Exhibit 10.1.6 


 


EXECUTION VERSION


 





INTERCREDITOR
AND SUBORDINATION AGREEMENT


 


INTERCREDITOR AND SUBORDINATION
AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated
as of November 14, 2016, by and among MARVIN ROSEN, an individual (“Subordinated Lender”), FUSION TELECOMMUNICATIONS
INTERNATIONAL, INC., a Delaware corporation (“Issuer”), each other Credit Party party hereto and EAST WEST BANK,
in its capacity as administrative agent (“Administrative Agent”) pursuant to the Credit Agreement (as hereinafter
defined).


 


WHEREAS, Fusion NBS
Acquisition Corp., a Delaware corporation (“Borrower”), Administrative Agent and the Lenders party thereto (together
with the lenders from time to time party thereto, the “Lenders”) have entered into that certain Credit Agreement,
dated as of the date hereof (as amended, restated, modified or supplemented from time to time, including, without limitation, amendments,
modifications, supplements and restatements thereof giving effect to increases, renewals, extensions, refundings, deferrals, restructurings,
replacements or refinancings of, or additions to, the arrangements provided for therein, the “Credit Agreement”),
pursuant to which, among other things, Administrative Agent and Lenders have agreed, subject to the terms and conditions set forth
in the Credit Agreement, to extend certain credit facilities to the Borrower;


 


WHEREAS, in accordance
with the terms of the Credit Agreement and the other Senior Loan Documents (as hereinafter defined), Issuer and the other Credit
Parties will grant to Administrative Agent and the Lenders a first priority lien on, security interest in and right of set-off
against any and all right, title and interest of Issuer in and to certain Collateral; and


 


WHEREAS, as an inducement
to and as one of the conditions precedent to the agreement of Administrative Agent and Lender to consummate the transactions contemplated
by the Credit Agreement and the other Senior Loan Documents, Administrative Agent and Lenders require the execution and delivery
of this Agreement by Subordinated Lender and Credit Parties.


 


NOW THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:


 


1.          Definitions.


 


(a)          Capitalized
terms used but not defined herein (including, without limitation, in the introductory paragraph and recitals above) shall have
the meanings given such terms in the Credit Agreement.


 


(b)          The
following terms shall have the following meanings:


 


“Administrative
Agent” has the meaning specified in the introductory paragraph to this Agreement.


 


“Blockage
Period” has the meaning specified in Section 2(b) of this Agreement.


 




     


     


    

 


“Collateral”
means, collectively, the “Collateral” (as such term is defined in the Credit Agreement) and any and all other
property from time to time subject to Liens or security interests to secure payment or performance of the Senior Obligations.


 


“Credit Agreement”
has the meaning specified in the recitals to this Agreement.


 


“Credit Parties”
means, collectively, Issuer, Borrower, NBS, each other Subsidiary of Issuer and any other Person that at any time is or becomes
directly or indirectly liable on or in respect of, or that provides security for, any Senior Obligations, and their successors
and permitted assigns.


 


“Enforcement
Action” means, with respect to the Subordinated Obligations, any action to collect all or any portion of the Subordinated
Obligations, to accelerate or demand payment of all or any portion of the Subordinated Obligations or to enforce any of the rights
and remedies of any holder of any of the Subordinated Obligations, either pursuant to the Subordinated Loan Documents, at Law,
or in equity, including, but not limited to: (i) commencing or pursuing legal proceedings to collect any amounts owed with respect
to the Subordinated Obligations; (ii) execution upon, or otherwise enforcing any judgment obtained with respect to, amounts owed
on the Subordinated Obligations; or (iii) commencing or pursuing any judicial or non-judicial proceedings with respect to the Subordinated
Obligations to foreclose upon, or to acquire title in lieu of foreclosure as to, all or any portion of the assets of Issuer or
any other Credit Party.


 


“Insolvency
Event” means (i) Issuer or any of its Subsidiaries commencing any case, proceeding or other action (A) under any Debtor
Relief Laws or existing or future Law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
conservatorship or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or Issuer or any of its Subsidiaries making a general
assignment for the benefit of its creditors; (ii) there being commenced against Issuer or any of its Subsidiaries any case, proceeding
or other action of a nature referred to in clause (i) above; (iii) there being commenced against Issuer or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets; (iv) Issuer or any of its Subsidiaries taking any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) Issuer or
any of its Subsidiaries generally not paying, or being unable to pay, or admitting in writing its inability to pay, its debts as
they become due.


 


“Insolvency
Proceeding” means the occurrence or commencement of any proceeding specified in clause (i) or clause (ii) of the definition
of “Insolvency Event” in this Agreement.


 


“Issuer”
has the meaning specified in the recitals of this Agreement.


 




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“Lenders”
has the meaning specified in the recitals of this Agreement.


 


“Permitted
Subordinated Debt Payments” means regularly scheduled cash payments of interest, at the non-default rate of interest
not to exceed a rate of seven percent (7%) per annum, pursuant to and in accordance with the Subordinated Notes.


 


“Senior Default”
means any “Default” or “Event of Default” under the Credit Agreement or any other Senior
Loan Document.


 


“Senior Lenders”
means Administrative Agent, Lenders and each other holder of a Senior Obligation and each of their respective successors and assigns.


 


“Senior Loan
Documents” means, collectively, the Credit Agreement, the other “Loan Documents” (as such term is
defined in the Credit Agreement) and all other documents, instruments and agreements that from time to time evidence the Senior
Obligations or secure or support payment or performance of such Senior Obligations, as the same may be amended, restated, modified
or supplemented from time to time, including, without limitation, amendments, modifications, supplements and restatements thereof
giving effect to increases, renewals, extensions, refundings, deferrals, restructurings, replacements or refinancings of, or additions
to, the arrangements provided therein (whether provided by one or more Lenders under the Credit Agreement or one or more successor
Lenders).


 


“Senior Obligations”
means collectively, the “Obligations” (as such term is defined in the Credit Agreement) and the “Guaranteed
Obligations” (as such term is defined in the Guaranty), including, without limitation, all principal, interest, fees,
expenses, indemnities and reimbursement obligations (including, without limitation, Attorney Costs) at any time owed by any Credit
Party to Senior Lender pursuant to the terms of the Senior Loan Documents, in each instance, whether before or after the commencement
of an Insolvency Proceeding and without regard to whether or not an allowed claim, and all obligations and liabilities incurred
with respect to any refinancing of such obligations, together with any amendments, restatements, modifications, renewals or extensions
thereof.


 


“Subordinated
Event of Default” means any default or event of default under the Subordinated Notes or other Subordinated Loan Documents.


 


“Subordinated
Lender” has the meaning specified in the introductory of this Agreement.


 


“Subordinated
Loan Documents” means, collectively, the Subordinated Notes and any other documents, agreements or instruments that from
time to time evidence or otherwise relate to the Subordinated Obligations.


 


“Subordinated
Notes” means that certain Second Amended and Restated Unsecured Promissory Note, dated as of November 14, 2016, made
by Issuer and payable to the order of the Subordinated Lender, as the same may be amended, supplemented, restated or otherwise
modified from time to time as permitted by this Agreement and the Senior Loan Documents, including, without limitation, any notes
issued in exchange or substitution therefor.


 




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“Subordinated
Obligations” means, collectively, the unpaid principal of and interest on the Subordinated Notes and all other Indebtedness
of Issuer or any other Credit Party owing to the Subordinated Lender (including, without limitation, interest accruing at the then
applicable rate provided therein after the maturity of the Subordinated Notes and interest accruing at the then applicable rate
provided in the Subordinated Notes after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to Issuer or any other Credit Party, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Subordinated Notes, this Agreement, or any other Subordinated
Loan Document, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, Attorney Costs incurred by the Subordinated Lender that are required to be paid by
Issuer or any other Credit Party pursuant to the terms of any other Subordinated Loan Document); provided, however,
that Subordinated Obligations shall not include obligations for compensation, employee benefits and reimbursement of related costs
incurred in the ordinary course of business, to the extent any of the foregoing constitutes Indebtedness, and to the extent such
Indebtedness is permitted by the Credit Agreement.


 


(c)          The
words “hereof,” “herein” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section
and paragraph references are to this Agreement unless otherwise specified.


 


(d)          The
meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.


 


(e)          No
inference in favor of, or against, any party to this Agreement shall be drawn from the fact that such party has drafted any portion
of this Agreement.


 


2.          Subordination;
Enforcement Action. Each Credit Party and Subordinated Lender each hereby agrees, for itself and each future holder of the
Subordinated Obligations, that:


 


(a)          No
holder of the Subordinated Obligations shall have any claim to any assets of any Credit Party on a parity with or prior to the
claim of any holder of the Senior Obligations.


 




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(b)          Unless
and until the Senior Obligations have been paid in full, without the express prior written consent of Administrative Agent, (1)
Subordinated Lender shall not, directly or indirectly, take, demand, accept or receive from any Credit Party or any other Person,
in cash or other property or by setoff or in any other manner, payment of all or any of the Subordinated Obligations, and (2) no
Credit Party shall make, give or permit, directly or indirectly, by setoff, redemption, purchase or in any other manner, any payment
of or with respect to, or any collateral or other security for, the whole or any part of the Subordinated Obligations, including,
without limitation, any guarantee, letter of credit or similar credit support to support payment of any of the Subordinated Obligations;
provided, however, that, subject in all respects to the other terms and provisions hereof, (x) Subordinated Lender may accept
and retain, and Issuer may make, Permitted Subordinated Debt Payments so long as no Blockage Period is then in effect, so long
as, after giving effect to such payment, the Credit Parties are in compliance on a pro forma basis with the covenants set
forth in Section 7.15 of the Credit Agreement, recomputed for the most recent fiscal quarter for which financial statements have
been delivered; and (y) Issuer may resume making any Permitted Subordinated Debt Payments, and may make any Permitted Subordinated
Debt Payment missed during any Blockage Period, upon the cessation of a Blockage Period. A “Blockage Period”
shall exist from and after the date that any Senior Default shall have occurred, until the earlier to occur of (a) the cure or
waiver of such Senior Default, as determined by Administrative Agent in its sole discretion and (b) the payment in full of the
Senior Obligations.


 


(c)          Unless
and until the Senior Obligations have been paid in full, without the express written consent of Administrative Agent, Subordinated
Lender shall not commence any Enforcement Action.


 


(d)          The
expressions “prior payment in full,” “payment in full,” “paid in full”
and any other similar terms or phrases when used herein with respect to the Senior Obligations shall mean (i) the indefeasible
payment in full, in immediately available funds, of all of the Senior Obligations and the performance in full of all of the Senior
Obligations and Hedging Obligations, (ii) the termination or expiration of all Senior Loan Documents, and (iii) termination of
any and all commitments to lend under the Senior Loan Documents. Senior Obligations shall be considered to be outstanding whenever
any loan commitment under any Senior Loan Document is outstanding.


 


(e)          Each
holder of Senior Obligations, whether now outstanding or hereafter created, incurred, assumed or guaranteed, shall be deemed to
have acquired Senior Obligations in reliance upon the provisions contained in this Agreement.


 


3.          Additional
Provisions Concerning Subordination. Without limiting any other term or provision in this Agreement:


 


(a)          The
Subordinated Lender and each Credit Party hereby agree that upon the occurrence of any Insolvency Event:


 


(i)          all
Senior Obligations shall be paid in full before any payment or distribution is made with respect to any of the Subordinated Obligations;
and


 




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(ii)         any
payment or distribution of assets of any Credit Party of any kind or character, whether in cash, property or securities, to which
Subordinated Lender would be entitled except for the provisions hereof, shall be paid or delivered by such Credit Party, or any
receiver, trustee in bankruptcy, liquidating trustee, disbursing agent or other Person making such payment or distribution, directly
to Administrative Agent for application against the Senior Obligations (in accordance with the terms of the applicable Senior Loan
Documents), to the extent necessary to pay in full all Senior Obligations, before any payment or distribution shall be made to
Subordinated Lender, and (x) Subordinated Lender hereby unconditionally authorizes, empowers and directs all trustees, receivers,
custodians, conservators, or any other Persons having authority over the property of any Credit Party to effect delivery of all
such payments and distributions to Administrative Agent and (y) Subordinated Lender agrees to execute and deliver to Administrative
Agent such further instruments as may be requested by Administrative Agent to confirm the authorization referred to in the foregoing
clause (x).


 


(b)          Upon
the occurrence of any Insolvency Proceeding commenced by or against any Credit Party, Subordinated Lender irrevocably authorizes
and empowers Administrative Agent to demand, sue for, collect and receive every payment or distribution on account of any of the
Subordinated Obligations payable or deliverable in connection with such event or proceeding, until the Senior Obligations are paid
in full, and give acquittance therefor;


 


(c)          Subordinated
Lender irrevocably authorizes and empowers Administrative Agent to file claims and proofs of claim in any such Insolvency Proceeding
and take such other actions, in its own name, or in the name of the Subordinated Lender or otherwise, as Administrative Agent may
deem necessary or advisable for the enforcement of the provisions of this Agreement; and, in furtherance thereof, Subordinated
Lender shall execute and deliver such powers of attorney, assignments or proofs of claim or other instruments as Administrative
Agent may request; provided, however, that the foregoing authorization and empowerment imposes no obligation on Administrative
Agent or any other Senior Lender to take any such action.


 


(d)          Except
as otherwise expressly permitted by the terms hereof, if any payment or distribution, whether consisting of money, property or
securities, shall be collected or received by or come into the custody, control or possession of Subordinated Lender in respect
of the Subordinated Obligations, Subordinated Lender shall forthwith deliver the same to Administrative Agent for application against
the Senior Obligations, in the exact form received, duly endorsed to Administrative Agent, if required, in each case to be applied
to the payment or prepayment of the applicable Senior Obligations in accordance with the terms of the applicable Senior Loan Documents
until such Senior Obligations are paid in full. Until so delivered, such payment or distribution shall be held in trust by Subordinated
Lender as the property of the Senior Lenders, segregated from other funds and property held by Subordinated Lender.


 


4.          Subrogation.
Until the Senior Obligations are paid in full, the Subordinated Lender shall not make or assert any claim of subrogation under
applicable Law or otherwise with respect to the Senior Lenders or the Senior Obligations. Upon the payment in full of the Senior
Obligations, the Subordinated Lender shall be subrogated to the rights of the Senior Lenders to receive payments or distributions
of assets of Issuer and each other Credit Party in respect of the Senior Obligations until the Senior Obligations shall be paid
in full. For the purposes of such subrogation, payments or distributions to any Senior Lender of any money, property or securities
to which Subordinated Lender would be entitled except for the provisions of this Agreement shall be deemed, as between Issuer and
its creditors (other than the Senior Lenders and Subordinated Lender), to be a payment by Issuer to or on account of Subordinated
Obligations (it being understood that the provisions of this Agreement are, and are intended solely, for the purpose of defining
the relative rights of the Subordinated Lender, on the one hand, and Senior Lenders, on the other hand).


 




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5.          Consents,
Waivers and Covenants of Subordinated Lender.


 


(a)          Subordinated
Lender consents and agrees that, without the necessity of any reservation of rights against Subordinated Lender, and without notice
to or further assent by Subordinated Lender:


 


(i)          any
demand for payment of any Senior Obligations made by any Senior Lender may be rescinded in whole or in part by such Senior Lender,
and any Senior Obligation may be continued, and the Senior Obligations, or the liability of any Credit Party or any guarantor or
any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect
thereto, or any obligation or liability of any Credit Party or any other party under any Senior Loan Document, or any other agreement,
may, from time to time, in whole or in part, be amended, restated, renewed, extended, increased, modified, accelerated, compromised,
restructured, waived, surrendered, or released by Administrative Agent or the other Senior Lenders;


 


(ii)         the
Credit Agreement, the other Senior Loan Documents and the Senior Obligations may be amended, restated, modified, extended, increased,
renewed, restructured, supplemented or terminated, in whole or in part, as Administrative Agent or the other Senior Lenders may
deem advisable from time to time, and any collateral security at any time held by any Senior Lender for the payment of any of the
Senior Obligations may be sold, exchanged, restructured, waived, surrendered or released, in each case all without notice to or
further assent by Subordinated Lender, which will remain bound under this Agreement, and Administrative Agent and the other Senior
Lenders shall have the right to grant waivers or consents to any Credit Party with respect to any of the Senior Obligations or
any Senior Loan Document in any manner whatsoever, all without impairing, abridging, releasing or affecting the subordination provided
for herein; and


 


(iii)        any
refinancing of the Obligations may be consummated by any Credit Party.


 


(b)          Subordinated
Lender waives any and all notice of the creation, renewal, extension, increase, or accrual of any of the Senior Obligations and
notice of or proof of reliance by any Senior Lender upon this Agreement. The Senior Obligations shall be deemed conclusively to
have been created, contracted or incurred in reliance upon this Agreement, and all dealings between the Credit Parties and Senior
Lenders shall be deemed to have been consummated in reliance upon this Agreement. Subordinated Lender acknowledges and agrees that
each Senior Lender has relied upon the subordination provided for herein in entering into the Senior Loan Documents and in making
funds available to Issuer thereunder. Subordinated Lender waives notice of or proof of reliance on this Agreement and protest,
demand for payment and notice of default.


 




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(c)          The
Subordinated Lender hereby consents to the Liens on the Collateral created in favor of Senior Lenders under the Senior Loan Documents,
and agrees that the grant, perfection, priority and existence of such Liens does not and shall not constitute a Subordinated Event
of Default or any other default under any Subordinated Loan Document.


 


(d)          Concurrently
with the issuance thereof, the Subordinated Lender shall provide Senior Lenders with a copy of any written notice of any Subordinated
Event of Default or similar communication given by Subordinated Lender to Issuer pursuant to or in connection with any of the Subordinated
Loan Documents. Upon demand by Administrative Agent, the Subordinated Lender will furnish to Senior Lenders a statement of the
indebtedness owing from Issuer to the Subordinated Lender. Administrative Agent may rely without further investigations upon such
statements.


 


(e)          Notwithstanding
anything in the Subordinated Notes or any other agreement or instrument to the contrary, the Subordinated Lender and Issuer hereby
acknowledge and agree that the maturity date of each of the Subordinated Notes shall be no earlier than the date upon which the
Senior Obligations are paid in full.


 


6.          Negative
Covenants of the Subordinated Lender. Until the payment in full of the Senior Obligations, Subordinated Lender shall not, without
the prior written consent of Administrative Agent:


 


(a)          sell,
assign, or otherwise transfer, in whole or in part, the Subordinated Obligations or any interest therein to any other Person (a
“Transferee”) or create, incur or suffer to exist any security interest, Lien, charge or other encumbrance whatsoever
upon any of the Subordinated Obligations or under any Subordinated Loan Document in favor of any Transferee unless:


 


(i)          such
action is made expressly subject to this Agreement; and


 


(ii)         the
Transferee expressly acknowledges to Senior Lenders, by a written agreement in form and substance satisfactory to Administrative
Agent or by delivery of an executed counterpart of this Agreement or an intercreditor and subordination agreement substantially
identical to this Agreement, the subordination provided for herein and agrees to be bound by all of the terms and provisions hereof;


 


(b)          permit
any of the Subordinated Loan Documents or the Subordinated Obligations to be amended, restated, renewed, restructured, increased,
extended, supplemented or otherwise modified in any respect, except changes that do not adversely affect Senior Lenders’
rights under this Agreement or the Senior Loan Documents or Senior Lenders’ right to payment of the Senior Obligations; and
nothing herein shall prohibit the Subordinated Lender from converting any of the Subordinated Obligations into common stock of
Issuer, nor prohibit the Issuer from permitting conversion of any Subordinated Obligations into common stock of Issuer;


 




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(c)          permit
or require any Credit Party to guarantee, or otherwise become liable in respect of, any of the Subordinated Obligations (other
than Issuer);


 


(d)          permit
or require any Credit Party to create any Lien on any of its assets or properties to secure the payment or performance of any of
the Subordinated Obligations;


 


(e)          commence,
or join with any creditors (other than Senior Lenders) in commencing, or otherwise cause, any Insolvency Proceeding;


 


(f)          challenge
the validity, enforceability, priority of, or any other term or provision of, any Senior Loan Document;


 


(g)          challenge
the extent, validity, creation, perfection or priority of, any Lien created or purported to be created pursuant to any Senior Loan
Document or seek to avoid or subordinate any such Lien; or


 


(h)          interfere
in any respect with the exercise by any Senior Lender of any right or remedy under any Senior Loan Document or applicable Law;


 


provided, however, that a transfer
by operation of Law to the estate of a deceased Subordinated Lender shall not be a default hereunder; provided, further,
that it is the express intent of all parties hereto that such transfer shall be expressly subject to this Agreement, and that the
Transferee of the estate expressly acknowledges to Senior Lenders, by a written agreement in form and substance satisfactory to
Administrative Agent or by delivery of an executed counterpart of this Agreement or an intercreditor and subordination agreement
substantially identical to this Agreement, the subordination provided for herein and agrees to be bound by all of the terms and
provisions hereof.


 


7.          Senior
Obligations Unconditional. All obligations and agreements of the Subordinated Lender hereunder shall be irrevocable, unconditional,
continuing and absolute. All rights and interests of Senior Lenders hereunder, and all agreements and obligations of the Subordinated
Lender and any Credit Party, shall remain in full force and effect irrespective of:


 


(a)          any
lack of validity or enforceability of any Senior Loan Document or if all or any portion of the Senior Obligations and/or the Liens
securing same are subordinated, set aside, avoided or disallowed, in each case pursuant to an Insolvency Proceeding or otherwise
(as a result of the fraudulent transfer provisions under the Bankruptcy Code, under any state fraudulent conveyance or fraudulent
transfer statute, or otherwise);


 


(b)          any
change in the time, manner or place of payment of, or in any other term of, all or any of the Senior Obligations, or any amendment
or waiver or other modification, whether by course of conduct or otherwise, of the terms of any Senior Loan Document, including,
without limitation, any increase in any of the Senior Obligations resulting from the extension of additional credit to any Credit
Party or otherwise;


 




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(c)          any
exchange, release or nonperfection of any Lien upon any Collateral, or any release, amendment, waiver or other modification, whether
in writing or by course of conduct or otherwise, of all or any of the Senior Obligations or any guarantee thereof;


 


(d)          the
existence of any claim, set-off, defense, counterclaim or other right that Subordinated Lender, any Credit Party or any other Person
may have against any Person, including, without limitation, any Senior Lender;


 


(e)          any
manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Senior Obligations, or any
manner of sale or other disposition of any Collateral or any other collateral for all or any of the Senior Obligations or any obligations
of the Credit Parties under the Senior Loan Documents or any other assets of the Credit Parties;


 


(f)          any
change, restructuring or termination of the corporate or other organizational structure or existence of any Credit Party;


 


(g)          any
failure of any Senior Lender to disclose to Subordinated Lender any information relating to the business, condition (financial
or otherwise), operations, performance, properties or prospects of Issuer or any of its Affiliates now or hereafter known to any
Senior Lender (Subordinated Lender hereby waiving any duty on the part of Senior Lenders to disclose such information); or


 


(h)          any
other event or circumstance which otherwise might constitute a defense or counterclaim available to, or a discharge of, any Credit
Party in respect of any of the Senior Obligations, or of Subordinated Lender or any Credit Party in respect of this Agreement.


 


8.          Representations
and Warranties. Subordinated Lender represents and warrants to each Senior Lender that:


 


(a)          the
Subordinated Notes: (i) have been issued to it for good and valuable consideration; (ii) are owned by Subordinated Lender free
and clear of any security interests, Liens, charges or encumbrances whatsoever, other than the interest of Senior Lenders under
this Agreement; (iii) are payable solely and exclusively to Subordinated Lender and to no other Person and is payable without deduction
for any defense, recoupment, offset or counterclaim, and (iv) constitute the only evidence of the obligations evidenced thereby;


 


(b)          Subordinated
Lender has the power and authority and the legal right to execute and deliver and to perform its obligations under this Agreement
and has taken all necessary action to authorize its execution, delivery and performance of this Agreement;


 




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(c)          this
Agreement has been duly executed and delivered by Subordinated Lender and constitutes a legal, valid and binding obligation of
Subordinated Lender, enforceable against Subordinated Lender in accordance with its terms;


 


(d)          the
execution, delivery and performance of this Agreement will not violate any provision of any requirement of Law applicable to Subordinated
Lender or contractual obligation of Subordinated Lender and will not result in the creation or imposition of any Lien on any of
the properties or revenues of Subordinated Lender pursuant to any requirement of Law affecting, or any contractual obligation of,
Subordinated Lender, except the interest of Senior Lenders under this Agreement;


 


(e)          no
consent or authorization of, filing with, or other act by or in respect of, any arbitrator or Governmental Authority or any other
Person (including, without limitation, any creditor of Subordinated Lender), is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement; and


 


(f)          no
pending or, to the best of its knowledge, threatened litigation, arbitration or other proceedings if adversely determined would
in any way prevent the performance of the terms of this Agreement; and


 


(g)          as
of the date hereof, Issuer is indebted to the Subordinated Lender under the Subordinated Loan Documents in the aggregate amount
of $928,081.18.


 


9.          No
Representation by Senior Lenders. No Senior Lender has made, and no Senior Lender does hereby nor otherwise make to the Subordinated
Lender, any representations or warranties, express, or implied, nor does any Senior Lender assume any liability or obligation to
or of Subordinated Lender with respect to:


 


(a)          the
financial or other condition of any Credit Party or any other obligors under any instruments of guarantee with respect to the Senior
Obligations;


 


(b)          the
enforceability, validity, value or collectability of any of the Senior Obligations or the Subordinated Obligations, any collateral
therefor, or any guarantee or security which may have been granted in connection with any of the Senior Obligations or the Subordinated
Obligations; or


 


(c)          the
title or right of any Credit Party or any other Person to transfer any collateral or security.


 




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10.         Waiver
of Claims. To the maximum extent permitted by Law, Subordinated Lender waives any claim it might have against any Senior Lender
with respect to, or arising out of, any action or failure to act or any error of judgment, negligence, or mistake or oversight
whatsoever on the part of any Senior Lender or its affiliates, directors, officers, employees, advisors, attorneys or agents with
respect to any exercise of any rights or remedies under any of the Senior Loan Documents or any transaction relating to any of
the Collateral or any guarantee. No Senior Lender or any of its affiliates, directors, officers, employees, advisors, attorneys
or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or any guarantee or for any delay
in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral or realize upon any guarantee upon
the request of any Credit Party or Subordinated Lender or any other Person or to take any other action whatsoever with regard to
the Collateral or any part thereof or any guarantee.


 


11.         Additional
Provisions Applicable After Insolvency Event or Proceeding. Without limiting any other term or provision in this Agreement
or any Senior Loan Document:


 


(a)          The
provisions of this Agreement shall continue in full force and effect notwithstanding the occurrence of any Insolvency Event or
Insolvency Proceeding.


 


(b)          Subordinated
Lender agrees that it will not, directly or indirectly (including, without limitation, as a member of any unsecured creditors’
committee), take any action in or relating to any proceeding arising from, as a result of, in connection with or relating to any
Insolvency Proceeding to challenge, contest or object in any manner to (i) the extent, validity, creation, enforceability, perfection
or priority of any of the Senior Obligations or any Senior Loan Document or any Liens or security interests created under any Senior
Loan Document, or any term or provision of this Agreement or Subordinated Lender's obligations, undertakings, acknowledgments and
agreements set forth in this Agreement; (ii) any pleading, motion, notice, objection or argument of or made by or on behalf of
any holder of any of the Senior Obligations based on, under or in respect of Section 361, 362, 363 or 364 of the Bankruptcy
Code, including, without limitation, in respect of permitting the use of any cash or other collateral by, or providing any financing
to, any Credit Party under either Section 363 or 364 of the Bankruptcy Code (including, without limitation, any request for adequate
protection, or in respect of the sale or other disposition of any property by any Credit Party under Section 363 of the Bankruptcy
Code or pursuant to a plan of reorganization or any other arrangement (and Subordinated Lender shall be deemed to have consented
to any such sale or disposition and all of the terms applicable thereto); or (iii) the payment of interest, fees, expenses or other
amounts to Senior Lenders under Sections 506(b) or 506(c) of the Bankruptcy Code or otherwise. Subordinated Lender agrees that
it will not seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in derogation
thereof, without the prior written consent of Administrative Agent. Subordinated Lender shall not support or vote in favor of any
plan of reorganization (and they shall be deemed to have voted to reject any plan of reorganization) unless such plan (i) pays
off in full, in cash, all Senior Obligations or (ii) is accepted by the Senior Lenders. This Agreement, which the parties hereto
expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy Code, shall be effective,
during and after the commencement of an Insolvency Proceeding.


 




    	 	12	 



     


    

 


12.         Further
Assurances. The Subordinated Lender and each Credit Party, at their own sole cost and expense and at any time from time to
time, upon the written request of Administrative Agent, will promptly and duly execute and deliver such further instruments and
documents and take such further actions as Administrative Agent reasonably may request for the purposes of obtaining or preserving
the full benefits of this Agreement and of the rights and powers herein granted. Without limiting the generality of the foregoing,
in the event of an assignment pursuant to any Senior Loan Document or in the event of a refinancing of the Senior Obligations,
the Subordinated Lender and each Credit Party shall, upon the request of Administrative Agent, execute a new intercreditor and
subordination agreement upon the same terms as this Agreement to further evidence and confirm that the Subordinated Obligations
are and shall remain junior and subordinate in right of payment to the Senior Obligations.


 


13.         Reinstatement.
The terms and provisions of this Agreement shall continue to be effective or be reinstated, and the Senior Obligations shall not
be deemed to be paid in full, as the case may be, if at any time any payment of any of the Senior Obligations is rescinded or avoided,
or must otherwise be returned by any Senior Lender pursuant to any Insolvency Proceeding or otherwise, all as though such payment
had not been made.


 


14.         Expenses.
Subordinated Lender shall pay or reimburse Senior Lenders, upon demand, for all of its reasonable and documented costs and expenses
incurred in connection with the enforcement of any rights and remedies with respect to the Subordinated Lender under this Agreement,
including, without limitation, Attorney Costs of Senior Lenders.


 


15.         Provisions
Define Relative Rights. This Agreement is intended solely for the purpose of defining the relative rights of Senior Lenders,
on the one hand, and the Subordinated Lender, on the other, and the obligations of Credit Parties in connection with the foregoing
and no other Person shall have any right, benefit or other interest under this Agreement. Each Credit Party hereby agrees that
it will not make any payment on or in respect of any of the Subordinated Obligations, or take any other actions, in contravention
of the provisions of this Agreement.


 


16.         Legend.
Subordinated Lender will cause each Subordinated Note (and each other Subordinated Loan Document as Administrative Agent shall
request) to bear upon its face the following legend:


 


“ALL INDEBTEDNESS EVIDENCED
BY THIS NOTE IS SUBORDINATED TO OTHER INDEBTEDNESS PURSUANT TO, AND TO THE EXTENT PROVIDED IN, AND IS OTHERWISE SUBJECT TO THE
TERMS OF, THE INTERCREDITOR AND SUBORDINATION AGREEMENT, DATED AS OF NOVEMBER 14, 2016 (THE “SUBORDINATION AGREEMENT”),
AS THE SAME MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, BY AND AMONG FUSION TELECOMMUNICATIONS
INTERNATIONAL, INC., A DELAWARE CORPORATION AND ITS SUBSIDIARIES, EAST WEST BANK, AS ADMINISTRATIVE AGENT, AND THE HOLDERS FROM
TIME TO TIME OF THE OBLIGATIONS ARISING UNDER THE SUBORDINATED LOAN DOCUMENTS REFERRED TO IN THE SUBORDINATION AGREEMENT, INCLUDING,
WITHOUT LIMITATION, THIS NOTE, AND EACH HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, ACKNOWLEDGES AND AGREES TO BE BOUND BY THE PROVISIONS
OF THE SUBORDINATION AGREEMENT.”


 




    	 	13	 



     


    

 


17.         Powers
Coupled With An Interest. All powers, authorizations and agencies contained in this Agreement are coupled with an interest
and are irrevocable until the Senior Obligations are paid in full.


 


18.         Authority
of Senior Lenders. Each Credit Party and Subordinated Lender acknowledge and agree that the rights and responsibilities of
each Senior Lender under this Agreement with respect to any action taken by any Senior Lender or the exercise or non-exercise by
any Senior Lender of any option, request, judgment or other right or remedy provided for herein or resulting or arising out of
this Agreement shall be governed by the Senior Loan Documents and by such other agreements with respect thereto as may exist from
time to time among, but, as between Senior Lenders, on the one hand, and the Credit Parties and the Subordinated Lender, on the
other hand, each Senior Lender shall be conclusively presumed to be acting with full and valid authority so to act or refrain from
acting, and neither any Credit Party nor Subordinated Lender shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.


 


19.         Notices.


 


(a)          Unless
otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to a Senior
Lender, Administrative Agent, any Credit party or Subordinated Lender shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile as follows: :


 


(i)          If
to Administrative Agent or Senior Lender, at the following address, facsimile number or e-mail address:


 


	 	East West Bank
	 	135 N. Los Robles Avenue, 2nd Floor
	 	Pasadena, California 91101
	 	Attn: Richard Vian, Senior Vice President-Group Manager,

 Telecommunications Lending
	 	Telephone:  (626) 768-6816
	 	E-mail:  Richard.Vian@eastwestbank.com
	with a copy to :	 
	 	Sutherland Asbill & Brennan LLP
	 	999 Peachtree Street, Suite 2300
	 	Atlanta, Georgia 30309
	 	Attention: Christina B. Rissler
	 	Telephone: (404) 853-8600
	 	Email: christina.rissler@sutherland.com


 




    	 	14	 



     


    

 


(ii)         If
to any Credit Party, at the following address:


 


	 	Fusion Telecommunications International, Inc.
	 	420 Lexington Avenue, Suite 1718
	 	New York, New York 10170
	 	Attention:         Gordon Hutchins, Jr., President
	 	 
	with a copy to:	Kelley Drye & Warren LLP
	 	101 Park Avenue
	 	New York, New York 10178
	 	Attention: Jack Miles and Merrill Stone
	 	Facsimile: (212) 808-7897


 


(iii)        if
to Subordinate Lender, at its address or transmission number for notices set forth under its signature below.


 


(b)          Any
such notice shall be deemed to have been given or made or to have become effective on the terms set forth in Section 10.01 of the
Credit Agreement.


 


(c)          Any
Senior Lender, Credit Party or Subordinated Lender may change its addresses and transmission numbers for notices by notice in the
manner provided in this Section 19.


 


20.         Counterparts.
This Agreement may be executed by one or more of the parties on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page
of this Agreement by facsimile or other electronic means shall be effective as delivery of an original executed counterpart of
this Agreement.


 


21.         Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


 


22.         Integration.
THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT OF SENIOR LENDERS, CREDIT PARTIES AND THE SUBORDINATED LENDER WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THERE ARE NO PROMISES OR REPRESENTATIONS BY ANY SENIOR LENDER, CREDIT PARTIES OR SUBORDINATED LENDER
RELATIVE TO THE SUBJECT MATTER HEREOF NOT REFLECTED HEREIN. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


 




    	 	15	 



     


    

 


23.         Amendments
in Writing; No Waiver; Cumulative Remedies.


 


(a)          Any
modification or waiver of any provision of this Agreement, or any consent to any departure by any party from the terms hereof,
shall not be effective in any event unless the same is in writing and signed by Administrative Agent and the Subordinated Lender,
and then such modification, waiver or consent shall be effective only in the specific instance and for the specific purpose given;
provided that any such modification or waiver that directly and adversely affects the obligations of the Credit Parties
hereunder and is sought to be enforced against the Credit Parties shall require the consent of the Credit Parties.


 


(b)          No
failure to exercise, nor any delay in exercising, on the part of any Senior Lender, any right, remedy power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or privilege.


 


(c)          The
rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by Law.


 


(d)          If
Subordinated Lender or any Credit Party violates any of the terms or provisions of this Agreement, in addition to any remedies
in Law, at equity or otherwise, any Senior Lender may restrain or enjoin such violation in any court of competent jurisdiction
and may interpose this Agreement as a defense or counterclaim in any action or proceeding by Subordinated Lender or any Credit
Party.


 


24.         Section
Headings. The section headings used in this Agreement are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.


 


25.         Successors
and Assigns. This Agreement shall be binding upon the successors and assigns of each Credit Party and Subordinated Lender and
shall inure to the benefit of Senior Lenders and their respective successors and assigns.


 


26.         Governing
Law; etc. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.


 


27.         Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


[The remainder of
this page intentionally left blank.]


 




    	 	16	 



     


    

 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and delivered as of the day and year first above written.


 





 


	 	ADMINISTRATIVE AGENT:
	 	 
	 	EAST WEST BANK, as Administrative Agent
	 	 
	 	By:	/s/ Richard Vian
	 	Name:  Richard Vian
	 	Title:  Senior Vice President
	 	 





[Intercreditor and Subordination Agreement]


 




     


     


    

  




	 	CREDIT PARTIES:
	 	 
	 	FUSION NBS ACQUISITION CORP.
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	Title: President and Chief Operating Officer
	 	 	 
	 	FUSION TELECOMMUNICATIONS 

INTERNATIONAL, INC.
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr
	 	 	Name: Gordon Hutchins, Jr.
	 	 	
        Title: President and Chief Operating Officer

	 	 	 
	 	NETWORK BILLING SYSTEMS, L.L.C.
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	
        Title: Executive Vice
President

	 	 	 
	 	PINGTONE COMMUNICATIONS, INC.
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	
        Title: President and
Chief Operating Officer

	 	 	 
	 	FUSION BVX LLC
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	Title: President






 


[Intercreditor and Subordination Agreement]


 







     


     


    

 


	 	FIDELITY ACCESS NETWORKS, LLC
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	Title: President and Chief Operating Officer
	 	 	 
	 	
        FIDELITY CONNECT LLC

	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	Title: President and Chief Operating Officer
	 	 	 
	 	FIDELITY VOICE SERVICES, LLC
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	Title: President and Chief Operating Officer
	 	 	 
	 	FIDELITY ACCESS NETWORKS, INC.
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	Title: President and Chief Operating Officer
	 	 	 
	 	FIDELITY TELECOM, LLC
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	 	Name: Gordon Hutchins, Jr.
	 	 	Title: President and Chief Operating Officer
	 	 	 
	 	APPTIX, INC.
	 	 	 
	 	By:	/s/ Gordon Hutchins, Jr.
	 	
         

        
	Name: Gordon Hutchins, Jr.
	 	 	Title: President and Chief Operating Officer


 


[Intercreditor and Subordination Agreement]


 




     


     


    

 


	 	SUBORDINATED LENDER:
	 	 
	 	/s/ Marvin Rosen
	 	Marvin Rosen
	 	 
	 	Address for Notices:
	 	 
	 	Marvin S. Rosen
	 	211 Central Park West (Apt 8G)
	 	New York, New York 10024
	 	Facsimile No.: