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EXHIBIT 10.6
TAX ALLOCATION AND
INDEMNIFICATION AGREEMENT
This Tax Allocation and Indemnification Agreement (the
"Agreement"), effective as of the 30th day of September, 1996, by and between
XXX ENTERPRISES, INC., a Delaware corporation ("CEI"), and XXX RADIO, INC.
(formerly WIOD, Inc.), a Delaware corporation ("CRI"), each with its principal
office located at 0000 Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000.
RECITALS
WHEREAS, CRI has effected a public offering of its shares
(the "Public Offering") on the date hereof, with the result that members of the
public acquired shares of the stock of CRI, and effective as of this date CRI
is no longer an indirect wholly-owned subsidiary of CEI; and
WHEREAS, the parties have determined that subsequent to the
Public Offering CRI will no longer be a member of the Consolidated Group (as
defined below); and
WHEREAS, CEI and CRI desire to set forth their agreement with
respect to the allocation of taxes for taxable periods prior to the Public
Offering Date for which CRI files its Tax Returns as a member of the
Consolidated Group;
NOW THEREFORE, in consideration of the mutual promises,
covenants and agreements contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and the plural forms of the terms defined):
"Affiliate" means any corporation which is a member of
the Consolidated Group.
"CEI Affiliate" means any corporation which is a member of
the Consolidated Group (including CEI) and which is not a member of the CRI
Group.
"CEI Group" means CEI and the other CEI Affiliates.
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor thereto, as in effect for the taxable period in question.
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"Consolidated Group" means the affiliated group of
corporations of which CEI is the common parent (within the meaning of Section
1504 of the Code), and any other corporations which may become members of such
affiliated group.
"CRI Affiliate" means any corporation which is a member of
the CRI Group (including CRI).
"CRI Group" means the group of corporations (including CRI)
of which CRI is the common parent (within the meaning of section 1504 of the
Code) immediately after the Public Offering, and any other corporations which
may become members of such affiliated group.
"Final Determination" means the final resolution of liability
for any Tax for a taxable period, including any related interest or penalties,
(i) by Internal Revenue Service Form 870 or 870-AD (or any successor forms
thereto), on the date of acceptance by or on behalf of the Internal Revenue
Service, or by a comparable form under the laws of other jurisdictions, except
that a Form 870 or 870-AD or comparable form that reserves (whether by its
terms or by operation of law) the right of the taxpayer to file a claim for
refund and/or the right of the Tax Authority to assert a further deficiency
shall not constitute a Final Determination; (ii) by a decision, judgment,
decree, or other order by a court of competent jurisdiction, which has become
final and unappealable; (iii) by a closing agreement or accepted offer in
compromise under Section 7121 or 7122 of the Code, or comparable agreements
under the laws of other jurisdictions; (iv) by any allowance of a refund or
credit in respect of an overpayment of Tax, but only after the expiration of
all periods during which such refund may be recovered (including by way of
offset) by the jurisdiction imposing such Tax; or (v) by any other final
disposition, including by reason of the expiration of the applicable statute of
limitations.
"Public Offering Date" means __________, 1996, the date
of the Public Offering.
"Tax" means any net income, alternative or add-on minimum
tax, gross income, gross receipts, sales, use, ad valorem, franchise, profits,
license, withholding on amounts paid, payroll, employment, excise, severance,
stamp, occupation, property, or other like assessment or charge of any kind
whatsoever imposed by any Tax Authority, together with any interest, penalties,
or other additions to tax with respect thereto.
"Tax Authority" means the Internal Revenue Service or any
other domestic (including state or local) or foreign governmental authority
responsible for the administration of any Tax.
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"Tax Return" means any return, filing, questionnaire or other
document required to be filed, including requests for extensions of time,
filings made with estimated Tax payments, claims for refund and amended returns
that may be filed, for any taxable period with any Tax Authority (whether
domestic or foreign) in connection with any Tax or Taxes (whether or not a
payment is required to be made with respect to such filing).
ARTICLE II
PREPARATION AND FILING OF TAX RETURNS
2.01. Applicability of Provisions of Agreement. For
all Tax periods ending on or prior to the Public Offering Date, CRI is a member
of the Consolidated Group, and the federal income Tax Returns of the CRI Group
shall be filed accordingly for all such Tax periods. This Agreement is
effective as of the Public Offering Date for CEI and all members of the CRI
Group and supersedes any previous tax allocation or tax sharing agreement
between the parties. This Agreement does not constitute a change in the method
of allocating the federal regular income tax liability of the Consolidated
Group requiring the consent of the Commissioner under Treasury Regulation
Section 1.1552-1(c).
2.02. Federal Income Tax Returns. CEI shall timely prepare
and file, or cause to be timely prepared and filed, all federal income Tax
Returns for the Consolidated Group. For all Tax periods ending on or prior to
the Public Offering Date: (i) each CRI Affiliate shall provide CEI with its Tax
Returns, supporting schedules and additional information on a timely basis, as
requested by CEI, in order for CEI to timely file the Tax Returns for the
Consolidated Group, and (ii) CEI shall file the Tax Returns for the CRI Group
consistent with the Tax Returns, supporting schedules and additional
information provided by the CRI Affiliates. Upon request, CEI shall deliver to
CRI copies of the Tax Returns of the CRI Affiliates within 30 days after
filing.
2.03. Other Tax Returns. For so long as any member of the CRI
Group files any Tax Return as a member of, or its items of income, gain,
deduction or loss are reported in, any other consolidated or combined Tax
Return with CEI or any CEI Affiliate, CEI shall be responsible for the
preparation and filing of such Tax Returns (including returns for Tax periods
ending after the Public Offering Date). Such Tax Returns shall be prepared and
filed in accordance with the principles set forth in this Article II and in
Article III.
ARTICLE III
ALLOCATION AND PAYMENT OF TAXES
3.01. Acknowledgement of Elections. Any and all elections
previously made in accordance with past practice and in
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effect as of the Public Offering Date shall continue to govern the allocation
of the federal income tax liability of the Consolidated Group among the members
of the Consolidated Group.
3.02. Federal Regular Income Tax. CEI and CRI agree
to allocate the federal regular income tax liability of the
Consolidated Group for periods ending on or prior to the Public
Offering Date in the following manner:
(a) The consolidated federal regular income tax
liability to be allocated to and paid by each Affiliate shall be that
percentage of the consolidated federal regular income tax liability which is
equal to the percentage that the federal taxable income of such Affiliate,
computed on a separate return basis, would be of the total federal taxable
income of all Affiliates so computed. Allocations pursuant to this Section
3.02(a) shall be made in accordance with the principles set forth in Treasury
Regulation Section 1.1552-1(a)(1).
(b) An additional liability shall be allocated
to each Affiliate which, as a result of net operating losses, excess charitable
contributions, foreign tax credits, investment tax credits or similar items
arising from or generated by the activities of another Affiliate or Affiliates
in either a separate return year or a consolidated return year, has a smaller
allocated tax liability determined under Section 3.02(a) above than it would
have on a separate return basis. The additional liability allocated to each
Affiliate shall be equal to the excess of the amount that the Affiliate would
have paid on a separate return basis over the allocated tax liability
determined under Section 3.02(a) above. An amount equal to the total additional
liabilities allocated to all such Affiliates for the consolidated return year
shall be paid to the Affiliates which generated such losses, credits or
deductions, in the proportion which the tax benefit derived by the Consolidated
Group from the losses, credits and deductions of such Affiliate bears to the
tax benefit derived by the Consolidated Group from the losses, credits and
deductions of all Affiliates. Allocations pursuant to this Section 3.02(b)
shall be made in accordance with the principles set forth in Treasury
Regulation Section 1.1502- 33(d)(3).
(c) For purposes of this Agreement, the CRI
Group's allocable share of the consolidated Federal regular income tax
liability is the aggregate amount of liability allocated to the CRI Affiliates.
The CEI Group's allocable share of the consolidated federal regular income tax
liability is the aggregate amount of liability allocated to the CEI Affiliates.
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3.03. Alternative Minimum Tax.
(a) Any consolidated alternative minimum tax
liability shall be allocated for the respective consolidated Tax Return year to
the Affiliates whose separate company tentative minimum tax exceeds its
separate company regular tax liability. The total alternative minimum tax
liability shown on the Tax Return of the Consolidated Group shall be
apportioned to each such Affiliate according to the ratio of (i) the excess of
its separate company tentative minimum tax over its separate company regular
tax liability to (ii) the total of all such Affiliates' excess separate company
tentative minimum tax over separate company regular tax. For purposes of this
allocation, if an Affiliate has a regular tax net operating loss on a separate
return basis, the alternative minimum tax liability for that Affiliate on a
separate return basis shall be computed on the difference between such
Affiliate's regular tax net operating loss and any smaller alternative tax net
operating loss or any alternative minimum taxable income.
(b) Any minimum tax credit realized in
subsequent years (determined by allocating credits first to the earliest years)
by the Consolidated Group as a result of incurring the alternative minimum tax
liability shall be paid to the Affiliate to which the original alternative
minimum tax liability was allocated. If less than the full minimum tax credit
is realized in a year, the amount realized by each Affiliate which incurred the
original alternative minimum tax liability shall be paid first to the
Affiliates which can utilize the minimum tax credit on a separate return basis
according to the proportion of the original alternative minimum tax liability
borne by each such Affiliate. Any remaining minimum tax credit shall be paid to
the Affiliates which incurred the original alternative minimum tax liability in
proportion to the original alternative minimum tax liability borne by such
Affiliates (and not previously offset by credits).
(c) The consolidated alternative minimum tax,
for stock basis adjustment and earnings and profits purposes, shall be
allocated to each Affiliate under the allocation method set out in Proposed
Regulation Sections 1.1502-55 and 1.1552-1(g) issued on December 30, 1992 (the
"Proposed Regulations"). A portion of the minimum tax credit shall be allocated
to Affiliates who cease to be a member of the Consolidated Group in accordance
with Proposed Regulation Section 1.1502-55(h). However, to the extent such
Affiliate was not allocated a corresponding amount of alternative minimum tax
in an earlier or the same tax year, such Affiliate shall pay to CEI an amount
equal to such excess credit prior to the date the Affiliate leaves the
Consolidated Group. If temporary or final regulations are issued which differ
from the Proposed Regulations, this
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Agreement shall be amended to reflect such changes to the extent and for such
periods deemed necessary or desirable by CEI.
(d) For purposes of this Agreement, the CRI
Group's share of the alternative minimum tax liability of the Consolidated
Group is the aggregate amount of such liability allocated to the CRI
Affiliates. The CEI Group's allocable share of the alternative minimum tax
liability of the Consolidated Group is the aggregate amount of such liability
allocated to the CEI Affiliates.
3.04. Payment of Consolidated Federal Income Tax. CEI
shall pay all Taxes due with respect to the consolidated federal income tax
liability of the Consolidated Group. Each CEI Affiliate shall pay to CEI an
amount equal to its share of such consolidated federal income tax liability as
determined under Sections 3.02 and 3.03. CRI shall pay to CEI an amount equal
to the CRI Group's share of such consolidated federal income tax liability as
determined under Sections 3.02 and 3.03.
3.05. Tax Deficiencies and Refunds.
(a) If as a result of any examination of, or
amendment to, a Tax Return filed by CEI with respect to any taxable period,
there is an additional amount of Taxes due and payable (a "Deficiency"), or a
refund of Taxes previously paid (whether by payment, credit, offset against
other Taxes due or otherwise) (a "Refund"), any such Deficiency shall be paid
by, and any such Refund shall be payable to, CEI.
(b) Each Affiliate shall pay to CEI an amount
equal to the amount of any Deficiency paid or payable by CEI and allocable to
such Affiliate. CEI shall pay to each Affiliate the amount of any Refund
received by CEI and allocable to such Affiliate.
3.06. Penalties and Interest.
(a) Any interest incurred by the Consolidated
Group as a result of a Deficiency shall be paid by the Affiliate to whom it is
attributable. The amount of interest allocable to each Affiliate shall be
determined and paid as follows:
(i) The total amount of interest incurred
by the Consolidated Group shall be apportioned to and paid by the Affiliates
according to the ratio of the interest that would have been incurred by each
Affiliate if its Taxes were computed on a separate return basis to the total of
all the interest that would have been incurred by the Affiliates so computed.
(ii) An additional amount of interest shall
be allocated to each Affiliate equal to the additional interest,
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if any, that such Affiliate would have paid on a separate return basis over the
allocated interest determined under Section 3.06(a)(i) above. Any amounts so
allocated shall be paid to those other Affiliates whose income or deductions
would have given rise to a refund on a separate return basis, according to the
ratio which the refund payable to the respective Affiliate bears to the total
of all refunds which would have been payable to such Affiliates on a separate
return basis; provided, however, that payment to an Affiliate hereunder shall
not exceed the amount of interest that such Affiliate would have received on a
separate return basis (with any such excess to be retained by the respective
paying Affiliates in proportion to the amounts allocated to them pursuant to
the first sentence of this Section 3.06(a)(ii)).
(iii) Interest computed by an Affiliate
on a separate return basis shall be calculated using the interest rate or rates
applicable to the consolidated Deficiency.
(b) Any interest received by the Consolidated
Group as a result of any Refund shall be allocated to the Affiliate whose
income or deductions gave rise to the Refund. The amount of interest allocable
to each Affiliate shall be determined and paid as follows:
(i) The amount of interest received by the
Consolidated Group shall be apportioned to and received by the Affiliates
according to the ratio of the interest that would have been received by each
Affiliate if its Taxes were computed on a separate return basis to the total of
all the interest that would have been received by the Affiliates so computed.
(ii) Each Affiliate shall be allocated an
additional amount equal to the additional interest, if any, that such Affiliate
would have received on a separate return basis over the allocated interest
determined under Section 3.06(b)(i) above. Any amounts so allocated shall be
paid to such Affiliates by the Affiliates whose income or deductions caused
such interest not to be received by the Consolidated Group; provided, however,
that payment to an Affiliate shall not exceed the amount that such Affiliate
would have received on a separate return basis (with any such excess to be
retained by the respective paying Affiliates in proportion to the amounts
otherwise payable hereunder).
(iii) Interest computed by an Affiliate
on a separate return basis shall be calculated using the interest rate or rates
applicable to the consolidated Refund.
(c) Any penalties incurred by the Consolidated
Group shall be paid by the Affiliate whose income or deductions caused such
penalties. If a penalty was caused by more than one
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Affiliate, such penalty shall be allocated proportionately to those Affiliates
that would have incurred a penalty on a separate return basis. Any excess
penalty shall be allocated in proportion to the income or deductions of each
Affiliate which caused or contributed to the penalty regardless of whether such
Affiliate's income or deductions exceeded the minimum threshold required for
the penalty to be imposed.
(d) For purposes of this Agreement, the CRI
Group's allocable share of any interest or penalties is the aggregate amount of
interest or penalties allocated to the CRI Affiliates. The CEI Group's
allocable share of any interest or penalties is the aggregate amount of any
interest or penalties allocated to the CEI Affiliates.
3.07. Manner of Payment.
(a) On each date on which a payment of estimated
federal income Tax (relating to a Tax period ending on or before the Public
Offering Date) is due, CRI shall pay to CEI, on behalf of the CRI Affiliates,
an amount calculated by CEI as the estimated Tax payment for the CRI
Affiliates. CEI shall notify CRI of the amount of each such payment at least 3
days prior to the date such payment is due.
(b) CEI shall determine the Tax liability of the
CRI Affiliates under Sections 3.02 and 3.03 promptly following its receipt of
the information required under Section 2.02 to be submitted to it by the CRI
Affiliates. CRI, on behalf of the CRI Affiliates, shall pay to CEI the amount
of the Tax liability of the CRI Affiliates so determined within 5 days
following such determination, offset by any payments previously made pursuant
to Section 3.07(a). An additional computation of the Tax liability of the CRI
Affiliates shall be made when the Tax Return of the Consolidated Group is filed
and any adjustments which require additional payments shall be paid by CRI (or
by the respective CRI Affiliate) within 5 days following the filing of such
return. Any payment not made within the prescribed time period shall thereafter
bear interest at the federal short-term rate established pursuant to Section
6621 of the Code (or any successor provision).
(c) Any payment required to be made pursuant to
Sections 3.04, 3.05, 3.06 or 3.07 with respect to any Tax Return shall be made
by the Affiliate obligated to make such payment (i) in the case of a refund of
Tax, within 15 days after receipt (whether by way of payment, credit, or offset
against any payments due or otherwise) of such refund or (ii) in the case of
the payment of Tax with respect to any such Tax Return, within 5 days after the
later of (x) the payment of such Tax, or (y) the delivery of written demand for
the payment of such Tax to the party obligated to make such payment hereunder.
Any payment
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described in clause (i) and any demand for payment described in clause (ii)
shall be accompanied by a calculation setting forth the basis for the amount
paid or demanded. Any payment not made within the prescribed time period shall
thereafter bear interest at the federal short-term rate established pursuant to
Section 6621 of the Code.
3.08. Other Tax Returns. For so long as any member of the CRI
Group is included in any other consolidated or combined Tax Return with CEI or
any CEI Affiliate, allocation of Taxes, interest, penalties, and payments shall
be governed by the principles set forth in Sections 3.01 through 3.07.
ARTICLE IV
COOPERATION AND EXCHANGE OF INFORMATION
4.01. Cooperation.
(a) CEI and CRI shall cooperate fully at such
time and to the extent reasonably requested by the other party in connection
with the preparation and filing of any return or the conduct of any audit,
dispute, proceeding, suit or action concerning any issues or any other matter
contemplated hereunder. Such cooperation shall include, without limitation, (i)
the retention and provision on demand of books, records, documentation or other
information relating to any Tax Return until the later of (x) the expiration of
the applicable statute of limitations (giving effect to any extension, waiver,
or mitigation thereof) and (y) in the event any claim has been made under this
Agreement for which such information is relevant, until a Final Determination
is made with respect to such claim; (ii) the provision of additional
information with respect to, and an explanation of the tax practices
(elections, accounting methods, conventions and principles of taxation)
relating to, the material provided under clause (i) of this section; (iii) the
execution of any document that may be necessary or reasonably helpful in
connection with the filing of any Tax Return by any member of the Consolidated
Group, or in connection with any audit, proceeding, suit or action addressed in
the preceding sentence; and (iv) the use of the parties' best efforts to obtain
any documentation from a governmental authority or a third party that may be
necessary or helpful in connection with the foregoing. Each party shall make
its employees and facilities available on a mutually convenient basis to
facilitate such cooperation.
(b) CEI and CRI shall use reasonable efforts to
keep each other advised as to the status of Tax audits and litigation involving
any issue which relates to any Tax of the CRI Group or could give rise to a
liability of the CRI Group (or any CRI Affiliate) under this Agreement (a
"Liability Issue"). CEI and CRI shall each promptly notify the other of any
inquiries
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by any Tax Authority or any other administrative, judicial or other
governmental authority that relates to any Tax that may be imposed on the other
or any Affiliate of the other that might arise under this Agreement. Without
limiting the foregoing, each CRI Affiliate shall promptly furnish to CEI upon
receipt a copy of any revenue agent's report or similar report, notice of
proposed adjustment, or notice of deficiency received by such Affiliate
relating to any Liability Issue or any adjustment described in Section 4.01(c)
below.
(c) CEI shall advise and consult with CRI with
respect to any proposed Tax adjustments relating to the Consolidated Group that
are the subject of an audit or investigation by any Tax Authority, or are the
subject of litigation, that may affect any Tax or any Tax attribute of any CRI
Affiliate. However, CEI may resolve any proposed Tax adjustments relating to
the Consolidated Group or any Affiliate in the best interests of the
Consolidated Group.
4.02. Contests. Subject to the cooperation provisions in
Section 4.01, CEI shall have full responsibility and discretion in the handling
of any Tax controversy including, without limitation, an audit, a protest to
the Appeals Division of the Internal Revenue Service, and litigation in Tax
Court or any other court of competent jurisdiction (a "Tax Controversy"),
involving a Tax Return of the Consolidated Group. However, upon request by CRI,
and subject to CEI approval and the cooperation provisions in Section 4.01, CRI
may participate, at CRI's expense, in any Tax Controversy with respect to any
item that would give rise to a payment of Tax for which a CRI Affiliate would
be liable, or a refund of Tax for which a CRI Affiliate would be entitled to
receive payment, under Article III hereof, or that may affect any Tax attribute
of any CRI Affiliate.
ARTICLE V
MISCELLANEOUS
5.01. Complete Agreement. This Agreement constitutes the
entire agreement of the parties concerning the subject matter hereof, and
supersedes all other agreements, whether or not written, in respect of any Tax
between or among CEI and any CRI Affiliates. This Agreement may not be amended
except by an agreement in writing, signed by the parties hereto.
5.02. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Georgia, without
regard to the principles of conflict of laws of the State of Georgia.
5.03. Successors and Assigns. A party's rights and
obligations under this Agreement may not be assigned without the prior written
consent of the other party. All of the provisions
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of this Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
5.04. No Third-Party Beneficiaries. This Agreement is solely
for the benefit of the parties to this Agreement and should not be deemed to
confer upon third parties any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without this Agreement.
5.05. Legal Enforceability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions. Any prohibition
or unenforceability of any provision of this Agreement in any jurisdiction
shall not invalidate or render unenforceable the provision in any other
jurisdiction.
5.06. Expenses. Unless otherwise expressly provided in this
Agreement each party shall bear any and all expenses that arise from its
respective obligations under this Agreement. In the event either party to this
Agreement brings an action or proceeding for the breach or enforcement of this
Agreement, the prevailing party in such action or proceeding, whether or not
such action or proceeding proceeds to final judgment, shall be entitled to
recover as an element of its costs, and not as damages, such reasonable
attorneys' fees as may be awarded in the action or proceeding in addition to
whatever other relief to which the prevailing party may be entitled.
5.07. Confidentiality. Each party shall hold and cause its
consultants and advisors to hold in strict confidence, unless compelled to
disclose by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law, all information (other than any
information relating solely to the business or affairs of such party)
concerning the other parties hereto furnished to it by such other party or such
other party's representatives pursuant to this Agreement (except to the extent
that such information can be shown to have been (a) previously known by the
party to which it was furnished, (b) in the public domain through no fault of
such party, or (c) later lawfully acquired form other sources not under a duty
of confidentiality by the party to which it was furnished). Each party shall
not release or disclose such information to any other person, except its
auditors, attorneys, financial advisors, bankers and other consultants and
advisors who shall be advised of and agree to be bound by the provisions of
this Section. Each party shall be deemed to have satisfied its obligation to
hold confidential information concerning or supplied by the other party if it
exercises the same care as it takes to preserve confidentiality for its own
similar information.
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5.08. Term. CEI and CRI have determined that CRI will
cease to be an Affiliate as of the Public Offering Date, and the provisions of
this Agreement shall be interpreted and applied accordingly.
5.09. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signature thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement the day and year first above written.
XXX ENTERPRISES, INC.
On behalf of the CEI Group
By: /ss/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Vice President
XXX RADIO, INC.
On behalf of the CRI Group
By: /ss/ Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx, Chief Financial
Officer
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