8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): March 9, 2016

Towerstream Corporation

(Exact Name of Registrant as Specified in Charter)

Delaware	001-33449	20-8259086
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

88 Silva Lane Middletown, RI	02842
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code: (401) 848-5848

(Former name or former address, if changed since

last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

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

[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 DFR 240.14a-12)

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

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

Item 1.01	Entry into a Material Definitive Agreement.
Item 1.02	Termination of a Material Definitive Agreement.
Item 2.01	Completion of Acquisition or Disposition of Assets.

On March 9, 2016 (the “Closing Date”), Towerstream Corporation, a Delaware corporation (the “Company”) completed a sale and transfer of certain assets pursuant to an Asset Purchase Agreement (the “APA”) by and among the Company, its wholly-owned subsidiary, Towerstream I, Inc. (“TII”), and Time Warner Cable Enterprises, LLC (“Time Warner”, and collectively with TII and the Company, the “Parties”).

The APA provided for the assumption by Time Warner of certain rooftop leases and related agreements located in New York (the “Leases”), the right to operate the WiFi access point equipment and associated controller software and backend infrastructure associated with such Leases (the “Equipment”), all right, title and interest in the Equipment and all manufacturers’ warranties on the Equipment and other assets as more fully described in the Asset Purchase Agreement (collectively, the “Assets”). The Parties also entered into an Assignment and Assumption Agreement (the “Assignment Agreement”) and a Bill of Sale (the “Bill of Sale”). Certain Leases may be retained subject to any required consents being obtained following the Closing Date (the “Required Consents”).

Time Warner entered into a Backhaul Services Agreement (the “Backhaul Agreement”) with the Company and TII, pursuant to which TII and the Company will provide Internet bandwidth to Time Warmer at the locations governed by the Leases. TII will retain ownership of all equipment associated with the provision of these services (the “Towerstream Equipment”), and such Towerstream Equipment is expressly excluded from the Equipment assigned under the APA. The Backhaul Agreement has an initial term of three years and is subject to renewal for two successive one-year periods. Time Warner may terminate the Backhaul Agreement, with respect to any or all Lease locations, upon 60 days’ written notice to the Company or on such other conditions as are more fully described in the Backhaul Agreement. In addition, Time Warner will reimburse the Company and TII for currently outstanding amounts paid by the Company or TII as security deposits under the Leases. The Company shall pay rent amounts due under the Leases for a period of three months after the Closing Date (the “Subsequent Rent Amounts”). Time Warner shall reimburse the Company for the Subsequent Rent Amounts on a staggered basis consistent with the Company’s and TII’s receipt of Required Consents, as more fully described in the APA.

The Company and TII will retain all liabilities related to the Assets or otherwise, except for the Assumed Liabilities, as such term is defined in the APA. The Assumed Liabilities include all Liabilities of Company and TII under the Leases that arise out of or relate to the period after the Closing Date.

The Company and TII each made certain customary representations and warranties and agreed to certain covenants related to the Assets and the business of each of the Company and TII. These representations, warranties and covenants shall survive for one year following the Closing Date, with certain exceptions.

The Company and TII have each assumed indemnification obligations that are more fully described in the APA. An indemnifying party will not be liable for indemnification under the APA unless and until the aggregate amount of Losses (as defined in the APA) exceeds $50,000. With certain exceptions, an indemnifying party will not be liable for damages in excess of $500,000.

As a closing condition to the APA, the Company’s wholly owned subsidiary Hetnets Tower Corporation, a Delaware corporation (“Hetnets”) and Time Warner executed that certain Mutual Termination Agreement (the “Mutual Termination Agreement”) in order to terminate that certain WiFi Services Agreement (the “WiFi Agreement”) by and between Time Warner and Hetnets dated June 14, 2013. The terms of the WiFi Agreement were previously disclosed by the Company in its Current Report on Form 8-K filed on June 28, 2013 (the “WiFi Report”).

The Company also amended the terms of its agreements with Melody Business Finance, LLC (“Melody”), whose consent was required in connection with the APA, through a Consent and Release (the “Consent and Release”).

The Company also amended certain warrants issued to Melody to purchase up to 3.6 million of the Company’s common stock (the “Warrants”) to allow for exercise on a cashless basis at any time, effective as of the Closing Date, and to make certain other changes to the related Registration Rights Agreement with Melody, as more fully described in that certain Amendment No. 1 to Warrant and Registration Rights Agreement (the “Melody Amendment”).

The foregoing descriptions of the terms of the APA, the Assignment Agreement, the Bill of Sale, the Backhaul Agreement, the Mutual Termination Agreement, the Consent and Release and the Melody Amendment (together, the “Agreements”) do not purport to be complete and are subject to, and qualified in its entirety by reference to, the Agreements, which are filed as exhibits herewith and are incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(b)  Pro Forma Financial Information

Pro Forma financial information regarding the transaction described above in Item 2.01 of this report is furnished as Exhibit 99.1 to this report.

(d) Exhibits

Exhibit No.	Description
10.1	Asset Purchase Agreement dated March 9, 2016, by and among Towerstream Corporation, Towerstream I, Inc. and Time Warner Cable Enterprises, LLC
10.2	Assignment Agreement dated March 9, 2016, by and among Towerstream Corporation, Towerstream I, Inc. and Time Warner Cable Enterprises, LLC
10.3	Bill of Sale dated March 9, 2016, by and among Towerstream Corporation, Towerstream I, Inc. and Time Warner Cable Enterprises, LLC
10.4	Backhaul Agreement dated March 1, 2016, dated March 9, 2016, by and among Towerstream Corporation, Towerstream I, Inc. and Time Warner Cable Enterprises, LLC (1)
10.5	Termination Agreement
10.6	Consent and Release dated March 9, 2016, by and among Towerstream Corporation, Towerstream I, Inc., Hetnets Tower Corporation, Alpha Communications Corp., Omega Communications Corp., Towerstream Houston, Inc., and Melody Business Finance, LLC
10.7	Amendment No. 1 to Warrant and Registration Rights Agreement dated March 9, 2016, by and between Towerstream Corporation and Melody Business Finance, LLC
99.1	Unaudited Pro Forma Condensed Financial Information

(1)   A redacted version of this Exhibit is filed herewith.  An un-redacted version of this Exhibit has been separately filed with the Commission pursuant to an application for confidential treatment.  The confidential portions of the Exhibit have been omitted and are marked as such.

 SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	TOWERSTREAM CORPORATION
Dated: March 15, 2016	By:	/s/ Arthur Giftakis
		Chief Operating Officer

EX-10.1

Exhibit 10.1

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (“Agreement”) is effective as of March 1, 2016 (the “Effective Date”), by and among Towerstream I, Inc., a Delaware corporation (“Company”) and its parent company Towerstream Corporation, a Delaware corporation (“Parent”), on the one hand, and Time Warner Cable Enterprises LLC, a Delaware limited liability company (“Buyer”), on the other hand. Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to them in Exhibit A. Company, Buyer and Parent hereby agree as follows:

1.            Assets and Liabilities

1.1          Sale and Purchase of Assets.

1.1.1     Subject to the terms and conditions of this Agreement and in consideration for Buyer’s covenants in this Agreement, entry into the Backhaul Services Agreement, the assumption of the Assumed Liabilities (as defined below), the reimbursement by Buyer to Parent of the Subsequent Rent Amounts (as defined below in Section 4.11, below) in accordance with the terms of Section 4.11, below, and the reimbursement by Buyer to Parent of the Security Deposits Amount (as defined below in Section 3.8, below) to Parent in accordance with the terms of Section 6.1 (collectively, the “Purchase Price”) (as defined in Section 2.1, below), Parent and Company shall sell, assign, transfer, deliver, and convey, or cause to be sold, assigned, transferred, delivered, and conveyed, to Buyer, and Buyer shall purchase and assume from Parent and Company: (a) the leases or other right of entry or similar agreements listed on Schedule 3.7(a)(vi) of the Disclosure Schedules, together with all amendments and modifications thereto and the rights to any associated security deposits (collectively, the “Leases”), which constitute leases for every location that Buyer is using under the Services Agreement; (b) all rights to operate the Business at the Locations (as defined below) on and after the Closing Date; (c) the right to operate the WiFi access point equipment and associated controller software located in Parent’s data center and associated backend infrastructure at the locations identified on Schedule 3.7(a)(vi) of the Disclosure Schedules (the “Locations”) including the 2,320 WiFi access points associated with the backend infrastructure that constitutes the Hetnets Networks (all such WiFi access point equipment, backend infrastructure and the associated controller software shall be referred to collectively as the “Equipment” which shall expressly exclude the Towerstream Equipment); (d) all right, title and interest in the Equipment and all manufacturer’s warranties on the Equipment; (e) the Utility Services; (f) all fixed assets, equipment, furniture, fixtures, supplies and materials, which are located at or outside the Locations or used in connection with the Business, including, without limitation, all leasehold improvements and equipment, wherever located, as well as all permits and drawings for any remodels of Locations that are pending or currently contemplated; (g) deposits and prepaid amounts for the Utility Services; and (h) all claims of Parent and Company against third parties, whether choate or inchoate, known or unknown, contingent or non-contingent, and all insurance benefits in each case related to any of the foregoing assets or related to the Assumed Liabilities (as defined in Section 1.3, below), free and clear of all Encumbrances (items (a) through (h) are referred to collectively herein as the “Assets”).

1.1.2     Parent and Company also shall sell, assign, transfer, deliver, and convey, or cause to be sold, assigned, transferred, delivered, and conveyed, to Buyer, and Buyer shall purchase and assume from Parent and Company the following which shall also be deemed to be part of the “Assets”: (i) all of Parent and Company’s contractor and business records and telephone numbers related to the Business; (ii) all goodwill and other intangible assets associated with the Assets; (iii) all going concern value, if any, of the Assets; (iv) all assignable Permits associated with the Assets or Business and all rights and incidents of interests therein; (v) copies of all of Parent’s and Company’s books, records and files, written, electronic or otherwise relating to the Business, provided that Parent and Company may maintain a copy of such items; and (vi) all agreements associated with the Assets or the Business and all rights therein, and all amendments, modifications and waivers with respect thereto.

1.2     Excluded Assets. For the avoidance of doubt, and anything to the contrary in this Agreement notwithstanding, the Assets shall not include: (a) any insurance policies; (b) any pension, profit-sharing or cash or deferred (Section 401(k)) plans and trusts and assets thereof, or any other Employee Benefit Plan or arrangement, and the assets thereof, of Parent or Company; (c) any interest in and to any refunds of federal, state or local franchise, income or other taxes of Parent or Company for periods prior to the Closing Date; (d) any minute books or stock (or its equivalent) record books; (e) any employment identification numbers, local licensing numbers, or state tax identification numbers; (f) any cash; (g) any locations leased or operated by Company or Parent that are not used by Buyer under the Services Agreement and the associated leases, equipment and other assets; (h) any subleases to third parties; (i) trade names and domain names of Parent or its Affiliates; (j) the Towerstream Equipment; (k) the right of Company or Parent to claims for refunds of Taxes and other governmental charges, of whatever nature, but only to the extent such Taxes and other governmental charges relate to Taxes or other governmental charges that were paid by Company or Parent prior to or on the date of Closing; or (l) any Retained Location or Retained Lease (as defined below in Section 4.10) (items (a) through (l)) are referred to collectively herein as the “Excluded Assets”). Any damage or modification to any Assets resulting from the removal of the Excluded Assets, except to the extent caused by Buyer’s misconduct or negligence, shall be repaired at Parent or Company’s sole expense.

1.3     Assumption of Liabilities. On the terms and subject to the conditions set forth in this Agreement, as of the Closing Date, Buyer shall assume only the following Liabilities of Parent and Company (collectively, the “Assumed Liabilities”): (a) all Liabilities of Parent and Company under the Leases included within the Assets that arise out of or relate to the period after the Closing Date, other than any such Liability arising out of a breach thereof or default thereunder by Company prior to or in connection with the Closing (as defined below); and (b) all Liabilities of Parent and Company for Utility Services that arise out of or relate to the period after the Closing Date, other than any such Liability arising out of a breach or default by Parent or Company under any agreement related thereto prior to or in connection with the Closing.

1.4     Excluded Liabilities. Buyer will not assume or be liable for (a) any Liabilities of Parent or Company or any other Liabilities in any way related to the Business or any of the Assets, except the Assumed Liabilities; or (b) any Liabilities of any Affiliate of Parent or Company, except Assumed Liabilities (collectively, the “Excluded Liabilities”).

2.       Closing

2.1     Closing and Closing Date. The closing of the transactions contemplated in this Agreement (the “Closing”) shall take place remotely via the exchange of signatures on the Targeted Closing Date or such other date mutually agreed upon by the Parties, following the satisfaction or waiver by the applicable Party of each of the conditions set forth in Section 5. The date on which the Closing shall take place is herein referred to as the “Closing Date.” All Closing transactions shall be deemed to have occurred simultaneously. The representations and warranties in this Agreement shall survive the Closing as set forth in Section 6.1. The covenants or other agreements in this Agreement which by their terms contemplate performance after the Closing Date shall survive the Closing Date for the period contemplated by their terms.

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2.2     Documents and other Items to be Delivered by Parent and Company. Concurrently with the Closing Date, Parent and Company shall deliver to Buyer the following, in a form reasonably acceptable to Buyer: (a) duly executed instruments of conveyance and transfer effecting the sale, transfer, assignment and conveyance of the Assets to Buyer, including a bill of sale (the “Bill of Sale”) and an assignment and assumption agreement (the “Assignment and Assumption Agreement”) each executed by Parent and Company; (b) a certificate of the secretary of Parent certifying that attached thereto are true and complete copies of all resolutions adopted by the sole shareholder of Company and by the board of directors of Parent, as applicable, authorizing the execution, delivery and performance of this Agreement, and all other agreements contemplated by this Agreement, and the consummation of the transactions contemplated by this Agreement, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement; (c) a certificate, dated the Closing Date and signed by Parent and Company, certifying that each of the conditions set forth in Section 5.1(a) have been satisfied; (d) agreements for the consent to assignment of the Leases for the Locations where DAS & Jaroth Inc., d/b/a Pacific Telemanagement Services and Repeater Communications Group are the landlords, in a form satisfactory to Buyer; (e) good standing certificates (or their equivalents) from the Secretary of State of the state of organization of Parent and Company; (f) copies of all books, records, agreements, documents and files in the possession or within the control of Parent and Company relating to the Business or the Assets; (h) written evidence of release of all Encumbrances on the Assets, each in a form reasonably satisfactory to Buyer; (i) the Backhaul Services Agreement, executed by Parent; (j) a termination agreement in a form satisfactory to Buyer terminating the Services Agreement (the “Termination Agreement”), executed by Parent and Parent’s wholly owned subsidiary Hetnets Tower Corporation (“HTC”) and (k) such other documents as Buyer shall reasonably request in connection with the Closing.

2.3     Documents to be Delivered by Buyer. Concurrently with the Closing Date, Buyer shall deliver to Parent and Company the following: (a) the Backhaul Services Agreement, executed by Buyer; (b) the Termination Agreement, executed by Buyer; and (c) the Assignment and Assumption Agreement, executed by Buyer.

3.     Representations and Warranties of Company and Parent. Nothing contained in the Disclosure Schedules (as defined below) shall impact the treatment of any Liability as an Excluded Liability or for purposes of indemnification pursuant to Section 6 or otherwise. Company and Parent, jointly and severally, represent and warrant to Buyer that, except as set forth in the Disclosure Schedules (the “Disclosure Schedules”), the statements in this Section 3 are true and correct as of the Effective Date and as of the Closing Date, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties will be true and correct as of such date). The Disclosure Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections in this Section 3.

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3.1     Organization, Qualification and Corporate Power. Parent is a corporation duly organized, validly existing and in good standing under the Laws of the state of organization of Parent. Other than as specified on Schedule 3.1, Parent is duly qualified to conduct business and is in good standing under the Laws of each jurisdiction in which the nature of the Business or the ownership or leasing of its properties requires such qualification, except where the failure to be so authorized, qualified or licensed would not reasonably be expected to result in a Material Adverse Effect. Parent has all requisite corporate power and authority to carry on the Business and to own and use the properties owned and used by it. Parent has not conducted any of the Business in any name other than Parent’s legal name, HTC’s legal name or Company’s legal name. Parent has furnished to Buyer true, complete and correct copies of its charter and bylaws, as currently in effect. Parent is not in default under or in violation of any provision of its charter or bylaws, as currently in effect. Parent has all necessary corporate power and authority to enter into and perform its obligations under this Agreement and the documents contemplated by this Agreement and to consummate the transactions contemplated hereby and thereby. This Agreement and the documents contemplated by this Agreement, upon execution, are valid and binding obligations of Parent. Company is a corporation duly organized, validly existing and in good standing under the Laws of the state of organization of Company. Company is duly qualified to conduct business and is in good standing under the Laws of each jurisdiction in which the nature of the Business or the ownership or leasing of its properties requires such qualification, except where the failure to be so authorized, qualified or licensed would not reasonably be expected to result in a Material Adverse Effect. Company has all requisite corporate power and authority to carry on the Business and to own and use the properties owned and used by it. Company has not conducted any of the Business in any name other than Company’s legal name, HTC’s legal name or Parent’s legal name. Company has furnished to Buyer true, complete and correct copies of its charter and bylaws, as currently in effect. Company is not in default under or in violation of any provision of its charter or bylaws, as currently in effect. Company has all necessary corporate power and authority to enter into and perform its obligations under this Agreement and the documents contemplated by this Agreement and to consummate the transactions contemplated hereby and thereby. This Agreement and the documents contemplated by this Agreement, upon execution, are valid and binding obligations of Company. Parent holds one hundred percent (100%) of the outstanding equity interests in Company.

3.2     Assets. Except with respect to obtaining the Required Consents for the Leases set forth on Schedule 3.2, Parent and Company have the full and unrestricted power to sell, assign, transfer and deliver the Assets in accordance with the terms of this Agreement, free and clear of all Encumbrances and there are no claims or actions pending with respect to the title of the Assets, except for those arising under this Agreement in favor of Buyer.

3.3     No Conflict. Neither the execution and delivery by Parent or Company of this Agreement, nor the consummation of the transactions contemplated by this Agreement by Parent or Company, as applicable, will (a) conflict with or violate any provision of the charter (or its equivalent) or bylaws (or its equivalent) of Parent or Company, (b) require on the part of Parent or Company any notice to or filing with, or any permit, authorization, consent or approval of, any Governmental Entity (other than the filing by Parent of a Current Report on Form 8-K with the Securities and Exchange Commission (the “Form 8-K”)), (c) except as set forth on Schedule 3.3(c), conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of obligations under, create in any party the right to terminate, modify or cancel, or require any notice, consent or waiver under, any agreement to which Parent or Company is a party or otherwise bound, (d) except as set forth on Schedule 3.3(d), result in the imposition of any Encumbrance upon the Assets, or (e) violate any Law or Governmental Order applicable to Company or any of its properties or assets or applicable to Parent or Parent’s properties or assets. Notwithstanding any disclosure provided by Company or Parent on Schedule 3.3(d) of the Disclosure Schedules, nothing herein shall impact, mitigate or in any way limit Company’s obligation to pay any fees associated with the assignment of the Leases as set forth in Section 4.10 hereof.

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3.4          Enforceability. This Agreement and each of the agreements executed in connection with this Agreement to which Parent or Company is a party has been duly executed and delivered by Parent or Company, as applicable. This Agreement and each of the agreements executed in connection with this Agreement to which Parent or Company is a party constitutes the valid and binding obligation of Parent or Company, as applicable, enforceable against Parent or Company, as applicable, in accordance with its terms, except to the extent that enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other similar Laws relating to or affecting the rights and remedies of creditors generally and (b) general principles of equity.

3.5          Litigation. Neither Parent or Company is or has ever been a party to any Legal Proceeding relating, directly or indirectly, to the Assets or the Business, and, to Parent’s and Company’s Knowledge, no Legal Proceeding relating, directly or indirectly, to the Assets or the Business has been threatened to be brought or filed against Parent or Company, and no event has occurred or circumstance exists that would be reasonably likely to give rise to or serve as the basis for any Legal Proceeding relating, directly or indirectly, to the Assets or the Business against Parent or Company. There are no judgments, orders or decrees outstanding against Parent or Company or relating in any way to the Assets or the Business.

3.6         Title to and Condition of Assets. To the Knowledge of Parent or Company, except as set forth on Schedule 3.3(c), (i) each of Parent or Company, as applicable, is the true and lawful owner, and has good title to, all of the Assets (tangible or intangible) owned or purported to be owned by Parent or Company, free and clear of all Encumbrances, (ii) Parent or Company own or lease all tangible assets sufficient for and used in the conduct of the Business and (iii) Parent or Company has a valid leasehold interest in all Assets (tangible or intangible) that it leases, free and clear of all Encumbrances. The Assets owned and leased by Parent or Company are in good operating condition and repair and are adequate for the uses to which they are being put in connection with the Business, ordinary wear and tear excepted. Except as set forth on Schedule 3.6, at the Closing there will be no restrictions on Buyer’s right or ability to modify, relocate, or dispose of the Equipment as Buyer sees fit.

3.7           Material Agreements.

(a)           Schedule 3.7(a) of the Disclosure Schedules lists all of the following agreements to which Parent or Company is a party or Parent or Company is otherwise bound which relate to the Assets or the Business, and all amendments, modifications and waivers with respect thereto, separated by relevant subsection:

(i)     involving any Liability (contingent or otherwise) of or owed to Company of Ten Thousand Dollars ($10,000) or more;

(ii)     with an Affiliate of Parent or Company;

(iii)     containing any covenant limiting the rights of Parent or Company to conduct the Business in any way or granting any exclusive rights, right of first refusal, right of first offer or similar right with respect to any of the Assets or rights of Parent or Company;

(iv)     that provides for the indemnification by Parent or Company of any Person or the assumption of any Liability of any Person;

(v)     relating to the acquisition of any of the Assets by Parent or Company;

(vi)     that is a Lease included within the Assets;

(vii)     that is otherwise material to the Assets or the Business (each agreement referenced in Section 3.7(a)(i) through Section 3.7(a)(vii), a “Material Agreement”).

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(b)     Parent or Company has delivered to Buyer a complete and accurate copy of each Material Agreement. With respect to each Material Agreement: (i) such Material Agreement is legal, valid, binding and enforceable and in full force and effect and neither Company nor Parent has received notice or has reason to believe that the other party to such Material Agreement intends to terminate such Material Agreement; (ii) such Material Agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect on the Effective Date; and (iii) neither Parent or Company nor, to Parent’s Knowledge, any other Person, is in breach or violation of, or default under, any provision of such Material Agreement, and no event has occurred, is pending or, to Parent’s Knowledge, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default of any provision of such Material Agreement by Parent or Company or, to Parent’s Knowledge, of any other party under such Material Agreement. Neither Company nor Parent has received notice nor has reason to believe that any party to a Material Agreement intends to terminate such Material Agreement.

3.8     Locations. To the Knowledge of Parent or Company, Schedule 3.8 of the Disclosure Schedules contains a materially complete and accurate table of all Leases included within the Assets and the Locations therefor, including the addresses, tenant name (if other than Parent or Company), landlord names, landlord addresses, telephone numbers and contact names, lease commencement dates, lease expiration or termination dates, extension rights, renewal rights and other options, existing security deposits paid by Parent or Company on the Locations (collectively, the “Security Deposits Amount”) base rents and CAM/NNN, utilities charges and other fees associated with the Locations, rent escalator, number of antennas permitted at each Location, additional access rights other than rooftop access (i.e., cable access, electricity, etc.), removal rights, consent or notice requirements to assign the Lease in connection with the transactions contemplated by this Agreement, W-9 address and contact information (if different from landlord contact information), whether a lease is terminable without cause with less than 90 days’ notice, and any fees, penalties or payments associated with a termination without cause or the assignment of the Lease. Parent or Company has quiet enjoyment and uninterrupted use of all of the Locations.

3.9     Legal Compliance. Company is in compliance, and has at all times been in compliance with all applicable Laws relating, directly or indirectly, to the Assets or the Business. Neither Company nor Parent has received any notice or communication relating directly or indirectly to any of the Assets or the operation of the Business from any Governmental Entity or Person alleging noncompliance by Parent or Company of any applicable Law.

3.10     Taxes. Each of Parent and Company has properly filed on a timely basis all Tax Returns that it is and was required to file, and all such Tax Returns were true, correct and complete. Each of Parent and Company has properly paid on a timely basis all Taxes, whether or not shown on any of its Tax Returns that were due and payable. All Taxes that Each of Parent or Company is or was required by Law to withhold or collect have been withheld or collected and, to the extent required, have been properly paid on a timely basis to the appropriate Governmental Entity. Each of Parent and Company has complied with all information reporting and back-up withholding requirements including maintenance of the required records with respect thereto, in connection with amounts paid to any Person. Neither Company nor Parent has been informed by any jurisdiction that the jurisdiction believes that Parent or Company was required to file any Tax Return that was not filed. Each of Parent and Company is in compliance, and at all times has been in compliance, with all Laws applicable to Taxes.

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3.11     Absence of Certain Changes, Events and Conditions. From December 31, 2015, each of Parent and Company has operated in the ordinary course of business consistent with past practice in all material respects and there has not been, with respect to each of Parent and Company and which could impact the Assets or the Business, any: (a) event, occurrence or development that has had a Material Adverse Effect; (b) incurrence, assumption or guarantee of any Indebtedness; (c) other than in the ordinary course of business consistent with past practice, entry into, amendment or waiver of any material right under, or, other than substantially pursuant to its current terms, renewal, termination or extension of, any Material Agreement; (d) the placement of any Encumbrance on any Asset; (e) material damage, destruction or loss (whether or not covered by insurance) to any Asset; (f) waiver, release, assignment, settlement or compromise of any Legal Proceeding or threatened Legal Proceeding relating to the Assets or the Business; (g) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law; (h) material alteration in the nature of the Business; (i) amendment, termination, waiver disposition or lapse of any Permit; (j) the commencement or, to Parent’s Knowledge, the threatening of any Legal Proceeding involving Parent or Company relating to the Assets or the Business; or (k) agreement, authorization or commitment, whether in writing or otherwise, to do any of the foregoing, or any action or omission that would result in any of the foregoing.

3.12     Insurance. The insurance policies held by Parent (collectively, the “Insurance Policies”) are of the type and in the amounts customarily carried by Persons conducting a business similar to Parent and Company and are sufficient for compliance with all applicable Laws and contracts to which Parent or Company is a party or by which it is bound. There are no claims related to the Business pending under any of the Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. None of Parent or any of its Affiliates is in default under, or has otherwise failed to comply with, in any material respect, any provision in any such Insurance Policy.

3.13     Broker’s Fees. Neither Company nor Parent has and no Person acting on Company’s or Parent’s behalf has agreed to pay a commission, finder’s fee or similar payment in connection with this Agreement or any matter related hereto to any Person, and no Person is entitled to any such payment from Parent or Company in connection with the transactions contemplated by this Agreement.

3.14     Disclosure. No representation or warranty by Parent or Company in this Agreement, and no statement in the Disclosure Schedules or any other document, certificate or other instrument delivered or to be delivered by or on behalf of Parent or Company pursuant to this Agreement or as part of Parent’s or Company’s diligence production contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements in this Agreement or therein not misleading.

4.       Covenants

4.1     Conduct of Business. (a) From the Effective Date until the earlier of (i) the Closing Date and (ii) the termination of this Agreement pursuant to Section 10, except as otherwise provided in this Agreement or consented to in writing by Buyer, Parent and Company shall conduct the Business in the ordinary course of business consistent with past practice and use commercially reasonable efforts to maintain and preserve intact the Assets. From the Effective Date until the earlier of (1) the Closing Date and (2) the termination of this Agreement pursuant to Section 10, except as consented to in writing by Buyer, Parent and Company shall not take any action that cause or be reasonably expected to cause any of the changes, events or conditions described in Section 3.11 to occur. No disclosure by Parent or Company pursuant to this Section 4.1 shall be deemed to amend or supplement this Agreement or to prevent or cure any misrepresentation or breach of any warranty or covenant in this Agreement.

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4.2     Exclusivity. From the Effective Date until the earlier of (a) the Closing Date and (b) the termination of this Agreement pursuant to Section 10, Company and Parent shall not, and Company and Parent shall cause their Affiliates, directors, officers, financial advisors and other representatives not to, directly or indirectly, (i) initiate, solicit, encourage or accept any offer or proposal, regarding the possible acquisition of Company or the Assets, including, without limitation, by way of a purchase of shares, purchase of assets or merger, of all or any substantial part of Company’s equity securities or assets, or (ii) other than in the ordinary course of business as heretofore conducted, provide any confidential information regarding Company to any Person other than Buyer or its authorized representatives.

4.3     Confidentiality; Nondisclosure. From and after the Effective Date, Company and Parent shall, and shall cause their Affiliates to, hold, and shall use their reasonable best efforts to cause its or their respective representatives to hold, in confidence any and all information, whether written or oral, concerning the Business and this Agreement, except as necessary to continue operations in the ordinary course of business prior to the Closing or to the extent that Company or Parent can show that such information is generally available to and known by the public through no fault of Company, Parent or any of their Affiliates or their respective representatives. If Company, Parent or their respective representatives are compelled to disclose any information by judicial or administrative process or by other requirements of law, they shall promptly notify Buyer in writing and shall disclose only that portion of such information which Company or Parent is advised by its counsel in writing is legally required to be disclosed, provided that Company and Parent shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information. Unless otherwise required by applicable law (based upon the advice of counsel), Company and Parent shall not disclose the terms of this Agreement or any of the transactions contemplated by this Agreement, except to Company’s or Parent’s accountants, attorneys and other professional advisors, without the prior written consent of Buyer. Notwithstanding anything to the contrary in this Section 4.3, Company shall provide Buyer with the Form 8-K at least two business days in advance of filing and allow Buyer the opportunity to review and provide comment which shall be taken into consideration by Company. Buyer shall not restrict Parent’s ability to file the Form 8-K within four business days after entry into this Agreement.

4.4     Employee Transition Assistance.   From the Effective Date until the earlier of (a) the Closing Date and (b) the termination of this Agreement pursuant to Section 10, Buyer and its Affiliates shall have reasonable access to and be permitted to work with the employees and independent contractors of Parent and Company in order to facilitate a smooth transition of the Business at and following the Closing.

4.5     Closing Conditions. Each Party shall, and shall cause their Affiliates to, use commercially reasonable efforts to take such actions as are necessary to expeditiously satisfy the closing conditions set forth in Section 5.

4.6     Payment of Taxes Resulting from Sale of Assets; Bulk Sales Laws. Company and Parent shall be jointly and severally responsible for paying in a timely manner all Taxes resulting from or payable in connection with the sale of the Assets pursuant to this Agreement, imposed on them by applicable Law. Company and Parent shall, within ninety (90) days following the Closing Date, provide written evidence to Buyer of Company’s or Parent’s payment of all transfer, sales, use, stamp, conveyance, value added, recording, registration, documentary, filing and other non-income Taxes and administrative fees (including notary fees) imposed on them resulting from or payable in connection with the sale of the Assets pursuant to this Agreement. The Parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Assets, it being understood that any Liabilities arising out of the failure to comply with the requirements and provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction shall be Excluded Liabilities for purposes of this Agreement.

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4.7     Payment and Performance of Excluded Liabilities. In addition to payment of Taxes pursuant to Section 4.6, Company and Parent shall pay, or make adequate provision for the payment in full and performance of all Excluded Liabilities.

4.8     Reports and Returns. Company and Parent shall promptly after the Closing prepare and file all reports and returns required by applicable Law relating to the Business and the Assets to and including the Closing Date.

4.9     Further Assurances. Each Party shall, and shall cause such Party’s Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions of this Agreement and give effect to the transactions contemplated by this Agreement. Company and Parent shall use such Person’s best efforts to accomplish a timely, smooth, uninterrupted and organized transfer of the Assets, the operations of the Business, and the customers and contractual relationships so as to avoid any lapse of operations.

4.10     Required Consents. The Parties acknowledge that assignment of certain Locations will require the consent (the “Required Consents”) of individual landlords and that all such Required Consents may not be obtained prior to Closing. Buyer hereby agrees that except as set forth in Section 2.2(d), receipt of the Required Consents or the giving of any notice required for the assignment of the Assets (the “Required Notices”) shall not be a condition to Closing. With respect to each Required Consent and Required Notice, neither this Agreement nor any other document, certificate or other instrument delivered or to be delivered by or on behalf of Parent or Company pursuant to this Agreement shall constitute an assignment or an attempted assignment of any Asset to which such Required Consent or Required Notice relates unless and until such time as such Required Consent is obtained or Required Notice is given. Following the Closing, Company and Parent shall, jointly and severally, use commercially reasonable efforts to obtain the Required Consents and provide the Required Notices to assign and transfer the Assets, which shall each be on a form expressly approved by Buyer, as quickly as practicable and shall be responsible for and shall pay any fee or penalty to assign such Asset to Buyer. Until Parent or Company obtains a Required Consent or delivers the Required Notice for any Asset, the Parties shall cooperate with each other in any reasonable and lawful arrangements so as to provide to Buyer the benefits of use of such Asset for its term (or any right or benefit arising thereunder, including the enforcement for the benefit of Buyer of any and all rights of Parent or Company against a third party thereunder). Once a Required Consent for the assignment of an Asset is obtained, Parent or Company, as applicable, shall promptly assign such Asset to Buyer, and Buyer shall assume the obligations of such Asset assigned to Buyer from and after the date of assignment to Buyer, pursuant to a written assignment signed by Buyer and Parent. In the event the Parties cannot obtain a Required Consent as a result of a landlord’s refusal to provide such Required Consent, the Parties agree that the Location shall be retained by Parent or Company, as applicable (such Locations, “Retained Locations” and such associated Leases the “Retained Leases”) and that any money advanced by Buyer solely in anticipation of assignment of such Retained Location shall be returned, except that Company will be entitled to retain all previously agreed to monthly fees for Buyer’s use of the Retained Location during that period. Buyer shall have the right, in its sole discretion, to determine whether it wants to continue to use the Retained Locations. In the event that Buyer determines that it wants to continue to use the Retained Locations in the absence of a Required Consent, then Buyer agrees to continue to pay Parent the previously agreed to monthly fee for said use pursuant to the terms of the Backhaul Services Agreement and Parent and Company agree to maintain such Retained Location for the use and benefit of Buyer unless and until Buyer notifies Company and Parent that it no longer desires to use the Retained Location.

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4.11 Rent True Up

(a)     At or prior to the Closing, Company shall pay all rent and amounts that are first due and owing under the Leases included within the Assets in a timely fashion during the first calendar month following the Closing Date (such amount, the “First Subsequent Rent Amount”). Company shall pay all rent and amounts that are due and owing under the Leases included within the Assets in a timely fashion during (i) the second calendar month following the Closing Date (such amount, the “Second Subsequent Month Rent”) and (ii) the third calendar month following the Closing Date (such amount, the “Third Subsequent Month Rent”, together with the First Subsequent Rent Amount and the Second Subsequent Rent Amount, the “Subsequent Rent Amounts”). Company shall provide reasonable documentation regarding the calculation and payment of the Subsequent Rent Amounts to Buyer before Buyer shall be obligated to reimburse Company for such amounts in accordance with Sections 4.11(a) through 4.11(c) below.

(b)     At the Closing, Buyer shall pay to Company an amount equal to the First Subsequent Rent Amount.

(c)      Provided that Buyer has been given evidence, reasonably satisfactory to Buyer, that Company and Parent have successfully obtained the Required Consents and/or provided the applicable notices for at least fifty percent (50%) of the Locations, Buyer will reimburse Company for the Second Subsequent Rent Amount.

(d)      Provided that Buyer has been given evidence, reasonably satisfactory to Buyer, that Company and Parent have successfully obtained the Required Consents and/or provided the applicable notices for at least ninety-five (95%) of the Locations, Buyer will reimburse Company for the Third Subsequent Rent Amount.

(e)     Following the Closing and until such time as all of the rent checks have been deposited by and the amounts of the rent checks have been paid to the applicable landlords, Company and Parent shall maintain the bank accounts for which the rent checks for the Subsequent Rent Amounts were written and ensure that there is at all times sufficient funds in such bank accounts for payment of the rent checks.

(f)     Parent and Company agree to continue to provide broadband connectivity at each location where Parent or Company currently receive a reduction in rent in exchange for its provision of broadband connectivity (“Broadband Location”). Parent and Company’s obligation under this Section 4.11(f) shall survive with respect to each Broadband Location for the current term of each Lease at such Broadband Location substantially on the same basis as provided on the Closing Date; provided however, that TWC continues to pay rent associated with such Broadband Location and any backhaul charges otherwise payable under the Transaction Documents for such Broadband Location.

4.12     Investigation and Agreement by Buyer; No Other Representations or Warranties. Buyer agrees that, except for the representations and warranties made by the Company and Parent that are expressly set forth in this Agreement and or in any other certificate, writing or agreement delivered pursuant hereto or in connection herewith, none of the Parent, the Company, nor any of their Affiliates or representatives has made and shall not be deemed to have made to the Buyer or its Affiliates or representatives any representation or warranty of any kind. The Company and Parent acknowledge and agree that, except for the representations and warranties made by the Buyer as expressly set forth in in this Agreement or in any other certificate, writing or agreement delivered pursuant hereto or in connection herewith, none of the Buyer or any of its Affiliates or representatives makes or has made to any of the Parent, the Company, or any of their Affiliates or representatives any representation or warranty of any kind.

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5.       Conditions to Closing

5.1     Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions: (a) all representations and warranties of Company and Parent in this Agreement shall be true and correct (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect set forth therein) as of the Effective Date and as of the Closing Date as though made on and as of the Closing Date (or on the date when made in the case of any representation and warranty which specifically relates to an earlier date), and Company and Parent shall have performed in all material respects all agreements and covenants required by this Agreement to be performed by Company and Parent prior to or at the Closing Date; (b) there shall be no Encumbrances on any of the Assets; (c) Buyer shall have completed its diligence review of Company and be reasonably satisfied with the results of such diligence; (d) there shall be no pending or threatened Legal Proceedings against Company or Parent that are in any way related to the Business or Company or the transactions contemplated by this Agreement; (e) Buyer shall have received each of the documents and other items set forth in Section 2.2; (f) none of the Permits, consents, approvals and waivers required pursuant to Section 2.2(d) shall have been revoked; (g) Company shall have delivered all tangible Assets not located at a Location to Buyer; (h) no Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Governmental 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 under this Agreement to be rescinded following completion thereof; and (i) during the period from the Effective Date through the Closing Date, there shall not have occurred any Material Adverse Effect.

5.2     Conditions to Obligations of Company. The obligations of Company to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Company’s waiver, at or prior to the Closing, of each of the following conditions: (a) Buyer shall have performed in all material respects all agreements and covenants required by this Agreement to be performed by Buyer prior to or at the Closing Date; (b) Company shall have received each of the documents set forth in Section 2.3; (c) Company shall have received the First Subsequent Rent Amount; and (d) no Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Governmental 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 under this Agreement to be rescinded following completion thereof.

6.       Survival and Indemnification

6.1     Survival of Representations and Warranties. The representations and warranties contained in Section 3 of this Agreement shall survive the Closing Date for one (1) year, except (i) as to any matter as to which a good faith claim has been submitted in writing to the other party describing the claim in reasonable detail before such date and identified as a claim for indemnification pursuant to this Section 6, (ii) as to any matter which is based successfully upon fraud with respect to which the cause of action shall expire only upon expiration of the applicable statute of limitations, and (iii) those representations and warranties set forth in Section 3.10 (Taxes), which shall survive until the expiration of the applicable statute of limitations.

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6.2     Obligations of Company and Parent. Company and Parent, jointly and severally, shall, at their own cost and expense indemnify, hold harmless and, to the extent requested by Buyer, defend Buyer, its Affiliates and their respective representatives, successors and assigns against, and reimburse such Indemnified Party for, all Losses that such Indemnified Party suffers or incurs or becomes subject to as a result of, arising out of, or to the extent relating to or in connection with (a) the ownership of the Assets or the operation of the Business prior to the Closing Date; (b) the inaccuracy or breach of any representation or warranty made by Parent or Company in this Agreement or any other document, writing or instrument delivered in connection with this Agreement (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect set forth herein); (c) any claims of any of Company’s employees or independent contractors relating to their engagement by Company or in connection with the transactions contemplated by this Agreement; (d) the violation of any Permit or Material Agreement in connection with the transactions contemplated by this Agreement; (e) any Excluded Liability, Excluded Location or Excluded Asset; (f) any failure by Parent or Company to perform any of such Person’s covenants or obligations in this Agreement or any other document, writing or instrument delivered in connection with this Agreement; (g) any Lease assignment fees incurred in connection with the transactions contemplated by this Agreement; (h) any Taxes arising from the Business or the Assets on or before the Closing Date or in connection with the transactions contemplated by this Agreement to the extent imposed on Parent or Company under applicable Law including any taxes or penalties resulting from Buyer or Company’s failure to qualify to do business in the state of New York; (i) any transfer, sales, use, stamp, conveyance, value added, recording, registration, documentary, filing and other non-income Taxes and administrative fees (including notary fees) arising in connection with the consummation of the transactions contemplated by this Agreement; and (i) Company’s, Parent’s and HTC’s conduct of any of the Business in any name other than Parent’s legal name, Company’s legal name, HTC’s legal name, or registered fictitious names. Upon the final settlement or resolution of any Claim, Buyer may set off any amount to which it is entitled under this Section 6 against the amounts owed by Buyer to Parent or its Affiliates against the Security Deposits Amount. Buyer shall hold back the Security Deposits Amount on the Closing Date and shall release the Security Deposits Amount to Parent or Company on the one (1) year anniversary of the Closing Date (the “Release Date”) less all finally settled or resolved (i) indemnification claims of the Buyer paid prior to the Release Date not otherwise reimbursed by Company or Parent and (ii) unpaid indemnification claims of Buyer or its Affiliates, which amounts shall be distributed to Company or retained by Buyer, as applicable, as such amounts are determined or resolved, as applicable. The amount by which the Security Deposits Amount is reduced to pay Losses pursuant to this Agreement shall be deemed to be a reduction in the Purchase Price.

6.3     Obligations of Buyer. Buyer shall, at its own cost and expense indemnify, hold harmless and, to the extent requested by Parent, defend Parent, its Affiliates and their respective representatives, successors and assigns against, and reimburse such Indemnified Party for, all Losses that such Indemnified Party suffers or incurs or becomes subject to as a result of, arising out of, or to the extent relating to or in connection with (a) the ownership of the Assets or the operation of the Business after the Closing Date (excluding any Retained Leases and any Losses arising from Parent or Company’s use of the Assets); (b) the inaccuracy or breach of any representation or warranty made by Buyer in this Agreement or any other document, writing or instrument delivered in connection with this Agreement; (c) any Assumed Liability; (d) any failure by Buyer to perform any of its covenants or obligations in this Agreement or any other document, writing or instrument delivered in connection with this Agreement; or (e) any Taxes arising from the Business or the Assets after the Closing Date to the extent imposed on Buyer under applicable Law.

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6.4           Procedure.

(a)     Promptly upon receipt of information indicating that a right to indemnification may arise under this Agreement, whether the right to indemnification results from claims of a third-party, from Losses or otherwise (collectively, a “Claim”), an Indemnified Party will notify the Indemnifying Parties of the circumstances of the Claim and will keep the Indemnifying Parties apprised of any material changes in the circumstances of the Claim; provided, however, that no Indemnified Party will be obligated to notify the Indemnifying Parties of any Claim earlier than the ninety (90) day anniversary of the Closing Date. The delay or failure to give such notice will not relieve any Indemnifying Party of any Liability to the Indemnified Parties except to the extent that the failure to provide notice results in the failure of actual notice and such Indemnifying Party is materially damaged as a result of such failure.

(b)     The Indemnifying Parties will be entitled to participate in, and to assume fully, the defense of any third party Claim with counsel approved by the Indemnified Parties. The Indemnified Parties will give the Indemnifying Parties reasonable information and assistance, at the Indemnifying Parties’ expense, in connection with the defense of such Claim. If timely notice of an action is given to the Indemnifying Parties and the Indemnifying Parties do not give notice to the Indemnified Parties within fifteen (15) days of the Indemnifying Parties’ intent to assume the defense, the Indemnifying Parties will be bound by any determination made in such proceeding or any compromise or settlement thereof effected by the Indemnified Parties. If the Indemnifying Parties assume the defense, it will be conclusively established for purposes of this Agreement that the Claims made are the Indemnifying Parties’ indemnity obligations under this Agreement.

(c)     The Indemnified Parties will have the right to employ separate counsel and to participate in the defense of such Claim, but the fees and expenses of such counsel will be at the expense of the Indemnified Parties unless: (i) the employment of counsel by the Indemnified Parties has been authorized by the Indemnifying Parties; (ii) the Indemnified Parties have been advised by their counsel in writing that there is a conflict of interest between the Indemnifying Parties and the Indemnified Parties in the conduct of the defense of the Claim (in which case the Indemnifying Parties will not have the right to direct the defense of the Claim on behalf of the Indemnified Parties); (iii) the Indemnifying Parties have not in fact employed counsel to assume the defense of the Claim within a reasonable time following receipt of the notice given pursuant to this Section 6.4; or (iv) the Indemnified Parties determine in good faith that there is a reasonable probability that the Claim may materially and adversely affect their or their Affiliates other than as a result of monetary damages; in each of which cases the fees and expenses of such counsel will be at the expense of the Indemnifying Parties.

(d)     Subject to the terms of Section 6.4(c), after notice to the Indemnified Parties of the assumption of defense by the Indemnifying Parties, the Indemnifying Parties will have no Liability to the Indemnified Parties for any fees or costs subsequently incurred by Indemnified Parties in such defense (except for fees and costs incurred in responding to requests for assistance from the Indemnifying Parties). No compromise or settlement of a claim binding on the Indemnified Parties will be effected by the Indemnifying Parties without the consent of the Indemnified Parties, which consent may be given or withheld in the Indemnified Parties’ sole discretion.

6.5          Limitations. Notwithstanding anything to the contrary contained in this Agreement, an Indemnifying Party shall not be liable for indemnification under this Agreement unless and until the aggregate amount of all such Losses exceeds $50,000, at which point the Indemnifying Party shall be liable for indemnification under this Agreement back to the first dollar. Each Indemnified Party waives, on behalf of itself and its Affiliates, any right to multiply actual damages or recover consequential, indirect, special, punitive or exemplary damages (including, without limitation, damages for lost profits or loss of business opportunity) arising in connection with or with respect to the indemnification provisions hereof. Each Indemnified Party entitled to indemnification hereunder shall take reasonable steps to mitigate Losses after becoming aware of any event which could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder. With the exception of Losses incurred by Buyer arising out of an Excluded Asset or an Excluded Liability, fraud, criminal activity, or willful misconduct, an Indemnifying Party shall not be liable for damages in excess of $500,000.

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6.6     Exclusive Remedies. The parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in Sections 6.1 to 6.5. Nothing in this Section 6.6 shall limit any Indemnified Party’s right to seek and obtain any equitable relief to which any Indemnified Party shall be entitled or to seek any remedy on account of any party's fraudulent, criminal or willful misconduct.

7.     Miscellaneous. Except as otherwise provided in this Agreement, each Party shall be solely responsible for and shall pay all other costs and expenses (including attorney and accounting fees) incurred by it in connection with the negotiation, preparation and performance of and compliance with the terms of this Agreement. This Agreement and the exhibits, schedules, other agreements and addenda hereto embody the entire agreement and understanding of the Parties and supersede any and all prior agreements, arrangements and understandings relating to the matters provided for in this Agreement. This Agreement may not be amended or waived, and no consent required under this Agreement will be deemed to be given, except pursuant to a writing signed by the Party against whom enforcement of any amendment, waiver or consent is sought. No failure or delay on the part of Buyer or Company in exercising any right or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. Neither of Parent or Company may assign such Person’s rights or obligations under this Agreement without the prior written consent of Buyer. Except as expressly provided in this Agreement, this Agreement is not intended to, nor shall it, create any rights in any other Person, including any employee of Company. The construction and performance of this Agreement shall be governed by the Laws of the State of New York, without regard to any choice or conflicts of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any other jurisdiction. In the event that the Parties have a dispute, controversy or claim relating to this Agreement, any agreements or activities described in this Agreement (the “Dispute”), the Parties will first attempt in good faith to resolve the Dispute promptly by informed discussions. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in the Borough of Manhattan, City of New York. Each of the Parties irrevocably submits to the exclusive jurisdiction of these courts. Each of the Parties waives, to the fullest extent permitted by Law, the defenses of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any such action or proceeding.  Any Party may make service on any other Party by sending or delivering a copy of the process to the Party to be serviced at the address and in the manner provided for in the giving of notices in Section 9. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY LITIGATION RELATING TO THIS AGREEMENT OR THE REPRESENTATIONS, WARRANTIES OR POST-EFFECTIVE COVENANTS RELATED TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic (“pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.

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8.     Notices. Any notices, demand or request required or permitted to be given under this Agreement shall be in writing and shall be addressed to the following addresses or to such other address as any Party may request:

If to Parent or Company:	Towerstream Corporation 88 Silva Lane Middletown, Rhode Island 02842 Attention: Arthur Giftakis, Chief Operating Officer
with a copy to:
	Sichenzia Ross Friedman Ference LLP 61 Broadway, 32nd Floor New York, New York 10006 Attention: Harvey Kesner, Esq.
If to Buyer:	Time Warner Cable 2551 Dulles View Drive Herndon, VA 20171 Attn: SVP & GM, Broadband Services
with a copy to:
	Time Warner Cable 60 Columbus Circle New York, NY 10023 Attn: General Counsel

Any such notice, demand or request shall be deemed to have been duly delivered and received (a) on the date of personal delivery, (b) on the date of receipt if mailed by registered or certified mail, postage prepaid and return receipt requested, or (c) on the date of a signed receipt if sent by an overnight delivery service.

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9.     Termination. This Agreement may be terminated at any time prior to the Closing: (a) by mutual consent of Buyer and Company set forth in writing; (b) by Company by written notice to Buyer if Buyer has materially breached any representation, warranty, covenant, or agreement in this Agreement, and has not cured such breach within five (5) days after receipt of such notice or it is unable to be cured; (c) by Buyer by written notice to Company if Company or Parent has materially breached any representation, warranty, covenant, or agreement in this Agreement, and has not cured such breach within five (5) days after receipt of such notice or it is unable to be cured; or (d) by either Buyer or Company by written notice to the other Parties if, for any reason, the Closing shall not have occurred by the Outside Date, unless the failure of the Closing to occur by the Outside Date shall be due to the failure of the Party seeking to terminate this Agreement. If this Agreement is terminated pursuant to this Section 10, all further obligations of the Parties under this Agreement shall terminate; provided that the obligations of the Parties in Section 4.3, Section 8 and this Section 10 shall survive any such termination. Without limiting the rights and remedies of any Party with respect to a breach of any other Party’s representations, warranties or covenants under this Agreement or any other document delivered in connection herewith, in the event the transactions contemplated by this Agreement shall not be consummated as a result thereof, the Parties shall, bear their own respective cost and expenses.

(Remainder of Page Intentionally Left Blank)

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and made effective as of the date first set forth above.

COMPANY:

Towerstream I, Inc.

Signature:  /s/ Philip Urso                                                                                     
Print Name:  Philip Urso                                                                                        
Print Title:  Sole Officer                                                                                         

Date:  3/9/2016                                                                                                             

PARENT:

TOWERSTREAM CORPORATION

Signature:  /s/ Philip Urso                                                                                   
Print Name:  Philip Urso                                                                                       
Print Title:  Interim CEO                                                                                       

Date:  3/9/2016                                                                                                       

BUYER:

Time Warner Cable Enterprises LLC

Signature:  /s/ Peter Stern                                                                                     
Print Name:  Peter Stern                                                                                        
Print Title:  Executive VP                                                                                       

Date:  3/9/2016                                                                                                             

Exhibit A
DEFINITIONS

The following terms when used in the Agreement shall have the meanings assigned to them below (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“Affiliate” means, with respect to a specified Person, a Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the Person specified.

“Backhaul Services Agreement” means that certain agreement to be entered into by and between Buyer and Company on the Closing Date in a form acceptable to both Buyer and Company.

“Business” means the business of operating the Equipment at the Locations for the provision of WiFi services, as currently conducted and as proposed to be conducted.

“Code” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder, or any subsequent legislative enactment thereof, as in effect from time to time.

“Control” or “control,” with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management, business or policies of such Person, whether through the ownership of voting securities, by contract or otherwise, or the power to elect or appoint at least fifty percent (50%) of the directors, managers, partners or other individuals exercising similar authority with respect to such Person.

“Employee Benefit Plan” means any “employee benefit plan” (as such term is defined in the Employee Retirement Income Security Act of 1974 (as amended) Section 3(3)) and any other employee benefit plan, program or arrangement of any kind including, but not limited to, each pension, benefit, retirement, compensation, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded.

“Encumbrance” means any lien, pledge, mortgage, deed of trust, security interest, charge, claim, easement, encroachment or other similar encumbrance other than (a) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures; (b) mechanics, carriers’, workers’, repairmen’s or other like liens arising or incurred in the ordinary course of business; and (c) easements, rights of way, zoning ordinances and other similar encumbrances affecting real property.

“Governmental Entity” means any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether federal, state or local, domestic or foreign.

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity.

“Indebtedness” means any indebtedness for borrowed money (including, without limitation, guarantees of any kind whatsoever), including interest-bearing debt, including all accrued and unpaid interest thereon and any other fees, costs and expenses payable to holders thereof in connection with the payoff and termination of such indebtedness, and all obligations in respect of capital leases.

“Knowledge” means with respect to the Parent or Company, the actual knowledge, after reasonable inquiry, of the following individuals and their direct reports: the Interim Chief Executive Officer of Parent, the Chief Financial Officer of Parent, the Chief Operating Officer of Parent, and Jackie Slaga.

“Indemnified Party” means any party entitled to receive indemnification hereunder.

“Indemnifying Party” means any party obligated to provide indemnification hereunder.

“Knowledge” means the actual or constructive knowledge of any employee of Company or Parent after due inquiry.

“Law” means any federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law).

“Legal Proceeding” means any action, suit, proceeding, claim, arbitration or investigation before any Governmental Entity or before any arbitrator or mediator.

“Liability” shall mean with respect to any Person, any liability, payable or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be reflected or disclosed on the financial statements of such Person or the notes thereto.

“Losses” means any and all losses, damages, liabilities, costs, expenses, settlement payments, awards, judgments, fines, obligations and claims of any kind, including reasonable attorneys’ fees.

“Material Adverse Effect” means any change, event, circumstance, effect or development that has had or would reasonably be expected to have a material adverse effect on the business, assets, prospects, liabilities, capitalization, condition (financial or other) or results of operations of Company.

“Material Adverse Effect” means any change, event, circumstance, effect or development that has had or would reasonably be expected to have a material adverse effect on the business, assets, prospects, liabilities, capitalization, condition (financial or other) or results of operations of Company.

“Outside Date” means the date that is sixty (60) days from the Targeted Closing Date.

“Party” or “Parties” individually and collectively, as the case may be, means Buyer, Company and Parent.

“Permit” means a permit, license, franchise, approval, authorization or consent required to be obtained from any Governmental Entity.

“Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Entity (or any department, agency, or political subdivision thereof).

“Services Agreement” means the WiFi Services Agreement that was entered into by and between Company and Buyer effective June 14, 2013.

“Targeted Closing Date” means March 1, 2016.

“Tax” means any tax or similar governmental charge, duty, impost, license or registration fee, custom duty or levy (including without limitation income taxes, franchise taxes, capital stock taxes, license taxes, profit taxes, transfer taxes or fees, registration taxes, sales taxes, use taxes, gross receipts taxes, value added taxes, employment taxes, excise taxes, ad valorem taxes, property taxes, environmental taxes real property taxes, personal property taxes, withholding taxes, payroll taxes, employment taxes, severances taxes, stamp taxes, occupation taxes, premium taxes, social security (or similar) taxes, unemployment taxes, disability taxes, alternative or add-on minimum taxes, estimated taxes or windfall profit taxes or other tax of any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner) together with any related penalties, fines, additions to tax or interest, whether disputed or not and including any obligation to indemnify or otherwise assume or succeed to the Tax liability of any other Person, imposed by any Governmental Entity.

“Towerstream Equipment” has the meaning assigned to such term in the Backhaul Services Agreement.

“Utility Services” means telephone, electrical, water (excluding bottled water), cable or DSL services and theft and fire alarm service contracts (but only to the extent that the terms of such contracts represent current market terms) serving the Locations.

EX-10.2

Exhibit 10.2

ASSIGNMENT AND ASSUMPTION AGREEMENT

THIS ASSIGNMENT AND ASSUMPTION of CONTRACTS (this “Assignment and Assumption”) is dated and effective this 9 day of March, 2016, by and among Towerstream I, Inc., a Delaware corporation (“Company”) and Towerstream Corporation, a Delaware corporation (“Parent”, and with Company, collectively “Assignors”), and Time Warner Cable Enterprises LLC, a Delaware limited liability company (“Assignee”).

WHEREAS, in connection with that certain Asset Purchase Agreement (the “Purchase Agreement”), made and dated as of even date herewith, by and among Company, Parent and Assignee, Assignors agreed to assign all of their right, title and interest in, to and under those certain leases and right of entry agreements described in Section 3.8 of the Purchase Agreement other than the Retained Leases for the Retained Locations, (collectively, the “Contracts”), to Assignee, and Assignee agreed to assume certain of Assignors’ obligations and liabilities under the Contracts as set forth in the Purchase Agreement.

Capitalized terms used but not defined herein shall have the meanings set forth in the Purchase Agreement.

NOW, THEREFORE, pursuant to the Purchase Agreement and in consideration of the mutual covenants and agreements contained therein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:

1.     Assignment. Subject to Section 4 hereof, Assignors hereby unconditionally and irrevocably grant, bargain, sell, assign, transfer, convey, and deliver to Assignee all of Assignors’ right, title and interest in, to and under the Contracts free and clear of all Encumbrances (the “Assignment”).

2.     Assumption. Assignee hereby accepts the Assignment, and assumes and agrees to pay, discharge, be bound by, fulfill and perform all terms, provisions, liabilities, obligations, duties and commitments of Assignors under the Contracts solely to the extent they accrue or relate to any period after the Closing Date and are Assumed Liabilities.

3.     The Purchase Agreement. This Assignment and Assumption is intended to evidence the consummation of the transactions contemplated by the Purchase Agreement and is subject to the terms and conditions set forth in the Purchase Agreement. Nothing contained in this Assignment and Assumption shall be construed to supersede, limit or qualify any provision of the Purchase Agreement. To the extent there is a conflict between the terms and provisions of this Assignment and Assumption and the terms and provisions of the Purchase Agreement, the terms and provisions of the Purchase Agreement shall govern.

4.     Third-Party Consents. To the extent that Assignors’ rights under any Contract or Permit purchased under the Purchase Agreement, or any other Asset, may not be assigned to Assignee without the consent of another Person which has not been obtained, this Assignment and Assumption shall not constitute an agreement to assign or assume the same if an attempted assignment or assumption would constitute a breach thereof or be unlawful. Assignors, at their expense, shall use their reasonable best efforts to obtain any such consent(s) to be obtained as promptly as possible. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Assignee’s rights under the Asset in question so that Assignee would not in effect acquire the benefit of all such rights, Assignors, to the maximum extent permitted by law and the Asset, shall act after the Closing as Assignee’s agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Asset, with Assignee in any other reasonable arrangement designed to provide such benefits to Assignee. Notwithstanding any provision in this Section 4 to the contrary, Assignee shall not be deemed to have waived its rights under the Purchase Agreement.

ASSIGNMENT AND ASSUMPTION AGREEMENT 

PAGE 1

5.          Miscellaneous. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by any party hereto without the prior written consent of the other party hereto, and any attempt to do so shall be void, except for assignments and transfers by operation of law. Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by and upon the parties and their respective successors and assigns. This Agreement may be amended, supplemented or modified by a written instrument duly executed by each of the parties hereto. This Agreement shall be governed by the laws of the State of New York, without regard to any choice or conflicts of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.  In the event that the Parties have a dispute, controversy or claim relating to this Agreement, any agreements or activities described in this Agreement (the “Dispute”), the parties will first attempt in good faith to resolve the Dispute promptly by informed discussions.  Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in the Borough of Manhattan, City of New York.  Each of the Parties irrevocably submits to the exclusive jurisdiction of these courts.  Each of the Parties waives, to the fullest extent permitted by Law, the defenses of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any such action or proceeding.  EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY LITIGATION RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof of thereof. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. There are no third party beneficiaries to this Agreement.

[SIGNATURE PAGE FOLLOWS]

ASSIGNMENT AND ASSUMPTION AGREEMENT 

PAGE 2

IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption of Contracts to be effective as of the day and year first above written.

“ASSIGNORS”:

COMPANY:

Towerstream I, Inc.,

a Delaware corporation

By:  /s/ Philip Urso                                                                          

Name:  Philip Urso

Title:  Sole Officer

Parent:

TowerStream Corporation,

a Delaware corporation

By:  /s/ Philip Urso                                                                          

Name:  Philip Urso

Title:  Interim CEO

“ASSIGNEE”:

TIME WARNER CABLE ENTERPRISES LLC,
a Delaware limited liability company

By: /s/ Peter Stern                                                                            

Name: Peter Stern

Title: Executive VP

ASSIGNMENT AND ASSUMPTION AGREEMENT 

SIGNATURE PAGE

Exhibit A

Contracts

1.      See Schedule 3.8 to APA

ASSIGNMENT AND ASSUMPTION AGREEMENT

EXHIBIT A

EX-10.3

Exhibit 10.3

BILL OF SALE

In accordance with the provisions of that certain Asset Purchase Agreement, made and dated as of March 9, 2016 (the “Purchase Agreement”), by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (“Buyer”), Towerstream I, Inc., a Delaware corporation (“Company”), and Towerstream Corporation, a Delaware corporation (“Parent”), Company and Parent do hereby execute and deliver this Bill of Sale. Capitalized terms, unless otherwise defined herein, have the meanings assigned to them in the Purchase Agreement.

For consideration recited in the Purchase Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company hereby sells, assigns, transfers, delivers, and conveys to Buyer, free and clear of all Encumbrances, all right, title and interest in and to the Assets.

Company agrees that from time to time, whether on or after the date hereof, it will execute and deliver such other documents and take such other actions as may reasonably be requested in writing by Buyer and required to distribute and convey more effectively the Assets from Company to Buyer.

The identity and content of the Assets, and the representations and warranties of Company and Owner applicable to the Assets, together with all limitations, restrictions, disclaimers and other provisions thereof, are contained in the Purchase Agreement.

THIS BILL OF SALE DOES NOT, NOR SHALL IT BE DEEMED TO, SUPERSEDE, SUPPLANT, EXTINGUISH, MERGE OR EXPAND ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS, INDEMNITIES OR LIMITATIONS CONTAINED IN THE PURCHASE AGREEMENT.

This Bill of Sale shall be governed by the laws of the State of New York, without regard to any choice or conflicts of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. 

Delivery of a signature page to this Bill of Sale by facsimile or other electronic means (e.g., electronic mail or PDF) shall be effective as delivery of a manually executed counterpart to this Bill of Sale.

[signature page follows]

PAGE 1 

IN WITNESS WHEREOF, the undersigned has caused this Bill of Sale to be executed by its duly authorized officer to be effective as of the 9 day of March, 2016.

COMPANY:

TOWERSTREAM I., INC.,

a Delaware corporation

By:  /s/ Philip Urso                                                                          

Name: Philip Urso

Title: Sole Officer

PARENT:

TOWERSTREAM CORPORATION,

a Delaware corporation

By:  /s/ Philip Urso                                                                          

Name: Philip Urso

Title: Interim CEO

BILL OF SALE:

TOWERSTREAM CORPORATION AND TOWERSTREAM I, INC.

SIGNATURE PAGE

EX-10.4

Exhibit 10.4

[x] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO

A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION

Service Agreement

Corporate Office, Tech IV Plaza, 88 Silva Lane, Middletown, RI 02842

This Service Agreement (this “Agreement”), which includes the attached Service Level Agreement (“SLA”), is entered into this 1st day of March, 2016, between Towerstream I, Inc., a Delaware Corporation, and Towerstream Corporation, a Delaware Corporation (collectively, “Towerstream”) and Time Warner Cable Enterprises LLC, a Delaware Limited Liability Company (“Customer” or “TWC”) (Towerstream and Customer, collectively, the “Parties”). Towerstream will rent the Customer a port, or portion of a port, on its network (the “Towerstream Network”) which will provide the Customer with Internet bandwidth under the following terms and SLA for backhaul services (the “Services”):

Customer Name:			Contact		E-Mail
Time Warner Cable Enterprises LLC			SVP and GM, Broadband Services		mike.roudi@twcable.com
Installation Address:			Billing Address (if different from Installation Address)
XXXXXXXXXXXXXXXXXX			2551 Dulles View Drive Herndon, VA 20171
Phone	Fax		Billing Contact		Account Executive
			Robert Cerbone robert.cerbone@twcable.com
Internet Bandwith	Monthly Service Fees	Equipment Install Fee	Offer Expires	Term		Payment Type
100 Mbps	XXXXXXX	XXXX		36 Months

Start Date/Term. The initial term shall be as set forth above (the “Initial Term”). At its election, Customer may extend the Initial Term, under the same terms and conditions, for up to two successive one-year extension options (each an “Extension Term”) by providing Towerstream with not less than 30 days written notice prior to the end of the Initial Term or Extension Term, as applicable (the Initial Term, plus any Extension Term(s), collectively the “Term”). The Term is subject to early termination as set forth below. The start date is the date the Towerstream Equipment (as defined in the SLA) is operational at the Customer Demarcation (as defined in the SLA) point, marking initiation of the Term. Towerstream agrees that the Towerstream Equipment will be operational at the Customer Demarcation on March 1, 2016.

Payment. The monthly service fees are set forth above (the “Service Fees”). Service Fees shall be paid monthly in advance and shall be payable on the 1^st day of each month (the “Due Date”) and all other payments will be prorated. Towerstream shall provide past due notices to Customer’s billing contact when account is 10 and 20 days past due. If Customer's account is still past due after 28 days, the main contact listed on the account will be contacted via email and overnight mailing in an effort to remedy past due rent. In the event of non- payment continuing 30 days from the Due Date, Towerstream reserves the right to declare Customer in default.

Indemnification. Towerstream will indemnify, defend and hold harmless TWC, its affiliates, and its and their officers, directors, employees and agents, from and against any and all third party claims (and any losses or other liabilities arising therefrom (including reasonable attorneys’ fees)) of personal injury or death, or damage to tangible property, arising from the Services or the performance by Towerstream of its obligations under this Agreement.

1

[x] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO

A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION

Limitation of Liability. EXCEPT WITH RESPECT TO TOWERSTREAM’S INDEMNIFICATION OBLIGATIONS OR INTENTIONAL BREACH OF THE CONFIDENTIALITY AND DATA PRIVACY PROVISIONS ATTACHED AS ATTACHMENT 2, IN NO EVENT WILL ANY PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER FOR ANY LOSS OF PROFITS, OR FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER OR NOT FORESEEABLE, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Insurance. Towerstream shall provide and maintain at its sole cost and expense during the Term of this Agreement the insurance coverage described on Attachment 1.

Confidentiality and Data Privacy. The confidentiality and data privacy provisions attached hereto as Attachment 2 are incorporated in this Agreement by reference.

Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of New York, without regard to any choice or conflicts of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.  In the event that the Parties have a dispute, controversy or claim relating to this Agreement, any agreements or activities described in this Agreement (the “Dispute”), the Parties will first attempt in good faith to resolve the Dispute promptly by informed discussions.  Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in the Borough of Manhattan, City of New York.  Each of the Parties irrevocably submits to the exclusive jurisdiction of these courts.  Each of the Parties waives, to the fullest extent permitted by Law, the defenses of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any such action or proceeding.  EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY LITIGATION RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

Assignment. No Party may transfer or assign this Agreement (including by operation of law, which shall be deemed to be an assignment), or any of such Party’s rights or obligations herein, in whole or in part, without the prior written consent of the other Party; provided that Customer may transfer or assign all of its rights and obligations under this Agreement without such consent to (i) any Customer affiliate or any entity that, immediately prior to the applicable transaction(s) controls, is controlled by, or is under common control with Customer, or (ii) any successor entity pursuant to a merger, acquisition, spin-off, other corporate reorganization, a change of control, or the sale of substantially all assets of Customer.  If Towerstream proposes to sell or otherwise transfer the assets utilized to provide the Services, it shall make the sale or transfer contingent upon assumption by the purchaser or assignee of all of the obligations of Towerstream under this Agreement.  Any attempted transfer or assignment in violation of this provision is null and void.  Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the Parties and their permitted successors and assigns.

Termination. (A) Customer may terminate this Agreement, as to any or all sites, for any reason without liability upon 60 days written notice to Towerstream. Service Fees will be due up to and including the date of termination. (B) Termination by Customer is permitted, as to any or all sites, without liability in the case where the connection is out of service for a period of 4 (four) consecutive business days from Ticket Open (as defined in the SLA). Service Fees will be due up to and including the Ticket Open date. (C) Customer may also terminate this Agreement, as to any or all sites, without liability if Towerstream is in default of its obligations under this Agreement or the SLA for a period of 30 days after Customer has notified Towerstream in writing of such default. (D) All other termination by Customer requires a payment of a termination charge equal to the remainder of months in the term times the monthly Service Fees, due and payable in full upon termination of Service.

Notices. Any notices, demand or request required or permitted to be given under this Agreement shall be in writing and shall be addressed to the following addresses or to such other address as any Party may request:

If to Towerstream: Towerstream Corporation 88 Silva Lane Middletown, Rhode Island 02842 Attention: Arthur Giftakis, Chief Operating Officer

2

[x] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO

A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION

with a copy to:	Sichenzia Ross Friedman Ference LLP 61 Broadway, 32nd Floor New York, New York 10006 Attention: Harvey Kesner, Esq.
If to Customer:	Time Warner Cable 2551 Dulles View Drive Herndon, Virginia 20171 Attention: SVP & GM, Broadband Services
with a copy to:	Time Warner Cable 60 Columbus Circle New York, New York 10023 Attention: General Counsel

Any such notice, demand or request shall be deemed to have been duly delivered and received (a) on the date of personal delivery, (b) on the date of the date of receipt if mailed by registered or certified mail, postage prepaid and return receipt requested, or (c) on the date of a signed receipt if sent by an overnight delivery service.

Entire Agreement. This Agreement, and the Asset Purchase Agreement entered into concurrently herewith, supersede any and all prior agreements, arrangements and understanding relating to the matters provided for in this Agreement. This Agreement may not be amended or waived, and no consent required under this Agreement will be deemed to be given, except pursuant to a writing signed by the Party against whom enforcement of any amendment, waiver or consent is sought.

AGREED:

Towerstream I, Inc.	Towerstream Corporation
/s/ Philip Urso	/s/ Philip Urso
(Signature)	(Signature)
Title: Sole Officer                                 Date: March 9, 2016 Time Warner Cable Enterprises LLC /s/ Peter Stern                                                                              Peter Stern Executive Vice President                   Date: March 9, 2016	Title: Interim CEO                         Date: March 9, 2016

Contact Towerstream www.towerstream.com

sales@towerstream.com (866)-848-5848

ClientSupport@towerstream.com (800)-306-6993

Billing@towerstream.com (401)-848-5848, extension 740

Corporate Office, Tech IV Plaza, 88 Silva Lane, Middletown, RI 02842

Main Number: (401)-848-5848, FAX: (866) – 762-2250

3

[x] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO

A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION

Towerstream Service Level Agreement (“SLA”)

Technical Support. Towerstream supports and monitors the Services, up to the Customer Demarcation, 24 hours per day. Towerstream Technical Support is available toll-free 24 hours per day. A Customer Ticket is opened when Towerstream monitors a Customer service issue or Customer reports trouble to Towerstream Tech Support (“Ticket Open”).

Scheduled Maintenance. Towerstream shall use its reasonable best efforts to provide Customer with at least 10 days’ prior notice of any scheduled maintenance and a description of the planned maintenance actions to Customer’s Network Operations Center (NOC) via email (preferred) at Customer.Maintenance.Notifications@Customerable.com, or via phone 877-777-2263 (select option 1, 1). Towerstream shall only conduct scheduled maintenance of the Towerstream Network on any day between the hours of 12:01 AM to 6:00 AM (local time) (the “Maintenance Window”), although there may be instances where emergency network maintenance is required to be performed outside the Maintenance Window.

Equipment/Installation. “Towerstream Equipment” is defined as antennae, radios, and possible router for any combination of 802.16, WiMax and WiFi Transceivers/Access Points. This is a key consideration of this Agreement. The Towerstream Equipment will be provided free of charge. Customer agrees not to intentionally damage any of the Towerstream Equipment and to promptly notify Towerstream if any Towerstream Equipment is accidentally damaged by Customer. Standard Installation includes non-penetrating sled or J-bar antenna mounts, up to 250 feet of necessary cables weather- sealed and run from the antennae to the Customer Demarcation, service turn-up and testing. Towerstream owns all Towerstream Equipment that it supplies to the Customer. If Service is discontinued for any reason, Towerstream has the right to remove any or all of the Towerstream Equipment in a workmanlike manner upon 10 days advance notice. “Customer Demarcation” is defined as the location where Customer plugs into the Towerstream Equipment and is generally located in the Customer equipment room. Towerstream will have use of existing AC power.

Service Level Guaranty 

Towerstream shall operate and maintain the Towerstream Network in accordance with the following service level requirements.

1. Minimum Bandwidth. Towerstream shall provide a minimum, dedicated bandwidth of 100 Mbps (the “Bandwidth Standard”).

2. Network Uptime. Towerstream will maintain a Towerstream Network uptime (the “Network Uptime”) of at least 99.99% (“Network Uptime Standard”), calculated on a monthly basis, excluding downtime due to Force Majeure Events (up to a cap of twenty four (24) hours in the aggregate in a given month, except that the cap shall not apply to the extent the Force Majeure Event consists of acts of God, hurricanes or acts of nature causing widespread destruction) or scheduled maintenance during the Maintenance Window (“Excluded Downtime”). Network Uptime is based upon the percentage that each Customer Demarcation, monitored in real time, is “Up” (as defined below) each calendar month. A Customer Demarcation is “Up” when it is providing full end-to-end functionality, including access to the Internet at the Bandwidth Standard. A Customer Demarcation will not be Up (i.e., it will be “Down”) when it is not providing such full functionality. A determination that a Customer Demarcation is Down may be made by, among other things, (i) Customer’s or Towerstream’s direct monitoring of the Towerstream Network, (ii) an email alert or SNMP trap from Towerstream’s monitoring system, or (iii) a communication between the Customer’s NOC and Towerstream’s. Once Down, a Customer Demarcation will be considered Up only when Customer confirms that the issue causing such Customer Demarcation to be Down has been resolved and that such Customer Demarcation is Up again.

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[x] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO

A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION

For purposes of this SLA, “Force Majeure Event” is an event beyond a party’s reasonable control, including without limitation acts or omissions of government or military authority, acts of God, transportation delays, fires, floods, riots or wars, terrorism, tornadoes, earthquakes, or hurricanes or any other event outside such party’s reasonable control.

The Network Uptime will be calculated using the following formula: [(Total number of Customer Demarcations are in operation during the calendar month) * (Total number of minutes in the calendar month) – (Total minutes Customer Demarcations are Down in a calendar month - Excluded Downtime)] / [(Total number of Customer Demarcations in operation during the calendar month) * (Total number of minutes in the calendar month)] * 100.

For example, assume that:

● There are 30 days in the month, 43,200 total minutes

● There are 1,500 Customer Demarcations in operation during the calendar month,

● Customer Demarcation are down a total of 15,000 minutes, including 5,000 minutes of Excluded Downtime

In this example the Network Uptime would be 99.846% and would not meet the Network Uptime Standard.

If Towerstream fails to meet the Network Uptime Standard for any month during the Term, then Towerstream shall provide Customer with a fee credit for the failed Customer Demarcation (“Uptime Failure Credit”) that is equal to the applicable percentage of the total Service Fees for the month in which the Network Uptime Standard occurred, as indicated in the table below based on the severity of the failure to meet the Network Uptime Standard:

Actual Network Uptime	% of Total Service Fees
<99.99% and >99.9%	5%
<99.9% and >99.5%	10%
<99.5% and >99.0%	20%
Below 99.0%	30%

3. Latency. Towerstream will maintain an average latency of less than 25 milliseconds measured during peak daily traffic times (“Latency Standard”), calculated on a monthly basis. Latency is defined as the average roundtrip network delay, measured every 5 minutes during a calendar month, to adequately determine a consistent average monthly performance level for latency for each Customer Demarcation. The roundtrip delay is expressed in milliseconds (ms). Towerstream will measure latency using a standard 64 ping to each Customer Demarcation from a monitoring server connected at the core router at the peering point with Customer.

The average latency for all Customer Demarcations is calculated as the sum of the roundtrip delay measurements for all locations in operation during a calendar month divided by the total number of measurements for all Customer Demarcations. If Towerstream fails to meet the Latency Standard in any calendar month, then Towerstream shall provide Customer with a fee credit on Customer’s next monthly invoice of 10% of the total Service Fees (“Latency Credit”).

4. Packet Loss. Towerstream will monitor packet loss for all Customer Demarcations on an ongoing basis and maintain a monthly packet loss of no greater than 1% per location per day (“Packet Loss Standard”). Packet loss is measured every 5 minutes during a calendar month, to adequately determine a consistent average monthly performance level for packet loss for each available. Packet loss per Customer Demarcation is calculated as 100% less the percentage of packets that are lost in a day. The percentage calculation is based on packets that are sent to a Customer Demarcation during the latency ping and lost during the process. For monitoring purposes, Towerstream will also calculate a monthly average packet loss across all Customer Demarcations.

5

[x] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO

A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION

If the daily packet loss at a Customer Demarcation is less than the Packet Loss Standard for any day during the Term, then Towerstream shall provide Customer with a fee credit on Customer’s next monthly invoice that is equal to the prorated charges of one day of the monthly Service Fee for each Customer Demarcation not achieving the Packet Loss Standard (“Packet Loss Credit”).

5. Restoration of Outages. Towerstream shall respond to and restore service following any outages excluding Excluded Downtime (an “Unplanned Outage”) in the timeframes set forth below. A “Major Outage” is any Unplanned Outage that impacts at least 5% of the locations. A “Minor Outage” is any Unplanned Outage that impacts less than 5% of the Customer Demarcations. All response and restore times are calculated from the locations are time the Customer Demarcations are Down.

	Major Outage	Minor Outage
Response Time	30 minutes	30 minutes
Restore Time	10 hours	24 hours

If Towerstream fails to meet the Response Time Standard, then the parties shall meet to discuss monitoring and notification procedures and cooperate in good faith to ensure that Customer is notified of and Towerstream promptly and properly responds to any Unplanned Outages. If Towerstream fails to meet the Response Time standard set forth above five times in any calendar month, then Towerstream shall provide Customer with a fee credit on Customer’s next monthly invoice of 5% of the total Service Fees (“Response Time Credit”).

If Towerstream fails to meet the Restore Time standard set forth above for 100% of the Customer Demarcations affected by an Unplanned Outage, then Towerstream shall provide Customer with a fee credit (“Restore Time Credit”) on Customer’s next monthly invoice that is equal to the applicable percentage of the total Service Fees for the month in which the Unplanned Outage occurred as indicated in the tables below based on the severity of the failure to meet the Restore Time standard:

Actual Restore Time of 100% of Customer Demarcations after Major Outage	% of Total Service Fees
> 10 hours ≤ 16 hours	10%
> 16 hours ≤ 24 hours	25%
> 24 hours	50%

Actual Restore Time of 100% of Customer Demarcations after Minor Outage	% of Total Service Fees
> 24 hours ≤ 32 hours	10%
> 32 hours ≤ 48 hours	20%
> 48 hours	30%

6

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A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION

6. Service Level Credits. At Customer’s option, any Uptime Failure Credit, Latency Credit, Packet Loss Credit, Response Time Credit, or Restore Time Credit (collectively, “Credits”) owed may be used by Customer toward any amounts then or thereafter owing to Towerstream. The amount of any Credits owed by Towerstream shall be shown on Towerstream’s invoice for Service Fees for the month in which the applicable failure occurred. Upon the termination or expiration of this Agreement, any unused Credits shall be applied to any outstanding amounts owed to Towerstream by Customer. If no pending amounts are owed, then Credits shall be paid to Customer by Towerstream by check or ACH or wire transfer no later than thirty (30) days after such expiration or termination. In no event shall the aggregate Credits for any month exceed the total Service Fees for the month.

7. Most Favored Customer.  If during the Term, Towerstream or its affiliates makes available to any other Customer SLA terms, including, without limitation, minimum bandwidth commitments, network uptime standards, latency standards, packet loss standards, response or restore time standards, or any credits related thereto, that are more favorable, then Towerstream shall notify Customer within ten (10) business days of such more favorable terms and the SLA shall be modified to reflect such more favorable terms, effective as of the immediately following calendar month.  In furtherance of this obligation, upon Customer’s request, not to be made more than once per calendar quarter, the Chief Financial Officer of Towerstream shall submit a written certification to Customer stating whether or not it is in compliance with this paragraph and describing in reasonable detail any incidences of non-compliance.

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Attachment 1

Insurance Requirements

The following required minimum coverages and limits may be met by a combination of the primary policy with a follow-form Excess Umbrella Liability Policy.

1. Commercial General Liability Coverage

Coverages: Premises & Operations, Broad Form or Blanket Contractual Liability, Independent Contractors Liability, Products/Completed Operations, Personal Injury and Broad Form Property Damage

Minimum Limits:
Each Occurrence (BI/PD)		$	1,000,000
General Aggregate		$	1,000,000
Products/Completed Operations	Agg.	$	1,000,000
Medical Expenses (any one person)		$	5,000

▪ Customer must be named as an Additional Insured - Use ISO Endorsement CG 2010 or CG 2026 (or equivalent) for ongoing operations

▪ Policy must provide completed operations coverage to CUSTOMER until the completion and acceptance of the work performed by Towerstream.

2. Business Automobile Liability Coverage

Coverages: Any Auto Coverage or all owned and leased vehicles. Blanket Contractual Coverage.

Minimum Limits:
Each Accident	$	1,000,000	Combined single limit for bodily
General Aggregate	$	1,000,000	injury & property damage

3. Workers’ Compensation Insurance

Coverages and Minimum Limits:
Part I       Workers’ Compensation		Statutory Limits
Part II Employer’s Liability
Bodily Injury by Accident	$	1,000,000
Bodily Injury by Disease (Each Employee)	$	1,000,000
Disease Policy Limit	$	1,000,000

4. Excess Umbrella Liability Policy (Follow-Form)

Per Occurrence		Amount must be such that when added to the primary policy coverage, limits are equal to $1,000,000.
General Aggregate	$	$1,000,000

5. Errors and Omissions (E&O) Insurance

Coverages and Minimum Limits:
Professional Liability/E&O	$	$1,000,000

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6. Insurance - General Conditions

a)	The certificate holder shall be:
	Time Warner Cable Enterprises LLC, its subsidiaries and affiliated companies 7800 Crescent Executive Drive Charlotte, NC 28217 Attn: Risk Management

b) The certificate must be provided on the industry standard “ACORD” form (or equivalent) upon contract execution and within 10 days of policy renewal.

c) Insurance carriers must have an A.M. Best rating of at least A- .

d) Townerstream will name as an Additional Insured, by policy endorsement, “Time Warner Cable Enterprises LLC, its subsidiaries, affiliated companies, directors, officers, employees and agents”. To meet this obligation, Towerstream must provide Customer with:

■ Certificate of Insurance in accordance with the insurance provisions of the contract and these insurance requirements. The following shall be included in the “Description of Operations” section of the certificate:

TIME WARNER CABLE ENTERPRISES LLC, ITS SUBSIDIARIES, AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS ARE NAMED AS ADDITIONAL INSURED AS THEIR INTEREST MAY APPEAR (ATIMA) BY POLICY ENDORSEMENT [CG 2026 OR CG 2010 (2001 VERSION) AND CG 2037 OR EQUIVALENT].

■ Additional Insured Endorsement for ongoing operations ISO CG 2010 or CG 2026 (or equivalent)

■ Additional Insured Endorsement for completed operations ISO CG 2037 (or equivalent)

e) All certificates and insurance policies will contain a statement that said policy is primary coverage to Time Warner Cable Enterprises LLC, its subsidiaries, affiliated companies, directors, officers, employees and agents; and that any coverage maintained by Customer is excess and non-contributory for claims or losses resulting from the negligence of Towerstream. The following shall be included in the “Description of Operations” section of the certificate: COVERAGE IS PRIMARY AND NON-CONTRIBUTORY FOR CLAIMS OR LOSSES RESULTING FROM THE NEGLIGENCE OF THE INSURED.

f) All certificates and insurance policies shall include a Waiver of Subrogation in favor of Time Warner Cable Enterprises LLC, its subsidiaries, affiliated companies, directors, officers, employees and agents for claims or losses resulting from Towerstream’s negligence. The following shall be included in the “Description of Operations” section of the certificate: WAIVER OF SUBROGATION APPLIES IN FAVOR OF CUSTOMER.

g) Towerstream will provide Customer at least thirty (30) days’ prior written notice of any policy cancellation or modification.

h) Any Excess Umbrella Liability policies will be “follow form” and cover in the same manner as the Commercial General Liability policy, Commercial Automobile Liability policy, and Employer’s Liability policy, and will not contain any additional exclusions or limitations of those said policies.

i) The cost of any deductible amounts or self-insured retentions contained in any of the insurance policies is to be borne by Towerstream without any increase or adjustment to the applicable contract amount.

j) The required minimum limits of insurance coverage are subject to increase by Customer at any time if Customer deems it necessary for adequate protection. Within 30 days of demand for such increased coverage, Towerstream will deliver to Customer evidence of such increased coverage in the form of an endorsement or revised certificate of insurance.

k) The minimum limits of insurance coverage required by these insurance provisions will in no way limit or diminish Towerstream’s liability.

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l) If Customer, its subsidiaries, affiliated companies, directors, officers, employees and agents suffer or incur any damages not covered by the insurance requirements as provided within or arising from Towerstream’s negligent acts, failure to act, or omissions in the performance of any of the terms and conditions of any agreement, Customer, its subsidiaries, affiliated companies, directors, officers, employees and agents will be entitled to recover such damages from Towerstream.

m) All of the above conditions will also apply to any subcontracted operations.

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Attachment 2
Confidentiality Obligations

(a)     All information furnished by the disclosing Party to the receiving Party, whether orally, by means of written material, or by use of the Towerstream Network that is marked as confidential or proprietary at the time of disclosure, or otherwise would be understood by a reasonable person to be confidential given the nature of the information and the circumstances surrounding the disclosure (the “Proprietary Information”), including without limitation the existence and terms of this Agreement, and any and all information that comprises Personal Information (as defined below) or Usage Data (defined below) related to any TWC customer, end-user, or subscriber (collectively, “Subscribers”): (a) shall be deemed proprietary and shall be held by the receiving Party in strict confidence to the same extent and with at least the same security as the receiving Party protects its own confidential or proprietary information; (b) without the prior permission of the disclosing Party, shall not be disclosed or revealed or shared with any other person except those employees, agents, or contractors who have a need to know, who are necessary for and directly involved in such Party’s performance of its obligations under this Agreement, and, in the case of third party contractors and agents, who are bound in writing by confidentiality obligations substantially similar to and, in any case, no less restrictive than those set forth herein; and (c) may only be used for purposes of, and in connection with, the performance of the receiving Party’s obligations or exercise of the receiving Party’s rights under this Agreement.

(b)     Proprietary Information does not include information or materials that the receiving Party can demonstrate (i) becomes during or after the Term of this Agreement, through no act or failure to act or violation of this Agreement on the part of the receiving Party, generally known or available to the public, (ii) was known or possessed by the receiving Party on a non-confidential basis before its receipt from the disclosing Party, (iii) is rightfully obtained by the receiving Party from a third party, without breach of any obligation to the disclosing Party, or (iv) is independently developed by the receiving Party, without use of or reference to the Proprietary Information, by persons who had no access to the Proprietary Information. For clarity, the preceding exclusions above shall not apply with respect to any Personal Information and Usage Data in the form acquired from TWC, which shall always be and remain TWC’s Proprietary Information.

(c)     For purposes of this Agreement, the term “Personal Information” means any information or data that identifies an individual or from which an individual may be identified that is provided or made available to Towerstream, or accessed, received, controlled, stored, processed, transmitted, maintained, or possessed by Towerstream, in connection with the provision of the Towerstream Network, including, without limitation, an individual’s name, address, telephone number, driver’s license, identification card or passport numbers, personal identification codes or numbers, electronic mail names or addresses, account numbers, and all “personal information,” “nonpublic personal information,” and other similar information, however described, as defined under applicable law. In connection with the operation of Towerstream Network, Towerstream may obtain access to certain Personal Information (orally, in writing, or in any other form or media) relating to Subscribers, potential subscribers, employees, or independent contractors of TWC or any TWC affiliate. Towerstream shall use its best efforts to protect the confidentiality and security of all Personal Information. Towerstream acknowledges and agrees that all Personal Information is, as between the Parties, the sole property of TWC, shall be considered Proprietary Information hereunder and shall be treated with the highest degree of confidentiality by Towerstream. Towerstream shall use Personal Information solely in connection with the performance of its obligations under this Agreement and shall not use any Personal Information for the purpose of soliciting, or to permit any others to solicit, individuals to subscribe to any other services or promote the sale of any product. Towerstream shall not, under any circumstances directly or indirectly reveal any Personal Information to any third party for any reason without the prior written consent of TWC, which TWC may withhold in its sole and absolute discretion.

(d)     To the extent that Towerstream has access to or collects any Usage Data (as defined below), it does so solely on behalf of TWC pursuant to TWC’s obligations hereunder and shall maintain the confidentiality of such data and shall treat it in accordance with TWC’s privacy policies (as posted to TWC’s website from time to time) and applicable law. Towerstream shall not use Usage Data for any purpose not in compliance with its obligations under this Agreement and shall not disclose such data, whether in aggregate or individual form, to any third party. Towerstream shall not collect or maintain such Usage Data except to the extent necessary to perform its obligations under this Agreement and shall not, directly or indirectly, contact any Subscribers in connection with this Agreement. For purposes of this Agreement, “Usage Data” shall include any and all usage data, activity data or other information collected from or about or otherwise regarding TWC’s Subscribers whether in individual or aggregate form. Such Usage Data shall be treated as TWC’s Proprietary Information and is and shall remain TWC’s property.

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(e)     Towerstream represents, warrants, and covenants to TWC that it has or will develop and implement and shall maintain during the Term of this Agreement a comprehensive information security program that includes administrative, technical, and physical safeguards and controls sufficient to: (i) ensure the security and confidentiality of Personal Information; (ii) protect against anticipated threats or hazards to the security or integrity of such information; and (iii) protect against unauthorized access to, or disclosure or use of, all Personal Information that Towerstream accesses, receives, stores, processes, transmits, maintains, or possesses (collectively, “Security”). Towerstream shall document its Security and all safeguards, procedures, and controls and keep them current in light of changes in relevant technology. Such Security shall include, but not be limited to, the following:

i.     Towerstream has developed and implemented and shall maintain appropriate security measures regarding physical and electronic access to Personal Information, which measures shall include: (a) physical access controls and access controls on information systems, including secure user authentication protocols, secure access control methods, firewall protection, and malware protection, (b) encryption of electronic information, including in transit and in storage on systems or networks, in each case where appropriate or required by applicable laws, including Massachusetts M.G.L. c. 93H and 201 CMR §§ 17.00-17.05; (c) employee background checks for individuals with responsibilities for or access to Personal Information; (d) measures to protect against destruction, loss, or damage to Personal Information due to potential environmental hazards, such as fire and water damage or technological failures; and (e) training to implement the information security measures.

ii.     Towerstream shall authorize only those systems administrators or other technical staff who are necessary for and directly involved in Towerstream’s performance of its obligations under this Agreement, to have access to the Personal Information (whether physically or through computer system access) and solely on a “need to know” basis (collectively, “Authorized Persons”). Towerstream shall not authorize anyone other than Authorized Persons to have access to the Personal Information at any time. To the extent Personal Information is stored electronically in connection with this Agreement on any information processing system, such system will have password-controlled access, and each Authorized Person will have a unique user ID and associated password. Each such password will be randomly selected, non-obvious and nontrivial. Logon passwords will be changed at least every (90) days. Displaying and printing of passwords will be either inhibited or marked. In furtherance, and not in limitation of, the foregoing, Towerstream shall comply with all rules, regulations, and requirements governing access to TWC’s systems and facilities, including, without limitation, completion of TWC’s security questionnaire.

iii.     Towerstream shall employ assessment, monitoring, and auditing procedures to ensure internal compliance with these requirements and safeguards and shall conduct an assessment of these safeguards at least annually. Upon request, Towerstream shall provide a report on material deficiencies identified as the results of this assessment, including any discrepancies, failures, weaknesses, or vulnerabilities of or in the safeguards or Security to TWC.

(f)     Towerstream shall comply with all laws, rules, and regulations applicable to Towerstream for the handling of personally identifiable information that are now in effect or hereafter promulgated which are applicable to the operation of Hot Spots or APs, provision of the WiFi Service, and the performance of other obligations under this Agreement or any Personal Information that Towerstream controls, accesses, receives, stores, processes, transmits, maintains, or possesses. Without limiting the foregoing, Towerstream acknowledges and agrees that Personal Information relating to subscribers or potential subscribers of TWC or any TWC affiliate may be subject to the subscriber privacy protections set forth in Section 631 of the Cable Communications Policy Act of 1984, as amended (47 U.S.C. Section 551) and, Towerstream shall comply with the requirements thereof.

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(g)     Towerstream shall as soon as reasonably practical after discovery thereof, and subject to any reasonable restrictions placed on such Party by any law enforcement agency in the process of conducting an investigation relating thereto (“Law Enforcement Restrictions”), report to TWC any unauthorized access to or disclosure of Personal Information (“Security Incident”) including the full details of such Security Incident and take all measures as may be reasonably necessary to prevent any further Security Incident. Towerstream shall cooperate with TWC in any reasonable action or proceeding as may be deemed necessary as the result of such Security Incident.

(h)     All Proprietary Information provided or made available to the receiving Party by the disclosing Party shall be and at all times remain the exclusive property of the disclosing Party. All such information and any copies thereof shall be promptly returned upon request of any designated representative of the disclosing Party, and in any event shall be returned, or certified as deleted or destroyed, by the receiving Party within thirty (30) days of notice of termination of this Agreement.

If the receiving Party should receive any legal request or process in any form seeking disclosure of, or if the receiving Party should be advised by counsel of any obligation to disclose, Proprietary Information, the receiving Party shall promptly notify the other Party prior to the disclosure so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained, or the other party waives compliance with the provisions hereof, the disclosing Party agrees to furnish only such information that it is legally required to furnish and, at the request of the other Party, to use reasonable efforts to obtain assurance that confidential treatment will be accorded such information, it being the understanding that such reasonable efforts shall be at the cost and expense of the Party whose information has been sought.

In the event of breach of any of the provisions of this article by the receiving Party, the disclosing Party shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other remedies available at law or equity.

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Schedule A

Installation Locations

XXXXXXXXXXXXX

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EX-10.5

Exhibit 10.5

MUTUAL TERMINATION AGREEMENT

This MUTUAL TERMINATION AGREEMENT (this “Agreement”) is made as of March 9, 2016, by and between Time Warner Cable Enterprises LLC, a Delaware limited liability company (“TWC”) and Hetnets Tower Corporation, a Delaware corporation (“Hetnets”) (each a “Party” and collectively, the “Parties”).

WHEREAS, Hetnets is a wholly-owned subsidiary of Towerstream Corporation, a Delaware corporation (“Parent”), and Towerstream I, Inc., a Delaware corporation is also wholly-owned subsidiary of Parent (“Company”);

WHEREAS, Parent and Company are parties to that certain Asset Purchase Agreement among Parent, Company and TWC, dated as of March 9, 2016 (the “Purchase Agreement”) whereby Company has agreed to sell and TWC has agreed to purchase certain Assets and assume certain Leases in exchange for the consideration set forth in the Purchase Agreement;

WHEREAS, the Parties are party to that certain parties to that certain WiFi Services Agreement dated June 14, 2013, as amended (the “Services Agreement”), pursuant to which Hetnets provides access to the Hetnets Network and the WiFi Services to TWC and the TWC Users (as such terms are defined in the Services Agreement); and

WHEREAS, pursuant to Section 2.2(j) of the Purchase Agreement, it is a condition to the Closing that the Parties terminate the Services Agreement and the Parties wish to terminate such Services Agreement in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, the Parties agree as follows:

1.     Termination of Services Agreement. The Parties agree that, effective upon the Closing, the Services Agreement is hereby terminated and of no further force or effect. Notwithstanding the foregoing the rights and obligations of the parties under the Services Agreement incurred prior to the Closing shall survive the termination of the Services Agreement, including but in no way limited to the survival rights outlined in Section 4(e)(iii) of the Services Agreement.

2.     Representations and Warranties. Each of the Parties represents and warrants to the other Parties that (a) such Party has all requisite legal and corporate power and authority to execute, deliver and perform its obligations under this Agreement and (b) this Agreement constitutes a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to law of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies.

TERMINATION AGREEMENT  

SIGNATURE PAGE 

3.     Miscellaneous. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Purchase Agreement. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by any Party hereto without the prior written consent of the other Parties hereto, and any attempt to do so shall be void, except for assignments and transfers by operation of law. Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by and upon the Parties and their respective successors and assigns. This Agreement may be amended, supplemented or modified by a written instrument duly executed by each of the Parties hereto. This Agreement shall be governed by the laws of the State of New York, without regard to any choice or conflicts of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.  In the event that the Parties have a dispute, controversy or claim relating to this Agreement, any agreements or activities described in this Agreement (the “Dispute”), the Parties will first attempt in good faith to resolve the Dispute promptly by informed discussions.  Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in the Borough of Manhattan, City of New York.  Each of the Parties irrevocably submits to the exclusive jurisdiction of these courts.  Each of the Parties waives, to the fullest extent permitted by Law, the defenses of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any such action or proceeding.  EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY LITIGATION RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among or between any of the Parties with respect to the subject matter hereof of thereof. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. There are no third party beneficiaries to this Agreement except for Parent and Company.

[Remainder of page intentionally left blank.]

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

TIME WARNER CABLE ENTERPRISES LLC	HETNETS TOWER CORPORATION
By: /s/ Peter Stern	By: /s/ Philip Urso
Name: Peter Stern	Name: Philip Urso
Title: Executive Vice President	Title: Sole Officer
Date: 3/9/2016	Date: 3/9/2016

TERMINATION AGREEMENT 

SIGNATURE PAGE

EX-10.6

Exhibit 10.6

CONSENT AND RELEASE

This Consent and Release (this “Agreement”), dated as of March 9, 2016, is entered into by and among TOWERSTREAM CORPORATION, a Delaware corporation (“Parent”), TOWERSTREAM I, INC., a Delaware Corporation (“Towerstream I”), HETNETS TOWER CORPORATION, a Delaware corporation (“Hetnets”), ALPHA COMMUNICATIONS CORP., a Delaware corporation (“Alpha”), OMEGA COMMUNICATIONS CORP., a Delaware corporation (“Omega”), TOWERSTEAM HOUSTON, INC., a Texas corporation (“Houston”; collectively with Parent, Towerstream I, Hetnets, Alpha, Omega, the “Loan Parties”), and MELODY BUSINESS FINANCE, LLC, a Delaware limited liability company, as administrative agent under the Loan Agreement described below (in such capacity, the “Administrative Agent”) and on behalf of the lenders party to the Loan Agreement (the “Lenders”). Capitalized terms that are not otherwise defined herein shall have their defined meanings under the Loan Agreement, dated as of October 16, 2014, by and among the Parent, Towerstream I, Hetnets, the Administrative Agent and the Lenders (the “Loan Agreement”).

WITNESSETH:

WHEREAS, the Loan Parties seek to Dispose of certain Property described on Exhibit A hereto (the “TWC Assets”) pursuant to that certain Asset Purchase Agreement among Parent, Towerstream I, and Time Warner Cable Enterprises LLC, substantially in the form of Exhibit B hereto (the “Asset Purchase Agreement”) which Disposition would breach covenants set forth in the Loan Documents if consummated without the consent set forth herein (the Disposition of the TWC Assets in accordance with the Asset Purchase Agreement is hereinafter referred to as the “TWC Disposition”);

WHEREAS, the Administrative Agent and the Lenders have agreed to consent to the TWC Disposition as set forth below;

NOW, THEREFORE, in consideration of the covenants and mutual promises contained herein and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged and intending to be legally bound hereby, the parties agree as follows:

SECTION 1.     Consent and Release.

1.1     Consent. In accordance with Section 16.1 of the Loan Agreement, the Administrative Agent and the Lenders hereby consent to the TWC Disposition.

1.2     Release. Concurrently with the consummation of the TWC Disposition, the Administrative Agent, on behalf of itself and the Lenders hereby releases all Liens on, and security interests in, the TWC Assets arising under the Loan Documents. In connection with such release, the Lenders authorize the Administrative Agent to make such filings or execute such other documents as are reasonably requested by the Loan Parties to evidence such release, in each case at the expense of the Loan Parties.

1.3     Limitation of Consent and Release. The consent and release set forth in this Section 1 are effective solely for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, (b) release any Collateral other than the TWC Assets or (c) otherwise prejudice any right or remedy which the Administrative Agent or the Lenders may now have or may have in the future under or in connection with any Loan Document. This Agreement shall be deemed to be a Loan Document. Except as herein amended, each Loan Document is hereby ratified and confirmed and shall remain in full force and effect.

SECTION 2.     Representations and Warranties. To induce the Administrative Agent and the Lenders to enter into this Agreement, the Loan Parties hereby represent and warrant to the Administrative Agent and the Lenders as follows:

2.1     Immediately after giving effect to this Agreement (a) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Event of Default has occurred and is continuing after giving effect to this Agreement;

2.2     Each of the Loan Parties has the power and authority to execute and deliver this Agreement and to perform its obligations under the Loan Documents, as amended by this Agreement;

2.3     The execution and delivery by each Loan Party of this Agreement and the performance by each Loan Party of its obligations under the Loan Documents, as amended by this Agreement, have been duly authorized;

2.4     The execution and delivery by each Loan Party of this Agreement and the performance by each Loan Party of its obligations under the Loan Documents, as amended by this Agreement, do not and will not contravene (i) any law or regulation binding on or affecting such Loan Party, (ii) any contractual restriction with a person binding on such Loan Party, (iii) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on such Loan Party, or (iv) the organizational documents of such Loan Party;

2.5     The execution and delivery by each Loan Party of this Agreement and the performance by such Loan Party of its obligations under the Loan Documents, as amended by this Agreement, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on such Loan Party, except as already has been obtained or made;

2.6     This Agreement has been duly executed and delivered by each Loan Party and is the binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights;

2

2.7     No Loan Party or Affiliate of any Loan Party will receive Net Cash Proceeds in connection with the TWC Disposition; and

2.8     Exhibit A attached hereto sets forth a complete and accurate description of the TWC Assets.

SECTION 3.     Counterparts. The execution and delivery of this Agreement by the Loan Parties, the Administrative Agent and the Lenders shall constitute a contract between them for the uses and purposes set forth in the Loan Documents, as amended by this Agreement, and this Agreement may be executed in any number of counterparts, with each executed counterpart constituting an original and all counterparts together constituting one agreement. A signature delivered by facsimile shall constitute an original.

SECTION 4.     Effectiveness. This Agreement shall become effective upon the execution hereof by the Loan Parties and the Administrative Agent for itself and at the direction and on behalf of each of the Lenders and that certain Amendment No. 1 to Warrant and Registration Rights Agreement, dated the date hereof.

SECTION 5.     Expenses. The Loan Parties shall pay the reasonable fees and expenses of the Administrative Agent in connection with this Agreement, including the reasonable fees and expenses of counsel to the Administrative Agent.

[END OF TEXT]

3

[SIGNATURE PAGE TO CONSENT AND RELEASE]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.

LOAN PARTIES:

TOWERSTREAM CORPORATION, a Delaware

corporation

By:  /s/ Philip Urso                                                                         

        Name: Philip Urso
        Title: Sole Officer

TOWERSTREAM I, INC., a Delaware corporation

By:  /s/ Philip Urso                                                                          

       Name: Philip Urso
       Title: Interim CEO

HETNETS TOWER CORPORATION, a Delaware

corporation

By:  /s/ Philip Urso                                                                          

       Name: Philip Urso
       Title: Sole Officer

ALPHA COMMUNICATIONS CORP., a Delaware

corporation

By:  /s/ Philip Urso                                                                          

       Name: Philip Urso
       Title: Sole Officer

OMEGA COMMUNICATIONS CORP., a Delaware

corporation

By:  /s/ Philip Urso                                                                          

       Name: Philip Urso
       Title: Sole Officer

TOWERSTREAM HOUSTON, INC., a Texas corporation

By:  /s/ Philip Urso                                                                          

       Name: Philip Urso
       Title: Sole Officer          

4

ADMINISTRATIVE AGENT:

MELODY BUSINESS FINANCE, LLC, a

Delaware limited liability company

By: /s/ C. Andres Scaminaci                                     

       Name: C. Andres Scaminaci
       Title: Authorized Signatory

LENDERS:

MELODY BUSINESS FINANCE, LLC, a

Delaware limited liability company at the

direction and on behalf of the Lenders

By: /s/ C. Andres Scaminaci                                     

       Name: C. Andres Scaminaci
       Title: Authorized Signatory

5

Exhibit A

TWC Assets

The “TWC Assets” shall consist of the “Assets” (as defined in Section 1.1.1 of the Asset Purchase Agreement) purchased by Buyer from Parent and Company pursuant to the Asset Purchase Agreement but specifically excluding the “Excluded Assets” (as defined in Section 1.2 of the Asset Purchase Agreement).

Capitalized terms used and not defined in this Exhibit A have the meanings ascribed to such terms in the Asset Purchase Agreement, dated as of March ___, 2016, among Towerstream I, Inc., Towerstream Corporation, and Time Warner Cable Enterprises LLC (the “Asset Purchase Agreement”).

6

Exhibit B

Form of Asset Purchase Agreement

 7

EX-10.7

Exhibit 10.7

AMENDMENT NO.1 TO WARRANT AND REGISTRATION RIGHTS AGREEMENT

This Amendment No. 1 to Warrant and Registration Rights Agreement (this “Amendment”), dated as of March 9, 2016, is entered into by and among Towerstream Corporation (“Towerstream”), and Melody Business Finance LLC (“Melody”) in its capacity as Agent. Capitalized terms that are not otherwise defined herein shall have their defined meanings under the Warrant and Registration Rights Agreement, dated as of October 16, 2014, by and among Towerstream and the Warrant Holders thereto (the “Registration Rights Agreement”)

WITNESSETH:

WHEREAS, Melody has been designated as the Agent for the Warrant Holders under the Registration Rights Agreement;

WHEREAS, Towerstream and Melody, as Agent for the Warrant Holders, desire to amend the Registration Rights Agreement as more particularly set forth below;

NOW, THEREFORE, in consideration of the covenants and mutual promises contained herein and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged and intending to be legally bound hereby, the parties agree as follows:

SECTION 1.     Amendments.

1.1     Registrable Securities. The definition of “Registrable Securities” is hereby amended by deleting clause (ii) therein and replacing such clause with the following:

“(ii) [Reserved]”

1.2     Required Registration Date. The definition of “Required Registration Date” is hereby amended to mean December 31, 2016 and Section 4.01(a) is hereby amended and restated in its entirety to read as follows:

“(a) Subject to the provisions hereof, on or before the Required Registration Date, the Company shall (i) file a Registration Statement (which shall be a “shelf” Registration Statement under Rule 415 promulgated under the Securities Act registering for resale all Registrable Securities) (such Registration Statement, a “Required Registration Statement”) and (ii) cause such Required Registration Statement to be declared effective by the SEC. If permitted under the Securities Act, such Required Registration Statement shall be one that is automatically effective upon filing.”

1.3     Liquidated Damages. Section 4.01(g) and Section 4.01(h) are hereby amended and restated in its entirety to read as follows:

“(g) [Reserved]”

“(h) [Reserved]”

1.4     Cashless Exercise. Section 4.01(f) is hereby amended and restated in its entirety to read as follows”

“At any time any Holder who desires to exercise a Warrant may do so by surrendering a number of Warrants (or fractional portions thereof) having a value equal to the Exercise Price (a ‘Cashless Exercise’) if the then Fair Market Value of a share of Common Stock exceeds the Exercise Price. The value of Warrants so surrendered for exercise in a Cashless Exercise shall be equal to the Fair Market Value, at the time of such surrender, of that number of shares of Common Stock into which such Warrant is then exercisable with respect to such exercise, less the aggregate Exercise Price of such exercised Warrants.”

1.5     Demand Registration Statement. Section 4.01 is hereby amended by inserting therein a new Section 4.01(i) which shall read as follows:

“(i) In the event that (i) the required Registration Statement is not effective with the SEC (or the Underlying Stock is not Listed on the Company’s Principal Market) as at the Required Registration Date or (ii) at any time after the Required Registration Date the required Registration Statement is not effective with the SEC (or the Underlying Stock is not then Listed for trading), then from time to time thereafter at the request of the Agent, the Company shall use its reasonable best efforts to prepare and file with the SEC, and cause to become effective, one or more Registration Statements for at least 33% of the Registrable Securities then beneficially owned by the Warrant Holders.”

1.6     Limitation of Amendments. The amendments set forth in this Section 1 are effective solely for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to be a consent to any amendment, waiver or modification of any other term or condition of the Registration Rights Agreement. Except as herein amended, the Registration Rights Agreement is hereby ratified and confirmed and shall remain in full force and effect.

SECTION 2.      Representations and Warranties. To induce the Agent to enter into this Agreement on behalf of the Warrant Holders, Towerstream hereby represents and warrants to the Agent and the Warrant Holders as follows:

2.1     Towerstream has the power and authority to execute and deliver this Amendment and to perform its obligations under Registration Rights Agreement, as amended by this Amendment;

2.3     The execution and delivery by Towerstream of this Amendment and the performance by Towerstream of its obligations under Registration Rights Agreement, as amended by this Amendment, have been duly authorized;

2.4     The execution and delivery by Towerstream and the performance by Towerstream of its obligations under the Registration Rights Agreement, as amended by this Amendment, do not and will not contravene (i) any law or regulation binding on or affecting Towerstream, (ii) any contractual restriction with a person binding on Towerstream, (iii) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Towerstream, or (iv) the organizational documents of Towerstream;

2.5     The execution and delivery by Towerstream of this Amendment and the performance by Towerstream of its obligations under the Registration Rights Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on Towerstream, except as already has been obtained or made;

2.6     This Amendment has been duly executed and delivered by Towerstream and is the binding obligation of Towerstream, enforceable against Towerstream in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights.

SECTION 3.      Counterparts This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and shall be binding upon all parties, their successors and assigns, and all of which taken together shall constitute one and the same Amendment. A signature delivered by facsimile shall constitute an original.

[Signature Page Follows]

[SIGNATURE PAGE TO AMENDMENT TO REGISTRATION RIGHTS AGREEMENT]

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date set forth above.

TOWERSTREAM CORPORATION, a Delaware

corporation

By: /s/ Philip Urso                                                          

       Name: Philip Urso
       Title: Interim CEO

MELODY BUSINESS FINANCE, LLC, a

Delaware limited liability company as Agent

at the direction and on behalf of the Warrant

Holders

By: /s/ C. Andres Scaminaci                                         

       Name: C. Andres Scaminaci
       Title: Authorized Signatory

EX-99.1

Exhibit 99.1

TOWERSTREAM CORPORATION AND SUBSIDIARIES

PRO FORMA CONSOLIDATED BALANCE SHEETS

	As Reported September 30, 2015 (unaudited)(a)			Pro Forma Adjustments			Pro Forma September 30, 2015
Assets
Current Assets
Cash and cash equivalents	$	20,308,551		$	690,278		$	20,998,829
Accounts receivable, net		959,057			(458,300	)		500,757
Prepaid expenses and other current assets		1,169,648			-			1,169,648
Total Current Assets		22,437,256			231,978			22,669,234
Property and equipment, net		30,040,784			(3,288,660	)		26,752,124
Intangible assets, net		1,905,654			3,288,660			5,194,314
Goodwill		1,674,281			-			1,674,281
Other assets		3,200,142			(231,978	)		2,968,164
Total Assets	$	59,258,117		$	-		$	59,258,117
Liabilities and Stockholders’ Equity
Current Liabilities
Accounts payable	$	1,005,813		$	-		$	1,005,813
Accrued expenses		2,470,314			-			2,470,314
Deferred revenues		1,233,981			-			1,233,981
Current maturities of capital lease obligations		998,986			-			998,986
Other		63,040			-			63,040
Total Current Liabilities		5,772,134			-			5,772,134
Long-Term Liabilities
Long-term debt, net of debt discount of $2,316,486		34,060,563			-			34,060,563
Capital lease obligations, net of current maturities		1,183,172			-			1,183,172
Other		1,916,694			-			1,916,694
Total Long-Term Liabilities		37,160,429			-			37,160,429
Total Liabilities		42,932,563			-			42,932,563
Stockholders' Equity
Common stock		66,778			-			66,778
Additional paid-in-capital		158,278,008			-			158,278,008
Accumulated deficit		(142,019,232	)		-			(142,019,232	)
Total Stockholders' Equity		16,325,554			-			16,325,554
Total Liabilities and Stockholders' Equity	$	59,258,117		$	-		$	59,258,117

(a) As reported in the Company’s 10-Q for the nine months ended September 30, 2015, as filed on November 9, 2015. 

TOWERSTREAM CORPORATION AND SUBSIDIARIES

PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS

For the Nine Months Ended September 30, 2015

	As Reported(a)			Pro Forma Adjustments			Pro Forma
Revenues	$	23,614,519		$	(850,200	)	$	22,764,319
Operating Expenses
Cost of revenues (exclusive of depreciation)		18,906,738			(5,179,914	)		13,726,824
Depreciation and amortization		10,224,131			(1,125,948	)		9,098,183
Customer support services		3,884,506			-			3,884,506
Sales and marketing		4,390,560			-			4,390,560
General and administrative		7,491,513			-			7,491,513
Total Operating Expenses		44,897,448			(6,305,862	)		38,591,586
Operating (Loss) Income		(21,282,929	)		5,455,662			(15,827,267	)
Other Income/(Expense)
Interest expense, net		(5,000,374	)		-			(5,000,374	)
Total Other Income/(Expense)		(5,000,374	)		-			(5,000,374	)
Net (Loss) Income	$	(26,283,303	)	$	5,455,662		$	(20,827,641	)
Net (Loss) Income per share – basic and diluted	$	(0.39	)	$	0.08		$	(0.31	)
Weighted average common shares outstanding – basic and diluted		67,916,211			67,916,211			67,916,211

(a) As reported in the Company’s 10-Q for the nine months ended September 30, 2015, as filed on November 9, 2015. 

TOWERSTREAM CORPORATION AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS

For the Year Ended December 31, 2014

	As Reported(b)			Pro Forma Adjustments			Pro Forma
Revenues	$	33,036,153		$	(996,600	)	$	32,039,553
Operating Expenses
Cost of revenues (exclusive of depreciation)		24,520,028			(6,065,586	)		18,454,442
Depreciation and amortization		13,639,415			235,937			13,875,352
Customer support services		4,796,038			-			4,796,038
Sales and marketing		5,570,191			-			5,570,191
General and administrative		10,336,504			-			10,336,504
Total Operating Expenses		58,862,176			(5,829,649	)		53,032,527
Operating (Loss) Income		(25,826,023	)		4,833,049			(20,992,974	)
Other Income/(Expense)
Interest expense, net		(1,672,846	)		-			(1,672,846	)
Other income (expense) net		(14,349	)		-			(14,349	)
Total Other Income/(Expense)		(1,687,195	)		-			(1,687,195	)
(Loss) income before income taxes		(27,513,218	)		4,833,049			(22,680,169	)
Provision for income taxes		(78,532	)		-			(78,532	)
Net (Loss) Income	$	(27,591,750	)	$	4,833,049		$	(22,758,701	)
Net (loss) income per share – basic and diluted	$	(0.41	)	$	0.07		$	(0.34	)
Weighted average common shares outstanding – basic and diluted		66,803,767			66,803,767			66,803,767

(b) As reported in the Company’s 10-K for the fiscal year ended December 31, 2014, as filed on March 12, 2015. 

TOWERSTREAM CORPORATION AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS

For the Year Ended December 31, 2013

	As Reported(b)			Pro Forma Adjustments			Pro Forma
Revenues	$	33,433,284		$	239,000		$	33,672,284
Operating Expenses
Cost of revenues (exclusive of depreciation)		21,854,163			(4,604,024	)		17,250,139
Depreciation and amortization		15,351,441			75,998			15,427,439
Customer support services		4,883,219			-			4,883,219
Sales and marketing		5,779,500			-			5,779,500
General and administrative		11,033,057			-			11,033,057
Total Operating Expenses		58,901,380			(4,528,026	)		54,373,354
Operating Loss		(25,468,096	)		4,767,026			(20,701,070	)
Other Income/(Expense)
Interest expense, net		(217,741	)		-			(217,741	)
Gain on business acquisition		1,004,099			-			1,004,099
Other income (expense) net		(15,020	)		-			(15,020	)
Total Other Income/(Expense)		771,338			-			771,338
(Loss) income before income taxes		(24,696,758	)		4,767,026			(19,929,732	)
Provision for income taxes		(78,531	)		-			(78,531	)
Net (Loss) Income	$	(24,775,289	)	$	4,767,026		$	(20,008,263	)
Net (loss) income per share – basic and diluted	$	(0.38	)	$	0.07		$	(0.31	)
Weighted average common shares outstanding – basic and diluted		65,181,310			65,181,310			65,181,310

(b) As reported in the Company’s 10-K for the fiscal year ended December 31, 2014, as filed on March 12, 2015. 

TOWERSTREAM CORPORATION AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS

For the Year Ended December 31, 2012

	As Reported(b)			Pro Forma Adjustments			Pro Forma
Revenues	$	32,279,430		$	662,400		$	32,941,830
Operating Expenses
Cost of revenues (exclusive of depreciation)		15,376,136			(2,723,205	)		12,652,931
Depreciation and amortization		13,634,294			47,030			13,681,324
Customer support services		5,712,463			-			5,712,463
Sales and marketing		6,134,020			-			6,134,020
General and administrative		12,168,183			-			12,168,183
Total Operating Expenses		53,025,096			(2,676,175	)		50,348,921
Operating Loss		(20,745,666	)		3,338,575			(17,407,091	)
Other Income/(Expense)
Interest expense, net		(63,714	)		-			(63,714	)
Gain on business acquisition		(40,079	)		-			(40,079	)
Other income (expense) net		(13,860	)		-			(13,860	)
Total Other Income/(Expense)		(117,653	)		-			(117,653	)
(Loss) income before income taxes		(20,863,319	)		3,338,575			(17,524,744	)
Provision for income taxes		(126,256	)		-			(126,256	)
Net (Loss) Income	$	(20,989,575	)	$	3,338,575		$	(17,651,000	)
Net (loss) income per share – basic and diluted	$	(0.39	)	$	0.06		$	(0.32	)
Weighted average common shares outstanding – basic and diluted		54,434,173			54,434,173			54,434,173

(b) As reported in the Company’s 10-K for the fiscal year ended December 31, 2014, as filed on March 12, 2015. 

Notes to Pro Forma Financial Statements

Towerstream Corporation

For the Nine Months Ended September 30, 2015 and Years Ended December 31, 2014, December 31, 2013 and December 31, 2012

Note 1 – Pro Forma Condensed Consolidated Balance Sheets Adjustments

The following adjustments to the consolidated balance sheet as of September 30, 2015 reflect the transfer of certain assets, the transfer of certain lease agreements, the termination of an existing service agreement and the execution of a new service agreement pursuant to the Asset Purchase Agreement dated March 9, 2016.

Cash and cash equivalents	(a)	$	690,278
Accounts receivable	(b)	$	(458,300	)
Property and equipment, net	(c)	$	(3,288,660	)
Intangible assets, net	(d)	$	3,288,660
Other assets	(e)	$	(231,978	)

(a) Represents cash receipts from receivables and security deposits from Time Warner Cable ("TWC").

(b) Represents payment of receivables by TWC related to internet access agreement.

(c) Represents net book value of property and equipment sold to TWC.

(d) Represents the carrying value of the backhaul agreement with TWC as of September 30, 2015.

(e) Represents reimbursement for security deposits on lease agreements to be assumed by TWC.

Note 2 – Pro Forma Condensed Consolidated Statements of Operations Adjustment

Pro Forma condensed consolidated statements of operations for the nine months ended September 30, 2015 and for the years ended December 31, 2014, 2013 and 2012, assume that the Asset Purchase Agreement was entered into on December 31, 2011.

	Revenue Adjustments
	Backhaul		Internet Access			Pro Forma
	Agreement (a)		Agreement (b)			Adjustment, net
Period
Nine months ended September 30, 2015	$	1,213,200	$	(2,063,400	)	$	(850,200	)
Year ended December 31, 2014	$	1,420,800	$	(2,417,400	)	$	(996,600	)
Year ended December 31, 2013	$	1,070,400	$	(831,400	)	$	239,000
Year ended December 31, 2012	$	662,400	$	-		$	662,400

			Depreciation & Amortization
	Cost of		Property &		Intangible			Pro Forma
	Revenues (c)		Equipment (d)		Assets (e)			Adjustment, net
Period
Nine months ended September 30, 2015	$	5,179,914	$	1,125,948	$	-		$	1,125,948
Year ended December 31, 2014	$	6,065,586	$	1,319,923	$	(1,555,860	)	$	(235,937	)
Year ended December 31, 2013	$	4,604,024	$	994,402	$	(1,070,400	)	$	(75,998	)
Year ended December 31, 2012	$	2,723,205	$	615,370	$	(662,400	)	$	(47,030	)

(a) Represents revenue that would have been generated if the backhaul agreement had been entered into as of January 1, 2012 based on the number of locations connected during the periods presented above. The backhaul agreement has an initial term of three years and is subject to renewal for two successive one-year periods. The Company expects that the backhaul agreement will continue for at least the periods presented above.

(b) Represents revenue that would not have been generated if the internet access agreement had been terminated as of January 1, 2012.

(c) Represents rooftop rent expense that would not have been incurred if the Asset Purchase Agreement had been entered into as of January 1, 2012.

(d) Represents depreciation expense that would not have been incurred if the Asset Purchase Agreement had been entered into as of January 1, 2012.

(e) Represents amortization for the backhaul agreement over the initial term of the agreement that would have been recognized if the Asset Purchase Agreement had been entered into as of January 1, 2012.