Exhibit 10.31
TAX SHARING AND DISAFFILIATION AGREEMENT
TAX SHARING AND DISAFFILIATION AGREEMENT dated as of November 1, 2000, by
and between XXXXXX OUTDOOR ADVERTISING & TRAVEL CENTERS, INC., a Nevada
corporation ("Xxxxxx"), and XXXXXX TRAVEL CENTERS, INC., a Nevada corporation
("Travel Centers").
RECITALS
A. Pursuant to the Contribution Agreement dated as of the date hereof, by
and between Xxxxxx and Travel Centers (the "Contribution Agreement"), Xxxxxx has
contributed to Travel Centers the assets used in the Travel Centers Business and
Travel Centers has assumed the Assumed Liabilities (as more fully described in
the Contribution Agreement, the "Contribution"), and Xxxxxx plans to distribute
to the holders of Xxxxxx Common Stock all of the outstanding shares of Travel
Centers Common Stock owned by Xxxxxx (the "Distribution").
X. Xxxxxx and Travel Centers intend that the Contribution will qualify as a
transfer to a controlled corporation within the meaning of Section 351 of the
Code and/or a reorganization within the meaning of Section 368(a)(1)(D) of the
Code, and the Distribution will qualify as a distribution described in Section
355 of the Code and will not result in the recognition of any taxable gain or
income to any shareholder of Xxxxxx.
C. Prior to the Distribution Date, Travel Centers will be a member of the
Xxxxxx Affiliated Group and after the Distribution Date Travel Centers will
cease to be a member of the Xxxxxx Affiliated Group for federal income tax
purposes.
D. Travel Centers and Xxxxxx desire on behalf of themselves and their
successors to set forth their rights and obligations with respect to Taxes due
for periods before, on and after the Distribution Date.
E. Capitalized terms used but not defined herein have the meanings set
forth in the Contribution Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.01 FOR THE PURPOSES OF THIS AGREEMENT:
"ACQUISITION" shall have the meaning set forth in SECTION 2.01(a) of this
Agreement.
"AGREEMENT" shall mean this Tax Sharing and Disaffiliation Agreement as the
same may be amended from time to time.
"APPLICABLE FEDERAL RATE" shall have the meaning set forth in Section
1274(d) of the Code, compounded quarterly.
"XXXXXX" shall have the meaning set forth in the preamble to this
Agreement.
"XXXXXX AFFILIATED GROUP" shall mean the corporations included in the
affiliated group, as defined in Section 1504 of the Code, of which Xxxxxx is the
common parent, and any successor group.
"XXXXXX TAXES" shall mean any Taxes (excluding Restructuring Taxes [except
as noted in the definition of Travel Center Taxes] and Transaction Taxes) that
are attributable to the Outdoor Advertising Business. For purposes of the
foregoing, Taxes shall be deemed attributable to the Outdoor Advertising
Business to the extent such Taxes are imposed as a result of Tax Items of Xxxxxx
or Travel Centers directly related to the Outdoor Advertising Business;
provided, however, that net losses (if any) incurred with respect to the Travel
Centers Business on or before the Distribution Date shall be used to offset the
income of Xxxxxx for purposes of determining Xxxxxx Taxes. To the extent that a
Tax Item is not directly related to either the Outdoor Advertising Business or
the Travel Center Business but is indirectly related to both businesses (such as
an item relating to overhead), it shall be deemed attributable to the Outdoor
Advertising Business in the proportion that the revenues of the Outdoor
Advertising Business bears to the sum of (i) the revenues of the Outdoor
Advertising Business plus (ii) the revenues from the Travel Center Business.
"CLAIM" shall have the meaning set forth in SECTION 5.03(a) of this
Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONTRIBUTION" shall have the same meaning set forth in the first recital.
"CONTRIBUTION AGREEMENT" shall have the meaning set forth in the first
recital.
"CONTROLLING PARTY" shall have the meaning set forth in SECTION 5.01 of
this Agreement.
"DISTRIBUTION" shall have the meaning set forth in the first recital.
"DISTRIBUTION DATE" means the date on which the Distribution takes place.
"FILING PARTY" shall have the meaning set forth in SECTION 4.01 of this
Agreement.
"FINAL DETERMINATION" shall mean with respect to any issue (a) a decision,
judgment, decree or other order by any court of competent jurisdiction, which
decision, judgment, decree or other order has become final and not subject to
further appeal, (b) a closing agreement (whether or not entered into under
Section 7121 of the Code) or any other binding settlement agreement (whether or
not with the IRS) entered into in connection with or in contemplation of an
administrative or judicial proceeding, or (c) the completion of the highest
level of administrative proceedings if a judicial contest is not or is no longer
available.
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"INDEMNITOR" shall have the meaning set forth in SECTION 5.02 of this
Agreement.
"IRS" means the Internal Revenue Service.
"LIABLE PARTY" shall have the meaning set forth in SECTION 4.01 of this
Agreement.
"OUTDOOR ADVERTISING BUSINESS" means those portions of the business of
Xxxxxx that are not part of the Travel Centers Business.
"RESTRUCTURING TAXES" shall mean any Taxes imposed as a result of the
Contribution or Distribution. For purposes of filing Xxxxxx'x Tax Return only,
Restructuring Taxes shall mean any Tax imposed as a result of any stock or
securities of Travel Centers failing to qualify as "qualified property" within
the meaning of Section 355(c)(2) of the Code because of the application of
Section 355(e) of the Code (or similar state statute) to the Distribution;
provided, however, that Restructuring Taxes shall be calculated by assuming that
the aggregate fair market value of the Travel Centers' stock distributed by
Xxxxxx in the Distribution is equal to (a) the product of (i) the mean between
the high bid and low asked prices for Travel Centers' stock on its first trading
day (as reported in THE WALL STREET JOURNAL or such other source as Travel
Centers deems reliable) and (ii) the total number of outstanding shares of
Travel Centers stock immediately after the Distribution, or (b) such other
amount as determined by Travel Centers in its reasonable discretion. Travel
Centers shall provide Xxxxxx with written notification of this valuation within
five (5) days after the Distribution Date. Notwithstanding any provision of this
Agreement to the contrary, if a Claim is successfully asserted by the IRS with
respect to Restructuring Taxes, Restructuring Taxes shall be determined in
accordance with the Final Determination in connection with such Claim.
"TAX" (and with correlative meaning, "Taxes" and "Taxable") means any
federal, state, local or foreign net income, gross income, gross receipts,
windfall profit, severance, property, production, sales, use, license, excise,
franchise, employment, payroll, withholding, alternative or add-on minimum, ad
valorum, value-added, transfer, stamp, or environmental tax, or any other tax,
custom, duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, addition to tax or additional
amount imposed by any governmental or regulatory authority.
"TAX ITEM" means any item of income, gain, loss, deduction, credit,
provisions for reserves, recapture of credit, receipt, proceeds or any other
item or event that increases or decreases Taxes paid or payable, including an
adjustment under Section 481 of the Code resulting from a change in accounting
method.
"TAX RETURN" shall mean any return, report or similar statement required to
be filed with respect to any Tax (including any attached schedules), including,
without limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
"TRANSACTION TAXES" shall have the meaning set forth in SECTION 3.03(c) of
this Agreement.
"TRAVEL CENTERS" shall have the meaning set forth in the preamble to this
Agreement.
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"TRAVEL CENTERS TAXES" shall mean any Taxes that are attributable or
allocable to the Travel Centers Business, Transaction Taxes and Restructuring
Taxes; provided, however, that notwithstanding any provision of this Agreement
to the contrary, any Restructuring Taxes that are primarily attributable to
Xxxxxx'x breach of its representations and warranties under Sections 2.01(a)-(c)
shall be regarded as Xxxxxx Taxes. For purposes of the foregoing, Taxes shall be
deemed attributable to the Travel Centers Business to the extent such Taxes are
imposed as a result of Tax Items of Xxxxxx or Travel Centers directly related to
the Travel Centers Business; provided, however, that net losses (if any)
incurred with respect to the Outdoor Advertising Business on or before the
Distribution Date shall be used to offset the income of Travel Centers for
purposes of determining Travel Centers Taxes and (to the extent available) shall
be used to offset gain in determining the amount of Restructuring Taxes. To the
extent that a Tax Item is not directly related to either the Travel Center
Business or the Outdoor Advertising Business but is indirectly related to both
businesses (such as an item relating to overhead), it shall be deemed
attributable to the Travel Center Business in the proportion that the revenues
of the Travel Center Business bears to the sum of (i) the revenues of the Travel
Center Business plus (ii) the revenues of the Outdoor Advertising Business.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 XXXXXX. Xxxxxx hereby represents and warrants as follows:
(a) Following the acquisition (the "Acquisition") of Xxxxxx by Xxxxx
Advertising Company, a Delaware corporation ("Xxxxx") pursuant to the Agreement
and Plan of Merger dated as of October 3, 2000, between Xxxxx, Xxxxx Southwest
Acquisition Corporation and Xxxxxx, Xxxxxx will continue the active conduct of
its business, independently and with its separate employees.
(b) There is no plan or intention by Xxxxxx, directly or through any
subsidiary corporation, to purchase any of its outstanding stock after the
Acquisition.
(c) There is no plan or intention to liquidate Xxxxxx or to sell or
otherwise dispose of the assets of Xxxxxx after the Acquisition, except in the
ordinary course of business.
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2.02 TRAVEL CENTERS. Travel Centers hereby represents and warrants as
follows:
(a) Following the Distribution, Travel Centers will continue the active
conduct of its business, independently and with its separate employees.
(b) There is no plan or intention by Travel Centers, directly or
through any subsidiary corporation, to purchase any of its outstanding stock
after the Distribution.
(c) There is no plan or intention to liquidate Travel Centers, to merge
Travel Centers with any other corporation, or to sell or otherwise dispose of
the assets of Travel Centers after the Distribution, except in the ordinary
course of business.
(d) Payments made in connection with all continuing transactions, if
any, between Xxxxxx and Travel Centers, will be for fair market value based on
terms and conditions arrived at by the parties bargaining at arms' length.
ARTICLE III
TAX RETURNS, TAX PAYMENTS AND TAX SHARING OBLIGATIONS
3.01 OBLIGATIONS TO FILE TAX RETURNS
(a) Xxxxxx shall timely file or cause to be filed all Tax Returns with
respect to the Xxxxxx Affiliated Group, which shall include Travel Centers, for
any period beginning prior to the Distribution and ending on the Distribution
Date; provided, however, that Travel Centers shall prepare and forward to Xxxxxx
all federal and state income Tax Returns with respect to the Xxxxxx Affiliated
Group for such periods. Xxxxxx shall be considered the party required to file
and the party filing the Tax Return with respect to any Tax Return prepared by
Travel Centers pursuant to the preceding sentence.
(b) Travel Centers shall timely file or cause to be timely filed all
Tax Returns with respect to the Travel Centers for all periods beginning after
the Distribution Date.
3.02 OBLIGATION TO REMIT TAXES. Xxxxxx and Travel Centers shall each remit
or cause to be remitted any Taxes due in respect of any Tax Return it is
required to file or cause to be filed pursuant to SECTION 3.01, and shall be
entitled to reimbursement for such payments to the extent provided in SECTION
3.03.
3.03 TAX SHARING OBLIGATIONS AND PRIOR AGREEMENTS
(a) Travel Centers shall be liable for and pay, and shall defend and
hold harmless Xxxxxx and any other Xxxxxx Indemnitee for, from and against, any
and all Losses incurred or suffered by Xxxxxx or one or more of the Xxxxxx
Indemnitees in connection with (i) any Travel Centers Taxes, (ii) any inaccuracy
or breach of any warranty, representation or covenant that is made by Travel
Centers pursuant to this Agreement, and (iii) any amount determined to be Travel
Centers' liability under SECTION 3.03(c). In the event that Xxxxxx receives any
refund of or credit for Taxes for which Travel Centers is responsible under this
SECTION 3.03(a), Xxxxxx shall pay Travel Centers an amount equal to such refund
or credit within five business days of Xxxxxx'x receipt of such refund or
credit.
(b) Xxxxxx shall be liable for and pay, and shall indemnify, defend,
and hold harmless Travel Centers and any other Travel Centers Indemnitee for,
from and against, any and all Losses incurred or suffered by Travel Centers or
one or more of the Travel Centers Indemnitees in connection with (i) any Xxxxxx
Taxes and (ii) any inaccuracy or breach of any warranty, representation or
covenant that is made by Xxxxxx pursuant to this Agreement. In the event that
Travel Centers receives any refund of or credit for Taxes for which Xxxxxx is
responsible under this SECTION 3.03(b), Travel Centers shall pay Xxxxxx an
amount equal to such refund or credit within five business days of Travel
Centers' receipt of such refund or credit.
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(c) Xxxxxx and Travel Centers will determine the amount of sales,
transfer or other similar taxes or fees (including, without limitation, all real
estate, patent, copyright and trademark transfer taxes and real estate recording
fees, but excluding Restructuring Taxes) payable in connection with the
transactions contemplated by the Contribution Agreement (the "Transaction
Taxes"). Xxxxxx and Travel Centers shall each file promptly and timely the Tax
Returns for such Transaction Taxes with the appropriate taxing authorities and
remit payment of the Transaction Taxes. Travel Centers shall be liable for
Transaction Taxes.
(d) Except as set forth in this Agreement and in consideration of the
mutual indemnities and other obligations of this Agreement, any and all prior
Tax sharing agreements or practices between any member of the Xxxxxx Affiliated
Group (other than Travel Centers) and Travel Centers shall be terminated with
respect to the Travel Centers as of the Distribution Date.
3.04 PERIOD THAT INCLUDES THE DATE OF DISTRIBUTION. To the extent permitted
by law or administrative practice, the taxable year of Travel Centers shall be
treated as closing at the close of the Distribution Date. If it is necessary for
purposes of this Agreement to determine Travel Centers Taxes or Xxxxxx Taxes for
a taxable year that begins on or before and ends after the Distribution Date and
is not treated under this SECTION 3.04 as closing at the close of the
Distribution Date, the determination shall be made by assuming that such taxable
year ended on a "closing of the books" basis at the close of the Distribution
Date, except that exemptions, allowances or deductions that are calculated on an
annual basis shall be apportioned on a time basis.
ARTICLE IV
PAYMENTS
4.01 GENERAL TAX PAYMENTS. With respect to any Taxes for which one party
(the "Liable Party") is liable under SECTION 3.03 and that are to be remitted in
connection with Tax Returns to be filed by the other party (the "Filing Party")
after the Distribution Date pursuant to SECTIONS 3.01 AND 3.02, (a) upon the
request of the Filing Party, the Liable Party shall promptly provide to the
Filing Party all information necessary to enable the Filing Party to file such
Tax Returns and (b) assuming compliance by the Liable Party with the Liable
Party's obligations under clause (a) (or written waiver by the Filing Party of
such compliance), the Filing Party shall, not later than ten (10) days prior to
the due date for remitting such Taxes (or, if the due date is within forty-five
(45) days after the Distribution Date, as promptly following the Distribution
Date as possible) provide the Liable Party with a written request showing in
reasonable detail the calculation of the amount of such Liable Party's Taxes
(and any other amounts) owing by the Liable Party to the Filing Party pursuant
to this Agreement. The Liable Party shall have the right to object in writing to
such calculation on or before thirty (30) days after the date on which such
request is provided to the Liable Party, on the grounds that there is
substantial authority that such calculation is incorrect; provided that if the
Liable Party so objects, (i) the Filing Party and the Liable Party shall
promptly submit the dispute to an independent accounting or law firm acceptable
to both the Filing Party and the Liable Party for prompt resolution, whose
decision shall be final and binding on the Filing Party and the Liable Party,
and (ii) the party that such accounting or law firm determines has lost the
dispute shall pay all of the fees and expenses incurred in connection with
submitting such dispute. The Liable Party shall pay to the Filing Party any
amount not in dispute on or before the tenth (10th) day following the receipt of
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such request by the Liable Party, with additional amounts to be paid by the
Liable Party (together with interest at the Applicable Federal Rate accruing
from the date on which the Tax in issue is due) promptly upon resolution of any
objection. Payment under this SECTION 4.01 of an amount determined by an
independent accounting or law firm will not negate any liability of a Liable
Party pursuant to this Agreement by reason of a Final Determination.
4.02 OTHER PAYMENTS. Other payments due to a party under SECTION 3.03 shall
be due not later than twenty (20) days after the receipt of notice of a Final
Determination to the effect that the indemnified party is liable for an
indemnified cost, together with interest at a rate equal to the Applicable
Federal Rate from the date on which the indemnifying party receives such
receipt, credit or notice.
4.03 NOTICE. Xxxxxx and Travel Centers shall give each other prompt written
notice of any payment that may be due under this Agreement.
ARTICLE V
TAX AUDITS
5.01 GENERAL. Except as otherwise provided in this Agreement, each of
Travel Centers and Xxxxxx (as the case may be, the "Controlling Party") shall
have sole responsibility for all audits or other proceedings with respect to Tax
Returns that it is required to file under SECTION 3.01. Except as provided in
SECTION 5.03, the Controlling Party shall have the sole right to contest the
audit or proceeding and to employ advisors of its choice.
5.02 INDEMNIFIED CLAIMS IN GENERAL. Xxxxxx or Travel Centers shall promptly
notify the other in writing upon the receipt of an actual notice of assessment
by the relevant Taxing authority of any proposed adjustment to a Tax Return that
may result in liability of the other party (the "Indemnitor") under this
Agreement. If the Indemnitor is not also the Controlling Party, the Controlling
Party shall provide the Indemnitor with information about the nature and amounts
of the proposed adjustments and, subject to additional rights of the Indemnitor
in certain circumstances under SECTION 5.03 of this Agreement, shall permit the
Indemnitor to participate in the proceeding at the Indemnitor's own expense. The
Indemnitor shall pay all reasonable expenses (including, but not limited to,
legal and accounting fees) incurred by the Controlling Party in connection with
the assessment or adjustment within seven (7) days after a written request by
the Controlling Party.
5.03 CERTAIN FEDERAL INCOME TAX CLAIMS
(a) Any issues raised by the IRS in any Tax inquiry, audit,
examination, investigation, dispute, litigation or other proceeding that would
result in liability to the Indemnitor under this Agreement are defined as a
Claim (a "Claim"). Except as provided in SECTION 5.03(d) and notwithstanding any
other provision of this Agreement that may be construed to the contrary, the
Controlling Party agrees to contest any Claim and not to settle any Claim
without prior written consent of the Indemnitor, provided that (i) the
Controlling Party shall provide notice to Indemnitor pursuant to SECTION 5.02 of
any Claim, and (ii) within thirty (30) days after such notice is received by the
Indemnitor, the Indemnitor shall request in writing that such Claim be
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contested. If the Indemnitor requests that the Claim be contested in accordance
with the preceding sentence and such Claim does not materially prejudice any
other IRS claim with respect to matters unrelated to the Claim, the Indemnitor
shall have the right, upon written notice to the Controlling Party and to the
extent permitted under applicable law (assuming cooperation of the Controlling
Party), to assume the defense of such Claim, including employment of counsel
reasonably satisfactory to the Controlling Party and the payment of the fees and
disbursements of such counsel. For this purpose, a Claim does not materially
prejudice any other IRS claim solely because the Tax calculation with respect to
the Claim indirectly affects such other claim. In the event, however, that the
Indemnitor declines, fails or is otherwise unable to assume the defense of such
Claim, the Controlling Party may employ counsel to defend such Claim and the
Indemnitor shall agree to pay (and shall pay) on demand all out-of-pocket costs,
losses and expenses (including, but not limited to, legal and accounting fees)
paid or incurred by the Controlling Party in connection with contesting such
Claim. The party that has assumed defense of a Claim, after reasonable
consultation with the other party, shall determine the nature of all actions to
be taken to contest such Claim (assuming such determination does not negatively
impact any other claim that the IRS may have with respect to matters unrelated
to the Claim), including (A) whether any action to contest such Claim shall
initially be by way of judicial or administrative proceeding, or both, (B)
whether any such Claim shall be contested by resisting payment thereof or by
paying the same and seeking a refund thereof, and (C) the court or other
judicial body before which judicial action, if any, shall be commenced. To the
extent the Indemnitor is not participating, the Controlling Party shall keep the
Indemnitor (and, upon request by the Indemnitor, its counsel) informed as to the
progress of the contest.
(b) If the Indemnitor requests that the Controlling Party accept a
settlement of a Claim offered by the IRS and if such Claim may, in the
reasonable discretion of the Controlling Party, be settled without prejudicing
any claims the IRS may have with respect to matters unrelated to the Claim, the
Controlling Party shall either accept such settlement offer or agree with the
Indemnitor that the Indemnitor's liability with respect to such Claim shall be
limited to the lesser of (i) an amount calculated on the basis of such
settlement offer plus interest owed to the IRS on the date that is no more than
45 days after the date of the Indemnitor's request that the Controlling Party
accept such Settlement, or (ii) the amount calculated on the basis of a Final
Determination.
(c) If the Indemnitor elects to have the Controlling Party pay the Tax
claimed and seek a refund, the Indemnitor shall lend sufficient funds on an
interest-free basis to the Controlling Party (with no net after-tax cost to the
Controlling Party), to cover any applicable indemnity obligations of the
Indemnitor. To the extent such refund claim is ultimately disallowed, the loan
or portion thereof equal to the amount of the refund claim so disallowed shall
be applied against the Indemnitor's obligation to make indemnity payments
pursuant to this Agreement. To the extent such refund claim is allowed, the
Controlling Party shall pay to the Indemnitor all amounts advanced to the
Controlling Party with respect to the indemnity obligation within ten (10) days
of the receipt of such refund (or if the Controlling Party would have received
such refund but for the existence of a counterclaim or other claim not
indemnified by the Indemnitor under this Agreement, within ten (10) days of the
final resolution of the contest), plus an amount equal to any interest received
(or that would have been received) from the IRS that is properly attributable to
such amount.
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(d) Except as provided below, the Controlling Party shall not settle a
Claim that the Indemnitor is entitled to require the Controlling Party to
contest under SECTION 5.03(a) without the prior written consent of the
Indemnitor. At any time, whether before or after commencing to take any action
pursuant to this SECTION 5.03 with respect to any Claim, the Controlling Party
may decline to take action with respect to such Claim and may settle such Claim
without the prior written consent of the Indemnitor by notifying the Indemnitor
in writing that the Indemnitor is released from its obligations to indemnify the
Controlling Party with respect to such Claim (which notification shall release
the Indemnitor from such obligations except to the extent the Indemnitor has
agreed in writing that it would be willing to have its liability calculated on
the basis of a settlement offer, as provided in SECTION 5.03(b), at that point
in the contest) and with respect to any Claim related to such Claim or based on
the outcome of such Claim. If the Controlling Party settles any Claim or
otherwise takes or declines to take any action pursuant to this paragraph, the
Controlling Party shall pay to the Indemnitor any amounts paid or advanced by
the Indemnitor with respect to such Claim (other than amounts payable by the
Indemnitor in connection with a settlement offer pursuant to SECTION 5.03(b)),
plus interest attributable to such amounts.
ARTICLE VI
COOPERATION
6.01 GENERAL. Xxxxxx and Travel Centers shall cooperate with each other in
the filing of any Tax Returns and the conduct of any audit or other proceeding
and each shall execute and deliver such powers of attorney and make available
such other documents as are reasonably necessary to carry out the intent of this
Agreement. Each party agrees to notify the other party in writing of any audit
adjustments that do not result in Tax liability but can be reasonably expected
to affect Tax Returns of the other party or any of its subsidiaries. Each party
agrees to treat the Contribution and Distribution for all income Tax purposes as
not causing the recognition of any income, gain or loss (except for
Restructuring Taxes).
6.02 COOPERATION WITH RESPECT TO TAX RETURN FILINGS, EXAMINATIONS AND TAX
RELATED CONTROVERSIES. Each party shall fully cooperate with the other party and
its representatives, in a prompt and timely manner, in connection with the
preparation and filing of, and any inquiry, audit, examination, investigation,
dispute, or litigation involving, any Tax Return required to be filed by any
party pursuant to this Agreement. Such cooperation shall include, but not be
limited to, (a) the execution and delivery of any power of attorney required to
allow each party and its counsel to participate in or control any inquiry, audit
or other administrative proceeding and to assume the defense or prosecution, as
the case may be, of any suit, action or proceeding pursuant to the terms of and
subject to the conditions set forth in ARTICLE V of this Agreement, and (b)
making available to the other party, during normal business hours, and within
fifteen (15) days of any written request therefor, all books, records and
information, and the assistance of all officers and employees, necessary or
useful in connection with any Tax inquiry, audit, examination, investigation,
dispute, litigation or any other matter.
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ARTICLE VII
RETENTION OF RECORDS; ACCESS
Xxxxxx and Travel Centers shall:
(a) retain (for a minimum of five (5) years) records, documents,
accounting data and other information (including computer data) necessary for
the preparation and filing of all Tax Returns in respect of Taxes of the Xxxxxx
Affiliated Group or Travel Centers or for the audit of such Tax Returns; and
(b) give to the other reasonable access to such records, documents,
accounting data and other information (including computer data) and to its
personnel (insuring their cooperation) and premises, for the purpose of the
current or potential review or audit of such Tax Returns to the extent relevant
to an obligation or liability of a party under this Agreement or applicable law.
At any time after the Distribution Date that a party proposes to destroy such
records, documents, accounting data or other information, such party shall first
notify the other party in writing and such other party shall be entitled to
receive such records, documents, accounting data or other information proposed
to be destroyed.
ARTICLE VIII
DISPUTES
If Xxxxxx and Travel Centers cannot agree on any calculation of any
liabilities under this Agreement, such calculation shall be made by any
independent public accounting firm acceptable to both Xxxxxx and Travel Centers.
The decision of such firm shall be final and binding. The fees and expenses
incurred in connection with such calculation shall be borne by the party that
such independent public accounting firm determines has lost the dispute.
ARTICLE IX
TERMINATION OF LIABILITIES
Notwithstanding any other provision in this Agreement, any liabilities
determined under this Agreement shall survive indefinitely.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
or supplemented only by written agreement of the parties hereto.
10.02 WAIVER OF COMPLIANCE; CONSENTS. Any failure of a party to comply with
any obligation, covenant, agreement or condition herein may be waived by the
other party; PROVIDED, HOWEVER, that any such waiver may be made only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requests or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this SECTION 10.02, with appropriate notice in
accordance with SECTION 10.06 of this Agreement.
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10.03 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Any party may assign any of its rights
hereunder but only with the consent of the other party hereto, which consent
shall not be unreasonably withheld, but no such assignment shall relieve it of
its obligations hereunder. Nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon any person other than the parties,
any successors and permitted assigns, any rights, remedy, or claim under or by
reason of this Agreement or any provisions herein contained.
10.04 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the Laws of the State of New Mexico (without regard to its
conflicts of law doctrines).
10.05 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become a binding
Agreement when one or more of the counterparts have been signed by each of the
parties and delivered to the other party.
10.06 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail (return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
Prior to the Acquisition
If to Xxxxxx: Xxxxxx Outdoor Advertising & Travel Centers,
Incorporated
000 Xxxxxxxxx XX
Xxxxxxxxxxx, XX 00000
Attention: President
with a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
After the Acquisition
If to Xxxxxx: Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. XxXxxxxx
Facsimile transmission no.: (000) 000-0000
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With a copy to: Jones, Walker, Xxxxxxxx, Xxxxxxxxx Xxxxxxx
& Xxxxxxx, L.L.P.
Xxxxx Xxxxx, Xxxx Xxxxxx Xxxxx
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx
If to the Company: Xxxxxx Travel Centers, Inc.
000 Xxxxxxxxx XX
Xxxxxxxxxxx, XX 00000
Attention: President
with a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
10.07 HEADINGS. The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
10.08 ENTIRE AGREEMENT. This Agreement and the Contribution Agreement
(including the exhibits, schedules and other documents and instruments referred
to therein) embody the entire agreement and understanding of the parties hereto
in respect of the subject matter contained herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
10.09 SEVERABILITY. If any one or more provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein.
10.10 SURVIVAL OF REPRESENTATIONS. Except as set forth in this Agreement,
Xxxxxx'x tax-related representations with respect to the Acquisition and
Distribution shall not survive the Acquisition.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
XXXXXX OUTDOOR ADVERTISING & TRAVEL CENTERS,
INCORPORATED, a Nevada corporation
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
By: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
XXXXXX TRAVEL CENTERS, INC., a Nevada
corporation
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President and Chief Executive Officer
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