EXHIBIT 10.23
XXXX OF SALE AND AGREEMENT
Dated as of January 31, 1997
The parties to this agreement are SCCGS, Inc., a Tennessee corporation
("Seller"); Sirrom Capital Corporation, a Tennessee corporation and the owner of
all of the outstanding stock of Seller ("Sirrom"); Campus Voice, L.L.C., a
Delaware limited liability company ("Campus Voice"); and Network Event Theater,
Inc., a Delaware corporation and a member of Campus Voice ("NET").
On December 20, 1996 Seller acquired at a foreclosure sale
substantially all of the assets of Gates Communications, L.P., a Virginia
limited partnership ("Gates"), in satisfaction of certain debt of Gates to
Sirrom. Prior to the foreclosure, Gates derived its revenue from advertisers who
paid Gates to place on its wallboard network at colleges and universities large
or giant advertising boards that promote the advertisers' products and services,
and since the foreclosure, Seller has utilized the assets acquired from Gates to
engage in a similar business (the business previously engaged in by Gates and
the similar business conducted by Seller since the foreclosure being
collectively referred to as the "Business"). The parties have agreed upon the
sale by Seller to Campus Voice of all of the assets acquired by Seller from
Gates and all of the assets acquired by Seller in connection with its conduct of
the Business since December 20, 1996, on the terms set forth in this agreement.
Simultaneously with the execution of this agreement, Sirrom
Investments, Inc. and Campus Voice are entering into a loan agreement which
provides that Sirrom Investments, Inc. will lend to Campus Voice, from time to
time as requested by Campus Voice, working capital of up to $660,000 and Campus
Voice is issuing and delivering to Sirrom Investments, Inc. its secured
promissory note (the "Senior Secured Note") in that amount due December 31,
1999, bearing interest at the rate of 8% a year payable monthly, and subject to
prepayment as provided in this agreement and in the note.
It is agreed as follows:
1. Sale and Transfer of Assets.
1.1 Assets to be Sold. Seller hereby sells and assigns to Campus
Voice, and Campus Voice purchases and acquires from Seller, all of the assets
previously owned by Gates that were acquired by Seller at the foreclosure sale
held on December 20, 1996 and all of the assets acquired by Seller in connection
with the operation of the Business since December 20, 1996, including, to the
extent Gates had an interest therein as of December 20, 1996, all of Gates's
equipment of any kind and description, wherever located, together with all
parts, accessories and attachments, all of Gates's inventory and any agreements
for lease of same and rentals therefrom, and all of Gates's accounts, accounts
receivable, contract rights, chattel paper, software,
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documents, instruments and general intangibles and the proceeds therefrom
wherever located, and whether held for sale or lease, or furnished or to be
furnished under contracts of service; and all of Gates's trademarks, patents and
copyrights and related interests, all to the full extent that they are within
the scope of Article 9 of the Uniform Commercial Code as adopted in Tennessee,
and, additionally, to the extent acquired by Seller or otherwise arising in the
operation of the Business by Seller after December 20, 1996, all of the
following assets (the assets being acquired from Seller being collectively
referred to below as the "Assets"):
(a) all tangible assets, wherever located, including poster
board frames, poster board kiosks, fixtures and related equipment; inventory and
work in process; photographs, art work, promotional materials and archives;
equipment (including office and computer equipment) and furniture; and office
supplies, stationery, forms, and labels;
(b) all computer software and all rights in the trademarks,
trade names and logos (including registrations and applications for registration
of any of them) used by Gates or Seller in connection with the Business,
including those listed on schedule 1.1(b), together with the good will of the
business associated with those trademarks, trade names and logos; all rights in
copyrights (including registrations and applications for registration of any
copyrights); and all other intangible property and proprietary rights relating
to the Business;
(c) all rights under agreements, commitments and orders
relating to the Business, to the extent that they remain unperformed or
unfulfilled on, or by their terms continue after, the date of this agreement,
including, but not limited to all agreements with schools, advertisers,
subcontractors and suppliers, and all agreements, commitments and orders
relating to the distribution of posters;
(d) all records, files, mailing lists, customer lists and
other information and data relating to the Business, including all records
relating to agreements and commitments relating to postering activities;
(e) all prepaid expenses relating to the Business;
(f) all claims against third parties arising out of the
operation of the Business, including claims under manufacturers and vendors
warranties; and
(g) all accounts receivable arising out of the operation of
the Business.
1.2 Excluded Assets. The following assets acquired by Seller upon
the foreclosure are being retained by Seller and are not being sold, assigned or
transferred to Campus Voice:
(a) all cash, all cash investments, all other notes
receivable, all certificates of deposit, deposits, commercial paper, treasury
bills and notes, money market accounts and other marketable securities and all
other investments; and
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(b) all rights under any agreement, commitment or order
referred to on exhibit 1.2 and under any agreement, commitment or order as to
which consent to assignment is required but has not been obtained.
2. Purchase Price.
2.1 Amount and Payment of Consideration. As full consideration
for the assets to be purchased by Campus Voice pursuant to this agreement:
(a) upon execution of this agreement Campus Voice is
delivering to Seller (i) its secured promissory note in the principal amount of
$300,000 due December 31, 2006 and bearing interest at the rate of 12% a year,
in the form of exhibit 2.1(a)(i) (the "Junior Secured Note"), and (ii) its
secured promissory note in the principal amount of $1,263,222.83 due December
31, 2006 and also bearing interest at the rate of 12% a year, in the form of
exhibit 2.1(a)(ii) (the "Second Junior Secured Note"); and
(b) Campus Voice hereby assumes, and agrees to pay, perform
and discharge, all obligations under the agreements, commitments and orders
referred to in schedule 2.1(b), to the extent that they remain unperformed or
unfulfilled on, or by their terms continue in effect after, the date of this
agreement.
The parties recognize that the Assets include the rights under
various agreements, commitments and orders to which Gates was a party as of
December 20, 1996 and that, except for agreements, commitments and orders
referred to in schedule 2.1(b), neither Seller nor Campus Voice has assumed
liability for the performance of any of those agreements, commitments and
orders.
2.2 Mandatory Prepayment of Notes; Payment of Expenses. Campus
Voice shall make prepayments upon the promissory notes issued to Seller and to
Sirrom as follows (any such payments to be applied first to accrued interest and
then to principal):
(a) Until payment in full of the Senior Secured Note, all of
Campus Voice's Free Cash Flow (as defined below) in each calendar quarter, less
the amount of any cash flow deficit (calculated in the same manner as Free Cash
Flow) projected by Campus Voice with respect to the immediately succeeding
calendar quarter, shall be allocated to prepayment of the principal of the
Senior Secured Note.
(b) After payment in full of the Senior Secured Note, Campus
Voice's Free Cash Flow in each calendar quarter (subject to adjustment on an
annual basis as provided below) shall be allocated, in sequence, as follows:
(i) 100% to repayment to NET of the expenses incurred
by NET in connection with the negotiation and consummation of the transactions
contemplated by this agreement, up to $80,000;
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(ii) 100% to repayment to Sirrom and Seller of the
expenses incurred by them in connection with the negotiation and consummation of
the transactions contemplated by this agreement (including the expenses of
foreclosing upon the assets of Gates), up to an aggregate of $40,000;
(iii) 60% to payment of interest on, and the principal
of, the Junior Secured Note (the remaining 40% to be allocable to NET); and
(iv) 60% to payment of interest on, and the principal
of, the Second Junior Secured Note (the remaining 40% to be allocable to NET).
As used in this agreement, the term "Free Cash Flow" means with
respect to any period earnings before interest (including interest payments on
capital leases), depreciation and amortization, less all taxes payable by Campus
Voice or NET with respect to the earnings of Campus Voice, interest on
indebtedness of Campus Voice, other than the indebtedness to Sirrom evidenced by
the Junior Secured Note and the Second Junior Secured Note, principal payments
on capital leases, capital expenditures not in excess (on a cumulative basis) of
the capital expenditures referred to in schedule 2.2, and increases in working
capital (working capital being defined for this purpose as the excess of current
assets, excluding cash and marketable securities, over current liabilities). The
quarterly calculation of Free Cash Flow shall be made by Campus Voice in the
same manner that projected Free Cash Flow was determined for the purpose of the
Campus Voice Business Model dated Jamuary 17, 1997 previously furnished to
Sirrom. Campus Voice shall furnish to Sirrom and Seller within 90 days after the
end of each fiscal year audited financial statements and other information
necessary to show the calculation of Free Cash Flow for the fiscal year
determined in accordance with generally accepted accounting principles as
applied in the preparation of Campus Voice's audited financial statements; if as
a result of the audit for any year it is determined that there has been any
overpayment or underpayment of the prepayments for that year, the next
succeeding payment or payments due after receipt of the audit report shall be
adjusted to reflect the amount of the overpayment or underpayment.
The annual determination of Free Cash Flow shall be subject to
review by Sirrom and Seller. If a dispute arises with respect to this
calculation, Sirrom and Seller may engage an independent auditor satisfactory to
Campus Voice to determine Free Cash Flow over the relevant period and, if Free
Cash Flow as determined by the independent auditor exceeds by 10% or more the
amount of Free Cash Flow as determined by Campus Voice, Campus Voice shall pay
the fees and expenses of the auditor; otherwise, Sirrom and Seller shall pay the
fees and expenses of the auditor.
2.3 Time of Prepayments. Any mandatory prepayment due under
section 2.2 shall be made within 45 days after the end of the calendar quarter
to which the payment relates.
2.4 Minimum Prepayments. Campus Voice shall make minimum
prepayments upon the Junior Secured Note and the Second Junior Secured Note at
the times and in the amounts specified in those notes.
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2.5 Additional Consideration. As additional consideration for the
Assets, within ninety days after payment in full of principal of and interest on
the Senior Secured Note, the Junior Secured Note and the Second Junior Secured
Note, Campus Voice shall pay to Seller an additional amount equal to 5% of the
amount by which the value of Campus Voice's assets and business as of the date
of the final payment exceeds the aggregate principal amount of those notes. For
this purpose, the value of Campus Voice's assets and business shall be deemed to
be an amount equal to four times Campus Voice's earnings before interest and
taxes for the twelve month period ended on the last day of the month in which
the final payment is made upon the notes, as determined by Campus Voice's
accountants and set forth in a statement furnished by them to Seller and to
Campus Voice. Campus Voice shall cause its accountants to prepare and deliver
the statement required by this provision. Any dispute as to the amount of
additional consideration shall be resolved in the same manner as a dispute
regarding the calculation of Free Cash Flow.
2.6 Limitation on Assumption of Liabilities. Except as
specifically provided in section 2.1(b), Campus Voice has not assumed and shall
have no responsibility for any liabilities or obligations of Gates, Seller or
Sirrom relating to the operations of the Business, or otherwise, through the
date of this agreement. Seller and Sirrom shall pay, perform and discharge all
liabilities and obligations of the Business that arose after December 20, 1996.
NET shall not have any liability or obligation with respect to the Business and
shall not have any liability or obligation to Seller or Sirrom except for breach
of any warranty or covenant of NET contained in this agreement.
2.7 Apportionment. Seller shall be entitled to all income earned
or accrued and shall be responsible for all liabilities and obligations incurred
or payable in connection with the operations of the Business through the close
of business on the day preceding the date of the closing and Campus Voice shall
be entitled to all income earned or accrued and shall be responsible for all
liabilities and obligations incurred or payable in connection with the
operations of the Business after the close of business on the day preceding the
date of the closing. All overlapping items of income or expense shall be
apportioned between Seller and Campus Voice, as of the close of business on the
day preceding the date of the closing, in accordance with generally accepted
accounting principles. Items to be apportioned include, but are not limited to,
the following:
(a) advance payments received from advertisers prior to the
date of the closing for services to be rendered in whole or in part after the
close of business on the day preceding the closing;
(b) prepaid expenses arising from payments made for services
prior to the date of the closing if all or part of the services have not been
received or used prior to the close of business on the day preceding the closing
(for example, rents paid in advance for a rental period extending beyond the
date of the closing); and
(c) liabilities, customarily accrued, arising from expenses
incurred but unpaid as of the close of business on the day preceding the
closing.
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Within 60 days after the closing, Campus Voice shall
determine all apportionments pursuant to this section 2.7 and shall deliver a
statement of its determinations to Seller (which statement shall set forth in
reasonable detail the basis for those determinations), and within 10 days
thereafter Campus Voice shall pay to Seller, or Sirrom shall cause Seller to pay
to Campus Voice, as the case may be, the net amount due as a result of the
apportionments (or, if there is any dispute, the undisputed amount). If Seller
disputes Campus Voice's determinations, the parties shall confer with regard to
the matter and an appropriate adjustment and payment shall be made as agreed
upon by the parties (or, if they are unable to resolve the matter, a firm of
independent certified public accountants, whose decision on the matter shall be
binding and whose fees and expenses shall be borne 50% by Campus Voice and 50%
by Seller, shall be designated by agreement between them; if they fail to agree,
the accountants shall be selected by the president of the American Arbitration
Association).
3. Closing.
The closing of the transactions provided for in section 1 are
taking place simultaneously with the execution of this agreement at the offices
of Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000. At the closing, the parties are executing and delivering the documents
referred to in section 7. The closing shall be accomplished by remote
circulation of documents to the extent possible.
4. Representations and Warranties by Seller and Sirrom.
Seller and Sirrom jointly and severally represent and warrant to
Campus Voice as follows:
4.1 Seller's and Sirrom's Organization and Authority. Each of
Seller and Sirrom is a corporation duly organized, validly existing and in good
standing under the law of the State of Tennessee and has the full corporate
power and authority to enter into and to perform this agreement and to carry on
its business as it is presently being conducted.
4.2 Authorization of Agreement. The execution, delivery and
performance of this agreement by Seller and Sirrom have been duly authorized by
all necessary corporate action of each of them. Each of Seller and Sirrom has
full right to enter into and perform its obligations under this agreement in
accordance with its terms. This agreement constitutes the valid and binding
obligation of each of Seller and Sirrom and is enforceable against each of them
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3 Consents of Third Parties. The execution, delivery and
performance of this agreement by Seller and Sirrom will not (i) conflict with
the certificate of incorporation or by-laws of Seller or Sirrom and will not
conflict with, or result in the breach or termination of, or constitute a
default under, any lease, agreement, commitment or other instrument, or any
order, judgment or decree, to which Seller or Sirrom is a party or by which
Seller or Sirrom is bound
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or which Seller acquired from Gates upon foreclosure; (ii) constitute a
violation by Seller or Sirrom of any law or regulation applicable to either of
them; or (iii) result in the creation of any lien, charge or encumbrance upon
any of the Assets. No consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority is required on the part
of Seller or Sirrom in connection with the execution, delivery and performance
of this agreement, except for SBA requirements incidental to the closing of the
loan evidenced by the Senior Secured Note.
4.4 Title to Assets. Seller acquired valid title to all of the
Assets in existence on December 20, 1996 at public sale in accordance with the
Uniform Commercial Code (Tennessee), no security interest or other lien has been
placed on the assets since that date, and upon execution of this agreement,
Campus Voice is acquiring valid title to all of the Assets free of the lien of
Seller or Sirrom and any security interest or lien subordinate thereto and free
and clear of any liens or security interests placed against any of the Assets
after December 20, 1996.
4.5 Litigation. To the best of Seller's and Sirrom's knowledge,
there is no claim, litigation, proceeding or governmental investigation pending
or threatened, or any order, injunction or decree outstanding, against or
relating to Seller or the Business or any of the Assets.
4.6 No Misrepresentation.
No representation or warranty by Seller or Sirrom in this
agreement (including the schedules) contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained in this agreement (including the schedules) not misleading. Campus
Voice and NET acknowledge that Seller has operated the business for a short
period of time with a view to temporary operations only and that neither Seller
nor Sirrom has done extensive diligence as to the assets acquired upon
foreclosure or the operations of the Business.
5. Representations and Warranties by Campus Voice and NET. Campus
Voice and NET jointly and severally represent and warrant to Seller and Sirrom
as follows:
5.1 Campus Voice's Organization. Campus Voice is a limited
liability company duly organized, validly existing and in good standing under
the law of the State of Delaware and has the full power under the Delaware
Limited Liability Company Act to enter into and to perform its obligations under
this agreement. NET is a corporation duly organized, validly existing and in
good standing under the law of the State of Delaware and has the full corporate
power to enter into and to perform its obligations under this agreement.
5.2 Authorization of Agreement. The execution, delivery and
performance of this agreement by Campus Voice and NET have been duly authorized
by all requisite action of each of them. This agreement constitutes the valid
and binding obligation of each of Campus Voice and NET, enforceable against each
of them in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
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5.3 Consents of Third Parties. The execution, delivery and
performance of this agreement by Campus Voice and NET will not (i) conflict with
the limited liability company agreement of Campus Voice or the certificate of
incorporation of NET and will not conflict with, result in the breach or
termination of, or constitute a default under, any lease, agreement, commitment
or other instrument, or any order, judgment or decree, to which Campus Voice or
NET is a party by which it is bound, or (ii) constitute a violation by Campus
Voice or NET of any law or regulation applicable to it. No consent, approval or
authorization of, or designation, declaration or filing with, any governmental
authority is required on the part of Campus Voice or NET in connection with the
execution, delivery and performance of this agreement.
5.4 No Misrepresentation. No representation or warranty by Campus
Voice or NET in this agreement contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements contained in
this agreement not misleading.
6. Further Agreements of the Parties.
6.1 Operation of Campus Voice. So long as the Senior Secured Note
is outstanding or any amount is payable to Seller under this agreement or the
notes referred to in section 2.1, Campus Voice shall be operated as a profit
generating enterprise and not for the purpose of enhancing other advertising
activities of NET and its subsidiaries (although (a) there may be activities in
which Campus Voice participates with other activities of NET, in which event
Campus Voice and NET generally shall seek to engage in those activities on terms
that would be comparable to the terms available from a third party on an arm's
length basis and (b) advertising space that remains unsold after diligent effort
may be used by NET for its own promotional purposes). To the extent consistent
with the objective of realizing profits in Campus Voice, Campus Voice's board of
managers may manage Campus Voice's business and affairs (including the
determination of the nature of the products and services to be sold by Campus
Voice and all marketing methods) without regard for the effect of any action
upon Seller or Sirrom and, in the absence of fraud or intentional wrongdoing, no
action or omission relating to Campus Voice's business or affairs shall give
Seller or Sirrom any claim against NET or Campus Voice or any of their
respective officers, directors or members, whether or not that action or
omission affects the amount or timing of the payments to be made by Campus Voice
to Sirrom or Seller.
6.2 Representative on Campus Voice Board. So long as the Senior
Secured Note is outstanding or any amount is payable to Seller under this
agreement or the notes referred to in section 2.1, Seller shall have the right
to designate a representative to attend all board meetings of Campus Voice.
6.3 Expenses. Except as provided in section 2.2, Campus Voice,
NET, Seller and Sirrom shall bear their own respective expenses incurred in
connection with the negotiation and preparation of this agreement and in
connection with the transactions contemplated by this agreement.
6.4 Sales Taxes. Seller shall pay any state or local sales taxes
payable in connection with the sale of assets pursuant to this agreement.
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6.5 Assignment of Agreements. Nothing in this agreement shall be
construed as an attempt to assign any agreement or other instrument that by its
terms is nonassignable without the consent of the other party.
6.6 Covenants Against Disclosure.
(a) Neither Seller nor Sirrom shall at any time hereafter
disclose to anyone, or use in competition with the Business, any information
with respect to any confidential or secret aspect of the Business, except that
they may disclose such information to their professional advisors, regulators
and as otherwise required by law. Information to be treated as confidential
hereunder shall be identified as such by Campus Voice in writing. Information
that is publicly available or which Sirrom acquires from another source shall
not be regarded as confidential.
(b) Seller and Sirrom each acknowledge that the remedy at
law for breach of the provisions of this section 6.6 will be inadequate and
that, in addition to any other remedy Campus Voice may have, it shall be
entitled to an injunction restraining any breach or threatened breach, without
any bond or other security being required and without the necessity of showing
actual damages.
6.7 Bulk Sales. The parties waive compliance with the provisions
of any applicable bulk sales law. Seller and Sirrom jointly and severally shall
indemnify and hold Campus Voice harmless from any loss, liability, damage, cost
or expense (including reasonable attorney's fees and expenses) incurred by
Campus Voice as a result of any liability to which Campus Voice may become
subject because the sale by Seller to Campus Voice is being effected without
compliance with the bulk sales law or any similar statute in any jurisdiction.
6.8 Further Assurances. At any time and from time to time after
the date of this agreement each party shall, without further consideration,
execute and deliver to the other such other instruments of transfer and
assumption and shall take such other action as the other may reasonably request
to carry out the transfer of assets and assumption of liabilities contemplated
by this agreement.
7. Documents Being Delivered at Closing.
7.1 Documents Being Delivered by Seller and Sirrom. At the
closing, Seller and Sirrom are delivering to Campus Voice the following:
(a) such bills of sale, assignments or other instruments of
transfer and assignment as Campus Voice may have requested to confirm the
transfer of title to the Assets to Campus Voice; and
(b) a copy of resolutions of the board of directors and the
stockholders of Seller and of Sirrom authorizing the execution, delivery and
performance of this agreement by Seller and Sirrom, and a certificate of its
secretary or assistant secretary, dated this date, that such resolutions were
duly adopted and are in full force and effect.
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7.2 Documents Being Delivered by Campus Voice. At the closing,
Campus Voice is delivering to Seller the following:
(a) the promissory notes referred to in section 2.1(a);
(b) such instruments as Seller may have requested to confirm
the assumption by Campus Voice of the obligations assumed by it under section
2.1(d);
(c) a copy of resolutions of the board of managers of Campus
Voice authorizing the execution, delivery and performance of this agreement by
Campus Voice, and a certificate of its secretary or assistant secretary, dated
this date, that such resolutions were duly adopted and are in full force and
effect.
(d) such other documents as Sirrom customarily requires in
lending transactions.
8. Survival of Representations and Warranties; Indemnification.
8.1 Survival.
(a) All representations, warranties and agreements by Seller
and Sirrom shall survive the closing notwithstanding any investigation at any
time by or on behalf of Campus Voice. All representations, warranties and
agreements by Campus Voice shall survive the closing notwithstanding any
investigation at any time by or on behalf of Seller or Sirrom.
8.2 Indemnification.
(a) Seller and Sirrom jointly and severally shall indemnify
and hold harmless Campus Voice against all loss, liability, damage or expense
(including reasonable fees and expenses of counsel, whether involving a third
party or between the parties to this agreement) Campus Voice may suffer, sustain
or become subject to as a result of (i) any breach of any warranty, covenant or
other agreement of Seller or Sirrom contained in this agreement, or any false
representation by Seller or Sirrom contained in this agreement, (ii) Seller's
failure to pay, perform or discharge when due any of Seller's obligations,
liabilities, agreements or commitments not expressly assumed by Campus Voice
pursuant to this agreement, or (iii) the failure to comply with any Bulk Sales
Law applicable to the sale of the Assets to be sold to Campus Voice pursuant to
this agreement.
(b) Campus Voice shall indemnify and hold harmless Seller
and Sirrom against all loss, liability, damage or expense (including reasonable
fees and expenses of counsel, whether involving a third party or between the
parties to this agreement) Seller or Sirrom may suffer, sustain or become
subject to as a result of (i) any breach of any warranty, covenant or other
agreement of Campus Voice contained in this agreement or any false
representation by Campus Voice contained in this agreement, (ii) Campus Voice's
failure to pay, perform and discharge when due any of Seller's agreements,
commitments or orders expressly assumed by Campus Voice pursuant to this
agreement, or (iii) any liability or obligation arising out of the operations of
the
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Business after the date of this agreement. NET shall indemnify and hold harmless
Seller and Sirrom against all loss, liability, damage or expense (including
reasonable fees and expenses of counsel, whether involving a third party or
between the parties to this agreement) Seller or Sirrom may suffer, sustain or
become subject to as a result of any breach of any warranty, covenant or other
agreement of NET contained in this agreement or any false representation by NET
contained in this agreement
8.3 Notices of Claims. None of the parties to this agreement
shall be liable for misrepresentation or breach of warranty except to the extent
that notice of a claim is asserted by another party in writing and delivered
within two years after the date of this agreement.
8.4 Defense of Claims. If any third party claim is made against
Seller or Campus Voice that, if sustained, would give rise to a liability of the
other party, the party against whom the claim is made shall promptly cause
notice of the claim to be delivered to the other party and shall afford the
other party and its counsel, at the other party's sole expense, the opportunity
to join in defending or compromising the claim.
9. Miscellaneous.
9.1 Finders. The parties represent and warrant that they have not
employed or utilized the services of any broker or finder in connection with
this agreement or the transactions contemplated by it.
9.2 Entire Agreement. This agreement and the other agreements and
instruments being executed and delivered simultaneously with the execution of
this agreement contain, and are intended as, a complete statement of all of the
terms of the arrangements between the parties with respect to the matters
provided for, supersede any previous agreements and understandings between the
parties with respect to those matters, and cannot be changed or terminated
orally. Except as specifically set forth in this agreement or in the other
agreements and instruments being executed and delivered simultaneously with the
execution of this agreement, there are no representations or warranties by any
party in connection with the transactions contemplated by this agreement.
9.3 Governing Law. This agreement shall be governed by and
construed in accordance with the law of the State of New York applicable to
agreements made and to be performed in New York.
9.4 Headings. The section headings of this agreement are for
reference purposes only and are to be given no effect in the construction or
interpretation of this agreement.
9.5 Notices. All notices and other communications under this
agreement shall be in writing and shall be deemed given when delivered
personally or mailed by registered mail, return receipt requested, to the
parties at the following addresses (or to such other address as a party may have
specified by notice given to the other party pursuant to this provision):
(a) If to Seller or Sirrom, addressed to it at:
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Xxxxxx Xxxxxxxxxxx, Inc.
Xxxxx 000
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telecopy No.: 000-000-0000
with a copy to:
Boult, Cummings, Xxxxxxx & Xxxxx PLC
Suite 1600
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx III
Telecopy No.: 000-000-0000
(b) If to Campus Voice or NET, addressed to it at:
Network Event Theater, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Don Leeds, President
Telecopy No.: 212:779-3241
with a copy to:
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.: 000-000-0000
9.6 Waiver. Any party may waive compliance by another with any of
the provisions of this agreement. No waiver of any provision shall be construed
as a waiver of any other provision. Any waiver must be in writing and must be
signed by the party waiving any provision hereof.
9.7 Jurisdiction. The courts of the State of New York in New York
County and the United States District Court for the Southern District of New
York and the courts of Tennessee and the United States District Court for the
Middle District of Tennessee shall have jurisdiction over the parties with
respect to any dispute or controversy among them arising under or in connection
with this agreement and, by execution and delivery of this agreement,
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each of the parties to this agreement submits to the jurisdiction of those
courts, including, but not limited to, the in personam and subject matter
jurisdiction of those courts, waives any objection to such jurisdiction on the
grounds of venue or forum non conveniens, the absence of in personam or subject
matter jurisdiction and any similar grounds, consents to service of process by
mail (in accordance with section 9.5) or any other manner permitted by law, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this agreement. These consents to jurisdiction shall not be deemed to
confer rights on any person other than the parties to this agreement.
SCCGS, Inc.
By /s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
Sirrom Capital Corporation
By /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
Campus Voice, L.L.C.
By /s/ Xxxxx X. Xxxxxx
----------------------------
Secretary
Network Event Theater, Inc.
By /s/ Xxxxx X. Xxxxxx
----------------------------
EVP/CFO
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