EXHIBIT 10.39
TAX COOPERATION AGREEMENT
PREAMBLE
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This Tax Cooperation Agreement ("Agreement"), dated as of January 8, 1997,
is entered into by and among Kwik Wash Laundries, L.P., a Texas limited
partnership (the "Partnership"), KWL, Inc., a Nevada corporation and sole
general partner of the Partnership (the "GP"), Kwik-Wash Laundries, Inc., a
Nevada corporation and sole limited partner of the Partnership (the "LP" and,
together with the GP, the "Partners"), Coinmach Corporation, a Delaware
corporation (the "Buyer"), and each of the parties listed on Schedule A attached
to this Agreement (each, a "Seller" and, collectively, the "Sellers").
RECITALS
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A. The Sellers collectively own all of the issued and outstanding shares
of common stock, par value $.10 per share, of GP (the "GP Stock") and all of the
issued and outstanding shares of common stock, par value $1.00 per share, of LP
(the "LP Stock" and, together with the GP Stock, the "Stock"), constituting all
of the issued and outstanding capital stock of the Partners.
B. The Sellers, the Buyer, the Partners and the Partnership have entered
into a Stock Purchase Agreement, dated as of November 25, 1996 (the "Stock
Purchase Agreement"), relating to the purchase by the Buyer from the Sellers of
all of the Stock.
C. In connection with the purchase of the Stock pursuant to the Stock
Purchase Agreement, the Sellers, the Buyer, the Partners and the Partnership
wish to set forth their agreement with respect to certain tax matters as set
forth below.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein without definition
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shall have the meanings ascribed to them in the Stock Purchase Agreement. In
the case of a conflict of meanings of such capitalized terms between the Stock
Purchase Agreement and this Agreement, this Agreement shall control.
2. Indemnity by Sellers. Except as otherwise provided in this
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Agreement, the Sellers shall be liable for, and shall indemnify and hold
harmless the Buyer's Indemnitees from and against, (i) any Taxes that may be
imposed on or incurred by the Partners and/or the Partnership with respect to
all taxable periods ending on or prior to the Closing Date; and (ii) any Taxes
allocated to the Sellers pursuant to Section 3
hereof. The indemnification described in this Section 2 shall not apply to the
extent of any Taxes (other than United States federal income Taxes) that are
reflected as a current accrued tax liability on the 1996 Balance Sheet.
Anything in this Agreement to the contrary notwithstanding, the indemnification
described in this Section 2 shall be subject to and governed by the provisions
of Article 11 of the Stock Purchase Agreement, with the indemnified amount to be
treated under said Article 11 as Damages incurred by reason of breach of the
representations and warranties in Section 4.24 of the Stock Purchase Agreement.
3. Allocation of Taxes and Tax Items. The Sellers, the Partners,
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the Partnership and the Buyer will, to the extent permitted by applicable law,
elect with the relevant Taxing Authority (as hereinafter defined) or Taxing
Authorities to close any taxable periods of the Partners and the Partnership as
of the Tax Effective Time, as hereinafter defined, and the Parties shall take
all steps, and do all acts and things, including the filing of elections or Tax
Returns with Taxing Authorities, as are or may be reasonably necessary or
appropriate to cause any such period to end as of the Tax Effective Time. In
order to accomplish this result, the Buyer, the Partners and the Partnership
agree, to the extent allowed by applicable law, regulations and rulings, that,
unless the Partnership is dissolved and liquidated on or before March 31, 1997,
the Partnership will change its taxable year to a taxable year ending March 31,
so that the Partnership will experience a taxable year end on March 31, 1997.
For purposes of this Agreement, "Party" shall mean one of the members of the
group consisting of the Sellers, the Partners, the Partnership and the Buyer;
"Parties" shall mean all of the members of such group; "Taxing Authority" shall
mean a federal, local, municipal, state, or other governmental body; and "Tax
Effective Time" shall mean (i) the close of business on the day before the
Closing Date when used with reference to either (a) federal income Taxes, or (b)
state or local income Taxes in the case of each state or local Taxing Authority
imposing an income Tax with respect to which the taxable income or loss of the
Partners is, by reason of the sale of stock to be consummated at the Closing,
determined based on a taxable period ending as of the close of business on the
day before the Closing, or (ii) the close of business on the Closing Date when
used with reference to either (a) all Taxes other than income Taxes, or (b)
state or local income Taxes other than those described in clause (b) of part (i)
of this definition of Tax Effective Time. In any case where applicable law does
not permit the Partnership or one of the Partners to close its taxable period as
of the Tax Effective Time, then Taxes (whether based on income, capital,
ownership of property or otherwise), if any, attributable to the taxable period
of such Party, as applicable, that includes the Tax Effective Time, but does not
end as of the Tax Effective Time, shall be allocated to (i) the Sellers for the
period up to and including the Tax Effective Time (the "Pre-Closing Period"),
and (ii) the Partners and/or the Buyer for the period subsequent to the Tax
Effective Time (the "Post-Closing Period"). For purposes of applying Section
4.24 of the Stock Purchase Agreement to determine the extent to which the Taxes
for all taxable periods ending after the Closing Date are properly attributable
to the portion of any such taxable period ending on the Closing Date, the Taxes
allocated hereunder to the Pre-Closing Period shall be considered to be properly
attributable to the portion of such taxable period ending on the Closing Date,
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and the Taxes allocated hereunder to the Post-Closing Period shall be considered
to be properly attributable to the portion of such taxable period occurring
after the Closing Date. For purposes of this Section 3, the allocation of Taxes
between the Pre-Closing Period and the Post-Closing Period shall be determined
as follows:
(a) In the case of property or ad valorem Taxes or franchise Taxes
(which are not measured by, or based upon, net income), such Taxes for the Pre-
Closing Period and for the Post-Closing Period shall be determined ratably on an
equal per diem basis; and
(b) In the case of (i) other Taxes, including without limitation
income Taxes, and (ii) Tax Items, as hereinafter defined, such other Taxes and
Tax Items shall be determined on the basis of an interim closing of the books of
the Partnership and each of the Partners as of the Tax Effective Time (except
that exemptions, allowances, and deductions for a taxable period that are
calculated on an annual or periodic basis, such as the deduction for
depreciation, shall be apportioned between the Pre-Closing Period and the Post-
Closing Period ratably on an equal per diem basis). For purposes of this
Agreement, "Tax Items" of an entity shall mean the taxable income or loss of
such entity, each item of income, gain, loss or deduction that is a constituent
of such taxable income or loss, and each item of income, gain, loss, deduction
and credit that is required to be separately stated for income tax purposes.
The actual Tax for a taxable period that includes the Tax Effective Time shall
be apportioned between the Pre-Closing Period and the Post-Closing Period in
proportion to the hypothetical Taxes that would result for the Pre-Closing
Period and the Post-Closing Period if each such period were a separate taxable
period, determined without adjustment for the length of the period. Except as
otherwise required by law, where the timing of an item cannot be determined from
the books and records of the Partnership or the Partners, it shall be prorated
in an equitable manner on the basis of the best available evidence. Tax
brackets, fixed statutory deductions and similar items do not require proration
for purposes of this Section 3.
(c) The Change of Control Payments, as well as the federal and state
payroll taxes incurred by the Partnership as a result of making the Change of
Control Payments (collectively, the Change of Control Payments and the described
payroll taxes hereinafter referred to as the "Special Bonus Payments"), will be
claimed as deductions (the "Special Bonus Deductions") for income tax purposes
by the Partnership in the period beginning on January 1, 1997 and ending on the
Tax Effective Time (the "1997 Pre-Closing Period"), and will be included as
deductions in determining the Tax Items of the Partnership that are allocated
among the Partners for income tax purposes for the 1997 Pre-Closing Period. In
turn, the taxable income or loss of the Partners for the 1997 Pre-Closing Period
will be determined for income tax purposes by including as a current deduction,
deductible by the Partnership during the 1997 Pre-Closing Period, the aggregate
amount of the Special Bonus Payments, so that (i) the taxable income or loss of
the Partners allocated to the Sellers with respect to the operations of the
Partnership for the 1997 Pre-Closing Period will in the aggregate be determined
based on a current deduction being claimed by the Partnership during the
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1997 Pre-Closing Period equal to the aggregate of the Special Bonus Payments,
and (ii) the aggregate taxable income or loss recognized by the Sellers
resulting from the operations of the Partnership for 1997 will be determined
based on such taxable income being reduced, or if applicable such taxable loss
being increased, by an amount equal to the aggregate of the Special Bonus
Payments. The Parties agree that, anything in this Agreement to the contrary
notwithstanding, (i) the Special Bonus Deductions shall be allocated entirely
to, and claimed as deductions by the Partnership within, the 1997 Pre-Closing
Period, and (ii) neither the Partnership, the Partners nor the Buyer makes any
representations or warranties as to the deductibility to any Party of the
Special Bonus Payments or as to any tax benefits to which any Party may or may
not be entitled as a result of the Partnership making the Special Bonus
Payments. Except as provided in Section 3(d) hereof, the Buyer, the Partnership
and the Partners each agrees not to claim during the Post-Closing Period or any
taxable period occurring thereafter, and the Buyer agrees to cause the
Partnership and/or either or both of the Partners not to claim during the Post-
Closing Period or any taxable period occurring thereafter, any deductions
whatsoever for income tax purposes arising from the payment of the Special Bonus
Payments. Except as provided in Section 3(d) hereof, each of the Parties agrees
not to take a position for income tax purposes, whether on a Tax Return or as a
result of an examination or audit by any Taxing Authority or otherwise, contrary
to the provisions of this Section 3(c).
(d) If for any reason the Sellers are denied deductions for federal
income tax purposes for their respective allocable shares (based upon the
Sellers' respective indirect percentages of ownership of the Partnership) of the
Special Bonus Payments by a Final Determination, as hereinafter defined (whether
such denial occurs by reason of (i) disallowing the Special Bonus Deductions in
whole or in part as deductions to the Partnership during the 1997 Pre-Closing
Period, (ii) denying, in whole or in part, the effect of such deductions on a
pass-through basis to the Sellers, or (iii) otherwise), then subsequent to the
date of such Final Determination, but not before such date, the Partnership, the
Partners, and/or the Buyer shall, to the extent of such disallowance, be
entitled to attempt to claim all or any portion of such Special Bonus Payments
as deductions for federal income tax purposes without regard to the provisions
of Section 3(c) hereof. If for any reason the Sellers are denied deductions for
state or local income tax purposes for their respective allocable shares of the
Special Bonus Payments by a Final Determination (whether such denial occurs by
reason of (i) disallowing the Special Bonus Deductions in whole or in part as
deductions to the Partnership during the 1997 Pre-Closing Period, (ii) denying,
in whole or in part, the effect of such deductions on a pass-through basis to
the Sellers, or (iii) otherwise), then subsequent to the date of such Final
Determination, but not before such date, with respect to the particular state or
local income tax involved, the Partnership, the Partners and/or the Buyer shall,
to the extent of such disallowance, be entitled to attempt to claim all or any
portion of the Special Bonus Payments as deductions for purposes of calculating
such state or local income tax without regard to the provisions of Section 3(c)
hereof. In the event the Partnership, the Partners and/or the Buyer become
entitled to attempt to claim all or any portion of the Special Bonus Payments as
deductions as provided in this
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Section 3(d), the Sellers make no representation or warranty as to whether any
such deductions will be allowable to any Party. For purposes of this Agreement,
"Final Determination" shall mean the final resolution of a Seller Tax Issue, as
hereinafter defined, by (i) a decision of the Tax Court or judgment, decree, or
other order by a court of competent jurisdiction, which has become final and
unappealable; (ii) IRS Form 870, 870-AD, 870-L, 870-L(AD), 870-P, 870-P(AD),
870-S, or 870-S(AD) (or any successor forms thereto), on the date of acceptance
by or on behalf of the IRS, or by a comparable agreement form under the laws of
other jurisdictions; except that a Form 870, 870-AD, 870-L, 870-L(AD), 870-P,
870-P(AD), 870-S, or 870-S(AD) or comparable form that reserves the right of the
taxpayer to file a claim for refund and/or the right of the Taxing Authority to
assert a further deficiency shall not constitute a final determination; (iii) a
closing agreement or offer in compromise under Sections 7121 or 7122 of the Code
or under corresponding provisions of any subsequently enacted Federal tax laws,
or comparable agreements under the laws of other jurisdictions; (iv) any
allowance of a refund or credit in respect of any overpayment of tax, including
any related interest or penalties, but only after the expiration of all periods
during which such refund may be recovered (including by way of offset) by the
Tax imposing jurisdiction; or (v) any other final disposition by reason of the
expiration of the applicable statute of limitations or the expiration of the
period during which a protest may be filed. For purposes of this Agreement, the
final resolution of a "Seller Tax Issue" shall mean the final resolution of the
Tax liability of the Sellers for 1997, the final resolution of the amount of
taxable income or loss of the Partnership allocable among the Partners for the
1997 Pre-Closing Period, or the final resolution of the amount of taxable
incomes or losses of the Partners allocable among the Sellers for 1997.
4. Indemnification by Buyer. Except as otherwise provided in this
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Agreement, the Buyer shall be liable for, and shall indemnify and hold harmless
the Sellers' Indemnitees from and against, (i) any Taxes arising from any event
occurring on the Closing Date, but after the Closing, which is outside the
ordinary course of the Business, (ii) any Taxes arising from an election or
deemed election, or election imposed by a Taxing Authority, under Section 338 of
the Code (or any comparable provision of state, local or foreign law) with
respect to the purchase of the Stock; (iii) any Taxes that may be imposed on or
incurred by the Partnership or the Partners with respect to all taxable periods
beginning after the Tax Effective Time; (iv) any sales, use, transfer, real
property transfer or gain, stamp, documentary or similar Taxes arising out of or
resulting from any transaction contemplated by the Stock Purchase Agreement; and
(v) any attorneys' fees or other costs incurred by any of Sellers' Indemnitees
thereof in collecting any payment from the Buyer under this Agreement in the
event such payment is not made by the Buyer as provided herein.
5. Tax Refunds. The Buyer agrees to pay (and to cause each of the
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Partners and the Partnership to pay) to the Sellers all refunds of any Taxes for
which the Sellers are liable under Section 2 hereof, but only to the extent such
refund has not been reflected as a receivable on the 1996 Balance Sheet. The
Sellers agree to pay to the Buyer all refunds of any income Taxes imposed on
taxable income or gains allocated to
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the Post-Closing Period pursuant to Section 3 hereof and any other Taxes
allocated to the Post-Closing Period pursuant to Section 3 hereof. The Parties
shall cooperate in order to take all reasonably necessary steps to claim any
such refund. Any such refund received by a Party (considering, for purposes of
this sentence, the Buyer, the Partners and the Partnership as one Party, and the
Sellers as the other Party) or the respective Affiliates of such Party for the
account of the other Party shall be paid to such other Party within thirty (30)
days after such refund is received. For purposes of this Agreement, a refund of
Tax includes the application of an amount otherwise refundable as a reduction of
amounts owed or to be owed.
6. Payment of Taxes. All Taxes with respect to the Partners and the
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Partnership shall be paid to the appropriate Taxing Authority by the Party that
is responsible therefor under the applicable tax law. Except as otherwise
provided in this Agreement, any amount to which a Party is entitled under this
Agreement shall be promptly paid to such Party by the Party obligated to make
such payment following written notice to the Party so obligated stating that the
Taxes to which such amount relates are due and providing details supporting the
calculation of such amount.
7. Tax Returns.
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(a) All Tax Returns that relate to any Taxes of the Partners and the
Partnership shall be prepared and filed by the Party that is legally responsible
therefor.
(b) The Buyer, the Partnership and the Partners each agree that the
Partnership and the Partners shall afford Xx. Xxxxxxx X. Xxxxxxxx, on behalf of
the Sellers, a reasonable opportunity to review its calculations of Tax Items
which are included on all Seller-Affected Tax Returns (as hereinafter defined)
filed after the Closing prior to their inclusion in the applicable Tax Returns.
For purposes of this Agreement, "Seller-Affected Tax Return" shall mean any Tax
Return filed by, or on behalf of, the Partnership or either of the Partners that
includes Tax Items that are allocable, directly or indirectly, between or among
parties that include one or more of the Sellers. An indirect allocation of a
share of a Tax Item to a Seller would include, without limitation, the
allocation of a Tax Item of the Partnership among the Partners that in turn
affects the amount of one or more Tax Items of either or both Partners that is
allocable to such Seller.
(i) With respect to each Tax Return that is a Seller-Affected Tax
Return, the Partnership and each Partner, as applicable, shall provide the
Sellers and their authorized representatives with copies of such completed
Tax Return at least sixty (60) business days prior to the due date (or the
extended due date, if an extension of time for filing has been obtained)
for the filing of such Tax Return, and the Sellers and their authorized
representatives shall have the right to review such Tax Returns, and the
Sellers shall have the right to approve the
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contents of each such Tax Return prior to the filing thereof with the
appropriate Taxing Authority.
(ii) Each Seller-Affected Tax Return to be filed after Closing
shall be prepared (in the absence of (i) a controlling change in law or
circumstances or (ii) consent of the Sellers) consistent with past
practices, elections, accounting methods, conventions and principles of
taxation used for the most recent taxable period for which Tax Returns
involving similar Tax Items have been filed; provided that, anything in
this Agreement to the contrary notwithstanding, each Seller-Affected Tax
Return shall be prepared and filed based on the allocations of Tax Items
between the Pre-Closing Period and the Post-Closing Period as provided in
Section 3 hereof.
(iii) Any disagreement between the Parties (considering, for
purposes of this Section 7(b)(iii), the Buyer, the Partners and the
Partnership as one Party, and the Sellers as the other Party) with respect
to any aspect of the treatment of any Tax Item on a Seller-Affected Tax
Return to be filed after Closing which is not resolved by mutual agreement
of the Parties shall be resolved by a nationally recognized independent
public accounting firm chosen by and mutually acceptable to the Parties
(the"Tax Matters Referee"). Such Tax Matters Referee shall be chosen by
the Parties within ten (10) business days from the date on which one Party
serves written notice on the other Party requesting the appointment of a
Tax Matters Referee, provided that such notice specifically describes the
matters to be considered and resolved by the Tax Matters Referee. For
purposes of the preceding sentence, notice to the Party consisting of the
Sellers may be given by giving notice to Xxxxxxx X. Xxxxxxxx, and notice to
the Party consisting of the Buyer, the Partners and the Partnership may be
given by giving notice to the Buyer. In the event the Parties cannot agree
on the selection of a Tax Matters Referee, then the Tax Matters Referee
shall be the Dallas office of the public accounting firm of Xxxxxx Xxxxxxxx
LLP. Within twenty (20) days of appointment, the Tax Matters Referee shall
resolve any such disagreements that are specified in the notice; provided
that, in determining its resolution of each disagreement, the Tax Matters
Referee shall be bound by the requirements set forth in Section 7(b)(ii)
hereof for the preparation of Seller-Affected Tax Returns. Any resolution
of an issue submitted to the Tax Matters Referee shall be final and binding
on the parties to this Agreement without further recourse. The Parties
shall share the costs and fees of the Tax Matters Referee equally.
(c) The Sellers and their Affiliates will not take any action to amend
or change the manner in which any Tax Items with respect to the Partnership or
either of the Partners have been reported on any previously filed Tax Returns;
provided, however, the Sellers and their Affiliates shall be entitled to amend
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any such Tax Returns in a manner which does not adversely affect the Buyer or
the Affiliates of such Party, and further provided that the Sellers and their
Affiliates may amend Tax Returns to the extent
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required to reflect any adjustment or adjustments made as a result of an audit
or audits by any Taxing Authority.
(d) The Buyer and its Affiliates, including the Partners and the
Partnership, shall cooperate with the Sellers and shall make available all
necessary books and records and timely take all action reasonably necessary to
allow the Sellers and their Affiliates to prepare and file the Tax Returns that
they are responsible for preparing and filing under this Section 7 and to
prepare and file the Tax Returns of the Sellers.
(e) The Buyer, the Partnership, the Partners and their respective
Affiliates will not take any action to amend or change the manner in which any
Tax Items with respect to the Partnership or either of the Partners have been
reported on any Seller-Affected Tax Return.
(f) Xxxxxxx X. Xxxxxxxx is hereby designated as the tax matters person
on the Tax Returns on Form 1120S filed for the Partners for the taxable period
or periods ending on or before the Closing. In the event that Xxxxxxx X.
Xxxxxxxx shall fail or refuse to serve as tax matters person, the Sellers may
designate a person to serve as tax matters person in a writing executed by a
majority of the Sellers.
8. Cooperation in Preparation of Tax Returns. The Buyer, including
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without limitation the Partners and the Partnership, and the Sellers shall
cooperate fully with each other and make available to each other such tax data
and other information as may be reasonably required for the preparation by the
Buyer or the Sellers of any Tax Returns required to be prepared and filed by the
Buyer or the Sellers hereunder, as well as Tax Returns required by law to be
filed by Sellers.
9. Tax Audits. In the event the Buyer, either or both of the
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Partners, the Partnership or their Affiliates receive written notice (the "Audit
Notice") of any pending Tax audit or assessment which may affect the
determination of Taxes for which the Sellers are or may be liable under Section
2 hereof or pursuant to Section 4.24 of the Stock Purchase Agreement, the Buyer
shall notify the Sellers in writing thereof (the "Buyer Notice") no later than
the earlier of (i) thirty (30) days after the receipt by the Buyer, either or
both of the Partners, the Partnership or their Affiliates of the Audit Notice,
or (ii) ten (10) days prior to the deadline for responding to the Audit Notice.
As to any Taxes covered by such Tax audit or assessment for which the Sellers
are solely liable under Section 2 hereof or Section 4.24 of the Stock Purchase
Agreement, the Sellers shall be entitled at their expense to control or settle
the contest (including the employment of counsel of its choice) of any Tax audit
or administrative or court proceeding relating thereto, provided the Sellers
notify the Buyer in writing (the "Sellers Notice") that they desire to control
such contest no later than the earlier of (a) forty-five (45) days after receipt
of the Buyer Notice, or (b) five (5) days prior to the deadline for responding
to the Audit Notice. The Parties agree that they will cooperate, and cause each
of their respective Affiliates to cooperate, fully with each other and with
their respective counsel in the defense against or compromise of any claim in
any said
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proceeding. Only one Sellers Notice shall be required regarding any pending Tax
Audit or assessment.
10. Exchange of Information; Access to Records.
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(a) Each Party (considering, for purposes of this sentence, the Buyer,
the Partners and the Partnership as one Party, and the Sellers as the other
Party) will provide, or cause to be provided, to the other Party copies of all
correspondence received from any Taxing Authority by such Party or any of its
Affiliates in connection with the liability of either of the Partners or the
Partnership for Taxes for any period for which such other Party is or may be
liable under Sections 2 or 4 hereof.
(b) The Buyer will, and will cause the Partners and the Partnership
to, (i) cooperate with the Sellers and permit the Sellers to have full access,
at any reasonable time and from time to time, at the business location at which
the books and records of the Partners and the Partnership are maintained, after
the Closing Date, to such Tax data relating exclusively to either or both of the
Partners or the Partnership or to the determination of the Tax liability of any
Seller or Sellers as the Sellers may from time to time reasonably request, and
(ii) gather and furnish, and request the independent accountants of the Buyer or
either or both of the Partners and the Partnership to gather and furnish, to the
Sellers such additional Tax and other information and documents in the
possession of such persons either (i) relating to the Partnership and/or either
or both of the Partners, or (ii) relating to the determination of the liability
for Taxes of any one or more of the Sellers, as the Sellers may from time to
time reasonably request in connection with (a) preparing or filing any Tax
Return or claim for refund, (b) determining a liability or a right of refund, or
(c) conducting or responding to any audit, investigation or other proceeding, in
respect of Taxes for any period for which the Sellers are or may be liable.
Similarly, the Sellers will (i) cooperate with the Buyer, the Partners and the
Partnership and permit the Buyer, the Partners, and/or the Partnership to have
full access, at any reasonable time and from time to time, at the business
location at which the appropriate books and records are maintained, after the
Closing Date, to such Tax data relating exclusively to the Partnership or to
either or both of the Partners in the possession of the Sellers as the Buyer,
the Partners and/or the Partnership may from time to time reasonably request,
and (ii) gather and furnish, and request the independent accountants of the
Sellers to gather and furnish to the Buyer, the Partners and/or the Partnership
such additional Tax and other information and documents relating to the
Partnership and/or either or both of the Partners in the possession of such
persons as the Buyer may from time to time reasonably request in connection with
preparing or filing any Tax Return or claim for refund, in determining a
liability or a right of refund or in conducting or responding to any audit,
investigation or other proceeding, in respect of Taxes for any period for which
the Sellers are or may be liable.
(c) Each Party (considering, for purposes of this sentence, the Buyer,
the Partners and the Partnership as one Party, and the Sellers as the other
Party) agrees that such information and documents relating to the Partnership
and/or either or
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both of the Partners as are, pursuant to the terms of the Stock Purchase
Agreement, in its possession after the Closing, including without limitation
books, records, Tax Returns, claims for refund and all schedules, work papers
and all material records or other documents relating to any such Tax Returns,
claims, audits or other proceedings, shall be preserved and retained until the
close of the twelve (12) month period immediately following the expiration of
the applicable Tax statute of limitations (giving effect to any extension,
waiver or mitigation thereof); provided, however, that, in the event that, prior
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to the expiration of such period, (i) a proceeding has been instituted for which
the information or documents may be requested, and (ii) the keeper of such
information or documents is given notice of such proceeding prior to the
expiration of such period, the information or documents shall be retained until
the expiration of the twelve (12) month period immediately following the later
of (a) the final determination with respect to such proceeding, and (b) the date
any obligations with respect thereto are fully satisfied. Each Party
(considering, for purposes of this sentence, the Buyer, the Partners and the
Partnership as one Party and the Sellers as the other Party) shall make such
information and documents available to the other Party or any Affiliate thereof,
and their respective officers, employees and agents, upon reasonable notice and
at reasonable times, it being understood that such representatives shall be
entitled to make copies of any such books and records relating to the Partners,
the Partnership and/or the Tax Items of either or both of the Partners or the
Partnership that affect the Sellers' respective Tax liabilities as they shall
deem necessary. Any information or documents obtained pursuant to this Section
10 shall be kept confidential, except as required by law or legal process or as
may be otherwise necessary in connection with the filing of Tax Returns or
claims for refund or in conducting or responding to any audit, investigation or
other proceeding. Each Party shall provide the cooperation and information and
documents required by this Section 10 at its own expense.
(d) If either Party (considering, for purposes of this Section 10(d),
the Buyer, the Partners and the Partnership as one Party, and the Sellers as the
other Party) fails to provide any information or documents requested pursuant to
this Section 10 within a reasonable period, as determined in good faith by the
Party requesting the information or documents, then the requesting Party shall
have the right to engage a public accounting firm to gather such information or
documents, provided that thirty (30) days prior written notice is given to the
unresponsive Party before taking such action. If the unresponsive Party fails
to provide the requested information or documents within thirty (30) days of
receipt of such notice, then such unresponsive Party shall permit the requesting
Party's public accounting firm full access to all appropriate records or other
information or documents as reasonably necessary, and shall reimburse the
requesting Party, or pay directly, all costs connected with the requesting
Party's engagement of the public accounting firm to gather the requested
information or documents.
11. Payment as Purchase Price Adjustment. The Sellers and the Buyer
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agree that any payment made hereunder or pursuant to Article 11 of the Stock
Purchase Agreement will be treated by the Parties on their Tax Returns as an
adjustment to the aggregate Purchase Price for the Stock.
Tax Cooperation Agreement
-------------------------
Page 10
12. Amendments; Waivers. No provision of this Agreement may be
-------------------
amended, waived or otherwise modified without the prior written consent of the
Sellers and the Buyer. No failure or delay by any Party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
13. Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of the Parties and their respective successors and permitted
assigns. No assignment of this Agreement or of any rights or obligations
hereunder may be made by any Party (by operation of law or otherwise) without
the prior written consent of the other Parties, and any attempted assignment
without the required consent shall be void; provided, however, that, in the
event the Buyer sells the Stock or one or both of the Partners sell their
interests in the Partnership to a third Party prior to the termination of this
Agreement, (i) such third Party shall be substituted for the Buyer and/or the
selling Partner or Partners hereunder, and (ii) any such sale shall be
conditioned upon such third Party agreeing to be bound by the terms of this
Agreement as applicable to the Buyer and/or the Partners hereunder.
14. Other Actions and Documents. Subject to the provisions hereof,
---------------------------
the Parties hereto shall make, execute, acknowledge and deliver such other
instruments and documents, and take all such other actions, as may be reasonably
requested by another Party in order to effectuate the purposes of this
Agreement.
15. No Third Party Rights. Except as herein otherwise specifically
---------------------
provided, nothing in this Agreement expressed or implied is intended to confer
any right or benefit upon any person, firm, partnership or corporation other
than the Parties and their respective successors and permitted assigns.
16. Changes in Law, Regulation or Interpretation. If, due to any
--------------------------------------------
change in applicable law or regulations or the interpretation thereof by any
court of law or other governing body having jurisdiction subsequent to the date
of this Agreement, performance of any provision of this Agreement or any
transaction contemplated thereby shall become impracticable or impossible, the
Parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such provision.
17. Costs and Expenses. Except as expressly set forth in this
------------------
Agreement, each Party shall bear its own costs and expenses incurred pursuant to
this Agreement.
18. Counterparts; Headings. This Agreement may be executed in one or
----------------------
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument. The headings in
this Agreement are for convenience of reference only and shall not be deemed a
part of this Agreement.
Tax Cooperation Agreement
-------------------------
Page 11
19. Severability. The Parties hereby agree that if any provision of
------------
this Agreement should be adjudicated to be invalid or unenforceable, such
provision shall be deemed deleted herefrom with respect, and only with respect,
to the operation of such provision in the particular jurisdiction in which such
adjudication was made, and only to the extent of the invalidity, and any such
invalidity or unenforceability in a particular jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. All other
remaining provisions of this Agreement shall remain in full force and effect for
the particular jurisdiction and all other jurisdictions.
20. Entire Agreement. This Agreement and the Stock Purchase
----------------
Agreement contain the entire agreement between the Parties with respect to the
subject matter hereof. Any tax indemnity, sharing, allocation or similar
agreements, arrangements, or practices between the Sellers and any Affiliates
thereof, on one hand, and either of the Partners and/or the Partnership, on the
other hand, are hereby terminated, and all rights and duties thereunder are
hereby extinguished, effective as of the Closing Date, and no such agreements,
arrangements or practices shall be or shall have been entered into or
implemented thereafter, except as provided in this Agreement or the Stock
Purchase Agreement. Except as provided herein, this Agreement shall not create
any rights in any person other than the Parties to this Agreement.
21. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York without giving effect to
conflicts of law principles thereof.
22. Notices. Any notices required hereunder shall be given as
-------
provided in the Stock Purchase Agreement, provided that notice given to the
Buyer shall be deemed to be notice also to each of the Partners and the
Partnership.
23. Survival of Obligations. Notwithstanding anything in this
-----------------------
Agreement or the Stock Purchase Agreement to the contrary, this Agreement shall
remain in effect and its provisions shall survive for the full period of all
applicable statutes of limitation (giving effect to any extension, waiver or
mitigation thereof), plus six (6) months; provided, however, that in the event
a claim is brought against one or more of the Sellers, the Buyer, either or both
of the Partners, or the Partnership in respect of any item of Tax within the
applicable survival period, the rights and obligations under this Agreement with
respect thereto shall survive the expiration of such period until such claim is
finally resolved and any obligations with respect thereto are fully satisfied.
24. Good Faith Clause. The Parties agree to cooperate in good faith
-----------------
and to take all reasonable steps to carry out the terms and the intent of this
Agreement.
25. Buyer's Commitment Regarding Obligations of Partnership and
-----------------------------------------------------------
Partners. The Buyer agrees to cause each Partner and the Partnership to perform
--------
all of their respective obligations under this Agreement applicable to the time
period following the Closing.
Tax Cooperation Agreement
-------------------------
Page 12
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the date first above written.
KWL, INC.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
KWIK-WASH LAUNDRIES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
KWIK WASH LAUNDRIES, L.P.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President of the General
Partner
COINMACH CORPORATION
By: /s/ XXXX X. XXXXXX
------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
SELLERS:
/s/ XXXXXX XXXX XXXX
------------------------------------
Xxxxxx Xxxx Xxxx
/s/ XXXXXX XXXX XXXX
------------------------------------
Xxxxxx Xxxx Xxxx
Tax Cooperation Agreement
-------------------------
Page 13
/s/ XXXXX XXX FORD
------------------------------------
Xxxxx Xxx Ford
/s/ XXXXXX X. XXXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXXX X. XXXXXXXX
------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ XXXXXXX XXXXXXXX XXXX, XX.
------------------------------------
Xxxxxxx Xxxxxxxx Xxxx, Xx.
Trustee U/D/T February 4, 1994
Tax Cooperation Agreement
-------------------------
Page 14
SCHEDULE A
TO TAX COOPERATION AGREEMENT
Shareholders in KWL, Inc.:
-------------------------
Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx Xxxx
Xxxxx Xxx Xxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx Xxxx, Xx., Trustee U/D/T Feb. 4, 1994
Shareholders in Kwik-Wash Laundries, Inc.:
-----------------------------------------
Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx Xxxx
Xxxxx Xxx Xxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx Xxxx, Xx., Trustee U/D/T Feb. 4, 1994
Schedule A Page 1 of 1
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