EXHIBIT 10.5
TAX ALLOCATION AGREEMENT
This TAX SHARING AGREEMENT (the "Agreement") is made effective as of June
19, 2001, by and between Fairfax Inc., a Wyoming corporation ("Fairfax"), on
behalf of itself and the Fairfax Subgroup (as defined below), Odyssey Re
Holdings Corp., a Delaware corporation ("Odyssey Holdings"), and Odyssey America
Reinsurance Corp., a Connecticut corporation ("Odyssey America"), Odyssey
Reinsurance Corp., a Delaware corporation ("ORC") and Xxxxxx Insurance Company,
a Delaware corporation ("Xxxxxx") (Odyssey America, ORC and Xxxxxx are
collectively referred to as the "Subsidiaries" or individually called
"Subsidiary"). Odyssey Holdings and the Subsidiaries are sometimes hereafter
collectively referred to as the "Odyssey Subgroup", as defined below.
RECITALS
WHEREAS, Fairfax is the common parent of an affiliated group of
corporations (as defined in Section 1504(a) of the Code) which includes Odyssey
America and the Subsidiaries;
WHEREAS, the Affiliated Group filed consolidated federal income tax returns
under Section 1501 of the Code, so that the Tax liability of the Affiliated
Group is determined under Section 1502 of the Code and the Regulations
thereunder by consolidating the income, expenses, gains, losses and credits of
all of the Members of the Affiliated Group;
WHEREAS, Fairfax has filed Combined Returns on behalf of itself and other
Members of the Affiliated Group for prior taxable years;
WHEREAS, TIG Holdings, Inc. a Delaware corporation ("TIG") and its wholly
owned direct and indirect subsidiaries are a party to an to an Inter-Company Tax
Allocation Agreement, dated April 28, 1993 (the "April 28, 1993 Agreement"),
setting forth their agreements with regard to their respective liabilities for
any and all Taxes for tax years 1993 through 1999 in which any subsidiary is a
Member of the Affiliated Group or Combined Group that includes TIG as the
Parent;
WHEREAS, Fairfax, Ranger Insurance Company, a Delaware corporation
("Ranger") on behalf of itself and its wholly owned direct and indirect
subsidiaries, Noro Inc., a Delaware corporation ("Noro"), and ORC on behalf of
itself and its wholly owned direct subsidiary, Xxxxxx are a party to an
Inter-Company Tax Allocation Agreement, dated December 31, 1996 (the "December
31, 1996 Agreement), setting forth their agreements with regard to their
respective liabilities for any and all Taxes for tax years 1996 through 1999 in
which any such subsidiary is a Member of the Affiliated Group or Combined Group
that includes Fairfax as the Parent;
WHEREAS, the Subsidiaries currently are a party to an Inter-Company Tax
Allocation Agreement, dated January 1, 2000, which is applicable with respect to
(i) such Subsidiaries, and (ii) any entity acquired, created or otherwise added
as an includable Member of the Affiliated Group subsequent to January 1, 2000
(the "January 1, 2000 Agreement"), setting forth their agreements with regard to
their respective liabilities for any and all Taxes for all periods in which any
Subsidiary is a Member of the Affiliated Group or Combined Group that includes
TIG as the Parent;
WHEREAS, the December 31, 1996 Agreement was amended, effective January 1,
1999, and entered into by and among Fairfax, Ranger on behalf of itself and its
wholly owned direct subsidiaries, Xxxx & Xxxxxxx Holdings, Inc., a Delaware
corporation ("Xxxx & Xxxxxxx") on behalf of itself and its wholly owned direct
and indirect subsidiaries, ORC on behalf of itself and its wholly owned direct
subsidiary; Standard Managing General Agency, Inc., a Texas corporation
("SGMA"); and The Standard Group, Inc., a Texas corporation ("SG") (the "January
1, 1999 Amendment"), setting forth their agreements with regard to their
respective liabilities for any and all Taxes for all periods in which any such
subsidiary is a Member of the Affiliated Group or Combined Group that includes
Fairfax as the Parent (the January 1, 2000 Agreement, the
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December 31, 1996 Agreement, the April 28, 1993 Agreement, and the January 1,
1999 Amendment are collectively referred to as the "Inter-Company Tax
Agreements");
WHEREAS, Odyssey Holdings, intends to undertake an initial public offering
(the "Offering") of its stock as contemplated by the registration statement (No.
333-57642) dated March 26, 2001, as amended;
WHEREAS, as a result of the Offering, the Subsidiaries will cease to be a
Member of the Affiliated Group for federal income tax purposes;
WHEREAS, one or more of the Subsidiaries may remain a Member of Fairfax's
Combined Group for state, local, foreign income and franchise Tax purposes;
WHEREAS, in contemplation of the Offering, the parties hereto have
determined to enter into this Agreement, which incorporates the Inter-Company
Tax Agreements and which provides for certain other Tax matters for all periods
in which any Member of the Odyssey Subgroup is a Member of the Affiliated Group
or Combined Group that includes Fairfax.
NOW, THEREFORE, in consideration of the mutual agreements, promises and
covenants contained in this Agreement, the parties, intending to be legally
bound, do hereby agree as follows:
ARTICLE 1 -- DEFINITIONS
For purposes of this Agreement:
1.1 "Adjustment" means an adjustment determined on an issue-by-issue
or transaction-by-transaction basis, as appropriate, made or proposed by a
Taxing Authority with respect to any amount reflected or required to be
reflected on any Return relating to such Tax.
1.2 "Affiliated Group" means the affiliated group as defined in
Section 1504(a) of the Code that has Fairfax as the common Parent.
1.3 "After-Tax Basis" in reference to an indemnity payment under
Section 5.3 shall mean an amount that, after (i) subtraction of the
aggregate additional Taxes incurred or to be incurred by the party
receiving the indemnity payment as a result of the receipt of such payment,
and (ii) addition of the tax benefit to the party receiving the indemnity
payment on account of the Adjustment to which such indemnity payment
relates, is equal to the amount of the Tax Adjustment. "After-Tax Basis" in
reference to a benefit payment under Section 5.3 shall mean an amount that,
after (i) addition of the aggregate additional Taxes incurred or to be
incurred by the party making the benefit payment on account of the Tax
benefit to which such benefit payment relates, and (ii) subtraction of the
Tax benefit to the party making the benefit payment as a result of the
making of such payment, is equal to the amount of the Tax benefit. For
purpose of determining such additional Taxes incurred or to be incurred and
such Tax benefit, the following assumptions will be used: (a) in the case
of any income Tax, the highest marginal Tax rate or, in the case of any
other Tax, the highest applicable Tax rate, in each case in effect with
respect to that Tax for the Taxable period or any portion of the Taxable
period to which the indemnity payment or benefit payment relates; and (b)
such determination shall be made without regard to whether any actual
additional Taxes or Tax benefit will in fact be realized with respect to
the Return to which such payment relates.
1.4 "Carryforward Tax Attribute" means a deductible or creditable
consolidated federal income tax attribute (or an equivalent state, local or
foreign income or franchise tax attribute), including, but not limited to,
(i) a consolidated net operating loss, a consolidated net capital loss, a
consolidated unused foreign investment credit, a consolidated unused
foreign tax credit, or a consolidated excess charitable contribution (see
Section 1.1502-79 of the Regulations), and (ii) the consolidated minimum
tax credit, or other consolidated general business credits, that can be
carried forward from one tax period to subsequent tax periods.
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1.5 "Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, or any law, which may be a successor thereto. A
reference to any section of the Code means such section as in effect from
time to time and any comparable provision of the Code or any successor law.
1.6 "Combined Group" means a group of corporations or other entities
that file a Combined Return with any Subsidiary.
1.7 "Combined Return" means a Return of state, local or foreign income
or franchise tax, or amendment thereof, filed by the Combined Group.
1.8 "Combined Return Period" means that period of time during which
any Subsidiary is a Member of the Combined Group that includes any Member
of the Fairfax Subgroup.
1.9 "Combined Return Year" means any Taxable year or portion thereof
of the Combined Return Period.
1.10 "Consolidated Group" means a group of corporations or other
entities that file a Consolidated Group Return with any Subsidiary.
1.11 "Consolidated Group Return" means a Return of federal income tax,
or amendment thereof filed by the Affiliated Group.
1.12 "Consolidated Return Date" means each date upon which the
Consolidated Group Return is filed.
1.13 "Consolidated Return Period" means that period of time during
which any Subsidiary is a Member of the Affiliated Group.
1.14 "Consolidated Return Year" means any Taxable year or portion
thereof of the Consolidated Return Period or Combined Return Period.
1.15 "Consolidated Tax Liability" means, with respect to any
Consolidated Return Period or Combined Return Period, the consolidated,
combined or unitary Tax liability of the Affiliated Group or Combined
Group.
1.16 "Estimated Payment Date" means each date occurring during any
Consolidated Return Year or Combined Return Year upon which the
Consolidated Group or Combined Group is required to make a payment of
estimated Tax, whether or not such a payment is due, for such Consolidated
Return Year or Combined Return Year, as applicable.
1.17 "Extension Payment Date" means, with respect to any Consolidated
Return Year, any date upon which the Affiliated Group or Combined Group
shall be required to make a payment of income or franchise Taxes in
connection with any request by Fairfax, on behalf of the Affiliated Group
or Combined Group, for an extension of the date upon which it would have
been required, absent such extension, to file its federal, state, local or
foreign income or franchise tax return for such Consolidated Return Year.
1.18 "Fairfax Subgroup" means the group of corporations, if any, that
would constitute a separate Affiliated Group within the meaning of Section
1504 of the Code if the Subsidiaries were not Members of such Affiliated
Group. If no Fairfax Subgroup exists, references to Fairfax Subgroup in
this agreement shall be interpreted as references to Fairfax.
1.19 "Fairfax Subgroup Tax Adjustment" shall mean, with respect to any
Taxable period or portion of a Taxable period, and as computed separately
with respect to each Tax, the net increase in each such Tax equal to the
sum of all Tax Adjustments made pursuant to a Final Determination with
respect to each such Tax for each such Taxable period or portion of a
Taxable period that are attributable to the income, assets and/or business
of any Member of the Fairfax Subgroup.
1.20 "Fairfax Subgroup Tax Benefit" shall mean, with respect to any
Taxable period or portion of a Taxable period, and as computed separately
with respect to each Tax, the net decrease in each such Tax equal to the
sum of all Tax Adjustments made pursuant to a Final Determination with
respect to each
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such Tax for each such Taxable period or portion of a Taxable period that
are attributable to the income, assets and/or business of any Member of the
Fairfax Subgroup.
1.21 "Final Determination" means (a) a decision, judgment, decree or
other order by any court of competent jurisdiction, which has become final
and is either no longer subject to appeal or for which a determination not
to appeal has been made; (b) a closing agreement made under Section 7121 of
the Code or any comparable foreign, state, local, municipal or other Taxing
statute; (c) a final disposition by any Taxing Authority of a claim for
refund; or (d) any other written agreement relating to an Adjustment to
which any Taxing Authority is a party the execution of which is final and
prohibits such Taxing Authority from seeking any further legal or
administrative remedies with respect to such Adjustment.
1.22 "Group Refund Claim" means any claim filed by Fairfax on behalf
of the Affiliated Group for a refund of federal income Taxes or on behalf
of the Combined Group for a refund of state, local or foreign income or
franchise Taxes.
1.23 "IRS" means the Internal Revenue Service.
1.24 "Member" means, with respect to any Consolidated Return Period,
an includible corporation (as defined in section 1504(b) of the Code) in
the Affiliated Group or an includible corporation in a Combined Group.
1.25 "Odyssey Subgroup" means the group of corporations, if any, that
would constitute a separate Affiliated Group within the meaning of Section
1504 of the Code with Odyssey Holdings as the common parent if the Offering
had occurred prior to the beginning of any tax periods potentially covered
by this Agreement.
1.26 "Parent" means any corporation that directly owns stock that
possesses more than 80 percent of the total voting power of the stock of
another Member.
1.27 "Person" means an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a
limited liability entity, or any other entity regardless of the type or
nature thereof.
1.28 "Regulation" means an income tax regulation promulgated by the
U.S. Treasury Department under the Code. A reference to any section of the
Regulations means such section as in effect from time to time and any
comparable successor regulation.
1.29 "Return" means any return, report, form or similar statement or
document (including, without limitation, any related or supporting
information or schedule attached thereto and any information return, claim
for, amended return and declaration of estimated Tax) that has been or is
required to be filed with any Taxing Authority or that has been or is
required to be furnished to any Taxing Authority in connection with the
determination, assessment or collection of any Taxes or the administration
of any laws, regulations or administrative requirements relating to any
Taxes.
1.30 "Separation Date" means June 19, 2001.
1.31 "Separate Return Period" means that period of time during which
the Odyssey Subgroup is not a Member of the Affiliated Group or the
Combined Group, as the case may be;
1.32 "State, Local or Foreign Income or Franchise Returns" has the
meaning set forth in Article 2.2(a) of this Agreement.
1.33 "Subsidiary Tax Adjustment" means, with respect to any Taxable
period or portion of a Taxable period, and as computed separately with
respect to each Tax, the net increase in each such Tax equal to the sum of
all Tax Adjustments made pursuant to a Final Determination with respect to
each such Tax for each such Taxable period or portion of a Taxable period
that are attributable to the income, assets and/or business of any
Subsidiary.
1.34 "Subsidiary Tax Benefit" means, with respect to any Taxable
period or portion of a Taxable period, and as computed separately with
respect to each Tax, the net decrease in each such Tax equal to
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the sum of all Tax Adjustments made pursuant to a Final Determination with
respect to each such Tax for each such Taxable period or portion of a
Taxable period that are attributable to the income, assets and/or business
of any Subsidiary.
1.35 "Tax" (and, with correlative meanings, "Taxes" and "Taxable")
means, without limitation, and as determined on a
jurisdiction-by-jurisdiction basis, each foreign or United States federal,
state, local or municipal income, alternative or add-on minimum, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, occupation,
premium, property, value added or any other tax, custom, tariff, impost,
levy, 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 related thereto, imposed by any Taxing Authority.
1.36 "Tax Adjustment" shall mean the deemed increase or decrease in a
Tax, determined on an issue-by-issue or transaction-by-transaction basis,
as appropriate, and using the assumptions set forth in the next sentence,
resulting from an adjustment made or proposed by a Taxing Authority with
respect to any amount reflected or required to be reflected on any Return
relating to such Tax. For purpose of determining such deemed increase or
decrease in a Tax, the following assumptions will be used: (a) in the case
of any income tax, the highest marginal tax rate or, in the case of any
other Tax, the highest applicable Tax rate, in each case in effect with
respect to that Tax for the Taxable period or any portion of the Taxable
period to which the adjustment relates; and (b) such determination shall be
made without regard to whether any actual increase or decrease in such Tax
will in fact be realized with respect to the Return to which such
adjustment relates.
1.37 "Taxing Authority" means any governmental authority or any
subdivision, agency, commission or authority thereof, or any
quasi-governmental or private body having jurisdiction over the assessment,
determination, collection or other imposition of Taxes.
1.38 "Tax Contest" means, without limitation, any audit, examination,
claim, suit, action or other proceeding relating to Taxes in which an
Adjustment to Taxes may be proposed, collected or assessed and in respect
of which an indemnity payment, reimbursement or other payment may be sought
under this Agreement.
ARTICLE 2 -- TAX RETURN FILING
2.1 Consolidated Group Returns. (a) General. For any Consolidated Return
Period, Fairfax shall have sole and exclusive responsibility for the preparation
and filing with the IRS of all Consolidated Group Returns and amendments
thereto, that include any Subsidiary, which are required to be filed by Fairfax
or a subsidiary of Fairfax on behalf of the Affiliated Group, including but not
limited to determining all Tax Return positions, paying estimated taxes and
other consolidated Taxes and making all federal elections for the Affiliated
Group and each Member of such group; provided, however, that at least 30 days
prior to filing any Consolidated Group Return, Fairfax shall provide Odyssey
Holdings the opportunity to review the portion of such Consolidated Group Return
that reflects the income and operations of the Odyssey Subgroup. Odyssey
Holdings shall communicate its comments, if any, to Fairfax at least 15 days
prior to the due date, including extensions, for filing such Tax Return.
(a) Cooperation. Odyssey Holdings, on behalf of the Subsidiaries,
shall furnish Fairfax, at least sixty (60) days before the due date
(including extensions) of any such Consolidated Group Return, with all
information required by Fairfax to complete such Consolidated Group Return
in accordance with instructions from Fairfax and in a manner consistent
with prior returns, if any. Odyssey Holdings will also furnish Fairfax work
papers and other such information and documentation as is reasonable
requested by Fairfax with respect to the Subsidiaries.
2.2 State, Local or Foreign Income or Franchise Returns. (a) General. For
any Combined Return Period, Fairfax shall have sole and exclusive responsibility
for the preparation and filing with any Taxing Authority of all Combined Returns
and amendments thereto, that include any Member of the Odyssey Subgroup, which
are required to be filed by Fairfax or a subsidiary of Fairfax on behalf of the
Combined
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Group, including but not limited to determining all Tax Return positions, paying
estimated taxes and other combined, consolidated or unitary state, local or
foreign income or franchise Taxes and making all elections for the Combined
Group and each Member of such group; provided, however, that at least 30 days
prior to filing any Combined Return, Fairfax shall provide Odyssey Holdings the
opportunity to review the portion of such Combined Return that reflects the
income and operations of the Odyssey Subgroup. Odyssey Holdings shall
communicate its comments, if any, to Fairfax at least 15 days prior to the due
date, including extensions, for filing such Tax Return.
(a) Cooperation. Fairfax will timely advise Odyssey Holdings of the
inclusion of any Member of the Odyssey Subgroup in any Fairfax Combined
Return and the jurisdictions in which such Combined Return will be filed.
Each Member of the Odyssey Subgroup will evidence its agreement to be
included in such Combined Return on the appropriate form(s) and will take
such other actions as may be appropriate, in the opinion of Fairfax, to
carry out the purposes and intent of this Article 2.2(b). Each Member of
the Odyssey Subgroup included in a Combined Return filed by Fairfax or a
Member of the Fairfax Subgroup shall furnish Fairfax, at least sixty (60)
days before the due date (including extensions) of any such Combined
Return, with all information required by Fairfax to prepare such Combined
Return in accordance with instructions from Fairfax and in a manner
consistent with prior returns, if any. Odyssey Holdings will also furnish
Fairfax work papers and other such information and documentation as is
reasonable requested by Fairfax with respect to any such Member of the
Odyssey Subgroup.
ARTICLE 3 -- ALLOCATION AND PAYMENT OF LIABILITIES FOR TAXES
3.1 Allocation of Taxes. Fairfax (on behalf of itself and other Members of
the Fairfax Subgroup) and Odyssey Holdings (on behalf of itself and other
Members of the Odyssey Subgroup) agree to determine and allocate the Tax
liability of the Affiliated Group and/or Combined Group among themselves in
accordance with the provisions of the Inter-Company Tax Agreements and each
Member of the Odyssey Subgroup shall pay to Fairfax its federal income tax
liability in accordance with the applicable provisions of such Agreement.
ARTICLE 4 -- DISPUTES WITH TAXING AUTHORITIES
4.1 Confirmation of Authority. In the event of a Tax Contest with the IRS
or any other Taxing Authority concerning the amount of any Tax liability of, or
refund due to the Affiliated Group, Combined Group or any Member thereof for any
Consolidated Return Year or Combined Return Year, and in connection with every
Group Refund Claim or other claim for refund of Tax for any Consolidated Return
Year or Combined Return Year, Odyssey Holdings and the Subsidiaries hereby
expressly confirm, with respect to federal income Tax liability, the authority
granted to Fairfax in Regulations Section 1.1502-77 (and in any successor
provision thereto) of the Regulations to act on behalf of Odyssey Holdings and
the Subsidiaries notwithstanding that Odyssey Holdings or any Subsidiary may be
liable for additional Tax or for additional payments to Fairfax. With respect to
such federal income Taxes and all other Taxes, Odyssey Holdings and the
Subsidiaries hereby expressly and irrevocably appoint Fairfax to be each of such
entity's sole agent. Odyssey Holdings and the Subsidiaries expressly relinquish
any rights each such entity may have to act for or represent itself in any
manner in any such Tax Contest or with respect to any such Group Refund Claim
related to the time period in which any Subsidiary is a Member of the Affiliated
Group. Odyssey Holdings and the Subsidiaries hereby authorize Fairfax and its
representatives to pursue such Tax Contest, Group Refund Claim, or other claim
for refund of Tax either administratively or by court action. Odyssey Holdings
and the Subsidiaries hereby irrevocably agree that Fairfax shall have the
exclusive right, on behalf of Odyssey Holdings and the Subsidiaries, to make any
and all decisions to pursue, settle, or appeal any Tax Contest, Group Refund
Claim or other claim for refund of Tax, and to control all administrative and
court proceedings and any and all negotiations and settlements related thereto.
Odyssey Holdings and the Subsidiaries hereby expressly consent to Fairfax
entering into settlements on behalf of each such entity, as Fairfax deems
appropriate in its sole discretion, exercised in good faith; provided, however,
that prior to settling an issue that would give rise to a Tax Adjustment for
which Odyssey Holdings or a Subsidiary would be liable under this Agreement.
Odyssey Holdings or such Subsidiary shall have the right and opportunity to
review such
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settlement. Fairfax may, in its sole discretion, exercised in good faith, accept
or reject any suggestions made by Odyssey Holdings or any Subsidiary with
respect to such settlement; provided, however, that Fairfax shall not reject any
suggestion made by Odyssey Holdings or any Subsidiary if to do so would be
unreasonable. Odyssey Holdings and the Subsidiaries may assist in the defense of
audit issues arising from each such entity's operations, at its own expense,
subject to the direction and control of Fairfax. Odyssey Holdings and each of
the Subsidiaries shall reimburse Fairfax for all reasonable out-of pocket
expenses (including, with limitation, legal, consulting and accounting fees) in
the course of a Tax Contest regarding an item of Odyssey Holdings or any
Subsidiary, respectively, for any Taxable period during which any Subsidiary was
a Member of the Affiliated Group and/or Combined Group to the extent such
expenses are reasonably attributable to such Tax Contest.
4.2 Agreement to Cooperate. Odyssey Holdings and each of the Subsidiaries
agrees to cooperate fully and in a timely manner with Fairfax in connection with
the preparation of Tax Returns, the pursuit of any Group Refund Claim or other
claim for refund of Taxes or the conduct of any Tax Contest for any Consolidated
Return Year or Combined Return Year, at each such entity's own expense by taking
any and all action that may be necessary or helpful, as requested by Fairfax,
including (without limitation) furnishing to Fairfax access to and copies of all
records and documents and making personnel available for interviews and
testimony.
4.3 Adjustments.
(a) Final Determination Adjustment. In the event there is an
Adjustment, made pursuant to a Final Determination, of an item of income,
gain, loss, deduction, or credit with respect to any Return of any Member
of the Affiliated Group and/or Combined Group for any Taxable period during
which Odyssey Holdings and/or any other Member of the Odyssey Subgroup is
or was a Member of the Affiliated Group and/or Combined Group:
(i) Each Subsidiary or any other Member of the Odyssey Subgroup
shall be liable for, and shall indemnify and hold harmless, as
appropriate, each Member of the Fairfax Subgroup, on an After-Tax Basis
against any and all Subsidiary Tax Adjustments;
(ii) Each Subsidiary or any other Member of the Odyssey Subgroup
shall be entitled to receive on an After-Tax Basis the amount of any
Subsidiary Tax Benefits;
(iii) Fairfax shall be liable for, and shall indemnify and hold
harmless, as appropriate, each Subsidiary or any other Member of the
Odyssey Subgroup on an After-Tax Basis against any and all Fairfax Tax
Adjustments; and
(iv) Fairfax shall be entitled to receive on an After-Tax Basis the
amount of any Fairfax Tax Benefits.
(b) Allocation of Tax Adjustment. Fairfax, Odyssey Holdings, each
Subsidiary or any other Member of the Odyssey Subgroup shall share the
amount of any Tax Adjustment if, and to the extent, each party is liable
for and/or has an obligation to make, or has the right to receive, as the
case may be, any indemnity payment, or other payment with respect to such
Tax Adjustment under Section 4.3, in proportion to the amounts of the
underlying Adjustments giving rise to such Tax Adjustment attributable to
the Fairfax Subgroup and the Odyssey Subgroup respectively.
(c) Indemnification. Fairfax shall be liable for, and shall indemnify
and hold harmless, as appropriate, Odyssey Holdings, each Subsidiary or any
other Member of the Odyssey Subgroup on an After-Tax Basis against any and
all Tax Adjustments arising out of, or in connection with the Offering.
(d) Indemnity Payments. Indemnity payments required by Section 4.3 be
paid within 60 days of the date of such Final Determination. Fairfax shall
provide Odyssey Holdings or the applicable Subsidiary with prompt written
notice of each such Final Determination.
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ARTICLE 5 -- TAX ATTRIBUTE CARRYOVERS
5.1 Tax Attribute Carryovers.
(a) Carryforward Tax Attributes. The Carryforward Tax Attributes
available to any Subsidiary for Separate Return Periods will be determined
by allocating the Carryforward Tax Attributes of the Fairfax Group to tax
periods beginning after the Separation Date among the Fairfax Subgroup and
each Subsidiary as described in Section 5.1(b) and 5.1(c).
(b) Federal Tax Attributes. Any Carryforward Tax Attributes allocable
to any Subsidiary shall remain with such Subsidiary. The portion, if any,
of any Fairfax Group consolidated or combined unused foreign tax credit
which is allocable to any Subsidiary shall be determined separately with
respect to each of the items of income listed in Section 904(d) of the
Code.
(c) State, Local or Foreign Income or Franchise Tax Attributes. No
tax attributes arising from state, local or foreign income or franchise Tax
Returns shall be allocated to any Subsidiary, unless under the provisions
of applicable state, local, foreign or franchise law or regulation such tax
attributes are expressly required to be allocated to such Subsidiary.
5.2 Carryback Items from separate Return periods. With respect to
carrybacks of any Member of the Odyssey Subgroup, or net operating losses, net
capital losses, unused tax credits and other deductible or creditable Tax
attributes to a Consolidated Return Period and/or Combined Return from a
separate Return period which would be permitted under the Code and the
Regulations (or state, local, foreign or franchise law or regulation), each such
Member of the Odyssey Subgroup shall make an irrevocable election under
Regulations Section 1.1502-21(b)(3)(i) (or comparable state, local, foreign or
franchise or regulation), to relinquish any carryback period which would include
the Consolidated Return Period and/or Combined Return. In cases where a Member
of the Odyssey Subgroup cannot relinquish the carryback period or, if the
parties otherwise agree, Fairfax shall cooperate with such Member in seeking Tax
refunds from the appropriate Taxing Authority, at such Member's expense, and
such Member shall be entitled to such refund, including interest paid by the
Taxing Authority in connection with such refund; provided however, that such
Member shall indemnify and hold Fairfax harmless from and against any and all
collateral Tax consequences, including interest, resulting from or caused by the
carryback of deductible or creditable Tax attributes by such Member from a
separate Return period to a Consolidated Return Period and/or Combined Return,
including but not limited to, Tax attributes of Fairfax that expire unused
(including Tax attributes that expire during a Tax period subsequent to the Tax
period during which the Member of the Odyssey Subgroup's Tax attribute carried
back was generated) and which would have been used but for such Member's
carryback. The amount of such indemnity shall be limited to the actual Tax
benefits to which Fairfax would have been entitled in the absence of the
carryback of the deductible or creditable Tax attribute of such Member. Each
such Member shall have the right to review the collateral Tax consequences being
indemnified. The amount of the refund due to such Member from Fairfax shall be
reduced and offset by the amount of the indemnification, if any.
5.3 Post-Consolidated Period Taxes.
(a) Fairfax Indemnity. Fairfax shall indemnify and hold Odyssey
Holdings and each Member of the Odyssey Subgroup harmless for any Taxes
relating to Tax Returns of Fairfax or the Fairfax Subgroup for any Separate
Return Period.
(b) Odyssey Indemnity. Odyssey Holdings shall indemnify and hold
Fairfax and each Member of the Fairfax Subgroup harmless for any Taxes
relating to Tax Returns of Odyssey Holdings or the Odyssey Subgroup for any
Separate Return Period.
ARTICLE 6 -- PRIORITY OF AGREEMENT
6.1 Fixing of Liability. The provisions of this Agreement, in conjunction
with the Inter-Company Tax Agreements, shall determine and fix the liability of
the parties to each other as to the matters provided for herein, regardless of
how the payments made pursuant hereto are treated for tax purposes.
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ARTICLE 7 -- OTHER GROUP MEMBERS
7.1 Agreements. Fairfax, Odyssey Holdings and the Subsidiaries recognize
that other corporations are now or may from time to time hereafter become
Members of the Affiliated Group or Combined Group and it may become appropriate
to adopt different or additional methods of sharing Taxes. Odyssey Holdings and
the Subsidiaries hereby authorize Fairfax to enter into the same, similar or
different supplemental, conflicting or replacement tax sharing agreements on
behalf of the Affiliated Group or Combined Group (including Odyssey Holdings and
the Odyssey Subgroup) with any corporation, which is now or may hereafter become
a Member of the Affiliated Group or Combined Group.
ARTICLE 8 -- RECORDS
8.1 Retention by Fairfax. Fairfax shall, until the end of the applicable
statute of limitations for each Tax year (giving effect to any extensions
thereof), retain all material, including but not limited to, Returns, supporting
schedules, workpapers, correspondence, and other documents relating to the
Consolidated Group Returns and/or Combined Returns filed for a Taxable year
during which the Subsidiaries or any Member of the Odyssey Subgroup is a Member
of the Affiliated Group or Combined Group and shall make such items available to
Odyssey Holdings, any Subsidiary or any Member of the Odyssey Subgroup for
inspection or copying (at such entity's own expense) during Fairfax's regular
business hours.
8.2 Retention by Odyssey Holding, the Subsidiaries or any Member of the
Odyssey Subgroup. Odyssey Holdings, the Subsidiaries or any Member of the
Odyssey Subgroup shall, until the end of the applicable statute of limitations
for each Tax year (giving effect to any extensions thereof), retain all
material, including but limited to, Returns supporting schedules, workpapers,
correspondence, and other documents relating to Consolidated Group Returns
and/or Combined Returns filed for a Taxable year during which, the Subsidiaries
or any Member of the Odyssey Subgroup is a Member of the Affiliated Group or
Combined Group and shall make such items available to Fairfax for inspection or
copying (at Fairfax's own expense) during Odyssey Holding's, the Subsidiary's or
any Member of the Odyssey Subgroup's regular business hours.
ARTICLE 9 -- TERM AND TERMINATION
9.1 Term. This Agreement, in conjunction with the Inter-Company Tax
Agreements, shall apply to and govern all Taxable Periods for which any
Subsidiary or any Member of the Odyssey Subgroup is included in the Affiliated
Group or Combined Group and all subsequent Taxable periods, unless the parties
hereto each agree in writing to terminate either or both of such Agreements.
ARTICLE 10 -- MISCELLANEOUS
10.1 Governing Law. The internal laws of the State of Delaware
(irrespective of its choice of law principles) will govern the validity of this
Agreement, the construction of its terms and the interpretation and enforcement
of the rights and duties of the parties hereto.
10.2 Assignment; Binding Upon Successors and Assigns. Odyssey Holdings,
the Subsidiaries and/or any Member of the Odyssey Subgroup may not assign,
whether voluntarily or by operation of law, any of such entity's rights or
obligations hereunder without the prior written consent of Fairfax, which
consent may be withheld in its sole discretion. Fairfax may assign its rights
(but not its obligations) under this Agreement without the consent of Odyssey
Holdings, the Subsidiaries and/or any Member of the Odyssey Subgroup; provided,
however, that the rights and obligations of Fairfax may be assigned, without the
consent of such entities, pursuant to a merger, exchange, recapitalization or
other reorganization to which Fairfax is a party or by operation of law. This
Agreement will be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Any Member corporation,
which leaves the Affiliated Group or Combined Group, shall be bound by this
Agreement.
10.3 Severability. If any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, the
remainder of this Agreement and application of such provision
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to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business, Tax and other purposes of the void or unenforceable provision.
10.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all the parties reflected hereon as signatories.
10.5 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law on such party,
and the exercise of any one remedy will not preclude the exercise of any other.
10.6 Amendment and Waivers. Any term or provision of this Agreement may be
amended, and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a writing signed by the party to be bound thereby. The waiver by a party
of any breach hereof or default in the performance hereof will not be deemed to
constitute a waiver of any other default or any succeeding breach or default.
Failure by either party, at any time, to require performance by the other party
or to claim a breach of any provision of this Agreement shall not be construed
as a waiver of any right accruing under this Agreement, nor shall it affect any
subsequent breach or the effectiveness of this Agreement or any part hereof, or
prejudice either party with respect to any subsequent action.
10.7 Expenses. Unless otherwise provided, all fees and expenses incurred
in connection with this Agreement will be paid by the party incurring such fees
or expenses.
10.8 Attorneys' Fees. Should suit be brought to enforce or interpret any
part of this Agreement, the prevailing party will be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees to
be fixed by the court (including, without limitation, costs, expenses and fees
on any appeal). The prevailing party will be entitled to recover its costs of
suit, regardless of whether such suit proceeds to final judgment.
10.9 Dispute Resolution. The parties shall attempt in good faith to
resolve any dispute arising out of or relating to this Agreement and shall
attempt in good faith to negotiate a settlement of any dispute pursuant to the
following process:
(a) Notice of Dispute. Any party having a dispute or claim shall give
the other party written notice stating the nature of the dispute in
reasonable detail. Within ten (10) business days after delivery of the
notice, the receiving party shall submit to the other a written response
also in reasonable detail. Within five (5) business days after delivery of
the written response the Chief Financial Officer (or other individual who
has authority to settle the controversy and who has direct responsibility
for administration of the relationships established pursuant to this
Agreement) for each party shall meet (in person or by telephone) at a
mutually acceptable time and place (including telephonic conference), and
thereafter as often as they reasonably deem necessary, to attempt to
resolve the dispute. All reasonable requests for information made by one
party to the other shall be honored.
(b) Controversies. If such matter has not been resolved within ten
(10) business days of the referral of the dispute to the Chief Financial
Officers, then the parties may pursue litigation or, if mutually agreed,
alternative dispute resolution mechanisms.
10.10 Written Notices. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the addresses indicated on the signature page of this Agreement (or
at such other address for a party as shall be specified by like notice). All
such notices and other communications shall be deemed to have been received (a)
in the case of personal delivery, on the date
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of such delivery, (b) in the case of a telecopy, when the party receiving such
copy shall have confirmed receipt of the communication, (c) in the case of
delivery by nationally-recognized overnight courier, on the business day
following dispatch, and (d) in the case of mailing, on the tenth business day
following such mailing. Failure of a party to provide notice in a prescribed
time period or in a timely manner shall not constitute a waiver of the other
party's obligation hereunder. Where notice is a condition to payment, the
obligation to make the payment shall not be waived, forgiven or eliminated by
virtue of a failure to give notice; however, the time period in which an amount
must be paid shall be measured from the date on which notice is actually given.
10.11 Representation by Counsel. Each of the parties hereto is represented
by separate counsel of its own choosing. Each of the parties hereto has had an
opportunity to ask questions of and receive advice from its counsel regarding
the terms and conditions of this Agreement. This Agreement has been negotiated
by the respective parties hereto and their attorneys and the language hereof
will not be construed for or against either party, notwithstanding that as of
the date hereof Odyssey Holdings is a wholly-owned subsidiary of Fairfax.
10.12 Construction of Agreement. A reference to a Section will mean a
Section in this Agreement unless otherwise explicitly set forth. The titles and
headings herein are for reference purposes only and will not in any manner limit
the construction of this Agreement, which will be considered as a whole.
10.13 Jurisdiction and Venue. The parties hereto irrevocably consent to
and agree that any litigation or other dispute resolution proceeding among the
parties relating to this Agreement will take place in Delaware. The parties
hereby irrevocably consent to the personal jurisdiction or and the venue in the
state and federal court within such county.
10.14 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances as may be reasonably requested by
any other party to evidence and reflect the transactions contemplated hereby and
to carry into effect the intents and purposes of this Agreement.
10.15 Entire Agreement. This Agreement, in conjunction with the
Inter-Company Tax Agreements, constitutes the entire understanding and agreement
of the parties hereto with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements or understandings, inducements or
conditions, express or implied, written or oral, between the parties with
respect hereto. To the extent that any provision in the Inter-Company Tax
Agreements conflicts with a provision herein, the provision in this Agreement
shall control.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers.
FAIRFAX INC.
ON BEHALF OF ITSELF AND THE FAIRFAX
SUBGROUP
/s/ XXXXXX X. XXXXX
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Vice President
----------------------------------
Address for Notice:
Fairfax Inc.
Fax:
Attention: Chief Financial Officer
ODYSSEY RE HOLDINGS CORP.
/s/ XXXXXX X. XXXXX
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Senior Vice President
----------------------------------
Address for Notice:
Odyssey Re Holdings Corp.
Fax:
Attention: Chief Financial Officer
ODYSSEY AMERICA REINSURANCE CORP.
/s/ XXXXXX X. XXXXX
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Senior Vice President
----------------------------------
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Address for Notice:
Odyssey America Reinsurance Corp.
Fax:
Attention: Chief Financial Officer
ODYSSEY REINSURANCE CORP.
/s/ XXXXXX X. XXXXX
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Senior Vice President
----------------------------------
Address for Notice:
Odyssey America Reinsurance Corp.
Fax:
Attention: Chief Financial Officer
XXXXXX INSURANCE CORP.
/s/ XXXXXX X. XXXXX
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Vice President
----------------------------------
Address for Notice:
Xxxxxx Insurance Corp.
Fax:
Attention: Chief Financial Officer
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