TAX SHARING AGREEMENT
This AGREEMENT, effective as of March 12, 1998, by and among SF
Holdings Group, Inc. ("Parent") and The Xxxxx Group, Inc. ("Subsidiary"):
WITNESSETH:
WHEREAS, the parties hereto are part of an affiliated group (the
"Affiliated Group," the members of which are hereinafter sometimes referred to
as "Members," or in the singular "Member"), as defined in Section 1504(a) of
the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, such Affiliated Group intends to file a consolidated federal
income tax return in accordance with section 1501 of the Code; and
WHEREAS, Parent is the common parent of the Affiliated Group, within
the meaning of Code Section 1504(a)(1) and the Treasury Regulations issued
pursuant to section 1502 of the Code; and
WHEREAS, it is the intent and desire of the parties hereto that a
method be established for reimbursing Parent for payment of Subsidiary's
allocable share of the Affiliated Group's consolidated "federal income tax
liability" (as determined under Treasury Regulation ss. 1.1502- 2); for
compensating Subsidiary for use of its "net operating loss" or "tax credits" in
arriving at such tax liability; and to provide for the allocation and payment
of any refund arising from a carryback of net operating losses or tax credits
from subsequent taxable years.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1. Subsidiary shall execute and file such consents, elections,
and other documents that may be required or appropriate for the proper filing
of U.S. consolidated federal income tax returns for the taxable years in which
this Agreement is in effect.
2. The tax liability of the Affiliated Group shall be allocated
to Subsidiary in the following manner:
Step 1. The consolidated federal income tax liability of the
Affiliated Group, as determined under Treasury Regulation ss. 1.1502-2, shall
be allocated to Subsidiary in accordance with the method set forth in section
1552(a)(1) of the Code and Treasury Regulation ss. 1.1552-1(a)(1) and (b) (or
in accordance with one of the methods set forth in section 1552(a)(2) or (3) if
the Affiliated Group elects to adopt such an alternative method);
Step 2. An additional amount shall be allocated to Subsidiary equal to
100 percent of the excess, if any, of (1) the "separate return tax liability"
of Subsidiary for the taxable year over (2) the tax liability of Subsidiary as
determined in accordance with Step 1 of Paragraph 2 of this Agreement. For
purposes of the preceding sentence, the "separate return tax liability" shall
be determined as if Subsidiary were filing a separate tax return under the
Code, without application of the exceptions contained in Treasury Regulation
ss. 1.1552-1(a)(2)(ii). For purposes of determining the "separate return tax
liability" of Subsidiary:
a. Any dividends received from another Member will be assumed to
qualify for the 100 percent dividends received deduction of
section 243 of the Code, or shall be eliminated from such
calculation in accordance with Treasury Regulation ss.
1.1502-13(f).
b. Gain or loss on intercompany transactions, whether deferred
or not, shall be treated in the manner required by Treasury
Regulation ss. 1.1502-13.
c. Limitations on the calculation of a deduction or the
utilization of tax credits or the calculation of a tax
liability shall be made on a consolidated basis. Accordingly,
the limitations provided in sections 38(c), 56, 170(b)(2),
and 172(b)(2) of the Code and similar limitations shall be
applied on a consolidated basis.
d. Elections as to tax credits and tax computations that may
have been different from the consolidated treatment if
separate returns were filed shall be made on an annual basis
by Parent.
Step 3. The total of any additional amounts allocated to Subsidiary
pursuant to Step 2 of Paragraph 2 of this Agreement (including amounts
allocated as a result of a carryback) shall be paid (as provided in paragraph 5
of this Agreement) by Subsidiary to Parent. If (1) Subsidiary's "separate
return tax liability" for a taxable year is zero, and (2) the aggregate
"separate return tax liabilities" of the other Members of the Affiliated Group
(determined under Step 2 of this Paragraph 2) exceed their aggregate tax
liability for such year determined under Step 1 of this Paragraph 2, then
Parent shall pay to Subsidiary the portion of such excess, if any, attributable
to the Affiliated Group's utilization in such year of a net operating loss or
tax credit of Subsidiary (taking into account carrybacks or carryforwards).
Subsidiary's share of any such excess shall be determined by Parent in a
reasonable and consistent basis, which will generally be the case if the share
is equal to 35 percent of net operating losses utilized and 100 percent of tax
credits utilized (unless, due to special circumstances, this would be
inequitable) as substantiated by specific records maintained for such purposes.
Under the principles of Revenue Ruling 66-374, 1966-2 C.B. 427, the
net operating loss of Subsidiary is the deduction that Subsidiary would have
had available if it actually filed a separate return for the year and thus
would not include any portion of Subsidiary's net operating loss sustained in a
prior or subsequent year that had been absorbed by the Affiliated Group or by
Subsidiary in computing actual liabilities for prior or subsequent years.
Notwithstanding the preceding sentence, no benefit under Step 3 of Paragraph 2
of this Agreement shall be granted Subsidiary unless the net operating loss is
availed of in reducing the consolidated federal income
- 2 -
tax liability of the Affiliated Group. The rules stated in the previous
sentences regarding carryover net operating losses will also apply in the
computation of other carryover items such as investment tax credits, foreign
tax credits, and charitable contribution deductions.
In calculating any benefit from a carryback or carryover of net
operating losses, adjustments shall be made to such prior or subsequent year's
separate return tax liability as required under sections 172(b)(2) and 172(d)
of the Code. For purposes of this calculation, the election under section
172(b)(3) shall be made on a separate company basis.
3. Regarding the application of the allocation method in
Paragraph 2 of this Agreement, the following principles will govern:
a. It is acknowledged that allocation of the consolidated
federal income tax liability under Treasury Regulation ss.
1.1552-1(a)(1) and Step 1 of Paragraph 2 of this Agreement
shall (in accordance with Treasury Regulation ss.
1.1552-1(b)(2)) in the amount allocated to Subsidiary (or
another Member) (i) decrease the earnings and profits of such
Member and (ii) be treated as a liability of such Member for
such amount.
b. It is acknowledged that allocations under Step 2 and Step 3
(but not Step 1) of Paragraph 2 of this Agreement to
Subsidiary (or other individual Members of the Affiliated
Group) will not create liabilities and receivables among
such Members, under the principles of Treasury
Regulationss.1.1552-1(b)(2), Revenue Ruling 73-605,
1973-2 C.B. 109, and Revenue Ruling 76-302, 1976-2 C.B. 257,
but rather will be regarded as distributions with respect to
stock, contributions to capital, or combinations thereof when
such amounts are paid pursuant to Paragraph 5 of this
Agreement.
4. The provisions of this Agreement shall be administered by Parent.
5. Subsidiary shall pay Parent its allocated consolidated federal
income tax liability under Step 1 of Paragraph 2 of this Agreement. Subsidiary
shall pay Parent, or Parent shall pay Subsidiary, as the case may be, the
respective amounts set forth in Step 3 of Paragraph 2 of this Agreement.
Payments are to be made no later than ten days after the date of filing of the
consolidated federal income tax return for such taxable year.
6. Parent shall have the right to assess Subsidiary its share of
estimated tax payments to be made on the projected consolidated federal income
tax liability for each year. Such payment shall be made ten days after such
assessment. Subsidiary shall receive credit for such prepayments in the
year-end computation under Paragraph 5 of this Agreement.
7. If part or all of an unused consolidated net operating loss or tax
credit is allocated to Subsidiary pursuant to Treasury Regulation xx.xx.
1.1502-21T and 1.1502-79A, and it is carried back or forward to a year in which
Subsidiary filed a separate income tax return or a consolidated federal income
tax return with another affiliated group, any reduction in tax liability
arising from the carryover shall be retained by Subsidiary. Parent shall
determine whether an
- 3 -
election shall be made not to carry back any consolidated net operating loss
arising in a consolidated return year (including any portion allocated to
Subsidiary under Treasury Regulation ss. 1.1502-79) in accordance with section
172(b)(3) of the 1986 Code.
8. If the consolidated federal income tax liability is adjusted for
any taxable period, whether by means of an amended return, claim for refund, or
audit by the Internal Revenue Service, the liability of (or amounts owing to)
Subsidiary shall be recomputed under Paragraphs 2 and 3 of this Agreement to
give effect to such adjustments. In the case of a refund, Parent shall make
payment to Subsidiary for its share of the refund, determined in the same
manner as in Paragraph 5 of this Agreement, within ten days after the refund is
received by Parent, and in the case of an increase in tax liability, Subsidiary
shall pay to Parent its allocable share of such increased tax liability within
ten days after receiving notice of such liability from Parent. If any interest
is to be paid or received as a result of a consolidated federal income tax
deficiency or refund, such interest shall be allocated to Subsidiary in the
ratio that Subsidiary's change in consolidated federal income tax liability
bears to the total change in tax liability. Any penalty shall be allocated upon
such basis as Parent deems just and proper in view of all applicable
circumstances.
9. This Agreement shall continue to apply unless and until Parent and
Subsidiary agree in writing to terminate the Agreement or Subsidiary is no
longer a Member of the Affiliated Group. Notwithstanding such termination, this
Agreement shall continue in effect with respect to any payment or refunds due
for all taxable periods prior to termination.
10. The Agreement shall not be assignable by either party without
the prior written consent of the other.
11. All material including, but not limited to, returns, supporting
schedules, work papers, correspondence, and other documents relating to the
consolidated federal income tax returns filed for a taxable year during which
this Agreement was in effect shall be made available to any party to the
Agreement during regular business hours for a minimum period equal to
applicable federal record retention requirements.
12. A dispute or difference between the parties with respect to the
operation or interpretation of this Agreement shall be decided by three
arbitrators. Each Party shall elect one arbitrator and agree on a third. The
losing party shall bear the cost of arbitration including all fees for
attorneys and accountants.
13. Any alteration, modification, addition, deletion, or other change
in the consolidated income tax return provisions of the Code or the regulations
thereunder shall automatically be applicable to this Agreement mutatis
mutandis.
14. This Agreement shall bind and inure to the respective successors
and assigns of the parties hereto; but no assignment shall relieve any party's
obligations hereunder without the written consent of the other parties.
15. This Agreement shall be governed by the laws of the State
of Delaware.
- 4 -
IN WITNESS WHEREOF, the parties hereto have caused their names to be
subscribed and executed by their respective authorized officers on the dates
indicated, effective as of the date first written above.
SF Holdings Group, Inc.
By:/s/ Xxxx Xxxxxxx
_____________________________
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
The Xxxxx Group, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
_____________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
- 5 -
