Common use of Voluntary Disclosure Agreements Clause in Contracts

Voluntary Disclosure Agreements. After the Closing Date, the Company and its Subsidiaries shall, at the direction of the Buyer, be permitted to initiate, control and settle or otherwise compromise all voluntary disclosure agreements, initiatives and similar processes, including the filing and/or amendment of any Tax Returns or agreements, for the mitigation of any Liability for sales and use Taxes (and any similar or equivalent Taxes) in all applicable state and local jurisdictions (collectively, the “Voluntary Disclosure Filings”). Buyer agrees that it shall use good faith, commercially reasonable efforts to minimize the liability for such Taxes in the preparation, filing, negotiation and settlement of such Voluntary Disclosure Filings. The Seller agrees that it shall not be permitted to contact any venue, customer or former customer of the Company and its Subsidiaries with respect to any sales, use or similar Tax matters, except with the prior written consent of the Buyer. Not less than fifteen (15) Business Days prior to the filing of each Voluntary Disclosure Filing, Buyer shall provide Seller with a draft copy of such Voluntary Disclosure Filing for Seller’s review, and Buyer shall consider in good faith any comments to such Voluntary Disclosure Filing provided by Seller prior to filing. If Seller and Buyer do not agree with respect to the amount of Tax liability reflected in any Voluntary Disclosure Filing, and Seller and Buyer cannot mutually agree to continue their efforts to resolve such differences, Seller and Buyer shall engage an accounting firm acceptable to both Seller and Buyer to review the matters in dispute with respect to such Voluntary Disclosure Filing. Seller and Buyer shall each be entitled to make a presentation to the accounting firm within ten (10) Business Days after the engagement of the accounting firm, pursuant to procedures to be agreed to among Seller, Buyer and the accounting firm (or, if they cannot agree on such procedures, pursuant to procedures determined by the accounting firm), regarding their respective positions relating to such matters in dispute. After such review, the accounting firm shall promptly (and in any event within sixty (60) Business Days following its engagement) determine in writing the resolution of such disputed matters, which written determination shall be final and binding on the parties hereto. The cost of such review shall be paid one-half by Seller and one-half by Buyer. Notwithstanding anything in this Agreement to the contrary, Buyer agrees that Seller shall be entitled, but not obligated, to continue to control, on behalf of the Company and its Subsidiaries, any Voluntary Disclosure Filing process that is already in progress at the Closing Date and with respect to which the Buyer has requested continued assistance from the Seller after the Closing Date (“Ongoing VDA Process”), provided that (i) Seller shall (1) periodically consult with Buyer with respect to, and apprise Buyer of the status of, such Ongoing VDA Process, (2) have the authority to settle or otherwise compromise such Ongoing VDA Process with the consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed (and for the avoidance of doubt, Buyer’s inability to pay or cause to be paid Taxes due pursuant to the following clause (ii) shall not be reasonable grounds to withhold consent), and (3) permit the Buyer, at its own expense, to participate in, but not control, such Ongoing VDA Process, (ii) Buyer shall, or shall cause the Company to, timely pay the full amount of any Taxes due to the relevant Tax Authority in connection with any such settlement or compromise, provided that the principal amount of the Note shall be reduced by an amount equal to the amount of Pre-Closing Taxes that Buyer and Seller have agreed that Seller would be liable for in connection with such settlement or compromise pursuant to Section 9.1(a)(v); provided, further, that in the event that Buyer does not timely pay, or cause the Company to timely pay, the amount due pursuant to the foregoing clause (ii) before the last date under the assessment, agreement or other demand for payment before additional amounts of interest or penalties are imposed (the “VDA Due Date”), Seller shall no longer be liable to Buyer for any amount of such additional interest and penalties accruing or assessed after the VDA Due Date, regardless of whether such amounts would otherwise constitute Pre-Closing Taxes under this Agreement, and (iii) in the event that the timely payment of Taxes by the VDA Due Date pursuant to clause (ii) has been satisfied, then Buyer and Seller agree that the procedural requirements of Sections 9.2(f), 9.4 and 9.5 with respect to Indemnifiable Damages shall not apply. Buyer shall cooperate with any reasonable request for assistance from Seller with respect to any such Ongoing VDA Process, including by (but not limited to) providing Seller with any relevant information, granting Seller any necessary power of attorney and filing any Tax Returns necessary to assist Seller with the resolution of any such Ongoing VDA Process. Notwithstanding anything else in this Agreement to the contrary, Seller shall bear the costs and expenses relating to an Ongoing VDA Process so long as such Ongoing VDA Process is controlled by Seller; provided that Buyer shall reimburse Seller for one-half of any costs or expenses incurred by Seller after the Closing Date as a result of an Ongoing VDA Process, no later than ten (10) days after the date on which Seller provides to Buyer documentation evidencing such costs or expenses incurred by Seller. In the event of any conflict between Section 6.10(a), Section 6.10(b), Section 6.10(c) or Section 9.6 and this Section 6.10(i), this Section 6.10(i) shall control. For the avoidance of doubt, if the principal amount of the Note has been reduced to zero (0), any such Pre-Closing Taxes due to the relevant Tax Authority in connection with any settlement or compromise of such Ongoing VDA Process which did not result in a reduction of the principal amount of the Note shall be Indemnifiable Damages pursuant to Section 9.1(a)(v), subject to the same limitations set forth in Article 9 (other than Sections 9.2(f), 9.4 and 9.5).

Voluntary Disclosure Agreements. After the Closing Date, the Company and its Subsidiaries shall, at the direction of the Buyer, be permitted to initiate, control and settle or otherwise compromise all voluntary disclosure agreements, initiatives and similar processes, including the filing and/or amendment of any Tax Returns or agreements, for the mitigation of any Liability for sales and use Taxes (and any similar or equivalent Taxes) in all applicable state and local jurisdictions (collectively, the “Voluntary Disclosure Filings”). Buyer agrees that it shall use good faith, commercially reasonable efforts to minimize the liability for such Taxes in the preparation, filing, negotiation and settlement of such Voluntary Disclosure Filings. The Seller agrees that it shall not be permitted to contact any venue, customer or former customer of the Company and its Subsidiaries with respect to any sales, use or similar Tax matters, except with the prior written consent of the Buyer. Not less than fifteen (15) Business Days prior to the filing of each Voluntary Disclosure Filing, Buyer shall provide Seller with a draft copy of such Voluntary Disclosure Filing for Seller’s review, and Buyer shall consider in good faith any comments to such Voluntary Disclosure Filing provided by Seller prior to filing. If Seller and Buyer do not agree with respect to the amount of Tax liability reflected in any Voluntary Disclosure Filing, and Seller and Buyer cannot mutually agree to continue their efforts to resolve such differences, Seller and Buyer shall engage an accounting firm acceptable to both Seller and Buyer to review the matters in dispute with respect to such Voluntary Disclosure Filing. Seller and Buyer shall each be entitled to make a presentation to the accounting firm within ten (10) Business Days after the engagement of the accounting firm, pursuant to procedures to be agreed to among Seller, Buyer and the accounting firm (or, if they cannot agree on such procedures, pursuant to procedures determined by the accounting firm), regarding their respective positions relating to such matters in dispute. After such review, the accounting firm shall promptly (and in any event within sixty (60) Business Days following its engagement) determine in writing the resolution of such disputed matters, which written determination shall be final and binding on the parties hereto. The cost of such review shall be paid one-half by Seller and one-half by Buyer. Notwithstanding anything in this Agreement to the contrary, Buyer agrees that Seller shall be entitled, but not obligated, to continue to control, on behalf of the Company and its Subsidiaries, any Voluntary Disclosure Filing process that is already in progress at the Closing Date and with respect to which the Buyer has requested continued assistance from the Seller after the Closing Date (“Ongoing VDA Process”), provided that (i) Seller shall (1) periodically consult with Buyer with respect to, and apprise Buyer of the status of, such Ongoing VDA Process, (2) have the authority to settle or otherwise compromise such Ongoing VDA Process with the consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed (and for the avoidance of doubt, Buyer’s inability to pay or cause to be paid Taxes due pursuant to the following clause (ii) shall not be reasonable grounds to withhold consent), and (3) permit the Buyer, at its own expense, to participate in, but not control, such Ongoing VDA Process, (ii) Buyer shall, or shall cause the Company to, timely pay the full amount of any Taxes due to the relevant Tax Authority in connection with any such settlement or compromise, provided that the principal amount of the Note shall be reduced by an amount equal to the amount of Pre-Closing Taxes that Buyer and Seller have agreed that Seller would be liable for in connection with such settlement or compromise pursuant to Section 9.1(a)(v); provided, further, that in the event that Buyer does not timely pay, or cause the Company to timely pay, the amount due pursuant to the foregoing clause (ii) before the last date under the assessment, agreement or other demand for payment before additional amounts of interest or penalties are imposed (the “VDA Due Date”), Seller shall no longer be liable to Buyer for any amount of such additional interest and penalties accruing or assessed after the VDA Due Date, regardless of whether such amounts would otherwise constitute Pre-Closing Taxes under this Agreement, and (iii) in the event that the timely payment of Taxes by the VDA Due Date pursuant to clause (ii) has been satisfied, then Buyer and Seller agree that the procedural requirements of Sections 9.2(f), 9.4 and 9.5 with respect to Indemnifiable Damages shall not apply. Buyer shall cooperate with any reasonable request for assistance from Seller with respect to any such Ongoing VDA Process, including by (but not limited to) providing Seller with any relevant information, granting Seller any necessary power of attorney and filing any Tax Returns necessary to assist Seller with the resolution of any such Ongoing VDA Process. Notwithstanding anything else in this Agreement to the contrary, Seller shall bear the costs and expenses relating to an Ongoing VDA Process so long as such Ongoing VDA Process is controlled by Seller; provided that Buyer shall reimburse Seller for one-half of any costs or expenses incurred by Seller after the Closing Date as a result of an Ongoing VDA Process, no later than ten (10) days after the date on which Seller provides to Buyer documentation evidencing such costs or expenses incurred by Seller. In the event of any conflict between Section 6.10(a), Section 6.10(b), Section 6.10(c) or Section 9.6 and this Section 6.10(i), this Section 6.10(i) shall control. For the avoidance of doubt, if the principal amount of the Note has been reduced to zero (0), any such Pre-Closing Taxes due to the relevant Tax Authority in connection with any settlement or compromise of such Ongoing VDA Process which did not result in a reduction of the principal amount of the Note shall be Indemnifiable Damages pursuant to Section 9.1(a)(v), subject to the same limitations set forth in Article 9 (other than Sections 9.2(f), 9.4 and 9.5).