Exhibit 10.1

Assignment and Assumption of Purchase Agreement

This Assignment and Assumption of Purchase Agreement (this “Assignment”), dated as of December 13, 2019 (the “Effective Date”), is by and between Billboards LLC, a Delaware limited liability company (“Assignor”), and MediaCo Holding Inc., an Indiana corporation (“Assignee”).

WHEREAS, Assignor, as purchaser, FMG Kentucky, LLC, a Delaware limited liability company, FMG Valdosta, LLC, a Delaware limited liability company (together with FMG Kentucky, LLC, the “Companies”), and Fairway Outdoor Advertising Group, LLC (“Seller”), a Delaware limited liability company, as seller, are parties to that certain Equity Purchase Agreement dated October 16, 2019 (the “Purchase Agreement”), pursuant to which, subject to the terms and conditions set forth therein, Assignor will acquire all of the issued and outstanding equity securities of the Companies; and

WHEREAS, subject to the terms hereof, Assignor desires to assign to Assignee all of its rights, title and interest in and obligations under the Purchase Agreement, and Assignee is willing to assume and accept all of Assignor’s rights, title and interest in and obligations under the Purchase Agreement.

NOW, THEREFORE, for and in consideration of the promises and the mutual covenants contained herein, and for other good and valuable consideration, the parties hereby agree as follows:

1            Defined Terms. Except as otherwise set forth herein, capitalized terms used herein shall have the meanings assigned to them in the Purchase Agreement.

2.           Assignment and Assumption. Subject to the terms and conditions of the Purchase Agreement, Assignor hereby assigns all of its right, title and interest in and to and obligations under the Purchase Agreement to Assignee, and Assignee hereby accepts the assignment and assumes all of Assignor’s right, title and interest in and obligations under the Purchase Agreement from and after the Effective Date. For avoidance of doubt, this Assignment does not relieve the Assignor of any of its obligations under the Purchase Agreement.

3.            Binding Effect. Nothing in this Assignment, express or implied, is intended or shall be construed to confer upon, or give to, any person other than Assignor, Assignee, Seller, such parties as provided for under Section 11.10 of the Purchase Agreement, and their respective successors and assigns, any remedy or claim under or by reason of this Assignment on any terms, covenants or condition hereof. All of the terms, covenants and conditions, promises and agreements in this Assignment shall be for the sole and exclusive benefit of the Assignor, Assignee, Seller, such parties as provided for under Section 11.10 of the Purchase Agreement, and their successors and assigns.

4.              Purchase Agreement. This Assignment does not amend or otherwise modify or limit any of the provisions of the Purchase Agreement, which shall remain in full force and effect.

5.              Governing Law. This Assignment shall be governed by and interpreted and construed in accordance with the laws of the State of Delaware.

6.              Counterparts. This Assignment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Executed signature pages to this Assignment may be delivered by facsimile or other electronic transmission and any such signature page shall be deemed an original.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date first above written.

[Signature Page to Assignment and Assumption Agreement]

[Signature Page to Assignment and Assumption Agreement]

Exhibit 10.2

EQUITY PURCHASE AGREEMENT

BY AND AMONG

BILLBOARDS LLC,

FAIRWAY OUTDOOR ADVERTISING GROUP, LLC,

FMG KENTUCKY, LLC

AND

FMG VALDOSTA, LLC

DATED AS OF OCTOBER 16, 2019

TABLE OF CONTENTS

Exhibits

Schedules

EQUITY PURCHASE AGREEMENT

THIS EQUITY PURCHASE AGREEMENT is entered into as of October 16, 2019 (this “Agreement”), by and among (i) Billboards LLC, a Delaware limited liability company (“Purchaser”), (ii) FMG Kentucky, LLC, a Delaware limited liability company, (iii) FMG Valdosta, LLC, a Delaware limited liability company (together with FMG Kentucky, LLC, the “Companies” and each, a “Company”), and (iv) Fairway Outdoor Advertising Group, LLC, a Delaware limited liability company (“Seller”). Purchaser, the Companies and Seller are sometimes referred to in this Agreement as a “Party” and collectively as the “Parties”. Capitalized terms that are used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed to such terms in Article XII.

W I T N E S S E T H:

WHEREAS, as of the date of this Agreement, Seller owns all of the issued and outstanding equity securities of the Companies (collectively, the “Units”);

WHEREAS, as of the date of this Agreement, the Companies are engaged in the business of selling outdoor advertising space, and producing signs for use, on billboards in the Area (the “Business”);

WHEREAS, on the terms and subject to the conditions set forth in this Agreement, Purchaser desires to purchase from Seller, and Seller desires to sell to Purchaser, all of the Units (the “Acquired Securities”) for the consideration described herein; and

WHEREAS, contemporaneously with the execution of this Agreement, and as a condition to the willingness of Seller and the Companies to enter into this Agreement, Standard General Master Fund II L.P. (“Guarantor”) is entering into a guaranty in favor of Seller (the “Guaranty”), attached hereto as Exhibit A, pursuant to which Guarantor is guaranteeing the obligations of Purchaser in connection with this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:

Article I

PURCHASE AND SALE OF ACQUIRED SECURITIES

1.1           Purchase and Sale of Acquired Securities. Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, transfer, assign and deliver to Purchaser, and Purchaser shall purchase, acquire, and accept from Seller, all of the Acquired Securities, free and clear of all Liens (other than limitations under the Organizational Documents of the issuer of such Acquired Securities or limitations under applicable securities Laws) in exchange for an aggregate cash purchase price equal to (a) $43,072,000 (the “Base Price”), plus (b) the amount, if any, by which the Working Capital exceeds the Working Capital Target, minus (c) the amount, if any, by which the Working Capital Target exceeds the Working Capital, plus (d) Closing Cash, minus (e) Closing Date Indebtedness, minus (f) Transaction Expenses (such resulting amount pursuant to Sections 1.1(a)-1.1(f), and as such amount may be adjusted pursuant to the provisions of Section 1.3, the “Purchase Price”).

1.2           Closing Payments. At the Closing, Purchaser shall pay or cause to be paid, by wire transfer of immediately available funds to one or more bank accounts designated in writing by Seller at least one (1) Business Day prior to the Closing Date, the following amounts (each such payment, a “Closing Payment”):

(a)           payment to Seller of the Closing Consideration;

(b)           payment to the Escrow Agent of a cash amount equal to the Adjustment Escrow Amount for the Adjustment Escrow Fund;

(c)           payment to the Escrow Agent of a cash amount equal to the Indemnity Escrow Amount for the Indemnity Escrow Fund; and

(d)           payment on behalf of the Companies, to the payees thereof, of a cash amount equal to the amount of all Transaction Expenses.

Each of the Closing Payments shall be made in the amounts and as set forth in the Pre-Closing Statement delivered pursuant to Section 1.3(a).

1.3           Adjustment of the Purchase Price.

(a)           Pre-Closing Statement. At least two (2) Business Days prior to the Closing Date, Seller shall deliver to Purchaser a statement (the “Pre-Closing Statement”) setting forth Seller’s good faith estimate of (i) the Purchase Price (the “Estimated Purchase Price”), together with reasonably detailed calculations demonstrating each component thereof, which will be prepared in a manner consistent with the definitions of the terms Working Capital, Closing Cash, Closing Date Indebtedness and Transaction Expenses and the Accounting Rules and (ii) the amount of the Closing Consideration payable to Seller.

(b)           Final Purchase Price Adjustment. The Purchase Price shall be adjusted following the Closing based on the difference between the Final Closing Date Purchase Price (as determined in accordance with this Section 1.3) and the Estimated Purchase Price, and payment shall be made in respect of any such post-Closing adjustment as set forth in Section 1.3(e).

(c)           Closing Statement. No later than seventy-five (75) days after the Closing Date, Purchaser shall cause to be prepared in good faith and delivered to Seller a statement (the “Closing Statement”) setting forth Purchaser’s calculation of the Purchase Price (“Closing Date Purchase Price”), together with an unaudited, consolidated balance sheet of the Companies as of the close of business on the Business Day immediately prior to the Closing Date and the derivation of the Closing Date Purchase Price therefrom. The Closing Statement will be prepared in a manner consistent with Section 1.3(a), the definitions of the terms Working Capital, Closing Cash, Closing Date Indebtedness and Transaction Expenses and the Accounting Rules. The Closing Statement will entirely disregard (i) any and all effects on the assets and liabilities of the Companies as a result of the Transaction or of any financing or refinancing arrangements entered into at any time by Purchaser or its Affiliates or any other transaction entered into by Purchaser or its Affiliates in connection with the consummation of the Transaction, and (ii) any of the plans, transactions, or changes which Purchaser intends to initiate or make or cause to be initiated or made after the Closing with respect to the Companies or their respective businesses or assets, or any facts or circumstances that are unique or particular to Purchaser or its Affiliates or any of their assets or liabilities. If Purchaser fails to deliver the Closing Statement within such seventy-five (75) day period, then in addition to any other rights Seller may have under this Agreement, Seller shall have the right to elect that the Estimated Purchase Price be deemed to be the amount of the Closing Date Purchase Price and be final and binding and used for purposes of calculating the adjustment pursuant to Section 1.3(e). The Parties acknowledge that no adjustments may be made to the Working Capital Target.

(d)           Disputes.

(i)               Seller shall have sixty (60) days to review the Closing Statement. If Seller disagrees with Purchaser’s calculation of the Closing Date Purchase Price as set forth in the Closing Statement, Seller may, within sixty (60) days after receipt of the Closing Statement, deliver a notice to Purchaser (a “Dispute Notice”) disagreeing with such calculation and setting forth Seller’s alternative calculations for each item of disagreement. Any matters not disputed in the Dispute Notice shall be deemed to have been accepted in all respects by Seller and final and binding upon the Parties. If Seller fails to deliver such notice during such sixty (60) day period, Seller shall have waived its rights to contest the Closing Statement and the calculations of the Closing Date Purchase Price set forth therein shall be deemed to be final and binding upon the Parties and such amount shall be used for purposes of calculating the adjustment pursuant to Section 1.3(e).

(ii)              If a Dispute Notice is duly delivered pursuant to Section 1.3(d)(i), Seller and Purchaser shall, during the thirty (30) days following such delivery, attempt to reach agreement on the disputed items or amounts to determine, as may be required, the amount of the Closing Date Purchase Price. Any such agreement shall be in writing and shall be final and binding upon the Parties. If during such period, Seller and Purchaser are unable to reach such agreement, then all amounts and items remaining in dispute shall be submitted by Seller and Purchaser to Duff & Phelps LLC (the “Accounting Referee”) for a determination resolving such disputed items or amounts for the purpose of calculating the Closing Date Purchase Price (it being agreed and understood that the Accounting Referee shall act as an expert (and not an arbitrator) to determine such disputed items or amounts (and, as a result thereof, the Closing Date Purchase Price) and shall do so based solely on written presentations and information provided by Purchaser and Seller and not by independent review). Purchaser and Seller shall agree, promptly after the appointment of the Accounting Referee, on the process and procedures governing the resolution of any disputed items by the Accounting Referee, provided, that if such Parties fail to agree on such process and procedures within ten (10) days following the appointment of the Accounting Referee, then such process and procedures shall be determined by the Accounting Referee (it being agreed and understood that such process shall include, at a minimum, appropriate measures to ensure compliance by the applicable parties with Section 1.3(f) and the process and procedures for the submission of any written presentations by Seller and Purchaser and the time periods thereof). In conducting its review, the Accounting Referee shall consider only those items or amounts in the Closing Statement and Purchaser’s calculations of the Closing Date Purchase Price as to which Seller has disagreed. The scope of the disputes to be resolved by the Accounting Referee shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with this Agreement (including the definitions of the terms Working Capital, Closing Cash, Closing Date Indebtedness and Transaction Expenses and the Accounting Rules and Section 1.3(a)) and the Accounting Referee is not to make any other determination. The Accounting Referee shall deliver to Seller and Purchaser, as promptly as practicable (but in any case no later than thirty (30) days from the date of engagement of the Accounting Referee), a report setting forth its calculations of the items in dispute and the resulting Closing Date Purchase Price, which amount of each such item in dispute shall not be less than the applicable amount thereof shown in Purchaser’s calculation delivered pursuant to Section 1.3(c) nor more than the applicable amount thereof shown in Seller’s calculation delivered pursuant to Section 1.3(d)(i). Such report shall be final and binding upon the Parties and shall be used for purposes of calculating the adjustment pursuant to Section 1.3(b) above. Notwithstanding anything herein to the contrary, the dispute resolution mechanism contained in this Section 1.3(d) shall be the exclusive mechanism for resolving disputes regarding the Purchase Price adjustment, if any. Judgment may be entered upon the determination of the Accounting Referee in any court having jurisdiction over the party against which such determination is to be enforced. The fees, costs and expenses of the Accounting Referee shall be borne by the Parties in proportion to the relative amount each Party’s determination has been modified, with any amount to be borne by Seller to be paid solely out of the Adjustment Escrow Fund. For example, if Seller challenges the calculation of the Closing Date Purchase Price by an amount of $100,000, but the Accounting Referee determines that Seller has a valid claim for only $60,000, Seller shall bear (solely out of the Adjustment Escrow Fund) 40% of the fees and expenses of the Accounting Referee and Purchaser shall bear the other 60% of such fees and expenses.

(e)           Final Closing Date Purchase Price. Following the time that the Closing Date Purchase Price is finally determined pursuant to this Section 1.3 (such finally determined amount, the “Final Closing Date Purchase Price”), payment shall be made as follows:

(i)               If the Final Closing Date Purchase Price is greater than the Estimated Purchase Price, within five (5) Business Days after the Final Closing Date Purchase Price is determined pursuant to this Section 1.3, (x) Purchaser shall pay to Seller, by wire transfer of immediately available funds to one or more accounts designated in writing by Seller, an amount equal to such excess and (y) Seller and Purchaser shall jointly instruct the Escrow Agent to release to Seller, by wire transfer of immediately available funds to one or more accounts designated in writing by Seller, the remaining funds in the Adjustment Escrow Fund.

(ii)              If the Final Closing Date Purchase Price is less than the Estimated Purchase Price, within five (5) Business Days after the Final Closing Date Purchase Price is determined pursuant to this Section 1.3, Seller and Purchaser shall jointly instruct the Escrow Agent to (x) pay to Purchaser, out of the Adjustment Escrow Fund, by wire transfer of immediately available funds to an account designated in writing by Purchaser, an amount equal to such deficiency and (y), if and to the extent that any balance in the Adjustment Escrow Fund will remain after such payment to Purchaser, release to Seller, by wire transfer of immediately available funds to one or more accounts designated in writing by Seller, the remaining funds in the Adjustment Escrow Fund.

Upon payment of the amounts provided in this Section 1.3(e) in accordance herewith, none of the Parties may make or assert any claim under this Section 1.3. Notwithstanding the foregoing, nothing in this Agreement shall in any manner impair any right, remedy or recourse Purchaser may have against Seller, its Affiliates or their respective Designated Representatives for Fraud in connection with this Agreement.

(f)           Cooperation. During the period of time from and after the Closing Date through the final determination and payment of the Final Closing Date Purchase Price in accordance with this Section 1.3, Seller and Purchaser shall, and Purchaser shall cause the Companies and each of their representatives to, reasonably cooperate and assist in any review by the Accounting Referee of the Closing Statement and the calculations of the Closing Date Purchase Price and in the conduct of the review referred to in this Section 1.3. Purchaser shall afford, and shall cause the Companies to afford, to Seller and any accountants, counsel or financial advisers retained by Seller in connection with the review of the Closing Date Purchase Price, reasonable access during normal business hours upon reasonable advance notice to the books, records, contracts, documents, information, executive personnel and representatives (including the Companies’ accountants, subject to Seller’s execution of customary agreements required by such accountants in connection with such access) of the Companies and, if requested by Seller, shall provide any such books, records, contracts, documents and information electronically and in such formats as are reasonably requested, in each case to the extent reasonably necessary to the review of the Closing Statement and to the determination of the Closing Date Purchase Price. No actions taken by Purchaser on its own behalf or on behalf of the Companies, on or following the Closing Date shall be given effect for purposes of determining the Working Capital, and the determination of the Closing Date Purchase Price shall not take into account any developments or events taking place after the Closing.

1.4           Escrow Amount.

(a)               At the Closing, a portion of the Estimated Purchase Price in an amount equal to the Adjustment Escrow Amount shall be deposited with the Escrow Agent in accordance with the Escrow Agreement and such amount, as adjusted from time to time, together with any interest or other income earned thereon, shall be referred to as the “Adjustment Escrow Fund”. Neither the Seller nor any other Person shall have any liability for any amounts due to Purchaser pursuant to Section 1.3 in excess of the Adjustment Escrow Amount, and Purchaser’s sole source of recourse and recovery for such amounts due shall be the funds available in the Adjustment Escrow Fund. The Adjustment Escrow Funds may be distributed to Purchaser and/or Seller solely and exclusively in accordance with Section 1.3(e) and the terms of the Escrow Agreement and shall not be available for any other payment to Purchaser or any of its Affiliates.

(b)               At the Closing, a portion of the Estimated Purchase Price in an amount equal to the Indemnity Escrow Amount shall be deposited with the Escrow Agent in accordance with the Escrow Agreement and such amount, as adjusted from time to time, together with any interest or other income earned thereon, shall be referred to as the “Indemnity Escrow Fund”. Neither Seller nor any other Person shall have any liability for any amounts due to Purchaser pursuant to Article VIII in excess of the Indemnity Escrow Amount, and Purchaser’s sole source of recourse and recovery for such amounts due shall be the funds available in the Indemnity Escrow Fund. The Indemnity Escrow Funds may be distributed to Purchaser and/or Seller solely and exclusively in accordance with Article VIII and the terms of the Escrow Agreement and shall not be available for any other payment to Purchaser or any of its Affiliates.

Article II

CLOSING

2.1           Closing. Subject to the terms and conditions of this Agreement, the closing of the Transaction (the “Closing”) shall take place at 10:00 a.m., Eastern Standard Time, at the offices of Kirkland & Ellis LLP, 300 North LaSalle Street, Chicago, Illinois 60654 (or remotely via the exchange of documents and signatures in PDF format or by facsimile) (a) no later than two (2) Business Days after the last of the conditions to the Closing set forth in Article VII have been satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date); provided, that, in no event is the Closing to occur prior to the Trigger Date, or (b) at such other time or on such other date or at such other place as Seller and Purchaser may mutually agree upon in writing (the day on which the Closing takes place being the “Closing Date”).

2.2           Deliveries by the Companies and Seller at Closing. At the Closing, the Companies and/or Seller, as applicable, shall deliver, or cause to be delivered, to Purchaser the following:

(a)           with respect to the Acquired Securities, a Transfer and Assignment Agreement executed by Seller;

(b)           an executed counterpart to the Escrow Agreement, duly executed by each of the Escrow Agent and Seller;

(c)           written resignations of all officers and managers or the Companies (other than those individuals identified by Purchaser prior to Closing);

(d)           final invoices (with wire instructions) for the payees of all Transaction Expenses set forth in the Pre-Closing Statement;

(e)           an executed counterpart to the Employee Assignment and Assumption Agreements;

(f)           certified copies of the certificates of formation and operating agreements of the Companies and the resolutions of the respective sole managers of the Companies approving this Agreement and the Transaction and the incumbency and signatures of the officers of the Companies executing the Transaction Agreements;

(g)           a certified copy of the resolutions of Seller’s sole manager approving this Agreement and the Transaction and the incumbency and signatures of the officers of Seller executing the Transaction Agreements;

(h)           certificates of good standing of the Secretary of State in the respective jurisdictions in which the Companies are organized, each dated not more than ten (10) days prior to the Closing Date, certifying that the Companies are in good standing;

(i)           a certification, dated as of the Closing Date, of Seller’s (or if Seller is a disregarded entity for U.S. federal income tax purposes, then of the first non-disregarded entity owner of Seller’s) non-foreign status, as set forth in Treasury Regulations § 1.1445-2(b); and

(j)           an executed counterpart to the Transitional Services Agreement.

2.3           Deliveries by Purchaser at the Closing. At the Closing, Purchaser shall deliver, or cause to be delivered, to Seller and the Escrow Agent, as applicable, the following:

(a)           to Seller and the Escrow Agent, the applicable Closing Payment, as set forth in the Pre-Closing Statement delivered pursuant to Section 1.3(a);

(b)           to Seller, the Transfer and Assignment Agreement, duly executed by Purchaser;

(c)           to Seller and the Escrow Agent, an executed counterpart to the Escrow Agreement, duly executed by Purchaser;

(d)           to Seller, resolutions of Purchaser’s board of directors (or similar governing body) approving this Agreement and the Transaction and the incumbency and signatures of the officers of Purchaser executing the Transaction Agreements; and

(e)           an executed counterpart to the Transitional Services Agreement.

Article III

REPRESENTATIONS AND WARRANTIES OF SELLER

Except as set forth on the disclosure schedule delivered by Seller to Purchaser on the date hereof concurrently with entry into this Agreement (the “Company Disclosure Schedule”) and attached to this Agreement as Schedule A (and provided that disclosure in any section of such Company Disclosure Schedule shall be deemed disclosed with respect to any other Section of this Agreement (in addition to the Section referenced in such schedule) to the extent that it is reasonably apparent from the wording of such disclosure that such disclosure is applicable to such other Section), as of the date hereof, Seller hereby represents and warrants to Purchaser as follows:

3.1           Organization and Power. Seller is a limited liability company duly formed or organized, validly existing and in good standing under the laws of its jurisdiction of organization. Seller is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character or location of any properties or assets owned, operated or leased by it makes such licensing or qualification necessary, except for those jurisdictions where the failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Seller to perform its obligations under this Agreement. Seller has the requisite power and authority to execute and deliver this Agreement and each other Transaction Agreement to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transaction. Seller has the requisite power and authority to own, operate or lease all of its properties and assets and to carry on its business as it is now being conducted in all material respects. Seller has delivered to Purchaser true and complete copies of its Organizational Documents, as amended through the date hereof.

3.2            Authorization of Agreement. The execution, delivery and performance by Seller of the Transaction Agreements to which it is a party and the consummation of the Transaction have been duly authorized by the requisite limited liability company action on the part of Seller. No other action on the part of Seller is necessary to authorize (a) the execution and delivery of this Agreement and the other Transaction Agreements to which it is a party, (b) the performance of Seller’s obligations hereunder or thereunder and (c) the consummation of the Transaction. Each of the Transaction Agreements to which Seller is a party has been or will be at or prior to the Closing, duly and validly executed and delivered by Seller and (assuming the due authorization, execution and delivery by the other parties thereto) each such Transaction Agreement, when so executed and delivered, will constitute, the legal, valid and binding obligations of Seller, enforceable against it in accordance with its terms, subject to applicable Equitable Principles.

3.3           Conflicts; Consents of Third Parties.

(a)           Except as set forth on Section 3.3(a) of the Company Disclosure Schedule, none of the execution, delivery and performance by Seller of this Agreement or the other Transaction Agreements to which it is a party, or the consummation of the Transaction by Seller, conflicts with, violates or constitutes a default under, or permits the acceleration of any obligation under, or gives rise to a right of termination, modification or cancellation by any third party under (in each case with or without notice or lapse of time, or both),(i) any provision of the Organizational Documents of Seller or one or more of its parent companies; (ii) any Contract, Lease, Permitted Lien or Permit to which Seller is a party or by which any of its properties or assets are bound; or (iii) any Law applicable to Seller, except in the case of clauses (ii) and (iii), where such conflict, violation or default would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Seller to perform its obligations under this Agreement.

(b)           Except as set forth on Section 3.3(b) of the Company Disclosure Schedule, no consent, waiver, approval, waiting period expiration or termination, Order, Permit or authorization of, or declaration, registration or filing with, or notification to, any Governmental Authority is required on the part of Seller or any Affiliate of Seller in connection with the execution, delivery and performance by Seller of this Agreement or the other Transaction Agreements to which it is a party or the consummation of the Transaction by Seller, except as may be necessary as a result of the identity or the legal or regulatory status of Purchaser or its Affiliates.

3.4           Acquired Securities. Seller owns (beneficially and of record), and has good, valid and marketable title to the Acquired Securities set forth on Section 3.4(a) of the Company Disclosure Schedule, in each case free and clear of all Liens other than limitations under the Organizational Documents of the issuer of the Acquired Securities and Liens imposed by Purchaser or under applicable securities Laws or which will be discharged or released at or prior to Closing. Except as set forth on Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, call or other rights or agreements to which Seller is a party requiring Seller to sell or transfer its Acquired Securities to any Person other than as provided in this Agreement. Except as set forth on Section 3.4(b) of the Company Disclosure Schedule, Seller is not party to any voting trust or other agreement with respect to the voting, redemption, sale, pledge, transfer or other disposition of its Acquired Securities.

3.5           Legal Proceedings. There is no pending or, to the Knowledge of Seller, threatened, Legal Proceedings against Seller which relates to the Acquired Securities owned by Seller or, if determined adversely to Seller, would reasonably be expected to adversely affect the ability of Seller to consummate the Transaction. There is no outstanding Order imposed on Seller that would reasonably be expected to adversely affect the ability of Seller to consummate the Transaction.

3.6           Limitations of Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS Article III (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE), SELLER MAKES NO, AND HAS NOT AUTHORIZED ANY OF THE COMPANIES, ANY OF ITS OR THEIR AFFILIATES OR ANY OTHER PERSON TO MAKE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO SELLER, THE ACQUIRED SECURITIES, THE COMPANIES OR THE TRANSACTION, AND SELLER DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY SELLER, ANY AFFILIATE OF SELLER, THE COMPANIES, ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY OTHER PERSON AND IF MADE, ANY SUCH REPRESENTATION OR WARRANTY MAY NOT BE RELIED UPON BY PURCHASER OR ANY OF ITS AFFILIATES AND REPRESENTATIVES AS HAVING BEEN AUTHORIZED BY SELLER OR ANY OF ITS AFFILIATES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS Article III (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE), SELLER HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, OPINION, PROJECTION, FORECAST, STATEMENT, MEMORANDUM, PRESENTATION, ADVICE OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PURCHASER OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, PROJECTION, FORECAST, STATEMENT, MEMORANDUM, PRESENTATION, ADVICE OR INFORMATION THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PURCHASER BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF SELLER OR ANY OF ITS AFFILIATES), INCLUDING ANY INFORMATION MADE AVAILABLE IN ANY ELECTRONIC DATA ROOM HOSTED BY SELLER, THE COMPANIES OR ANY OF THEIR REPRESENTATIVES IN CONNECTION WITH THE TRANSACTION. SELLER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES TO PURCHASER REGARDING THE PROBABLE SUCCESS OR FUTURE PROFITABILITY OF THE BUSINESS CONDUCTED BY THE COMPANIES.

Article IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANIES

Except as set forth on the Company Disclosure Schedule (and provided that disclosure in any section of such Company Disclosure Schedule shall be deemed disclosed with respect to any other Section of this Agreement (in addition to the Section referenced in such schedule) to the extent that it is reasonably apparent from the wording of such disclosure that such disclosure is applicable to such other Section), as of the date hereof, each Company hereby represents and warrants to Purchaser as follows:

4.1           Organization and Power. Each of the Companies is a limited liability company duly formed or organized, validly existing and in good standing under the laws of its jurisdiction of organization. Each of the Companies is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character or location of any properties or assets owned, operated or leased by it makes such licensing or qualification necessary, except for those jurisdictions where the failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the Companies has the requisite power and authority to execute and deliver this Agreement and each other Transaction Agreement to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transaction. Except as set forth on Section 4.1 of the Company Disclosure Schedule, each of the Companies has the 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 in all material respects.

4.2           Authorization of Agreement. The execution, delivery and performance by the Companies of the Transaction Agreements to which it is a party and the consummation of the Transaction have been duly authorized by the requisite limited liability company action on the part of such Company. No other action on the part of any Company is necessary to authorize (a) the execution and delivery of this Agreement and the other Transaction Agreements to which it is a party, (b) the performance of its obligations hereunder or thereunder and (c) the consummation of the Transaction. Each of the Transaction Agreements to which a Company is a party has been or will be at or prior to the Closing, duly and validly executed and delivered by the applicable Company and (assuming the due authorization, execution and delivery by the other parties thereto) each such Transaction Agreement, when so executed and delivered, will constitute, the legal, valid and binding obligations of such Company, enforceable against it in accordance with its terms, subject to applicable Equitable Principles.

4.3           Conflicts; Consents of Third Parties.

(a)           Except as listed on Section 4.3(a) of the Company Disclosure Schedule, and assuming all Governmental Approvals as contemplated by Section 4.3(b) below have been obtained and are effective and all applicable waiting periods thereto have expired or been terminated and all filings and notifications described in Section 4.3(b) have been made, none of the execution, delivery and performance by any Company of this Agreement or the other Transaction Agreements to which it is a party or the consummation of the Transaction by such Company will (i) result in the creation of any Lien upon any material property or asset of any Company or any of the Acquired Securities, or (ii) conflict with, violate, breach or constitute a default (with or without notice or lapse of time, or both) under, give rise to a right of termination, modification, cancellation or acceleration of any obligation or loss of any benefit under, or require any consent, approval or waiver from any Person pursuant to or under any provision of (A) the Organizational Documents of any Company; (B) any Material Contract, Material Sign Location Lease or material Permit to which a Company is a party or by which any of its properties or assets are bound; or (C) any Law applicable to any Company, except in the case of clauses (B) and (C), where such conflict, violation, breach or default would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(b)           Except as set forth on Section 4.3(b) of the Company Disclosure Schedule, no consent, notice, waiver, approval, waiting period expiration or termination, Order, Permit or authorization of, or declaration, registration or filing with, or notification to, any Governmental Authority (a “Governmental Approval”) is required on the part of any Company in connection with the execution, delivery and performance by such Company of this Agreement or the other Transaction Agreements to which it is a party or the consummation of the Transaction by Seller, except for any such Governmental Approval, the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

4.4           Capitalization; Subsidiaries.

(a)           Section 4.4(a) of the Company Disclosure Schedule sets forth a complete and accurate list of each of the record and beneficial holders of the Acquired Securities. Seller is the sole record and beneficial owner of all of the Acquired Securities. The Acquired Securities have been duly authorized and validly issued, are owned beneficially and of record by Seller, free and clear of any Liens, and were not issued in violation of, any purchase or call option, right of first refusal, subscription rights, preemptive rights, transfer restriction or any similar rights or any federal or state securities Laws. Except for the Units and as otherwise set forth in Section 4.4(a) of the Company Disclosure Schedule, there are no outstanding (i) membership interests or other equity interests or voting securities of any Company, (ii) securities convertible or exchangeable into membership interests or other equity interests or voting securities of any Company, (iii) options, warrants, purchase rights, subscription rights, preemptive rights, conversion rights, exchange rights, calls, puts, rights of first refusal or other Contracts that require any Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem membership interests or other equity interests of the Companies or (iv) equity appreciation, phantom equity, profit participation or similar rights with respect to any Company.

(b)           Neither of the Companies has any Subsidiaries except as listed on Section 4.4(b) of the Company Disclosure Schedule.

4.5           Financial Statements.

(a)           Section  4.5(a) of the Company Disclosure Schedule sets forth accurate and complete copies of the following financial information (collectively, the “Business Financial Information”):

(i)               unaudited revenues and certain expenses for the twelve month periods ended December 31, 2017 and December 31, 2018, in each case solely for the Business as operated in the Area, both in the aggregate for the Area and broken down by each of the markets comprising the Area; and

(ii)              unaudited balance sheets of the Companies and the related statements of revenues and certain expenses, for the six-month period ended June 30, 2019.

(b)           June 30, 2019, shall be referred to herein as the “Financial Information Reference Date”.

(c)           The Business Financial Information reasonably presents, in all material respects, the revenues and certain expenses, and certain operating assets and liabilities of the Business, as operated in the Area, as of the dates and for the respective periods indicated, except (i) in each case as set forth on Section 4.5(c) of the Company Disclosure Schedule, (ii) the exclusion of certain costs, assets and liabilities, that are maintained by Seller, and not allocated to the Business Financial Information, (iii) that such Business Financial Information may be subject to normal year-end adjustments and (iv) for the absence of notes thereto throughout the periods covered thereby.

(d)           Except as set forth on Section 4.5(d) of the Company Disclosure Schedule, the Companies do not have any outstanding Indebtedness.

(e)           Except as set forth on Section 4.5(e) of the Company Disclosure Schedule, no Company has any Liabilities (whether direct or indirect, absolute or contingent, accrued or unaccrued, known or unknown, liquidated or unliquidated, or due or to become due) that would be required to be reflected or reserved against on a combined balance sheet of the Companies prepared in accordance with GAAP, other than (i) those which are adequately reflected or reserved against in the Business Financial Information as of the Financial Information Reference Date, (ii) those which have been incurred in the Ordinary Course of Business since the Financial Information Reference Date, (iii) those included in the calculation of the Closing Consideration, (iv) those that are repaid, terminated, forgiven, settled, cancelled or otherwise extinguished at Closing pursuant to the terms of this Agreement, (v) those incurred in connection with the Transaction, (vi) those that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and (vii) those under Contracts set forth on the Company Disclosure Schedules or not required to be listed thereon (but not for breaches thereof).

4.6           Absence of Certain Developments. Except as set forth on Section 4.6 of the Company Disclosure Schedule, (a) since the Financial Information Reference Date, the Business has been conducted in all material respects in the Ordinary Course of Business and (b) since the Financial Information Reference Date until the date hereof, there has not been any event, change, occurrence, development or circumstance that has or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

4.7           Legal Proceedings. Except as set forth on Section 4.7 of the Company Disclosure Schedule, there are no (a) pending or, to the Knowledge of Seller, threatened, Legal Proceedings against the Companies or Legal Proceedings against the Companies or FMG Outdoor that have occurred in the past twelve (12) months that relate to the Business and that would reasonably be expected to be material to the Companies. No event has occurred or facts or circumstances exist, which to the Knowledge of Seller, reasonably would be expected to lead to any Legal Proceeding against the Companies or the Business. Notwithstanding the foregoing, for all purposes of this Agreement, the Companies do not make any representation or warranty (pursuant to this Section 4.7 or otherwise) regarding the effect of the applicable antitrust, merger control, competition or fair trade laws on its ability to execute, deliver or perform its obligations under this Agreement or to consummate the Transaction as a result of the enactment, promulgation, application or threatened or actual judicial or administrative investigation or Legal Proceeding under, or enforcement of, any antitrust, merger control, competition or fair trade Law with respect to the consummation of the Transaction.

4.8           Compliance with Laws; Permits.

(a)           Except as set forth on Section 4.8(a) of the Company Disclosure Schedule, each of the Companies is in material compliance and each of the Companies and FMG Outdoor has, in the three (3) years prior to the date of this Agreement, materially complied with all Laws applicable to the ownership of the assets of the Companies and the operation of the Business. In the three (3) years prior to the date of this Agreement, neither the Companies nor FMG Outdoor has received any written notice of, or been formally charged by a Governmental Authority with, the material violation of any Laws applicable to the ownership of the assets of the Companies or the operation of the Business, including, without limitation, the Owned Real Property and the Leased Real Property.

(b)           Except as set forth on Section 4.8(b) of the Company Disclosure Schedule, each of the Companies holds (or the Business otherwise validly operates under) and is in compliance with the terms of all material Permits that are required for the ownership of the assets of the Companies and the operation of the Business, including from the Owned Real Property and Leased Real Property. All such Permits are validly held by the Companies and, since the Reference Date, the Companies and FMG Outdoor have complied in all material respects with the terms and conditions thereof. In the three (3) years prior to the date of this Agreement, neither the Companies, FMG Outdoor nor any of their respective Affiliates has received written notice of any Legal Proceeding or other material noncompliance relating to any such Permits.

(c)           None of the representations and warranties contained in this Section 4.8 shall be deemed to relate to tax matters (which are governed by Section 4.9), environmental matters (which are governed by Section 4.11), employee benefits matters (which are governed by Section  4.15), or employment matters (which are governed by Section 4.16).

4.9           Taxes.

(a)           The Companies and FMG Outdoor have prepared and timely filed, or caused to be prepared and timely filed, with the appropriate Taxing Authorities, all income and other material Tax Returns required to be filed with respect to the Companies, the Owned Real Property and the Leased Real Property, taking into account any extensions of time to file and all such Tax Returns are true, accurate and complete in all material respects, were prepared in substantial compliance with all applicable requirements of Law, and disclose all Taxes required to be paid for the periods covered thereby.

(b)           The Companies and FMG Outdoor have timely paid, or caused to be timely paid, all Taxes (whether or not shown as due and payable on any Tax Return) with respect to the Companies.

(c)           No material deficiencies for any Taxes have been proposed, asserted or assessed in writing against the Companies or FMG Outdoor that are still pending or have not been paid in full.

(d)           No extensions of the period for assessment of any Taxes or the assertion of any deficiency in respect of Taxes are in effect with respect to any Company.

(e)           There is no material dispute, examination, claim, audit, action, suit, proceeding or investigation by any Taxing Authority concerning liability of any Company, nor has any Company or FMG Outdoor received written notice from any Taxing Authority of an intention to begin such a proceeding with respect to a Company.

(f)           No claim has been made in writing by any Taxing Authority in a jurisdiction where the Companies do not file Tax Returns with respect to a particular Tax that any of the Companies is or may be subject to taxation in such jurisdiction that has not been resolved, except for claims that would not be material to the Companies.

(g)           There are no Liens for Taxes upon any of the assets or properties of the Companies, including, without limitation, the Owned Real Property and the Company’s leasehold interest in the Leased Real Property, except for Permitted Liens and except as would not be material to the Companies.

(h)           Neither of the Companies nor FMG Outdoor has participated in any listed transaction within the meaning of Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b)(2).

(i)           Neither of the Companies (i) has any liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6 or any similar provision of state, local or foreign law, as a transferee or successor, by contract or otherwise and (ii) is not a party to or bound by any Tax allocation or sharing agreement (other than commercial agreements the primary subject of which is not Taxes).

(j)           Neither of the Companies (together with any predecessor entities) has made an election pursuant to Treasury Regulations Section 301.7701-3 (or any comparable provision pursuant to state, local or foreign Law) to be treated as an association taxable as a corporation for tax purposes. Each Company (together with any predecessor entities) has been treated as a disregarded entity for U.S. federal (and applicable state and local) income tax purposes since its date of formation.

4.10          Title to Properties.

(a)           Section 4.10(a)(i) of the Company Disclosure Schedule sets forth a true, correct, complete and accurate list of all Owned Real Property, as well as a list of all Owned Real Property that generated at least $10,000 in client revenues in the twelve months ending on June 30, 2019 (“Material Owned Sign Location Properties”), in each case, other than any incomplete information or inaccuracies which would not be material to the Companies taken as a whole. Except as set forth on Section 4.10(a)(ii) of the Company Disclosure Schedule, the Company has good, valid and marketable fee simple title to all Owned Real Property, free and clear of all Liens (other than Permitted Liens), except as would not have a Company Material Adverse Effect. Except as set forth on Section 4.10(a)(ii) of the Company Disclosure Schedule, neither of the Companies nor FMG Outdoor has leased, subleased, licensed, optioned, granted any right of first refusal or right of first offer with respect to, or encumbered its interests in, the Owned Real Property or any portion thereof. With respect to each Owned Real Property, to the Knowledge of Seller, there is no pending or threatened rezoning, expropriation, condemnation, or other proceeding in eminent domain, affecting any Owned Real Property or any portion thereof or any interest therein, except as would not have a Company Material Adverse Effect.

(b)           Section 4.10(b)(i) of the Company Disclosure Schedule sets forth a true, correct, complete and accurate list of all Leased Real Property that generated at least $10,000 in client revenues in the twelve months ending on June 30, 2019 (“Material Sign Location Leases”), including the address and names of the lessors thereto, other than any incomplete information or inaccuracies which would not be material to the Companies, taken as a whole. Except as set forth on Section 4.10(b)(ii) of the Company Disclosure Schedule, and except as would not reasonably be expected to have, individually or in the aggregate a Company Material Adverse Effect, each Lease is in full force and effect and is a legal, valid, binding and enforceable obligation of a Company and to the Knowledge of Seller, the other parties thereto. None of the Companies nor, to the Knowledge of Seller, any other party to the Material Sign Location Leases is in breach or default under such Lease and no event has occurred or circumstances exist which, with the delivery of notice, the passage of time or both, would constitute a breach or default, or permit the termination, modification or acceleration of rent under such Material Sign Location Lease, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of Seller, there are no pending or threatened condemnation or eminent domain proceedings relating to any Material Sign Location Lease. No party to any Material Sign Location Lease has exercised any option or right to (i) terminate such Material Sign Location Lease prior to the end of the term thereof, (ii) lease additional premises pursuant to such Material Sign Location Lease, (iii) reduce or relocate the premises demised by such Material Sign Location Lease or (iv) purchase any real property pursuant to such Material Sign Location Lease. True, correct and complete copies of all Leases, together with all modifications, extensions, amendments and assignments thereof, if any, have been made available to Purchaser.

(c)           Section 4.10(c) of the Company Disclosure Schedule sets forth a true, correct, complete and accurate list of all Office Properties, indicating with respect to each such Office Property (i) its address, and (ii) whether it is owned (an “Owned Office Property”) or Leased (a “Leased Office Property”). Except as set forth in Section 4.10(c) of the Company Disclosure Schedule, the applicable Company and, with respect to clauses (ii) and (iii) only, FMG Outdoor, (i) has good and marketable fee simple title to such Owned Office Property, free and clear of all Liens (other than Permitted Liens); (ii) has not leased or otherwise granted to any Person the right to use or occupy such Owned Office Property or any portion thereof; and (iii) has not leased, subleased, licensed, optioned, granted any right of first refusal with respect to, or encumbered in writing its interest in the Owned Office Property or any portion thereof. Except as set forth on Section 4.10(c) of the Company Disclosure Schedule, each Office Lease and Warehouse Lease is in full force and effect and is a legal, valid, binding and enforceable obligation of a Company and, to the Knowledge of Seller, the other parties thereto.

(d)           No Company is in default under, or in breach of, any Permitted Lien in any material respect, and to the Knowledge of Seller, no other party to any of the Permitted Liens is in default under, or in breach of, any of the Permitted Liens in any material respect. No casualty event has occurred at or with respect to any of the Owned Real Property or Leased Real Property in the past twenty-four (24) months, other than any such event which would not be material to the Companies taken as a whole.

(e)           The Owned Real Property and the Leased Real Property comprise in all material respects all of the real property currently used in, or otherwise related to, the Business.

4.11          Environmental Matters.

(a)           Except as set forth on Section 4.11(a) of the Company Disclosure Schedule:

(i)               The Companies and FMG Outdoor are and have been for the past three (3) years, in material compliance with and have no material liabilities under applicable Environmental Laws.

(ii)              The Companies maintain and are in material compliance with, and the Companies and FMG Outdoor are in material compliance and have materially complied with for the past three (3) years, all Permits that are required under Environmental Laws for the ownership and operation of the Business as presently conducted (collectively, the “Environmental Permits”), and the Companies are not in material default or material violation of any material term, condition or provision of any Environmental Permit.

(iii)             For the past three (3) years (or prior thereto if unresolved), neither FMG Outdoor or either of the Companies, has received any written notice of (i) a Legal Proceeding, Order, claim or any other information alleging that a Company or FMG Outdoor, with respect to the Business, is or was in material violation of or has any material liability, including for investigation, cleanup or remediation of Hazardous Materials under any Environmental Law, or (ii) a Release or threatened Release of or exposure to Hazardous Material at, on, under, to, in or from any Owned Real Property or any other location, in each case with respect to which either Company or FMG Outdoor, with respect to the Business, would reasonably be expected to have material liability.

(iv)             Neither FMG Outdoor, with respect to the Business, nor either of the Companies, has assumed, undertaken, or provided an indemnity with respect to, any material liability of any other Person relating to Hazardous Materials or Environmental Law, in each case so as to give rise to any material liability or any reasonably expected future material liability of the Companies, pursuant to any Environmental Law.

(v)             The Companies have made available to Purchaser copies of all environmental reports, audits, assessments, and investigations, and all other material environmental documents, related to any Owned Real Property, Leased Real Property or any other real property currently or formerly owned, operated, leased or occupied by FMG Outdoor or either Company, that are in the possession of the Companies or FMG Outdoor or any of their respective representatives.

(vi)             Neither FMG Outdoor, nor the Companies, own or operate any underground storage tanks and no underground storage tanks are located at any Owned Real Property or Leased Real Property, in each case as would reasonably be expected to give rise to material liability to either of the Companies, pursuant to any Environmental Law.

4.12          Material Contracts.

(a)           Section 4.12(a) of the Company Disclosure Schedule sets forth a list of all of the following Contracts as of the date of this Agreement (unless otherwise specified below) to which any Company is a party or by which it is bound (the Contracts identified or required to be identified in Section 4.12(a) of the Company Disclosure Schedule, are collectively referred to as the “Material Contracts”):

(i)               each Sign Location Lease with respect to which the Structure(s) operated thereunder produced advertising revenue in excess of $25,000 for calendar year 2018;

(ii)              each easement comprising a Sign Location Lease with respect to which the Structure(s) operated thereunder produced advertising revenue in excess of $25,000 for calendar year 2018;

(iii)             all Office Leases;

(iv)             all Warehouse Leases;

(v)              each Advertising Contract which provides for future revenue by the advertising customer as of September 30, 2019;

(vi)             Contracts entered into since the Reference Date (or pursuant to which any unpaid amounts or future obligations remain) relating to the acquisition or disposition by a Company or FMG Outdoor of any business, capital stock or other equity security, asset or product line;

(vii)           Contracts for or relating to the making of any material loans to, or guarantee of obligations of, or investments in, another Person;

(viii)          Contracts (or groups of related contracts) which involved payment to or by a Company of more than $100,000 per annum in the aggregate during the fiscal year ending December 31, 2018 (including Contracts with respect to utilities, including gas, water and electricity) (other than any Sign Location Lease);

(ix)            Contracts granting a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests in a Company;

(x)             Contracts containing covenants prohibiting, restricting or limiting the right or ability of a Company, during any period of time and/or in any geographic area, (a) to compete in any line of business, (b) to conduct business with any Person, (c) to provide services to any Person or (d) to solicit or hire any Person;

(xi)            Contracts for joint venture agreements, strategic alliances, sharing of profits or similar partnerships;

(xii)           Contracts relating to the incurrence, assumption or guarantee of any indebtedness or imposing a Lien (other than a Permitted Lien) on any of the assets of a Company, including indentures, guarantees, loan or credit agreements;

(xiii)          Contracts involving the settlement of any Legal Proceeding to which any unpaid amounts or future obligations remain;

(xiv)          Contracts that require a Company to make any material capital expenditures; and

(xv)           Contracts which provide for indemnification to any Person (other than (x) agreements with customers, vendors, lenders or lessors entered into in the Ordinary Course of Business or (y) the Organizational Documents of the Companies) or the express assumption of any Tax or material environmental liability.

(b)           Except as set forth on Section 4.12(b) of the Company Disclosure Schedule, each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company party thereto, as the case may be, and, to the Knowledge of Seller, of any other party or parties thereto, except (i) as enforceability may be limited by applicable Equitable Principles or (ii) where the failure to be legal, valid, binding or enforceable would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. None of the Companies nor, to the Knowledge of Seller, any other party to the Material Contracts is in breach or default under such Material Contract and no event has occurred or condition or circumstance exists, with respect to the Companies or FMG Outdoor which, with the delivery of notice, the passage of time or both, or the happening of any other event or condition, would reasonably be expected to constitute a breach or default, or permit the termination, modification or acceleration under such Material Contract. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given or received notice of any dispute with respect to any Material Contract.

4.13          Personal Property. Except as set forth in Section 4.13 of the Company Disclosure Schedule, each of the Companies has good title to (or a valid and binding leasehold interest in) the tangible personal property currently used in the conduct of the Business (other than items of tangible personal property that individually and in the aggregate are immaterial to the operation of the Business), and such title or leasehold interests are free and clear of all Liens (other than Permitted Liens). All items of tangible personal property that are material to the operation of the Business are in reasonably good operating condition and repair (subject to normal wear and tear).

4.14          Intellectual Property. Except as set forth on Section 4.14 of the Company Disclosure Schedule, the operation of the Business does not and has not infringed, misappropriated, or otherwise violated any Intellectual Property of any third party in any material respect. There is no pending or, to the Knowledge of Seller, threatened claim by any Person contesting the ownership or use of any Intellectual Property used or held for use in the business of the Companies. Each of the Companies owns, or has a valid and enforceable license to use for its business, all Intellectual Property currently used in its business free and clear of all Liens. The Seller and the Companies have taken commercially reasonable precautions to protect the confidentiality of the confidential information used or held for use in the business of the Companies. Section 4.14 of the Company Disclosure Schedule sets forth a list of all material registered Owned Intellectual Property and a list of all licenses of Licensed Intellectual Property. No Company is a party to or otherwise bound by (a) any license permitting any Person to use any of its material Owned Intellectual Property or (b) any IP Limiting Contract. To the Knowledge of Seller, no Person is infringing, misappropriating, or otherwise violating any Owned Intellectual Property in any material respect.

4.15          Employee Benefit Plans.

(a)           Section  4.15 of the Company Disclosure Schedule sets forth a complete and correct list of the material Business Benefit Plans. For purposes of this Agreement, “Business Benefit Plan” means each “employee benefit plan” (as that term is defined in Section 3(3) of ERISA), each pension, retirement, profit-sharing, deferred compensation, equity or equity-based, health and welfare, severance pay, vacation, bonus, incentive, fringe benefit, gross up, retention, employment (including offer letters, other than offer letters that provide solely for “at will” employment, initial employee base hourly rate or annual salary and participation in broad-based benefit plans) or each change of control, or other compensation or benefit, plan, program, practice, policy, arrangement or agreement with respect to any current or former employee, that (i) is maintained, sponsored or contributed to (or required to be contributed to) by Seller or the Companies for the benefit of the Business Employees or (ii) under which the Business has any Liability.

(b)           For each Business Benefit Plan, the Companies have made available to Purchaser true and complete copies of (to the extent applicable): (i) the current plan document and all amendments thereto, (ii) the most recent summary plan description and (iii) the most recent IRS opinion or determination letter.

(c)           No Business Benefit Plan is or was, and the Companies do not sponsor, maintain, contribute to, or have any Liability with respect to, and in the past six (6) years have not sponsored, maintained, contributed to, or had any Liability with respect to, a “defined benefit plan” subject to Section 412 of the Code or Title IV of ERISA, a “multiemployer plan” (as defined in Section 3(37) of ERISA), a “multiple employer plan” within the meaning of ERISA Section 4063 or 4064 or Code Section 413(c), or a “multiple employer welfare arrangement” within the meaning of ERISA Section 3(40), and no Business Benefit Plan provides for post-retirement medical or life insurance (other than as required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or under a similar state Law and at the sole premium expense of the recipient of such benefits).

(d)           Each Business Benefit Plan that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has received a favorable determination letter from the IRS, each such determination remains in effect and has not been revoked, and, to the Knowledge of Seller, nothing has occurred that would reasonably be expected to adversely affect the qualified status of such qualified plan. None of the Companies is liable for any material tax or penalty with respect to any Business Benefit Plan, including any liability imposed under ERISA Section 502, ERISA Section 4071, or Chapter 43 of the Code and, to the Knowledge of Seller, no facts exist which would be reasonably expected to trigger such material taxes or penalties.

(e)           Except as set forth on Section  4.15(e) of the Company Disclosure Schedule, the execution and delivery of this Agreement or the consummation of the Transaction (either alone or in combination with another event) will not result in the payment of any amount under any arrangements in effect on the date of this Agreement that would, individually or in combination with any other such payment, not be deductible as a result of Section 280G of the Code. Except as set forth in Section  4.15(e) of the Company Disclosure Schedule, the Transaction alone, or in a combination with any other event, will not result in any payment becoming due or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Business Employee under any Business Benefit Plan, or entitle the recipient of any payment or benefit to receive a “gross up” payment for any income or other taxes that might be owed with respect to such payment or benefit.

(f)           Except as would not result in Liability to the Business, each of the Business Benefit Plans have been maintained, funded and administered in material compliance with their terms and the applicable provisions of ERISA, the Code, and any other applicable Law.

(g)           No Legal Proceeding (other than routine claims for benefits) has been instituted or, to the Knowledge of Seller, threatened against any Business Benefit Plan that would result in liability to the Companies.

(h)           Each Business Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has at all times been in a written form and administered in such a manner that complies in all material respects with the requirements of Section 409A of the Code and final regulations issued and outstanding thereunder.

(i)           Except as would not result in liability to the Companies, all material contributions, premiums and other payments or benefits under or in connection with each Business Benefit Plan required to have been made under the terms of such Business Benefit Plan or pursuant to applicable Laws have been timely made.

4.16          Labor and Employment Matters.

(a)           Neither of the Companies nor, with respect to the Business, Seller, is a party to any collective bargaining agreement or similar Contract with any labor organization with respect to any Business Employees. Except as set forth on Section 4.16(a) of the Company Disclosure Schedule, since the Reference Date, (i) there have been no strikes, work stoppages, work slowdowns, lockouts, picketing or other similar labor disputes pending or, to the Knowledge of Seller, threatened against a Company, FMG Outdoor or Seller with respect to Business Employees, (ii) there have been no unfair labor practice charges or grievances, charges or complaints pending or, to the Knowledge of Seller, threatened by or on behalf of any employee or group of employees of a Company, FMG Outdoor or Seller against a Company, FMG Outdoor or Seller, and (iii) to the Knowledge of Seller, there have been no union organizing or decertification activities involving Business Employees pending or threatened. Since the Reference Date, neither the Companies nor FMG Outdoor nor Seller has implemented any employee layoffs relating to the Business that would trigger obligations under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Law (collectively, the “WARN Act”).

(b)           Section 4.16(b) of the Company Disclosure Schedule lists each Business Employee, his or her dates of hire; position and title (if any); wage and hour exemption status; current base salary or wage rate, commissions and bonus or other material compensation for which such employee is eligible; the number of such employee’s accrued sick days, vacation days, paid time off, paid flexible time off or similar time off as of the most recent payroll date preceding the date hereof; and whether such employee is absent from active employment and, if so, the date such employee became inactive, the reason therefor, and, if applicable, the anticipated date of return to active employment. Each Business Employee listed in Section 4.16(b) of the Company Disclosure Schedule is employed in either Georgia, Kentucky, Florida or Alabama. Except as set forth on Section 4.16(b) and Sections 4.15(a)(3)-(8) of the Company Disclosure Schedule, neither of the Companies nor Seller is bound by any employment Contracts with any of the Business Employees (excluding, for the avoidance of doubt, Contracts for employment at-will) and, to the extent there exist any such Contracts, the Companies have made available to Purchaser true and complete copies of each such Contract to Purchaser.

(c)           Seller and each of the Companies is in compliance in all material respects, and Seller, the Companies and FMG Outdoor (with respect to the Business) have, since the Reference Date, complied in all material respects, with all Laws concerning employment, employment practices, terms and conditions of employment, wages and hours (including all Laws relating to overtime, deductions, withholding), employment discrimination and retaliation, workplace harassment, family and medical or other leave, civil rights, health and safety, workers compensation, pay equity, classification of employees and independent contractors, and I-9 or other employment eligibility verification.

(d)           No Legal Proceeding is pending or, to the Knowledge of Seller, threatened against any Company, Seller or FMG Outdoor that entails any claims related to employment, employment practices, terms and conditions of employment, wages and hours (including all Laws relating to overtime, deductions, withholding), employment discrimination and retaliation, workplace harassment, family and medical or other leave, civil rights, health and safety, workers compensation, pay equity, classification of employees and independent contractors, and I-9 or other employment eligibility verification. To the Knowledge of Seller, neither the Companies nor Seller nor FMG Outdoor is presently under, or in the past three (3) years has been under, any audit, investigation or examination (nor has notice been received of a potential audit or examination) by the Department of Labor or any other Governmental Authority related employment, employment practices, terms and conditions of employment, wages and hours (including all Laws relating to overtime, deductions, withholding), employment discrimination and retaliation, workplace harassment, family and medical or other leave, civil rights, health and safety, workers compensation, pay equity, classification of employees and independent contractors, and I-9 or other employment eligibility verification.

4.17          Transactions With Related Parties. Except as set forth on Section  4.17 of the Company Disclosure Schedule, no officer, director, member or stockholder of any of the Companies, nor any Affiliate of a Company (other than the Companies) (each a “Related Party”), is (a) a party to any transaction or Contract with a Company (other than employment or consulting agreements entered into with individuals in the Ordinary Course of Business) or (b) has any direct or indirect interest of any kind in any property or asset used in the Business.

4.18          Insurance. All insurance policies or binders of the Companies or Seller relating to the Business (the “Insurance Policies”), which are set forth on Section 4.18 of the Company Disclosure Schedule, are in full force and effect. All premiums due and payable thereon have been paid in full or, if not yet due, accrued, as of the date of this Agreement. As of the date of this Agreement, neither Seller nor the Companies have received a written notice threatening cancellation or non-renewal of, or a material premium increase with respect to, any Insurance Policy. As of the date of this Agreement, except as set forth on Section 4.18 of the Company Disclosure Schedule, no Company has made any material claim under any Insurance Policy which is currently pending. Accurate and complete copies of the Insurance Policies identified or required to be identified on Section 4.18 of the Company Disclosure Schedule have been made available to Purchaser.

4.19          Financial Advisors. Except as set forth on Section 4.19 of the Company Disclosure Schedule, no Person has acted, directly or indirectly, as a broker, finder, agent, investment banker or financial advisor for the Companies and no Person other than those Persons set forth on Section 4.19 of the Company Disclosure Schedule is entitled to any fee or commission or like payment from the Companies in connection with the Transaction.

4.20          Structures and Panels.

(a)               Section 4.20(a) of the Company Disclosure Schedule includes a complete list (in all material respects) of all Structures and Panels owned or operated by the Companies as of September 30, 2019. Except as set forth in Section 4.20(a) of the Company Disclosure Schedule, to the Knowledge of Seller, all of the Structures or Panels that generated at least $10,000 in client revenues in the twelve (12) months ending June 30, 2019 (the “Material Structures”) meet the requirements of the applicable existing outdoor advertising contracts to which the Companies are a party (including number of boards and illumination). Except as set forth in Section 4.20(a) of the Company Disclosure Schedule, neither Company has received written notice that any Material Structures are not either (i) legal and conforming, or (ii) legal and nonconforming and neither Company has received written notice that any Material Structures violate any applicable zoning laws, ordinances or regulations. Except as set forth on Section 4.20(a) of the Company Disclosure Schedule, all of the Structures and Panels are located on a parcel of Owned Real Property or a parcel of land subject to a Sign Location Lease or easement and, to the Knowledge of Seller, do not encroach on the property of others, either public or private; and, to the Knowledge of Seller, the applicable Company has continuous and uninterrupted access to each such Structure pursuant to the terms of the applicable Sign Location Lease, easement or parcel of Owned Real Property. Except as set forth in Section 4.20(a) of the Company Disclosure Schedule, the applicable Company has title to all Material Structures free and clear of all Liens (other than Permitted Liens).

(b)               Each digital Structure and its component parts are subject to (i) a manufacturer’s warranty or an extended parts Contract; (ii) an installation warranty; and (iii) a maintenance service Contract (including labor). All such warranties and Contracts are in full force and effect and are a legal, valid, binding and enforceable obligation of the applicable Company, and, to the Knowledge of Seller, of the other party or parties thereto, except as enforceability may be limited by applicable Equitable Principles.

4.21          Certain Payments. Neither Seller nor the Companies nor, to the Knowledge of Seller, any director, officer, employee, or other Person associated with or acting on behalf of any of them, has directly or indirectly in the three (3) years prior to the date of the Agreement, made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services (i) to obtain favorable treatment in securing business for the Companies, (ii) to pay for favorable treatment for business secured by any of the Companies or (iii) to obtain special concessions or for special concessions already obtained, for or in respect of any of the Companies, in each case to the extent such would be a violation of any applicable Law.

4.22          Books and Records. The copies of the minute books containing the limited liability company and/or similar governance records of meetings of the Companies made available to Purchaser are accurate and complete in all material respects and contain records of all meetings of, and limited liability company action taken by (including action taken by written consent), the Companies in the twelve (12) months prior to the date of this Agreement.

4.23          Bank Accounts; Power of Attorney. Section 4.23 of the Company Disclosure Schedule sets forth an accurate and complete list showing (a) the name and address of each bank in which the Companies have an account or safe deposit box, the number of any such account or any such box and the names of all Persons authorized to draw thereon or to have access thereto and (b) the names of all Persons, if any, holding powers of attorney from the Companies and a summary statement of the terms thereof.

4.24          Limitations of Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE), NEITHER OF THE COMPANIES MAKE ANY, AND HAS NOT AUTHORIZED ANY OF ITS AFFILIATES OR ANY OTHER PERSON TO MAKE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANIES, THE BUSINESS OR THE TRANSACTION, AND THE COMPANIES DISCLAIM ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE COMPANIES, ANY AFFILIATE OF THE COMPANIES, ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY OTHER PERSON AND IF MADE, SUCH REPRESENTATION OR WARRANTY MAY NOT BE RELIED UPON BY PURCHASER OR ANY OF ITS AFFILIATES AND REPRESENTATIVES AS HAVING BEEN AUTHORIZED BY THE COMPANIES OR ANY OF ITS AFFILIATES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE), THE COMPANIES HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, OPINION, PROJECTION, FORECAST, STATEMENT, MEMORANDUM, PRESENTATION, ADVICE OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PURCHASER OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, PROJECTION, FORECAST, STATEMENT, MEMORANDUM, PRESENTATION, ADVICE OR INFORMATION THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PURCHASER BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF THE COMPANIES OR ANY OF THEIR AFFILIATES), INCLUDING ANY INFORMATION MADE AVAILABLE IN ANY ELECTRONIC DATA ROOM HOSTED BY SELLER OR ANY OF ITS REPRESENTATIVES IN CONNECTION WITH THE TRANSACTION. NEITHER OF THE COMPANIES MAKE ANY REPRESENTATIONS OR WARRANTIES TO PURCHASER REGARDING THE PROBABLE SUCCESS OR FUTURE PROFITABILITY OF THE BUSINESS. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL IN ANY MANNER IMPAIR ANY RIGHT, REMEDY OR RECOURSE PURCHASER MAY HAVE AGAINST THE COMPANIES, THEIR AFFILIATES AND THEIR RESPECTIVE DESIGNATED REPRESENTATIVES FOR FRAUD.

Article V

REPRESENTATIONS AND WARRANTIES OF PURCHASER

Except as set forth on the disclosure schedule delivered by Purchaser to Seller on the date hereof concurrently with entry into this Agreement (the “Purchaser Disclosure Schedule”) and attached to this Agreement as Schedule B (and provided that disclosure in any section of such Purchaser Disclosure Schedule shall be deemed disclosed with respect to any other Section of this Agreement (in addition to the Section referenced in such schedule) to the extent that it is reasonably apparent from the wording of such disclosure that such disclosure is applicable to such other Section), as of the date hereof, Purchaser hereby represents and warrants as follows:

5.1              Organization and Power. Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Purchaser has the requisite limited liability company power and authority to execute and deliver this Agreement and each other Transaction Agreement to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transaction. Purchaser has the limited liability company power and authority to own, operate or lease all of its properties and assets and to carry on its business as it is now being conducted. Purchaser is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character or location of any properties or assets owned, operated or leased by it makes such licensing or qualification necessary, except for those jurisdictions where the failure to be so licensed or qualified would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

5.2              Authorization of Agreement. The execution, delivery and performance by Purchaser of the Transaction Agreements to which it is a party and the consummation of the Transaction has been duly authorized by the requisite corporate, limited liability company, limited partnership or other similar action on the part of Purchaser. Each of the Transaction Agreements to which Purchaser is a party has been or will be at or prior to the Closing, duly and validly executed and delivered by Purchaser and (assuming the due authorization, execution and delivery by the other parties thereto) each such Transaction Agreement, when so executed and delivered, will constitute, the legal, valid and binding obligations of Purchaser, enforceable against it in accordance with its terms, subject to applicable Equitable Principles.

5.3              Conflicts; Consents of Third Parties.

(a)               None of the execution and delivery by Purchaser of this Agreement or the other Transaction Agreements to which it is a party, or the consummation of the Transaction, conflicts with, violates, breaches or constitutes a material default (with or without notice or lapse of time, or both) under, or permit the acceleration of any obligation under, gives rise to a right of termination, modification, cancellation or acceleration of any obligation or loss of any benefit under or require any consent, notice, approval waiver or other action from any Person pursuant to any provision of (i) the Organizational Documents of Purchaser or any of its Affiliates; (ii) any Contract or Permit to which Purchaser or any of its Affiliates is a party or by which any of the properties or assets of Purchaser or any of its Affiliates are bound; or (iii) any Law applicable to Purchaser or any of its Affiliates, except in the case of clauses (ii) and (iii), where such conflict, violation or default would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

(b)               No consent, notice, waiver, approval, waiting period expiration or termination, Order, Permit or authorization of, or declaration, registration or filing with, or notification to, any Governmental Authority is required on the part of Purchaser or any of its Affiliates in connection with the execution and delivery by Purchaser of this Agreement or the other Transaction Agreements to which it is a party, or the consummation of the Transaction by Purchaser, except for such Governmental Approval, the failure of which to make or obtain would not would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

5.4              Legal Proceedings. There are no pending or, to the knowledge of Purchaser, threatened, Legal Proceedings against Purchaser or any of its Affiliates that would reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. There is no outstanding material Order imposed upon Purchaser or any of its Affiliates or any of their respective assets, except for Legal Proceedings which, if adversely determined, would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

5.5              Financial Capability; Guarantor.

(a)               Purchaser has (i) sufficient cash on hand (without giving effect to any unfunded financing regardless of whether any such financing is committed) to pay the Purchase Price and all related fees and expenses in connection with the Transaction, (ii) the resources and capabilities (financial or otherwise) to perform its obligations hereunder and (iii) has not incurred any obligation, commitment, restriction or liability of any kind that would impair or adversely affect such resources and capabilities.

(b)               The Guaranty is in full force and effect and constitutes the legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, and has not been amended, withdrawn or rescinded in any respect. No event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of the Guarantor under the Guaranty.

5.6              Investment. Purchaser is acquiring the Acquired Securities for its own account and for investment purposes and not with a view to the distribution thereof. Purchaser acknowledges that the Acquired Securities have not been registered under the Securities Act or any state securities law and Purchaser must bear the economic risk of its investment in the Acquired Securities until and unless the offer and sale of such Acquired Securities is subsequently registered under the Securities Act and all applicable state securities Laws or an exemption from such registration is applicable. Purchaser has conducted an examination of available information relating to the Companies and the Business, Purchaser has such knowledge, sophistication and experience in business and financial matters that it is capable of evaluating an investment in the Acquired Securities, and Purchaser can bear the economic risk of an investment in the Acquired Securities and can afford a complete loss of such investment.

5.7              Financial Advisors. Except as set forth on Section 5.7 of the Purchaser Disclosure Schedule, no Person has acted, directly or indirectly, as a broker, finder, agent, investment banker or financial advisor for Purchaser or its Affiliates and no Person is entitled to any fee or commission or like payment from Purchaser or its Affiliates in connection with the Transaction.

5.8              No Other Representations and Warranties; No Reliance; Purchaser Investigation.

(a)               Purchaser acknowledges and agrees that, except as expressly set forth in Article III or Article IV, neither Seller nor any of the Companies makes any (and Purchaser has not relied upon any) promise, representation or warranty, express or implied, relating to the Business, the Acquired Securities, any of the Companies or any of their respective businesses, operations, assets, liabilities, conditions or prospects or the Transaction, including with respect to merchantability, fitness for any particular or ordinary purpose, or as to the accuracy or completeness of any information regarding any of the foregoing, or as to any other matter, notwithstanding the delivery or disclosure to Purchaser or any of its Affiliates or representatives of any documents, opinions, projections, forecasts, statements, memorandums, presentations, advice or information (whether communicated orally or in writing), and any such other promises, representations or warranties, or liability or responsibility therefor, are hereby expressly disclaimed. In addition, Purchaser acknowledges and agrees that Purchaser has not executed or authorized the execution of this Agreement in reliance upon any promise, representation or warranty not expressly set forth in Article III or Article IV.

(b)               Purchaser acknowledges and agrees that (i) Seller and the Companies have made available to Purchaser, for the purposes of due diligence, material documents, forecasts or other information relating to the Companies and the Transaction and (ii) Purchaser has made its own independent inquiry and investigation into, and, based thereon, has formed an independent judgment concerning, the Business, the Acquired Securities, Seller, the Companies and the Transaction and, in making its determination to proceed with the Transaction, Purchaser has relied only on the representations and warranties set forth in Article III and Article IV and the results of its own independent investigation and independent judgment.

Article VI

COVENANTS

6.1              Conduct of Business Prior to the Closing. From the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with Article IX, except as otherwise provided in this Agreement or consented to in writing by Purchaser (which consent shall not be unreasonably withheld or delayed), Seller shall, and shall cause the Companies to, conduct the business of the Companies in the Ordinary Course of Business. Without limiting the foregoing, from the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with Article IX, except as otherwise provided in this Agreement or consented to in writing by Purchaser (which consent shall not be unreasonably withheld or delayed), Seller shall cause the Companies not to:

(a)               repurchase, redeem or otherwise acquire any outstanding shares of capital stock, membership interests or other equity interests of any Company;

(b)               transfer, issue, sell or dispose of, or grant options, warrants or other rights to purchase or otherwise acquire, any shares of capital stock, membership interests or other equity interests of any Company;

(c)               effect any recapitalization, reclassification, reorganization or like change in the capitalization of any Company;

(d)               amend the Organizational Documents of any Company;

(e)               settle or compromise any material Legal Proceedings;

(f)                create, incur or assume any Indebtedness related to the Business or which creates a Lien on the assets of the Companies except in the Ordinary Course of Business;

(g)               make any change in any of the Companies’ accounting policies or practices unless required by GAAP;

(h)               file any required Tax Returns or make any material Tax election (except, in each case, to the extent consistent with past practice of the Companies), file any amended Tax Returns, change any material Tax election, settle any Tax audit or other Tax proceeding, or surrender any material Tax refund;

(i)                 directly or indirectly engage in any transaction, arrangement or Contract related to the Business with any Related Party (other than terminating and making any related payments under the Phantom Stock Agreements; provided, that for a period of ten (10) Business Days following the date hereof, Seller shall not, and shall cause the Companies not to, terminate or make any payments under the Phantom Stock Agreements and, if Purchaser delivers written notice to Seller within such ten (10) Business Day period requesting that Seller and the Companies not terminate or make any payments thereunder prior to the Closing, then Seller shall, and shall cause the Companies, to follow such written notice from Purchaser with respect to such agreements, which in such case shall be assigned to Purchaser or the Companies at Closing pursuant to the Employee Assignment and Assumption Agreement (provided that if no such written notice is delivered, then Seller shall terminate and make all required payments under such agreements at or prior to Closing);

(j)                 other than in the Ordinary Course of Business, make any material and adverse modification to any material Permit;

(k)               operate, maintain and insure the Owned Real Property in a manner generally inconsistent with the manner in which the Companies operated, maintained and retained insurance on the Owned Real Property during the one year period immediately prior to the date hereof;

(l)                 other than in the Ordinary Course of Business, enter into any amendment, renewal, assignment, sublease or termination to an existing Lease;

(m)             other than in the Ordinary Course of Business, enter into any new Lease;

(n)               other than in the Ordinary Course of Business, transfer, sell or dispose of, or grant options or other rights to purchase or otherwise acquire or encumber there interest in any of the Owned Real Property; or

(o)               enter into any agreement or otherwise make a commitment to do anything prohibited by this Section 6.1.

6.2              Access to Information. From the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with Article IX, Seller shall, and shall cause the Companies to, (a) afford Purchaser and its Designated Representatives reasonable access to and the right to inspect all of the real property, properties, assets, premises, books and records, Contracts and other documents related to the Business and (b) furnish Purchaser and its Designated Representatives with such financial and operating data and information related to the Business as Purchaser or any of its Designated Representatives may reasonably request and is prepared by Seller or the Companies in the Ordinary Course of Business. Notwithstanding anything contained herein to the contrary, (i) all requests by Purchaser or its Designated Representative for access shall be submitted with reasonable advance notice by email to Dan Streek (Dan.Streek@fairwayoutdoor.com), with a copy to Michael Chan (Michael.Chan@moelis.com), and such access shall be conducted during normal business hours under the supervision of Seller’s personnel and in such a manner so as not to unreasonably interfere with the normal operations of Seller or the Companies; (ii) the auditors and accountants of Seller or the Companies shall not be obligated to make any work papers (to the extent extant) available to any Person unless and until such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants; (iii) if the Parties are in an adversarial relationship in litigation or arbitration, the furnishing of information, documents or records in accordance with this Section 6.2 shall be subject to applicable rules relating to discovery; (iv) any investment banker, in-house counsel, outside counsel, accountant, auditor, or other advisor or representative retained by Seller or any of its Affiliates (including the Companies) shall not be obligated to make any work papers available to Purchaser or its Designated Representatives relating solely to the preparation, negotiation and execution of this Agreement and the other Transaction Agreements or the sale process generally; (v) any access to the Companies’ or their Affiliates’ properties shall be subject to Seller’s and its Affiliates’ reasonable security and insurance measures, shall be subject to any restrictions applicable to the properties, including the terms of any leases, and shall not include the right to conduct any surface, subsurface, invasive or intrusive environmental testing, sampling or other intrusive investigations of any kind; and (vi) Seller and the Companies shall not be required to provide access to any information that is subject to attorney-client privilege, attorney work product protection, or other confidentiality or privilege to the extent doing so, as reasonably determined by Seller, the Companies or their counsel, would cause such privilege or protection to be waived. No investigation by Purchaser or other information received by Purchaser shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller in this Agreement.

6.3           No Solicitation of Other Bids.

(a)               From and after the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with Article IX, Seller shall not, and shall not authorize or permit any of its Affiliates (including the Companies) or any of its or their Designated 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. Seller shall immediately cease and cause to be terminated, and shall cause its Affiliates (including the Companies) and all of its and their Designated 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 Purchaser or any of its Affiliates) concerning (i) a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving the Companies; (ii) the issuance or acquisition of shares of capital stock or other equity securities of the Companies; or (iii) the sale, lease, exchange or other disposition of any significant portion of the Companies’ properties or assets.

(b)               In addition to the other obligations under this Section 6.3, Seller shall promptly (and in any event within three (3) Business Days after receipt thereof by Seller or its Designated Representatives) advise Purchaser 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.

(c)               Seller 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 Purchaser and that money damages would not provide an adequate remedy to Purchaser.

6.4           Insurance Matters. Notwithstanding anything in Section 6.12 to the contrary, following the Closing, (a) Purchaser shall, or shall cause the Companies to, use reasonable best efforts to collect the full amount of the insurance proceeds set forth in item 10 of Section 4.18 of the Company Disclosure Schedule (the “Hurricane Insurance Proceeds”), including by exercising any rights under the Valdosta Asset Purchase Agreement, and (b) within five (5) Business Days after Purchaser’s or any Company’s receipt of all or any portion of the Hurricane Insurance Proceeds (the “Collected Hurricane Insurance Proceeds”), Purchaser and/or such Company shall pay the Collected Hurricane Insurance Proceeds to an account designated in writing by Seller.

6.5           Cooperation.

(a)               Seller agrees that it will, and that it will cause its Designated Representatives, auditor and accountants to, for a period of six (6) months following the Closing, provide reasonable cooperation with Purchaser and Purchaser’s agents, Designated Representatives and accountants (the “Purchaser Advisors”), including making available, at reasonable times and upon reasonable prior notice, to Purchaser and the Purchaser Advisors, Seller’s accounting personnel whose past responsibilities have included accounting functions relating to the Companies, including without limitation answering reasonable questions posed by the Purchaser Advisors.

(b)               Within thirty (30) days following the Closing Date, Seller shall deliver to Purchaser one or more USBs or other digital media evidencing a copy of the Data Room as of the date of this Agreement (the “Data Room Copy”). Seller shall cause the Data Room hosting such documents to continue to be accessible to Purchaser until the actual delivery of such Data Room Copy to Purchaser.

6.6           Confidentiality.

(a)               Purchaser acknowledges that the information provided to Purchaser and its representatives prior to the Closing in connection with this Agreement and the Transaction is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference and, notwithstanding anything herein to the contrary, shall survive the Closing in accordance with the terms thereof; provided, however, that Purchaser’s obligations thereunder shall terminate as of the Closing solely in respect of that portion of the Evaluation Material (as defined in the Confidentiality Agreement) exclusively relating to the Business.

(b)               From and after the Closing Date, Seller will hold in confidence any and all information, whether written or oral, concerning the Business and the assets of the Companies, except to the extent that Seller can show that such information (i) is in the public domain through no fault of Seller following the Closing or (ii) is lawfully acquired by Seller after the Closing Date from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If Seller is compelled to disclose any such information by judicial or administrative process or by other requirements of Law, Seller shall promptly notify Purchaser in writing and shall disclose only that portion of such information that Seller is advised by its counsel in writing is legally required to be disclosed; provided that Seller shall exercise its commercially reasonable efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.

6.7              Preservation of Records. Purchaser agrees not to dispose of or destroy any records relating to the Business that relate to periods prior to the Closing Date for a period of five (5) years from the Closing Date and shall make such records available to Seller or its Affiliates as may be reasonably requested (during normal business hours and at Seller’s (or its Affiliate’s, as applicable) sole cost and expense) in connection with any proper purpose, including insurance claims by, Legal Proceedings (other than Legal Proceedings between Seller or its Affiliates, on the one hand, and Purchaser or its Affiliates, on the other hand, related to this Agreement or the Transaction) or tax audits against, or governmental investigations of, the Companies or in order to enable Seller to comply with its obligations under this Agreement and each other Transaction Agreement; provided that if requested by Purchaser, any such Person shall enter into a customary confidentiality agreement with and benefiting the Business.

6.8              Publicity. None of Seller and its Affiliates, on the one hand, or Purchaser and its Affiliates, on the other hand, shall issue any press release or public announcement concerning this Agreement, the other Transaction Agreements or the Transaction or make any other public disclosure containing or pertaining to the terms of this Agreement without obtaining Seller’s or Purchaser’s, as applicable, prior written approval, which approval from and after the Closing will not be unreasonably withheld, conditioned or delayed, unless, in the reasonable judgment of the Party seeking to disclose, disclosure is otherwise required by applicable Law or by the applicable rules of any stock exchange on which such disclosing Party lists securities; provided that, to the extent any disclosure is required by applicable Law or stock exchange rule, the Party intending to make such disclosure shall use its commercially reasonable efforts consistent with applicable Law or stock exchange rule to consult with Seller or Purchaser, as applicable, with respect to the text thereof and; provided, further, that (i) Seller and its equityholders and their respective Affiliates shall be entitled to disclose such information to their respective employees, equity owners, partners, prospective partners, investors, prospective investors, professional advisors and lenders who have a need to know the information and who agree to keep such information confidential or are otherwise bound to confidentiality and (ii) Purchaser and its equityholders and their respective Affiliates shall be entitled to disclose such information to their respective employees, equity owners, partners, prospective partners, investors, prospective investors, professional advisors and lenders who have a need to know the information and who agree to keep such information confidential or are otherwise bound to confidentiality.

6.9             [Reserved].

6.10          Use of Marks. Purchaser, for itself and its Affiliates, acknowledges and agrees that Seller and its Affiliates are the owners of the Fairway Marks and that neither Purchaser nor any of its Affiliates shall (i) have any rights in or to the Fairway Marks or (ii) use any of the Fairway Marks. Notwithstanding the foregoing, for a period not to exceed six (6) months immediately following the Closing Date (the “Phase-out Period”), Purchaser may use (but in no event in the corporate or other legal name of Purchaser or its Affiliates) any Fairway Marks in substantially the same manner as used by Seller and its Affiliates within the twelve (12) months immediately prior to the Closing Date; provided, that the foregoing permitted use is subject to Purchaser’s compliance with the quality control requirements in effect for the Fairway Marks as of the Closing Date (which quality requirements will be deemed to have been met by use in substantially the same manner as used by Seller and its Affiliates in the twelve (12) months immediately prior to the Closing Date).

6.11         Director and Officer Liability; Indemnification.

(a)               For a period of six years after the Closing, Purchaser shall not, and shall not permit the Companies to, (i) amend, repeal or modify any provision in any of their Organizational Documents relating to the exculpation, indemnification or advancement of expenses of any present or former officers, managers and / or directors (each, a “D&O Indemnified Person”) or (ii) permit the board of directors or board of managers, as applicable, of the Companies to make a determination not to indemnify any such D&O Indemnified Person except in the case of fraud, willful misconduct or gross negligence (in each case, unless and to the extent required by Law).

(b)               In the event that Purchaser, the Companies or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any Person, then, and in each such case, Purchaser shall cause proper provision to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 6.11.

6.12         Insurance.

(a)               Purchaser or its Affiliates shall deliver to Seller all insurance proceeds received by Purchaser or its Affiliates for any injury, damage, loss, cost, expense, liability, or legal obligation that is not attributable to the assets or liabilities of a Company or the Business net of any deductibles or retentions. Seller or its Affiliates shall deliver to Purchaser all insurance proceeds received by Seller or its Affiliates for any injury, damage, loss, cost, expense, liability, or legal obligation that is attributable to the assets or liabilities of a Company or the Business net of any deductibles or retentions. Notwithstanding the foregoing, if any Party receives insurance proceeds or reimbursement for its own costs, fees, or expenses, there shall be no obligation to deliver those proceeds or reimbursements to the other Party.

(b)               Seller represents and warrants to Purchaser that (i) the insurance policies listed on Schedule 6.12(b) of the Seller Disclosure Schedule, which policies have prior to the date hereof insured the assets of a Company and the Business, as of the date hereof are held, and following the Closing shall continue to be held, by Fairway Outdoor Advertising Group, LLC or its Affiliates (“Retained Policies”); (ii) the Retained Policies shall not be changed by Seller after the Closing Date to eliminate, reduce, or otherwise restrict coverage for any insured thereunder; (iii) Seller shall not cancel or otherwise invalidate the Retained Policies for any reason and shall keep the Retained Policies in effect throughout the policy periods; and (iv) Seller shall pay any and all premiums due on such Retained Policies.

(c)               Seller agrees that with respect to any injury, damage, loss, cost, expense, liability, or legal obligation that is attributable to the assets or liabilities of a Company or the Business and is covered by the Retained Policies, Purchaser and its Affiliates may make claims under such policies; provided that Purchaser shall: (i) notify Seller of such claims; and (ii) bear the amount of any deductibles, self-insured retentions, increases in premiums or other out-of-pocket expenses incurred in connection with such claims, including any claims submitted prior to the date hereof. Seller shall use its commercially reasonable efforts to assist Purchaser in connection with such claims. If Seller incurs any costs or expenses in said assistance, Purchaser shall promptly reimburse Seller for all reasonable costs and expenses incurred by Seller in said assistance.

6.13          Carve-Out Financial Statements and Consents. From the date hereof until the Closing, Seller shall use reasonable best efforts to (i) provide to Purchaser the Carve-Out Financial Statements, together with an audit report on the financial statements included therein for the years ended December 31, 2017 and 2018, provided by an independent public accountant registered with the Public Company Accounting Oversight Board, meeting the requirements of Rule 8-04 of Regulation S-X of the Commission (such audit, the “Audit”) and (ii) in consultation with Purchaser, to make or obtain the consents and approvals of third parties set forth on Schedule 6.13 (the “Third-Party Consents”). All aggregate out-of-pocket costs and expenses of Seller and the Companies associated with preparing the Carve-Out Financial Statements and the Audit and obtaining such Third-Party Consents shall be borne by Purchaser. For the avoidance of doubt, obtaining the Audit, the Carve-Out Financial Statements or any Third-Party Consent shall not be a condition to Closing.

6.14          Title Documents. Prior to the Closing, Seller shall use reasonable best efforts to provide Purchaser with recorded or recordable deeds and assignments, as applicable, necessary to evidence the vesting or transfer of legal title to each Owned Real Property in or to the name of one of the Companies, subject only to the Permitted Liens.

Article VII

Conditions to Closing

7.1            Conditions to Obligations of All Parties. The obligations of each Party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of the following condition: No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.

7.2            Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Purchaser’s waiver, at or prior to the Closing, of each of the following conditions:

(a)               Other than the Fundamental Representations, the representations and warranties of Seller and the Companies contained in this Agreement and any certificate delivered pursuant hereto shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) in all respects on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), except in each case where the failure of such representations and warranties to be so true and correct would not have, individually or in the aggregate, a Company Material Adverse Effect. The Fundamental Representations shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) in all material respects on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).

(b)               Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Transaction Documents to be performed or complied with by it prior to or on the Closing Date.

(c)               From the date of this Agreement, there shall not have occurred any Company Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Company Material Adverse Effect.

(d)               Purchaser shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller and the Companies, that each of the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied.

7.3            Conditions to Obligations of Seller. The obligations of Seller to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Seller’s waiver, at or prior to the Closing, of each of the following conditions:

(a)               Other than the representations and warranties of Purchaser contained in Section 5.1, Section 5.2 and Section 5.7, the representations and warranties of Purchaser contained in this Agreement and any certificate delivered pursuant hereto shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) in all respects on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), except in each case where the failure of such representations and warranties to be so true and correct would not have, individually or in the aggregate, a Purchaser Material Adverse Effect. The representations and warranties of Purchaser contained in Section 5.1, Section 5.2 and Section 5.7 shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) in all material respects on and as of the Closing Date with the same effect as though made at and as of such date.

(b)               Purchaser shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Transaction Documents to be performed or complied with by it prior to or on the Closing Date.

(c)               Seller shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Purchaser, that each of the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied.

Article VIII

INDEMNIFICATION

8.1            Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein, the Transaction Agreements or in any certificate or instrument delivered pursuant to this Agreement shall survive the Closing and shall remain in full force and effect until the date that is twelve (12) months from the Closing Date. All covenants and agreements of the Parties contained herein, the Transaction Agreements or in any certificate of instrument delivered pursuant to this Agreement that contemplate performance at or prior to the Closing shall survive the Closing and remain in full force and effect until the date that is twelve (12) months from the Closing Date, and all covenants and agreements of the Parties contained herein, the Transaction Agreements or in any certificate or instrument delivered pursuant to this Agreement that contemplate performance after the Closing shall survive the Closing until performed. 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 non-breaching party to the breaching 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.

8.2            Indemnification by Seller. Subject to the other terms and conditions of this Article VIII, Seller shall indemnify and defend each of Purchaser and its Affiliates and their respective Designated Representatives (collectively, the “Purchaser 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 Purchaser 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 Seller or the Companies contained in this Agreement, the Transaction Agreements or in any certificate or instrument delivered by or on behalf of Seller or the Companies 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);

(b)               any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement, the Transaction Agreements or any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement;

(c)               any Transaction Expenses or Indebtedness (in each case, only to the extent not taken into account in the calculation of the Final Closing Date Purchase Price); or

(d)               without duplication and except (i) to the extent included in the calculation of Working Capital as finally determined pursuant to Section 1.3 or (ii) resulting from any transactions or actions of Purchaser or its Affiliates (including the Companies) occurring on the Closing Date after the Closing outside the ordinary course of business, any and all Taxes (w) imposed on any of the Companies for any Pre-Closing Period; (x) of any member of an affiliated, consolidated, combined or unitary group of which any of the Companies is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulations Section 1.1502-6 or any analogous or similar state, local or non-U.S. Law; (y) of any Person imposed on any of the Companies as a transferee or successor, by contract or indemnification agreement (other than any such contract or agreement entered into in the ordinary course of business the principal purpose of which is not Taxes), or pursuant to any Law, which Taxes relate to an event, agreement or transaction occurring before the Closing; or (z) that are Transfer Taxes that the Seller is responsible for pursuant to Section 11.1(b).

8.3            Indemnification by Purchaser. Subject to the other terms and conditions of this Article VIII, Purchaser shall indemnify and defend each of Seller and its Affiliates and their respective Designated Representatives (collectively, the “Seller 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 Seller 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 Purchaser contained in this Agreement, the Transaction Agreements or in any certificate or instrument delivered by or on behalf of Purchaser 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 Purchaser pursuant to this Agreement.

8.4           Certain Limitations. The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:

(a)               Seller shall not be liable to the Purchaser Indemnitees for indemnification under Section 8.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds $215,360 (the “Basket”), and then only for such Losses in excess of the Basket. The aggregate amount of all Losses for which Seller shall be liable pursuant to Article VIII shall not exceed $215,360 (the “Cap”).

(b)               Purchaser shall not be liable to the Seller Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Basket, and then only for such Losses in excess of the Basket. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Article VIII shall not exceed the Cap.

(c)               Notwithstanding the foregoing, the limitations set forth in the first sentence of Section 8.4(a) and the first sentence of Section 8.4(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation or representation or warranty in Section 5.1, Section 5.2 and Section 5.7.

(d)               For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty, and any Loss, 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.

(e)               Seller shall not be liable to the Purchaser Indemnitees for indemnification with respect to any Losses attributable to Taxes arising in any taxable period (or portion thereof) beginning after the Closing Date.

8.5           Indemnification Procedures. The party making a claim under this Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”.

(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 Designated 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 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, that if the Indemnifying Party is Seller, 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 Business, or (y) primarily seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.5(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, 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 promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 8.5(b), and upon written notice to the Indemnifying Party, pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Seller and Purchaser shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 8.3) 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.

(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 8.5(b). If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party 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 days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, but subject to the limitations set forth in Section 8.4, 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 8.5(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 Indemnified Party’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.

8.6            Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

8.7            Exclusive Remedies. Subject to Section 1.3, Section 6.6 and Section 11.9, the Parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from Fraud) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement and the transactions contemplated hereby, shall be pursuant to the indemnification provisions set forth in this Article VIII. 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 hereto and their Affiliates and each of their respective Designated Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article VIII. Nothing in this Section 8.7 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 Fraud.

Article IX

Termination

9.1           Termination. This Agreement may be terminated at any time prior to the Closing:

(a)               by the mutual written consent of Seller and Purchaser;

(b)               by Purchaser by written notice to Seller if there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Seller pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 7.2(a) or Section 7.2(b) and such breach, inaccuracy or failure has not been cured by Seller within 30 days of Seller’s receipt of written notice of such breach from Purchaser; provided that the right to terminate this Agreement under this Section 9.1(b) shall not be available to Purchaser if Purchaser is (i) in material breach of this Agreement or (ii) in breach of any representation, warranty, covenant or other agreement contained in this Agreement that would give rise to the failure of a condition set forth in Section 7.3(a) or Section 7.3(b);

(c)               by Seller by written notice to Purchaser if there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Purchaser pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 7.3(a) or Section 7.3(b) and such breach, inaccuracy or failure has not been cured by Purchaser within 30 days of Purchaser’s receipt of written notice of such breach from Seller; provided that the right to terminate this Agreement under this Section 9.1(c) shall not be available to Seller if Seller is (i) in material breach of this Agreement or (ii) in breach of any representation, warranty, covenant or other agreement contained in this Agreement that would give rise to the failure of a condition set forth in Section 7.2(a) or Section 7.2(b);

(d)               by Purchaser or Seller in the event that any Governmental Authority shall have issued any Order restraining or enjoining the transactions contemplated by this Agreement, and such Order shall have become final and non-appealable; or

(e)               by Seller, if Purchaser fails to consummate the Closing within three (3) Business Days of the date on which the Closing is otherwise required to be consummated pursuant to Section 2.1.

9.2           Effect of Termination. In the event of the termination of this Agreement in accordance with this Article IX, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto except:

(a)               the obligations of the Parties set forth in the Confidentiality Agreement, Section 6.6 and this Section 9.2 shall survive such termination and not be affected thereby; and

(b)               that nothing herein shall relieve any party hereto from liability for Fraud or any intentional, material or willful breach of any provision hereof prior to the termination of this Agreement.

Article X

TAX MATTERS

10.1        Tax Returns. Purchaser shall, at its sole cost, prepare or cause to be prepared and file or cause to be filed all Tax Returns for the Companies for all periods ending on or prior to the Closing Date that are due after the Closing Date and for all Straddle Periods. Except as otherwise required by applicable Law, all such Tax Returns shall be prepared in a manner consistent with the past practices of the Companies in filing such Tax Returns. Purchaser shall provide Seller with a copy of each such Tax Return that reflects any Taxes for which Seller could be liable at least 30 days prior to the due date for filing such Tax Return (taking into account applicable extensions) for Seller’s review and consent (not to be unreasonably withheld, conditioned or delayed). Purchaser and Seller agree to consult and resolve in good faith any dispute arising with respect to any such Tax Return and if they cannot agree on any disputed issue or item, such disputed issues shall be referred to, and resolved by (within a reasonable time, taking into account the deadline for filing such Tax Return) the Accounting Referee or another nationally recognized independent accounting firm to be mutually agreed upon by Purchaser and Seller (such agreed firm being the “Tax Referee”). Purchaser shall timely and properly file, or cause to be filed, such Tax Return reflecting the dispute as finally and conclusively resolved by the Tax Referee; provided that if the disputed items are not resolved before the filing due date (taking into account extensions), any such Tax Return shall be finalized and filed reflecting the disputed items in the manner provided by Purchaser pursuant to this Section 10.1, and, to the extent the disputed items are resolved by the Tax Referee in the manner proposed by Seller, Purchaser will promptly amend or cause to be amended such Tax Return consistent with such resolution to the extent permitted by Law. The costs, fees and expenses of the Tax Referee shall be borne equally by Seller and Purchaser.

10.2          Audits. Following the Closing, Purchaser shall promptly notify Seller in writing upon receiving notice from any Taxing Authority of the commencement of any audit or administrative or judicial proceedings relating to Tax Returns of any Company or with respect to any Owned Real Property or Leased Real Property for any Pre-Closing Period or any Straddle Period to the extent Seller could be liable for any Taxes arising as a result of such audit or other proceeding (“Tax Contest”). Seller shall have the right in its discretion to control all Tax Contests relating to tax periods ending on or prior to the Closing Date or the Straddle Period to the extent the pre-Closing portion of the Straddle Period is longer than the post-Closing portion of the Straddle Period and Purchaser shall have the right to control any other Tax Contest, provided that (a) the non-controlling Party shall have the right, at its expense, to participate in any Tax Contest controlled by the other Party and (b) the controlling Party (i) shall not settle any Tax Contest that it controls without the other Party’s advance written consent, which shall not be unreasonably withheld, conditioned or delayed, (ii) shall keep the other Party informed of the progress of such audit or proceeding, and (iii) shall promptly provide the other Party with copies of all material documents (including material notices, protests, briefs, written rulings and determinations and correspondence) pertaining to such audit or proceeding. To the extent there is a conflict between the provisions of this Section 10.2 and Section 8.4(e) with respect to any indemnification claim involving Taxes or Tax Returns, this Section 10.2 shall govern.

10.3          Filing and Amendment of Tax Returns. Without the prior written consent of Seller (not to be unreasonably withheld, conditioned, or delayed), Purchaser shall not, and shall cause its Affiliates not to, to the extent such action could reasonably be expected to give rise to a Tax for which Seller or its beneficial owners would be liable under this Agreement or pursuant to any Law: (a) except as set forth in Section 10.1, file or amend any Tax Return relating to Taxes attributable to a Pre-Closing Period (including any Straddle Period), (b) rescind or change any Tax election or accounting method that has retroactive effect to any Pre-Closing Period (including any Straddle Period) of any Company, (c) engage in any voluntary disclosure or similar process or initiate communications with any Taxing Authority with respect to Taxes attributable to a Pre-Closing Period (including any Straddle Period) or (d) extend or waive, or cause to be extended or waived, or permit any Company to extend or waive, any statute of limitations or other period for the assessment of any Tax or deficiency related to a Pre-Closing Period (including any Straddle Period).

10.4          Cooperation. After the Closing Date, Purchaser and Seller shall (and shall cause their respective Affiliates to) (a) assist the other Party in preparing any Tax Returns which such other Party is responsible for preparing and filing in accordance with Section 10.1, and in connection therewith provide the other Party necessary powers of attorney, (b) cooperate fully in preparing for and conducting any audits of, or disputes with Taxing Authorities regarding, any Tax Returns of the Companies, (c) make available to the other Party as reasonably requested all information, records, and documents relating to Taxes of the Companies. In furtherance of the foregoing, Purchaser and Seller shall retain (and shall cause their Affiliates to retain) copies of all Tax Returns and related workpapers for all taxable periods that include the Closing Date and all prior taxable periods until the expiration of the statute of limitations to which such Tax Returns relate, and (d) make its employees reasonably available on a mutually convenient basis at its cost to provide any additional information or to explain any documents or information so provided.

10.5          Purchase Price Allocation. Purchaser and Seller agree that the Final Closing Date Purchase Price (plus other relevant items required under the Code, including any liabilities of the Companies) will be allocated among such Company’s assets in accordance with Section 1060 of the Code and the regulations thereunder and consistent with this Section 10.5. Seller will deliver its calculation of such allocation to Purchaser within sixty (60) days after the final determination of the Final Closing Date Purchase Price (the “Allocation”). In the event that Purchaser objects to the Allocation, Purchaser shall notify Seller of its objection to the Allocation within thirty (30) days of the receipt of the Allocation and the Parties will endeavor in good faith over the next fifteen (15) days to resolve such dispute. If the Parties are unable to resolve such dispute within such fifteen (15)-day period, the Parties shall submit the dispute to the Tax Referee, which will promptly determine those matters in dispute (based on written presentations from the Parties and not based on its independent review) and will render a written report as to the disputed matters (the matters determined by such Tax Referee, together with those matters that were agreed by the Parties, the “Agreed Allocation”). The costs and expenses of the Tax Referee will be split evenly by Purchaser and Seller. Purchaser, the Companies and Seller will file any Tax Returns and any other governmental filings on a basis consistent with the Agreed Allocation. Neither Purchaser nor Seller nor any of their respective Affiliates will take any position (whether in audits, Tax Returns or otherwise) that is inconsistent with the Agreed Allocation unless required to do so by applicable Law.

10.6          Withholding. Each of Purchaser, the Companies and the Escrow Agent, and their respective agents, shall be entitled to deduct and withhold from the cash otherwise payable under this Agreement as the applicable paying Person reasonably determines that it is required to deduct and withhold with respect to any such payments under the Code or any other provision of federal, state, local or foreign tax Law; provided that if Purchaser determines that an amount is required to be deducted or withheld (other than with respect to a withholding obligation due to Seller’s failure to deliver to Purchaser the certificate pursuant to Section 2.2(i) or any payments treated as compensation for United States federal income Tax purposes), Purchaser shall (i) use reasonable best efforts to promptly provide Seller with written notice of its intent to deduct and withhold (ii) cooperate in good faith with Seller to reduce or eliminate the deduction or withholding of such amount, and (iii) shall provide Seller a reasonable opportunity to provide forms or other documentation that would exempt such amounts from withholding. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been delivered and paid to the Person in respect of whom such deduction and withholding was made.

10.7          Straddle Periods. For purposes of this Agreement, (i) in the case of Taxes arising in a Straddle Period, except as provided in clause (ii), the allocation of such Taxes to the Pre-Closing Period shall be made on the basis of an interim closing of the books as of the end of the Closing Date, and (ii) in the case of any real property, personal property or similar ad valorem Taxes that are payable for a Straddle Period, the portion of such Tax that relates to the Pre-Closing Period shall be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of the Straddle Period ending on (and including) the Closing Date and the denominator of which is the number of days in the entire Straddle Period.

10.8          Intended Tax Treatment. As a result of each Company’s U.S. federal and state income tax classification as an entity disregarded from Seller within the meaning of Treasury Regulations Sections 301.7701-2 and -3, the Parties agree to treat the sale of the Companies as a sale to Purchaser of all of the assets of, and an assumption by Purchaser of all of the labilities of, each Company for U.S. federal and state income tax purposes (the “Intended Tax Treatment”). Purchaser, the Companies and Seller will file any Tax Returns and any other governmental filings on a basis consistent with the Intended Tax Treatment. Neither Purchaser nor Seller nor any of their respective Affiliates will take any position (whether in audits, Tax Returns or otherwise) that is inconsistent with the Intended Tax Treatment except as required by a determination within the meaning of Section 1313(a) of the Code.

10.9       Tax Sharing Agreements. Seller shall cause all Tax sharing, allocation, indemnification or other similar agreements with respect to or involving the Companies (other than commercial agreements the primary subject of which is not Taxes) to be terminated as of the Closing so that after the Closing, none of the Companies shall be bound thereby or have any liability thereunder.

Article XI

MISCELLANEOUS

11.1       Expenses.

(a)               Except as otherwise provided in this Agreement or the other Transaction Agreements, each Party shall bear its own costs and expenses incurred in connection with the negotiation and execution of this Agreement and the other Transaction Agreements and each other agreement, document and instrument contemplated hereby or thereby and the consummation of the Transaction.

(b)               Any sales, use, real estate transfer, stock transfer or similar transfer Tax (“Transfer Taxes”) payable in connection with the transactions contemplated by this Agreement shall be borne solely by Purchaser. Except as otherwise required by Law, Purchaser shall duly and timely prepare and file any Tax Return relating to such Taxes. Purchaser shall give Seller a copy of each such Tax Return for its review and comment at least fifteen (15) days prior to filing and shall give Seller a copy of such Tax Return as filed.

11.2      Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts made and performed in such state without giving effect to the choice of law principals of such state that would require or permit the application of the laws of another jurisdiction.

11.3       Submission to Jurisdiction; Waivers. The Parties agree that any dispute, controversy or claim arising out of or relating to the Transaction or to this Agreement, or the validity, interpretation, breach or termination thereof, including claims seeking redress or asserting rights under any Law, shall be resolved exclusively in the courts of the State of Delaware or any court of the United States located in the State of Delaware (the “Delaware Courts”) and appellate courts having jurisdiction of appeals from such Delaware Courts. In that context, and without limiting the generality of the foregoing, each Party irrevocably and unconditionally:

(a)               submits for itself and its property in any action relating to the Transaction or to this Agreement, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the Delaware Courts, and appellate courts having jurisdiction of appeals from any of the foregoing courts, and agrees that all claims in respect of any such action shall be heard and determined in such Delaware Courts or, to the extent permitted by law, in such appellate courts;

(b)               consents that any such action may and shall be brought exclusively in such courts and waives any objection that it may now or hereafter have to the venue or jurisdiction of any such action in any such court or that such action was brought in an inconvenient forum, and agrees not to plead or claim the same;

(c)               waives all right to trial by jury in any action (whether based on contract, tort or otherwise) arising out of or relating to the Transaction or to this Agreement, or its performance under or the enforcement of this Agreement;

(d)               agrees that service of process in any such action may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Party at its address as provided in Section 11.7; and

(e)               agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the laws of the State of Delaware.

11.4        Further Assurances. After the Closing, each Party shall from time to time, at the request of and without further cost or expense to the other, execute and deliver such other instruments of conveyance and assumption and take such other actions as may reasonably be requested in order to more effectively consummate the Transaction.

11.5       Entire Agreement. This Agreement (including the Schedules and Exhibits hereto) and the other Transaction Agreements represent the entire understanding and agreement between the Parties with respect to the Transaction and supersedes all prior agreements among the Parties respecting the Transaction. The Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transaction exclusively in contract pursuant to the express terms and provisions of this Agreement; and the Parties expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement.

11.6      Amendments and Waivers. This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by Purchaser and Seller. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. In the event any provision of any other Transaction Agreement shall in any way conflict with the provisions of this Agreement (except where a provision therein expressly provides that it is intended to take precedence over this Agreement) this Agreement shall control.

11.7      Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt), (b) when sent by facsimile (with written confirmation of transmission) or email of a PDF document, or (c) one (1) Business Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses, email and facsimile numbers (or to such other address or facsimile number as a Party may have specified by notice given to the other Party pursuant to this provision).

If to Seller, to:

Fairway Outdoor Advertising Group, LLC

8520 Cliff Cameron Dr., Suite 460

Charlotte, North Carolina 28269

Attention: Dan Streek

Phone:

Facsimile:

With copies (which shall not constitute notice) to:

GTCR Management XI LLC

300 North LaSalle Street

Chicago, Illinois 60654

Attention: Craig A. Bondy and David A. Donnini

Phone:

Facsimile:

Email:

and

Kirkland & Ellis LLP

300 North LaSalle Street

Chicago, Illinois 60654

Attention: Stephen L. Ritchie, P.C., Daniel A. Guerin and Matthew J. Schlosser

Phone: (312) 862-2000

Facsimile: (312) 862-2200

Email: stephen.ritchie@kirkland.com; daniel.guerin@kirkland.com;

matthew.schlosser@kirkland.com

and

Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

Attention: Jennifer S. Perkins, P.C.

Phone: (212) 446-4800

Facsimile: (212) 446-4800

Email: jennifer.perkins@kirkland.com

If to Purchaser, to:

767 Fifth Ave, 12th Floor

New York, NY 10153

Attention: Gail Steiner, General Counsel

Phone:

Facsimile:

Email:

With copies (which shall not constitute notice) to:

Morgan, Lewis & Bockius LLP

1701 Market Street

Philadelphia, Pennsylvania 19103

Attention: Justin W. Chairman

Phone: (215) 963-5061

Facsimile: (215) 963-5001

Email: justin.chairman@morganlewis.com

11.8       Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transaction is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, 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 an acceptable manner in order that the Transaction is consummated as originally contemplated to the greatest extent possible.

11.9       Specific Performance. Each Party acknowledges and hereby agrees that any breach of this Agreement would give rise to irreparable harm for which monetary damages would not be an adequate remedy. Accordingly, the Parties acknowledge and hereby agree that in the event of any breach or threatened breach by Seller or the Companies, on the one hand, or Purchaser, on the other hand, of any of their respective covenants or obligations set forth in this Agreement, Seller or the Companies, on the one hand, and Purchaser, on the other hand, shall be entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other under this Agreement. Seller or the Companies, on the one hand, and Purchaser, on the other hand, hereby agree not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of this Agreement, by Seller or the Companies, on the one hand, or Purchaser, on the other hand, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the Parties under this Agreement.

11.10    No Third-Party Beneficiaries; No Recourse Against Affiliates; Liability. Nothing in this Agreement, express or implied, is intended or shall be construed to give any rights to any Person or entity other than (i) the Parties and their successors and permitted assigns, (ii) each D&O Indemnified Person, who shall have the right to enforce the obligations of Purchaser and Seller solely with respect to Section 6.11, (iii) the Seller Indemnitees and the Purchaser Indemnitees with respect to Article VIII, (iv) the Related Parties, who shall have the benefit of, and the right to enforce, this Section 11.10, (v) the Retained Counsel, who shall have the benefit of, and the right to enforce, Section 11.14, (vi) the Seller Parties, who shall have the benefit of, and the right to enforce, Section 11.15 and (vii) as otherwise expressly provided in this Agreement. No Related Party of Seller (and no Related Party of any Related Party) shall have any liability (whether in Law or in equity or in contract or in tort) for any obligations or liabilities of Seller arising under, in connection with or related to this Agreement or for any claim based on, in respect of, or by reason of, the Transaction, including any alleged nondisclosure or misrepresentations made by any such Persons.

11.11    Assignment. Neither Party may assign or transfer this Agreement or any right, interest or obligation hereunder, directly or indirectly (by operation of Law or otherwise), without the prior written approval of Purchaser, on the one hand, and Seller, on the other hand; provided, that Purchaser may, without the consent of Seller, assign this Agreement and its rights hereunder (i) for collateral security purposes to any lender providing financing to Purchaser, (ii) in connection with the sale of all or any portion of the business or assets of the Companies in any form of transaction, (iii) to an Affiliate of Purchaser, or (iv) concurrently with the Closing, to the party identified by Purchaser to Seller prior to the execution hereof. Any assignment in violation of this Section  11.11 shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No assignment shall relieve the assigning party of any of its obligations hereunder.

11.12    Cooperation with Legal Proceedings. From and after the Closing, if requested by Seller, Purchaser shall cooperate with Seller in the investigation, defense or prosecution of any Legal Proceedings pending or threatened against Seller or any of its Affiliates with respect to the business of the Companies, other than Legal Proceedings where Purchaser or any of its Affiliates is adverse to Seller or any of its Affiliates. Without limiting the generality of the foregoing, but provided that such requests shall not unreasonably interfere with the business or operations of Purchaser, Purchaser shall make available its employees to give depositions or testimony and shall furnish all documentary or other evidence that Seller may reasonably request. Seller shall reimburse Purchaser for all reasonable and necessary out-of-pocket expenses incurred in connection with the performance of its obligations under this Section 11.12.

11.13     COBRA. Purchaser will be solely responsible for complying with the requirements of Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code for any individual who is an “M&A qualified beneficiary” as defined in Treasury Regulations Section 54.4980B-9 in connection with the Transaction.

11.14     Provisions Respecting Legal Representation.

(a)               It is acknowledged by each of the Parties, on its own behalf and on behalf of its respective managers, directors, equityholders, members, partners, officers, employees and Affiliates, that Seller and the Companies have retained Kirkland & Ellis LLP (and its affiliated entity Kirkland & Ellis International LLP) (collectively, the “Retained Counsel”) to act as their counsel in connection with the Transaction and that the Retained Counsel has not acted as counsel for any other Party in connection with the Transaction and that none of the other Parties has the status of a client of the Retained Counsel for conflict of interest or any other purposes as a result thereof. Purchaser agrees, on its own behalf and on behalf of its managers, directors, equityholders, members, partners, officers, employees and Affiliates, that, in the event that a dispute arises after the Closing between Purchaser and/or any of its Affiliates, on the one hand, and Seller and/or any of its Affiliates, on the other hand, the Retained Counsel may represent Seller and/or its Affiliates in such dispute even though the interests of Seller or its Affiliates may be directly adverse to Purchaser or its Affiliates, and even though the Retained Counsel may have represented the Companies in a matter substantially related to such dispute, or may be handling ongoing matters for Purchaser or the Companies.

(b)               Purchaser agrees that, after the Closing, neither Purchaser, nor any of its Subsidiaries or Affiliates will have any right to access or control any of the Retained Counsel’s records relating to or affecting the Transaction with respect to its representation of Seller or the Companies, which will be the property of (and be controlled by) Seller. In addition, Purchaser agrees that it would be impractical to remove all Attorney-Client Communications from the records (including e-mails and other electronic files) of the Companies. Accordingly, Purchaser will not, and will cause each of its Subsidiaries and Affiliates (including, after Closing, the Companies) not to, use any Attorney-Client Communication remaining in the records of the Companies after Closing in a manner that may be adverse to Seller or any of Seller’s Affiliates. Purchaser agrees, on its own behalf and on behalf of its Subsidiaries and Affiliates (including, after Closing, the Companies), that from and after Closing (i) the attorney-client privilege, all other evidentiary privileges, and the expectation of client confidence as to all Attorney-Client Communications belong to Seller and will not pass to or be claimed by Purchaser or its Affiliates or the Companies, and (ii) Seller will have the exclusive right to control, assert or waive the attorney-client privilege, any other evidentiary privilege, and the expectation of client confidence with respect to such Attorney-Client Communications. Accordingly, Purchaser will not, and will cause each of its Subsidiaries and Affiliates (including, after Closing, the Companies) not to, (x) assert any attorney-client privilege, other evidentiary privilege, or expectation of client confidence with respect to any Attorney-Client Communication, except in the event of a post-Closing dispute with a Person that is not Seller or an Affiliate of Seller; or (y) take any action which could cause any Attorney-Client Communication to cease being a confidential communication or to otherwise lose protection under the attorney-client privilege or any other evidentiary privilege, including waiving such protection in any dispute with a Person that is not Seller or an Affiliate of Seller.

11.15     Release.

(a)               Effective upon the Closing, Purchaser and, from and after the Closing, the Companies, and each of their respective partners, members, Affiliates, directors, officers, employees, controlling persons, agents, representatives, successors and assigns and the partners, members, Affiliates, directors, officers, employees, controlling persons, agents, representatives, successors and assigns of any of the foregoing (the “Purchaser Parties”) hereby waives and releases any claims that the Purchaser Parties currently have or, in the future, may have against Seller or any past, present or future equity holder, controlling person, director, officer, employee, agent, attorney, Affiliate, member, manager, general or limited partners, stockholder, investor or assignee of Seller, or any past, present or future equity holder, controlling person, director, officer, employee, agent, attorney, Affiliate, member, manager, general or limited partners, stockholder, investor or assignee of any of the foregoing (the “Seller Parties”), for any of such Person’s actions or omissions prior to the Closing, or otherwise in relation to or arising from the Companies and their respective pre-Closing businesses, operations and properties; provided, however, that, regardless of the foregoing, the Seller Parties shall not be released from any claim (i) based on Fraud, (ii) under or arising out of any post-Closing obligations of Seller as expressly set forth in this Agreement or in any other agreement contemplated herein or (iii) under or arising out of any Contract entered into between the Purchaser Parties and the Seller Parties after the Closing, subject to the terms and conditions thereof. Purchaser hereby acknowledges the release by the Purchaser Parties set forth in the preceding sentence and covenants and agrees that it will honor such release and will not, and will cause the Companies not to, take any action inconsistent therewith (including commencing any Legal Proceeding with respect to, or directly or indirectly transferring to another Person, any released claims).

(b)              Effective upon the Closing, Seller hereby waives and releases any claims that Seller currently has or, in the future, may have against the Companies or any past, present or future equity holder, controlling person, director, officer, employee, agent, attorney, Affiliate, member, manager, general or limited partners, stockholder, investor or assignee of the Companies, or any past, present or future equity holder, controlling person, director, officer, employee, agent, attorney, Affiliate, member, manager, general or limited partners, stockholder, investor or assignee of any of the foregoing (the “Company Persons”), solely in relation to Seller’s capacity as an equity holder of the Companies; provided, however, that, regardless of the foregoing, Seller shall not release any claim (i) based on Fraud, (ii) under or arising out of any post-Closing obligations expressly set forth in this Agreement or in any other agreement contemplated herein or (iii) under or arising out of any Contract entered into among Seller and the Company Persons at or after the Closing, subject to the terms and conditions thereof.

11.16    Counterparts. This Agreement may be executed in one or more counterparts, including by facsimile or other electronic transmission (including e-mail), each of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and the same agreement. Such delivery of counterparts shall be conclusive evidence of the intent to be bound hereby and to the extent applicable, the foregoing constitutes the election of the parties hereto to invoke any Law authorizing electronic signatures.

Article XII

DEFINITIONS AND INTERPRETATIONS

12.1       Certain Definitions.

(a)               For purposes of this Agreement, the following terms shall have the meanings specified in this Section 12.1:

“Accounting Rules” means the accounting rules and principles set forth on Part 1 of Exhibit B.

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

“Adjustment Escrow Amount” means $366,112.

“Advertising Contract” means each Contract between a Company, on the one hand, and a third party, on the other hand, pursuant to which such third party is entitled to display an advertising, sponsorship or branding sign, message or display on a Structure.

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

“Area” means Kentucky (Mid-Atlantic) and Valdosta, Georgia (Southeast).

“Attorney-Client Communication” means any communication occurring on or prior to the Closing between any of the Retained Counsel (with respect to its representation of Seller and the Companies), on the one hand, and Seller and the Companies, or any of their respective Affiliates, on the other hand, that in any way relates to the Transaction, including any representation, warranty, or covenant of any Party under any Transaction Agreements.

“Business Day” means any day of the year on which national banking institutions in New York are open to the public for conducting business and are not required or authorized to close.

“Business Employees” means those employees of Seller or any of its Affiliates whose services are primarily dedicated to the operation of the Business, including such individuals who are not actively at work due to vacation, illness, jury duty, bereavement leave, short-term or long-term disability leave, workers’ compensation or other authorized leave of absence and who are set forth on Section 12.1(a)(i) of the Company Disclosure Schedule. For the avoidance of doubt, Business Employees shall only include individuals whose position is primarily located in the Area and shall not include any corporate-level employees.

“Carve-Out Financial Statements” means, collectively, (a) the audited balance sheets of the Companies and the related statements of income and cash flow, for the twelve-month periods ended December 31, 2017 and December 31, 2018, and (b) the unaudited balance sheets of the Companies and the related statements of income and cash flow, for the six-month period ended June 30, 2019.

“Cash and Cash Equivalents” means the sum of the fair market value (expressed in United States dollars) of all cash and cash equivalents (including deposits, marketable securities and short term investments) of the Companies determined in accordance with the Accounting Rules. Cash and Cash Equivalents shall, except as set forth on Section 12.1(a)(ii) of the Company Disclosure Schedule, (i) be reduced by issued but uncleared checks and drafts of the Companies and (ii) be increased by checks and drafts deposited for the account of the Companies.

“Closing Cash” means the aggregate amount of all Cash and Cash Equivalents of the Companies as of the close of business on the Business Day immediately prior to the Closing Date.

“Closing Consideration” means the Estimated Purchase Price minus the Adjustment Escrow Amount and minus the Indemnity Escrow Amount.

“Closing Date Indebtedness” means all Indebtedness of the Companies as of the Closing.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commission” means the United States Securities and Exchange Commission.

“Company Material Adverse Effect” means any event, change, occurrence, circumstance or effect (by itself or taken together with any and all other events, changes, occurrences, circumstances or effects) that has had or is reasonably expected to have a material adverse effect on the Business, assets, properties, liabilities, condition (financial or otherwise) or results of operations of the Companies, taken as a whole; provided that no event, change, occurrence, circumstance or effect (by itself or taken together with any and all other events, changes, occurrences, circumstances or effects) that results from or arises out of or is related to any of the following shall constitute or be deemed to contribute to a “Company Material Adverse Effect”, or be taken into account in determining whether a “Company Material Adverse Effect” has occurred or may, would or could occur: (i) changes in general economic conditions in the United States or any other country or region in the world, or changes in conditions in the global economy generally; (ii) changes in conditions in the financial markets, credit markets or capital markets in the United States or any other country or region in the world; (iii) changes in political conditions in the United States or any other country or region in the world, acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism), earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wildfires or other natural disasters, weather conditions and other force majeure events, in each case in the United States or any other country or region in the world; (iv) changes affecting the industry generally in which the Companies operates; (v) the announcement of this Agreement, the pendency of the Transaction or any investigation or challenge to the Transaction, or the consummation of the Transaction (including but not limited to, for the avoidance of doubt, the loss of any suppliers, customers, advertisers, assets, or property interests resulting from the identity of Purchaser or the pendency of any investigation or challenge to the Transaction); (vi) compliance with the terms of, or the taking of any action required or contemplated by this Agreement or undertaken with Purchaser’s written consent pursuant to the terms of this Agreement, or the failure to take any action expressly prohibited by this Agreement or to which Purchaser refused to provide consent pursuant to the terms of this Agreement; (vii) changes in Law or other legal or regulatory conditions (or the interpretation thereof); (viii) changes in GAAP or other accounting standards (or the interpretation thereof); (ix) any failure, in and of itself, by the Companies to meet internal or external projections or forecasts or revenue or earnings predictions (provided that the cause or basis for the Companies failing to meet such projections or forecasts or revenue or earnings predictions may be considered in determining the existence of a Company Material Adverse Effect unless such cause or basis is otherwise excluded by this definition); (x) any matters expressly set forth in the Company Disclosure Schedule.

“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of May 13, 2019, by and between GTCR LLC and Mediacom Communications Corporation.

“Contract” means any written or oral agreement, contract, indenture, note, mortgage, bond, lease or license, excluding all agreements relating to the use or occupancy of the Leased or Owned Real Property.

“Contribution and Distribution Agreement” means that certain Contribution and Distribution Agreement, dated as of June 28, 2019, by and among Purchaser and SG Broadcasting LLC.

“Data Room” means the electronic documentation site, established by Donnelly Financial Solutions on behalf of Seller.

“Designated Representative” means, with respect to any Person, its respective officers, directors, Affiliates or employees (including employees of any Affiliate of such Person), permitted assigns, successors, agents, or any investment banker, attorney, accountant, auditor, or other advisor or representatives retained by them.

“Employee Assignment and Assumption Agreement” means the Employee Assignment and Assumption Agreements by and between the Companies and Seller in the substantially the form attached hereto as Exhibit C.

“Environmental Laws” means as enacted and in effect on or prior to the Closing Date any Laws concerning pollution, worker health or safety (with respect to management of or exposure to Hazardous Materials) or protection of the environment, or the Release, treatment, storage, transportation, remediation, exposure to or disposal of Hazardous Materials.

“Equitable Principles” means (i) bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally, and (ii) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Escrow Agent” means Wilmington Trust, N.A.

“Escrow Agreement” means the escrow agreement to be entered into as of the Closing Date in substantially the form attached as Exhibit E hereto.

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

“Fairway Marks” means any and all trademarks owned by Seller or any of its Affiliates that comprise or contain “Fairway” or “Fairway Outdoor Advertising”, whether in block letters or otherwise, whether alone or in combination with other words or elements (and excluding any such words or elements when not used in such combination), and including all translations, adaptations, derivations and combinations thereof, together with the goodwill associated with any of the foregoing.

“FCC” means the Federal Communications Commission.

“FMG Outdoor” means FMG Outdoor Holdings, LLC, a Delaware limited liability company, and its Subsidiaries; provided, however, that any reference in this Agreement to “FMG Outdoor” shall mean FMG Outdoor as such entities existed on or prior to December 21, 2018 and any representation or warranty made with respect to FMG Outdoor in Article IV of this Agreement shall be deemed made as of or prior to such date and solely with respect to the Business.

“Fraud” means an actual, intentional and knowing common law fraud (and not a constructive fraud, negligent misrepresentation or omission, or any form of fraud premised on recklessness or negligence), as finally determined by a court of competent jurisdiction, by (a) Seller with respect to the making of the representations and warranties expressly and specifically set forth in Article III (as modified by the Company Disclosure Schedule) or (b) the Companies with respect to the making of the representations and warranties expressly and specifically set forth in Article IV (as modified by the Company Disclosure Schedule and which, for the avoidance of doubt, are made solely by each Company on a several basis as to itself and not on a joint and several basis with the other Company); provided that (and without limiting any of the other elements for establishing such common law fraud) such fraud shall in no event be deemed to exist in the absence of actual conscious awareness (and not imputed or constructive knowledge) by the Person sought to be held liable therefor, on the date the particular representation or warranty is made hereunder, both (i) of the particular fact, event or condition that gives rise to a breach of the applicable representation or warranty contained herein, and (ii) that such fact, event or condition actually constitutes a breach of such representation or warranty, all with the express intention of such Person to deceive and mislead the other party hereto.

“Fundamental Representations” means the representations and warranties in Section 3.1 (Organization and Power), Section 3.2 (Authorization of Agreement), Section 3.4 (Acquired Securities), Section 4.1 (Organization and Power), Section 4.2 (Authorization of Agreement), Section 4.4 (Capitalization), and Section 4.19 (Financial Advisors).

“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time and consistently applied.

“Governmental Authority” means any government or governmental, judicial, administrative or regulatory body thereof, or political subdivision thereof, whether domestic, foreign, federal, state, provincial or local, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).

“Hazardous Materials” means any substances, wastes or materials that pose a hazard to human health or the environment or are listed, regulated or defined as hazardous, toxic, pollutants, or contaminants under any Environmental Laws, including materials defined as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., and asbestos and asbestos-containing materials, polychlorinated biphenyls, petroleum or petroleum products (including, without limitation, crude oil or any fraction thereof).

“Indebtedness” means, with respect to any Person, without duplication, (a) the outstanding principal amount of and accrued and unpaid interest and all applicable prepayment premiums and breakage costs associated therewith of (i) indebtedness for borrowed money and (ii) indebtedness evidenced by notes, debentures, bonds or other similar instruments; (b) all obligations issued or assumed as the deferred purchase price of property, all conditional sale obligations and all obligations under any title retention agreement or any capital or finance lease; (c) all obligations of the type referred to in clauses (a) and (b) of other Persons for the payment of which any such Person is responsible or liable, directly or indirectly, as obligor, guarantor or surety; (d) all obligations upon which interest charges are customarily paid by such Person; (e) the notional amount of all obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements or other interest or other exchange rate hedging arrangements; (f) all obligations of such Person as a party in respect of letters of credits and banker’s acceptances; and (g) all obligations of the type referred to in clauses (a) through (f) of other Persons secured by any Lien on any property; provided, however, that Indebtedness shall not include (1) any amounts taken into account in the calculation of the Working Capital as of the Closing Date or Transaction Expenses, (2) any obligations under Leases (other than capital or finance leases) or (3) any undrawn letter of credit or similar instrument.

“Indemnity Escrow Amount” means $215,360.

“Intellectual Property” means any and all (i) copyrighted works, and all applications, registrations, and renewals in connection therewith; (ii) inventions (whether or not patentable), trade secrets, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof; (iii) trade names, trademarks, service marks, and trade dress, including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (iv) domain names; and (v) software and databases.

“IP Limiting Contract” means any Contract that materially limits, materially restricts or materially impairs the Companies’ ability to use or enforce any Owned Intellectual Property, including any agreements entered into in connection with any settlement, co-existence or non-compete arrangement.

“IRS” means the United States Internal Revenue Service.

“Knowledge” means, the actual knowledge (without independent inquiry) of Dan Streek.

“Law” means all foreign, federal, state, provincial and local laws, common law, statutes, codes, ordinances, rules, regulations, resolutions and Orders.

“Leased Real Property” means the properties subject to the Office Leases, Warehouse Leases and the Sign Location Leases.

“Leases” means any lease, license, sublease, sublicense, franchise, easement or other Contract pursuant to which a Person has the right to use any real, personal or intangible property, including the right to use or occupy and land, structures or other improvements on such land and the right to all security deposits and other amounts and instruments deposited by or on behalf of the Person thereunder. When used as a verb, the word “Lease” or “Leased” (or words having correlative meanings) means to lease, license, sublease, sublicense, obtain a franchise, acquire an easement or otherwise use any real, personal or intangible property, including the right to use or occupy and land, structures or other improvements on such land.

“Legal Proceeding” means any judicial, administrative or arbitral actions, suits, complaints, charges, audits, investigations or proceedings (public or private) or any appeal therefrom by or before a Governmental Authority or arbiter.

“Liabilities” means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise.

“Licensed Intellectual Property” means all Intellectual Property owned by a third party that is licensed to the Companies for use in the business of any of the Companies (excluding licenses for unmodified, commercial off the shelf software that are generally available on nondiscriminatory pricing terms with an aggregate license fee of less than $100,000).

“Lien” means any lien, encumbrance, pledge, indenture, hypothecation, mortgage, deed of trust or other security interest, easements, rights of way, covenants, charges (including any conditional sale or other title retention agreement or lease in the nature thereof), options to purchase or lease, encroachments, encumbrances or other restrictions of any kind, including restrictions or limitations on ownership or use of the Owned Real Property or Leased Real Property, or irregularities in title thereto, and all other similar rights of third parties, of any kind or nature.

“Loss” or “Losses” means all actual out-of-pocket damages, losses, claims, liabilities, demands, charges, suits, penalties, awards, judgments, settlements, fines, deficiencies and expenses (including reasonable attorneys’ and other professionals’ fees and disbursements).

“Office Lease” means any Lease pursuant to which a Company Leases an Office Property.

“Office Property” means any land, together with all buildings, structures, improvements, and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, that is either owned or Leased by a Company for purposes of operating and maintaining a corporate office in the Area.

“Order” means any order, injunction, judgment, decree, determination, ruling, writ, assessment or arbitration or other award of a Governmental Authority.

“Ordinary Course of Business” means the ordinary and usual course of business of the Companies with respect to the Business, consistent with past practices.

“Organizational Documents” means, with respect to a particular Person (other than a natural person), the certificate/articles of formation/incorporation/organization, bylaws, partnership agreement, limited liability company agreement, trust agreement or other similar organizational document or agreement, as applicable, of such Person.

“Owned Intellectual Property” means all Intellectual Property owned or purported to be owned by one or more of the Companies.

“Owned Real Property” means the Owned Sign Location Properties and the Owned Office Properties.

“Owned Sign Location Properties” means any land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, that are owned by a Company and used for purposes of installing and operating a Structure in the Area.

“Panel” means the advertising panel faces attached to or comprising a part of the Structures and upon which advertising copy may be displayed.

“Permits” means any approvals, authorizations, consents, licenses, permits or certificates of a Governmental Authority, including certificates of occupancy.

“Permitted Liens” means (i) Liens for Taxes, assessments or other governmental charges not yet due, payable or delinquent (or which may be paid without interest or penalties) or the amount or validity of which is being contested in good faith by appropriate proceedings and for which an appropriate reserve has been established on the Interim Financial Statement; (ii) mechanics’, carriers’, workers’, repairers’ and similar Liens arising or incurred in the Ordinary Course of Business, or the amount or validity of which is being contested in good faith by appropriate proceedings and for which an appropriate reserve has been established on the Interim Financial Statement; (iii) pledges, deposits or other Liens related to the performance of bids, trade contracts (other than for borrowed money), leases or statutory obligations (including, workers’ compensation, unemployment insurance or other social security legislation, but excluding Liens for Taxes) which are not yet due and payable; (iv) zoning, entitlement and other land use and environmental Laws by any Governmental Authority which are not violated by the current use or occupancy of such Owned Real Property and Leased Real Property; (v) any Lien recorded in public records affecting Leased Real Property not created by Seller or its Affiliates; (vi) title of a lessor under a capital or operating lease; (vii) any liens discharged or released at or in connection with the Closing; (viii) any recorded easement, covenant, minor encroachment or other document recorded in public records with respect to an asset that is either (1) Owned Real Property or (2) a Sign Location Lease that is an easement, other than a document evidencing a monetary amount to be paid by Seller or its Affiliates, and, in each case, that does not materially detract from the existing use, value or occupancy or marketability of title of such Owned Real Property or Material Sign Location Lease; and (ix) such other Liens affecting a Sign Location Lease that is an easement, that, individually or in the aggregate, would not result in material liability to the Business or materially impair the operation of the Business.

“Person” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or other entity.

“Phantom Stock Agreements” means the Phantom Stock Agreement entered into as of January 1, 2018, by and between Fairway Media Group, LLC and Deborah Enfinger and the Phantom Stock Agreement, dated March 1, 2018, by and between Fairway Media Group, LLC, and Scott Furcolow.

“Pre-Closing Period” means any taxable period ending on or before 12:01 a.m. Eastern Standard Time on the Closing Date and the portion of a Straddle Period beginning before the Closing Date and ending on the Closing Date.

“Purchaser Material Adverse Effect” means (i) a material adverse effect on the business, assets, properties, financial condition or results of operations of Purchaser and its Subsidiaries, taken as a whole or (ii) any event, change, occurrence, circumstance or effect that, when taken individually or together with all other adverse events, changes, occurrences, circumstances or effects, would, or is reasonably expected to, prevent or materially delay Purchaser or its Affiliates from consummating the Transaction or performing its obligations under this Agreement.

“Reference Date” means January 1, 2016.

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material).

“Schedules” means the Company Disclosure Schedule and/or the Purchaser Disclosure Schedule, as the case may be.

“Securities Act” means the Securities Act of 1933, as amended.

“Sign Location Lease” means any Lease to which a Company is a party or of which it has the benefit or has been assumed by or assigned to a Company pursuant to which such Company has obtained the right to erect, place and/or maintain one or more Structures on any ground space, roof or wall space or upon any other improvement to real estate in the Area.

“Straddle Period” means any taxable period beginning on or before the Closing Date and ending after the Closing Date.

“Structures” means the bulletins, panels, posters, wall signs or other outdoor advertising sign structures used or proposed to be used by the Companies in the operation of the Business, including all equipment, fixtures and appurtenances attached thereto or comprising a part thereof.

“Subsidiary” means any Person of which a majority of the outstanding share capital, voting securities or other equity interests is owned, directly or indirectly, by another Person.

“Tax” or “Taxes” means any federal, state, local or foreign taxes, including all net income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, equity, franchise, profits, withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, estimated, alternative or add-on minimum, or other tax of any kind whatsoever, including any interest, penalty imposed with respect to Taxes or Tax Returns or any addition thereto imposed by a Taxing Authority.

“Tax Return” means any return, declaration, report, claim for refund or information return or statement or attachment thereto, and including any amendment thereof filed or required to be filed with a Taxing Authority in respect of any Taxes.

“Taxing Authority” means the IRS or any governmental agency, board, bureau, body, department or authority having or purporting to exercise jurisdiction with respect to any Tax.

“Transaction” means the transactions contemplated by this Agreement and the other Transaction Agreements.

“Transaction Agreements” means this Agreement, the Confidentiality Agreement, the Transfer and Assignment Agreement, the Escrow Agreement, the Employee Assignment and Assumption Agreement, the Transitional Services Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement to which Purchaser or Seller is a party or to be executed by Purchaser or Seller in connection with the consummation of the Transaction.

“Transaction Expenses” means, without duplication, the collective amount that remains or becomes due and payable by the Companies and/or Seller incurred prior to the Closing (whether payable prior to, on, or after the Closing), and which was not paid on or prior to the Closing, in connection with the preparation, negotiation, execution or consummation of the transactions contemplated by this Agreement, (i) to any Person, other than an employee of the Companies, including the fees and other amounts payable to outside legal counsel, accountants, advisors, brokers and other third parties, (ii) any amounts payable to any employee of the Companies in the nature of a transaction bonus or compensatory payment triggered solely as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby, along with the employer’s portion of any employment Taxes payable by a Company in connection therewith; provided, however, that Transaction Expenses shall not include (x) any amounts taken into account in the calculation of the Closing Date Indebtedness, (y) the Retention Bonus Agreements set forth on Section 12.1(a)(iii) of the Company Disclosure Schedule, or (z) any fee and expenses incurred in connection with the Audit or the preparation of the Carve-Out Financial Statements.

“Transfer and Assignment Agreement” means that certain instrument of transfer and assignment duly executed by an authorized person of Seller evidencing transfer and assignment to Purchaser of the Acquired Securities in substantially the form attached as Exhibit F hereto.

“Transitional Services Agreement” means the Transitional Services Agreement by and between the Companies and Seller in the substantially the form attached hereto as Exhibit D.

“Trigger Date” means the earlier of (i) the date on which Purchaser has finalized its arrangements for debt financing to fund the Purchase Price and such financing is available to fund, and (ii) December 16, 2019.

“Warehouse Lease” means any Lease pursuant to which any Company Leases a Warehouse Property.

“Warehouse Property” means any land, together with all buildings, structures, improvements, and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, that is either owned or Leased by the Companies for purposes of operating and maintaining warehouse space in the Area.

“Working Capital” means, with respect to the Companies, on a consolidated basis, (i) current assets of the Companies, as of the close of business on the Business Day immediately prior to the Closing Date, that are included in the line item categories of current assets specifically identified on Part 2 of Exhibit B, reduced by (ii) those current liabilities of the Companies, as of the close of business on the Business Day immediately prior to the Closing Date, that are included in the line item categories of current liabilities specifically identified on Part 2 of Exhibit B, in each case, without duplication, and as determined in a manner strictly consistent with the Accounting Rules. Notwithstanding anything to the contrary contained herein, in no event shall “Working Capital” include any amounts with respect to (A) any deferred Tax assets and liabilities, (B) any fees, expenses or liabilities related to any financing by Purchaser and its Affiliates of the Transaction, (C) any intercompany accounts and transaction between or among the Companies, (D) any Transaction Expenses, Closing Date Indebtedness or Closing Cash, (E) any liabilities of the Companies, on the one hand, and Seller or any of its Affiliates, on the other hand, which are being discharged, terminated or cancelled pursuant to Section 1.2, (F) accrued straight line leasing liabilities or (G) any prepayment penalties, redemption premiums, call premiums, make-whole payments or similar fees, costs, expenses and/or penalties incurred in relation to the repayment of any Indebtedness. For purposes of this definition, including the calculation of current assets and current liabilities, the Parties shall disregard any adjustments arising from purchase accounting or otherwise arising out of the transactions contemplated by this Agreement.

“Working Capital Target” means $1,324,000.

“Valdosta Asset Purchase Agreement” means that certain Asset Purchase Agreement, dated as of December 21, 2018, by and between FMG Valdosta, LLC, Fairway Media Group, LLC, solely in its capacity as the representative, and the other parties thereto.

Terms Defined Elsewhere in this Agreement. For purposes of this Agreement, the following terms have the meanings set forth in the sections indicated:

12.2       Certain Interpretive Matters. Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:

(a)               Time of the Essence; Calculation of Time Periods. Time is of the essence for each and every provision of this Agreement. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day.

(b)               Dollars. Any reference in this Agreement to “$” or dollars shall mean U.S. dollars.

(c)               Exhibits/Schedules/Construction. The Exhibits and Schedules to this Agreement are an integral part of this Agreement and are hereby incorporated herein and made a part hereof as if set forth herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement. Any disclosure set forth in one section of the Schedules shall apply to (i) the representations and warranties or covenants contained in the Section of this Agreement to which it corresponds in number, (ii) any representation and warranty or covenant to which it is referred by cross reference, and (iii) any other representation or warranty or covenant to the extent it is reasonably apparent from the wording of such disclosure that such disclosure is applicable to such representation or warranty or covenant.

(d)               Gender and Number. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.

(e)               Headings. The provision of the Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any “Article,” “Section” or other subdivision are to the corresponding Article, Section or other subdivision of this Agreement unless otherwise specified.

(f)                Herein. The words such as “herein,” “hereinafter,” “hereof,” “hereunder” and “hereto” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.

(g)               Including. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

(h)               Made Available. An item shall be considered “made available” to a Party hereto, to the extent such phrase appears in this Agreement, only if such item has been provided in writing (including via electronic mail) to such Party or its representatives or posted by Seller or its representatives in the Data Room, in each case, at least one (1) Business Day prior to the execution of this Agreement.

(i)                 Reflected On or Set Forth In. An item arising with respect to a specific representation or warranty shall be deemed to be “reflected on” or “set forth in” a balance sheet or financial statements, to the extent any such phrase appears in such representation or warranty, if (i) there is a reserve, accrual or other similar item underlying a number on such balance sheet or financial statements that related to the subject matter of such representation, (ii) such item is otherwise specifically set forth on the balance sheet or financial statements, or (iii) such item is reflected on the balance sheet or financial statements and is specifically set forth in the notes thereto.

(j)                 Joint Negotiation and Drafting. The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.

[Signature Page to Equity Purchase Agreement]

Exhibit 10.3

TRANSITIONAL SERVICES AGREEMENT

THIS TRANSITIONAL SERVICES AGREEMENT (this “Agreement”) is made and entered into as of December 13, 2019 (the “Effective Date”) by and between (i) FMG Kentucky, LLC and FMG Valdosta, LLC, each a Delaware limited liability company (collectively, “Recipient”), and (ii) Fairway Outdoor Advertising Group, LLC, a Delaware limited liability company (“Provider”). Provider and Recipient are referred to collectively as the “Parties” and individually as a “Party.” Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Purchase Agreement (as defined herein).

RECITALS

WHEREAS, Provider and Recipient are parties to that certain Equity Purchase Agreement, dated as of October 16, 2019 (the “Purchase Agreement”), by and among Provider, as seller, Recipient, and Billboards LLC, as purchaser, a Delaware limited liability company (“Assignor”);

WHEREAS, Assignor and MediaCo Holding Inc. (“Purchaser”) are parties to that certain Assignment and Assumption of Purchase Agreement, dated as of the date hereof, pursuant to which Assignor assigned to, and Purchaser assumed and accepted, all of Assignor’s rights, title and interest in and obligations under the Purchase Agreement;

WHEREAS, pursuant to the Purchase Agreement, as assigned to Purchaser, among other things, Provider has agreed to sell to Purchaser, and Purchaser has agreed to purchase from Provider, the Acquired Units as more particularly described in the Purchase Agreement (the “Transaction”); and

WHEREAS, in connection with the Transaction, Provider has agreed to provide or to cause one or more of its Affiliates to provide to Recipient, from and after the Effective Date, certain services on a transitional basis on the terms and conditions set forth herein.

NOW, THEREFORE, for and in consideration of the mutual covenants and promises contained herein and for other good and valuable consideration, the Parties agree as follows:

1.           Transitional Services.

(a)            Upon the terms and subject to the conditions set forth in this Agreement, Provider shall provide, or cause one or more of its Affiliates to provide, the services set forth on Schedule A (the “Transitional Services”) to Recipient. If any services, functions or responsibilities not specifically described in this Agreement are an inherent or necessary part of the Transitional Services or required for the proper performance or provision of the Transitional Services, they shall be deemed to be included within the scope of the Transitional Services to the same extent as if specifically described in this Agreement.

(b)           The Parties acknowledge that Schedule A has been prepared using general descriptions of Transitional Services. If at any time within forty-five (45) days after the Effective Date, Recipient becomes aware of any services, software or facilities (or the scope thereof) that are not expressly addressed in Schedule A but which were (i) being provided by or on behalf of a service provider to the Business during the twelve (12) month period prior to the Effective Date and are reasonably necessary for the operations of the Business, and (ii) are not readily available from a third-party service provider at a comparable cost (“Missing Services”), Recipient may provide notice thereof to Provider. Upon receipt of such notice, Provider shall be required to provide the Missing Service in substantially the same manner and at substantially the same cost as such Missing Service was operated during such prior twelve (12) month period. Provider shall implement the Missing Service as soon as reasonably practicable under the circumstances; such Missing Service shall be automatically added as a Transitional Service to Schedule A, for all purposes of this Agreement; and the Parties shall promptly meet to identify and document the scope, fees and term for such Missing Service on a reasonable basis; provided that in no event will the expiration date of the term of such missing service extend beyond the last expiration date of any other Transitional Service on Schedule A. However, the foregoing shall not apply to any such service, software or facility, the provision of which would conflict with or violate, in any material respect, any applicable Law, any contract or agreement to which Provider is a party or the rights of any third party with respect thereto.

(c)            Recipient acknowledges that Provider may provide the Transitional Services directly, through any of its Affiliates or through one or more third parties engaged by Provider to provide the Transitional Services in accordance with the terms of this Agreement.

(d)           Subject to the provisions of Sections 7 and 8, nothing in this Agreement shall require Provider to perform or cause to be performed any Transitional Service if the provision of such Transitional Service by Provider would, as a result of a material change in applicable Law following the Effective Date, conflict with or violate, in any material respect, any applicable Law, any contract or agreement to which Provider is a party or the rights of any third party with respect thereto. If Provider becomes aware of any potential conflict or violation on the part of Provider, Provider may suspend or cease providing such Transitional Service; provided that Provider promptly advises Recipient in writing of such potential conflict or violation and cooperates in good faith with Recipient to implement an alternative that resolves such conflict or violation.

2.            Standard of Care. Provider shall provide, or cause to be provided, the Transitional Services in compliance with applicable Law and in the manner and at a relative level of service, for the same purposes and with the same degree of care, skill and attention, including with respect to the quality and timeliness of such services, in all material respects, as comparable services were historically performed for the Business or for Provider’s own businesses and Affiliates.

3.            Manner of Performance; Utilization Levels; Suspension.

(a)            Provider shall provide, or cause to be provided, the Transitional Services in substantially the same manner (which will be of like kind and amount and provided in the manner and at a relative level of service, for the same purposes and with the same degree of care, skill and attention, including with respect to the quality and timeliness of such services, in all material respects), and using substantially the same processes and systems, as any such Transitional Services that have been provided to the Business in the twelve (12) month period prior to the Effective Date; provided that Provider may modify the manner in which it provides the Transitional Services to conform to modifications in the manner in which Provider or its Affiliates generally provide services to their own businesses or as required by contracts with third parties or contractors, but only if such modifications would not result in (i) a material impact on Recipient, Recipient’s Affiliates or the Business or its operations (including, for the avoidance of doubt, a material cost to Recipient) or (ii) Recipient, Recipient’s Affiliates or the Business generally being treated any less favorably than Provider or its Affiliates receiving such services. Any incremental costs relating to or arising from any such modifications to the Transitional Services shall be borne solely by Recipient; provided that no such modifications shall entitle Provider to increase the fees for the Transitional Services set forth in Schedule A.

(b)           It is the intention of the Parties that Recipient’s use of any Transitional Service shall not be materially higher than or expanded from level of utilization of the Business in the twelve (12) month period prior to the Effective Date, except as is necessary to accommodate changes to the Business after Closing relating to the separation of the Business from Provider’s and its Affiliates’ other businesses as a result of the December 2018 reorganization (including the assumption of the Transitional Services on a self-supporting basis). Provider shall have no obligation to provide Recipient with any levels of Transitional Service or changes to Transitional Services beyond that which is expressly agreed to herein or in the Purchase Agreement.

(c)            Recipient acknowledges that the Transitional Services may, from time to time, in the reasonable discretion of Provider, be interrupted or suspended in whole or in part for reasonable and ordinary course or necessary modifications or maintenance relating to the Transitional Services (the “Service Suspensions”); provided, however, that Provider shall conduct any Service Suspension for the Transitional Services consistent with past practice of the Business and similarly to treatment of, and consistent with policies, procedures and standards applicable to, the same or similar suspensions by Provider with respect to provision of similar services to its and its Affiliates’ businesses. Provider shall consider the impact of any such Service Suspensions on Recipient, cooperate in good faith with Recipient and use commercially reasonable efforts to minimize any adverse consequences to Recipient and to implement reasonable alternatives to allow performance of essential Transitional Services to continue during such Service Suspensions, in each case, consistent with the manner in which it does so for its and its Affiliates’ businesses and the past practice of the Business. Except in emergency situations in which prior notice is not possible, Provider shall notify Recipient as promptly as practicable before (or in the case of emergency situations in which prior notice is not possible, as promptly as practicable after) any Service Suspension. Notwithstanding anything to the contrary herein, following such Service Suspension, Provider shall promptly resume such Transitional Services and use commercially reasonable efforts to eliminate any Transitional Service backlog.

(d)           If Provider delegates any of its responsibilities under this Agreement to any of its Affiliates or (with the prior consent of Recipient (not to be unreasonably withheld, conditioned or delayed)) uses third-party subcontractors in the performance of its obligations under this Agreement, then Provider will impose upon such third-party subcontractor confidentiality obligations that are substantially equivalent to its confidentiality obligations hereunder, and will remain ultimately and fully responsible to the same extent as if Provider were performing such obligations itself, including ensuring that the obligations with respect to the nature, quality and standards of care set forth herein are satisfied with respect to any services provided by such Affiliate or subcontractor. Further, if Provider delegates any Transitional Service provided hereunder to a third-party subcontractor, then (except to the extent such Transitional Service has been historically provided to the Business by such subcontractor prior to the Closing Date) Provider will be responsible for any additional costs, attributable to the delegation, in excess of the costs that were actually charged to Recipient prior to such delegation to a subcontractor for such Transitional Service.

4.            Term and Termination.

(a)            The term and provision of a particular Transitional Service shall be as set forth on Schedule A (unless sooner terminated pursuant to the terms hereof) (the “Initial Term”). The term of this Agreement shall commence on the Effective Date and shall continue (unless sooner terminated pursuant to the terms hereof) until the date on which the provision of all Transitional Services has terminated or as otherwise agreed to in writing by the Parties. Recipient shall have the right to request Provider’s approval of an extension of the term relating to any Transitional Service on one (1) occasion for a period not to exceed thirty (30) days (such extension term, the “Renewal Term”). Recipient shall make such written request to Provider not less than ten (10) Business Days prior to the then-scheduled expiration date of the term relating to such Transitional Service. Provider shall not unreasonably withhold, delay or condition its approval of any such extension request by Recipient.

(b)            Provider may terminate this Agreement by giving written notice to Recipient, in the event Recipient is in breach of any payment obligation under this Agreement and fails to cure such breach within twenty (20) Business Days of receipt of written notice of such breach from Provider.

(c)            Either Party may terminate this Agreement or any Transitional Service immediately upon written notice to the other Party if the other Party voluntarily files or involuntarily has filed against it (which, in the case of an involuntary filing, is not dismissed within ten (10) Business Days of such filing), any bankruptcy, receivership, insolvency or reorganization proceeding.

(d)            Recipient may from time to time terminate this Agreement with respect to any particular Transitional Service, in whole or in part, for any reason or no reason upon providing at least five (5) Business Days’ prior written notice to Provider of such termination; provided that any actual, documented out of pocket cost incurred or continued to be borne by Provider to a third-party in connection with such termination that would not have been incurred or borne by Provider if the applicable Transitional Service had been provided for the entire term set forth on Schedule A shall be borne by Recipient (other than costs that Provider would have borne regardless of whether such Transitional Services had not been provided under this Agreement). Schedule A shall be deemed amended to reflect any terminated Transitional Service. Such termination shall be effective as of the later of (x) the date set forth in the notice or (y) five (5) Business Days after delivery of such notice to Provider. In the event of the termination of a Transitional Service that is interdependent with another Transitional Service, Provider will, upon receipt of such termination notice, inform Recipient of the nature of such interdependency and identify in writing to Recipient the Transitional Services that are interdependent with the Transitional Service proposed to be terminated and, to the extent applicable, any necessary modifications for continuation of, or an alternative means of providing, such other Transitional Service (an “Interdependent Service Notice”). If Recipient does not rescind such termination, either by informing Provider that it nonetheless wishes to terminate the Transitional Service or by failing to respond to Provider within ten (10) days after delivery of the Interdependent Service Notice, then the identified interdependent Transitional Service shall also be terminated, unless the Parties otherwise agree on modifications for continuation of, or an alternative means of providing, such interdependent Transitional Service and (if appropriate and mutually agreed upon) revised fees in connection therewith.

(e)          In the event of termination or expiration of this Agreement, this Agreement shall cease to have further force or effect, and neither Party shall have any liability to the other Party with respect to this Agreement; provided that:

(i)                the termination or expiration of this Agreement shall not release a Party from any liability or obligation that already has accrued as of or prior to the effective date of such termination or expiration, as applicable, and shall not constitute a waiver or release of, or otherwise be deemed to adversely affect, any rights, remedies or claims which a Party may have hereunder at Law, in equity or otherwise or which may arise out of or in connection with such termination or expiration, subject to the provisions of this Agreement (including Section 11);

(ii)               this Section 4(e) (Survival), Section 9 (Disclaimers; Limitation of Liability; Indemnification), Section 10 (Confidentiality) and Section 11 (Miscellaneous) shall survive termination or expiration of this Agreement in accordance with their respective terms unless otherwise agreed to in writing by the Parties; and

(iii)              following the termination or expiration of this Agreement: (A) the Parties may negotiate for the purchase by Recipient of certain equipment, software or other materials set forth on Schedule B at prevailing market prices (taking into account age and wear and tear of such property) as determined by the Parties during such negotiations; and (B) Recipient shall have the right to offer employment to any employee of the Provider or its Affiliates who provided Transitional Services to Recipient hereunder.

(f)           Recipient shall use commercially reasonable efforts to transition off the Transitional Services as promptly as practicable following the Effective Date.

5.            Service Charges.

(a)           Fees and Expenses. The aggregate fees for the Transitional Services shall equal $5,000 per month until February 11, 2020, plus the Employee Services Charges (as defined in Exhibit A hereto). Following February 11, 2020 and until the termination or expiration of this Agreement, the aggregate fees for the Transitional Services shall equal $50,000 per month, plus the Employee Services Charges (as defined in Exhibit A hereto); provided, that if Recipient elects to terminate the Windstream services in any of its markets (i) during the Initial Term, Recipient and Provider will share cancellation fees and charges 50/50 (and thus Recipient will in such event promptly reimburse Provider for 50% of actual cancellation charges paid to Windstream) and (ii) during any Renewal Term, Recipient will be responsible for 100% of cancellation fees and charges (and thus Recipient will in such event promptly reimburse Provider for 100% of actual cancellation charges paid to Windstream). Further, in the event Provider is required to make any single expenditure in excess of $25,000 (any such item and/or service, a “Material Expenditure Item”) during the Initial Term or any Renewal Term in respect of any Transitional Service, Provider will provide written notice to Recipient of such Material Expenditure Item and the cost associated therewith and within five (5) days after receipt of such notice, Recipient will either consent or reject to the incurrence of such cost by Provider. If Recipient rejects such Material Expenditure Item, Provider shall have no obligation to continue to provide any Transitional Service associated with such Material Expenditure Item. If Recipient consents to such cost, Recipient will be responsible for 100% of the costs and expenses associated with such Material Expenditure Item and will promptly reimburse Provider for the full amount thereof.

(b)           Taxes. Recipient shall be entitled to deduct and withhold from the amounts otherwise payable in connection with this Agreement such amounts as are required to be deducted or withheld under applicable Law, and any such amounts deducted and withheld shall be treated for all purposes of this Agreement as having been paid to Provider in respect of which the deduction or withholding was made. Except as expressly noted therein, the amounts set forth in Section 5(a) with respect to each Transitional Service do not include any sales, use, goods and services or similar taxes (collectively, and together with any interest, penalties or additions to tax imposed with respect thereto, “Sales Taxes”), and Recipient shall bear the cost of any such Sales Taxes in connection with this Agreement or the performance hereof, which cost shall be in addition to the amounts required to be paid as set forth on Section 5(a) and shall be paid in accordance with Section 5(c).

(c)           Payment. Beginning on the calendar month immediately following the calendar month in which the Effective Date occurs and continuing each month until the termination of this Agreement in accordance with Section 4, Provider shall provide to Recipient an invoice on or before the fifteenth (15^th) day of the month that lists the prior month’s charges. Each invoice shall set forth in reasonable detail the applicable Transitional Services provided during such period, the basis for computing the charges (including any applicable service credits, rebates, cost reductions or discounts received by Provider during the prior month) and the corresponding amounts owed. Recipient shall remit, or cause to be remitted, to Provider payment for all fees and expenses in connection with the Transitional Services within thirty (30) days after the date of the applicable invoice.

(d)           Finance Charge. If Recipient fails to make any payment due under this Agreement within fifteen (15) days of the date such payment was due to Provider, a finance charge of one percent (1.0%) per month or, if less, the maximum rate allowed by applicable Law, payable by Recipient to Provider, shall accrue on such unpaid amount from the date of the applicable invoice to the date such payment is received by Provider. In addition, Recipient shall indemnify Provider for their costs, including reasonable, documented out-of-pocket costs, including reasonable attorneys’ fees and disbursements, actually incurred to collect any unpaid amount.

6.            Cooperation; Information and Access. During the term of the Agreement, the Parties will cooperate in good faith in all matters relating to the provision and receipt of the Transitional Services. Without limiting the generality of the foregoing:

(a)           Recipient will provide Provider (and, as applicable, Provider’s Affiliates and third party providers) in a timely manner with such information and access (upon reasonable advance notice and during normal business hours) to Recipient’s or its Affiliates’ facilities as is required or reasonably requested by Provider (and, as applicable, Provider’s Affiliates), in each case, to the extent necessary to provide the Transitional Services. If either Party (the “Accessing Party”) or its Affiliates is given access, whether on site or through remote facilities, to the other Party or its Affiliates’ computer systems, electronic data storage systems or software (collectively, the “Systems”) in connection with the Transitional Services, such Accessing Party shall, and shall cause its Affiliates to, comply with the applicable system security policies, information technology procedures and user terms and requirements of the other Party, its Affiliates or any third party, as applicable. The Accessing Party shall, and shall cause its Affiliates, to access and use only those Systems for which the other Party, its Affiliates or a third party, as applicable, have granted access and use and solely for the purpose of providing or receiving the Transitional Services, as applicable.

(b)           Provider shall cooperate with Recipient and provide such reasonable consultation, information and assistance as is reasonably requested by Recipient in connection with the transfer of responsibility for the management and provision of the Transitional Services from Provider or its Affiliates to Recipient or its third-party service providers on a self-supporting basis (including with respect to the transfer of segregated data for the Business in an appropriate data format and on appropriate transfer media).

7.            Third Party Consents. To the extent that the provision of any Transitional Services to Recipient or its Affiliates under this Agreement requires any third party consents, licenses, sublicenses or approvals (collectively, “Required Consents”), Provider shall use commercially reasonable efforts to obtain such Required Consents (the costs and expenses of which shall be borne one hundred percent (100%) by Recipient) in order to permit the provision of such Transitional Services as contemplated hereby. In connection therewith, Recipient shall use commercially reasonable efforts to cooperate in connection with Provider’s efforts to obtain such Required Consents. To the extent that Provider fails to obtain any Required Consents, Provider and Recipient will cooperate in good faith to secure an arrangement that is reasonably acceptable to both Parties under which Recipient would obtain the benefit of such Transitional Service.

8.            Intellectual Property. All firmware and software (including any license rights or rights of use) copyright and any and all other Intellectual Property rights in all materials, including computer programs, documentation, reports, modifications thereof, and all other information shall be owned by the Party that (or whose Affiliate or third party service provider) developed, wrote, or produced such Intellectual Property. No license, express or implied, is being granted by the Parties under this Agreement, other than to the extent necessary for use or performance of the applicable Transitional Services.

9.           Disclaimers; Limitation of Liability; Indemnification.

(a)           Disclaimers. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT (INCLUDING AS TO STANDARD OF CARE) OR THE PURCHASE AGREEMENT, THE TRANSITIONAL SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, AND RECIPIENT HEREBY EXPRESSLY DISCLAIMS ANY APPLICABLE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE TRANSITIONAL SERVICES.

(b)          Limitation of Liability. EXCEPT FOR LOSSES OR DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF ANTICIPATED REVENUES OR PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, EXPENSES OF INVESTIGATION, ENFORCEMENT AND COLLECTION AND ATTORNEYS’ AND ACCOUNTANTS’ FEES AND EXPENSES) ARISING FROM ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES, WHETHER SUCH ACTION IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE. EXCEPT FOR LOSSES OR DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS SECTION 9 OR OTHERWISE WITH RESPECT TO THIS AGREEMENT OR ANY BREACH HEREOF FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE FEES THAT ARE PAID OR PAYABLE TO PROVIDER PURSUANT TO THIS AGREEMENT.

(c)          Indemnification.

(i)               Recipient agrees to indemnify and hold harmless Provider and its directors, officers, employees, Affiliates, agents, attorneys, representatives, successors and permitted assigns harmless from and against any losses, costs, judgments, awards, claims, suits, liabilities, taxes, damages and other penalties (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or resulting from any actions, suits, claims, proceedings or demands brought by any third party to the extent related to Recipient’s (x) breach of this Agreement or (y) gross negligence, willful misconduct or fraud or violation of applicable Law; provided, however, that the foregoing indemnity shall not apply to Losses to the extent arising out of or resulting from Provider’s gross negligence, willful misconduct, fraud or violation of applicable Law or Losses which are insured under Provider’s insurance policies, including but not limited to worker’s compensation insurance.

(ii)             Provider agrees to indemnify and hold harmless Recipient and Recipient’s directors, officers, employees, Affiliates, agents, attorneys, representatives, successors and permitted assigns from and against any Losses arising out of or resulting from any actions, suits, claims, proceedings or demands brought by any third party to the extent arising out of or resulting from Provider’s (x) breach of this Agreement or (y) gross negligence, willful misconduct, fraud or violation of applicable Law; provided, however, that the foregoing indemnity shall not apply to Losses to the extent arising out of or resulting from Recipient’s gross negligence, willful misconduct or fraud.

(d)          Except for defective performance of a Transitional Service arising out of gross negligence, willful misconduct or fraud and subject to Section 9(c)(ii) and Section 11(i), Recipient’s sole and exclusive non-monetary remedy for defective performance of any Transitional Service is correction or compliant re-performance of such Transitional Service.

10.          Confidentiality.

(a)           The following shall be considered “Confidential Information” for purposes of this Agreement: all information furnished by any Party, its Affiliates or its representatives (the “Disclosing Party”) to another Party, its Affiliates or its representatives (the “Receiving Party”) in connection with the provision of the Transitional Services hereunder, whether or not in writing and whether or not labeled or identified as confidential or proprietary, including information relating to the Disclosing Party’s business, business relationships and financial affairs, including inventions, trade secrets, technical information, know-how, product and pricing information and plans, research and development activities, marketing plans and activities, customer, supplier and prospect information and employee and financial information; provided that Confidential Information shall not include, and there shall be no obligation hereunder with respect to, information that (i) is or becomes generally available to the public, other than as a result of a disclosure in breach of this Agreement or any other obligation of confidentiality by the Receiving Party, (ii) the Receiving Party can demonstrate was or became available to the Receiving Party from a third party (not an Affiliate of Provider) not bound by any confidentiality obligation or (iii) is developed independently by the Receiving Party (after the date hereof) without reference to the Confidential Information.

(b)           Each Party, in its capacity as the Receiving Party, agrees to: (i) treat the Confidential Information of the Disclosing Party as confidential; (ii) safeguard the Confidential Information of the Disclosing Party with the same degree of care used by such Party to protect its own similar Confidential Information, but in no event less than a reasonable degree of care; (iii) only use the Confidential Information of the Disclosing Party for purposes of this Agreement; and (iv) only disclose the Confidential Information of the Disclosing Party to its employees, directors, suppliers, agents, subcontractors and professional advisers who need to know such Confidential Information for purposes of this Agreement.

(c)           Notwithstanding anything contained herein to the contrary, Sections 10(a) and 10(b) shall not restrict the Receiving Party, its Affiliates or its representatives from disclosing Confidential Information to the extent reasonably necessary in connection with the enforcement of this Agreement or as required by applicable Law or legal or regulatory process, including any tax audit or litigation. In the event that the Receiving Party, its Affiliates or its representatives become legally required by deposition, interrogatory, request for documents, subpoena, civil investigative demand, formal regulatory request or similar judicial or administrative process to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent permitted by Law, provide the Disclosing Party with prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other similar remedy to cause such Confidential Information not to be disclosed. The Receiving Party shall reasonably cooperate with the Disclosing Party in connection with the Disclosing Party’s seeking of such protective order or similar remedy. In the event that such protective order or other similar remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section 10(c), the Receiving Party, its Affiliate or its representative, as the case may be, shall furnish only that portion of the Confidential Information that has been legally required to be disclosed, and shall exercise commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded such disclosed Confidential Information.

11.          Miscellaneous.

(a)           Governing Law, Etc.

(i)                THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

(ii)              The Parties agree that any dispute, controversy or claim arising out of or relating to this Agreement, or the validity, interpretation, breach or termination thereof, including claims seeking redress or asserting rights under any Law, shall be resolved exclusively in the courts of the State of Delaware or any court of the United States located in the State of Delaware (the “Delaware Courts”) and appellate courts having jurisdiction of appeals from such Delaware Courts. In that context, and without limiting the generality of the foregoing, each Party irrevocably and unconditionally:

(b)           Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt), (b) when sent by facsimile or e-mail of a PDF document (with written confirmation of transmission) if sent during normal business hours of the recipient and on the next Business Day if sent after normal business hours of the recipient or (c) one Business Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a Party may have specified by notice given to the other Party pursuant to this provision).

If to Recipient:

with a copy (which shall not constitute notice) to:

If to Provider:

with copies (which shall not constitute notice) to:

and

(c)           Force Majeure. Provider shall be excused from performance under this Agreement to the extent any force majeure, including but not limited to disaster, hurricane, fire, war, civil commotion, strike, labor shortage, slowdown or the unavailability of labor, governmental regulation, energy shortage or other occurrence, in each case, not caused by and beyond the control of Provider occurs and hinders, limits or makes impracticable the performance by Provider of any of its obligations under this Agreement. In any such event, Provider’s obligations under this Agreement shall be postponed to the extent and for such time as its performance is suspended or delayed on account thereof. Provider shall promptly notify Recipient, in writing, upon learning of the occurrence of such event of force majeure. Upon the cessation of the force majeure event, Provider shall use commercially reasonable efforts to resume its performance with the least practicable delay.

(d)           Amendment; Waivers, Etc. This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by Recipient and Provider. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Except as expressly set forth herein, the rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any Party may otherwise have at law or in equity.

(e)           Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns; provided that this Agreement shall not be assignable or otherwise transferable by any Party without the prior written consent of the other Party.

(f)            Other Definitions; Interpretative Provisions. Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:

(i)                Time of the Essence; Calculation of Time Periods. Time is of the essence for each and every provision of this Agreement. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day.

(ii)              Accounting Terms. Each accounting term not defined herein has the meaning given to it under GAAP as interpreted as of the date of this Agreement.

(iii)             Dollars. Any reference in this Agreement to “$” or dollars shall mean U.S. dollars.

(iv)             Exhibits/Schedules/Construction. The Exhibits and Schedules to this Agreement are an integral part of this Agreement and are hereby incorporated herein and made a part hereof as if set forth herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

(v)               Extent. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends and such phrase shall not mean simply “if.”

(vi)             Gender and Number. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.

(vii)             Headings. The division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any “Article,” “Section” or other subdivision are to the corresponding Article, Section or other subdivision of this Agreement unless otherwise specified.

(viii)            Herein. The words such as “herein,” “hereinafter,” “hereof,” “hereunder” and “hereto” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.

(ix)              Including. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

(x)               Joint Negotiation and Drafting. The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

(g)          Entire Agreement. This Agreement (including the schedules hereto) and the Transaction Agreements constitute the entire agreement and supersede all prior agreements, understandings and representations, both written and oral, between the Parties with respect to the subject matter hereof.

(h)           Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Law or public policy all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, 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 an acceptable manner in order that the transactions contemplated hereby is consummated as originally contemplated to the greatest extent possible.

(i)            Relationship of the Parties. The services that Provider renders to Recipient under this Agreement will be as an independent contractor with respect to Recipient. Nothing contained in this Agreement will be construed to create a joint venture or partnership, or the relationship of principal and agent, or employer and employee, between Provider and Recipient.

(j)            Specific Performance. Each Party acknowledges and hereby agrees that any breach of this Agreement would give rise to irreparable harm for which monetary damages would not be an adequate remedy. Accordingly, the Parties acknowledge and hereby agree that in the event of any breach or threatened breach by Provider on the one hand, or Recipient, on the other hand, of any of their respective covenants or obligations set forth in this Agreement, Provider, on the one hand, and Recipient, on the other hand, in addition to any other right or remedy that such Party may be entitled at law or equity, shall be entitled to seek an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other under this Agreement without the necessity of proving the inadequacy of money damages as a remedy, and the Parties further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief, this being in addition to and not in limitation of any other remedy to which each Party may be entitled at law or in equity.

(k)           Counterparts; Effectiveness; Third Party Beneficiaries. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by all of the other Parties. Until and unless each Party has received a counterpart hereof signed by the other Party, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Except for Section 9(c), which is intended to benefit, and to be enforceable by, the Parties specified therein, this Agreement, together with the schedules hereto are not intended to confer in or on behalf of any Person not a Party to this Agreement (and their successors and assigns) any rights, benefits, causes of action or remedies with respect to the subject matter or any provision hereof.

[Signature page follows.]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

[Signature Page to Transitional Services Agreement]

[Signature Page to Transitional Services Agreement]

Exhibit 10.4

EMPLOYEE ASSIGNMENT AND
ASSUMPTION AGREEMENT

This EMPLOYEE ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of December 13, 2019 (this “Agreement”), is executed by FMG Kentucky, LLC, a Delaware limited liability company (“Assignee”), and Fairway Outdoor Advertising Group, LLC, a Delaware limited liability company (“Assignor”). Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Purchase Agreement (as defined below).

RECITALS

WHEREAS, this Agreement is being executed and delivered pursuant to that certain Equity Purchase Agreement, dated as of October 16, 2019 (as amended from time to time, the “Purchase Agreement”), by and among Assignor, Assignee, Billboards LLC, a Delaware limited liability company (“Billboards”), and FMG Valdosta, LLC, a Delaware limited liability company;

WHEREAS, Billboards and MediaCo Holding Inc. (“MediaCo”) are parties to that certain Assignment and Assumption of Purchase Agreement, dated as of the date hereof, pursuant to which Billboards assigned to, and MediaCo assumed and accepted, all Billboards’ rights, title and interest in and obligations under the Purchase Agreement; and

WHEREAS, prior to the Closing of the transactions contemplated by the Purchase Agreement, Assignee has agreed to assume from Assignor (a) the contracts set forth on Exhibit A hereto (the “Assumed Contracts”), (b) the employment and employment related assets set forth on Exhibit B hereto of each individual listed on Exhibit C hereto (each such individual a “Business Employee” and collectively, the “Business Employees” and together with the Assumed Contracts, the “Assumed Assets”) and (c) the Assumed Liabilities (as defined below), immediately prior to the Closing.

NOW, THEREFORE, in consideration of the premises and agreements contained herein and in the Purchase Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby act and agree as follows:

1.              Assignment of the Assumed Contracts. Effective immediately prior to the Closing, Assignor hereby absolutely, unconditionally and irrevocably sells, conveys, transfers, assigns and delivers to Assignee all of Assignor's right, title, benefit, privilege and interest in and to the Assumed Assets; provided that, with respect to the Assumed Contracts, such assignment is made solely with respect to the period following the Closing.

2.              Assumption of the Assumed Contracts and Liabilities.

3.              Employment Matters. Effective immediately prior to the Closing, Assignor hereby transfers, effective as of the Closing Date, the employment of each Business Employee to the Assignee, and Assignor represents that Assignor has taken all legally necessary steps to effect such transfer. It is intended that the Business Employees shall not experience a termination of employment or severance solely as a result of the transactions contemplated by this Agreement. To the extent permitted by applicable Law, no Business Employees shall be entitled to any termination or severance payments or benefits as a result of the transactions contemplated by this Agreement and the parties hereto shall cause any applicable benefit arrangement to be interpreted and administered consistent with such intent.

4.              Counterparts. This Agreement may be executed in multiple counterparts, all of which shall be considered one and the same agreement and shall become effective when such counterparts have been signed by each of the parties and delivered to the other parties. The parties intend to treat as an original any document signed in connection with the transactions contemplated by this Agreement, including any counterpart to this Agreement that is delivered by electronic transmission, including by facsimile, .pdf, photo static copy, or otherwise.

5.              Interpretation. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires interpretation: (a) each term defined in this Agreement has the meaning ascribed to it; (b) “or” is disjunctive but not necessarily exclusive; (c) words in the singular include the plural and vice versa; (d) “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation;” and (e) references herein: (i) to Exhibits means the Exhibits attached to this Agreement; (ii) to an agreement, document, or instrument means such agreement, document, or instrument as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof, including by waiver or consent; and (iii) to a specific Law, or to specific provisions of Laws means such Laws or specific provisions of Laws as amended, modified, or supplemented from time to time and includes any successor comparable Laws or provisions of Laws thereto and any rules and regulations promulgated thereunder. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In the event of an ambiguity or question of intent or interpretation, 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 hereto by virtue of the extent to which any such party or its counsel participated in the drafting of any provision hereof or by virtue of the extent to which any such provision is inconsistent with any prior draft hereof.

6.              Governing Law; Jurisdiction; Waiver of Jury Trial.

(a)            This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without reference to choice of law principles, including all matters of construction, validity, and performance. Each of the parties hereto hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Delaware Court of Chancery (or, if such court lacks subject matter jurisdiction, in any state and federal court located in Delaware) for any actions, suits, or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and shall not to commence any Legal Proceeding relating thereto except in such courts). Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection to the laying of venue of any Legal Proceeding arising out of this Agreement or the transactions contemplated hereby, in such state or federal courts as aforesaid and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Legal Proceeding brought in any such court has been brought in an inconvenient forum.

(b)            EACH OF THE PARTIES HERETO IRREVOCABLY AND ABSOLUTELY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH, ARISING UNDER OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY OR THEREBY, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.

7.              Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors or assigns. Nothing in this Agreement, express or implied, is intended to confer upon any Person not a party to this Agreement any rights or remedies under or by reason of this Agreement. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Agreement shall not create any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement or any other Transaction Agreement any right in any Business Employee or any other person to any continued employment with the Assignor, Assignee or any of their respective Affiliates or compensation or benefits of any nature or kind whatsoever constitute an amendment to any compensation or benefit plans.

8.              Amendments, Supplements, etc. This Agreement may be amended only by a written instrument that makes specific reference to this Agreement and is executed by the parties hereto or their respective successors or assigns.

9.              Assignability. None of the parties hereto may assign or delegate all or any portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other parties to this Agreement.

10.            Invalid Provisions. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any applicable Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, such term or other provision will be interpreted so as to best accomplish the intent of the parties hereto within the limits of the applicable Law.

11.            Further Assurances. Each of the parties hereto agrees to take such actions and use such efforts as reasonably necessary to fully consummate the assignment and assumption of the Assumed Assets and Assumed Liabilities set forth in this Agreement.

* * * * *

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, all as of the date first written above.

Signature Page to
Employee Assignment and Assumption Agreement

Signature Page to
Employee Assignment and Assumption Agreement

Exhibit 10.5

EMPLOYEE ASSIGNMENT AND
ASSUMPTION AGREEMENT

This EMPLOYEE ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of December 13, 2019 (this “Agreement”), is executed by FMG Valdosta, LLC, a Delaware limited liability company (“Assignee”), and Fairway Outdoor Advertising Group, LLC, a Delaware limited liability company (“Assignor”). Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Purchase Agreement (as defined below).

RECITALS

WHEREAS, this Agreement is being executed and delivered pursuant to that certain Equity Purchase Agreement, dated as of October 16, 2019 (as amended from time to time, the “Purchase Agreement”), by and among Assignor, Assignee, Billboards LLC, a Delaware limited liability company (“Billboards”), and FMG Kentucky, LLC, a Delaware limited liability company;

WHEREAS, Billboards and MediaCo Holding Inc. (“MediaCo”) are parties to that certain Assignment and Assumption of Purchase Agreement, dated as of the date hereof, pursuant to which Billboards assigned to, and MediaCo assumed and accepted, all Billboards’ rights, title and interest in and obligations under the Purchase Agreement; and

WHEREAS, prior to the Closing of the transactions contemplated by the Purchase Agreement, Assignee has agreed to assume from Assignor (a) the contracts set forth on Exhibit A hereto (the “Assumed Contracts”), (b) the employment and employment related assets set forth on Exhibit B hereto of each individual listed on Exhibit C hereto (each such individual a “Business Employee” and collectively, the “Business Employees” and together with the Assumed Contracts, the “Assumed Assets”) and (c) the Assumed Liabilities (as defined below), immediately prior to the Closing.

NOW, THEREFORE, in consideration of the premises and agreements contained herein and in the Purchase Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby act and agree as follows:

1.              Assignment of the Assumed Contracts. Effective immediately prior to the Closing, Assignor hereby absolutely, unconditionally and irrevocably sells, conveys, transfers, assigns and delivers to Assignee all of Assignor's right, title, benefit, privilege and interest in and to the Assumed Assets; provided that, with respect to the Assumed Contracts, such assignment is made solely with respect to the period following the Closing.

2.              Assumption of the Assumed Contracts and Liabilities.

3.              Employment Matters. Effective immediately prior to the Closing, Assignor hereby transfers, effective as of the Closing Date, the employment of each Business Employee to the Assignee, and Assignor represents that Assignor has taken all legally necessary steps to effect such transfer. It is intended that the Business Employees shall not experience a termination of employment or severance solely as a result of the transactions contemplated by this Agreement. To the extent permitted by applicable Law, no Business Employees shall be entitled to any termination or severance payments or benefits as a result of the transactions contemplated by this Agreement and the parties hereto shall cause any applicable benefit arrangement to be interpreted and administered consistent with such intent.

4.              Counterparts. This Agreement may be executed in multiple counterparts, all of which shall be considered one and the same agreement and shall become effective when such counterparts have been signed by each of the parties and delivered to the other parties. The parties intend to treat as an original any document signed in connection with the transactions contemplated by this Agreement, including any counterpart to this Agreement that is delivered by electronic transmission, including by facsimile, .pdf, photo static copy, or otherwise.

5.              Interpretation. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires interpretation: (a) each term defined in this Agreement has the meaning ascribed to it; (b) “or” is disjunctive but not necessarily exclusive; (c) words in the singular include the plural and vice versa; (d) “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation;” and (e) references herein: (i) to Exhibits means the Exhibits attached to this Agreement; (ii) to an agreement, document, or instrument means such agreement, document, or instrument as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof, including by waiver or consent; and (iii) to a specific Law, or to specific provisions of Laws means such Laws or specific provisions of Laws as amended, modified, or supplemented from time to time and includes any successor comparable Laws or provisions of Laws thereto and any rules and regulations promulgated thereunder. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In the event of an ambiguity or question of intent or interpretation, 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 hereto by virtue of the extent to which any such party or its counsel participated in the drafting of any provision hereof or by virtue of the extent to which any such provision is inconsistent with any prior draft hereof.

6.              Governing Law; Jurisdiction; Waiver of Jury Trial.

(a)            This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without reference to choice of law principles, including all matters of construction, validity, and performance. Each of the parties hereto hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Delaware Court of Chancery (or, if such court lacks subject matter jurisdiction, in any state and federal court located in Delaware) for any actions, suits, or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and shall not to commence any Legal Proceeding relating thereto except in such courts). Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection to the laying of venue of any Legal Proceeding arising out of this Agreement or the transactions contemplated hereby, in such state or federal courts as aforesaid and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Legal Proceeding brought in any such court has been brought in an inconvenient forum.

(b)            EACH OF THE PARTIES HERETO IRREVOCABLY AND ABSOLUTELY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH, ARISING UNDER OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY OR THEREBY, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.

7.              Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors or assigns. Nothing in this Agreement, express or implied, is intended to confer upon any Person not a party to this Agreement any rights or remedies under or by reason of this Agreement. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Agreement shall not create any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement or any other Transaction Agreement any right in any Business Employee or any other person to any continued employment with the Assignor, Assignee or any of their respective Affiliates or compensation or benefits of any nature or kind whatsoever constitute an amendment to any compensation or benefit plans.

8.              Amendments, Supplements, etc. This Agreement may be amended only by a written instrument that makes specific reference to this Agreement and is executed by the parties hereto or their respective successors or assigns.

9.              Assignability. None of the parties hereto may assign or delegate all or any portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other parties to this Agreement.

10.            Invalid Provisions. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any applicable Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, such term or other provision will be interpreted so as to best accomplish the intent of the parties hereto within the limits of the applicable Law.

11.            Further Assurances. Each of the parties hereto agrees to take such actions and use such efforts as reasonably necessary to fully consummate the assignment and assumption of the Assumed Assets and Assumed Liabilities set forth in this Agreement.

* * * * *

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, all as of the date first written above.

Signature Page to

Employee Assignment and Assumption Agreement

Signature Page to

Employee Assignment and Assumption Agreement

Exhibit 10.6

****************************************

AMENDED AND RESTATED TERM LOAN AGREEMENT

Dated as of December 13, 2019

by and among

MEDIACO HOLDING INC.

THE OTHER PERSONS PARTY HERETO THAT ARE

DESIGNATED AS BORROWERS,

THE FINANCIAL INSTITUTIONS PARTY HERETO,

as Term Lenders,

and

GACP FINANCE CO., LLC,

as Term Agent

****************************************

TABLE OF CONTENTS

EXHIBITS

AMENDED AND RESTATED TERM LOAN AGREEMENT

This AMENDED AND RESTATED TERM LOAN AGREEMENT (including all exhibits hereto, as the same may be amended, modified and/or restated from time to time, this “Agreement”) is entered into as of December 13, 2019, by and among MEDIACO HOLDING INC., an Indiana corporation (“MediaCo”), MEDIACO WQHT LICENSE LLC, an Indiana limited liability company (“MediaCo WQHT”) and MEDIACO WBLS LICENSE LLC, an Indiana limited liability company (“MediaCo WBLS”), FMG Kentucky, LLC, a Delaware limited liability company (“FMG Kentucky”) and FMG Valdosta, LLC, a Delaware limited liability company (“FMG Valdosta”) the other Persons party hereto that are designated as “Borrowers” (collectively with MediaCo, MediaCo WQHT, MediaCo WBLS, FMG Kentucky and FMG Valdosta, the “Borrowers” and each a “Borrower”), GACP FINANCE CO., LLC, a Delaware limited liability company (in its individual capacity, “GACP”), as administrative agent and collateral agent (in such capacities, the “Term Agent”) for the financial institutions from time to time party to this Agreement (collectively, the “Term Lenders” and individually each a “Term Lender”) and for itself, and the Term Lenders.

W I T N E S S E T H:

WHEREAS, the Borrowers, the Term Lenders and the Term Agent wish to amend and restate that certain Term Loan Agreement, dated as of November 25, 2019 (the “Original Closing Date”) (as amended or modified prior to the effectiveness hereof, the “Existing Credit Agreement”), to which certain of the Borrowers and certain of the Term Lenders are subject. The Borrowers, the Term Lenders and the Term Agent have agreed to amend and restate the Existing Credit Agreement pursuant to the terms hereof;

WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under the Existing Credit Agreement or be deemed to evidence or constitute full repayment of such obligations and liabilities, but that this Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the obligations and liabilities of the Borrowers outstanding thereunder, which shall be payable in accordance with the terms hereof;

WHEREAS, it is also the intent of the Borrowers to confirm that all obligations under the Existing Credit Agreement and “Loan Documents” (as referred to and defined in the Existing Credit Agreement) shall constitute in full force and effect as modified and/or restated hereby and that, from and after the Effective Date, all references to the “Agreement” contained in any such existing “Loan Documents” shall be deemed to refer to this Agreement;

WHEREAS, the Borrowers have requested, and the Term Lenders have agreed to make available to the Borrowers, certain Additional Term Loan facilities to (a)  finance the Billboard Acquisition (as defined herein) and (b) fund certain fees and expenses, in each case, as provided herein; and

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties hereto agree as follows:

ARTICLE I.

THE TERM LOAN

1.1           Amount of the Term Loan; Protective Overadvances.

(a)            Term Loan.

(i)                 Initial Term Loan. Prior to the Effective Date, certain term loans were previously made to the Borrowers under the Existing Credit Agreement which remain outstanding as of the Effective Date (such outstanding loans being hereinafter referred to as the “Initial Term Loans”). Subject to the terms and conditions of this Agreement, the Borrowers and each Term Lender agree that on the Effective Date the Initial Term Loans shall be re-evidenced as loans under this Agreement, and the terms of the Initial Term Loans shall be restated in their entirety and shall be evidenced by this Agreement. Any amount borrowed under this Section 1.1(a) and subsequently repaid or prepaid may not be reborrowed. Unless an earlier maturity is provided for hereunder, all Initial Term Loans shall mature and be due and payable on the Termination Date.

(ii)               Additional Term Loan. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Borrowers contained herein, each Term Lender with an Additional Term Loan Commitment severally and not jointly agrees to make a single term loan to the Borrowers (such loan, the “Additional Term Loan”) on the Effective Date in an aggregate principal amount equal to such Term Lender’s Pro Rata Percentage of an amount equal to the lesser of (x) the Additional Term Loan Commitment and (y) the sum of (A) the Billboard Borrowing Base and (B) any excess availability in respect of the Radio Borrowing Base, in each case, as of such date (based upon the Borrowing Base Certificate delivered by the Borrowers to Term Agent on the Effective Date). Upon such Term Lender’s making of its portion of the Additional Term Loan, the Additional Term Loan Commitment of such Term Lender shall be terminated automatically in full. The Additional Term Loan shall deemed to be an “Incremental Term Loan” (as defined in the Existing Credit Agreement). Any portion of the Additional Term Loan repaid or prepaid may not be reborrowed. Notwithstanding anything to the contrary herein, from and after the Effective Date, the Initial Term Loan and the Additional Term Loan of each Term Lender shall be combined into a single “Term Loan” made by such Term Lender for all purposes hereunder.

(b)            [Reserved].

(c)            [Reserved].

(d)            Protective Overadvances. Notwithstanding anything to the contrary contained in this Agreement, the Term Agent may require the Term Lenders to make advances (a “Protective Overadvance”) so long as the Term Agent determines, in its sole discretion, such Protective Overadvance necessary or desirable to preserve or protect any Collateral, or to enhance the collectability or repayment of Obligations, or to pay any other amounts chargeable to Borrowers under any Loan Documents, including costs, fees and expenses. If a Protective Overadvance is made pursuant to the preceding sentence, then each Term Lender shall be obligated to make such Protective Overadvance based upon its Pro Rata Percentage thereof. All Protective Overadvances shall (i) bear interest at the default rate under Section 1.3(c), (ii) be due and payable upon demand of the Term Agent or of the Required Lenders, and (iii) constitute Obligations hereunder and be secured by the Collateral. Any Protective Overadvances made under this clause (d) shall be made by the Term Agent as determined by the Term Agent in its sole discretion.

1.2           Evidence of Term Loan; Term Notes. The portion of the Term Loan made by each Term Lender is evidenced by this Agreement and, if requested by such Term Lender, a Term Note payable to such Term Lender in an amount equal to such Term Lender’s Term Loan.

1.3           Interest.

(a)            Subject to Sections 1.3(c) and 9.4, the Term Loan shall bear interest on the outstanding principal amount thereof from the date when made at a rate per annum equal to LIBOR plus the Applicable Margin. Each determination of an interest rate by the Term Agent shall be conclusive and binding on the Borrowers and the Term Lenders in the absence of manifest error. All computations of fees and interest payable under this Agreement shall be made on the basis of a 360-day year and actual days elapsed. Interest and fees shall accrue during each period during which interest or such fees are computed from the first day thereof to the last day thereof.

(b)            Interest on the Term Loan shall be paid in cash in arrears on each Interest Payment Date. Interest shall also be paid in cash on the date of any payment or prepayment of the Term Loan (on the amount so paid or prepaid) and on the Termination Date.

(c)            At the election of the Term Agent or the Required Lenders while any Event of Default exists (or automatically while any Event of Default under Section 6.1(f) or 6.1(g) exists), the Borrowers shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the Term Loan under the Loan Documents from and after the occurrence of such Event of Default at a rate per annum which is determined by adding three percent (3.00%) per annum to the interest rate then in effect. All such interest shall be payable on demand of the Term Agent or the Required Lenders.

1.4           Loan Accounts.

(a)            The Term Agent, on behalf of the Term Lenders, shall record on its books and records the amount of the Term Loan, the interest rate applicable, all payments of principal and interest thereon and the principal balance thereof from time to time outstanding. The Term Agent shall deliver to the Borrower Representative, at the reasonable request of the Borrower Representative, a loan statement setting forth such record for the period so requested. Such record shall, absent manifest error, be conclusive evidence of the amount of the Term Loan made by the Term Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so, or any failure to deliver such loan statement shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder (and under any Term Note) to pay any amount owing with respect to the Term Loan or provide the basis for any claim against the Term Agent or any Term Lender.

(b)            The Term Agent, acting as a non-fiduciary agent of the Borrowers solely for tax purposes and solely with respect to the actions described in this Section 1.4(b), shall establish and maintain at its address referred to in Section 8.2 (or at such other address as the Term Agent may notify the Borrower Representative) (A) a record of ownership (the “Register”) in which the Term Agent agrees to register by book entry the interests (including any rights to receive payment hereunder) of the Term Agent and each Term Lender in the Term Loan and any assignment of any such interest or right and (B) accounts in the Register in accordance with its usual practice in which it shall record (1) the names and addresses of the Term Lenders (and each change thereto pursuant to Section 8.9), (2) the outstanding amount of the Term Loan, (3) the amount of any principal or interest due and payable or paid, and (4) any other payment received by the Term Agent from any Borrower and its application to the Obligations.

(c)            The Borrowers, the Term Agent and the Term Lenders shall treat each Person whose name is recorded in the Register as a Term Lender for all purposes of this Agreement so long as, with respect to assignments, any such assignment is recorded in accordance with Section 8.9(c). Information contained in the Register with respect to any Term Lender shall be available for access by the Borrower Representative during normal business hours and from time to time upon at least one Business Day’s prior notice. No Term Lender shall, in such capacity, have access to or be otherwise permitted to review any information in the Register other than information with respect to such Term Lender unless otherwise agreed by the Term Agent.

1.5           Optional Prepayments of the Term Loan.

(a)            Optional Prepayments. The Borrowers may, upon prior written notice to the Term Agent from the Borrower Representative, at any time or from time to time voluntarily prepay the Term Loan in whole or in part; provided that (i) such notice must be received by the Term Agent not later than 4:00 p.m., New York time, two (2) Business Days prior to any date of prepayment of any portion of the Term Loan, and (ii) such prepayment shall be accompanied by interest on the amount so prepaid and any related Early Termination Fee. Any amounts prepaid pursuant to this Section 1.5 in respect of the principal amount of the Term Loan shall be applied to the principal repayment installments thereof in inverse order of maturity.

(b)            Notice. Once provided, any notice of a prepayment of the Term Loan shall be revocable by the Borrower Representative to the extent repayment is contingent upon receipt of proceeds from a financing, and the Term Agent will promptly notify each applicable Term Lender thereof and of such Term Lender’s Pro Rata Percentage of such prepayment. The payment amount specified in such notice shall be due and payable on the date specified therein. Together with each prepayment under this Section 1.5, the Borrowers shall pay any related Early Termination Fee.

1.6           Mandatory Repayments and Prepayments of the Term Loan.

(a)            Repayment of the Term Loan. Beginning with the Fiscal Quarter ending December 31, 2019 and on the last day of each calendar quarter thereafter (or, if such date is not a Business Day, on the immediately preceding Business Day), the Borrowers shall make quarterly payments of principal on the Term Loans in an amount equal to one and one quarter percent (1.25%) of the initial aggregate principal amount of the Term Loans.

(b)            Certain Prepayment Events. If at any time or from time to time:

(i)                 a Loan Party or any of its Subsidiaries shall make Dispositions (other than a Disposition permitted by Section 5.2(a), (b), (c) or (e)) in excess of $500,000 in the aggregate in any Fiscal Year; or

(ii)               a Loan Party or any of its Subsidiaries shall suffer Events of Loss in excess of $500,000 in the aggregate in any Fiscal Year; or

(iii)              a Loan Party or any of its Subsidiaries shall issue or incur Indebtedness (other than Permitted Indebtedness, but excluding Permitted Indebtedness permitted by Section 5.5(h)); or

(iv)              a Change in Control shall occur;

(the events described in clauses (i) through (iv) of this clause (b) being collectively referred to herein as “Prepayment Events”),

then (A) the Borrower Representative shall promptly notify the Term Agent in writing of such Prepayment Event (including the amount of the estimated Net Proceeds to be received by a Loan Party and/or such Subsidiary in respect thereof) and (B) within two (2) Business Days (or immediately in the case of any issuance or incurrence of Indebtedness that is not Permitted Indebtedness or the issuance of equity interests or a Change in Control, as the case may be), after receipt by a Loan Party and/or such Subsidiary of any Net Proceeds of such Prepayment Event, the Borrower Representative shall deliver, or cause to be delivered, an amount equal to such Net Proceeds to the Term Agent for distribution to the Term Lenders as a prepayment of the Term Loan, which prepayment shall be applied in accordance with Section 1.8(c)(i) or Section 1.8(c)(ii), as the case may be; provided, however, that the Loan Parties shall be permitted to replace, repair, restore or rebuild the assets subject to an Event of Loss or replace or purchase assets in the case of a Disposition, provided that (i) no Event of Default has occurred and is continuing and (ii)  any such Net Proceeds arising from such Event of Loss or Disposition not used to so replace or purchase assets following such Disposition, or replace, repair, restore or rebuild the Collateral subject to such Event of Loss, as the case may be, within 180 days (or within ninety (90) days after being committed if committed to be reinvested within such 180 day period) after the receipt of such Net Proceeds shall be applied to the prepayment of the Term Loan in accordance with Section 1.8(c)(i) or Section 1.8(c)(ii), as the case may be. All prepayments of the principal amount of the Term Loan from events described in this Section 1.6(b) shall be accompanied by interest and any related Early Termination Fee.

(c)            Loan to Value Default. If the Borrowers fail to comply with the covenant set forth in Section 5.21, then the Borrower Representative shall promptly, upon knowledge thereof, notify the Term Agent in writing of such failure and shall promptly deliver, or cause to be delivered, to the Term Agent for distribution to the Term Lenders as a prepayment of the Term Loan, an amount that is sufficient (after being applied in accordance with Section 1.8(c)(i) or Section 1.8(c)(ii), as the case may be) to cause the Borrowers to be in compliance with the covenant set forth in Section 5.21. All prepayments of the principal amount of the Term Loan pursuant to this Section 1.6(c) shall be accompanied by interest and any related Early Termination Fee.

(d)            Excess Cash Flow. Commencing with the Fiscal Year ending December 31, 2020, within five (5) Business Days after financial statements have been delivered pursuant to Section 4.1(a) and the related Compliance Certificate has been delivered pursuant to Section 4.2(b), the Borrowers shall prepay the Term Loan as hereafter provided in an aggregate amount equal to 50% of Excess Cash Flow for the Fiscal Year covered by such financial statements less the amount of any voluntary prepayments made on the Term Loan during such Fiscal Year. For the avoidance of doubt, any prepayments of the principal amount of the Term Loan pursuant to this Section 1.6(d) shall not be subject to the Early Termination Fee.

(e)            No Implied Consent or Waiver of Default. Provisions contained in this Section 1.6 for the application of proceeds of certain transactions shall not be deemed to constitute consent of the Term Lenders to transactions that are not otherwise permitted by the terms hereof or the other Loan Documents or waiver of any Default or Event of Default.

1.7           Fees.

(a)            Fee Letter. The Borrowers shall pay to the Term Agent, for its own account or for the account of any other Person entitled thereto (as applicable), in Dollars, fees in the amounts and at the times specified in the Fee Letter.

(b)            [Reserved].

(c)            Early Termination Fee.

(i)                 In the event that, at any time on or prior to the third anniversary of the Original Closing Date, either the Borrowers prepay or repay (whether voluntarily or mandatorily), or are required to prepay or repay, the Term Loan in whole or in part, as a result of an acceleration of the Obligations after the occurrence of an Event of Default, as a result of an occurrence of a Prepayment Event set forth in Section 1.6(b), a mandatory prepayment required by Section 1.6(c), as a result of the occurrence of a Change in Control, or as a result of any refinancing of the Obligations (such prepayment or required prepayment, or commitment reduction or termination, as the case may be, an “Early Termination Fee Event”), then, on the date of such Early Termination Fee Event, the Borrowers shall pay an early termination fee (the “Early Termination Fee”) to the Term Agent, for the ratable benefit of the applicable Term Lenders, in an amount equal to (A) at any time on or prior to the first anniversary of the Original Closing Date, the Make-Whole Amount, (B) at any time after the first anniversary of the Original Closing Date but on or prior to the second anniversary of the Original Closing Date, two percent (2.00%) of the amount of the Term Loan so prepaid or repaid or required to be prepaid or repaid, as the case may be, or (C) at any time after the second anniversary of the Original Closing Date but on or prior to the third anniversary of the Original Closing Date, one percent (1.00%) of the amount of the Term Loan so prepaid or repaid or required to be prepaid or repaid, as the case may be.

(ii)               All parties to this Agreement agree and acknowledge that the Term Lenders will have suffered damages on account of the Early Termination Fee Event and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Term Lenders on account thereof. The Early Termination Fee shall be earned and due and payable upon the earlier of the date any prepayment or repayment is made or is required to be made, or the date of such commitment reduction or termination, as the case may be. Anything to the contrary contained herein notwithstanding, with respect to Events of Loss and Dispositions (A) for the purposes of calculating the amount of the Early Termination Fee that is due and payable in connection therewith, the Term Loan shall be deemed to have been repaid on the date of the Prepayment Event, and (B) the Early Termination Fee shall be earned in full on the date of the Prepayment Event and due and payable when the Term Loan is repaid with the proceeds of such Event of Loss or Disposition.

(iii)             Without limiting the generality of the foregoing, it is understood and agreed that if the Term Loan and the related Obligations are accelerated for any reason, including because of default or the commencement of any Insolvency Proceeding or by operation of law or otherwise, the Early Termination Fee, if any, determined as of the date of acceleration will be due and payable as though the Term Loan was voluntarily prepaid as of such date and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Term Lender’s lost profits as a result thereof. The Borrowers agree that payment of any Early Termination Fee due hereunder is reasonable under the circumstances currently existing. The Early Termination Fee, if any, shall also be payable in the event the Obligations (and/or the Term Loan Agreement or the Term Notes evidencing the Obligations) are satisfied or released by disposition of Collateral, foreclosure (whether by power of judicial proceeding or otherwise), agreement or deed in lieu of foreclosure or by any other means. TO THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWERS EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION INCLUDING IN CONNECTION WITH ANY VOLUNTARY OR INVOLUNTARY ACCELERATION OF THE TERM LOAN AND THE RELATED OBLIGATIONS PURSUANT TO ANY INSOLVENCY PROCEEDING OR PURSUANT TO A PLAN OF REORGANIZATION. The Borrowers expressly agree that: (A) the Early Termination Fee is reasonable and is the product of an arm’s-length transaction between sophisticated business people, ably represented by counsel; (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Term Lenders and the Borrowers giving specific consideration in this transaction for such agreement to pay the Early Termination Fee; and (D) the Borrowers shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Borrowers expressly acknowledge that their agreement to pay the Early Termination Fee to the Term Lenders as herein described is a material inducement to the Term Lenders to make the Term Loan.

1.8           Payments by the Borrowers.

(a)            All payments (including prepayments) to be made by each Borrower on account of principal, interest, fees and other amounts required hereunder shall be made without set-off, recoupment, counterclaim or deduction of any kind, and shall, except as otherwise expressly provided herein, be made to the Term Agent (for the ratable account of the Persons entitled thereto) and shall be made in Dollars and by wire transfer in immediately available funds (which shall be the exclusive means of payment hereunder), no later than 4:00 p.m. (New York time) on the date due. Any payment which is received by the Term Agent later than 4:00 p.m. (New York time) may in the Term Agent’s discretion be deemed to have been received on the immediately succeeding Business Day and any applicable interest or fee shall continue to accrue.

(b)            If any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made, and shall be deemed to be due, on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.

(c)            (i) Subject to Section 1.8(c)(ii), all payments received by the Term Agent and the Term Lenders in respect of any Obligation shall be applied to the Obligations as follows:

first, to the payment of any Protective Overadvance funded by the Term Agent or any Term Lender;

second, to payment of interest, fees (including, without limitation, any Early Termination Fee), costs and expenses and any other amounts then due and payable by the Borrowers under this Agreement and the other Loan Documents;

third, to payment of the principal of the Term Loan;

fourth, any remainder shall be for the account of the Borrowers or whoever may be lawfully entitled thereto.

In carrying out the foregoing, (A) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category and (B) each of the Term Lenders or other Persons entitled to payment shall receive an amount equal to its Pro Rata Percentage of amounts available to be applied.

(ii)               Notwithstanding any provision herein to the contrary, (A) during the continuance of an Event of Default, the Term Agent may, and shall upon the direction of Required Lenders, apply any and all payments received by the Term Agent and the Term Lenders in respect of any Obligation in accordance with clauses first through sixth below, and (B) without limiting the foregoing, all amounts collected or received by the Term Agent after any or all of the Obligations have been accelerated (so long as such acceleration has not been rescinded), including proceeds of Collateral, shall be applied as follows:

first, pro rata, to the payment of any Protective Overadvance funded by the Term Agent or any Term Lender and fees, costs and expenses, including Attorney Costs, of the Term Agent payable or reimbursable by the Borrowers under the Loan Documents;

second, to payment of Attorney Costs of the Term Lenders payable or reimbursable by the Borrowers under this Agreement (subject to any limitations set forth herein (including Section 8.5));

third, to payment of all accrued unpaid interest on the Obligations and fees (including, without limitation, any Early Termination Fee) owed to the Term Agent and the Term Lenders;

fourth, to payment of principal of the Term Loan;

fifth, to payment of any other amounts owing constituting Obligations; and

sixth, any remainder shall be for the account of the Borrowers or whoever may be lawfully entitled thereto.

In carrying out the foregoing, (A) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category and (B) each of the Term Lenders or other Persons entitled to payment shall receive an amount equal to its Pro Rata Percentage of amounts available to be applied.

1.9           Return of Payments; Procedures.

(a)            Return of Payments.

(i)                 If the Term Agent pays an amount to a Term Lender under this Agreement in the belief or expectation that a related payment has been or will be received by the Term Agent from the Borrowers and such related payment is not received by the Term Agent, then the Term Agent will be entitled to recover such amount from such Term Lender on demand without setoff, counterclaim or deduction of any kind.

(ii)               If the Term Agent determines at any time that any amount received by the Term Agent under this Agreement or any other Loan Document must be returned to any Borrower or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Loan Document, the Term Agent will not be required to distribute any portion thereof to any Term Lender. In addition, each Term Lender will repay to the Term Agent on demand any portion of such amount that the Term Agent has distributed to such Term Lender, together with interest at such rate, if any, as the Term Agent is required to pay to the Borrowers or such other Person, without setoff, counterclaim or deduction of any kind, and the Term Agent will be entitled to set-off against future distributions to such Term Lender any such amounts (with interest) that are not repaid on demand.

(b)            Procedures. The Term Agent is hereby authorized by each Borrower and each Secured Party to establish reasonable procedures (and to amend such procedures in a reasonable manner from time to time) to facilitate administration and servicing of the Term Loan and other matters incidental thereto. Without limiting the generality of the foregoing, the Term Agent is hereby authorized to establish reasonable procedures to make available or deliver, or to accept, notices, documents and similar items on, by posting to or submitting and/or completion on, E-Systems.

ARTICLE II.

CONDITIONS PRECEDENT

2.1           The obligation of each Term Lender to make its portion of the Additional Term Loan on the Effective Date is subject to satisfaction or waiver of the following conditions in a manner reasonably satisfactory to the Term Agent:

(a)            Loan Documents. The Term Agent shall have received on or before the Effective Date, each in form and substance reasonably satisfactory to the Term Agent, this Agreement, a Term Note for each Term Lender requesting a Term Note, the Fee Letter, the Collateral Documents (other than the Control Agreements and Mortgages, if any), the Escrow Agreement and certificates evidencing any certificated Stock being pledged thereunder, together with undated Stock powers executed in blank, and all other Loan Documents, each duly executed by the applicable parties thereto;

(b)            Payment Direction Letter; Funds Flow Memorandum; Etc. The Term Agent shall have received a letter of direction from the Borrower Representative directing where the proceeds of the Additional Term Loan are to be made and attaching a funds-flow memorandum setting forth the sources and uses of such proceeds, which funds-flow memorandum shall be in form and substance reasonably satisfactory to the Term Agent (the “Funds Flow Memorandum”) and shall contain the details of how funds from each source are to be transferred to particular uses and the wire transfer instructions for the particular uses of such funds. The Borrower Representative shall have identified, in writing, not later than five (5) Business Days prior to the Effective Date (or such shorter period as agreed by the Term Agent in its sole discretion), each Person (other than any Borrower) that will directly receive proceeds of the Additional Term Loan to be made on the Effective Date and the Term Agent shall have received such information required by the Term Agent or any Term Lender under its “know your customer” compliance procedures with respect to each such Person;

(c)            No Material Adverse Change. Since August 31, 2019 no Material Adverse Effect shall have occurred;

(d)            No Litigation. No action, suit, investigation, litigation or proceeding shall be pending or threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to (i) materially and adversely affect the transactions contemplated hereby or (ii) result in a Material Adverse Effect;

(e)            Financial Statements. The Term Agent shall have received and be satisfied with the (a) audited carve-out balance sheet and related carve-out statement of income and cash flows of the Billboard Entities for the fiscal years ended December 31, 2017 and December 31, 2018, and (b) unaudited carve-out balance sheet and related carve-out statement of income and cash flows of the Billboard Entities for the 9-month period ended September 30, 2019;

(f)            Minimum Liquidity and Consolidated Fixed Charge Coverage Ratio at Closing. The Term Agent shall have received a duly completed written calculation in form and substance reasonably acceptable to the Term Agent, dated as of Effective Date, certified by a Responsible Officer of the Borrower Representative, which shall evidence that after giving effect to the making of the Additional Term Loan and the other transactions contemplated to be effective on the Effective Date and, on a pro forma basis, (x) Liquidity shall not be less than $2,000,000, (y) the Consolidated Fixed Charge Coverage Ratio for the twelve (12) consecutive month period ending September 30, 2019, measured as of such date, is greater than or equal to 1.10 to 1.00, and (z) the Term Agent, in its reasonable discretion, shall be satisfied that all accounts payable, leases, payments due under other Indebtedness and taxes are paid current (excluding good faith disputes related thereto);

(g)            No Liens. The Term Agent shall be reasonably satisfied that the Obligations do not give rise to any obligation of any Borrower or its Subsidiaries to grant any security interest or Lien in respect of any existing Indebtedness of such Borrower or its Subsidiaries or violate any of the terms, in any material respect, of the agreements with respect to such existing Indebtedness;

(h)            Approvals. The Term Agent shall have received (i) satisfactory evidence that the Borrowers have obtained all required consents and approvals of all Persons (including all requisite Governmental Authorities or third parties), to the execution, delivery and performance of this Agreement and the other Loan Documents and the consummation of transactions contemplated hereby and thereby or (ii) an officer’s certificate in form and substance reasonably satisfactory to the Term Agent affirming that no such material consents or approvals are required;

(i)            Payment of Fees. The Borrowers shall have paid all fees required to be paid on the Effective Date (including, without limitation, the fees specified in the Fee Letter), and shall have reimbursed the Term Agent, for all reasonable and documented fees, costs and expenses of closing to the extent invoiced three (3) Business Days prior to the Effective Date;

(j)            Solvency. The Term Agent shall have received a certificate of a Responsible Officer of the Borrower Representative certifying that both before and after giving effect to (i) the Additional Term Loan made on the Effective Date, (ii) the consummation of the Billboard Acquisition and (iii) the payment and accrual of all transaction costs in connection with the foregoing, the Borrowers, taken as a whole, and the Borrowers and their Subsidiaries, on a Consolidated basis, are Solvent;

(k)            Perfection. All filings, recordations and searches reasonably necessary or otherwise reasonably requested by the Term Agent (other than with respect to Mortgages, if any) in connection with the Liens to be granted to the Term Agent under the Loan Documents shall have been duly made, and all documents and instruments required to perfect the Term Agent’s security interest in the Collateral shall have been executed, delivered, and filed, and all taxes and fees directly related to filing and recording shall concurrently with such filing or recordation be duly paid;

(l)            Borrowing Base Certificate. The Term Agent shall have received a Borrowing Base Certificate for the month most recently ended prior to the Effective Date.

(m)            Opinions of Counsel; Corporate Documents. The Term Agent and the Term Lenders shall have received (i) customary opinions of counsel (including all applicable local counsel) to the Borrowers (which shall cover, among other things, authority, legality, validity, binding effect, perfection and enforceability of the Loan Documents and other matters as the Term Agent may reasonably require), and (ii) such customary corporate resolutions, certificates and other documents as the Term Agent shall reasonably require.

(n)            Representations and Warranties. The representations and warranties of the Borrowers set forth in this Agreement and in any other Loan Document shall be true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the Effective Date (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date);

(o)            No Default. No Default or Event of Default shall have occurred and be continuing or shall result after giving effect to the making of the Additional Term Loan;

(p)            Governmental Regulations. No material change in governmental regulations or policies materially and adversely affecting the transactions contemplated hereby shall have occurred prior to the Effective Date;

(q)            [Reserved];

(r)            Projections and Business Plan. The Term Agent shall have received the projections and business plan of each of the Borrowers and their Subsidiaries and shall be reasonably satisfied in form, substance and detail, with them (including, without limitation, that the minimum Liquidity on the Effective Date is sufficient to (i) allow the Borrowers to meet ongoing liquidity needs, including the payment and performance of current and projected customer contracts and (ii) fund the Borrowers’ and their Subsidiaries’ operations and pay accounts payable in accordance with historical practices);

(s)            No Default or Breach of Material Contracts. The Term Agent shall have received a certificate of a Responsible Officer of the Borrower Representative certifying that no breach or default (or event or condition, which after notice or lapse of time, or both, would constitute a breach or default) has occurred and is continuing under any Material Contract;

(t)            Effective Date Equity Contribution. Standard General Controlled Funds shall have invested (the “Effective Date Equity Contribution”) a minimum of $22,000,000 in MediaCo and its Subsidiaries on the Effective Date in the form of cash equity into the capital stock or other equity securities of MediaCo, it being understood that investments in equity securities other than common stock must be on terms and conditions reasonably satisfactory to the Term Lenders;

(u)            Billboard Acquisition. The Term Agent shall have received evidence in form satisfactory to it that the Billboard Acquisition shall have been consummated on the Effective Date in accordance with the Billboard Acquisition Agreement, and no material terms or conditions of such Billboard Acquisition Agreement (other than any immaterial terms or conditions) shall have been waived without the consent of the Term Agent; and

(v)            Beneficial Ownership Certification. With respect to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Term Agent shall have received at least three (3) Business Days prior to the Effective Date a Beneficial Ownership Certification in relation to such Borrower.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

The Borrowers, jointly and severally, as an inducement for the Term Agent and Term Lenders to enter into this Agreement and to extend the Term Loan represent and warrant to the Term Agent and each Term Lender that the following are true, correct and complete:

3.1           Corporate Existence and Power. Each Borrower and each of its respective Subsidiaries:

(a)            is a corporation, limited liability company or limited partnership, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, organization or formation, as applicable;

(b)            has all requisite power and authority and all governmental licenses, authorizations, Permits, consents and approvals to (i) own its assets, (ii) carry on its business and (iii) execute, deliver, and perform its obligations under, the Loan Documents to which it is a party, except, in the case of clauses (b)(i) and (b)(ii), where the failure to have such consents would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;

(c)            is duly qualified as a foreign corporation, limited liability company or limited partnership, as applicable, and licensed and in good standing, under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification or license, except where the failure to be so qualified, licensed or in good standing would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and

(d)            is in compliance with all Requirements of Law, except where the failure to be in compliance would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

3.2           Corporate Authorization; No Contravention. The execution, delivery and performance by each of the Borrowers of this Agreement, and by each Borrower and each of its Subsidiaries of any other Loan Document to which such Person is party, have been duly authorized by all necessary organizational action, and do not and will not:

(i)                 contravene the terms of any of that Person’s Organization Documents;

(ii)               conflict with or result in the creation of any Lien (except Liens created pursuant to the Loan Documents) under any document evidencing any material Contractual Obligation to which such Person is a party or any material order, injunction, writ or decree of any Governmental Authority to which such Person or its Property is subject;

(iii)             conflict with or result in any breach or contravention of any document evidencing any Material Contract or any material order, injunction, writ or decree of any Governmental Authority to which such Person or its Property is subject; or

(iv)              violate any Requirements of Law in any material respect.

3.3           Governmental and Third Party Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Borrower or any Subsidiary of any Borrower of this Agreement or any other Loan Document except (a) for recordings and filings in connection with the Liens granted to the Term Agent under the Collateral Documents and (b) those obtained or made on or prior to the Effective Date.

3.4           Binding Effect. This Agreement and each other Loan Document to which any Borrower is a party constitute the legal, valid and binding obligations of each such Borrower, enforceable against such Borrower in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, regardless of whether considered in a proceedings in equity or at law.

3.5           Litigation. Except as specifically disclosed in Schedule 3.5, there are no actions, suits or proceedings pending, or to the knowledge of each Borrower, threatened, at law, in equity, in arbitration or before any Governmental Authority, against any Borrower, any Subsidiary of any Borrower or any of their respective Properties which:

(a)            purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby; or

(b)            would reasonably be expected to result in a Material Adverse Effect.

No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement, any other Loan Document or directing that the transactions provided for herein or therein not be consummated as herein or therein provided. No Borrower or any Subsidiary of any Borrower is the subject of an audit or, to each Borrower’s knowledge, any review or investigation by any Governmental Authority concerning the violation or possible violation of any Requirements of Law or any Permits maintained by the Borrowers or their Subsidiaries which would reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.

3.6           No Default. No Default or Event of Default exists or would result from the incurring of any Obligations by any Borrower or the grant or perfection of the Term Agent’s Liens on the Collateral or the consummation of the transactions contemplated under the Credit Agreement and the other Loan Documents. No Borrower and no Subsidiary of any Borrower is in default under or with respect to (i) any Material Contract in any respect or (ii) any other Contractual Obligation in any respect which, individually or together with all such defaults, would reasonably be expected to have a Material Adverse Effect.

3.7           ERISA Compliance and Foreign Benefit Plans.

(a)            U.S. Plans. Schedule 3.7 sets forth, as of the Effective Date, a complete and correct list of, and that separately identifies, all Benefit Plans. None of the Borrowers or their respective Subsidiaries are a member of any Controlled Group nor do they maintain or contribute to any Title IV Plan or any Multiemployer Plan. Each Benefit Plan, and each trust thereunder, intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law so qualifies. Except those that would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, (x) each Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other Requirements of Law, (y) there are no existing or pending (or to the knowledge of any Borrower, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which any Borrower incurs or otherwise has or could have an obligation or any Liability and (z) no ERISA Event is reasonably expected to occur. On the Effective Date, no ERISA Event has occurred in connection with which obligations and Liabilities (contingent or otherwise) remain outstanding.

(b)            Foreign Pension Plan and Benefit Plans. None of the Borrowers or any of their Subsidiaries maintain or contribute to, or are required to maintain or contribute to, any Foreign Benefit Plans and Foreign Pension Plans.

3.8           Use of Proceeds; Margin Regulations. No Borrower and no Subsidiary of any Borrower is engaged in the business of purchasing or selling Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock. The Funds Flow Memorandum contains a description of the Borrowers’ sources and uses of funds on the Effective Date, and details how funds from each source are to be transferred to particular uses.

3.9           Ownership of Property; Liens. Each Borrower and each of their respective Subsidiaries has good title to and ownership of all property it purports to own, which property is free and clear of all Liens, except Permitted Liens. As of the Effective Date, the Real Estate listed in Schedule 3.9 constitutes all of the Real Estate of each Borrower and each of their respective Subsidiaries. Each of the Borrowers and each of their respective Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all of its Real Estate, and good and valid title to all owned personal property and valid leasehold interests in all leased personal property, in each instance, necessary or used in the ordinary conduct of their respective businesses, except for Permitted Liens and such immaterial defects in title or where failure to own such personal property or have such leasehold interest would not be material. None of the Real Estate owned by any Borrower or any Subsidiary of any Borrower is subject to any Liens other than Permitted Liens. As of the Effective Date, Schedule 3.9 also describes any purchase options, rights of first refusal or other similar contractual rights pertaining to any Real Estate. All material permits required to have been issued or appropriate to enable the Real Estate to be lawfully occupied and used for all of the purposes for which it is currently occupied and used have been lawfully issued and are in full force and effect.

3.10          Taxes. All federal, state, local and foreign income and franchise and other material tax returns, reports and statements (collectively, the “Tax Returns”) required to be filed by any Tax Affiliate have been filed with the appropriate Governmental Authorities, all such Tax Returns are true and correct in all material respects, and all material taxes, assessments and other governmental charges and impositions reflected therein or otherwise due and payable have been paid prior to the date on which any Liability may be added thereto for non-payment thereof except for those contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are maintained on the books of the appropriate Tax Affiliate in accordance with GAAP. No Tax Return is under audit or examination by any Governmental Authority and no notice of any audit or examination or any assertion of any material claim for Taxes has been given or made by any Governmental Authority. Proper and accurate amounts have been withheld by each Tax Affiliate from their respective employees for all periods in full and complete material compliance with the tax, social security and unemployment withholding provisions of applicable Requirements of Law and such withholdings have been timely paid to the respective Governmental Authorities. No Tax Affiliate has participated in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b) or has been a member of an affiliated, combined or unitary group other than the group of which a Tax Affiliate is the common parent.

3.11          Financial Condition.

(a)            Each of (i) the audited carve-out balance sheet of MediaCo dated February 28, 2019, and the related audited carve-out statement of income or operations for the twelve month period ended on that date for MediaCo, (ii) the unaudited interim carve-out balance sheet of MediaCo as of September 30, 2019, and the related unaudited carve-out statement of income for the seven month period ended September 30, 2019, (iii) audited carve-out balance sheet and related carve-out statement of income and cash lows of the Billboard Entities for the fiscal years ended December 31, 2017 and December 31, 2018, and (b) unaudited carve-out balance sheet and related carve-out statement of income and cash flows of the Billboard Entities for the 9-month period ended September 30, 2019:

(x)            were prepared in accordance with GAAP consistently applied throughout the respective periods covered thereby, except as otherwise expressly noted therein, subject to, in the case of the unaudited interim financial statements, normal year-end adjustments and the lack of footnote disclosures; and

(y)            present fairly in all material respects the financial condition of MediaCo as of the dates thereof and results of operations for the periods covered thereby.

(b)            The pro forma unaudited Consolidated balance sheet of MediaCo and its Consolidated Subsidiaries dated September 30, 2019, delivered to the Term Agent and the Term Lenders on or before the Effective Date was prepared by the Borrowers giving pro forma effect to the transaction contemplated under this Agreement and the other Loan Documents and the transactions contemplated hereby and was prepared in accordance with GAAP, with only such adjustments thereto as would be required in a manner consistent with GAAP.

(c)            Since August 31, 2019, there has been no Material Adverse Effect.

(d)            The Borrowers and their Subsidiaries have no Indebtedness other than Indebtedness permitted pursuant to Section 5.5 and have no Contingent Obligations other than Contingent Obligations permitted pursuant to Section 5.8.

(e)            All financial performance projections delivered to the Term Agent, including the financial performance projections delivered to the Term Agent and the Term Lenders on or before the Effective Date, represent each Borrower’s best good faith estimate of future financial performance and are based on assumptions believed by such Borrower to be fair and reasonable in light of current market conditions (it being understood that (i) such projections are as to future events and are not to be viewed as facts, and (ii) actual results during the period or periods covered by any such projections may differ from the projected results).

3.12          Environmental Matters.

Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect:

(a)            The operations of each Borrower and each of their respective Subsidiaries are and have been in compliance with all applicable Environmental Laws, including obtaining, maintaining and complying with all Permits required by any applicable Environmental Law.

(b)            No Borrower and no Subsidiary of any Borrower is party to, and no Borrower and no Subsidiary of any Borrower and no Real Estate currently (or to the knowledge of any Borrower previously) owned, leased, subleased, operated or otherwise occupied by or for any such Person is subject to or the subject of, any Contractual Obligation or any pending (or, to the knowledge of any Borrower, threatened) order, action, investigation, suit, proceeding, audit, claim, demand, dispute or notice of violation or of potential liability or similar notice relating in any manner to any Environmental Laws.

(c)            No Lien in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities has attached to any Property of any Borrower or any Subsidiary of any Borrower and, to the knowledge of any Borrower, no facts, circumstances or conditions exist that would reasonably be expected to result in any such Lien attaching to any such Property.

(d)            No Borrower and no Subsidiary of any Borrower has caused or suffered to occur a Release of Hazardous Materials at, to or from any Real Estate.

(e)            Except as specifically disclosed in Schedule 3.12(e), all Real Estate currently (or to the knowledge of any Borrower previously) owned, leased, subleased, operated or otherwise occupied by or for any such Borrower and each Subsidiary of each Borrower is free of contamination by any Hazardous Materials.

(f)            No Borrower and no Subsidiary of any Borrower (i) is or has been engaged in, or, to the knowledge of any Borrower, has permitted any current or former tenant to engage in, operations in violation of any Environmental Law or (ii) knows of any facts, circumstances or conditions reasonably constituting notice of a violation of any Environmental Law, including receipt of any information request or notice of potential responsibility under the Comprehensive Environmental Response, Compensation and Liability Act or similar Environmental Laws.

(g)            Each Borrower has made available to the Term Agent copies of all material existing environmental reports, reviews and audits and all documents pertaining to actual or potential Environmental Liabilities, in each case to the extent such reports, reviews, audits and documents are in their possession, custody, control or otherwise available to the Borrowers or any of their Subsidiaries.

3.13          Regulated Entities. None of any Borrower, any Person controlling any Borrower, or any Subsidiary of any Borrower, is (a) an “investment company” within the meaning of the Investment Company Act of 1940 or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities code, or any other federal or state statute, rule or regulation limiting its ability to incur Indebtedness, pledge its assets or perform its Obligations under the Loan Documents.

3.14          Solvency. Both before and after giving effect to (a) the Additional Term Loan made on the Effective Date, (b) the consummation of the other transactions contemplated hereby to occur on the Effective Date, and (c) the payment and accrual of all transaction costs in connection with the foregoing, the Borrowers, taken as a whole, and the Borrowers and their Subsidiaries, on a Consolidated basis, are Solvent.

3.15          Labor Relations. Except as would not be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, as of the Effective Date, there are no strikes, work stoppages, slowdowns or lockouts existing, pending (or, to the knowledge of any Borrower, threatened) against or involving any Borrower. Except as set forth in Schedule 3.15, as of the Effective Date, (a) there is no collective bargaining or similar agreement with any union, labor organization, works council or similar representative covering any employee of any Borrower, (b) no petition for certification or election of any such representative is existing or pending with respect to any employee of any Borrower and (c) no such representative has sought certification or recognition with respect to any employee of any Borrower.

3.16          Intellectual Property. Schedule 3.16 sets forth a true and complete list of the following Intellectual Property each Borrower and each Subsidiary owns as of the Effective Date: (i) Intellectual Property that is registered or subject to applications for registration and (ii) Internet Domain Names and including for each the foregoing items (1) the owner, (2) the title, (3) the jurisdiction in which such item has been registered or otherwise arises or in which an application for registration has been filed and (4) as applicable, the registration or application number and registration or application date. Each Borrower and each Subsidiary of each Borrower owns, or is licensed to use, all Intellectual Property necessary to conduct its business as currently conducted in all material respects. To the Borrowers’ knowledge, the conduct and operations of the businesses of each Borrower does not in any material respect infringe, misappropriate, dilute, violate or otherwise impair any material Intellectual Property owned by any other Person.

3.17          Brokers’ Fees; Transaction Fees. Except for fees payable to Term Agent and the Term Lenders or as otherwise set forth in Schedule 3.17, none of the Borrowers or any of their respective Subsidiaries has any obligation to any Person in respect of any finder’s, broker’s or investment banker’s fee in connection with the transactions contemplated hereby.

3.18          Insurance. Schedule 3.18 lists all insurance policies of any nature maintained as of the Effective Date for current occurrences by each Borrower, including issuers, coverages and deductibles. Each of the Borrowers and each of their respective Subsidiaries and their respective Properties are insured with financially sound and reputable insurance companies which are not Affiliates of the Borrowers, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses of the same size and character as the business of the Borrowers and, to the extent relevant, owning similar Properties in localities where such Person operates. The Borrowers shall not reduce the coverage amounts under their liability policies without the prior consent of the Term Agent.

3.19          Ventures, Subsidiaries and Affiliates; Outstanding Stock. Except as set forth in Schedule 3.19, as of the Effective Date, no Borrower and no Subsidiary of any Borrower (i) has any Subsidiaries, or (ii) is engaged in any joint venture or partnership with any other Person, or is an Affiliate of any other Person. All issued and outstanding Stock and Stock Equivalents of each of the Borrowers and each of their respective Subsidiaries are duly authorized and validly issued, fully paid, non-assessable (if applicable), and free and clear of all Liens other than with respect to the Stock and Stock Equivalents of each of the Borrowers and Subsidiaries of each of the Borrowers, as applicable, those in favor of Term Agent, for the benefit of the Secured Parties and Permitted Liens. All such securities were issued in compliance with all applicable state and federal laws concerning the issuance of securities. As of the Effective Date, all of the issued and outstanding Stock of each Borrower and each Subsidiary of each Borrower is owned by each of the Persons and in the amounts set forth in Schedule 3.19. Except as set forth in Schedule 3.19, as of the Effective Date there are no pre-emptive or other outstanding rights to purchase, options, warrants or similar rights or agreements pursuant to which any Borrower may be required to issue, sell, repurchase or redeem any of its Stock or Stock Equivalents or any Stock or Stock Equivalents of its Subsidiaries. Set forth in Schedule 3.19 is a true and complete organizational chart of the Borrowers and all of their Subsidiaries as of the Effective Date.

3.20          Jurisdiction of Organization; Chief Executive Office. Schedule 3.20 lists each Borrower’s jurisdiction of organization, legal name and organizational identification number, if any, and the location of such Borrower’s chief executive office or sole place of business.

3.21          Locations of Inventory, Equipment and Books and Records. As of the Effective Date, each Borrower’s (a) Inventory and Equipment (other than Inventory or Equipment in transit or out for repair) and books and records concerning the Collateral are kept at the locations listed in Schedule 3.21, and (b) books and records concerning the Collateral are kept at a location in the United States.

3.22          Deposit Accounts and Other Accounts. Schedule 3.22 lists all banks and other financial institutions at which any Borrower maintains deposit, securities or other accounts as of the Effective Date, and such Schedule correctly identifies the name and address of each depository, the name in which the account is held, a brief description of the purpose of the account, and the complete account number therefor.

3.23          Government Contracts and Material Contracts. Except as set forth on Schedule 3.23, as of the Effective Date no Borrower is a party to (i) any material contract or agreement with any Governmental Authority and no Borrower’s Accounts are subject to the Federal Assignment of Claims Act of 1940 (31 U.S.C. Section 3727) or any similar state or local law or (ii) any other Material Contract.

3.24          Customer Relations. Except as set forth on Schedule 3.24, there exists no actual or, to the knowledge of any Borrower, threatened termination or cancellation of, or any material adverse modification or change in the business relationship of any Borrower or any Subsidiary of any Borrower with any customer or group of customers which would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect.

3.25          Bonding. Except as set forth in Schedule 3.25, as of the Effective Date, no Borrower is a party to or bound by any surety bond agreement, indemnification agreement in respect of any surety bond agreement or bonding requirement with respect to products or services sold by it (exclusive of product warranties in the Ordinary Course of Business).

3.26          Full Disclosure. None of the representations or warranties made by any Borrower or any of their Subsidiaries in the Loan Documents as of the date such representations and warranties are made or deemed made, and none of the statements contained in each exhibit, report, statement, certificate or other writing furnished by or on behalf of any Borrower or any of their Subsidiaries in connection with the Loan Documents (including the offering and disclosure materials, if any, delivered by or on behalf of any Borrower to the Term Agent or the Term Lenders prior to the Effective Date), taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading as of the time when made or delivered; provided, that, with respect to projected financial information, each Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time delivered, and if such projected financial information was delivered prior to the Effective Date, as of the Effective Date.

3.27          Foreign Assets Control Regulations and Anti-Money Laundering. Each Borrower and each Subsidiary of each Borrower is in compliance in all material respects with all U.S. economic sanctions laws, Executive Orders and implementing regulations as promulgated by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), any other sanctions or anti-terrorism laws imposed, administered or enforced by the United Nations Security Council, the European Union or any European Union member state, Her Majesty’s Treasury of the United Kingdom or any other Governmental Authority with jurisdiction over any Term Lender or any Loan Party or any of their respective Subsidiaries or Affiliates (collectively, “Sanctions”), all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act (“Anti-Money Laundering Laws”) and in each case, all regulations issued pursuant to it. No Borrower and no Subsidiary or Affiliate of a Borrower (a) is a Person designated by the U.S. government on the list of the Specially Designated Nationals and Blocked Persons (the “SDN List”) with which a U.S. Person cannot deal with or otherwise engage in business transactions, (b) is a Person who is otherwise the target of U.S. economic sanctions laws such that a U.S. Person cannot deal or otherwise engage in business transactions with such Person or (c) is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions such that the entry into, or performance under, this Agreement or any other Loan Document would be prohibited under U.S. law (any such Person, a “Sanctioned Person”). No proceeds of any Term Loan made hereunder will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person, or otherwise used in any manner that would result in a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person (including any Term Lender or other individual or entity participating in any transaction).

3.28          Patriot Act. The Borrowers, each of their Subsidiaries and each of their Affiliates are in compliance with (a) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department and any other enabling legislation or executive order relating thereto, (b) the Patriot Act and (c) other federal or state laws relating to “know your customer” and anti-money laundering rules and regulations. No part of the proceeds of the Term Loan will be used directly or indirectly for any payments to any government 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 the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business (collectively, “Anti-Corruption Laws”).

3.29       Collateral Documents, Etc. Except as otherwise contemplated hereby or under any other Loan Documents, and except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, regardless of whether considered in a proceedings in equity or at law, the provisions of the Collateral Documents, together with such filings and other actions required to be taken hereby or by the applicable Collateral Documents, are effective to create in favor of the Term Agent for the benefit of the Secured Parties a legal, valid, enforceable and perfected first-priority Lien (subject only to Permitted Liens and, as to priority, only to Permitted Liens under Section 5.1(d) or that have priority under applicable law) on all right, title and interest of the respective Borrowers in the Collateral described therein.

3.30       Beneficial Ownership Certification. As of the Effective Date, the information included in the Beneficial Ownership Certification is true and correct in all material respects.

ARTICLE IV.

AFFIRMATIVE COVENANTS

Each Borrower covenants and agrees that, so long as the Term Loan or any other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied:

4.1         Financial Statements. Each Borrower shall maintain, and shall cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit the preparation of financial statements required to be delivered hereunder in conformity with GAAP (provided that quarterly and monthly financial statements shall not be required to have footnote disclosures and are subject to normal month-end, quarter-end and year-end adjustments, as applicable). The Borrowers shall deliver to the Term Agent and the Term Lenders and in form and detail reasonably satisfactory to the Term Agent:

(a)                as soon as available, but not later than ninety (90) days after the end of each Fiscal Year ((or within one hundred twenty (120) days for the Fiscal Year ending December 31, 2019)), copies of the audited Consolidated balance sheet of MediaCo and its Consolidated Subsidiaries, in each case, as at the end of such year and the related Consolidated statements of income or operations, shareholders’ equity and cash flows of each such Person and its Consolidated Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, and accompanied by reports and opinions of independent certified public accounting firm reasonably acceptable to the Term Agent, which reports and opinions shall be certified without a going concern or like qualification or exception and without any qualification or exception as to the scope of audit (except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP and required or approved by Borrowers’ independent certified public accountants), stating that such financial statements fairly present, in all material respects, the financial position and results of operations of each such Person and its Consolidated Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with prior years;

(b)               beginning with the first full month of operations, as soon as available, but not later than thirty (30) days after the end of each Fiscal Month, copies of the unaudited Consolidated balance sheet of MediaCo and its Consolidated Subsidiaries, in each case, as at the end of such month and the related Consolidated statement of income or operations of each such Person and its Consolidated Subsidiaries for such Fiscal Month and for the portion of the Fiscal Year then ended, all certified on behalf of the Borrowers by an appropriate Responsible Officer of the Borrower Representative as being complete and correct, in all material respects, and fairly presenting, in all material respects, the financial position and the results of operations of each such Person and its Consolidated Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with prior months, subject to normal month-end adjustments and absence of footnote disclosures; and

(c)                as soon as available, but not later than forty-five (45) days (or within sixty (60) days after the end of the Fiscal Quarter ending March 31, 2020) after the end of each Fiscal Quarter (commencing with the Fiscal Quarter ending March 31, 2020), copies of the unaudited Consolidated balance sheet of MediaCo and its Consolidated Subsidiaries, in each case, as at the end of such quarter and the related Consolidated statements of income or operations, shareholders’ equity and cash flows of each such Person and its Consolidated Subsidiaries for such Fiscal Quarter and for the portion of the Fiscal Year then ended, all certified on behalf of the Borrowers by an appropriate Responsible Officer of the Borrower Representative as being complete and correct, in all material respects, and fairly presenting, in all material respects, the financial position and the results of operations of each such Person and its Consolidated Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with prior quarters, subject to normal year-end adjustments and absence of footnote disclosures.

4.2         Certificates; Other Information. The Borrowers shall deliver to the Term Agent and the Term Lenders and in form and detail reasonably satisfactory to Term Agent:

(a)                together with each delivery of financial statements pursuant to Section 4.1(a) and 4.1(c), (i) a management discussion and analysis report, in reasonable detail, signed by a Responsible Officer of the Borrower Representative, describing the operations and financial condition of the Borrowers and their Subsidiaries for such Fiscal Quarter or Fiscal Year and (ii) a report setting forth in comparative form the corresponding figures for corresponding periods of the previous Fiscal Year;

(b)               concurrently with the delivery of the financial statements and other financial deliverables referred to in Sections 4.1(a), 4.1(b) and 4.1(c) above, a fully and properly completed Compliance Certificate, certified on behalf of the Borrowers by a Responsible Officer of the Borrower Representative (it being understood that the Compliance Certificate delivered in connection with each of the financial statements referred to in Sections 4.1(a), 4.1(b) and 4.1(c) shall contain the certification of compliance with the covenants contained in Sections 5.21 and 5.22(a));

(c)                as soon as available but in any event within thirty (30) days of the end of each Fiscal Quarter (or every Fiscal Month in the event the Term Agent has implemented any Reserves), and at such other times as may be requested by the Term Agent, as of the period then ended, a Borrowing Base Certificate, and supporting information in connection therewith, together with any additional reports with respect to the Borrowing Base as the Term Agent may reasonably request; and the Borrowing Base shall be updated (i) from time to time upon receipt of periodic valuation updates received from the Term Agent’s asset valuation experts, (ii) concurrently with the sale or commitment to sell any assets constituting part of the Collateral, (iii) in the event such assets are idled for any reason other than routine maintenance or repairs for a period in excess of ten (10) consecutive days, and (iv) in the event that the value of such assets may otherwise be impaired, as determined by the Term Agent’s in its sole discretion;

(d)               promptly after the same are sent, copies of all financial statements and reports which MediaCo sends to its shareholders or other equity holders, as applicable, generally and promptly after the same are filed, copies of all financial statements and regular, periodic or special reports which such Person may make to, or file with, the Securities and Exchange Commission or any successor or similar Governmental Authority;

(e)               concurrently with the delivery of the financial statements referred to in Section 4.1(c), to the extent that there is any updated information to provide, a list of any applications for the registration of any Patent, Trademark (and a list of any “intent to use” Trademark applications for which a registration has issued or a “Statement of Use” or “Amendment to Allege Use” has been filed) or Copyright filed by any Borrower with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in each case entered into or filed in the prior Fiscal Quarter;

(f)                prior to the end of each of MediaCo’s Fiscal Years, the annual budget of the Borrowers prepared by management of the Borrower Representative, consistent in form with the budget previously delivered to the Term Agent prior to the Effective Date;

(g)               promptly upon receipt thereof, copies of any reports submitted by each Borrower’s certified public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or internal control systems, operations, financial condition or properties of any Borrower (or their Subsidiaries) made by such accountants, including any comment letters submitted by such accountants to management of any Borrower in connection with their services;

(h)               (i) not less than five (5) Business Days prior to the consummation of the transactions relating to any Permitted Refinancing, drafts of documents relating to any Permitted Refinancing and (ii) concurrently with the consummation of any such Permitted Refinancing, copies, certified by a Responsible Officer of the Borrower Representative as being complete and correct, of the fully executed documents relating to such Permitted Refinancing;

(i)                as soon as practicable, in any event at least ten (10) Business Days prior thereto, copies of any waiver, consent, amendment or permanent prepayment or permanent commitment reduction (and the amount thereof) to be entered into pursuant to any Subordinated Indebtedness Documents;

(j)                promptly, such additional business, financial, perfection certificates and other information as the Term Agent may from time to time reasonably request; and

(k)               (i) any change in the information provided in the Beneficial Ownership Certification that would result in any Borrower no longer being excluded from the definition of “legal entity customer” under the Beneficial Ownership Regulation and (ii) upon the request therefor, such other information and documentation required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including, without limitation, the Patriot Act), as from time to time reasonably requested by Term Agent or any Term Lender.

Any financial statement or other information required to be furnished pursuant to Sections 4.1(a), (b), (c) or 4.2(d) shall be deemed to have been furnished on the date on which the Term Agent receives notice (which may be via email) that MediaCo has filed such financial statement or information with the Securities and Exchange Commission and it is available on MediaCo’s website or the EDGAR website on the Internet at www.sec.gov or any successor government website that is freely and readily available to the Term Agent and the Term Lenders without charge.

4.3         Notices. The Borrower Representative shall notify promptly Term Agent of each of the following:

(a)               the occurrence or existence of any Default or Event of Default;

(b)               any breach or non-performance of, or any default under (i) any Material Contract or (ii) any Contractual Obligation of any Borrower or any Subsidiary of any Borrower, or any violation of, or non-compliance with, any Requirements of Law, which, in the case of this clause (ii) would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect, and including, in the case of clauses (i) and (ii), a description of such breach, non-performance, default, violation or non-compliance and the steps, if any, such Person has taken, is taking or proposes to take in respect thereof;

(c)               any dispute, litigation, investigation, proceeding or suspension which may exist at any time between any Borrower or any Subsidiary of any Borrower and any Governmental Authority or any suspension or revocation of any Permits granted by a Governmental Authority to a Borrower or any Subsidiary of any Borrower that would reasonably be expected to result in Liabilities in excess of $1,000,000;

(d)               the commencement of, or any material development in, any litigation or proceeding affecting any Borrower or any Subsidiary of any Borrower (i) in which more than $1,000,000 of damages is claimed, (ii) in which injunctive or similar relief is sought and which would reasonably be expected to have a Material Adverse Effect, or (iii) in which the relief sought is an injunction or other stay of the performance of this Agreement or any other Loan Document;

(e)               (i) the receipt by any Borrower or any Subsidiary of any written notice of violation of or potential liability or similar notice under Environmental Law which would be reasonably expected to result in material Environmental Liabilities, (ii) (A) unpermitted Releases, (B) the existence of any condition that would reasonably be expected to result in violations of or Liabilities under, any Environmental Law or (C) the commencement of, or any material change to, any action, investigation, suit, proceeding, audit, claim, demand, dispute alleging a violation of or Liability under any Environmental Law which in the case of clauses (A), (B) and (C) above, in the aggregate for all such clauses, would reasonably be expected to result in material Environmental Liabilities, (iii) the receipt by any Borrower or any Subsidiary of notification that any Property of any Borrower or any Subsidiary is subject to any Lien in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities and (iv) any proposed acquisition or lease of Real Estate, if such acquisition or lease would have a reasonable likelihood of resulting in material Environmental Liabilities;

(f)                (i) on or prior to any filing by any ERISA Affiliate of any notice of any reportable event under Section 4043 of ERISA, or intent to terminate any Title IV Plan, a copy of such notice, except where such reportable event or termination of such Title IV Plan would not be reasonably expected to result in a Material Adverse Effect, (ii) promptly, and in any event within five (5) days, after any officer of any ERISA Affiliate knows or has reason to know that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect to any Title IV Plan or Multiemployer Plan, a notice describing such waiver request and any action that any ERISA Affiliate proposes to take with respect thereto, together with a copy of any notice filed with the PBGC or the IRS pertaining thereto, and (iii) promptly, and in any event within ten (10) days after any officer of any ERISA Affiliate knows or has reason to know that an ERISA Event will or has occurred, a notice describing such ERISA Event, and any action that any ERISA Affiliate proposes to take with respect thereto, together with a copy of any notices received from or filed with the PBGC, IRS, Multiemployer Plan or other Benefit Plan pertaining thereto, except to the extent where the occurrence of such ERISA Event would not reasonably be expected to result in a Material Adverse Effect;

(g)               any Material Adverse Effect subsequent to the date of the most recent audited financial statements delivered to the Term Agent and the Term Lenders pursuant to this Agreement;

(h)               any material change in accounting policies or financial reporting practices by any Borrower or any Subsidiary of any Borrower other than those changes promulgated by GAAP;

(i)                any labor controversy resulting in or, to the knowledge of any Borrower, threatening to result in, any strike, work stoppage, boycott, shutdown or other material labor disruption against or involving any Borrower or any Subsidiary of any Borrower, except to the extent such strike, work stoppage, boycott, shutdown or other labor disruption would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect;

(j)                the creation, establishment or acquisition of any Subsidiary or the issuance by or to any Borrower of any Stock or Stock Equivalent;

(k)               (i) the creation, or filing with the IRS or any other Governmental Authority, of any Contractual Obligation or other document extending, or having the effect of extending, the period for assessment or collection of income or franchise or other material taxes with respect to any Tax Affiliate and (ii) the creation of any Contractual Obligation with the IRS or any other Governmental Authority of any Tax Affiliate, or the receipt of any request from the IRS or any other Governmental Authority directed to any Tax Affiliate, to make any material adjustment under Section 481(a) of the Code, by reason of a change in accounting method or otherwise;

(l)                any “default” or “event of default” under any Subordinated Indebtedness Document, the Emmis Radio Seller Note or the SG Broadcasting Subordinated Note;

(m)              as soon as practicable, and in any event within ten (10) days after the issuance, filing or receipt thereof, (i) copies of any order or notice of the FCC, any Governmental Authority or a court of competent jurisdiction which designates any FCC License, or any application therefor, for a hearing or which refuses renewal or extension of, or revokes or suspends the authority of any Loan Party pursuant to any FCC License, and (ii) any citation, “Notice of Apparent Liability for Forfeiture”, “Notice of Violation” or “Order to Show Cause” issued by the FCC seeking revocation or the denial of renewal of any FCC License, in each case with respect to any Loan Party; or

(n)               any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in such certification.

Each notice pursuant to this Section 4.3 shall be in electronic form accompanied by a statement by a Responsible Officer of the Borrower Representative, on behalf of the Borrowers, setting forth details of the occurrence referred to therein, and stating what action the Borrowers or other Person proposes to take with respect thereto and at what time. Each notice under Section 4.3(a) shall describe with reasonable particularity any and all clauses or provisions of this Agreement or other Loan Document that have been breached or violated.

4.4         Preservation of Corporate Existence, Etc. Each Borrower shall, and shall cause each of its Subsidiaries to:

(a)               preserve and maintain in full force and effect its organizational existence and good standing under the laws of its jurisdiction of incorporation, organization or formation, as applicable, except as permitted by Section 5.3;

(b)               preserve and maintain in full force and effect all rights, privileges, qualifications, Permits, licenses and franchises necessary in the normal conduct of its business except as permitted by Sections 5.2 and 5.3 or to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;

(c)               preserve its business organization and preserve the goodwill and business of the customers, suppliers and others having material business relations with it in the Ordinary Course of Business;

(d)               unless otherwise agreed in writing by the Term Agent and the Required Lenders, preserve or renew all Intellectual Property, except where the non-preservation or renewal of such Intellectual Property would not reasonably be expected to have a Material Adverse Effect; and

(e)               conduct its business and affairs without infringement of or interference with any Intellectual Property of any other Person and shall comply with the terms of its IP Licenses material to its business, except where such failure to do so would not reasonably be expected to have a Material Adverse Effect.

4.5         Maintenance of Property. Except as permitted in Section 5.2, each Borrower shall maintain, and shall cause each of its Subsidiaries to maintain, and preserve all its Property which is material to be used in its business in good working order and condition, ordinary wear and tear excepted and shall make all necessary repairs thereto and renewals and replacements thereof in the Ordinary Course of Business.

4.6         Insurance. Each Borrower shall, and shall cause each of its Subsidiaries to, (a) maintain or cause to be maintained in full force and effect all policies of insurance of any kind with respect to the Property and businesses of the Borrowers and such Subsidiaries as are customarily carried by businesses of the size and character of the business of the Borrowers and their Subsidiaries with financially sound and reputable insurance companies or associations (in each case that are not Affiliates of the Borrowers) of a nature and providing such coverage as is sufficient and as is customarily carried by businesses of the size and character of the business of the Borrowers and acceptable to the Term Agent and (b) cause all such insurance relating to any Property or business of any Borrower to name the Term Agent as additional insured or lender’s loss payee as agent for the Term Lenders, as appropriate. All policies of insurance on real and personal Property of the Borrowers will contain an endorsement, in form and substance reasonably acceptable to the Term Agent, showing loss payable to the Term Agent naming the Term Agent as lender’s loss payee as agent for the Term Lenders and extra expense and business interruption endorsements. Such endorsement, or an independent instrument furnished to the Term Agent, will provide that the insurance companies will give the Term Agent at least 30 days’ prior written notice before any such policy or policies of insurance shall be altered or canceled and that no act or default of the Borrowers or any other Person shall affect the right of the Term Agent to recover under such policy or policies of insurance in case of loss or damage. Each Borrower shall direct all present and future insurers under its “All Risk” policies of property insurance to pay all proceeds payable thereunder directly to the Term Agent; provided that each Borrower shall be permitted to replace, repair, restore or rebuild the Collateral subject to such Event of Loss in accordance with, and to the extent permitted under, Section 1.6(b). If any insurance proceeds are paid by check, draft or other instrument payable to any Borrower and the Term Agent jointly, during an Event of Default, the Term Agent may endorse such Borrower’s name thereon and do such other things as the Term Agent may deem advisable to reduce the same to cash. Notwithstanding the requirement in subsection (a) above, Federal Flood Insurance shall not be required for (x) Real Estate not located in a Special Flood Hazard Area, or (y) Real Estate located in a Special Flood Hazard Area in a community that does not participate in the National Flood Insurance Program. On or before the date that is thirty (30) days after the Effective Date (or such later date as the Term Agent may agree), the Borrowers shall provide to the Term Agent customary certificates and endorsements naming the Term Agent as an additional insured or lender’s loss payee, as the case may be, with respect to the insurance policies of the Borrowers in accordance with the requirements set forth above, in each case, in form and substance reasonably satisfactory to the Term Agent.

4.7         Performance of Obligations. Each Borrower shall pay, and shall cause each of its Subsidiaries to, discharge and perform as the same shall become due and payable or required to be performed, the following obligations and liabilities (subject, in each case, to any applicable cure or grace period):

(a)               all federal and state income tax liabilities and material federal, state, local and foreign franchise and other tax liabilities, assessments and governmental charges or levies upon it or its Property, unless (i) the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the filing or enforcement of any Lien and for which adequate reserves in accordance with GAAP are being maintained by such Person, or (ii) the aggregate amount secured by such Liens would not exceed $1,000,000 in the aggregate;

(b)               all lawful claims which, if unpaid, would by law become a Lien upon its Property unless (i) the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the enforcement of any Lien and for which adequate reserves in accordance with GAAP are being maintained by such Person or (ii) the aggregate amount secured by such Liens would not exceed $1,000,000 in the aggregate;

(c)               subject to Section 5.10, all Indebtedness having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $1,000,000 when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise);

(d)               the performance of all obligations under (i) any Material Contract or (ii) any other Contractual Obligation to which such Borrower or Subsidiary is bound, or to which it or any of its Property is subject, except where the failure to perform under this Section 4.7(d) would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and

(e)               payments to the extent necessary to avoid the imposition of a Lien with respect to, or the involuntary termination of any underfunded Benefit Plan.

4.8         Compliance with Laws. Each Borrower shall, and shall cause each of its Subsidiaries to, comply with all Requirements of Law of any Governmental Authority (including the Communications Act) having jurisdiction over it or its business, except where the failure to comply would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Each Borrower shall, and shall cause each of its Subsidiaries to obtain and maintain in full force and effect, all licenses, permits, franchises and approvals (including all FCC Licenses) necessary to own, acquire or dispose (as applicable) of their respective properties, to conduct their respective business or to comply with construction, operating and reporting requirements of the FCC or any other Governmental Authority, except (other than in the case of FCC Licenses) where the failure to do so would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

4.9          Inspection of Property and Books and Records; Field Exams; Appraisals.

(a)               Each Borrower shall maintain and shall cause each of its Subsidiaries to maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Person. Each Borrower shall, and shall cause each of its Subsidiaries to, during normal business hours and upon reasonable advance notice to the Borrower Representative (unless an Event of Default shall have occurred and be continuing, in which event no notice shall be required and the Term Agent shall have access at any and all times during the continuance thereof), provide access to its properties, books and records to the Term Agent and its Related Persons and shall reasonably cooperate with the Term Agent and any of its Related Persons in connection with any review or analysis of any such Person’s business, financial condition, assets, the budget provided pursuant to Section 4.2(f) and results of operations. Each Borrower hereby authorizes the Term Agent to discuss with such Borrower’s and its Subsidiaries’ officers and independent accountants such Person’s business, financial condition, assets, prospects, and results of operation (including, without limitation, in connection with the Term Agent’s review and analysis of compliance with financial covenants); provided, that so long as no Event of Default has occurred and is continuing, (x) the Borrower Representative shall be afforded a reasonable opportunity to be a party to any such conversations and (y) the Term Agent’s requests for information and discussions with particular personnel shall be processed through the chief financial officer of the Borrower Representative.

(b)               Each Borrower shall, and shall cause each of its Subsidiaries to, with respect to each owned, leased, or controlled property, during normal business hours and upon reasonable advance notice (unless an Event of Default shall have occurred and be continuing, in which event no notice shall be required and the Term Agent shall have access at any and all times during the continuance thereof) (i) provide access to such property to the Term Agent and any of its Related Persons, as frequently as the Term Agent determines to be appropriate; and (ii) permit the Term Agent and any of its Related Persons to conduct field examinations, audit, inspect and make extracts and copies (or take originals if reasonably necessary) from all of such Borrower’s books and records, and appraise and evaluate and make physical verifications of the Collateral in any manner and through any medium that the Term Agent considers advisable, in each instance, at the Borrowers’ expense.