payments made thereon and to apply the same on account of the Senior Indebtedness. The Subordinated Lender will execute and deliver to any Senior Representative such instruments as may be required by such Senior Representative to enforce any and all Subordinated Indebtedness, to effectuate the aforesaid power of attorney and to effect collection of any and all payments which may be made at any time on account thereof, and the Subordinated Lender hereby irrevocably appoints each Senior Representative as the lawful attorney and agent of the Subordinated Lender to execute such instruments on behalf of the Subordinated Lender and hereby further authorizes the Senior Representatives to file such instruments in any appropriate public office.

Annex A-4

(e)Payments Held in Trust. Should any Distribution or the proceeds thereof, in respect of the Subordinated Indebtedness, be collected or received by the Subordinated Lender or any Affiliate (as such term is defined in Rule 405 of Regulation C adopted by the Securities and Exchange Commission pursuant to the Securities Act of 1933) of the Subordinated Lender at a time when the Subordinated Lender is not permitted to receive any such Distribution or proceeds thereof, including if same is collected or received when there is or would be after giving effect to such payment a Senior Default, then the Subordinated Lender will forthwith deliver, or cause to be delivered, the same to the Senior Representatives, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, in precisely the form held by the Subordinated Lender (except for any necessary endorsement) and until so delivered, the same shall be held in trust by the Subordinated Lender, or any such Affiliate, as the property of the Senior Representatives and shall not be commingled with other property of the Subordinated Lender or any such Affiliate.

(f)Subrogation. Subject to the prior indefeasible payment in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) of the Senior Indebtedness and the irrevocable termination of the Senior Indebtedness Agreements, to the extent that any Senior Creditor or any Senior Representative thereof has received any Distribution on the applicable Senior Indebtedness which, but for the Subordination Provisions hereof, would have been applied to the Subordinated Indebtedness, the Subordinated Lender shall be subrogated to then or thereafter rights of such Senior Creditor or such Senior Representative thereof, including, without limitation, the right to receive any Distribution made on the applicable Senior Indebtedness until the principal of, interest on and other charges due under the Subordinated Indebtedness shall be indefeasibly paid in full and, for the purposes of such subrogation, no Distribution to any Senior Creditor or any Senior Representative thereof to which the Subordinated Lender would be entitled except for the Subordination Provisions hereof shall, as between Maker, its creditors (other than the Senior Creditors and the Senior Representatives) and the Subordinated Lender, be deemed to be a Distribution by Maker to or on account of Senior Indebtedness, it being understood that the provisions hereof are and are intended solely for the purpose of defining the relative rights of the Subordinated Lender on the one hand, and the Senior Creditors on the other hand.

(g)Scope of Subordination. The Subordination Provisions hereof are solely to define the relative rights of the Subordinated Lender and the Senior Creditors. Nothing in this Annex A shall impair, as between Maker and the Subordinated Lender the unconditional and absolute obligation of Maker to punctually pay the principal, interest and any other amounts and obligations owing under the Subordinated Note and the Subordinated Lending Agreements in accordance with the terms thereof, subject to the rights of the Senior Creditors hereunder.

2.3Unsecured Creditor of Maker. The Subordinated Lender hereby agrees and acknowledges that the Subordinated Indebtedness is an unsecured obligation of Maker.

Annex A-5

3.Miscellaneous.

3.1Survival of Rights. The rights of the Senior Creditors to enforce the Subordination Provisions shall not be prejudiced or impaired by any act or omitted act of Maker, the Subordinated Lender or any Senior Creditor, including, without limitation, forbearance, waiver, consent, compromise, amendment, extension, renewal, or taking or release of security in respect of any Senior Indebtedness or noncompliance by Maker with such provisions, regardless of the actual or imputed knowledge of any Senior Creditor.

3.2Bankruptcy Financing Issues. The Subordinated Note shall continue in full force and effect after the filing of any petition (“Petition”) by or against Maker under the Bankruptcy Code and all converted or succeeding cases in respect thereof. All references herein to Maker shall be deemed to apply to Maker as debtor-in-possession and to a trustee for Maker. If Maker shall become subject to a proceeding under the Bankruptcy Code, and if any Senior Creditors shall desire to permit the use of cash collateral or to provide post-Petition financing from such Senior Creditors to Maker under the Bankruptcy Code, the Subordinated Lender agrees as follows: (a) adequate notice to Subordinated Lender shall be deemed to have been provided for such consent or post-Petition financing if the Subordinated Lender receives notice thereof three (3) Business Days (or such shorter notice as is given to the Senior Creditors or the Senior Representatives thereof) prior to the earlier of (i) any hearing on a request to approve such post-petition financing or (ii) the date of entry of an order approving same and (b) no objection will be raised by the Subordinated Lender to any such use of cash collateral or such post-Petition financing from such Senior Creditors.

3.3Insurance Proceeds. The Senior Representatives of any Senior Indebtedness that is secured by any Collateral, as holders of a senior security interest on the Collateral insured shall have the sole and exclusive right, as against the Subordinated Lender, to adjust settlement of insurance claims in the event of any covered loss, theft or destruction of such Collateral. All proceeds of such insurance shall inure to the applicable Senior Representatives, to the extent of the applicable Senior Creditors’ claim, and the Subordinated Lender shall cooperate (if necessary) in a reasonable manner in effecting the payment of insurance proceeds to the applicable Senior Creditors. In the event the applicable Senior Representatives, in their sole discretion or pursuant to agreement with Maker, permits Maker to utilize the proceeds of insurance to replace Collateral, the consent of such Senior Representatives thereto shall be deemed to include the consent of the Subordinated Lender.

3.4Receipt of Agreements. The Subordinated Lender hereby acknowledges that it has delivered to each Senior Representative a correct and complete copy of the Subordinated Lending Agreements as in effect on the date hereof. The Subordinated Lender, solely for the payment of the Subordinated Note, hereby acknowledges receipt of a correct and complete copy of each of the Senior Indebtedness Agreements as in effect on the date hereof.

3.5No Amendment of Subordinated Lending Agreements. So long as any Senior Indebtedness Agreement remains in effect, neither Maker nor the Subordinated Lender shall enter into any amendment, waiver or modification of the Subordinated Lending Agreements, without the prior written consent of the Senior Representatives.

Annex A-6

3.6Amendments to Senior Indebtedness Agreements. Nothing contained herein shall in any manner limit or restrict the ability of the Senior Creditors to increase or change the terms of the Senior Indebtedness under any Senior Indebtedness Agreements, or to otherwise waive, amend or modify the terms and conditions of the Senior Indebtedness Agreements, in such manner as the applicable Senior Creditors and Maker shall mutually determine. The Subordinated Lender hereby consents to any and all such waivers, amendments, modifications and compromises, and any other renewals, extensions, indulgences, releases of collateral or other accommodations granted by the Senior Creditors to Maker from time to time, and agrees that none of such actions shall in any manner affect or impair the subordination established hereby in respect of the Subordinated Indebtedness.

3.7Notice of Default and Certain Events. The Subordinated Lender shall notify the Senior Representatives of the occurrence of any of the following as applicable:

(a)the obtaining of actual knowledge of the occurrence of any Event of Default under any of the Subordinated Notes;

(b)the acceleration of any Subordinated Indebtedness by the Subordinated Lender; or

(c)the granting of any waiver of any Event of Default by the Subordinated Lender.

3.8Binding Effect; Governing Law. The Subordination Provisions shall be a continuing agreement and shall be binding upon Maker and the Subordinated Lender and their respective successors and assigns and inure to the benefit of the Senior Creditors, Maker and the Subordinated Lender and their respective successors and assigns, shall be irrevocable and shall remain in full force and effect until the Senior Indebtedness shall have been satisfied or indefeasibly paid in full in cash or cash equivalents (other than contingent indemnity obligations which by their terms survive any termination of the applicable Senior Indebtedness Agreement) and the Senior Indebtedness Agreements shall have been irrevocably terminated, but shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any amount paid by or on behalf of Maker with regard to the Senior Indebtedness is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Maker, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee, custodian, or similar officer, for Maker or any substantial part of its property, or otherwise, all as though such payments had not been made. No action which any Senior Creditor or Maker may take or refrain from taking with respect to the Senior Indebtedness, including any amendments thereto, shall affect the Subordination Provisions or the obligations of Maker or the Subordinated Lender hereunder. The headings in the Subordination Provisions are for convenience of reference only, and shall not alter or otherwise affect the meaning hereof. THE SUBORDINATION PROVISIONS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF MAKER, THE SUBORDINATED LENDER AND THE SENIOR CREDITORS SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS THEREOF, BUT OTHERWISE WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF THE LAW THEREOF.

Annex A-7

3.9Waiver of Substantive Consolidation. By its acceptance of the Subordinated Note, the Subordinated Lender agrees that, in any proceeding under the Bankruptcy Code or any proceeding under any similar law, it will not, directly or indirectly, request, join in or support any request, or provide any assistance or encouragement or solicit any other Person to make any request, for substantive consolidation of Maker with any one or more of its subsidiaries or for a determination that piercing the corporate veil, alter ego or any similar theory is applicable to Maker and one or more of its subsidiaries and waive any and all rights they may have to do so. In the event that Maker is substantively consolidated with any or more of its subsidiaries or parent entities, the Subordinated Lender agrees that it will not benefit from such substantive consolidation and will be treated as if the substantive consolidation did not occur (and any such benefit that would have accrued to the Subordinated Lender shall be turned over to the creditors of the subsidiary or subsidiaries that are so substantively consolidated). The Subordinated Lender acknowledges that the Senior Creditors are expressly relying on the separateness of Maker from its subsidiaries and parent entities, and agrees that the Senior Creditors may rely on the agreements and waivers in this paragraph.

4.PROCEEDINGS. SUBJECT TO CLAUSE (E) BELOW, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST MAKER, THE SUBORDINATED LENDER OR ANY SENIOR CREDITOR ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING OR ACCEPTING THE SUBORDINATED NOTE, EACH OF MAKER AND THE SUBORDINATED LENDER, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (E) BELOW); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN THE SIGNATURE PAGES TO THE SUBORDINATED NOTE; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PERSON IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE SENIOR CREDITORS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST MAKER OR THE SUBORDINATED LENDER IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER THE SUBORDINATION PROVISIONS, THE SUBORDINATED LENDING AGREEMENTS OR THE SENIOR INDEBTEDNESS AGREEMENTS OR ANY EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

Annex A-8

5.WAIVER OF JURY TRIAL. EACH OF MAKER AND THE SUBORDINATED LENDER HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM OR THE SENIOR CREDITORS RELATING TO THE SUBJECT MATTER HEREOF. 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 HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF MAKER AND THE SUBORDINATED LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH OF THEM AND THE SENIOR CREDITORS HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THE SUBORDINATED LENDING AGREEMENTS AND/OR THE SENIOR INDEBTEDNESS AGREEMENTS, AND THAT EACH OF THEM AND THE SENIOR CREDITORS WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH OF MAKER AND THE SUBORDINATED LENDER 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 5 AND EXECUTED BY EACH OF MAKER AND THE SUBORDINATED LENDER AND CONSENTED TO IN WRITING BY EACH SENIOR REPRESENTATIVE), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THE SUBORDINATION PROVISIONS MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

6.Maker Acknowledgement. Maker agrees that (a) nothing contained in the Subordination Provisions shall be deemed to amend, modify, supersede or otherwise alter the terms of the respective agreements between Maker and any Senior Creditor or between Maker and the Subordinated Lender and (b) the Subordination Provisions are solely for the benefit of the Senior Creditors and the Subordinated Lender and shall not give Maker, its successors or assigns, or any other Person any rights vis-à-vis any Senior Creditor or the Subordinated Lender.

Annex A-9

EX-10.19

SUBORDINATED NOTE

U.S. $25,000,000.00 May 4, 2018

FOR VALUE RECEIVED, the undersigned, VECTOR FUSION HOLDINGS (CAYMAN), LTD., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Maker"), hereby promises to pay, subject to the provisions set forth on Annex A hereto (the "Subordination Provisions"), to the order of FUSION CONNECT, INC., a corporation organized under the laws of Delaware (together with any subsequent permitted holder hereof, the "Payee"), the principal sum of TWENTY FIVE MILLION AND NO/100 UNITED STATES DOLLARS (U.S. $25,000,000.00) not later than May 3, 2024 or, if less, the unpaid principal amount hereof on such date.

Terms used herein have the meanings assigned to them on Annex A hereto. In addition, terms not otherwise defined herein have the meanings given to them in the Senior Credit Agreement (and, if any term is used after the Senior Obligations have been Paid-in-Full, such term shall have the meaning assigned to such term in the Senior Credit Agreement as in effect when such Payment-in-Full occurred).

By its signature below and by its payment of the purchase price for this Subordinated Note, the Payee hereby acknowledges and agrees that the Subordination Provisions are an integral part of this Subordinated Note, and irrevocably agrees to be bound by the terms of this Subordinated Note, including the Subordination Provisions.

1.            

Interest; Prepayments; Payment On Demand.

(a) 

Subject in each case to the Subordination Provisions, the Maker promises to pay interest on the unpaid principal amount hereof on each Payment Date from the date hereof until such principal amount is paid in full in an amount, in U.S. Dollars, equal to the Subordinated Note Interest Payment Amount for such Payment Date.

(b) 

Subject in each case to the Subordination Provisions, the Maker shall repay outstanding principal of this Subordinated Note on each Payment Date to the extent amounts are available for such payment under and in accordance with the Priority of Payments (except that payments on this Subordinated Note that may be made under clause (11) of the Phase II Priority of Payments may be made solely at the option of the Maker).

(c) 

Following the Payment-in-Full of the Senior Obligations, the outstanding principal amount of this Subordinated Note, and accrued and unpaid interest thereon, shall be payable UPON DEMAND of the Payee.

2.            

Use of Proceeds.

The Maker shall use the proceeds of the issuance of this Subordinated Note and of the Loans made under the Credit Agreement solely as provided in Section 2.3 of the Senior Credit Agreement.

3.            

Representations and Warranties.

(a) 

Maker Representations, Etc. The Maker hereby represents and warrants to the Payee and the Senior Credit Agreement Holders as follows:

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(1) 

Existence. The Maker is an exempted company duly incorporated with limited liability under the laws of the Cayman Islands, has all requisite corporate power, and has all material governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted and is qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a material adverse effect on the business, operations, properties, assets or financial condition of the Maker.

(2) 

No Breach. None of the execution and delivery of this Subordinated Note, the making of the extension of credit evidenced hereby, the consummation of the transactions contemplated and compliance with the terms and provisions hereof will conflict with or result in a breach of, or require any consent under, its Organizational Documents, or any applicable law or regulation, or any order, writ, injunction or decree of any court or Governmental Authority, or any agreement or instrument to which the Maker is a party or by which the Maker is bound or to which the Maker is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

(3) 

Action; Execution and Delivery; Enforceability. The Maker has all necessary corporate power and authority to execute, deliver and perform its obligations under this Subordinated Note; the execution, delivery and performance by the Maker of this Subordinated Note have been duly authorized by all necessary corporate action on its part; and this Subordinated Note has been duly and validly executed and delivered by the Maker and constitutes its legal, valid and binding obligation, enforceable against the Maker in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limited creditors' rights generally or by equitable principles relating to enforceability.

(4) 

Approvals. No Governmental Authorizations and no notices, filings or registrations with, any Governmental Authority are necessary for the execution, delivery or performance by the Maker of this Subordinated Note or for the validity or enforceability hereof against the Maker.

(5) 

Solvency. The Maker is, both before and immediately after giving effect to the issuance of this Subordinated Note and the borrowing of the Loans under the Senior Credit Agreement, Solvent.

(6) 

Consideration. The Maker acknowledges and agrees that the issuance of this Subordinated Note to the Payee on the terms set forth herein and in the Senior Credit Agreement is an express condition to the making of the Loans by the Senior Lenders under the Senior Credit Agreement and, accordingly, to the acquisition of the Collateral Obligation by the Maker; that the Senior Lenders would not otherwise extend credit to the Maker in the transactions contemplated hereby and by the Senior Credit Agreement; and, accordingly, that the Maker would not otherwise extend credit under the Underlying Credit Agreement.

(b) 

Payee Representations, Etc. The Payee hereby represents and warrants to the Maker and the Senior Credit Agreement Holders as follows:

(1) 

Existence. The Payee is a corporation duly organized and validly existing under the laws of the State of Delaware, has all requisite corporate power, and has all material governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted and is qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary except where the failure to be so qualified would not reasonably be expected to have a material adverse effect on the business, operations, properties, assets or financial condition of the Payee.

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(2) 

No Breach. None of the execution and delivery of this Subordinated Note, the making of the extension of credit evidenced hereby, the consummation of the transactions herein contemplated and compliance with the terms and provisions hereof will conflict with or result in a breach of, or require any consent under, its Organizational Documents, or any applicable law or regulation, or any order, writ, injunction or decree of any court or Governmental Authority, or any agreement or instrument to which the Payee is a party or by which the Payee is bound or to which the Payee is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

(3) 

Action; Execution and Delivery; Enforceability. The Payee has all necessary corporate power and authority to execute, deliver and perform its obligations under this Subordinated Note; the execution, delivery and performance by the Payee of this Subordinated Note have been duly authorized by all necessary corporate action on its part; and this Subordinated Note has been duly and validly executed and delivered by the Payee and constitutes its legal, valid and binding obligation, enforceable against the Payee in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limited creditors' rights generally or by equitable principles relating to enforceability.

(4) 

Approvals. No Governmental Authorizations, and no notices, filings or registrations with any Governmental Authority are necessary for the execution, delivery or performance by the Payee of this Subordinated Note or for the validity or enforceability hereof against the Payee.

(5) 

Solvency. The Payee is, both before and immediately after giving effect to its acquisition of this Subordinated Note, Solvent.

(6) 

Consideration. The Payee acknowledges and agrees that it has received substantial benefit in the series of related transactions entered into in connection with the Underlying Credit Agreement; that the purchase of this Subordinated Note by the Payee on the terms set forth herein and in the Senior Credit Agreement is an express condition to the making of the Loans by the Senior Lenders under the Senior Credit Agreement and, accordingly, to the acquisition of the Collateral Obligation by the Maker; that the Senior Lenders would not otherwise extend credit to the Maker in the transactions contemplated hereby and by the Senior Credit Agreement; that the Maker would not otherwise extend credit under the Underlying Credit Agreement; and that, accordingly, the transactions under the Underlying Credit Agreement would not occur without the Payee's purchase of this Subordinated Note on the terms and conditions set forth herein, in the Underlying Credit Agreement and in the Credit Agreement.

(7) 

Use of Proceeds. The Payee hereby expressly consents to the use of proceeds of this Subordinated Note and of the Loans made under the Senior Credit Agreement as set forth in Section 2 above for all purposes, and acknowledges and agrees that all such proceeds may be used, pledged, invested, used, commingled or otherwise disposed of by the Maker, or otherwise used in the Maker's business, in accordance with the terms set forth in the Senior Credit Agreement, the Pledge and Security Agreement and the other Transaction Documents referred to therein.

(8) 

ERISA. No portion of this Subordinated Note has been funded by the Payee with "plan assets" for purposes of Section 3(42) of ERISA.

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4.            

Covenants.

The Maker covenants and agrees with the Payee that, until payment in full of all amounts payable by the Maker hereunder:

(a) 

Conduct of Business. The Maker will (1) comply with applicable laws, rules, regulations, writs, judgments, injunctions, decrees, awards and orders with respect to it, its business and its properties, in each case except where such non-compliance could not reasonably be expected to result in a Material Adverse Effect, (2) comply in all material respects with all Material Contracts and (3) keep and maintain, or cause its Board of Directors to keep or maintain at all times, or cause to be kept and maintained at all times in the registered office of the Maker specified in its respective Constitutive Documents, all documents, books, records, accounts and other information as are required under applicable law.

(b) 

Existence and Corporate Formalities. The provisions of Section 5.3 of the Senior Credit Agreement, as in effect as of the date hereof, are incorporated herein by reference and made a part of this Subordinated Note (provided that references to "Borrower" and "Administrative Agent" shall for purposes of this Section 4(b) be deemed to refer to Maker and Payee, respectively).

(c) 

Notification of Payment-In-Full. The Maker shall notify the Payee in writing of the Payment-in-Full of the Senior Obligations on the date such Payment-in-Full occurs.

5.            

Events of Default.

(a)            

Each of the following events shall constitute an "Event of Default" under this Subordinated Note:

(1) 

failure of Maker to pay any principal, interest or other amount due to Payee hereunder when and where due;

(2) 

any written representation, warranty or covenant made at any time by Maker to Payee in this Subordinated Note or any other Subordinated Debt Document shall prove to have been incorrect or misleading in any material respect when made; or

(3) 

an "Event of Default" under and as defined in the Senior Credit Agreement shall have occurred and be continuing, provided, for the avoidance of doubt, that to the extent the Administrative Agent under the Senior Credit Agreement waives any Default or Event of Default thereunder, Payee will be deemed to have also granted a waiver for the resulting Event of Default under this Section 5(a)(3) and no Event of Default shall be outstanding.

(b)            

Subject in each case to the Subordination Provisions:

(1) 

upon the occurrence of an Event of Default (other than a Senior Default described in clauses (e) or (f) of the definition of "Event of Default" in the Senior Credit Agreement), any and all of the obligations hereunder, at the option of Payee, may be immediately declared due and payable, and thereupon shall immediately become in default and due and payable, and Payee may exercise any and all rights and remedies available to it at law, in equity or otherwise; and

(2) 

upon the occurrence of a Senior Default described in clauses (e) or (f) of the definition of "Event of Default" in the Senior Credit Agreement, any and all of the obligations hereunder shall immediately become in default and due and payable, and Payee may exercise any and all rights and remedies available to it at law, in equity or otherwise.

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6.            

Notices.

All notices and other communications in respect of this Subordinated Note (including, without limitation, any modifications of, or requests, waivers or consents under, this Subordinated Note) shall be given or made in writing (including, without limitation, by telecopy) to the intended recipient at the "Address for Notices" specified below its name on the signature pages hereof; or, as to either the Maker or the Payee, at such other address as shall be designated by such party in a notice to the other party. Except as otherwise provided in this Subordinated Note, all such communications shall be deemed to have been duly given when transmitted by electronic mail or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid.

7.            

Judgment Currency.

(a) 

The Maker's obligations hereunder to make payments in U.S. Dollars (each, for purposes herein, the "Obligation Currency") shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Payee entitled thereto of the full amount of the Obligation Currency expressed to be payable to it under this Subordinated Note. If for the purpose of obtaining or enforcing judgment against the Maker in any court or in any jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the "Judgment Currency") an amount due in the Obligation Currency, the conversion shall be made, at the applicable exchange rate thereof as of the day on which the judgment is given (such day being hereinafter referred to as the "Judgment Currency Conversion Date").

(b) 

If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due, the Maker covenants and agrees to pay, or cause to be paid, and indemnifies the Payee for such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency that could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate or exchange prevailing on the Judgment Currency Conversion Date. The foregoing indemnity shall constitute a separate and independent obligation of the Maker and shall survive any termination of this Subordinated Note, and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.

(c) 

For purposes of determining any rate of exchange for this Section 7, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.

8.            

Amendments; Successors.

(a) 

This Subordinated Note may not be amended except by an instrument in writing signed by each of the Maker and the Payee and (if prior to the Payment-in-Full of the Senior Obligations) consented to in writing by the Senior Administrative Agent (which the Senior Administrative Agent may withhold in its sole and absolute discretion). This Subordinated Note shall be binding upon and inure to the benefit of the Maker and the Payee and their respective successors and permitted assigns.

(b) 

The Maker shall not assign any of its rights or obligations under this Subordinated Note without the prior written consent of the Payee and (if prior to the Payment-in-Full of the Senior Obligations) the written consent of the Senior Administrative Agent (which the Senior Administrative Agent may withhold in its sole and absolute discretion).

(c) 

The Payee not shall sell, assign, pledge, dispose of or otherwise transfer all or any portion of this Subordinated Note, the Subordinated Obligations or any Subordinated Note Document:

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(1)            

without the prior written consent of the Maker; and

(2)           if prior to the Payment-in-Full of the Senior Obligations:

(x) 

without the prior written consent of the Senior Administrative Agent (which the Senior Administrative Agent may withhold in its sole and absolute discretion); and

(y) 

unless, prior to the consummation of any such action, the transferee thereof shall execute and deliver to the Senior Administrative Agent a joinder agreement in the form required by the Senior Administrative Agent (a "Joinder Agreement") and shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Subordinated Creditor hereunder;

provided that Payee may pledge this Subordinated Note, and all rights of the Payee hereunder and all proceeds hereof, to (i) the Collateral Agent (as such term is defined in the Underlying Credit Agreement) to secure the Obligations (as such term is defined in the Underlying Credit Agreement) and to (ii) the collateral agent under that certain Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (the "Second Lien Credit Agreement"), among Fusion, as borrower, the guarantor subsidiaries party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent, to secure the Obligations (as such term is defined in the Second Lien Credit Agreement).

9.            

Governing Law; Submission to Jurisdiction; Venue.

This Subordinated Note and any right, remedy, obligation, claim, controversy, dispute or cause of action (whether in contract, tort or otherwise) based upon, arising out of or relating to this Subordinated Note shall be governed by, and construed in accordance with, the law of the State of New York without regard to conflicts of law principles that would lead to the application of laws other than the law of the State of New York. Each of the Maker and Payee hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York State court sitting in New York County for the purposes of all legal proceedings arising out of or relating to this Subordinated Note and the transactions contemplated hereby. Each of the Maker and the Payee hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

10.            

Usury Savings Clause.

Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the obligations under this Subordinated Note, 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 Subordinated Note at any time exceeds the Highest Lawful Rate, this Subordinated Note 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 Subordinated Note had at all times been in effect. In addition, if when this Subordinated Note has been Paid-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 Subordinated Note had at all times been in effect, then to the extent permitted by law, the Maker shall pay to the Payee 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 the Payee and the Maker to conform strictly to any applicable usury laws. Accordingly, if the Payee 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 the Payee's option be applied to the outstanding principal amount of this Subordinated Noe or be refunded to the Maker.

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11.            

Waiver of Jury Trial.

EACH OF THE MAKER AND THE PAYEE, BY ITS ACCEPTANCE OF THE BENEFITS OF THIS SUBORDINATED NOTE, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUBORDINATED NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.

12.            

Expenses.

The Maker shall promptly pay all reasonable and documented out-of-pocket costs and expenses, including attorneys' fees and costs of settlement, incurred by the Payee in enforcing any obligations of or in collecting any payments due from the Maker hereunder or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a "work out" or pursuant to any insolvency or bankruptcy cases or proceedings. This Section 12 shall survive payment of this Subordinated Note and termination of the Subordinated Debt Documents.

13.            

No Waiver; Remedies Cumulative.

No failure or delay on the part of the Payee in the exercise of any power, right or privilege hereunder or under any other Subordinated Debt 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 the Payee 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 Subordinated Debt 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.

14.            

Headings.

Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

15.            

Effectiveness; Counterparts.

This Subordinated Note shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by the Maker, the Payee and the Senior Administrative Agent of written notification of such execution and authorization of delivery thereof. This Subordinated Note 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. Delivery by the Payee or the Senior Administrative Agent of an executed counterpart of a signature page of this Subordinated Note by facsimile or in electronic format (i.e., "pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this Subordinated Note.

[remainder of page intentionally blank]

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IN WITNESS WHEREOF, the Maker has caused this Subordinated Note to be executed and delivered by its duly authorized officers as of the date first above written.

VECTOR FUSION HOLDINGS (CAYMAN), LTD.

By:           

/s/ James Murray___________________

Name: James Murray

Title: Director

Address for Notices:

1 Market Street

Steuart Tower, 23rd Floor

San Francisco, CA 94105

E-mail: accounting@vectorcapital.com

Attention: Wilson Haro

ACCEPTED AND AGREED:

FUSION CONNECT, INC.

By:        

/s/ James P. Prenetta, Jr._________

Name: James P. Prenetta, Jr.

Title: Executive Vice President and General Counsel

Address for Notices:

Fusion Connect, Inc.

420 Lexington Avenue, Suite 1718

New York, New York 10170

Attention: James P. Prenetta, Jr.

Email: jprenetta@fusionconnect.com

ACKNOWLEDGED:

GOLDMAN SACHS LENDING PARTNERS LLC,

as Senior Administrative Agent

By:         

/s/ Thomas Tormey___________________

Name: Thomas Tormey

Title: Managing Director

Address for Notices:

Goldman Sachs Lending Partners LLC

c/o Goldman, Sachs & Co.

30 Hudson Street, 4th Floor

Jersey City, NJ 07302

Facsimile: 212-428-4534

E-mail: gs-pfi-mo-confidential@gs.com

Attention: Operations

ANNEX A

SUBORDINATION PROVISIONS

1.            

Subordination.

(a) 

Until the Payment-in-Full of the Senior Obligations, all payment obligations of the Maker under this Subordinated Note shall in all cases be subject to the Priority of Payments specified in the Senior Credit Agreement.

(b) 

The obligations of the Maker under this Subordinated Note are obligations only of the Maker, payable solely from the assets of the Maker and from realization of the assets and application of the proceeds thereof (which, until the Payment-in-Full of the Senior Obligations, shall be made in accordance with the Priority of Payments). No recourse shall be had for the payment of any amount owing in respect of this Subordinated Note against any officer, member, director, employee, securityholder or incorporator of the Maker or its successors or assigns for any amounts payable under this Subordinated Note. No action may be brought against any officer, member, director, employee, securityholder or incorporator of the Maker. It is understood that the foregoing provisions of this Section 1(b) shall not, subject to the remainder of the Subordination Provisions, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Subordinated Note.

(c) 

Notwithstanding anything to the contrary contained in any Subordinated Note Document, the Maker and the Payee covenant and agree that the Subordinated Obligations are subordinated and subject in right of payment to the Senior Obligations such that holders of the Senior Obligations shall be entitled to be Paid-in-Full before any Subordinated Creditor is entitled to receive any Distribution on account of the Subordinated Obligations and, in that connection, unless and until the principal of, premium, and interest on, and all other amounts in respect of, all Senior Obligations shall have been Paid-in-Full:

(1) 

no Distribution on account of the principal of, premium or interest on, or any other amount in respect of, the Subordinated Obligations shall be made by or on behalf of the Maker; and

(2) 

no Subordinated Creditor shall accept any Distribution or take any Enforcement Action with respect to the Subordinated Obligations,

provided that the Maker shall pay, and each Subordinated Creditor shall be entitled to receive and retain from time to time, principal of and interest on this Subordinated Note on each Payment Date to the extent amounts are available for such payment under and in accordance with the Priority of Payments (except that payments on this Subordinated Note that may be made under clause (11) of the Phase II Priority of Payments may be made solely at the option of the Maker).

2.            

Insolvency.

(a) 

In the event of any Insolvency Proceeding, the Senior Obligations shall first be Paid-in-Full before any Distribution (whether by purchase, acquisition or otherwise), whether in cash, securities or other Property, shall be made to any Subordinated Creditor on account of such Subordinated Obligations;

(b) 

during any Insolvency Proceeding, any Distribution prior to the Payment-in-Full of the Senior Obligations which would otherwise (but for these Subordination Provisions) be payable or deliverable in respect of Subordinated Obligations shall be paid or delivered directly to the Senior Credit Agreement Holders until all Senior Obligations shall have been Paid-in-Full;

Annex A-1

(c) 

each Subordinated Creditor hereby agrees to file or cause to be filed on its behalf an appropriate proof of claim in respect of such Subordinated Creditor and take such action, to the extent commercially reasonable, to cause such proof of claim to be approved in such Insolvency Proceeding;

(d)            

each Subordinated Creditor, at any time prior to the Payment-in-Full of the Senior Obligations:

(1) 

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 the Senior Administrative Agent for the application to the Senior Obligations until all Senior Obligations have been Paid-in-Full, and

(2) 

irrevocably authorizes and empowers the Senior Administrative Agent, in the name of each such Subordinated Creditor, to demand, sue for, collect and receive any and all such Distributions until all Senior Obligations shall have been Paid-in-Full;

(e) 

each Subordinated Creditor hereby agrees not to initiate, prosecute or participate in any claim, action or other proceeding challenging the enforceability, validity, perfection or priority of the Senior Obligations or any liens and security interests securing, or purporting to secure, the Senior Obligations;

(f) 

no Subordinated Creditor will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations made by any holder of the Senior Obligations; and

(g) 

no Subordinated Creditor will object to, or otherwise contest (or support any other Person contesting), (1) any request by the Maker to provide the holders of the Senior Obligations with adequate protection or (2) any objection by the holders of the Senior Obligations to any motion, relief, action or proceeding based on the holders of the Senior Obligations claiming a lack of adequate protection.

3.            

Sale, Transfer or other Disposition of Subordinated Obligations.

Notwithstanding the failure of any transferee of this Subordinated Note, the Subordinated Obligations or any Subordinated Note Document to execute or deliver a Joinder Agreement in accordance with the requirements of this Subordinated Note, the subordination effected hereby shall survive any sale, assignment, pledge, disposition or other transfer of all or any portion of this Subordinated Note or the Subordinated Obligations, these Subordination Provisions shall be binding upon the successors and assigns of each Subordinated Creditor, and any liabilities incurred by any holder of the Senior Obligations arising out of any transferee's failure to execute or deliver a Joinder Agreement in accordance herewith shall be for the account of, and be owing by, the transferor to such holder of Senior Obligations.

4.            

Subrogation.

Upon the Payment-in-Full of all Senior Obligations, the Subordinated Creditors shall be subrogated to all rights of any holder of Senior Obligations to receive any further Distributions applicable to the Senior Obligations, until the Subordinated Obligations shall have been Paid-in-Full, and such Distributions received by the Subordinated Creditors by reason of such subrogation, of cash, securities or other Property which otherwise would be paid or distributed to the holders of Senior Obligations, shall, as between the Maker and its creditors other than the holders of Senior Obligations, on the one hand, and the Subordinated Creditors, on the other hand, be deemed to be a payment by the Maker on account of Senior Obligations and not on account of Subordinated Obligations. All rights of subrogation (whether arising under these Subordination Provisions, by contract, in law, in equity or otherwise) of the holders of the Subordinated Obligations are subordinated and subject in right of payment to the Senior Obligations in the same manner as the Subordinated Obligations is subordinated to the Senior Obligations under these Subordination Provisions.

Annex A-2

5.            

Turnover by the Subordinated Creditor.

If any Distribution in respect of any Subordinated Debt Document shall be received by a Subordinated Creditor in contravention of these Subordination Provisions, then such Subordinated Creditors will promptly deliver such Distribution, to the extent necessary to indefeasibly Pay-in-Full all such Senior Obligations, to the Senior Credit Agreement Holders.

6.            

No Petition.

No Subordinated Creditor shall, prior to the date which is one year and one day (or, if longer, any applicable preference period plus one day) after the Payment-in-Full of the Senior Obligations, commence, or join with any creditor (other than any Person to whom Senior Obligations are owed) in commencing, or directly or indirectly cause the Maker to commence, or assist the Maker in commencing, any Insolvency Proceeding.

7.            

No Waiver.

These Subordination Provisions shall not be affected by (a) any amendment or modification of, or addition or supplement to, the Senior Credit Agreement or any other document or agreement evidencing or securing any Senior Obligations, (b) any exercise or non-exercise of any right, power or remedy under or in respect of the Senior Credit Agreement or any other document or agreement evidencing or securing any Senior Obligations, or (c) any waiver, consent, release, extension, renewal, modification, delay, or other action, inaction or omission in respect of the Senior Credit Agreement or any other document or agreement evidencing or securing any Senior Obligations.

The Subordinated Creditors acknowledge that Senior Credit Agreement or any other document or agreement evidencing or securing any Senior Obligations may be amended, restated, refinanced, supplemented or otherwise modified without the consent of or notice to any Subordinated Creditor, provided that:

(1) 

the Payee shall not be bound by any amendment, supplement or other modification to Section 7 of the Senior Credit Agreement (or any definition of any term used therein) that materially and adversely affects the Payee unless the Payee has provided its prior written consent thereto; and

(2) 

amendments, supplements or other modifications to the Specified Provisions (or the addition of any other provision to the Senior Credit Agreement after the Closing Date) (other than any amendment, supplement or other modification that would be necessary or desirable in the sole discretion of the Senior Creditor for the Maker to comply with and otherwise perform the Maker's obligations under the Senior Credit Agreement or any or any other document or agreement evidencing or securing any Senior Obligations) that would have a material adverse effect on the ability of the Maker to the make payments on this Subordinated Note in accordance with its terms, or otherwise would have a material adverse effect on the rights or remedies of the Payee hereunder, shall require the prior written consent of the Payee (not to be unreasonably withheld or delayed); provided any amendments, supplements or other modifications to the Specified Provisions shall not require the consent of the Payee to the extent the purpose of any such amendments, supplements or modifications would be necessary or desirable for the compliance with or performance of Maker’s obligations under the Underlying Credit Agreement or any other Underlying Instrument.

Annex A-3

8.            

Continuation; Third Party Beneficiary.

These Subordination Provisions constitute a continuing agreement and (a) shall remain in full force and effect until the Senior Credit Agreement has been terminated and all Senior Obligations have been Paid-in-Full, (b) shall be binding upon each Subordinated Creditor and Maker and their respective successors, transferees and assignees, and (c) are intended for the benefit of, and will be enforceable as express third party beneficiaries by, the holders of the Senior Obligations and by the Senior Administrative Agent on their behalf.

9.            

No Impairments; Automatic Restoration.

These Subordination Provisions are solely for the purpose of defining the relative rights of the Senior Credit Agreement Holders on the one hand and the Subordinated Creditors on the other hand, and nothing herein shall impair, as between the Maker and the Subordinated Creditors, the obligation of the Maker, which is unconditional and absolute, to pay to the Subordinated Creditors the principal of and interest owing hereunder in accordance with the terms hereof. These Subordination Provisions shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Maker in respect of the Senior Obligations is rescinded or must be otherwise restored by any holder of the Senior Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

10.            

Amendments.

Prior to the Payment-in-Full of the Senior Obligations, no Subordinated Debt Document shall be amended, restated, supplemented or otherwise modified without the prior written consent of the Senior Administrative Agent.

11.            

Subordination Agreement.

These Subordination Provisions shall be applicable both before and after the commencement of any Insolvency Proceeding and all converted or succeeding cases in respect thereof. Accordingly, these Subordination Provisions are intended to be and shall be enforceable as a subordination agreement within the meaning of Section 510 of the Bankruptcy Code.

12.            

Definitions.

As used in these Subordination Provisions (and as otherwise used in this Subordinated Note), the following terms have the respective meanings set forth below:

"Bankruptcy Code" means Title 11 of the United States Code entitled "Bankruptcy".

"Debtor Relief Laws" means, collectively:

(a)            

the Bankruptcy Code;

(b) 

with respect to any Person organized or domiciled in the Cayman Islands, Part V of the Companies Law (2016 Revision) of the Cayman Islands, the Bankruptcy Law (1997 Revision) of the Cayman Islands, the Foreign Bankruptcy Proceedings (International Cooperation) Rules 2008 of the Cayman Islands and the Companies Winding Up Rules 2008 of the Cayman Islands; and

(c) 

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, any state thereof, the Cayman Islands or any other applicable jurisdictions from time to time in effect.

Annex A-4

"Distribution" means, with respect to any indebtedness or Obligation, (a) any direct or indirect payment or distribution (whether in respect of principal, interest, fees or otherwise) by any Person 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 Person 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 of any Person.

"Enforcement Action" means (a) to take from or for the account of the Maker, by set-off or in any other manner, the whole or any part of any moneys which may now or hereafter be owing by the Maker, (b) to sue for payment of, or to initiate or participate with others in any suit, action or proceeding against the Maker to (1) enforce payment of or to collect the whole or any part of the Subordinated Obligations or (2) commence judicial enforcement of any of the rights and remedies under the Subordinated Debt Documents or applicable law with respect to the Subordinated Obligations, (c) to accelerate the Subordinated Obligations, (d) to exercise any put option or to cause the Maker to honor any redemption or mandatory prepayment obligation under any Subordinated Debt Document or (e) take any action under the provisions of any state or federal law, including, without limitation, the Uniform Commercial Code, or under any contract or agreement, to enforce, foreclose upon, take possession of or sell any property or assets of the Maker.

"Insolvency Proceeding" means:

(a) 

any insolvency, bankruptcy, receivership, liquidation, moratorium, reorganization, readjustment, arrangement, composition or other similar proceeding relating to the Maker or any Property of the Maker;

(b) 

any proceeding for the liquidation, dissolution or other winding-up of the Maker, voluntary or involuntary, regardless of whether involving insolvency or bankruptcy proceedings;

(c)            

any general assignment by the Maker for the benefit of creditors; or

(d)            

any other marshaling of the assets of the Maker,

in each case whether under any Debtor Relief Law, other similar laws or otherwise.

"Obligations" means any principal, interest (including any interest accruing on or subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law and including an default interest), premium, penalties, fees, indemnifications and reimbursements, and guarantees of payment of such principal, interest, penalties, fees, indemnifications and reimbursements, and all other amounts, payable under the documentation governing such Obligations.

"Payment Date" means:

(a) 

until the Payment-in-Full of the Senior Obligations, a "Payment Date" under and as defined in the Senior Credit Agreement; and

(b) 

thereafter, each three month anniversary of the immediately preceding Payment Date (or, if any such anniversary day is not a Business Day, the immediately succeeding Business Day).

"Payment-in-Full" means, with respect to any outstanding Obligations, shall mean the (a) termination or expiration of all commitments of the holders of such Obligations to extend credit or make loans or other credit accommodations to the Maker under the documents governing such Obligations, (b) the payment in full, in cash in immediately available funds, of all of such Obligations and (c) the termination or expiration of all of the documents governing such Obligations. "Paid-in-Full" and "Pay-in-Full" shall have corresponding meanings.

"Property" means, with respect to any Person, any interests of such Person in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

"Senior Administrative Agent" means the "Administrative Agent" as such term is defined in the Senior Credit Agreement.

"Senior Credit Agreement" means the Credit Agreement dated as of May 4, 2018 by and among the Maker, as Borrower; Goldman Sachs Lending Partners LLC ("GS"), as Lender; GS, as Administrative Agent, and U.S. Bank National Association, as Collateral Agent and Collateral Custodian, including any amendment, extension, renewal, increase, modification or restatement thereof or supplement thereto, or any agreement refinancing any of the indebtedness thereunder, in each case as the same shall from time to time be successively amended, extended, renewed, increased, modified, restated, supplemented or refinanced.

"Senior Credit Agreement Holders" means the Senior Lenders, the Senior Administrative Agent and the other "Agents" as defined in the Senior Credit Agreement.

"Senior Default" means a "Default" or "Event of Default" under and as defined in the Senior Credit Agreement.

"Senior Lenders" means the "Lenders" under and as defined in the Senior Credit Agreement.

"Senior Obligations" means the "Obligations" as such term is defined in the Senior Credit Agreement.

"Specified Provisions" means the following provisions of the Senior Credit Agreement: Sections 2.9, 5.3, 5.7, 5.8, 5.9, 5.10, 5.11 and 9 (and any definition of any term used in such Sections).

"Subordinated Creditor" means the Payee and any other permitted holder of the Subordinated Obligations.

"Subordinated Debt Documents" means this Subordinated Note and all other agreements, documents and instruments evidencing the Subordinated Obligations, as the same may be amended, restated, refinanced, supplemented or otherwise modified from time to time as permitted hereunder.

"Subordinated Note Interest Payment Amount" means, with respect to any Payment Date:

(a) 

until the Payment-in-Full of the Senior Obligations, the "Subordinated Note Interest Payment Amount" for such Payment Date under and as defined in the Senior Credit Agreement; and

(b) 

thereafter, the aggregate amount of interest earnings on amounts on deposit in the "Primary Reserve Account" under and as defined in the Credit Agreement during the period from the immediately preceding Payment Date to but excluding such Payment Date.

"Subordinated Obligations" means and includes all Obligations of the Maker now or hereafter existing, whether fixed or contingent, in respect of principal, interest (including interest accruing after the filing of a petition under any Debtor Relief Law, to the extent allowed), fees, indemnification or any other amount in respect of the Subordinated Debt Documents.

Annex A-5

EX-10.20

VECTOR CAPITAL

One Market Street

Steuart Tower, 23rd Floor

San Francisco, California 94105

May 4, 2018

CONFIDENTIAL

Fusion Connect, Inc.

420 Lexington Avenue, Suite 1718

New York, New York 10170

Attention: James P. Prenetta, Jr., EVP and General Counsel

James P. Prenetta, Jr.:

Reference is made to that certain First Lien Credit and Guaranty Agreement dated as of May 4, 2018, among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain subsidiaries of the Borrower, as Guarantor Subsidiaries, Vector Capital V, L.P., Vector Entrepreneur Fund V, L.P.,VC4 Debt Investments (U.S.), L.L.C., Vector Fusion Holdings (Cayman), Ltd. and Vector Trading (Cayman), L.P. (each, a “Vector Capital Lender” and, collectively, “Vector Capital”), as Lenders, the other Lenders party thereto and Goldman Sachs Bank USA, as Administrative Agent and Collateral Agent (such agreement, as may be amended, modified, restated, supplemented and extended from time to time, the “Credit Agreement”).

This letter (the “Side Letter”) expressly sets out the agreement between the Borrower and Vector Capital with respect to Vector Capital’s observation rights on the Board of Directors (as defined below), as further described in Section 1 herein. Capitalized terms used herein without definition are used as defined in the Credit Agreement.

1.           Board Observation Rights.  Until the earlier of (a) such date on which neither Vector Capital nor any of its affiliates under common control holds any Loans under the Credit Agreement, and (b) the Subordinated Note Mandatory Prepayment Date (as defined in the Credit Agreement, dated as of May 4, 2018, by and among Vector Fusion Holdings (Cayman), Ltd., Goldman Sachs Lending Partners LLC, Goldman Sachs, and the other lenders parties thereto), Vector Capital (or its affiliate, including limited partners of Vector, holding a Loan) shall have the right to appoint one observer (the “Observer”) to the board of directors of the Borrower (the “Board of Directors”), who shall be entitled to attend (or at the option of such Observer, monitor by telephone) one (1) regularly scheduled meeting per fiscal quarter (the “Quarterly Meetings”) of the Board of Directors (other than any portions of any Quarterly Meeting that (x) involve the exchange of privileged attorney-client information or work product, or (y) are subject to a conflict of interest with a Vector Capital Lender or other Lenders, in the reasonable discretion of Borrower) but shall not be entitled to vote, and who shall receive all reports, meeting materials (including copies of all board presentations), notices, written consents, minutes and other materials with respect to such Quarterly Meetings (in each case other than any portions of such reports or materials that contain information (i) that is subject to a conflict of interest with a Vector Capital Lender or other Lenders or (ii) that is subject to the attorney-client privilege, in the reasonable discretion of Borrower) as and when provided to the members of the Board of Directors. The Borrower shall reimburse the Observer for the reasonable and documented out-of-pocket travel expenses incurred by any such Observer in connection with such attendance at any in-person Quarterly Meetings, to the extent consistent with the Borrower’s policies of reimbursing directors generally for such expenses. The Board of Directors shall use reasonable commercial efforts to hold at least one regularly scheduled meeting each fiscal quarter, but to the extent that the Board of Directors does not convene (telephonically, in-person or otherwise) during a fiscal quarter, the Observer shall not have any observation rights during such quarter. The Observer shall not have any observer, information, notice or other rights with respect to the meetings of any committees or sub-committees of the Board of Directors, any special meetings of the Board of Directors, or any meetings of the Board of Directors other than the Quarterly Meetings; provided, that if the matters that would normally be discussed by the Board of Directors at the Quarterly Meeting (i.e., the periodic financial health and performance of Borrower) are instead discussed by the Board of Directors at a special meeting, or by a committee or sub-committee of the Board of Directors, then the Observer shall have observer and information rights for such special meeting or committee or sub-committee meeting, as applicable. The rights set forth in this paragraph 1 are the “Observer Rights.”

2.           Insider Trading Laws. At all times while the Observer Rights are in effect, Vector Capital and its affiliates shall abide by all applicable insider trading securities law and any related regulations.

3.           Confidential Information. At all times while the Observer Rights are in effect, and for two (2) years thereafter, Vector Capital shall not use or disclose any Confidential Information of Borrower obtained by the Observer in such capacity on the Board of Directors, except to any directors, officers, employees, attorneys, agents, or accountants of Vector Capital (collectively, “Representatives”) in connection with its capacity as a Lender. Vector Capital shall inform any Representative who receives Confidential Information of its obligations hereunder. For purposes of this Side Letter, “Confidential Information” includes any legal, commercial, financial, business, technical, marketing or other information related to the Borrower. “Confidential Information” will also be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by recipient thereof which contain, reflect or are based upon, in whole or in part, Confidential Information. Notwithstanding the foregoing, “Confidential Information” does not include information which (a) is generally available, or becomes generally available, to the public other than as a result of disclosure by Vector Capital or a Representatives (including information contained in the Borrower’s public filings with the Securities and Exchange Commission), or (b) becomes available to Vector Capital on a non-confidential basis from a source other than the Borrower or its representatives; provided that the source of such information is not bound by a confidentiality agreement with respect to such information or other obligation to keep such information confidential.

4.           General. This Side Letter may be executed in any number of counterparts which, when taken together, shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Side Letter by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Side Letter. Section headings used herein are for convenience of reference only, are not part of this Side Letter and are not to affect the construction of, or to be taken into consideration when interpreting, this Side Letter. This Side Letter embodies the entire agreement and understanding between Vector Capital, the other Lenders and you with respect to the specific matters set forth herein and supersedes all prior agreements and understandings relating to the subject matter hereof. No party has been authorized by any Vector Capital Lender or any other Lender to make any oral or written statements inconsistent with this Side Letter. This Side Letter is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto. This Side Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by Vector Capital and you. This Side Letter may not be assigned by you without the prior written consent of Vector Capital and the other Lenders, and any attempted assignment without such consent shall be null and void.

It is understood and agreed that this Side Letter shall not constitute or give rise to any obligation on the part of any Lender (in each case, in any capacity) to provide or arrange any financing; such an obligation will arise only under the Credit Agreement, to the extent the Lenders are bound thereunder if accepted in accordance with its terms.

[Signature page follows]

Very truly yours,

VECTOR CAPITAL V, L.P.

VECTOR ENTREPRENEUR FUND V, L.P.

VC4 DEBT INVESTMENTS (U.S.), L.L.C.

VECTOR TRADING (CAYMAN), L.P.

VECTOR FUSION HOLDINGS (CAYMAN), LTD.

By: /s/ James Murray______________________

Name:  James Murray

Title:    Director

[Signature Page to Side Letter]

Accepted and Agreed to in all respects:

FUSION CONNECT, INC., as Borrower
By:	/s/ James P. Prenetta, Jr.
	Name: James P. Prenetta, Jr.
	Title: EVP and General Counsel

[Signature Page to Side Letter]

EX-10.21

COMMON STOCK PURCHASE AGREEMENT

This Common Stock Purchase Agreement(this “Agreement”) is made as of May 4, 2018, by and among FUSION CONNECT, INC., f/k/a 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 ___________________ (the “Purchaser”).

Recitals

A.           The Company has authorized the sale and issuance of _________ shares (the “Shares” or “Securities”) of the common stock of the Company, $0.01 par value per share (the “Common Stock”), to the Purchaser 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 Purchaser, and the Purchaser desires to purchase from the Company the Shares 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 the Purchaser, and the Purchaser will purchase from the Company, the Shares for an aggregate purchase price of $___________ (the “Purchase Price”) or $5.25 for each Share.

1.2           Closing; Closing Date. The completion of the sale and purchase of the Shares (the “Closing”) shall be held simultaneously with the execution of this Agreement, or at such other time as the Company and the Purchaser may agree (the “Closing Date”).

1.3           Delivery of the Shares. At the Closing, subject to the terms and conditions hereof, the Company will deliver to the Purchaser a stock certificate or certificates, in such denominations and registered in such name(s) as the Purchaser may designate by notice to the Company, representing the Securities, or at the Purchaser’s request, a statement or other written evidence that the Securities issuable to the 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 in cash in the form of a wire transfer, unless other means of payment shall have been agreed upon by the Purchaser and the Company.

2.            

Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, after giving effect (unless otherwise specified below) to the consummation of the merger between Fusion BCHI Acquisition LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Company, withBirch Communications Holdings, Inc. and the transactions related thereto being consummated substantially simultaneously with this Offering (the “Merger”):

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 Purchaser, 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, as 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 Purchaser 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 to so 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 during the 12 months preceding the date hereof; 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, 2017: (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) 150,000,000 shares of Common Stock, of which (A) 76,583,701 shares were issued and outstanding as of the date of this Agreement, and (B) 8,526,403 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, in each case, taking into account the reverse split of the Common Stock that was effected on the date hereof and acknowledging rounding adjustments for fractional split amounts; and (ii) 10,000,000 shares of preferred stock, of which 15,000 will be 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, in Schedule 2.6 or in the Company SEC Documents or as contemplated by the Agreement and Plan of Merger (the “Merger Agreement”) relating to the Merger that is being consummated contemporaneously with this Offering, 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 1,996,754 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 1,193,070 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 (i) the Merger Agreement, (ii) the Company’s announced agreement to acquire, through a merger, a specified target company (the “Acquisition Agreement”), and (iii) the Company’s Series D preferred stock, 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 (i) in connection with this Agreement, the Merger Agreement and the Acquisition Agreement). 

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2.7           Subsidiaries. Except as contemplated by the Merger Agreement 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, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect. All of the outstanding capital stock or other securities of each subsidiary of the Company is owned, either directly or indirectly by the Company). Except for the liens granted under the terms of the First Lien Credit Facility (as defined below) and the Second Lien Credit Facility (as defined below), the capital stock or other securities of each US subsidiary of the Company is free and clear 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 Purchaser in Section 3.3 of this Agreement on the date hereof, 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 Purchaser. Other than the Company SEC Documents, the Company has not distributed 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 or as set forth in Schedule 2.10, there is no litigation matter 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. Except as set forth in Schedule 2.10, 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.

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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. 

2.12           No Brokers. 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, it being expressly acknowledged that any fees payable in connection with the consummation of the Merger substantially simultaneously with this Offering are not fees to any broker, finder, underwriter or placement agent for services in connection with this Offering.

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 completion of the Merger and the entry by the Company into a $595 million first lien credit facilities (the “First Lien Credit Facility”) and the $85 million second lien credit facility (the “Second Lien Credit Facility”) and the various transactions contemplated by each of these credit facilities, since December 31, 2017, 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, 2017, the Company has not declared or paid any dividend or distribution on its common stock.

2.15           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.

(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.

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(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. Except as set forth in Schedule 2.15(c), 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.

(d)           Except as set forth in Schedule 2.15(c), 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.

2.16           Exchange Compliance. The Company’s common stock is registered pursuant to Section 12(b) of the Exchange Act, was immediately prior to the date hereof listed on The Nasdaq Capital Market and as of the date hereof is listed on The Nasdaq Global 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.

2.17           Form S-3 Eligibility. The Company is eligible to register the Shares for resale by the Purchaser using Form S-3 promulgated under the Securities Act.

2.18           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, 2017, 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.

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2.19           Taxes. The Company and each of its subsidiaries has filed all federal, state, local and foreign income and franchise tax returns and has paid all taxes shown as due thereon (except where the failure to file would not have a Material Adverse Effect). The Company has set aside on its books adequate provisions for payments of taxes as of its reporting period.

2.20           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.

2.21           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.

2.22           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.

2.23           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 in the SEC Documents and those transactions that are in connection with, or contemplated by, the Merger, the First Lien Credit Facility, the Second Lien Credit Facility and the Company’s sale of Series D preferred stock in connection with the Merger.

2.24           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.

2.25           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. 

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(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. 

(c)           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.

2.26           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.

2.27           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.

2.28           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.

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2.29           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. Other than as disclosed in the Company’s Form 14F-1 filed with the SEC, 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. 

2.30           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 under this Section 2.30) and information provided with respect to the Merger, the Acquisition Agreement, the First Lien Credit Facility, the Second Lien Credit Facility and the Company’s sale of Series D preferred stock in connection with the Merger, neither it nor any other person acting on its behalf has provided the Purchaser or its agents or counsel with any information that constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company. All disclosures provided to the Purchaser regarding the Company, its business and the transactions noted in this Section 2.30 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.

2.31           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 December 31, 2017, has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

2.32           No Additional Agreements. Except for the issuance of common stock pursuant to the Merger Agreement and the Acquisition Agreement and the issuance of preferred stock listed on Schedule 2.6, the Company has no other agreements or understandings (including, without limitation, side letters) with any other person to purchase shares of its Common Stock on terms more favorable to such person than as set forth herein.

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2.33           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.

3.            

Representations and Warranties of the Purchaser. ThePurchaser hereby represents and warrants to the Company as follows:

3.1           Legal Power. The Purchaser has the requisite power and 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 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.

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(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 Purchaser 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 substantially the following legend until the date the Shares are eligible for sale without restriction or limitation under Rule 144 under the Securities Act or any successor rule (“Rule 144”):

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. 

(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 the 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.

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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 the Shares, the 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 the 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 the 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 Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system unless the 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).

The Purchaser 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. The 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. The Purchaser is organized under the laws of the jurisdiction set forth beneath the Purchaser’s name on the signature page attached hereto, and its principal place of operations is in the state set forth beneath the 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.

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3.4           No Investment, Tax or Legal Advice. The 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. The 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. The 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. The Purchaser acknowledges that it has not taken any actions that would deem the Purchaser to be a members of a “group” for purposes of Section 13(d) of the Exchange Act.

3.6           Limited Ownership. The purchase of the Securities by the Purchaser at the Closing will not result in the Purchaser (individually or together with any other person or entity with whom the 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. The 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.

3.7           No Short Position. Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any person or entity acting on behalf of or pursuant to any understanding with the 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 the 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 event that the Purchaser is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of the 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. The 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 Agreement, the First Lien Credit Facility, the Second Lien Credit Facility and the Company’s sale of Series D preferred stock in connection with the Merger,). 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.

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4.            

Conditions to Closing.

4.1           Conditions to Obligations of Purchaser at Closing. The 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 if the Closing date is subsequent to the date hereof, a certificate duly executed by an officer of the Company, to the effect of the foregoing, shall be delivered to the Purchaser. 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 the Purchaser, the Certificate(s) required by this Agreement.

(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 Agreement. The Company shall have executed this Agreement and have delivered this Agreement to the Purchaser.

(e)           Secretary’s Certificate. The Company shall have delivered to the Purchaser 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.

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(f)           Payment of Structuring Fee. The $________ structuring fee contemplated by Section 7.6 shall have been paid.

(g)           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.

(h)           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).

(i)           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.

(j)           Material Adverse Change. Since the date of this Agreement, there shall not have occurred any event which results in a Material Adverse Effect.

(k)           Merger. The Merger and the transactions related thereto shall be consummated in accordance with the Merger Agreement, including the financings contemplated by the First Lien Credit Facility and the Second Lien Credit Facility, contemporaneously with the Offering.

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 Purchaser 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 Purchaser 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 Purchaser shall have delivered the Purchase Price, by wire transfer, to the account designated by the Company for such purpose.

(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 Agreement. The Purchaser shall have executed this Agreement and delivered this Agreement to the Company.

(e)           Merger. The Merger and the transactions related thereto shall be consummated in accordance with the Merger Agreement, including the financings contemplated by the First Lien Credit Facility and the Second Lien Credit Facility, contemporaneously with the Offering.

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4.3           Termination of Obligations to Effect Closing; Effect.

(a)           Termination. The obligations of the Company, on the one hand, and the Purchaser, on the other hand, to effect the Closing shall terminate as follows:

(i)           Upon the mutual written consent of the Company and the Purchaser;

(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 the Purchaser 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 the Purchaser if the Closing has not occurred on or prior to May 15, 2018, 2018; 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. 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.

5.            

Additional Covenants.

5.1           Reporting Status. With a view to making available to the Purchaser 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 the Purchaser may reasonably request, all to the extent required from time to time, to enable the Purchaser to sell the Shares without registration under the Securities Act or any successor rule or regulation adopted by the SEC.

5.2           Listing. So long as the 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.

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5.4           Non-Public Information. The Company covenants and agrees that neither it nor any other person acting on its behalf will provide the Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto the Purchaser shall have executed a written agreement regarding the confidentiality and use of such information. The Company understands and confirms that the 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           Lock-Up. The Purchaser will not, without the prior written consent of the Company, from the date of execution of this Agreement and continuing to and including the date 180 days after the Closing Date (the “Lock-Up Period”): (1) 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, make any short sale or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, exercisable or exchangeable for or that represent the right to receive Common Stock (including without limitation, Common Stock which may be deemed to be beneficially owned by the Purchaser in accordance with the rules and regulations of the SEC and securities which may be issued upon exercise of a stock option or warrant) (the “Purchaser’s Securities”); (2) enter into any swap, hedge or other transaction or transfer which could reasonably be expected to lead to or result in a transfer, sale or disposition of the Purchaser’s Securities, or any of the economic consequences of ownership thereof, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to, the registration of any Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, provided, that nothing in this Section 5.5 is intended to limit any claim regarding the breach or enforcement of the provisions of Section 6; or (4) publicly disclose the intention to do any of the foregoing.

Notwithstanding the foregoing, the Purchaser may transfer the Purchaser’s Securities (i) as a bona fide gift or gifts, or (ii) if the Purchaser is a corporation, partnership, limited liability company, trust or other business entity (1) to another corporation, partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act) of the Purchaser or (2) as distributions of shares of Common Stock or any security convertible into or exercisable for Common Stock to limited partners, limited liability company members or stockholders of the Purchaser; provided, that (x) such transfer shall not involve a disposition for value, (y) the transferee agrees in writing with the Representative to be bound by the terms of this Section 5.5 and (z) no filing by any party under Section 16(a) of the Exchange Act, shall be required or shall be made voluntarily in connection with such transfer.

In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of shares of Common Stock if such transfer would constitute a violation or breach of this Section 5.5.

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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, 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 120 days following the date hereof (or 150 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 Purchaser. 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 date of the initial filing of the S-3 Registration Statement (the “Initial Filing Date”), the Company shall prepare and file with the SEC, as promptly as reasonably practicable 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 Purchaser. 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.

(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 the 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 without reporting obligations or volume limitation or other restrictions on transfer or any other restriction under Rule 144 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 the Purchaser promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC and advise the 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;

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(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; and

(iv)           advise the Purchaser, 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.

(c)           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, for as long as Purchaser owns any Shares (or 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), 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 without any restriction under Rule 144 or such other rule or (B) such date as all of the Registrable Securities shall have been resold pursuant to a registration statement or 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 the Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Purchaser is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.

(d)           The Company shall pay the expenses incurred by the Company and the Purchaser 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 the Purchaser and any and all underwriting discounts and selling commissions applicable to the sale of Registrable Securities by the Purchaser).

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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 Purchaser copies, or access to copies, of any documents filed pursuant to Section 6.2(a)(i); and (iii) upon request, inform the Purchaser 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 Purchaser (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Purchaser is 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 Purchaser. 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 Purchaser 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).

(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”).

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(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 the Purchaser’s Shares, the 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 the 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 the 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 the Purchaser in connection with a sale of the Purchaser’s Registrable Securities by the Purchaser pursuant to the Registration Statement. 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 Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system unless the Purchaser provides alternate written instructions.

6.3           Indemnification. For the purpose of this Section 6.3:

(a)           the term “Selling Shareholder” shall mean the Purchaser, its general partners, managing members, managers, executive officers and directors and each person, if any, who controls the 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

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(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.

(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)           The Purchaser 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 the Purchaser specifically for use in preparation of the Registration Statement, and the 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.

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(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.

(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 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 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 Purchaser agree that it would not be just and equitable if contribution pursuant to this subsection (g) were determined by pro rata allocation 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), the Purchaser shall be required to contribute any amount in excess of the amount by which the net amount received by the Purchaser from the sale of the Registrable Securities to which such loss relates exceeds the amount of any damages which the 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.

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(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 Purchaser 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.

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 the Purchaser.

6.5           Information Available. So long as the Registration Statement is effective covering the resale of Registrable Securities owned by the 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 the 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) 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 Purchaser, will meet with the 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 Purchaser conducting an investigation for the purpose of reducing or eliminating the Purchaser’s 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 the Purchaser until and unless the Purchaser shall have entered into a confidentiality agreement in form and substance reasonably satisfactory to the Company with the Company with respect thereto.

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6.6           Protection of Exemptions. 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 Merger Agreement or the Acquisition Agreement, the Company’s sale of Series D preferred stock in connection with the Merger, the Company’s public offering of Common Stock consummated on February 5, 2018 and the offering contemplated hereby, the Company has not engaged in any offering of equity securities during the six (6) months prior to the date of this Agreement. The foregoing provisions of this Section 6.6 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.

6.7           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.

6.8           Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Section 6 may be assigned by the 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 the Purchaser as contemplated by this Agreement, or to any affiliate of the Purchaser that acquires any Registrable Securities. Any such permitted assignee shall have all the rights of the Purchaser under this Section 6 with respect to the Registrable Securities transferred during the Effectiveness Period.

6.9           Selling Shareholder Questionnaire. The Purchaser agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Exhibit A (a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of the Purchaser in a Registration Statement and shall not be required to pay any liquidated or other damages hereunder to the Purchaser if the Purchaser 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.

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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 Purchaser.

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.

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 the Purchaser. Any amendment or waiver effected in accordance with this Section 7.5 shall be binding upon each future holder of any of the Securities purchased under this Agreement and the Company.

7.6           Fees and Expenses. Except as otherwise set forth herein, the Company and the Purchaser 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 party 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. The Company shall pay to the Purchaser a structuring fee of $__________ at Closing, payable in cash to Purchaser or its designee or, at Purchaser’s option, payable by offsetting such amount from the Purchase Price. The parties acknowledge that no fees or expenses, other than the structuring fee, shall be payable by the Company to the Purchaser.

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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 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 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: James P. Prenetta, Jr., EVP and General Counsel, e-mail: jprenetta@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, all covenants, agreements, representations and warranties made by the Company and the Purchaser herein shall survive the execution of this Agreement, the delivery to the Purchaser 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.

[The Remainder of this Page is Blank; Signature Pages Follow]

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In witness whereof, the foregoing Common Stock Purchase Agreement is hereby executed as of the date first above written. 

FUSION CONNECT, INC.
By:
Name:	James P. Prenetta, Jr.
Title:	Executive Vice President and General Counsel

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:

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:

EXHIBIT A

SELLING SHAREHOLDER QUESTIONNAIRE

FUSION CONNECT, INC.

Questionnaire for Selling Shareholder

This questionnaire is necessary to obtain information to be used by Fusion Connect, Inc. (the “Company”) to complete a Registration Statement (the “Registration Statement”) covering the resale of certain shares of Company Common Stock currently outstanding. 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:

2. 

Please state the total number of currently outstanding shares of Company Common Stock that you beneficially own1 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.

1 See Appendix A for definitions

Number of SharesCovered by Option orWarrant 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.

5. 

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.

6. 

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.

7. 

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.

8. 

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*.

9. 

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*.

10. 

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.

By:

Name:

Its:

APPENDIX A

To Exhibit A

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.

Purchasers pursuant to Common Stock Purchase Agreement, dated May 4, 2018:

Purchaser	Number of Shares	Purchase Price
North Haven Credit Partners II L.P.	952,382	$5,000,005.50
Aetna Life Insurance Company	380,953	$2,000,003.25
Backcast Credit Opportunities Fund I, L.P.	190,477	$1,000,004.25

EX-10.22

PREFERRED STOCK PURCHASE AGREEMENT

This Preferred Stock Purchase Agreement(this “Agreement”) is made as of May 4, 2018, by and among FUSION CONNECT, INC., f/k/a Fusion Telecommunications International, Inc., a Delaware corporation with its principal office at 420 Lexington Avenue, Suite 1718, New York, New York 10170 (the “Company”), andHolcombe T. Green, Jr.(the “Purchaser”).

Recitals

A.           The Company has authorized the sale and issuance of 15,000 shares (the “Shares” or “Securities”) of Series D Cumulative Preferred Stock of the Company, $0.01 par value per share (the “Preferred Stock”), to the Purchaser in a private placement (the “Offering”).

B.           The Company has created or will create the Preferred Stock by filing a Certificate of Designations and Preferences relating to the Preferred Stock (the “Certificate of Designations”) with the Secretary of State of the State of Delaware (the “Secretary of State”) in substantially the form annexed hereto as Exhibit A, contemporaneously with this execution and delivery of this Agreement.

C.           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 Purchaser, and the Purchaser desires to purchase from the Company, the Shares 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.

1.1Agreement to Sell and Purchase. At the Closing (as hereinafter defined), the Company will issue and sell to the Purchaser, and the Purchaser will purchase from the Company, the Shares for an aggregate purchase price of $14,700,000 (the “Purchase Price”) or $980.00 for each Share.

1.2Closing; Closing Date. The completion of the sale and purchase of the Shares (the “Closing”) shall be held simultaneously with the execution of this Agreement, or at such other time as the Company and the Purchaser may agree (the “Closing Date”).

1.3Delivery of the Shares. At the Closing, subject to the terms and conditions hereof, the Company will deliver to the Purchaser a stock certificate or certificates, in such denominations and registered in such name(s) as the Purchaser may designate by notice to the Company, representing the Securities, or at the Purchaser’s request, a statement or other written evidence that the Securities issuable to the Purchaser have been issued and are held in book entry form, 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 in cash in the form of a wire transfer, unless other means of payment shall have been agreed upon by the Purchaser and the Company.

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2.Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, after giving effect (unless otherwise specified below) to the consummation of the merger between Fusion BCHI Acquisition LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Company, withBirch Communications Holdings, Inc. (“Birch”) and the transactions related thereto being consummated substantially simultaneously with this Offering (the “Merger”), and, as applicable, based in part on information relating to Birch and its direct and indirect subsidiaries as provided by Birch to the Company in connection with the Merger Agreement (as defined below) and subsequent thereto, and without making any representations or warranties as to any subsidiaries acquired as part of the Merger:

2.1Authorization. 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 Purchaser, 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.

2.2No 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 (in each case, as amended to include the Certificate of Designations); (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, as 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 the Certificate of Designations or a Form D or any filings required to be made under state securities laws.

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2.3Certificate of Incorporation; Bylaws. The Company has made available to the Purchaser true, correct and complete copies of the Certificate of Incorporation and Bylaws of the Company, as in effect on the date hereof.

2.4Organization, 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 to so 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”).

2.5SEC 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 during the 12 months preceding the date hereof; 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, 2017: (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.

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2.6Capitalization. The authorized capital stock of the Company, consists of (i) 150,000,000 shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”), of which (A) 76,583,701 shares were issued and outstanding as of the date of this Agreement, and (B) 8,526,403 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, in each case, taking into account the reverse split of the Common Stock that was effected on the date hereof and acknowledging rounding adjustments for fractional split amounts; and (ii) 10,000,000 shares of preferred stock, of which 15,000 will be issued and outstanding as of the date of this Agreement (taking into effect this Offering). 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, in the Certificate of Designations or in the Company SEC Documents or contemplated by the Agreement and Plan of Merger (the “Merger Agreement”) relating to the Merger that is being consummated contemporaneously with this Offering, 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 1,996,754 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 1,193,070 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 (i) the Merger Agreement, (ii) the Company’s announced agreement to acquire, through a merger, a specified target company (the “Acquisition Agreement”), and (iii) the Company’s common stock purchase agreement pursuant to which the Company will sell $5,000,000 of Common Stock contemporaneously with the closing of the Merger (the “Common Stock Purchase Agreement”), 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, the Merger Agreement, the Acquisition Agreement and the Common Stock Purchase Agreement). 

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2.7Subsidiaries. Except as contemplated by the Merger Agreement 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, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect. All of the outstanding capital stock or other securities of each subsidiary of the Company is owned, either directly or indirectly by the Company). Except for the liens granted under the terms of the First Lien Credit Facility (as defined below) and the Second Lien Credit Facility (as defined below), the capital stock or other securities of each US subsidiary of the Company is free and clear of any liens, claims or encumbrances.

2.8Valid 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 or in the Certificate of Designations. 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.

2.9Offering. Assuming the accuracy of the representations of the Purchaser in Section 3.3 of this Agreement on the date hereof, 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 Purchaser. Other than the Company SEC Documents, the Company has not distributed 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.

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2.10Litigation. Except as set forth in the Company SEC Documents or as set forth in Schedule 2.10, there is no litigation matter 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. Except as set forth in Schedule 2.10, 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.

2.11Governmental 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 the filing of the Certificate of Designations and 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. 

2.12No Brokers. 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, it being expressly acknowledged that any fees payable in connection with the consummation of the Merger substantially simultaneously with this Offering are not fees to any broker, finder, underwriter or placement agent for services in connection with this Offering.

2.13Compliance. 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.

2.14No Material Changes. Except as disclosed in the Company SEC Documents and except for the completion of the Merger and the entry by the Company into a $595 million first lien credit facilities (the “First Lien Credit Facility”) and the $85 million second lien credit facility (the “Second Lien Credit Facility”) and the various transactions contemplated by each of these credit facilities, since December 31, 2017, 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.

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2.15Intellectual 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.

(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. Except as set forth in Schedule 2.15(c), 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.

(d)Except as set forth in Schedule 2.15(c), 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.

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2.16Accountants. 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, 2017, 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.

2.17Taxes. The Company and each of its subsidiaries has filed all federal, state, local and foreign income and franchise tax returns and has paid all taxes shown as due thereon (except where the failure to file would not have a Material Adverse Effect). The Company has set aside on its books adequate provisions for payments of taxes as of its reporting period.

2.18Insurance. 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.

2.19Transfer 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.

2.20Investment 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.

2.21Related 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 in the SEC Documents and those transactions that are in connection with, or contemplated by, the Merger, the First Lien Credit Facility and the Second Lien Credit Facility (including the sale of Shares hereunder).

2.22Books 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.

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2.23Disclosure 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. 

(c)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.

2.24No 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.

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2.25Foreign 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.

2.26Sarbanes-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.

2.27Employee 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. Other than as disclosed in the Company’s Form 14F-1 filed with the SEC, 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. 

2.28Disclosure of Information. 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 under this Section 2.28) and information provided with respect to the Merger, the Acquisition Agreement, the Common Stock Purchase Agreement, the First Lien Credit Facility and the Second Lien Credit Facility, neither it nor any other person acting on its behalf has provided the Purchaser or its agents or counsel with any information that constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company. All disclosures provided to the Purchaser regarding the Company, its business and the transactions noted in this Section 2.28 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.

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2.29Forward-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 December 31, 2017, has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

2.30No “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.

3.Representations and Warranties of the Purchaser. ThePurchaser hereby represents and warrants to the Company as follows:

3.1Legal Power. The Purchaser has the requisite power and 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.

3.2Due 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.

3.3Investment Representations. In connection with the sale and issuance of the Securities, the Purchaser makes the following representations:

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(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 Purchaser 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 substantially the following legend until the date the Shares are eligible for sale without restriction or limitation under Rule 144 under the Securities Act or any successor rule (“Rule 144”):

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. 

(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.

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The Company acknowledges and agrees that the 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.

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 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 the Shares, the 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 the 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 any 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 the 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.

The Purchaser 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. The 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.

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(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. The Purchaser is organized under the laws of the jurisdiction set forth beneath the Purchaser’s name on the signature page attached hereto, and its principal place of operations is in the state set forth beneath the 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.

3.4No Investment, Tax or Legal Advice. The 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. The 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.

3.5Additional Acknowledgement. The 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

4.Conditions to Closing.

4.1Conditions to Obligations of Purchaser at Closing. The 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 if the Closing date is subsequent to the date hereof, a certificate duly executed by an officer of the Company, to the effect of the foregoing, shall be delivered to the Purchaser. The delivery of such certificate shall evidence the satisfaction of the conditions set forth in this Section 4.1.

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(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 the Purchaser, the Certificate(s) required by this Agreement.

(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 Agreement. The Company shall have executed this Agreement and have delivered this Agreement to the Purchaser.

(e)Certificate of Designations. The Certificate of Designations shall have been filed with the Secretary of State.

(f)Payment of Closing Fee. The Company shall have delivered to the Purchaser a closing fee of $200,000, payable by offsetting such amount from the Purchase Price.

(g)Market Listing. The Company will comply with all of the requirements of the Financial Industry Regulatory Authority, Inc. and the Nasdaq Stock Market with respect to the issuance of the Securities.

(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)Merger. The Merger and the transactions related thereto shall be consummated in accordance with the Merger Agreement, including the financings contemplated by the First Lien Credit Facility and the Second Lien Credit Facility, contemporaneously with the Offering.

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4.2Conditions 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 Purchaser 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 Purchaser 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 Purchaser shall have delivered the Purchase Price, by wire transfer, to the account designated by the Company for such purpose.

(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 Agreement. The Purchaser shall have executed this Agreement and delivered this Agreement to the Company.

(e)Merger. The Merger and the transactions related thereto shall be consummated in accordance with the Merger Agreement, including the financings contemplated by the First Lien Credit Facility and the Second Lien Credit Facility, contemporaneously with the Offering.

4.3Termination of Obligations to Effect Closing; Effect.

(a)Termination. The obligations of the Company, on the one hand, and the Purchaser, on the other hand, to effect the Closing shall terminate as follows:

(i)Upon the mutual written consent of the Company and the Purchaser;

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(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 the Purchaser 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 the Purchaser if the Closing has not occurred on or prior to May 15, 2018; 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. 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.

5.Additional Covenants.

5.1Reporting Status. With a view to making available to the Purchaser 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 the Purchaser may reasonably request, all to the extent required from time to time, to enable the Purchaser to sell the Shares without registration under the Securities Act or any successor rule or regulation adopted by the SEC.

5.2Protection of Exemptions. 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 Merger Agreement or the Acquisition Agreement, the Common Stock Purchase Agreement, the Company’s public offering of Common Stock consummated on February 5, 2018 and the offering contemplated hereby, the Company has not engaged in any offering of equity securities during the six (6) months prior to the date of this Agreement. The foregoing provisions of this Section 5.2 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.

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5.3Form 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.

5.4Resale Registration. The Company will file with the SEC the resale registration statement (the “Resale Registration Statement”) required in connection with the registration rights agreement being entered into between the Company and Birch pursuant to the Merger Agreement no later than five (5) business days after the Closing; provided, that such timing shall be subject to the Company’s receipt of documents and information required for filing the Resale Registration Statement that are out of the Company’s reasonable control on a timely basis prior to such deadline, including, but not limited to, descriptive and other information about Birch and its business and operations, risk factors relating to Birch’s business and operations, input to the “Plan of Distribution” section of the Resale Registration Statement, the consent of the auditor of Birch’s financial statement, and financial statements of Birch required to be filed with or incorporated by reference into the Resale Registration Statement (including pro forma financial statements of Birch and Fusion on a consolidated basis). To the extent any such document or information is not available, and out of the Company’s reasonable control, the Company will use its reasonable best efforts to obtain such documents and information and file the Resale Registration Statement, as promptly as possible.

6.Miscellaneous.

6.1Governing 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.

6.2Successors 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 Purchaser.

6.3Entire 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.

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6.4Severability. 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.

6.5Amendment 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 the Purchaser. Any amendment or waiver effected in accordance with this Section 6.5 shall be binding upon each future holder of any of the Securities purchased under this Agreement and the Company.

6.6Fees and Expenses. Except as otherwise set forth herein, the Company and the Purchaser 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 party 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.

6.7Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be delivered, if within the United States, by first-class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid, 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: James P. Prenetta, Jr., EVP and General Counsel, e-mail: jprenetta@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.

6.8Survival of Representations, Warranties and Agreements. Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and warranties made by the Company and the Purchaser herein shall survive the execution of this Agreement, the delivery to the Purchaser 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.

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6.9Counterparts. 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.

6.10Headings. 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.

[The Remainder of this Page is Blank; Signature Pages Follow]

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In witness whereof, the foregoing Preferred Stock Purchase Agreement is hereby executed as of the date first above written. 

FUSION CONNECT, INC.
By:	/s/ James P. Prenetta, Jr.
Name:	James P. Prenetta, Jr.
Title:	Executive Vice President and General Counsel

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In witness whereof, the foregoing Preferred Stock Purchase Agreement is hereby executed as of the date first above written. 

Holcombe T. Green, Jr.
Name of Investor
By:	/s/ Holcombe T. Green, Jr.
Name:
Title:

Tax Identification No.:

Jurisdiction of Organization:  Georgia

Jurisdiction of Principal Place of Operations:

Georgia

Address for Notice:

3060 Peachtree Rd., N.W.

Suite 1065

Atlanta, Georgia 30305 

Attention: Holcombe T. Green, Jr.

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Exhibit A

Certificate of Designations of the Series D Cumulative Preferred Stock

(attached)

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FUSION CONNECT, INC.

CERTIFICATE OF

DESIGNATION OF PREFERENCES,

RIGHTS AND LIMITATIONS

OF

SERIES D CUMULATIVE PREFERRED STOCK

Pursuant to Section 151 of the Delaware General Corporation Law and Article IV of the Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) of Fusion Connect, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), the Corporation hereby certifies that the following resolution was duly adopted by the board of directors of the Corporation (the “Board”) effective as of May [●], 2018, pursuant to the authority conferred upon the Board by the Certificate of Incorporation, which authorizes the issuance of up to 10,000,000 shares of preferred stock, par value $0.01 per share:

RESOLVED, that the designation of 100,000 shares of a new series of preferred stock of the Corporation, designated as the Series D Cumulative Preferred Stock, out of the authorized and unissued shares of preferred stock, par value $0.01 per share, of the Corporation, with the rights and preferences set forth herein, be, and hereby is, approved:

I.            

Designation and Amount

Of the 10,000,000 shares of preferred stock authorized pursuant to Article IV of the Certificate of Incorporation, 100,000 are hereby designated as Series D Cumulative Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”). Each share of Series D Preferred Stock shall have a stated value of $1,000 per share (the “Stated Value”). Subject to Article IV, such number of shares may be increased or decreased by resolution of the Board and by the filing of a certificate pursuant to the provisions of the General Corporation Law of the State of Delaware stating that such reduction or increase has been so authorized; provided, however, that no decrease will reduce the number of shares of Series D Preferred Stock to a number less than the number of shares then outstanding, plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series D Preferred Stock.

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II.            

Dividends

Dividends on each share of Series D Preferred Stock shall accrue on a monthly basis at the rate of 12% per annum of the sum of the Stated Value plus all accumulated and unpaid dividends thereon from and including the date of issuance of such share to and including the date on which the Stated Value of such share (plus all accrued and unpaid dividends thereon) is paid to the holder thereof in connection with a Liquidation Event (as defined herein) or the redemption of such share by the Corporation. Such dividends shall accrue whether or not they have been declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. All accrued and unpaid dividends on each share of Series D Preferred Stock shall be paid, at the option of the Corporation, in cash or in kind with shares of Series D Preferred Stock on the last business day of each calendar month; provided that dividends may only be paid in cash after all obligations of the Corporation and its subsidiaries under each of the New Credit Facilities (excluding contingent obligations as to which no claim has been made) have been paid in full in cash, all commitments to extend credit thereunder have been terminated and no letter of credit shall be outstanding thereunder. For purposes of dividends paid in kind, (i) the number of shares of Series D Preferred Stock payable in respect thereof shall be determined using a per share price of $1,000 (adjusted appropriately for stock splits, stock dividends, recapitalizations, consolidations, mergers and the like with respect to the Series D Preferred Stock) and (ii) in lieu of a fractional share of Series D Preferred Stock as a dividend, the Corporation shall issue a whole share of Series D Preferred Stock (rounded up to the nearest whole share).

III.            

Liquidation

(a)Upon any liquidation, dissolution or winding up of the Corporation (whether voluntary or involuntary) (a “Liquidation Event”), each holder of Series D Preferred Stock shall be entitled to be paid, before any distribution or payment is made upon any shares of Common Stock or other Junior Stock, an amount in cash equal to the aggregate Stated Value of all shares of Series D Preferred Stock held by such holder (plus all accrued and unpaid dividends thereon), and the holders of Series D Preferred Stock shall thereafter not be entitled to any further payment. If upon any such liquidation, dissolution or winding up of the Corporation, the Corporation’s assets to be distributed among the holders of the Series D Preferred Stock are insufficient to permit payment to such holders of the aggregate amount that they are entitled to be paid under this Article III, then the assets available to be distributed to the holders of Series D Preferred Stock shall be distributed pro rata among such holders based upon the aggregate Stated Value (plus all accrued and unpaid dividends) of the Series D Preferred Stock held by each such holder.

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(b)For purposes of this Article III, a “Liquidation Event” shall be deemed to include, (i) the acquisition of the Corporation by another entity by means of any transaction or series of related transactions to which the Corporation is party (including, without limitation, any stock transaction, reorganization, merger or consolidation) other than a transaction or series of related transactions in which the holders of the voting securities of the Corporation outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, as a result of shares in the Corporation held by such holders prior to such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Corporation or such other surviving or resulting entity (or if the Corporation or such other surviving or resulting entity is a wholly-owned subsidiary immediately following such acquisition, its parent); and (ii) a sale, lease or other disposition of all or substantially all of the assets of the Corporation and its subsidiaries taken as a whole by means of any transaction or series of related transactions, except where such sale, lease or other disposition is to a wholly-owned subsidiary of the Corporation.

IV.            

Redemptions

(a)The Corporation may at any time and from time to time, on a pro rata basis, but only after the payment in full in cash of the Deferred Fees, redeem all or any portion of the shares of Series D Preferred Stock then outstanding. Upon any such redemption, the Corporation shall pay a price per share equal to the Stated Value thereof (plus all accrued and unpaid dividends thereon). Such redemption shall take place on a date fixed by the Corporation.

(b)At any time after the date that the first share of Series D Preferred Stock is issued and at such time as any share of Series D Preferred Stock is issued and outstanding, but only after the payment in full in cash of the Deferred Fees, upon the sale by the Corporation of any of its equity securities for cash, the Corporation shall use the net cash proceeds of such sale to redeem all the shares of Series D Preferred Stock then issued and outstanding or, if such proceeds are less than the amount required to redeem all such issued and outstanding shares of Series D Preferred Stock, the maximum amount of shares of Series D Preferred Stock that can be redeemed using such proceeds, in each case, at a price per share equal to the Stated Value thereof (plus all accrued and unpaid dividends thereon).

(c)The Corporation shall provide written notice of each redemption of shares of Series D Preferred Stock to each record holder thereof not more than 30 nor less than five days prior to the date on which such redemption is to be made.

(d)If less than all the shares of Series D Preferred Stock are to be redeemed, the number of shares of Series D Preferred Stock to be redeemed from each holder thereof shall be the number of shares determined by multiplying the total number of shares of Series D Preferred Stock to be redeemed by a fraction, the numerator of which shall be the total number of shares of Series D Preferred Stock then held by such holder and the denominator of which shall be the total number of shares of Series D Preferred Stock then outstanding.

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V.            

Voting Rights

Except as otherwise provided by law or under Article VI hereof, holders of shares of Series D Preferred Stock will have no voting rights.

VI.            

Certain Restrictions

(a)Whenever dividends payable on the Series D Preferred Stock are in arrears, thereafter and until all accrued and unpaid dividends, whether or not declared, on shares of Series D Preferred Stock outstanding have been paid in full, the Corporation will not, without the written consent of holders of a majority of the then issued and outstanding shares of Series D Preferred Stock:

(i)declare or pay dividends, or make any other distributions, on any shares of Junior Stock (either as to dividends or upon a Liquidation Event);

(ii)declare or pay dividends, or make any other distributions, on any shares of stock of the Corporation ranking pari passu (either as to dividends or upon a Liquidation Event) with the shares of Series D Preferred Stock;

(iii)redeem, purchase or otherwise acquire for consideration shares of any Junior Stock; or

(iv)redeem, purchase or otherwise acquire for consideration any shares of stock of the Corporation ranking pari passu with the shares of Series D Preferred Stock.

(b)The Corporation will not, without the prior written consent of holders of a majority of the then issued and outstanding shares of Series D Preferred Stock:

(i)amend, alter or repeal the rights, preferences or privileges of the Series D Preferred Stock (including by way of amendment of the Certificate of Incorporation or this Certificate of Designation, including in connection with a merger);

(ii)increase or decrease the authorized number of shares of the Series D Preferred Stock;

(iii)authorize, create (by reclassification or otherwise) or issue shares of any class or series of equity securities of the Corporation that is senior or pari passu to the Series D Preferred Stock;

(iv)take any action that results in the redemption of any shares of Common Stock or other equity securities of the Corporation, other than the outstanding shares of Series D Preferred Stock;

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(v)issue additional shares of Series D Preferred Stock (except in respect of in kind dividends or distributions pursuant to this Certificate of Designation);

(vi)authorize, enter into an agreement with respect to, or effect any Liquidation Event that does not result in the redemption in full of the Series D Preferred Stock pursuant to the terms of this Certificate of Designation;

(vii)amend or waive any provision of the Certificate of Incorporation, the bylaws of the Corporation or this Certificate of Designation in a manner that is adverse in any respect to the holders of the Series D Preferred Stock; or

(viii)enter into any commitment to do any of the foregoing.

VII.            

Reacquired Shares

Any shares of Series D Preferred Stock redeemed or otherwise acquired by the Corporation in any manner whatsoever will be retired and canceled promptly after the acquisition thereof. All such shares will upon their cancellation become authorized but unissued shares of preferred stock and may be reissued as part of a new series of preferred stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, or in any other preferred stock Certificate of Designation creating a series of preferred stock or any similar stock or as otherwise required by law.

VIII.                       

Rank

The Series D Preferred Stock ranks, with respect to the payment of dividends and the distribution of assets, junior to all other series of the Corporation’s preferred stock existing on the date that the first share of Series D Preferred Stock is issued.

IX.            

Definitions

For purposes hereof, the following terms will have the following meanings:

“Deferred Fees” means $4.0 million in aggregate of fees that are (i) owed by the Corporation to Goldman Sachs Lending Partners LLC in connection with the New Credit Facilities and/or (ii) owed by BCHI to Moelis & Company in connection with financial advisory services provided by it to BCHI in connection with the Merger Agreement.

“Junior Stock” shall mean the Common Stock and any other class or series of stock of the Corporation ranking junior to the Series D Preferred Stock in respect of the right to receive dividends and distributions or in respect of the right to receive assets upon the liquidation, dissolution or winding up of the Corporation.

“Merger Agreement” shall mean the Agreement and Plan of Merger, dated August 26, 2017, as amended, by and among the Corporation, Fusion BCHI Acquisition LLC, a wholly-owned subsidiary of the Corporation (“BCHI”), and Birch Communications Holdings, Inc.

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“New Credit Facilities” shall mean the First Lien Credit and Guaranty Agreement and the Second Lien Credit and Guaranty Agreement, each dated as of the date hereof, among the Corporation, as borrower, certain subsidiaries of the Corporation party thereto, as guarantor subsidiaries, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent.

“Senior Stock” shall mean any class or series of stock of the Corporation issued after the date on which the first share of Series D Preferred Stock is issued ranking senior to the Series D Preferred Stock in respect of the right to receive dividends and distributions and in respect of the right to receive assets upon the liquidation, dissolution or winding up of the affairs of the Corporation.

[Signature Page Follows]

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IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Executive Vice President and General Counsel this ___ day of May 2018.

FUSION CONNECT, INC.

By: 

Name: James P. Prenetta, Jr. 

Title: Executive Vice President and General Counsel

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EX-23.1

Exhibit 23.1

May 10, 2018

CONSENT OF INDEPENDENT AUDITORS

We consent to the use in this Form 8‐K (No. 001‐32421) of Fusion Connect, Inc. (formerly Fusion Telecommunications International, Inc.) dated May 4, 2018 of our report dated March 12, 2018, with respect to the consolidated balance sheets of Birch Communications Holdings, Inc. as of December 31, 2017 and 2016, and the related consolidated statements of operations and comprehensive income, changes in stockholders’ equity, and cash flows for the years then ended.

/s/ MCNAIR, MCLEMORE, MIDDLEBROOKS & CO., LLC

EX-99.1

------------------------------------------------------------------------------------------------------------------------

Fusion Announces Definitive Agreement to Acquire MegaPath

Integrated Cloud Services Provider Adds $70 Million Incremental Annual Revenue, Over 8,000 Business Customers, and Enhanced Sales and Distribution Capabilities

NEW YORK, NY -- May 10, 2018 -- Fusion (NASDAQ: FSNN), a leading provider of cloud services, announced today that it has signed a definitive agreement to acquire privately-held MegaPath Holding Corporation (“MegaPath”). Based in Pleasanton, California, MegaPath provides a robust, fully-integrated suite of cloud services including Unified Communications as a Service (UCaaS), cloud computing, security, SD-WAN and cloud connectivity. The transaction is valued at under 5.0x pro forma Adjusted EBITDA including anticipated cost synergies realized within 12 months of closing.

Total consideration in the transaction is $71.5 million. Up to $10.0 million of the consideration is payable at Fusion’s election in unregistered shares of Fusion common stock priced at $5.78 per share. Fusion intends to fund the cash portion of the consideration via borrowings under its First Lien Senior Secured Credit Facility, $62.0 million of which is currently held in escrow for this acquisition. The transaction is expected to close within the next 90 days, subject to receipt of certain regulatory approvals and other customary closing conditions.

Highlights

●

Contributes additional financial scale with approximately $70 million in annual revenue, 95% of which consists of contracted monthly recurring revenue (MRR), and adjusted EBITDA of approximately $15 million including anticipated cost synergies

●

Adds more than 8,000 small and medium business and large enterprise customers, with an average monthly revenue per customer (ARPU) of $750 and 1.0% monthly churn

●

Provides a robust, customizable and highly scalable back office/OSS platform that is expected to be utilized across the full company to support enterprise customer needs and increase efficiency

●

Adds approximately 45 quota-bearing sales representatives across direct and indirect sales channels as well as a number of distribution partners, driving upselling and cross-selling opportunities and deepening Fusion’s strong relationships throughout the Channel Partner sales channel

●

Brings a highly capable staff of experienced cloud services professionals with expertise to facilitate more rapid integration of the businesses and execution of Fusion’s strategy

Matthew Rosen, Fusion’s Chairman and CEO, said, “This transaction is further evidence that Fusion is rapidly building a cloud services industry leader around our unique and compelling single-source strategy. MegaPath is an ideal fit with our strategic objectives as it adds a diverse, high-value business customer base, a team of cloud services experts, and incremental financial scale, with a high percentage of MRR, high ARPU and low churn relative to industry averages. Given the similarities between our businesses, we expect the MegaPath acquisition to facilitate the customer, operational and financial integration of Birch, enabling us to drive Fusion’s strategy more efficiently across the entire organization.”

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“The Cloud Services market is recognizing the superior value of integrated solutions from a single-source provider,” said Craig Young, MegaPath’s CEO. “Fusion’s differentiated strategy, its high-quality integrated product suite and its scalable platform are therefore a natural fit with MegaPath’s business and culture. Our participation in the equity of Fusion through this transaction underscores our confidence that the combination of the two companies will create significant value for shareholders. Furthermore, our customers will continue to benefit from the same high levels of service quality, customer care and innovation from Fusion that they’ve come to expect from MegaPath.”

Bank Street Group served as the exclusive financial advisor to MegaPath in connection with this transaction.

About Fusion

Fusion, a leading provider of integrated cloud solutions to small, medium and large businesses, is the industry's Single Source for the Cloud.® Fusion's advanced, proprietary cloud service platform enables the integration of leading edge solutions in the cloud, including cloud communications, contact center, cloud connectivity, and cloud computing. Fusion's innovative, yet proven cloud solutions lower our customers' cost of ownership, and deliver new levels of security, flexibility, scalability, and speed of deployment. For more information, please visit www.fusionconnect.com.

Forward Looking Statements

This press release contains forward-looking statements relating to future events. Statements in this press release that are not purely historical facts, including statements regarding Fusion’s beliefs, expectations, intentions or strategies for the future, may be “forward-looking statements” under the Private Securities Litigation Reform Act of 1995. Such statements consist of any statement other than a recitation of historical fact and may sometimes be identified by the use of forward-looking terminology such as “may”, “expect”, “anticipate”, “intend”, “estimate” or “continue” or the negative thereof or other variations thereof or comparable terminology. The reader is cautioned that all forward-looking statements are speculative, and there are certain risks and uncertainties that could cause actual events or results to differ from those referred to in such forward-looking statements. Important risks regarding the Company’s business include the Company’s ability to complete the acquisition of MegaPath, its ability to obtain the required approvals necessary to close that transaction, and its ability to integrate that business following the closing; the Company’s ability to comply with covenants included in its debt agreements; competitors with broader product lines and greater resources; emergence into new markets; natural disasters, acts of war, terrorism or other events beyond the Company’s control; and other factors identified by Fusion from time to time in its filings with the Securities and Exchange Commission, which are available through http://www.sec.gov. However, the reader is cautioned that Fusion’s future performance could also be affected by risks and uncertainties not enumerated above.

Fusion Contact

Brian Coyne

(212) 201-2404

bcoyne@fusionconnect.com

Investor Relations

Chris Tyson

MZ North America

(949) 491-8235

FSNN@mzgroup.us

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EX-99.2

Fusion Announces Closing of Birch Acquisition

Transaction Financed through New $680 Million Senior Credit Facilities

NEW YORK, NY -- May 7, 2018 -- Fusion (NASDAQ: FSNN), a leading provider of cloud services, announced today that on May 4, 2018, it closed its previously-announced acquisition of the Cloud and Business Services business of Birch Communications Holdings, Inc. (“Birch”). The acquisition was completed through a merger of a wholly-owned subsidiary of Fusion with and into Birch. The total enterprise value of this transaction was approximately $600 million, consisting of approximately 50 million shares of Fusion common stock and the refinancing of $444 million of Birch indebtedness.

Highlights

● 

Creates an industry-leading cloud and business services company with more than $500 million in pro forma annual revenue

● 

Excludes Birch’s legacy consumer and single-line business customers, which have lower profitability and average revenue per customer (ARPU) as well as higher churn rates

● 

Empowers Fusion to expand and accelerate its highly differentiated single-source strategy across a much larger platform and customer base consisting of more than 150,000 businesses

● 

Adds considerable sales and distribution resources, for a total of approximately 75 direct, indirect and inside sales professionals and more than 800 active distribution partners

● 

Capitalizes on Fusion’s robust intellectual property, go-to-market strategy, and brand awareness developed over the last several years as the Single Source for the Cloud

● 

Combines both companies’ network infrastructure assets into one of the largest North American, 100% IP-based networks that is low cost and highly scalable, with approximately 31,000 route miles of fiber

● 

Brings to Fusion a talented employee base of technology professionals, bound by a common vision for the future, a culture of innovation and a commitment to service excellence

The Birch acquisition was financed through borrowings under Fusion’s new $680 million Senior Secured Credit Facilities (the “Facilities”), which closed on May 4, 2018. The Facilities include $640 million in term loans and a $40 million revolving credit facility, which is currently undrawn. Including the revolving credit facility, the Facilities bear interest at a weighted-average rate of LIBOR plus 7.56%. Excluding the revolving credit facility, the Facilities bear interest at a weighted-average rate of 7.72%.

Additionally, Fusion announced today that its shares of common stock were approved for listing on The Nasdaq Global Market, effective with the open of the market on May 7, 2018. Fusion’s common stock continues to trade under its existing trading symbol "FSNN.” The structure of the transaction triggered a new listing application requirement according to Nasdaq’s rules, which includes a minimum bid price of $4.00 per share. In connection with the new listing, Fusion announced that it has effected a 1-for-1.50 reverse split of its common stock for stockholders of record as of the open of business on May 4, 2018. The reverse split goes into effect today.

Fusion further announced that on May 4, 2018, it completed the planned divestiture of all of its interests in its Carrier Services business. As a result, Fusion’s sole focus is on the Cloud and Business Services market.

Matthew Rosen, Fusion’s Chairman and CEO, said, “Today marks the beginning of an exciting new era for Fusion, as we now move forward to realize the tremendous potential of the combined company. In bringing the two businesses together, we have created a market-leading Cloud Services company that is positioned for further growth, both organically and through additional strategic acquisitions. We are confident that Fusion can create significant, long-term value for shareholders by extending our proven strategy as the single source for the cloud across our greatly expanded platform and customer base and leveraging our substantially greater scale and resources.

“Our new financing likewise represents another major step toward Fusion’s goal of becoming the industry’s leading single-source cloud services provider,” Mr. Rosen continued. “We appreciate the support we received from Goldman Sachs, Morgan Stanley and MUFG as joint lead arrangers, as well as previous lenders to Fusion and Birch who participated in this financing along with a number of new lenders.”

About Fusion

Fusion, a leading provider of integrated cloud solutions to small, medium and large businesses, is the industry's single source for the cloud. Fusion's advanced, proprietary cloud service platform enables the integration of leading edge solutions in the cloud, including cloud communications, contact center, cloud connectivity and cloud computing. Fusion's innovative, yet proven cloud solutions lower our customers' cost of ownership, and deliver new levels of security, flexibility, scalability and speed of deployment. For more information, please visit www.fusionconnect.com.

Fusion Contact

Brian Coyne

212-201-2404

bcoyne@fusionconnect.com

Investor Relations

Chris Tyson

MZ North America

(949) 491-8235

FSNN@mzgroup.us

“Single Source for the Cloud” is a registered trademark of Fusion.

2

EX-99.3

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Fusion Completes Private Placement of Common Stock Led by

Morgan Stanley Credit Partners

Equity Investment Demonstrates Strong Support of Fusion’s Differentiated Strategy

NEW YORK, NY -- May 8, 2018 -- Fusion (NASDAQ: FSNN), a leading provider of cloud services, announced today that on May 4, 2018, it closed a private placement (the “Private Placement”) of 1,523,811 shares of its common stock. The shares were priced at $5.25 per share for gross proceeds of $8.0 million. Proceeds from the Private Placement will be used by Fusion for general corporate purposes.

Investment funds managed by Morgan Stanley Credit Partners, an investment team of Morgan Stanley Investment Management, which participated in Fusion’s recently completed Senior Secured Term Loan Facilities (the “Facilities”), led the Private Placement with an investment of $5.0 million of Fusion common stock. The remaining $3.0 million of Fusion common stock in the Private Placement was sold to other lenders to Fusion under the Facilities. The stock is subject to a 180 day lock-up after the closing date of the transaction.

“I am very pleased that this group of financial institutions, led by Morgan Stanley Credit Partners, recognizes Fusion’s highly differentiated strategy and our clear value proposition,” said Matthew Rosen, Fusion’s Chairman and CEO. “Their support of the company’s continued growth through their equity and debt investments is a strong vote of confidence in our vision to create the leading cloud services provider in the market.”

“Our investment in Fusion reflects our confidence in Fusion’s value proposition in executing its strategy as the single source for the cloud,” said Hank D’Alessandro, Head of Morgan Stanley Credit Partners. “We are delighted to be working with Matt and the management team.”

The offering described herein was made pursuant to an exemption from the registration requirements of the U.S. Securities Act of 1933, as amended (the “Securities Act”), solely to accredited investors. Under the terms of the Private Placement Fusion has agreed to use commercially reasonable efforts to file and have declared effective by the Securities and Exchange Commission a registration statement on Form S-3 for purposes of registering the resale of the common stock within 120 days of May 4, 2018.

About Fusion

Fusion, a leading provider of integrated cloud solutions to small, medium and large businesses, is the industry's single source for the cloud. Fusion's advanced, proprietary cloud service platform enables the integration of leading edge solutions in the cloud, including cloud communications, contact center, cloud connectivity and cloud computing. Fusion's innovative, yet proven cloud solutions lower our customers' cost of ownership, and deliver new levels of security, flexibility, scalability and speed of deployment. For more information, please visit www.fusionconnect.com.

About Morgan Stanley Credit Partners

Morgan Stanley Credit Partners, part of Morgan Stanley Investment Management, invests in corporate debt securities issued by middle market companies. Morgan Stanley Credit Partners’ investment team, based in New York, focuses on deploying capital in North America and Western Europe. For further information about Morgan Stanley Credit Partners, please visit www.morganstanley.com/creditpartners.

Fusion Contact

Brian Coyne

(212) 201-2404

bcoyne@fusionconnect.com

Investor Relations

Chris Tyson

MZ North America

(949)491-8235

FSNN@mzgroup.us

EX-99.4

BIRCH COMMUNICATIONS HOLDINGS, INC.

ATLANTA, GEORGIA

CONSOLIDATED FINANCIAL

STATEMENTS AS OF

DECEMBER 31, 2017 AND 2016 AND

REPORT OF INDEPENDENT ACCOUNTANTS

BIRCH COMMUNICATIONS HOLDINGS, INC.

CONTENTS

Consolidated Balance Sheets as of December 31, 2017 and 2016	1
Consolidated Statements of Operations and Comprehensive Income (Loss) for the Years Ended December 31, 2017 and 2016	2
Consolidated Statements of Changes in Stockholders' Deficit for the Years Ended December 31, 2017 and 2016	3
Consolidated Statements of Cash Flows for the Years Ended December 31, 2017 and 2016	4
Notes to Consolidated Financial Statements	5

MCNAIR, MCLEMORE, MIDDLEBROOKS & CO., LLC

CERTIFIED PUBLIC ACCOUNTANTS

389 Mulberry Street ● Post Office Box One ● Macon, GA 31202

Telephone (478) 746-6277 ● Facsimile (478) 741-1129

www.mmmcpa.com

March 12, 2018

REPORT OF INDEPENDENT ACCOUNTANTS

The Board of Directors and Stockholders

Birch Communications Holdings, Inc.

We have audited the accompanying consolidated financial statements of Birch Communications Holdings, Inc., (the Company), which comprise the consolidated balance sheets as of December 31, 2017 and 2016 and the related consolidated statements of operations and comprehensive income, changes in stockholders' deficit and cash flows for the years then ended, and the related notes to the financial statements.

Management's Responsibility for the Financial Statements

Management is responsible for the preparation and fair presentation of these consolidated financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation and maintenance of internal control relevant to the preparation and fair presentation of consolidated financial statements that are free from material misstatement, whether due to fraud or error.

Auditor's Responsibilities

Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free from material misstatement.

An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the consolidated financial statements. The procedures selected depend on the auditor's judgment, including the assessment of the risks of material misstatement of the consolidated financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the Company's preparation and fair presentation of the consolidated financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements.

We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.

Opinion

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Birch Communications Holdings, Inc. as of December 31, 2017 and 2016, and the results of its operations and cash flows for the years then ended in accordance with accounting principles generally accepted in the United States of America.

McNAIR, McLEMORE, MIDDLEBROOKS & CO., LLC

BIRCH COMMUNICATIONS HOLDINGS, INC. AND SUBSIDIARY

CONSOLIDATED BALANCE SHEETS

(Amounts in thousands)

Current assets:	December 31, 2017	December 31, 2016
Cash and cash equivalents	$5,757	$8,208
Accounts receivable, net of allowance for doubtful accounts of $4,569 and $3,716, respectively	34,921	38,317
Accounts receivable - stockholders/employees	920	920
Prepaid expenses	7,549	7,760
Inventory, net	1,179	1,181
Other as sets	2,505	1,984
Total current as sets	52,831	58,370
Long-term assets:
Property and equipment, net	85,675	110,957
Goodwill	93,356	93,356
Intangible assets, net	115,359	177,670
Other non-current assets	877	1,673
Total long-term as sets	295,267	383,656
Total assets	$348,098	$442,026
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable	$48,784	$34,966
Accrued telecommunications costs	11,048	9,336
Deferred customer revenue	12,601	14,501
Other accrued liabilities	34,268	44,143
Current portion of capital leases	3,003	4,376
Current portion of long-term debt	30,000	26,500
Total current liabilities	139,704	133,822
Long-term liabilities:
Non-current portion of long-term debt	420,936	429,911
Non-current portion of long-term capital lease	3,823	5,466
Other non-current liabilities	12,847	17,815
Total non-current liabilities	437,606	453,192
Stockholders' deficit:
	26	26
Common stock, $0.01 par value; 10,000 shares authorized, 2,564 shares issued and outstanding
Additional paid-in capital	6,050	6,050
Accumulated deficit	(236,477)	(150,866)
Accumulated other comprehensive income (loss)	1,189	(198)
Total stockholders' deficit	(229,212)	(144,988)
Total liabilities and stockholders' deficit	$348,098	$442,026

See accompanying notes which are an integral part of these financial statements.

1

BIRCH COMMUNICATIONS HOLDINGS, INC. AND SUBSIDIARY

CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME (LOSS)

(Amounts in thousands, except per share amounts)

	For the Years Ended December 31,
	2017	2016
Revenue	$550,324	$603,579
Cost of revenue (exclusive of depreciation and amortization, shown below)	307,959	328,408
Gross Profit	$242,365	$275,171
Operating expenses:
Selling, general and administrative (exclusive of depreciation and amortization, shown separately below)	139,595	178,614
Depreciation and amortization	83,793	70,098
Impairment losses on property, plant and equipment	6,003
Impairment losses on intangible assets	46,780
Foreign currency (gain) loss	(393)	(20)
Total operating expenses	275,778	248,692
Operating income (loss)	(33,413)	26,479
Other (expense) income:
Interest expense, net	(50,920)	(43,258)
Other income	1,265	(8,517)
Total other expense	(49,655)	(51,775)
Income (loss) before income taxes	(83,068)	(25,296)
Income tax expense	(2,543)	(1,847)
Net income (loss)	$(85,611)	$(27,143)
Other comprehensive income (loss):
Cumulative translation adjustment	1,387	(198)
Comprehensive income (loss)	$(84,224)	$(27,341)
Net income (loss) per common share
Basic	$(33.39)	$(10.39)
Diluted	$(33.39)	$(10.34)
Weighted average common shares outstanding
Basic	2,564	2,613
Diluted	2,564	2,626

See accompanying notes which are an integral part of these financial statements.

2

BIRCH COMMUNICATIONS HOLDINGS, INC. AND SUBSIDIARY

CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' DEFICIT

(Amounts in thousands)

Common stock		Additional paid-in capital	Accumulated other comprehensive income	Accumulated deficit	Total
Shares	Par value

	Common Stock
	Shares	Par Value	Additional paid-in capital	Accumulated other comphrehensive income	Accumulated deficit	Total
Balance at December 31, 2015	2,711	$27	$7,012	$	$(92,656)	$(85,617)
Share-based compensation			196			196
ÏRepurchase and cancellation of common stock	(147)	(1)	(1,158)		(12,541)	(13,700)
Distributions to owners					(18,526)	(18,526)
Cumulative translation adjustment				(198)		(198)
Net loss					(27,143)	(27,143)
Balance as of December 31, 2016	2,564	$26	$6,050	$(198)	$(150,866)	$(144,988)
Cumulative translation adjustment				1,387	(85,611)	1,387
Net loss						(85,611)
Balance as of December 31, 2017	2,564	$26	$6,050	$1,189	$(236,477)	$(229,212)

See accompanying notes which are an integral part of these financial statements.

3

BIRCH COMMUNICATIONS HOLDINGS, INC. AND SUBSIDIARY

CONSOLIDATED STATEMENTS OF CASH FLOWS

(Amounts in thousands)

	For The Ended December 31,
	2017	2016
Cash Mows from Operating Activities:
Net loss	$(85,611)	(27,143)
Adjustments to reconcile net loss to net cash provided by operating activities
Depreciation and amortization	83,793	70,098
Deferred financing amortization	4,479	2,845
OID Interest	1,822	1,717
Deferred taxes	338	449
Loss on disposal of fixed assets	233	8,550
Loss on impairment of property, plant and equipment	6,003
Loss on impairment of intangible assets	46,780
Non-cash share-based compensation		196
Changes in operating assets and liabilities:
Accounts receivable	3,774	1,708
Inventory, net	73	(155)
Prepaid expenses and other current assets	(179)	41
Other assets	820	(181)
Accounts payable	13,565	22,905
Other liabilities	(16,368)	4,397
Net cash provided by operating activities	59,522	85,427
Cash Mows from Investing Activities:
Acquisitions		(22,642)
Purchases of property and equipment	(10,077)	(18,643)
Capitalization of customer installation costs and commissions	(35,027)	(30,079)
Proceeds (loss) from disposal of fixed assets	76	5,102
Net cash used in investing activities	(45,028)	(66,262)
Cash Mows from Financing Activities:
Proceeds from notes payable and long-term debt	15,000	52,500
Repayment of debt obligation	(22,875)	(43,456)
Payment of capital lease obligations	(4,494)	(5,181)
Deferred financing costs and discounts	(4,675)	(4,289)
Distribution to owners		(18,526)
Net cash used in financing activities	(17,044)	(18,952)
Net increase (decrease) in cash and cash equivalents	(2,550)	213
Cash and cash equivalents at beginning of period	8,208	8,715
Foreign currency translation effect on cash	99	(720)
Cash and cash equivalents at end of period	$5,757	$8,208
Supplemental Disclosure of Cash Flow Information:
Interest paid	$38,531	$29,415
Income tax paid	$3,293	$144
Non-cash purchases of property and equipment	$1,479	$317

See accompanying notes which are an integral part of these financial statements.

4

BIRCH COMMUNICATIONS HOLDINGS, INC. AND SUBSIDIARY

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

Note 1. Nature of Business

Birch Communications Holdings, Inc., (Birch) (the Company) is the sole owner of Birch Communications, Inc. (formerly known as Access Integrated Networks, Inc., incorporated in 1996) which is comprised of the following wholly-owned consolidated subsidiaries: Birch Communications of Virginia, Inc., Birch Communications of Kentucky, LLC, Birch Telecom of Texas Ltd., LLP, Birch Telecom of Kansas, Inc., Birch Telecom of Missouri, Inc., Birch Telecom of Oklahoma, Inc., Birch Telecom of the South, Inc., Birch Telecom of the Great Lakes, Inc., Birch Telecom of the West, Inc., Birch Communications of the Northeast, Inc., Ionex Communications North, Inc., Ionex Communications South, Inc., Ionex Communications, Inc., Tempo Telecom, LLC, Primus Management, ULC, Primus of Puerto Rico, LLC, Cbeyond, Inc., Cbeyond Communications, LLC (Cbeyond), Birch Internet Services, Inc., Birch Equipment, Inc., Birch Management Corporation, Primus Holdings, Inc., Birch Texas Holdings, Inc., Birch Telecom, Inc., and Birch Telecom 1996, Inc. The Company is a competitive local exchange carrier (CLEC) providing services to primarily small- and medium-sized business customers and to a lesser extent, residential consumers in 50 states, and Washington D.C., focusing mainly in the southeastern and southwestern United States. The Company provides local, long distance, high speed internet, broadband data, Session Initiation Protocol (SIP) trunking, Private Branch Exchange (PBX) hosting, email, web hosting and other ancillary telephony, broadband information technology (IT) services and internet services. It does so by provisioning services over its own digital network called the Birch Digital Network (BDN) or by reselling the services of the incumbent local exchange carrier (ILEC), such as AT&T, Inc., Verizon and CenturyLink. Birch is subject to certain regulations and requirements of the Federal Communications Commission (FCC) and various state public service commissions and, where required, files tariffs, price lists and other terms and conditions relating to the use of their services.

In connection with offering local exchange services, the Company has entered into two types of agreements with most ILECs. The first is an Interconnection Agreement (ICA), which vary in length of term by state and region. The ICA allows the Company to purchase resale services as well as unbundled network elements (UNE) such as loops and transport, and the ability to collocate equipment at the ILEC' s central office (all necessary to build and operate the BDN). The second type of agreement is the Commercial Agreement (CA). The CA governs the terms, conditions and prices for the purchase of unbundled network element replacement services where UNEs are not available. These agreements allow the Company to enter new markets with minimal capital expenditures and to offer local exchange services by purchasing all unbundled network element platform (UNE-P) required for local service on a wholesale basis. The terms of the ICA, including pricing terms which are negotiated and agreed to by the Company and each ILEC, have been approved by state regulatory authorities in all states in which the ILEC operates, although they remain subject to review and modification by such authorities. The Company believes the ICAs and CAs provide a foundation for it to provide local service on a reasonable basis, but there can be no assurance on a prospective basis in this regard as important regulatory, legal and technology issues are ever changing.

Typically, the Company enters multi-year ICAs with the ILECs. Under these agreements, prices are either fixed for the life of the agreement or specific mechanisms for periodic adjustments in prices are outlined.

Note 2. Basis of Presentation and Summary of Significant Accounting Policies

Basis of Presentation and Principles of Consolidation

The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiary. All significant intercompany accounts and transactions have been eliminated. All dollars in notes to the consolidated financial statements are rounded to the nearest thousands, except per share amounts.

5

Use of Estimates

Management uses estimates and assumptions in preparing the consolidated financial statements in accordance with generally accepted accounting principles in the United States ("GAAP"). These estimates and assumptions affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the reported revenues and expenses. Actual results could vary from the estimates that were assumed in preparing the consolidated financial statements.

Reclassifications

Certain reclassifications of prior year amounts have been made to conform to the current year presentation. Cash and Cash Equivalents

The Company considers all highly liquid instruments with an original maturity of three months or less to be cash equivalents.

Revenue Recognition

Revenue is recognized when earned based upon the following specific criteria: (1) persuasive evidence of arrangement exists, (2) services have been rendered, (3) seller's price to the buyer is fixed or determinable, and (4) collectability is reasonably assured. The Company's revenue is comprised of two primary components: (1) fees paid by end customers for local, long-distance and data and (2) carrier charges, primarily access fees. End customer revenue includes local, long-distance and data and is comprised of monthly recurring charges, usage charges and initial nonrecurring charges. Monthly recurring charges include the fees paid by customers for services and additional features on those facilities. Usage charges consist of per-use sensitive fees paid for calls made. Initial nonrecurring charges consist primarily of installation charges. Access charges are comprised of charges paid primarily by interexchange carriers for the origination and termination of interexchange toll and toll-free calls.

The Company follows provisions of Accounting Standards Codification (ASC) Topic 605, Revenue Recognition in Financial Statements. This guidance addresses the recording of revenues and associated costs relating to installation and service activation fees.

Deferred Customer Revenue

Deferred customer revenue represents the liability for advance billings to customers for local phone service. Customers are billed in advance for fixed monthly charges.

Concentrations of Credit Risk

Cash and Cash Equivalents

Financial instruments that potentially subject the Company to credit risk include cash on deposit with financial institutions in excess of federally insured limits. At December 31, 2017, the Company had bank deposits of $6,238 in excess of the FDIC coverage of $250. In Canada, the Company had bank deposits of C$3,540 in excess of the CDIC coverage of C$100.

Accounts Receivable

The Company's accounts receivable subject the Company to credit risk, since collateral is generally not required. The Company's risk of loss is limited due to the ability to terminate access on delinquent accounts. The large number of customers comprising the customer base mitigates the concentration of risk. In the year ended December 31, 2017, no customer represented more than 10 percent of the Company's revenues.

6

Accounts receivable are stated at the amount management expects to collect from outstanding balances. Management provides for uncollectible amounts through a charge to earnings and a credit to a valuation allowance based on its assessment of the current status of individual accounts. Balances that are still outstanding after management has used reasonable collection efforts are written off through a charge to the valuation allowance and a credit to accounts receivable.

Other

The Company faces certain factors, including the following: growth and expansion which may strain the Company's resources; dependence on key personnel; dependence on third-party suppliers of equipment and communications services; dependence on relationships with incumbent local exchange carriers; competition from other competitive local exchange carriers and providers of communications services; and potential disruption of services due to system failures.

Property and Equipment

Property and equipment are stated at cost, and depreciation is computed using the straight-line method over the estimated useful lives of the assets (generally three to five years). Maintenance and repairs are charged to expense as incurred. Gains or losses on the disposal of property and equipment are recognized in operations in the year of disposition. Amortization of capital lease items is included in depreciation expense. Depreciation expense for the years ended December 31, 2017 and 2016 was $31,188 and $29,210, respectively.

Amortization

Subscriber Acquisition Costs

The Company amortizes subscriber acquisition costs over the estimated life of a customer (84 - 120 months as of December 31, 2017). Amortization expense of subscriber acquisition costs was $22,447 and $21,708 for the years ended December 31, 2017 and 2016, respectively.

IP-Network Transition Costs

The Company amortizes the one-time charges associated with transitioning a resale customer to its own IP-Network over a period of 36 months. Amortization expense of IP-network transition costs was $11,674 and $7,011 for the years ended December 31, 2017 and 2016, respectively.

Installation Costs

The Company amortizes costs relative to the install of new customers over a period of 36 months. Installation costs include order entry, provisioning, service coordination and physical installation of the services. Amortization expense of installation costs was $5,594 and $4,553 for the years ended December 31, 2017 and 2016, respectively.

Commissions

The Company amortizes up-front sales commissions paid to third parties over the contractual service period (7 - 36 months as of December 31, 2017). As significant portion of commission payments include activities such as order entry, provisioning and service coordination. Amortization of these commissions was $11,190 and $5,784 for the years ended December 31, 2017 and 2016, respectively.

Tradenames

The Company amortizes tradenames and costs over the estimated life of 84 months. Amortization expense of tradenames costs was $1,700 and $1,771 for the years ended December 31, 2017 and 2016, respectively.

7

Noncompete Agreements

The Company amortizes noncompete agreement costs over the life of the agreement (12-24 months as of December 31, 2017). Noncompete agreements were fully amortized as of December 31, 2017 and December 31, 2016; therefore no amortization expense was recognized.

Impairment of Long-Lived Assets

The Company accounts for long-lived assets in accordance with provisions of ASC Topic 360, Accounting for the Impairment or Disposal of Long-Lived Assets. This guidance addresses financial accounting and reporting for the impairment and disposition of long-lived assets, including property and equipment and purchased intangible assets. The Company evaluates the recoverability of long-lived assets for impairment when events or changes in circumstances indicate the carrying amount of an asset may not be recoverable. Conditions that would necessitate an impairment assessment include a significant decline in the observable market value of an asset, a significant change in the extent or manner in which an asset is used, or a significant adverse change that would indicate the carrying amount of an asset or group of assets is not recoverable. For long-lived assets to be held and used, the Company recognizes an impairment loss only if it's carrying amount is not recoverable through its undiscounted cash flows and measures the impairment loss, if any, based on the difference between the carrying amount and fair value. Long-lived assets held for sale are reported at the lower of cost or fair value less costs to sell. If impairment is indicated, the carrying amount of the asset is written down to fair value.

Goodwill and Purchased Intangible Assets

Goodwill is the excess of the purchase price over the fair value of identifiable net assets acquired in business combinations accounted for under the acquisition method of accounting pursuant to ASC Topic 805, Business Combinations. Purchased intangible assets consist primarily of subscriber bases and customer relationships, acquired software and technology and other assets acquired in conjunction with the purchases of businesses and subscriber bases from other companies. Subscriber bases acquired directly are valued at cost plus assumed service liabilities, which approximates fair value at the time of purchase. When management determines material intangible assets are acquired in conjunction with the purchase of a company, the Company engages an independent third party to determine the allocation of the purchase price to the intangible assets acquired. Certain intangible assets determined to have definite lives are amortized on a straight-line basis over their estimated useful lives. Intangible assets subject to amortization are reviewed for impairment whenever events have occurred that would indicate an impairment could exist. If the Company determines that the carrying value is not recoverable, an impairment charge, reduction in the estimated remaining useful life or both may be recorded.

The Company accounts for goodwill and intangible assets in accordance with ASC Topic 350, Goodwill and Other Intangible Assets, which prohibit the amortization of certain intangible assets, deemed to have indefinite lives. Goodwill is not amortized and is tested for impairment on an annual basis, or more frequently if deemed necessary. As of December 31, 2017, we had $93,356 of goodwill. The Company's 2017 annual goodwill impairment analysis did not result in an impairment charge.

Income Taxes

The Company provides for the effect of income taxes on our financial position and results of operations in accordance with ASC 740, Income Taxes. The Company's tax positions are evaluated for recognition using a jurisdiction statute-based threshold, and those tax positions requiring recognition are estimated conservatively prior to being realized upon ultimate settlement with a taxing authority that has knowledge of all relevant information. Liabilities for income tax matters include amounts for income taxes, penalties and interest thereon and may incorporate the result of the potential alternative interpretations of tax laws and the judgmental nature of the timing of recognition of taxable income.

8

Share-Based Compensation and Consulting

The Company has an equity compensation plan providing for the grant of equity awards. All transactions with nonemployees in which goods or services are the consideration received for the issuance of equity instruments are accounted for based on the fair value of the consideration received or the fair value of the equity instrument issued, whichever is more reliably measurable. The measurement date of the fair value of the equity instrument issued is the earlier of the date on which the counter party's performance is complete or the date on which it is probable that performance will occur.

Advertising Costs

The Company expenses all advertising costs as incurred. Advertising expense was $3,956 and $2,866 for the years ended December 31, 2017 and 2016, respectively.

Foreign Currency

The Company's foreign subsidiary, Primus Management ULC (Primus Canada) uses the local currency of its country as its functional currency. Assets and liabilities are translated into U.S. dollars at exchange rates at the balance sheet dates. Revenues, costs and expenses are translated using the average exchange rates for the period. Gains and losses resulting from the translation of our consolidated balance sheets and statements of operations are recorded as a component of accumulated other comprehensive income. Gains and losses from foreign currency transactions are recognized as foreign exchange gain (loss) in the statement of operations.

Comprehensive Income (Loss)

Comprehensive income includes all changes in the Company's equity during the period that results from transactions and other economic events other than transactions with its stockholders. For the Company, comprehensive income includes the gains or losses resulting from foreign currency translations.

Distributions to Owners

It is management's policy to distribute amounts to the Company's owners to cover their tax liability related to the earnings of the Company. "Permitted Tax Distributions," as defined in the PNC Bank, National Association Credit Agreement (2014 Credit Facility), shall be based on good faith estimates by the Company of net taxable income for the relevant period (or portion thereof) and subsequent tax distributions shall be appropriately adjusted to the extent of any excess or deficit in payments in respect of prior relevant periods or portions thereof.

Sales, Use and Other Value Added Taxes

The Company's revenue is recorded net of applicable sales, use and other value added taxes.

Recently issued accounting standards

In November, 2016, the FASB issued ASU 2016-18, Statement of Cash Flows Restricted Cash. The update requires that the statement of cash flows explain the change during the period in the total of cash, cash equivalents, and restricted cash. Entities will also be required to reconcile such totals to amounts on the balance sheet and disclose the nature of the restrictions. The update is effective for non-public business entities for fiscal years beginning after December 15, 2018. Early adoption at the original effective date is permitted. The Company is evaluating the impact of the implementation of this standard on its financial statements.

9

In February, 2016, the FASB issued ASU 2016-02, Leases. The update requires lessees to recognize lease assets and liabilities for all leases, with certain exceptions, on the balance sheets. The standard is now required to be adopted by non-public business entities in annual periods beginning on or after December 15, 2019 and must be applied on a full retrospective basis. Early adoption at the original effective date is permitted. The Company is evaluating the impact of the implementation of this standard on its financial statements.

In May 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers. The new guidance outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers and supersedes most current revenue recognition guidance, including industry-specific guidance. The core principle of the revenue model is that an entity recognizes revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The new standard requires significantly expanded disclosures about revenue contract assets and liabilities. In April 2015, the FASB issued guidance that deferred the effective date by one year. The standard is required to be adopted by non-public business entities in annual periods beginning on or after December 15, 2018, and interim periods within annual periods beginning after December 15, 2019, and may be applied on a full retrospective or modified retrospective approach. Early adoption at the original effective date is permitted. The Company is evaluating the impact of the implementation of this standard on its financial statements.

In May 2017, the FASB issued ASU 2017-09, Compensation-Stock Compensation: Scope of Modification Accounting, to provide guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in ASC 718. The amendments in the ASU are effective for fiscal years beginning after December 15, 2017, and should be applied prospectively to an award modified on or after the adoption date. The Company is currently evaluating the impact of the adoption of this guidance on its financial statements.

Note 3. Earnings per Share

Basic and diluted net income (loss) per share

Basic net income (loss) per share is calculated by dividing net income (loss) by the weighted average number of shares of common stock outstanding for the period. Diluted net income (loss) per share gives effect to all dilutive potential common shares outstanding during the period including stock options and warrants using the treasury stock method.

The following table summarizes the basic and diluted net income (loss) per share calculations:

	For the Years Ended December 31,
	2017	2016
Net income (loss)	$(85,611)	$(27,143)
Basic weighted average common shares outstanding	2,564	2,613
Effect of dilutive securities	-	-
Diluted weighted average common shares outstanding	2,564	2,626
Basic income (loss) per common share	$(33.39)	$(10.39)
Diluted income (loss) per common share	$(33.39)	$(10.34)

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Note 4. Fair Value

Fair values of assets measured at December 31, 2017 are as follows:

		Fair Value Measurements at the End of the Reporting Period Using
	Fair Value	Quoted Prices in Active Markets for Identical Assets (Level 1)	Significant Other Observable Inputs (Level 2)	Significant Unobservable Inputs (Level 3)	Total Losses
Nonrecurring fair value measurements
Intangible assets	$20,800	$-	$	$20,800	$(46,780)
Property and equipment	$-	$-	$-	$-	$(6,003)

The Company conducted a review of the carrying value of certain subscriber acquisition costs due to higher than expected churn. An independent third party was engaged to determine the fair value of the potentially impaired assets as of October 31, 2017. The Company's accounting and finance management, which report to the chief financial officer, reviewed and approved the fair value assessment.

During the Company's annual review of the carrying value of fixed assets, it was determined that certain assets were fully impaired due to the integration of quote to order functionality into an existing software platform.

The following table includes fair value measurements using significant unobservable inputs (Level 3):

	Intangible Assets	Property and Equipment	Total
Opening balance — December 31, 2016	$67,580	$6,003	$73,583
Impairment	(46,780)	(6,003)	(52,783)
Closing balance — December 31, 2017	$20,800	$-	$20,800

The following table describes the valuation techniques used to calculate fair values for assets in Level 3:

	Quantitative Information about Level 3 Fair Value Measurements
	Fair Value at 12/31/2017	Valuation Techniques	Unobservable Input	Range (Weighted Average)
Intangible assets	$ 20,800	Discounted cash flow	Discount rate	4.5%

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Note 5. Property and Equipment

Property and equipment consists of the following as of December 31:

	Estimated Life Range (years)	2017	2016
Owned Assets:
Telecommunications Equipment	5 -7	$88,031	$82,359
Leasehold Improvements	Life of Lease	10,637	14,242
Office Equipment	3 - 5	1,857	1,707
Buildings and Building Improvements	30 - 40	1,540	1,540
Furniture and Fixtures	3 — 7	5,387	6,311
Computer Software	3 — 5	32,794	49,604
Land	N/A	470	470
Automobiles	2 - 5	56	131
Construction-In-Process	N/A	3,813	2,993
Total Owned Assets		144,585	159,357
Accumulated Depreciation		(83,275)	(74,786)
Total Owned Assets, Net		61,310	84,571
Total Assets Under Capital Lease		38,123	36,643
Accumulated Depreciation	Life of Lease	(13,758)	(10,257)
Total Assets Under Capital Lease, Net		24,365	26,386
Property and Equipment, Net		$85,675	$110,957

The Company recognized an impairment related to certain assets of $6,003 that has been recognized in net income (loss) for the period. See Note 4. Fair Value.

Note 6. Leases

The Company has entered into various operating and capital leases for facilities and equipment used in its operations. Aggregate future minimum rental commitments under operating leases and maturities of capital lease obligations as of December 31, 2017 are as follows:

	Operating Lease	Capital Lease
2018	$7,155	$3,161
2019	5,498	1,691
2020	2,826	724
2021	1,147	445
2022	666	245
Thereafter	397	1,441
	$17,689	$7,707
Amounts Representing Interest		(881)
Present Value of Minimum Lease Payments		6,826
Current Portion		(3,003)
Obligations Under Capital Lease-Net of Current Portion		$3,823

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The Company had a strategic alignment starting in April 2017 that included exiting certain facilities (See Note 16. Restructuring Event). Some of these exited facilities are now under noncancelable subleases and the future minimum rentals to be received by the Company is $2,738.

Property and equipment acquired through capital leases are recorded at the present value of the future payments due under the lease agreements, discounted at rates varying from 2.00 to 8.23 percent.

Assets and accumulated amortization under capitalized leases consists of the following as of December 31:

Assets Under Capital Lease		2017	2016
Telecommunications and Office Equipment	Life of Lease	$10,850	$9,371
IRU (1)	20 Years	25,326	25,325
Computer Software	4 Years	1,947	1,947
Total Assets Under Capital Lease		38,123	36,643
Accumulated Depreciation		(13,758)	(10,257)
Total Assets Under Capital Lease, Net		$24,365	$26,386

(1) Purchase of network capacity under long-term contracts for the indefeasible right to use (11W) fiber network infrastructure owned by others.

Rental expense charged to operations was $4,616 and $6,142 for the years ended December 31, 2017 and 2016, respectively.

Note 7. Intangible Assets

Intangible assets and accumulated amortization as follows as of December 31:

	2017	2016
Subscriber Acquisition Costs	$107,351	$201,346
Network Transition Costs	50,939	37,557
Tradenames and Trademarks	13,146	13,146
Noncompete Agreement	3,000	3,000
Installation Costs	25,658	17,066
Commissions	44,609	30,934
Total Intangible Assets	244,703	303,049
Accumulated Amortization	(129,344)	(125,379)
Intangible Assets, Net	$115,359	$177,670

13

Amortization expense was $52,605 and $40,888 for the years ended December 31, 2017, and 2016, respectively. The total residual value of certain intangible assets acquired through customer and company acquisitions are $5,786 as of December 31, 2017 and 2016.

The Company recognized an impairment related to certain subscriber acquisition of $46,780 that has been recognized in net income (loss) for the period. See Note 4. Fair Value.

Estimated future amortization expense for intangible assets owned as of December 31, 2017 is as follows:

Year	Amount
2018	$34,840
2019	24,822
2020	15,524
2021	10,366
2022	9,616
Thereafter	14,405
Total	$109,573

Note 8. Accrued Liabilities

The Company's other accrued liabilities consists of the following as of December 31:

	2017	2016
Accrued other compensation and benefits	$2,462	$4,575
Accrued bonus	10,942	10,442
Accrued taxes	169	4,224
Accrued interest	8,326	7,676
Accrued facility restructuring liability	3,131
Accrued legal settlements	13,360	19,500
Accrued professional fees	1,389	1,717
Deferred tax liability	2,934	2,596
Other accrued expenses	4,402	11,228
Current and non-current other accrued liabilities	47,115	61,958
Non-current portion of deferred taxes	(2,934)	(2,596)
Non-current portion of accrued legal settlements	(8,520)	(12,360)
Non-current other	(1,393)	(2,859)
	(12,847)	(17,815)
Current portion of other accrued liabilities	$34,268	$44,143

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Note 9. Long-Term Debt

The Company's long-term debt consists of the following as of December 31:

	2017	2016
Term Loan Payable	$401,608 $	414,483
Revolver Loan Payable	45,000	40,000
Promissory Notes (1)	6,774	6,000
Notes Payable (1)	500	500
Stock Repurchase Agreement (2)	13,700	13,700
Deferred Financing, Net	(11,683)	(12,687)
Debt Origination Discounts (3)	(4,963)	(5,585)
	450,936	456,411
Current Maturities	(30,000)	(26,500)
Total Long-Term Debt	$420,936	429,911

1.

See Note 15. Related Party Transactions for discussion of the subordinated promissory notes and note payable.

2.

As it is the intent for the repurchased shares to be retired, the Company has elected to account for the shares repurchased under the constructive retirement method. For shares repurchased in excess of par, the Company allocated the excess value to accumulated deficit

3.

Interest expense as a result of the amortization of debt origination discounts was $1,822 and $1,717 for the years ended December 31, 2017 and 2016, respectively.

On July 18, 2014, the Company refinanced its existing debt under a Term Loan Payable (2014 Credit Facility) arrangement totaling $450,000 with PNC Bank, N.A., as Administrative Agent. The arrangement also includes $50,000 made available under the Revolver Loan Payable. The Company capitalized the costs associated with issuing the debt of $13,770. The debt was issued at a discount of $9,450. The deferred financing and discount are recognized as interest expense throughout the term of the loan.

On October 28, 2016, the Company amended the 2014 Credit Facility. The Company capitalized the costs associated with the amendment of $4,289. The amended 2014 Credit Facility is due in quarterly installments of $2,800 through December 31 2016, then $5,625 per quarter until June 30, 2020. The amended 2014 Credit Facility matures with the remainder due on July 18th 2020. The interest on the amended 2014 Credit Facility is Libor plus 7.25% for the term loan and Libor plus 6.75% for the revolver loan payable.

Under the revolver loan payable the Company is required to pay a commitment fee for unused commitments at a per annum rate of 0.50%. As of December 31, 2017 and 2016, respectively, $4,791 and $9,741 of the $50,000 Revolver Loan Payable was available due to reductions of $209 and $259 for outstanding letters of credit that collateralize certain of our obligations to third party vendors.

On May 1, 2016, the Company entered into an installment purchase agreement to repurchase 147 shares of common stock from a former employee, valued at $13,700. The installments due are as follows: $1,000 on December 31, 2016, $1,500 on May 1, 2017, $1,000 on December 31, 2017, $3,000 on May 1, 2018, and $7,200 on May 1, 2019. Per the agreement, should the payment of any installment conflict with a covenant in any material credit agreement of the Company, the installment will be delayed. The sum delayed will accrete at a rate of 4% per year. As of December 31, 2017, no payments have been made due to a material impact to the amended 2014 Credit Facility, resulting in $80 of interest.

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On April 12, 2017, the Company entered into a second amendment to the 2014 Credit Facility. The Company was able to secure an additional $10,000 to the term loan from its primary lender Halcion. Additionally, there was a $5,000 commitment from Company ownership if the Company dropped below $10,000 in liquidity. The second amended 2014 Credit Facility is due in quarterly installments of $125 per quarter until June 30, 2020. The additional term loan matures with the remainder due on July 18, 2020. The Company capitalized the costs associated with the amendment of $4,675.

The aggregate scheduled maturities of long-term debt as of December 31, 2017 is as follows:

Year	Amount
2018	$30,000
2019	30,200
2020	407,382
2021
2022	-
Thereafter	-
Total	$467,582

The credit agreement is secured by all assets of the Company and its subsidiary.

Note 10. Commitments and Contingencies

Sales Agents' Agreements

The Company's marketing strategies focus on providing local services through a combination of its agent channel and its direct and internal sales channel.

The remaining agents may or may not bring an existing base of accounts and perform a traditional agent role. They will not be the end users' points of contact; all contact for additions/changes and service/maintenance will be handled directly by the Company.

The total commissions paid through the Company's agents and internal sales channels for the years ended December 31, 2017 and 2016 was $15,168 and $17,258, respectively. These commissions are classified as selling, general and administrative expenses and solely represent commissions paid in respect to agreements with third party sales agents. These commissions paid capture fees to the agent related to selling and account retention activity.

Contingent Receivables

The Company has filed for refunds from the Universal Service Administrative Company (USAC) and has recorded a receivable of $3,616 in the consolidated balance sheets for the periods ending December 31, 2017 and 2016. The refunds are from adjustments made to FCC Form 499-A. The actual amount received will be dependent on the outcome of the USAC audit of the Company's filings.

Legal Proceedings

We are involved in legal proceedings arising in the ordinary course of business.

16

On November 20, 2008, Telecom Decision Makers, Inc. (TDM) filed a lawsuit against Access Integrated Networks, Inc. and Birch in the United States District Court, Western District of Kentucky at Louisville. TDM was seeking a Declaratory Judgment from the Court, claiming that the "Confidential Independent Sales Representative Agreement for Voice Products and Services" in effect with Navigator Telecommunications (Navigator), was automatically assigned to Birch Communications, Inc. in their purchase of a portion of Navigator's assets on November 18, 2008. TDM claimed that Navigator's agreement to pay certain commissions continued since they did not exercise a buy-out option, and that this obligation is now binding on Birch. At a pretrial conference on January 3, 2014, the Court granted the Company's motion to limit the trial to the single issue raised in the Complaint, specifically whether the transaction between Navigator and Birch caused a "change of control", within the language of the TDM/Navigator agreement. The jury's verdict indicated that the transaction did cause a change of control. On or about May 19, 2014 the Company submitted a renewed motion for judgment asking the declaratory judgment be set aside, and that motion was denied. No party filed a notice of appeal.

Instead, on or about August 28, 2014 the Company was named as the defendant in a second TDM lawsuit. This matter was removed to federal court by the Company. In the Second TDM Proceeding, TDM is seeking damages for breach of contract, unjust enrichment and other claims. These claims arise from the same contract that prompted the first TDM Proceeding. The Company submitted a motion to dismiss, urging that the new lawsuit impermissibly seeks to re-open the first TDM proceeding, that TDM's claims are barred by finality doctrines and applicable statutes of limitations. TDM appealed to the Sixth Circuit of Appeals in November 2015. An estimate of $3,600 was accrued as of December 31, 2016. The final arbitration awarded to TDM in May 2017 was $3,647 plus attorney's fees awarded of $382. The additional $429 was accrued in 2017. As of December 31, 2017, the amount awarded in arbitration has been paid in full.

On October 7, 2015, Abante Rooter and Plumbing, Inc. (Abante) filed a lawsuit against Birch Communications, Inc. in the United States Georgia Northern District of Atlanta. Abante claimed violations of the Telephone Consumer

Protection Act (TCPA) by Birch Communications, Inc. and/or certain of its affiliates as a result of alleged unauthorized contact by third party telemarketing services engaged by Birch to individuals' cellular telephones. On or about July 6, 2016, Abante made a first settlement demand in the Action for $26 million. Mediation was conducted and was unsuccessful. Abante filed for certification as a class action. Birch filed a Motion attacking the Abante's expert witness, classification of TCPA violation and class description and Birch filed a Motion for Summary Judgment. In May 2017, the Company reached a tentative agreement with Abante, subject to approval by the Court, to settle the case for $12,000 payable in equal quarterly payments over three years. Preliminary approval to the agreement was granted by Preliminary Approval Order entered June 8, 2017. Following notice to class members, briefing, and a fairness hearing held on October 31, 2017, the Final Settlement Order was entered on December 14, 2017. The $12,000 settlement was accrued as of December 31, 2016. As of December 31, 2017, $10,000 is accrued and unpaid.

In 2015, the Federal Communications Commissions (FCC) launched an investigation of the Company after reviewing customer complaints. On December 29, 2016, the Company reached a settlement with the FCC to pay a $4,200 fine and $1,900 in consumer refunds. As of December 31, 2017, all customer credits have been issued and $3,360 is accrued and unpaid.

Accruals for litigation loss contingencies are recorded when it is probable that a liability has been incurred and the amount of loss can be reasonably estimated.

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Note 11. Benefit Plans

The Company's 401(k) plan covers all employees who have attained 18 years of age and completed 90 days of service. Participants may contribute up to the maximum determined by the federal government each year. The Company's match is discretionary. The Company has elected not to partially match employee contributions in 2016 and 2017.

Due to the acquisition of Primus (See Note 14. Prior Year Acquisitions) employees in Canada are covered under a Registered Retirement Savings Plan. Eligible employees may make contributions up to their personal eligible contribution limit under the Canadian Income Tax Act. There is no employer contribution component.

Note 12. Income Taxes

The Company, with the consent of its stockholders, has elected under the Internal Revenue Code to be an S corporation effective January 1, 2006. In lieu of corporate income taxes, the stockholders of an S corporation are taxed on their proportionate share of the Company's taxable income. Therefore, no provision or liability for federal income taxes has been included in the consolidated financial statements. However, the Company operates in a few states that do not recognize S corporation status. The Company recognizes state tax provisions as amounts are paid to the tax jurisdictions.

Cbeyond files separate corporate tax returns which include sales to affiliated companies. No immediate tax expense is recognized in the consolidated statements other than the tax benefit from the release of the valuation allowance on its net operating loss. Cbeyond has deferred tax assets, which have been fully reserved due to the uncertainty of their use. Cbeyond's net deferred tax liability of $2,934 and $2,596 as of December 31, 2017 and 2016, respectively, are the result of timing differences related to goodwill. The Company estimates that Cbeyond's net operating losses will expire prior to goodwill being written off for book purposes. At December 31, 2017, Cbeyond has federal net operating loss carryforwards of approximately $165,654 and state net operating loss carryforwards of $779, which begin expiring in 2021.

Primus Holdings Inc. and Primus Management ULC are taxable as corporations in Canada. Primus has net deferred tax assets of $256 and $240 as of December 31, 2017 and 2016, respectively. The deferred assets are primarily attributable to different cost recovery methods for fixed assets and customer lists.

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The following table provides information regarding our deferred tax assets and liabilities as of December 31:

Deferred tax assets:	2017	2016
Net operating loss (federal and state)	$35,294	$44,254
Deferred rent	959	2,069
Share-based compensation expense	2,659	4,432
Voice regulated revenue transfer to Birch	12,600	21,000
Other	297	2,463
Gross deferred tax assets	51,809	74,218
Deferred tax liabilities:
Allowance for doubtful accounts	(766)	(2,392)
Depreciation	(4,566)	(10,104)
Intangible assets	(7,376)	1,722
Goodwill	(2,934)	(2,596)
Gross deferred tax liabilities	(15,642)	(13,370)
Net deferred tax assets	36,167	60,848
Valuation allowance	(33,233)	(63,444)
Net deferred tax liabilities	2,934	2,596
Less non-current net deferred tax liabilities	2,934	2,596
Current net deferred tax liabilities	$-	$-
Primus net deferred tax assets
Primus net deferred tax assets	$256	$256

On December 22, 2017, the President of the United States signed into law the Tax Cuts and Jobs Act tax reform legislation. The legislation makes significant changes in the U.S. tax law including a reduction in the corporate tax rates, changes to net operating loss carryforwards and carrybacks, and a repeal of the corporate alternative minimum tax. The legislation reduced the U.S. corporate tax rate from the current rate of 35% to 21%. As a result of the enacted law, Cboyond was required to revalue its net deferred tax asset at the rate in effect during their scheduled reversal. This revaluation resulted in deferred tax expense which was immediately offset by a reduction in the valuation allowance.

The 2016, 2015 and 2014 Consolidated Birch and Cbeyond returns have been filed and are subject to examination by the Internal Revenue Service for three years from filing. The 2016 Primus returns have not been filed and are in process, however, estimated tax payments have been made and anticipated interest and penalties of $316 have been accrued. The Company has accrued $2,535 for Primus' 2017 income tax liability, and an additional $172 related to anticipated penalties and interest.

Income tax expense for the years ended December 31, 2017 and 2016 was $2,543 and $1,847, respectively.

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For financial reporting purposes, income before income (loss) taxes includes the following components:

	For the Years Ended
	December 31,
	2017	2016
United States	$(92,055)	$(38,724)
Foreign	8,987	13,428
Total	$(83,068)	$(25,296)

Foreign withholding taxes have not been recognized on the 2017 earnings of the non-U.S. subsidiary. Generally, such amounts become subject to U.S taxation upon remittance of the dividends and certain other circumstances.

Note 13. Stock Incentive Plan

The Company sponsors a stock incentive plan (the Plan) that provides for the granting of stock options to senior and general management, to encourage continued employment and to provide recognition for services that have contributed or will contribute to the success of the Company. Under the Plan, the Company may grant options to select employees and counsel to acquire shares of the Company's common stock at the fair value at the date of grant. Options are generally granted at a price (established by the board of directors based on third-party valuation analysis) equal to the most recent valuation analysis price as of the option grant date. The number of shares and the exercise schedules are determined at the sole discretion of the Company. The Company, at December 31, 2017, had no shares outstanding or exercisable under the stock option plan.

A summary status of the options is presented as follows as of December 31:

	2017		2016
	Shares	Weighted Average Exercise Price	Shares	Weighted Average Exercise Price
Outstanding, Beginning	37	$22.58	65	$32.19
Granted			-	-
Exercised			-	-
Forfeited	(37)	22.58	(28)	44.68
Canceled
Outstanding, Ending	-		$37	$22.58
Options Exercisable	-		$37	$22.58

The Company recorded share-based compensation expense of $196 for the year ended December 31, 2016. No expense was recognized in the year ended December 31, 2017.

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Note 14. Prior Year Acquisitions

Primus Management ULC and its affiliates

On April 1, 2016, the Company completed the purchase of select assets and the customers of Primus and its affiliates, (Primus). A cash payment of $29,815 was made to affect this transaction.

The major classes of assets acquired and liabilities assumed at the acquisition date are as follows:

Real property	$1,354
Personal property	277
Customer relationships	30,500
Inventories and other assets	9,058
Debt-free current liabilities	(11,374)
Fair value of identifiable net assets	$29,815

The goodwill arising on the acquisition is as follows:
Fair value of consideration transferred	$29,815
Fair value of identifiable net assets	(29,815)
Goodwill	$

The fair value of trade receivables on April 1, 2016, was $7,958 which equaled the gross amount receivable. The customer relationship intangible is amortized over 96 months.

The results of operations of Primus have been included in our consolidated results of operations from the acquisition date. For the years ended December 31, 2017 and 2016, respectively, the Company's results includes $96,930 and $77,791 of revenue and $6,880 and $10,604 of net income from this acquisition.

The following represents the Company's December 31, 2016 pro forma consolidated revenue and net loss as if Primus had been acquired on January 1, 2016 and had been included in the Company's consolidated results for the entire year. These amounts include pre-acquisition results of Primus.

	2016
	(unaudited)
Revenue	$606,550
Net Loss	$(28,755)

The Company recognized $1,196 of transaction costs in 2016 related to the acquisition and the charges were reported in selling, general and administrative expenses in the consolidated statement of operations and comprehensive income.

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Note 15. Related Party Transactions

BirCan Holdings, LLC Transaction

On October 28, 2016, the owners of BCHI transferred their membership interests of BirCan Holdings, LLC, in exchange for subordinated notes to the shareholders of $6,000. The interest on the subordinated notes is 12% of the unpaid balance. As of December 31, 2017, the Company has accrued $774 of interest as additional debt per the terms of the agreement. The Company also incurred a $500 note payable in the exchange. Real property valued at $3,901 and personal property valued at $2,630 were transferred to the Company.

Note 16. Restructuring Event

The Company had a strategic alignment starting in April 2017 that included a reduction in headcount, facility costs and other operating costs. As of December 31, 2017, restructuring costs totaled $7,502.

The following table summarizes changes to the accrued liability associated with the restructuring as of December 31, 2017:

	Employee Costs (1)	Facility Exit Costs (2)	Other Costs	Total
Expenses	$2,184	$$5,032	$286	$7,502
Payments	(2,077)	(1,901)	(262)	(4,240)
Accrued Liability	$107	$3,131	$24	$3,262

(1)

The remaining employee-related liability will be paid within 12 months and approximates fair value due to the short discount period.

(2)

These charges represent the present value of expected lease payments and direct costs to obtain a sublease, reduced by estimated sublease rental income. The timing and amount of estimated cash flows will continue to be evaluated each reporting period.

Note 17. Unaudited Quarterly Financial Data

2016	First Quarter	Second Quarter	Third Quarter	Fourth Quarter
Revenue	$138,677	$162,537	$156,229	$146,136
Gross profit (exclusive of depreciation and amortization	66,862	75,059	71,875	61,376
Depreciation and amortization	14,497	18,179	18,423	18,999
Operating income (loss)	15,628	12,424	12,915	(14,488)
Income (loss) before income taxes	5,711	2,285	2,776	(36,068)
Net income (loss)	5,456	1,442	2,575	(36,616)
Net income (loss) per common share-basic	2.01	0.56	1.00	(14.28)
Net income (loss) per common share-diluted	1.98	0.56	1.00	(14.28)

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2017	First Quarter	Second Quarter	Third Quarter	Fourth Quarter
Revenue	$141,834	$141,663	$137,075	$129,752
Gross profit (exclusive of depreciation and amortization	61,565	61,834	61,117	57,849
Depreciation and amortization	19,206	21,307	20,983	22,297
Impairment of tangible assets	-	-	-	6,003
Impairment of intangible assets	-	-	-	46,780
Operating (loss) income	2,094	3,886	6,811	(46,204)
Income (loss) before income taxes	(9,041)	(9,488)	(6,050)	(58,489)
Net income (loss)	(10,439)	(9,444)	(6,704)	(59,024)
Net income (loss) per common share-basic	(4.07)	(3.68)	(2.61)	(23.02)
Net income (loss) per common share-diluted	(4.07)	(3.68)	(2.61)	(23.02)

Note 18. Fusion Transaction Announcement

Fusion Telecommunications International, Inc. (Fusion) filed an announcement on August 28, 2017 to acquire Birch's Cloud and Business Services business, including its customers, operations and infrastructure. It is currently estimated that approximately 73 million common shares of Fusion will be issued in connection with this transaction, valued at $3.85 per share. Fusion will assume Birch's existing debt of approximately $458 million, which is expected to be refinanced along with Fusion's existing debt.

Note 19. Subsequent Event

On March 1, 2018, Birch entered into a non-binding agreement to negotiate and sell the Company's Tempo Telecom LLC (Tempo) wireless subscribers with a transaction close date no later than March 30, 2018. Tempo provides prepaid and lifeline voice and data services through prepaid calling cards, lifeline wireless plans and home phone service.

As of December 31, 2017, total assets for Tempo are $4,895 and wireless revenue for the year ended December 31, 2017 was $11,450. As of March 5, 2018, the purchase price is expected to range from $3,000 to $3,600, depending on the number of active subscribers at the time of closing. Any gain or loss resulting from this transaction is expected to be immaterial to the financial statements.

23

EX-99.5

SUMMARY UNAUDITED PRO FORMA CONDENSED COMBINED

  FINANCIAL INFORMATION

The following unaudited pro forma condensed combined balance sheet as of December 31, 2017 and the unaudited pro forma condensed combined statements of operations for the year ended December 31, 2016 are derived from the historical consolidated financial statements of Fusion Telecommunications International, Inc. (n/k/a Fusion Connect, Inc.)(“Fusion”) after giving effect to the merger transaction with Birch Communications Holdings, Inc. (“BCHI”) and after giving effect to the other transactions contemplated by the Agreement and Plan of Merger, dated as of August 26, 2017, as amended (the “Merger Agreement”), including the issuance of the Merger Shares, the Consumer Spin-off and the Carrier Spin-off (as each such term is defined in the Merger Agreement), and related financing transactions.

The unaudited pro forma condensed combined statements of operations for the year ended December 31, 2017 give pro forma effect to the business combination and related financing transactions as if it had occurred on January 1, 2017. The unaudited pro forma condensed combined balance sheet as of December 31, 2017 assumes that the business combination and the related financing transactions had occured on December 31, 2017.

The unaudited pro forma condensed combined statement of operations for the year ended December 31, 2017 are derived from Fusion's audited consolidated statement of operations and the audited consolidated statement of operations of BCHI, in each case, for the year ended December 31, 2017. In accordance with the terms of the Merger Agreement, the unaudited pro forma combined statements of operations for the year ended December 31, 2017 give effect to the Consumer Spin-off and the Carrier Spin-off.

The unaudited pro forma condensed financial information has been prepared using the acquisition method of accounting under the provisions of Accounting Standards Codification (referred to as ASC) 805, “Business Combinations.” As the number of shares of Fusion common stock issued to the former shareholders of BCHI at closing resulted in a change in control of Fusion, the transaction has been accounted for as a reverse acquisition and BCHI has been treated as the acquirer in the business combination for accounting purposes. The acquisition accounting is based upon certain valuation and other estimates. The pro forma adjustments have been made solely for the purpose of providing unaudited pro forma condensed financial statements prepared in accordance with the rules and regulations of the Securities and Exchange Commission.

The following unaudited pro forma financial statements are based on, and should be read in conjunction with:

●

Fusion’s audited consolidated financial statements and the related notes thereto for the year ended December 31, 2017 included in the Company’s Annual Report on Form 10-K filed on March 22, 2018.

●

BCHI’s audited consolidated financial statements and the related notes thereto as of and for the year ended December 31, 2017 filed with this Current Report on Form 8-K.

The pro forma financial statements give effect to the following transactions:

●

The merger of BCHI with and into a wholly-owned subsidiary of Fusion, with the merger subsidiary being the survivor of that merger.

●

The Consumer Spin-off and the Carrier Spin-off.

●

The refinancing of all of the outstanding indebtedness of Fusion and BCHI through new first lien and second lien term loans totaling $650 million with an average interest rate of 9.77%

●

The sale by Fusion at the closing of the merger of $5 million of shares of its common stock and $15 million of shares of its new series D preferred stock.

The pro forma adjustments are based on the information currently available and the assumptions and estimates underlying the pro forma adjustments are described in the accompanying notes. The unaudited pro forma financial statements are for informational purposes only, are not indications of future performance, and should not be considered indicative of actual results that would have been achieved had the forgoing transactions actually been consummated on the dates or at the beginning of the periods presented.

Fusion Telecommunications International, Inc.

Unaudited Pro Forma Condensed Combined Balance Sheet

As of December 31, 2017

(in thousands, except share data)

			Pro Forma Adjustments
	Fusion	Birch	New Debt Financing		Repayment of existing indebtedness		Carrier Services Spin-Off	Consumer Spin-Off		Additional Equity		Merger Adjustments		Asset Impairment		Pro Forma Combined
ASSETS
Current assets:
Cash and cash equivalents	$ 2,530	$ 5,757	$ 596,003	(a)	$ (547,463)	(e,f)	$ (58)	$ (256)		19,158	(h)	$ -				$ 75,671
Accounts receivable, net of allowance for doubtful accounts	12,963	34,921	-		-		(2,228)	(8,703)								36,953
Inventory		1,179						(37)								1,142
Prepaid expenses and other current assets	2,091	10,054	-		-		(482)	(1,142)								10,521
Accounts receivable - employees/stockholders	-	920	-		(920)		-	-				-		-		-
Total current assets	17,584	52,831	596,003		(548,383)		(2,768)	(10,138)	#	19,158		-		-		124,287
Property and equipment, net	12,857	85,675	-		-		(18)	(1,213)				4,029	(c,d)	(1,297)	(g)	100,033
Other assets:
Security deposits	616	-	-		-		(3)	-				-		-		613
Restricted cash	27	-	-		-		-	-				-		-		27
Goodwill	34,774	93,356	-		-		-	(3,548)				23,327	(c)			147,909
Intangible assets, net	56,156	115,359	-		-		-	(23,856)				35,954	(c,d)	(5,854)	(i)	177,759
Other assets	44	877	-		-		-	(157)				-		-		764
Total other assets	91,617	209,592	-		-		(3)	(27,561)		-		59,281		(5,854)		327,073
TOTAL ASSETS	$ 122,058	$ 348,098	$ 596,003		$ (548,383)		$ (2,789)	$ (38,912)		$ 19,158		$ 63,310		$ (7,151)		$ 551,392
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt	6,500	30,000	27,750	(a)	(36,500)	(e)	-	-				-				27,750
Obligations under asset purchase agreements - current portion	228	-	-		-		-	-				-				228
Equipment financing obligation	1,207	3,003	-		-		-	-								4,210
Accounts payable and accrued expenses	25,089	94,100	-		-		(2,993)	(7,820)				-				108,376
Deferred Revenue	-	12,601	-		-		-	(2,318)				-		-		10,283
Line of credit	-	-	-		-		-	-				-		-		-
Total Current liabilities	33,024	139,704	27,750		(36,500)		(2,993)	(10,138)		-		-		-		150,847
Long-term liabilities:
Notes payable - non-related parties, net of discount	31,953	-	-		(31,953)	(e)	-	-				-		-		-
Long-term debt		420,936	-		(417,670)	(e)	-	-								3,266
Term loan	54,223	-	568,253	(a)	(54,223)	(e)	-	-				-		-		568,253
Indebtedness under revolving credit facility	1,500	-			(1,500)		-	-						-		-
Obligations under asset purchase agreements	222	-	-		-		-	-				-		-		222
Other non-current liabilities	-	12,847	-		-		-	(352)				-				12,495
Notes payable - related parties	928	-	-		(928)	(e)	-	-				-				-
Equipment financing obligations	591	3,823	-		-		-	-				-				4,414
Derivative liabilities	873	-	-		-		-	-				-		-		873
Total liabilities	123,314	577,310	596,003		(542,774)		(2,993)	(10,490)				-		-		740,370
Total stockholders' equity	(1,256)	(229,212)	-	(a)	(5,609)	(e,f)	204	(28,421)		19,158	(h)	63,310	(b)	(7,151)	(g)	(188,977)
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY	$ 122,058	$ 348,098	$ 596,003		$ (548,383)		$ (2,789)	$ (38,912)		$ 19,158		$ 63,310		$ (7,151)		$ 551,392

(a)	Record estimated net proceeds from anticipated financing:
	Net proceeds comprised of the following:						-
	Term Loan	$ 650,000
	Facility fee	(53,998)
		-
		$ 596,003
	The proposed term loan will include $555M First Lien, an $85M Second Lien and a $10M subordinated Seller Note. It will also include a $40M revolver (undrawn at close). The term loan will bear a blended interest at LIBOR rate plus margin for a total of 9.7% per annum payable according to the terms of the payment schedule.
(b)	To adjust for the fair value of Fusion shares issued in the transaction, as adjusted for the Fusion stockholders' deficit at the date of the transaction, as follows:
	Fair value of Fusion shares acquired (post-split) - 16,602,175 shares (including shares issuable upon conversion of preferred stock and in-the-money warrants)
		Shares O/S at 12/31/17		14,980,755	Shares O/S	14,980,755	1,363,986
		In-the-money stock warrants at 12/31/17		257,433
		Share Issuable upon conversion of PS at 12/31/17		1,363,986
		Total		16,602,175
		Stock price at 12/31/17	$ 3.75	$ 62,258
	Shares outstanding represent a number of shares issued and outstanding at 12/31/17. In-the-money warrants represents warrants with an exercise price of $3.75 or less at 12/31/17. Shares issuable upon conversion of preferred stock as of 12/31/17 were based upon a conversion calculation as listed in the preferred stock agreements.
(c)	To assign fair values to Fusion assets acquired and record goodwill                    49,806,524
	Fair value of consideration effectively transferred	$ 62,258
	Assets (less goodwill) acquired	124,478		49,806,524
	Liabilities assumed	(120,321)
	Net assets acquired	4,157
	Goodwill	$ 58,101
	Fair value of consideration was calculated by multiplying stock price of $3.75 per share by a total of 16,602,175 shares (post-split) at 12/31/17. The number of shares included shares outstanding, in-the money stock warrants and shares issuable upon conversion of preferred stock as of 12/31/17. Assets acquired excluded carrier services assets and included a step up in value based upon a third party valuation. Liability acquired excluded carrier services liabilities.
(d)	Reflects adjustments to recognize the estimated fair value of Fusion assets as follows:
	Customer relationships	53,400
	Trademark	34,000
	Developed technology	4,710
	Property and equipment	16,886
	Fusion engaged a third party to complete the analysis of purchase consideration and fair value of assets acquired. The analysis has been completed in accordance with ASC 805, business combinations, to arrive at estimated fair value of Fusion assets.
(e)	Retire existing Fusion and Birch debt, including write-off of unamortized debt discount of $19.3M. Fusion debt consists of $62M of term loan, $34M of subordinated note and $1.5M of a revolver. It also includes approximately $1M of related party debt. Fusions portion of debt discount is $2.7M. Birch debt consists of $423M of term loan and $45M revolver. The Birch debt discount is $16.7M. The remaining $3.3M of related party notes will be paid over three quarters.
(f)	Denotes payment of stock repurchase obligation by Birch shareholders in the amount of $13.7 million. In 2016, Birch entered into an installment purchase agreement to repurchase 148 shares of common stock from a former employee for $13.7M. Installments were scheduled as follows: $1M on 12/31/16, $1.5M on 5/1/17,$1M on 12/31/17, $3M on 5/1/18, and $7.2M on 5/1/19. No payment had been made due to covenant restrictions. Unpaid balance will accrete interest at 4% per year.
(g)	To record impairment of a Fusion back-office platform which will no longer be in use post acquisition.
(h)	Represents additional equity that consist of (1) $5M of common stock and (2) $15M of preferred series D stock, net of fees which amounted to $542K
(I)	Reflects accelerated Amorization of trade names, Birch Communications $1.2M and Cbeyond $4.6M, for BCHI that will be phased out over the balance of the year.

Fusion Telecommunications International, Inc.

Unaudited Pro Forma Condensed Combined Statement of Operations

For the Year Ended December 31, 2017

(in thousands, except share and per share data)

				Pro Forma Adjustments
		Fusion	Birch	Refinancing of Existing Indebtedness			Carrier Services Spin-Off	Consumer Spin-Off	Merger Adjustments		Asset Impairment		Pro Forma Combined
Revenues		$ 150,531	$ 550,324	$ -		$ -	$ (33,189)	$ (100,357)	$ -		$ -		$ 567,309
Cost of revenues (exclusive of depreciation and amortization shown separately below)		83,033	307,959	-		-	(31,982)	(62,372)	-				296,638
Gross Profit		67,497	242,365	-		-	(1,207)	(37,985)	-				270,671
Depreciation and amortization		14,521	83,793				(341)	(13,582)	5,942	(e)	5,371	(g)	95,704
Impairment charges		641	52,783	-		-		(1,328)	-		1,780	(g)	53,876
Restructuring charges			-										-
Selling, general and administration expenses, including stock-based compensation		57,724	139,595				(2,315)	(29,857)	14,725	(f)			179,872
Total operating expenses		72,886	276,171	-		-	(2,656)	(44,767)	20,667		7,151		329,452
Operating loss		(5,389)	(33,806)	-		-	1,449	6,782	(20,667)		(7,151)		(58,781)
Other (expenses) income:
Interest expense		(8,649)	(50,920)	(14,344)	(b)		-						(73,913)
Gain on change in fair value of derivative liability		(909)	-	-		-	-	-	-				(909)
Loss on extinguishment of debt		-	-	(21,771)	(a)	-	-	-	-				(21,771)
Loss on extinguishment of property and equipment		(312)											(312)
Gain on change in fair value of contingent liability		1,012											1,012
Other income, net of other expenses		209	1,658				-	(9)					1,858
Total other (expenses) income		(8,649)	(49,262)	(36,115)		-	-	(6)	-		-		(94,035)
(Loss) income before income taxes		(14,038)	(83,068)	(36,115)		-	1,449	6,776	(20,667)		(7,151)		(152,817)
Benefit (provision) for income taxes		(62)	(2,543)				-	96					(2,509)
Net (loss) income		(14,100)	(85,611)	(36,115)		-	1,449	6,872	(20,667)		(7,151)		(155,326)
	Less: Net income attributable to noncontrolling interest	86					(86)						-
Net loss attributable to Fusion Telecommunications International, Inc.		(14,014)	(85,611)	(36,115)			1,363	6,872	(20,667)		(7,151)		(155,326)
Preferred stock dividends in arrears		(1,838)	-	-		-	-	-	1,838	(c)			-
Net (loss) income attributable to common stockholders		$ (15,852)	$ (85,611)	$ (36,115)		$ -	$ 1,363	$ 6,872	$ (18,829)		$ (7,151)		$ (155,326)
Basic and diluted loss per common share		$ (0.72)											$ (2.33)
Weighted average common shares outstanding:
Basic and diluted		21,969,601							45,391,480	(d)			67,361,081

(a)	Denotes redemption premium and write off of unamortized debt discount for indebtedness being refinanced
(b)	Increase in interest rate based on refinancing, including discount amortization resulting from facility fee and deferred loan costs of $54 million related to the refinancing
(c)	Remove preferred dividends as all preferred stock is converted prior to merger
(d)	Shares (post-split) issued to Birch in merger transaction include 14,980,755 of Fusion shares issued and outstanding, 257,433 of Fusion in-the-money warrants, 1,363,986 of Fusion shares issuable upon conversion of preferred stock and 49,806,524 of new shares to be issued as part of the transaction, and additioanl shares of 952,382 related to the additional equity.
(e)	To record amortization expense for additional $36 million of intangibles acquired based on a 7 year useful life and the increased book basis of property and equipment of $4.0 million based on a 5 year expected life.
(f)	To record merger-related transaction fees of $14.7M consisting of bonus awards, and other deal related expenses.
(g)	To record impairment of a Fusion back-office platform which will no longer be in use post acquisition. Reflects accelerated Amorization of trade names, Birch Communications $1.2M and Cbeyond $4.6M, for BCHI that will be phased out over the balance of the year.