EXHIBIT 10.6
EXECUTION AGREEMENT
TAX SHARING AGREEMENT
This Tax Sharing Agreement (the "Agreement"), dated as of
February 4, 2004, is made by and among Town Sports International Holdings, Inc.,
a Delaware corporation ("Holdings"), Town Sports International, Inc., a New York
corporation ("TSI"), and the other signatories to this Agreement (the
"Subsidiaries").
WHEREAS, Holdings is the common parent corporation of an
affiliated group of corporations within the meaning of Section 1504(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, TSI is a member of the affiliated group of which
Holdings is the common parent corporation, and each of the Subsidiaries is a
wholly-owned subsidiary of TSI; and
WHEREAS, Holdings, TSI and the Subsidiaries will file
consolidated income tax returns as required by Section 1501 of the Code and
similar laws of other jurisdictions; and
WHEREAS, Holdings, TSI and the Subsidiaries desire to agree
upon a method for determining the financial consequences to each party resulting
from the filing of a consolidated income tax return; and
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereby agree as follows:
1. DEFINITIONS.
(a) For purposes of this Agreement, the terms set forth below
shall have the following meanings.
(i) "Alternative Minimum Tax" shall mean the tax imposed
by Section 55(a) of the Code.
(ii) "Consolidated Federal Tax Liability" shall mean, with
respect to any taxable year, the Alternative Minimum Tax and Regular Tax to be
actually paid by the Holdings Group with respect to such taxable year (without
taking into account any carry-backs of tax attributes from later taxable years).
(iii) The "Federal Tax Liability" of any Subgroup shall
mean, with respect to any taxable year, the sum of the Subgroup's liability for
Regular Tax and for Alternative Minimum Tax for such taxable year, and any
interest, penalties, and other additions to such taxes for such taxable year,
computed as if the Subgroup were not part of the Holdings Group, but rather were
a separate affiliated group of corporations filing a consolidated United States
federal income tax return pursuant to Section 1501 of the Code. Such computation
shall be made (A) without regard to the income, deductions (including net
operating loss and capital loss deductions) and credits in any year of any
member of the Holdings Group which is not a member of the Subgroup, (B) with
regard to net operating loss and capital loss carry-forwards from earlier years
(but not carry-backs from later years) of the Subgroup, (C) with regard to the
minimum tax credits of the Subgroup and (D) as though the highest rate of tax
specified in subsection (b) of Section 11 of the Code were the only Regular Tax
rate applicable to the Subgroup.
(iv) "Holdings Group" shall mean Holdings, TSI and the
Subsidiaries and any other corporation that, from time to time, joins with
Holdings in the filing of a consolidated United States federal income tax
return.
(v) "Regular Tax" shall mean the tax imposed by Section
11 of the Code.
(vi) "Subgroup" shall be comprised of any member of the
Holdings Group (other than Holdings) and its direct corporate subsidiaries that
would be eligible, from time to time, to join with such member in the filing of
a consolidated United States federal income tax return if such member were not a
member of the Holdings Group.
(vii) "Subgroup Additional Tax Amount" shall mean the
excess of (A) the sum of a Subgroup's Federal Tax Liability for the period
beginning when such Subgroup entered the Holdings Group and ending in the
taxable year at issue over (B) the sum of such Subgroup's Subgroup Payment for
the period beginning when such Subgroup entered the Holdings Group and ending in
the taxable year at issue.
(viii) "Subgroup Parent" means the corporation that is the
controlling member of a Subgroup. In the case of a Subgroup that consists of a
single corporation, Subgroup Parent means that corporation.
(b) For all purposes of this Agreement, unless the context
otherwise requires, the definitions of terms not defined herein shall be
determined by reference to applicable law.
2. UNITED STATES FEDERAL INCOME TAXES.
(a) References. All references in this Section 2 to taxes or
matters related to taxes are references to United States federal income taxes
and related United States federal income tax matters.
(b) Tax Sharing.
(i) With respect to any taxable year of each Subgroup,
each Subgroup Parent shall pay to Holdings an amount equal to the lesser of (A)
the Subgroup's Federal Tax Liability or (B) the amount equal to the product of
the Consolidated Federal Tax Liability for such Taxable year and a fraction (1)
the numerator of which is the taxable income of such Subgroup for such taxable
year (or zero, if such taxable income is negative), where the taxable income is
calculated on the basis of the assumption that such Subgroup had filed separate
federal income tax returns for such taxable year and all prior years and (II)
the denominator of which is the sum of the taxable income for such taxable year
of each Subgroup of the Holdings Group which has positive taxable income for
such taxable year, where taxable income of a Subgroup of the Holdings Group is
calculated on the basis of the assumption that such Subgroup had filed a
separate federal income tax return for such taxable year and all prior taxable
years. The actual
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amount of tax required to be paid by any Subgroup pursuant to the preceding
sentence is hereinafter referred to as the "Subgroup Payment."
(ii) In the event that the Consolidated Federal Tax
Liability for any taxable year exceeds the sum of the Subgroup Payments of the
Subgroups for such year (such excess hereinafter referred to as the "Additional
Tax Amount"), Holdings may collect from each Subgroup an amount equal to the
lesser of (A) the Subgroup Additional Tax Amount of such Subgroup and (B) an
amount equal to the product of the Additional Tax Amount and a fraction (I) the
numerator of which is the Subgroup Additional Tax Amount of such Subgroup and
(II) the denominator of which is the sum of the Subgroup Additional Tax Amounts
for all Subgroups.
(c) Estimated Payments. Not later than thirty days prior to each
date on which an estimated federal income tax installment is due (a "Tax Payment
Date"), Holdings shall determine, and notify each Subgroup Parent of, (i) the
amount of the applicable required installment of the required annual payment of
the Holdings Group under Section 6655(d) of the Code and (ii) the amount of such
required installment calculated solely by reference to the Subgroup consistent
with the methodology under Section 2(b) of this Agreement (the "Subgroup
Estimated Payment"). Each Subgroup Parent shall then pay to Holdings, on (but no
earlier than) the date which is three business days prior to such Tax Payment
Date, the Subgroup Estimated Payment thus determined.
(d) Payment of Taxes at Year-End.
(i) Holdings shall determine, and notify each Subgroup
Parent of, the Subgroup Payment within 60 days following the end of the taxable
year for which the payment is to be made. On (but no earlier than) the date
which is three business days prior to the last date prescribed by law for
payment of the consolidated United States federal income tax liability of the
Holdings Group for such year, each Subgroup Parent shall pay to Holdings an
amount equal to the excess, if any, of the Subgroup Payment over the total
Subgroup Estimated Payments with respect to such taxable year. A similar rule
shall apply to the extent the amount of the Subgroup Payment determined within
the 60-day period specified in this clause (i) is adjusted at or prior to the
time at which the consolidated federal income tax return for such year is filed.
(ii) If, as a result of the operation of Section 2(c), the
aggregate amount of the Subgroup Payments for a Subgroup for a given taxable
year is greater than the applicable Subgroup Payment, then Holdings shall
promptly remit the excess to such Subgroup Parent. A similar rule shall apply to
the extent the amount of the Subgroup Payment determined within the 60-day
period specified in clause (i) of this Section 2(d) is adjusted at or prior to
the time at which the consolidated federal income tax return for such year is
filed. If Holdings shall fail to remit such excess, the applicable Subgroup
Parent may offset such excess against any future payments due from such Subgroup
Parent to Holdings under this Agreement (such right to offset not limiting any
other rights a Subgroup Parent may have as a result of such failure).
(e) Treatment of Adjustments. If any adjustment (including an
adjustment resulting in a refund of tax) is made in a tax return of the Holdings
Group after the filing thereof, in which income or loss of any Subgroup is
included, then at the time the adjustment is agreed to by Holdings or becomes
final and nonappealable as a matter of law, the Subgroup Parent shall pay
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to Holdings or Holdings shall pay to the Subgroup Parent, as the case may be,
the difference between all payments actually made under Sections 2(b)-2(d) with
respect to the taxable year covered by such tax return and all payments that
would have been made under Sections 2(b)-2(d) taking such adjustment into
account, together with any penalties and interest actually paid or received.
(f) Treatment of Refunds. If the Holdings Group carries back a net
operating loss or capital loss generated by any Subgroup on a stand-alone basis
and thereby obtains a refund of a prior year's tax, or otherwise receives a
refund of a prior year's tax, Holdings shall pay such refund to the Subgroup
Parent from which such refund originates.
(g) Preparation of Returns. So long as the Holdings Group elects
to file consolidated federal income tax returns as permitted by Section 1501 of
the Code, Holdings shall prepare and timely file such returns and any other
returns, documents or statements required to be filed with the Internal Revenue
Service (the "IRS") with respect to the determination of the federal income tax
liability of the Holdings Group. Each member of the Holdings Group appoints
Holdings as its agent, as long as such corporation is a member of the Holdings
Group, for purposes of filing such consolidated federal income tax returns,
making any election or application, or taking any action in connection therewith
on behalf of the members of the Holdings Group. Each member of the Holdings
Group consents to the filing of such returns and the making of such elections
and application.
(h) Cooperation. Holdings, TSI and each Subsidiary shall cooperate
in the filing of any consolidated federal income tax returns for the Holdings
Group by maintaining such books and records and providing such information as
may be necessary or useful in the filing of such returns and executing any
documents and taking any actions which Holdings or any member of the Holdings
Group may reasonably request in connection therewith. Holdings and each member
of the Holdings Group will provide one another with such information concerning
such returns and the application of this Agreement as Holdings or such member
may reasonably request. Holdings shall preserve all records relating to taxes
for which any Subgroup Parent is liable hereunder until the expiration of the
applicable statute of limitations and shall make such records available to such
Subgroup Parent upon the Subgroup Parent's reasonable request.
(i) No Application to Other Federal Taxes. Without limitation of
the other provisions of this Agreement, any United States taxes, other than
those imposed by Sections 11 and 55 of the Code, for which the Holdings Group
may become liable shall not be subject to this Agreement.
(j) Payment of Tax; Indemnification. Holdings will timely pay or
discharge, or cause to be timely paid or discharged, the consolidated federal
income tax liability of the Holdings Group for each taxable year of the Holdings
Group. Holdings will defend, indemnify and hold harmless each member of the
Holdings Group from and against all liability relating to federal income taxes
(including interest, penalties and additions to tax), and all costs and expenses
described in paragraph 4 hereof, for each taxable year except to the extent that
a Subgroup Parent within the Holdings Group has agreed to make a payment in
respect of such liability under the provisions of this Agreement which payment
has not been made.
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3. STATE AND LOCAL TAXES. If any tax based on or measured by net income
imposed by any state or local government for any taxable period is determined by
combining or consolidating all or part of the income, losses, properties,
payrolls, sales or other attributes of any Subgroup with those of Holdings,
whether or not a combined or consolidated return is filed with such state or
local government, the applicable Subgroup Parent shall make payments to Holdings
in satisfaction of such state or local tax, and Holdings shall make payments to
the Subgroup Parent with respect to such tax, according to the same general
sharing provisions as described above in Sections 2(b) through 2(e). If any
refund is received from any such state or local government, such refund shall be
paid to the Subgroup Parent according to the same general sharing provisions as
described above in Sections 2(e) and 2(f).
4. TERM. The term of this Agreement shall commence as of the date hereof,
for the taxable year including the date hereof and for which a consolidated
federal income tax return for the Holdings Group is filed. This Agreement shall
expire with respect to any member of the Holdings Group upon the date on which
it shall cease to be a subsidiary corporation includible in a consolidated
return of the Holdings Group for United States federal income tax purposes;
provided, however, that all rights and obligations arising hereunder with
respect to a taxable period ended at or prior to expiration shall survive until
they are fully effectuated or performed.
5. SUCCESSORS. This agreement shall be binding on and inure to the benefit
of any successor, by merger, acquisition of assets or otherwise, to any of the
parties hereto (including but not limited to any successor of Holdings or any
member of the Holdings Group succeeding to the tax attributes of such party
under Section 381 of the Code), to the same extent as if such successor had been
an original party hereto. If any corporation other than the members of the
Holdings Group as of the date hereof joins with Holdings in the filing of a
consolidated United States federal income tax return after the date hereof, then
Holdings shall cause such corporation to sign a joinder agreement and become
bound by the terms hereof.
6. AUTHORIZATION, ETC. Each of the parties hereto hereby represents and
warrants that it has the power and authority to execute, deliver and perform
this Agreement, that this Agreement has been duly authorized by all necessary
corporate action on the part of such party, that this Agreement constitutes a
legal, valid and binding obligation of each such party and that the execution,
delivery and performance of this Agreement by such party does not contravene or
conflict with any provision of law or of its charter or bylaws or any agreement,
instrument or order binding on such party.
7. SECTION CAPTIONS. Section captions used in this Agreement are for
convenience and reference only and shall not affect the construction of this
Agreement.
8. 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 LAWS
AND PRINCIPLES RELATING TO CONFLICTS OF LAW.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
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10. WAIVERS AND AMENDMENTS. This Agreement shall not be waived, amended or
otherwise modified except in writing, duly executed by all of the parties
hereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Tax Sharing Agreement to be executed by a duly authorized officer as of the date
first above written.
TOWN SPORTS INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
TOWN SPORTS INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
TSI ALEXANDRIA, LLC,
TSI ALLSTON, INC.,
TSI ANDOVER, INC.,
TSI ARDMORE, LLC,
TSI ARTHRO-FITNESS SERVICES, INC.,
TSI ASTORIA, INC.
TSI BATTERY PARK, INC.,
TSI BETHESDA, LLC,
TSI BROADWAY, INC.,
TSI 217 BROADWAY, INC.,
TSI BROOKLYN BELT, INC.,
TSI BRUNSWICK, INC.,
TSI BULFINCH, INC.,
TSI CASH MANAGEMENT, INC.,
TSI CENTRAL SQUARE, INC.,
TSI CENTREVILLE, LLC,
TSI CHERRY HILL, LLC,
TSI CHEVY CHASE, INC.,
TSI CLARENDON, LLC,
TSI COBBLE HILL, INC.,
TSI COLONIA, LLC,
TSI COMMACK, INC.,
TSI CONNECTICUT AVENUE, INC.,
By: /s/ Xxxxxxx Xxxx
---------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
TSI XXXXXX, INC.,
TSI COURT STREET, INC.,
TSI CROTON, INC.,
TSI DANBURY, INC.,
TSI DANVERS, INC.,
TSI DOWNTOWN CROSSING, INC.,
TSI DUPONT CIRCLE, INC.,
TSI DUPONT II, INC.,
TSI EAST CAMBRIDGE, INC.,
TSI EAST MEADOW, INC.,
TSI EAST 23, INC.,
TSI EAST 31, INC.,
TSI EAST 34, INC.,
TSI EAST 36, INC.
TSI EAST 41, INC.,
TSI EAST 51, INC.,
TSI EAST 59, INC.,
TSI EAST 76, INC.,
TSI EAST 86, INC.,
TSI EAST 91, INC.,
TSI F STREET, INC.,
TSI FAIRFAX, LLC,
TSI FENWAY, INC.,
TSI FIFTH AVENUE, INC.,
TSI FIRST AVENUE, INC.,
TSI FOREST HILLS, INC.,
TSI FORT XXX, LLC,
TSI FRAMINGHAM, INC.,
TSI FRANKLIN (MA), INC.,
TSI FRANKLIN PARK, LLC,
TSI FREEHOLD, LLC,
TSI GALLERY PLACE, INC.,
TSI GARDEN CITY, INC.,
TSI GERMANTOWN, LLC,
TSI GARDEN CITY, INC.,
TSI GERMANTOWN, LLC,
TSI XXXXXX, INC.,
TSI GRAND CENTRAL, INC.,
TSI GREAT NECK, INC.,
TSI GREENWICH, INC.,
TSI HERALD, INC.,
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
TSI HIGHPOINT, LLC,
TSI HOBOKEN, LLC,
TSI HOLDINGS (CIP), INC.,
TSI HOLDINGS (DC), INC.,
TSI HOLDINGS (IP), LLC,
TSI HOLDINGS (MA), INC.,
TSI HOLDINGS (MD), INC.,
TSI HOLDINGS (NJ), INC.,
TSI HOLDINGS (PA), INC.,
TSI HOLDINGS (VA), INC.,
TSI HUNTINGTON, INC.,
TSI INSURANCE, INC.,
TSI INTERNATIONAL, INC.,
TSI IRVING PLACE, INC.,
TSI JERSEY CITY, LLC,
TSI K STREET, INC.,
TSI LARCHMONT, INC.,
TSI LEXINGTON (MA), INC.,
TSI LINCOLN, INC.,
TSI XXXXXXXXXX, LLC,
TSI LONG BEACH, INC.,
TSI LYNNFIELD, INC.,
TSI M STREET, INC.,
TSI MADISON, INC.,
TSI MAHWAH, LLC,
TSI MAMARONECK, INC. ,
TSI MARKET STREET, LLC,
TSI MARLBORO, LLC
TSI MATAWAN, LLC,
TSI MONTCLAIR, LLC,
TSI XXXXXX HILL, INC.,
TSI NANUET, INC.,
TSI NASHUA, LLC,
TSI NATICK, INC.,
TSI NEWARK, LLC,
TSI NEWBURY STREET, INC.,
TSI NORTH BETHESDA, LLC,
TSI NORWALK, INC.,
TSI OCEANSIDE, INC.,
TSI OLD BRIDGE, LLC,
TSI PARSIPPANY, LLC,
By: /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
TSI PLAINSBORO, LLC,
TSI PRINCETON, LLC,
TSI XXXXXX, LLC,
TSI READE STREET, INC.,
TSI RIDGEWOOD, LLC,
TSI XXXXXXXXXXX, LLC,
TSI RODIN PLACE, LLC,
TSI RYE, INC.,
TSI SCARSDALE, INC.,
TSI SEAPORT, INC.,
TSI SHERIDAN, INC.,
TSI SILVER SPRING, LLC,
TSI SOCIETY HILL, LLC,
TSI SOHO, INC.,
TSI SOMERSET, LLC,
TSI SOUTH PARK SLOPE, INC.,
TSI SPRINGFIELD, LLC,
TSI STAMFORD DOWNTOWN, INC.,
TSI STAMFORD POST, INC.,
TSI STAMFORD RINKS, INC.,
TSI STATEN ISLAND, INC.,
TSI STERLING, LLC,
TSI SUPPLEMENTS, INC.,
TSI SYOSSET, INC.,
TSI WALL STREET, INC.,
TSI WALTHAM, LLC,
TSI WASHINGTON, INC.,
TSI WATER STREET, INC.,
TSI WELLESLEY, INC.,
TSI WEST XXXXXXXX, LLC,
TSI WEST XXXXXX, INC.,
TSI WEST NYACK, INC.,
TSI WEST SPRINGFIELD, LLC ,
TSI WEST 14, INC.,
TSI WEST 16, INC.,
TSI WEST 23, INC.,
TSI WEST 38, INC.,
TSI WEST 41, INC.,
TSI WEST 44, INC.,
TSI WEST 48, INC.,
TSI WEST 52, INC.,
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
TSI WEST 73, INC.,
TSI WEST 76, INC.,
TSI WEST 80, INC.,
TSI WEST 94, INC.,
TSI WEST 125, INC.,
TSI WESTPORT, INC.,
TSI WESTWOOD, LLC,
TSI WEYMOUTH, INC.,
TSI WHITE PLAINS, INC.,
TSI WHITESTONE, INC.,
TSI WOODMORE, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
