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EXHIBIT 6.15.3
AMENDED AND RESTATED ASSUMPTION AGREEMENT
This Assumption Agreement ("Agreement") made as of the 30th day of
September, 1998, by and between Miracom Corporation, a Nevada Corporation
("Buyer") and MTV Pinnacle Advertising Group, Inc., a Florida corporation
("MTV").
W I T N E S S E T H:
WHEREAS, MTV has agreed to sell all of the assets and business
(including all of the liabilities) of MTV to Buyer by Agreement dated September
29, 1998 and amendment thereto dated of even date herewith (altogether, the
"Purchase Agreement"); and
WHEREAS, Buyer has agreed to assume all of the liabilities of MTV's
business subject to the terms and conditions of the Purchase Agreement, which
liabilities shall hereinafter be referred to as the "Assumed Liabilities."
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. ASSUMPTION. Buyer hereby assumes the Assumed Liabilities as defined
herein.
2. INDEMNIFICATION. Buyer hereby agrees to release, indemnity, hold
harmless and defend MTV, its officers and directors of and from any and all
claims, demands, actions, suits, causes of action, obligations, controversies,
debts, costs, expenses, damages, judgments, lawsuits and liabilities of whatever
kind or nature, in law, equity or otherwise, including but not limited to
reasonable counsel fees (at trial and appellate levels) arising out of or in
connection with:
a. The breach of covenant, representation or warranty made by
Buyer in the Purchase Agreement and all documents executed in connection
therewith; or
b. The Assumed Liabilities as defined herein; or
c. Any action, inaction, misfeasance or malfeasance of Buyer
attributable to the period of time beginning after the Cut Off Time (as defined
in the Purchase Agreement).
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3. LIMITATION ON MTV. MTV shall not make a claim for indemnity in an
amount less than Two Thousand Five Hundred ($2,500.00) in the aggregate. The
obligation of Buyer shall not exceed in the aggregate the amount of the Assumed
Liabilities. Indemnification shall be subject to CONDITIONS OF INDEMNIFICATION,
Paragraph 15 of the Purchase Agreement.
4. MISCELLANEOUS PROVISIONS.
a. ATTORNEY'S FEES. In the event of litigation arising out of
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees and costs at trail and appellate levels.
b. NOTICES. All notices required to be given under this
Agreement shall be in writing, sent by certified mail, return receipt requested,
postage prepaid, to the following addresses:
1. If to the Buyer, then: Miracom Corporation
0000 Xxxxxx Xxxxxx Xxxxx Xxxx.
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
2. With a copy to:
3. If to MTV, then: c/o Xxxxxxx Xxxxx
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
and
Xxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
4. With a copy to:
The foregoing addresses may be changed to any of the
aforesaid persons, and additional persons may be added thereto by notifying all
of the other parties hereto in writing and in the manner hereinabove set forth.
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c. GOVERNING LAW: The laws of the State of Florida shall
govern the interpretation and enforcement of this Agreement.
d. MODIFICATION AND WAIVER. No provision of this Agreement
shall be amended, waived or modified except by an instrument in writing signed
by the parties hereto.
e. MATERIALITY. All covenants, agreements, representations and
warranties made herein shall be deemed to have been material and relied upon by
each party and shall survive the execution and delivery of this Agreement.
f. HEADINGS. All sections and headings of this Agreement are
inserted for convenience only, and shall not affect the construction or
interpretation hereof.
g. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which, when executed and delivered, shall be an
original, but all counterparts shall together constitute one and the same
instrument.
h. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof and
supersedes and replaces in its entirety any other assumption agreement executed
by Buyer and MTV in connection with the subject matter hereof.
i. SEVERABILITY. Inapplicability or unenforceability of any
provision of this Agreement or any instrument executed and delivered pursuant
thereto shall not limit or impair the operation or validity of any other
provision of this Agreement or any other such instrument.
j. WAIVER OF DEFAULTS. The waiver by any party of any breach
or default by any other party under any of the terms of this Agreement, shall
not be deemed to be, nor shall the same constitute a waiver of any subsequent
breach or default on the party of any other party.
k. INTERPRETATION OF AGREEMENT. This Agreement has been
negotiated by each of the parties both as to its substance and as to its form.
There shall not be applied a rule of law or rule of construction whereby this
Agreement or any of the terms or provisions hereof shall be construed in favor
of or against wither party by reason of the stationery upon which it was
finalized or the attorney for the party by whom it was prepared. The language of
this Agreement shall be construed according to its fair meaning and not strictly
for or against either party.
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l. CONSTRUCTION OF AGREEMENT. All words in this Agreement
refer to whatever number or gender the context requires; if more than one party
or person is referred to, their obligations and liabilities shall be joint and
several. All the terms and words used in this Agreement, regardless of the
number and gender in which they are used, shall be deemed and construed to
include any other number (singular or plural) or any other gender (masculine,
feminine or neuter) as the context or sense of this Agreement, or any section or
clause hereof may require. The locative adverbs "herein," "hereunder," "hereto,"
"hereinafter" and the like words wherever the same appear therein, mean and
refer to this Agreement in its entirety and not to any specific paragraph,
section or subsection hereof unless otherwise expressly designated in context.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
IN THE PRESENCE OF:
(As to MTV) MTV Pinnacle Advertising Group, Inc.
/s/ By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
(As to Buyer) MIRACOM CORPORATION
/s/ By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, President
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