Common use of Asset Purchase Agreement Clause in Contracts

Asset Purchase Agreement. (a) Within fifteen (15) business days following PCC's receipt of the Put Notice or FBC's receipt of the Call Notice, as the case may be, FBC and PCC shall enter into the Asset Purchase Agreement in the form of Exhibit A hereto (the "Asset Purchase Agreement"), it being understood that the only change to such form shall be changes, if any, in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could reasonably be expected to cause a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant to the Asset Purchase Agreement, (ii) the conduct of the business or operations of the Station or (iii) the ability of FBC to consummate the transactions contemplated by the Asset Purchase Agreement in accordance with its terms; provided further, however, that PCC shall be required to accept any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreement. Upon the execution and delivery of the Asset Purchase Agreement, FBC and PCC shall perform their respective obligations thereunder, including, without limitation, filing and prosecuting an appropriate application for FCC consent to the assignment of the FCC Licenses from FBC to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or the Asset Purchase Agreement, PCC shall not assume any obligations or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time of the exercise of the Put Option or the Call Option, as the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement, the "New Orleans Option"), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b), FBC and PCC shall negotiate in good faith the terms of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase Agreement.

Asset Purchase Agreement. (a) Within fifteen (15) business days following PCC's receipt As of the Put Notice or FBC's receipt Original Closing Date, Borrower had delivered to Lender a complete and correct copy of the Call Notice, as the case may be, FBC and PCC shall enter into the Asset Purchase Agreement and the other Asset Purchase Documents (including all schedules, exhibits, amendments, supplements, modifications, assignments and all other documents delivered pursuant thereto or in connection therewith). Neither Borrower nor, to the best of Borrower’s knowledge, any other Person party thereto, is in default in the form of Exhibit A hereto (the "Asset Purchase Agreement")performance or compliance with any provisions thereof, it being understood that the only change to except where such form shall be changes, if any, in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall default could not be required to accept any such change or addition that could reasonably be expected to cause result in a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant to Material Adverse Change. Each of the Asset Purchase AgreementDocuments complies with, (ii) the conduct of the business or operations of the Station or (iii) the ability of FBC to consummate and the transactions contemplated by the Asset Purchase Agreement have been consummated in accordance with its terms; provided furtherwith, however, that PCC shall be required to accept any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreementall applicable laws. Upon the execution and delivery Each of the Asset Purchase AgreementDocuments was in full force and effect as of the Original Closing Date and has not been terminated, FBC and PCC shall perform their respective obligations thereunderrescinded or withdrawn. All requisite approvals by governmental authorities having jurisdiction over Borrower and, including, without limitation, filing and prosecuting an appropriate application for FCC consent to the assignment best of the FCC Licenses from FBC Borrower’s knowledge, all requisite approvals by governmental authorities having jurisdiction over any other Person that is a party to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or any of the Asset Purchase AgreementDocuments, PCC shall not assume any obligations or liabilities of FBC under any contracthave been obtained, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time of the exercise of the Put Option or the Call Option, as the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith no such approvals with respect to Seller's New Orleans Station (as identified in Borrower and, to the best of Borrower’s knowledge, no such Option Agreementapprovals with respect to any other Person, impose any conditions to the "New Orleans Option"), FBC may, at its election, notify PCC in writing that consummation of the transactions contemplated by the Asset Purchase Documents or to the conduct by Borrower of its business thereafter, except for compliance with applicable SBA Rules and Regulations. To the best of Borrower’s knowledge, none of the representations or warranties of the “Sellers” (as defined in the Asset Purchase Agreement) in any of the Asset Purchase Documents contains any untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading. Each of the representations and warranties given by Borrower in Article 3 of the Asset Purchase Agreement and in Article III of the “Security Agreement” (as defined in the Asset Purchase Agreement) is true and correct in all material respects. Notwithstanding anything contained in any Asset Purchase Document to the contrary, such representations and warranties of Borrower are incorporated into this Agreement by this Section 4.28 and shall, solely for purposes of this Agreement and the New Orleans Option shall each be reconstituted benefit of Lender, survive the “Closing Date” (as a sale to PCC of all of defined in the capital stock of FBC (the "Stock Asset Purchase Election"Agreement); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat any breach of such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10)representations and warranties or any other representation, warranty or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election covenant provided for or contained in accordance with the terms of this Section 3(b), FBC and PCC 4.28 shall negotiate in good faith the terms only be a Default or Event of the Stock Purchase Agreement, it being understood that Default under this Agreement if such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, breach results or could reasonably be expected to, to result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase Agreementa Material Adverse Change.

Asset Purchase Agreement. (a) Within fifteen (15) business days following PCC's receipt of the Put Notice LEVC shall, and Buyer shall arrange itself or FBC's receipt of the Call Noticethrough its designated affiliate company to, as the case may be, FBC and PCC shall use their commercially reasonable best efforts to enter into the Asset Purchase Agreement in the form of Exhibit A hereto an asset purchase agreement (the "“Asset Purchase Agreement"”) on or before October 31, 2021. Subject to the definitive Asset Purchase Agreement, upon the satisfaction of the specified closing conditions therein, including, without limitation, the Parties’ execution and delivery of the Contract Manufacturing Agreement (as defined in Section 5) and the Lease (as defined in Section 4) and issuance by LMC of the Warrants (as defined in Section 3), it being understood that the only change to such form shall be changesBuyer or its designated affiliate company will acquire all of LEVC’s title, if any, right and interest in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could reasonably be expected to cause a material adverse change in, or have a material adverse effect on, to: (i) the Assets to be conveyed to PCC pursuant to Facility; (ii) certain agreements that are scheduled in the Asset Purchase Agreement, including, without limitation, all vehicle and Facility-specific service, utility, supply, inbound logistics and supply agreements, except specified supplier tooling agreements (ii) the conduct of the business or operations of the Station or “Assumed Agreements”); and (iii) certain personal property of LEVC that is scheduled in the ability Asset Purchase Agreement and that will expressly exclude the Excluded Assets (as defined herein) (such purchased assets collectively, the “Purchased Assets”), in exchange for: (1) a purchase price of FBC $230 million (the “Purchase Price”), payable in cash at Closing (as defined below); and (2) Buyer’s assumption, at Closing, of the Assumed Agreements and assumed liabilities related to consummate the Facility that are specifically agreed upon by the Parties in the Asset Purchase Agreement, including, without limitation, the Assumed Accounts Payable (as defined in Section 6). The “Excluded Assets” will be defined as LEVC’s personal property listed on a schedule to the Asset Purchase Agreement and will include, without limitation, the hub motor assembly lines, the battery module assembly lines, the battery pack assembly lines, all LEVC assets not on the grounds of the Facility and intellectual technology assets related to LEVC’s continuing business operations such as the intellectual property rights to the hub motor improvements developed by LEVC. The Asset Purchase Agreement will provide that either Party has the right to terminate the Asset Purchase Agreement if the transactions contemplated by the Asset Purchase Agreement are not consummated by September 1, 2022, so long as such Party has not materially breached and is not otherwise in accordance with material default of its terms; provided further, however, that PCC shall be required to accept any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not taken) by PCC obligations under the Time Brokerage Asset Purchase Agreement. Upon . (b) Concurrently with the execution and delivery of the Asset Purchase Agreement, FBC Buyer shall make a down payment to LEVC of the Purchase Price in the amount of $100 million (the “Down Payment”) conditional upon the entering into of a security and PCC shall perform their respective obligations thereunder, including, without limitation, filing and prosecuting an appropriate application for FCC consent mortgage agreement on the Facility with respect to the assignment repayment obligation of such Down Payment by LEVC and reimbursement obligation of Operating Cost and Expansion Cost (as defined in and pursuant to Section 6) by LEVC in favor of Buyer. Upon Closing, the aggregate amount of the FCC Licenses from FBC Down Payment will be applied against the Purchase Price. Subject to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or terms of the Asset Purchase Agreement, PCC shall if the Closing does not assume any obligations occur prior to April 30, 2022, or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time of the exercise of the Put Option or the Call Option, as the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant to if the Asset Purchase Agreement and (ii) is terminated by one of the certain similar assets to be sold Parties in accordance with its terms, then LEVC shall repay the Down Payment to Buyer pursuant no later than the date that is fourteen days after April 30, 2022 or after the date of such termination, as applicable, plus an interest rate of 5% p.a. accruing from the date the Down Payment is made to a certain Option the repayment date. The Asset Purchase Agreement bearing even will include covenants restricting LEVC’s incurrence of indebtedness that is senior to LEVC’s obligation to repay the Down Payment, LEVC’s payment of cash dividends or other agreed upon restricted payments and representations given by LEVC that there is no other mortgage, pledge, security interest, encumbrances, liens, or any other similar rights on the Facility in favor of any party other than Buyer; provided, however that LEVC will have the right to incur indebtedness that is secured solely by the Excluded Assets. (c) The Asset Purchase Agreement will contain standard representations and warranties and LEVC’s representations and warranties regarding the Purchased Assets shall not be narrower than the representations and warranties that LEVC obtained from GM under the Asset Transfer Agreement. Real estate taxes and assessments will be prorated as of the date herewith with respect that the Asset Purchase Agreement is executed. (d) Subject to Seller's New Orleans Station (as identified in such Option the definitive Asset Purchase Agreement, upon the "New Orleans Option"), FBC may, at its election, notify PCC in writing that closing of the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10“Closing”), Buyer or its successordesignated affiliate will offer employment to an agreed upon scheduled list of LEVC employees who at the time serve in operations roles, as including specific personnel in LEVC’s industrial engineering, quality, information technology, human resources, finance and general management functions (the “Transferred Employees”), in each case on terms that are substantially similar to such Transferred Employees’ current compensation programs, taking into account base salary and wage rate, incentive compensation opportunities and employee benefits provided that such terms are similar to those of other companies in the same may be amended from time to time, industry segments and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b), FBC and PCC shall negotiate in good faith the terms of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase Agreementat comparable seniority levels.

Asset Purchase Agreement. Within fourteen (a) Within fifteen (1514) business days following PCC's Sellers’ receipt of the Put Notice or FBC's receipt of the Call Option Notice, as the case may be, FBC Sellers and PCC CRI shall enter into the Asset Purchase Agreement in the form of Exhibit Schedule A hereto (the "“Asset Purchase Agreement"”), it being understood that the only change to such form shall be changes, if any, in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; , provided, however, that PCC CRI shall not be required to execute the Asset Purchase Agreement or accept any such change or addition to the Schedules thereto that could reasonably be expected to cause a significant material adverse change in, or have a significant material adverse effect on, (i) the Assets to be conveyed to PCC CRI pursuant to the Asset Purchase Agreement, (ii) the conduct of the business or operations prospects of the Station Stations, or (iii) the ability of FBC Sellers to consummate the transactions contemplated by the Asset Purchase Agreement in accordance with its terms; provided Agreement, provided, further, howeverthat if CRI does not execute the Asset Purchase Agreement (i) because of a significant material adverse change in or effect on the Assets, that PCC shall as aforesaid, caused by CRI, (ii) because of a significant material adverse change in or effect on the Assets, as aforesaid, caused by actions beyond the reasonable control of Seller, or (iii) because CRI will be required unable to accept any change or addition purchase the Stations because the rules and regulations of the type described in FCC would not permit CRI to own the preceding proviso if Stations, then CRI shall promptly pay Sellers the First Supplemental Option Price (unless previously paid) and the Second Supplemental Option Price, as defined below , and upon such change or addition results from payment(s) this Option Agreement shall become null and void, and neither CRI nor Sellers shall have any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreementfurther obligations to each other. Upon the execution If CRI and delivery of Sellers enter into the Asset Purchase Agreement, FBC Sellers and PCC CRI shall thereafter perform their respective obligations thereunderunder the Asset Purchase Agreement, including, without limitation, filing and prosecuting an appropriate application applications for FCC consent to the assignment of the FCC Licenses from FBC Sellers to PCC CRI (the "“FCC Consent"”). Except as expressly set forth in the Time Brokerage Agreement or the Asset Purchase Agreement, PCC shall not assume any obligations or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time of the exercise of the Put Option or the Call Option, as the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement, the "New Orleans Option"), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b), FBC and PCC shall negotiate in good faith the terms of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase Agreement.

Asset Purchase Agreement. Borrowers represent, warrant, and covenant that (a) Within fifteen (15) business days following PCC's receipt Borrowers have furnished to Lender a true, complete, and accurate copy of the Put Notice or FBC's receipt of the Call Notice, as the case may be, FBC and PCC shall enter into the Asset Purchase Agreement in (together with the form of Exhibit A hereto (the "Asset Purchase Agreement"schedules and exhibits thereto), it being understood that the only change Borrowers shall promptly furnish to such form shall be changesLender a true, if anycomplete, in the information contained in the Schedules thereto and the addition, if any, accurate copy of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could reasonably be expected to cause a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant amendments to the Asset Purchase AgreementAgreement (together with schedules and exhibits thereto) for Lender's review and approval, not to be unreasonably delayed or withheld, and Borrowers will furnish to Lender, within ten (10) days of the execution and delivery thereof true, complete, and accurate copies of all Purchase Agreements), (iib) prior to the conduct closing under the Purchase Agreements, all material conditions precedent to the effectiveness of the business Purchase Agreements shall have been satisfied and not waived and the Purchase Agreements shall have been duly executed and delivered by Borrowers and Seller and shall be in full force and effect, (c) no consent, approval, authorization, order, or operations filing with any governmental agency or body or any other person is required of Borrowers or Seller for or in connection with the Station valid and lawful transfer of assets from Seller to Borrowers, except for such consents as shall have been obtained by Borrowers prior to the closing thereunder; (d) no employees are being transferred or (iii) hired from the ability of FBC to consummate Seller, and no new locations where Collateral may be held or stored are being established in connection with the transactions contemplated by the Asset Purchase Agreement in accordance with its terms; provided furtherAgreements, however, that PCC shall be required to accept any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not takene) no liabilities are being assumed by PCC under the Time Brokerage Agreement. Upon the execution and delivery of the Asset Purchase Agreement, FBC and PCC shall perform their respective obligations thereunder, including, without limitation, filing and prosecuting an appropriate application for FCC consent Borrowers pursuant to the assignment of Purchase Agreements, except for the FCC Licenses from FBC to PCC (the "FCC Consent"). Except as expressly assumed liabilities set forth in the Time Brokerage Agreement or the Asset Purchase Agreement, PCC shall not assume any obligations or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time of the exercise of the Put Option or the Call Option, as the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement, the "New Orleans Option"), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b), FBC and PCC shall negotiate in good faith the terms of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in as may otherwise be disclosed to and approved by Lender; and (f) no Default or Event of Default shall exist or have occurred and be continuing on the liabilities to be assumed by PCC closing date under the Asset Purchase Agreement.

Asset Purchase Agreement. (a) Within fifteen (15) business days following PCC's receipt As of the Put Notice or FBC's receipt Closing Date, Borrower has delivered to Lender a complete and correct copy of the Call Notice, as the case may be, FBC and PCC shall enter into the Asset Purchase Agreement and the other Asset Purchase Documents (including all schedules, exhibits, amendments, supplements, modifications, assignments and all other documents delivered pursuant thereto or in connection therewith). Neither Borrower nor, to the best of Borrower’s knowledge, any other Person party thereto, is in default in the form of Exhibit A hereto (the "Asset Purchase Agreement")performance or compliance with any provisions thereof, it being understood that the only change to except where such form shall be changes, if any, in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall default could not be required to accept any such change or addition that could reasonably be expected to cause result in a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant to Material Adverse Change. Each of the Asset Purchase AgreementDocuments complies with, (ii) the conduct of the business or operations of the Station or (iii) the ability of FBC to consummate and the transactions contemplated by the Asset Purchase Agreement have been consummated in accordance with its terms; provided furtherwith, however, that PCC shall be required to accept any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreementall applicable laws. Upon the execution and delivery Each of the Asset Purchase AgreementDocuments is in full force and effect as of the Closing Date and has not been terminated, FBC and PCC shall perform their respective obligations thereunderrescinded or withdrawn. All requisite approvals by governmental authorities having jurisdiction over Borrower and, including, without limitation, filing and prosecuting an appropriate application for FCC consent to the assignment best of the FCC Licenses from FBC Borrower’s knowledge, all requisite approvals by governmental authorities having jurisdiction over any other Person that is a party to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or any of the Asset Purchase AgreementDocuments, PCC shall not assume any obligations or liabilities of FBC under any contracthave been obtained, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time of the exercise of the Put Option or the Call Option, as the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith no such approvals with respect to Seller's New Orleans Station (as identified in Borrower and, to the best of Borrower’s knowledge, no such Option Agreementapprovals with respect to any other Person, impose any conditions to the "New Orleans Option"), FBC may, at its election, notify PCC in writing that consummation of the transactions contemplated by the Asset Purchase Documents or to the conduct by Borrower of its business thereafter, except for compliance with applicable SBA Rules and Regulations. To the best of Borrower’s knowledge, none of the representations or warranties of the “Sellers” (as defined in the Asset Purchase Agreement) in any of the Asset Purchase Documents contains any untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading. Each of the representations and warranties given by Borrower in Article 3 of the Asset Purchase Agreement and in Article III of the “Security Agreement” (as defined in the Asset Purchase Agreement) is true and correct in all material respects. Notwithstanding anything contained in any Asset Purchase Document to the contrary, such representations and warranties of Borrower are incorporated into this Agreement by this Section 4.28 and shall, solely for purposes of this Agreement and the New Orleans Option shall each be reconstituted benefit of Lender, survive the “Closing Date” (as a sale to PCC of all of defined in the capital stock of FBC (the "Stock Asset Purchase Election"Agreement); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat any breach of such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10)representations and warranties or any other representation, warranty or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election covenant provided for or contained in accordance with the terms of this Section 3(b), FBC and PCC 4.28 shall negotiate in good faith the terms only be a Default or Event of the Stock Purchase Agreement, it being understood that Default under this Agreement if such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, breach results or could reasonably be expected to, to result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase Agreementa Material Adverse Change.

Asset Purchase Agreement. (a) Within fifteen (15) business days following PCC's receipt The Asset Purchase Agreement has been duly authorized by the Company and constitutes a valid and binding agreement of the Put Notice Company, enforceable against the Company in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency or FBC's receipt similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability. To the knowledge of the Call NoticeCompany, as the case may be, FBC representations and PCC shall enter into warranties made by Harsco in the Asset Purchase Agreement (after taking into account the exceptions to such representation and warranties set forth in Harsco’s disclosure schedule attached to the form of Exhibit A hereto (the "Asset Purchase Agreement")) are true and correct in all material respects, it being understood except that any representations and warranties that expressly speak as of a particular date were true and correct in all material respects as of such particular date; and to the only change to such form shall be changesknowledge of the Company, if any, in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto there has been no development that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could would reasonably be expected to cause have a “Material Adverse Effect” (as defined under the Asset Purchase Agreement) with respect to Harsco AXC. The Asset Purchase Agreement conforms in all material adverse change inrespects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus. To the knowledge of the Company, Harsco was not, as of the date of the Asset Purchase Agreement, and is not, as of the date hereof, in default or breach, and no event has occurred that, with notice or lapse or time or both, would constitute such default or breach, of the due performance or observance of any term, agreement, covenant or condition contained in the Asset Purchase Agreement, in each case except to the extent that such default or breach would not reasonably be expected to have a material adverse effect onon the ability of Harsco to consummate the Acquisition. To the knowledge of the Company, (i) the Assets to be conveyed to PCC pursuant to no event or condition has occurred or exists that has terminated or would permit termination of the Asset Purchase Agreement, (ii) Agreement and no change in the conduct terms of the business Acquisition or operations the Asset Purchase Agreement has occurred which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, assuming the consummation of the Station or (iii) the ability of FBC to consummate the transactions contemplated by the Asset Purchase Agreement in accordance with its terms; provided further, however, that PCC shall be required to accept any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreement. Upon the execution and delivery of the Asset Purchase Agreement, FBC and PCC shall perform their respective obligations thereunder, including, without limitation, filing and prosecuting an appropriate application for FCC consent to the assignment of the FCC Licenses from FBC to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or the Asset Purchase Agreement, PCC shall not assume any obligations or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time of the exercise of the Put Option or the Call Option, as the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement, the "New Orleans Option"), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b), FBC and PCC shall negotiate in good faith the terms of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase Agreement.

Asset Purchase Agreement. (a) Within fifteen The Asset Purchase Agreement and the transactions contemplated thereunder have been duly executed, delivered and performed in accordance with their terms by the respective parties thereto in all respects, including the fulfillment (15not merely the waiver, except as may be disclosed to Agent and consented to in writing by Required Lenders) business days following PCC's receipt of all conditions precedent set forth therein and giving effect to the Put Notice or FBC's receipt terms of the Call Notice, as the case may be, FBC and PCC shall enter into the Asset Purchase Agreement and any assignments to be executed and delivered by seller (or any of its affiliates or subsidiaries) thereunder, after giving effect to the Geokinetics Acquisition, Borrower shall have acquired and have good and marketable title to the Purchased Assets (as defined in the form of Exhibit A hereto (the "Asset Purchase Agreement"), it being understood that free and clear of all claims, liens, pledges and encumbrances of any kind, except as permitted hereunder. The APA Assignment Agreement has been duly executed, delivered and performed in accordance with its terms by the only change respective parties thereto in all respects, including the fulfillment (not merely the waiver, except as may be disclosed to such form shall be changesAgent and consented to in writing by Required Lenders) of all conditions precedent set forth therein and giving effect to the assignment of all right, if anytitle and interest of SAExploration, in Inc. under the information contained in Asset Purchase Agreement (and all related agreements between buyer and seller under the Schedules thereto Asset Purchase Agreement) to Borrower. (b) All actions and the additionproceedings, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could reasonably be expected to cause a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant to by the Asset Purchase Agreement, applicable law or regulation (iiincluding, but not limited to, compliance with the Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act of 1976, as amended) have been taken and the conduct transactions required thereunder have been duly and validly taken and consummated. (c) No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the business or operations of the Station or (iii) the ability of FBC to consummate the transactions contemplated by described in the Asset Purchase Agreement in accordance with its terms; provided further(or the APA Assignment Agreement) and no governmental or other action or proceeding has been threatened or commenced, howeverseeking any injunction, that PCC shall be required restraining order or other order which seeks to accept any change void or addition of otherwise modify the type transactions described in the preceding proviso if such change Asset Purchase Agreement (or addition results from any action taken (orthe APA Assignment Agreement). Borrower has delivered, if requiredor caused to be delivered, not taken) by PCC under the Time Brokerage Agreement. Upon the execution to Agent, true, correct and delivery complete copies of the Asset Purchase Agreement, FBC Agreement (and PCC shall perform their respective obligations thereunder, including, without limitation, filing all related agreements between buyer and prosecuting an appropriate application for FCC consent to the assignment of the FCC Licenses from FBC to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or seller under the Asset Purchase Agreement) and the APA Assignment Agreement. GUARANTY SUPPLEMENT dated as of , PCC shall not assume any obligations 20 (the “Supplement”), to the Purchase Money Loan and Security Agreement (as amended, restated, supplemented or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the otherwise modified from time of the exercise of the Put Option or the Call Option, as the case may beto time, the only assets held “Credit Agreement”) dated as of July 25, 2018, by FBC are and among SAExploration Acquisitions (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and U.S.), LLC, a Delaware limited liability company (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement“Borrower”), the "New Orleans Option"guarantors party thereto from time to time (collectively, the “Guarantors”), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended lenders party thereto from time to time, and Cantor Xxxxxxxxxx Securities, in its capacity as administrative agent and as collateral agent (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b“Agent”), FBC and PCC shall negotiate in good faith the terms of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase Agreement.

Asset Purchase Agreement. (a) Within fifteen (15) business days following PCC's receipt 2.2.1 If, as of the Put Notice or FBC's receipt Closing Date, a holder of the Call Notice, as the case may be, FBC and PCC shall enter into the Asset Purchase Agreement in the form of Exhibit A hereto (the "Asset Purchase Agreement"), a PPR has notified Seller that it being understood that the only change elects to such form shall be changes, if any, in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could reasonably be expected to cause a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant exercise its PPR with respect to the Asset Purchase Agreement, Properties to which its PPR applies (ii) the conduct of the business or operations of the Station or (iii) the ability of FBC to consummate the transactions contemplated determined by the Asset Purchase Agreement and in accordance with its terms; provided furtherthe agreement under which the PPR arises), howeverthen the Properties covered by that PPR will not be sold to Buyer (subject to the remaining provisions in this Section ‎2.2), that PCC and the Purchase Price will be reduced by the Allocated Value of the Properties subject to such PPR. Seller shall be required entitled to accept all proceeds paid by any change or addition Person exercising a PPR prior to Closing. If, as of the type described in Closing Date, the preceding proviso if PPR has not been exercised or waived and the time for exercising such change or addition results from PPR has not expired, the Properties covered by that PPR will be sold to Buyer subject to any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreement. Upon the execution and delivery rights of the Asset Purchase Agreement, FBC holder of the PPR and PCC shall perform their respective obligations thereunder, including, without limitation, filing and prosecuting an appropriate application for FCC consent no adjustment to the assignment of the FCC Licenses from FBC to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or the Asset Purchase Agreement, PCC shall not assume any obligations or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option AgreementPrice will be made with respect thereto and, in the event thatthe holder of any such PPR thereafter exercises such PPR, at Buyer will comply with all of the terms thereof and, as may be required by the terms of the PPR, convey the applicable Properties to the holder of the PPR and be entitled to the proceeds paid by such holder with respect thereto. If, as of the Closing Date, a holder of a Required Consent has not yet delivered such Required Consent and the time of for granting such consent has not expired, then the exercise of the Put Option or the Call Option, as the case may be, the only assets held Properties covered by FBC are (i) the assets to that Required Consent will not be conveyed to PCC Buyer at Closing and the Purchase Price will be reduced by the Allocated Value of the Properties (or portions thereof) subject to such Required Consent. 2.2.2 If Properties have been excluded at the Closing due to a pre-Closing exercise of a PPR and if for any reason the purchase and sale of the Properties covered by the PPR are not or cannot be consummated with the holder of the PPR that exercised its PPR, then Seller shall so notify Buyer and, within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign, and convey to Buyer and Buyer shall purchase and accept from Seller such Properties pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement, the "New Orleans Option"), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Agreement and for the Allocated Value of such Property, subject to adjustments in accordance with Sections ‎2.4 and ‎2.5. If Properties have been excluded at the Closing due to a failure to obtain a Required Consent in accordance with Section 3(b)‎2.2.1, FBC and PCC shall negotiate in good faith if a Required Consent is received or deemed received pursuant to the terms of the Stock Purchase Agreementunderlying agreement within six (6) months after the Closing Date, it being understood that then Seller shall so notify Buyer and, within ten (10) Business Days after Buyer’s receipt of such Stock Purchase Agreement notice, Seller shall be substantially equivalent sell, assign, and convey to Buyer and Buyer shall purchase and accept from Seller such Properties pursuant to the Asset Purchase terms of this Agreement except and for the Allocated Value of such modifications Property, subject to adjustments in accordance with Sections ‎2.4 and additions thereto that are required ‎2.5. 2.2.3 Properties permanently excluded pursuant to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall this Section ‎2.2 will not be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities deemed to be assumed affected by PCC under Title Defects or be subject to Section ‎2.1 and the Allocated Value of such excluded properties shall not be applied toward the Aggregate Defect Threshold. 27242226 26 Asset Purchase Agreement.

Asset Purchase Agreement. (a) Within fifteen Neither the Company nor the Class A Purchaser will (15i) business days following PCC's receipt of the Put Notice or FBC's receipt of the Call Notice, as the case may be, FBC and PCC shall enter into terminate the Asset Purchase Agreement without the prior written consent of the Class B Purchasers unless at the time of such termination the Company or the Class A Purchaser has the right to terminate this Agreement pursuant to Section 7.01 or (ii) modify, amend, or waive (including the waiver of any conditions) in any material respect, or provide any consent under, any provision of the Asset Purchase Agreement that is material to (A) the rights of the Company or the Class A Purchaser or (B) the rights of the Class B Purchasers, in their capacity as purchasers of the applicable Class B Purchased Units, in each case, without the prior written consent of the Class B Purchasers possessing the right to acquire not less than a majority of the Class B Purchased Units. (b) The Class A Purchaser shall be solely responsible for payment of the positive amount of any Post-Closing Working Capital Adjustment Payment and any Network Upgrades Reimbursement (as each such term is defined and used in the form of Exhibit A hereto (the "Asset Purchase Agreement") and shall be exclusively entitled to receive any payments from Sellco in the event there is a negative Post-Closing Working Capital Adjustment Payment or any reduction in the APA Purchase Price as a result of any Casualty Value or Condemnation Value (as each such term is defined and used in the Asset Purchase Agreement), it being understood . In the event that the only change to such form shall be changesCompany receives any payments from Sellco in connection with any Post-Closing Working Capital Adjustment Payment or any payments in connection with any Network Upgrades Reimbursement, if anyCasualty Value, or Condemnation Value, in the information contained in the Schedules thereto and the additioneach case, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could reasonably be expected to cause a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant to the Asset Purchase Agreement, the Company shall promptly pay over all such amounts to the Class A Purchaser. (iic) The Company and the conduct Class A Purchaser shall promptly provide the Class B Purchasers with a copy of the business any notice given or operations of the Station or (iii) the ability of FBC to consummate the transactions contemplated by received under the Asset Purchase Agreement in accordance with its terms; provided furtherand shall promptly provide notice when the Company or the Class A Purchaser, howeveras applicable, that PCC shall be required to accept becomes aware of any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreement. Upon the execution and delivery breach of the Asset Purchase Agreement, FBC and PCC shall perform their respective obligations thereunder, including, without limitation, filing and prosecuting an appropriate application for FCC consent to the assignment of the FCC Licenses from FBC to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or the Asset Purchase Agreement, PCC shall not assume any obligations or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement. (bd) Notwithstanding Section 3(a) NEP shall cause the Class A Purchaser and NEP Acquisitions to enter into the Assignment of this Option AgreementAsset Purchase Agreement prior to the Closing and shall use reasonable best efforts to take, and cause to be taken, all actions and do, and cause to be done, all things necessary, proper, or advisable to maintain in effect the event that, at the time Assignment of Asset Purchase Agreement as of the exercise Closing Date. (e) NEP and the Class A Purchaser shall cause the Company to enter into the Build Out Agreement at or prior to the Closing and shall use reasonable best efforts to take, and cause to be taken, all actions and do, and cause to be done, all things necessary, proper, or advisable to maintain in effect the Build Out Agreement as of the Put Option Closing Date. (f) Without limiting any of the foregoing, any action or determination that would require the Call Option, as consent of the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant Class B Purchaser with respect to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement, the "New Orleans Option"), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all or otherwise under Section 6.03 or Section 6.04 of the capital stock of FBC (LLC Agreement if such action or determination occurred following the "Stock Purchase Election"); provided, however, that FBC Closing shall have no right to exercise not be taken without first obtaining the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b), FBC and PCC shall negotiate in good faith the terms consent of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase AgreementClass B Purchaser.

Asset Purchase Agreement. (a) Within fifteen (15) business days The parties hereby acknowledge and agree that the following PCC's receipt understandings, agreements and waivers shall be effective as of the Put Notice or FBC's receipt date of this Agreement and shall supersede the Call Notice, as the case may be, FBC and PCC shall enter into the Asset Purchase Agreement in the form terms of Exhibit A hereto (the "Asset Purchase Agreement"), it being understood that the only change to such form shall be changes, if any, in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could reasonably be expected to cause a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant to the Asset Purchase Agreement, : (iia) the conduct of the business or operations of the Station or (iiiWith regard to Section 1.01(c)(iv) the ability of FBC to consummate the transactions contemplated by the Asset Purchase Agreement in accordance with its terms; provided further, however, that PCC shall be required to accept any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreement. Upon the execution and delivery of the Asset Purchase Agreement, FBC it is hereby agreed that the Company has no claims, rights and PCC shall perform their respective obligations thereunder, including, without limitation, filing and prosecuting an appropriate application for FCC consent to the assignment interests of the FCC Licenses from FBC types described therein, and neither the Company nor Avaya Fed shall have any rights or obligations under such provision of the Asset Purchase Agreement. (b) With regard to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or Section 1.06 of the Asset Purchase Agreement, PCC shall not assume any obligations or liabilities the consideration (within the meaning of FBC under any contract, agreement, license, permit or other instrument or arrangement. (b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time 1060 of the exercise of the Put Option or the Call Option, as the case may be, the only assets held Code) paid by FBC are (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement, the "New Orleans Option"), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b), FBC and PCC shall negotiate in good faith the terms of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC Avaya Fed under the Asset Purchase Agreement or for the Purchased Assets (as defined in the liabilities to Asset Purchase Agreement) shall be assumed by PCC allocated in accordance with Schedule 7.19(b). Seller and Buyer shall, and as applicable shall cause their respective Affiliates to, report the federal, state and local income and other Tax consequences of the purchase and sale under the Asset Purchase Agreement in a manner consistent with such allocation, including, if applicable, the preparation and filing of Form 8594 under Section 1060 of the Code with their respective federal income Tax Returns for the taxable year which includes the date of the closing under the Asset Purchase Agreement. Each of the parties hereto shall not, and shall not permit any of its Affiliates to, take a position (except as required pursuant to any Order) on any Tax Return, or before any Taxing Authority or in any judicial proceeding to the extent Tax issues are raised, that is in any way inconsistent with such allocation. (c) With regard to Section 5.02 of the Asset Purchase Agreement, it is hereby confirmed and agreed that the Company and Avaya Fed shall, prior to the Closing Date, conclusively agree upon the total amount of Transfer Taxes (as defined in the Asset Purchase Agreement) to be paid by the Company thereunder, and that the Company shall pay such agreed upon amount to Avaya Fed in full prior to 11:59 p.m. on the day prior to the Closing Date, and that the Company shall have no further obligations under Section 5.02 of the Asset Purchase Agreement. (d) With regard to Section 5.04 of the Asset Purchase Agreement, the Company and Avaya Fed shall, prior to the Closing Date, conclusively agree upon the amount by which the Purchase Price under (and as defined in) the Asset Purchase Agreement shall be increased or decreased, and it is hereby agreed that there shall be no further adjustments to such Purchase Price under Section 5.04 of the Asset Purchase Agreement after 11:59 p.m. on the day prior to the Closing Date. (e) It is hereby agreed that from and after 11:59 p.m. on the day prior to the Closing Date, Buyer shall not be required to pay any third party costs or expenses in connection with its compliance with Section 1.03(b) of the Asset Purchase Agreement. (f) It is hereby agreed that Section 5.03 of the Asset Purchase Agreement shall have no further effect and shall be superseded by Section 7.14 of this Agreement. (g) It is hereby agreed that Article VIII of this Agreement supersedes Sections 7.02 and 7.03 of the Asset Purchase Agreement, and the Company and Avaya Fed hereby waive any right to exercise any rights thereunder. (h) It is hereby agreed that, effective as of the Closing Date, Section 7.14 of this Agreement and the Transition Services Agreement shall supersede Section 1.03(b), Section 8.01 and Section 8.02 of the Asset Purchase Agreement, and that the rights and obligations of Avaya Fed and the Company under Section 1.03(b), Section 8.01 and Section 8.02 of the Asset Purchase Agreement shall terminate effective at 11:59 p.m. on the day preceding the Closing Date.