EXHIBIT 10.19
EXECUTION COPY
TAX ALLOCATION AGREEMENT
This TAX ALLOCATION AGREEMENT ("Agreement") is effective as of August
19, 2003 and is made by and between XXXXXX COMMUNICATIONS CORPORATION
("XXXXXX"), an Oklahoma corporation, and AMERICAN CELLULAR CORPORATION
("AMERICAN"), a Delaware corporation, and is effective as of the first day of
the consolidated return year during which AMERICAN becomes a member of the
"affiliated group" of corporations, as defined in Section 1504(a)(1) of the
Internal Revenue Code of 1986, as amended (the "Code") of which XXXXXX is the
common parent (the "Effective Date").
RECITALS
WHEREAS, XXXXXX is the common parent corporation of a consolidated
group (as defined in Treasury Regulations Section 1.1502-1(h)) that includes
XXXXXX as the common parent corporation and AMERICAN as a wholly-owned
subsidiary; and
WHEREAS, AMERICAN and its subsidiaries are subject to the terms and
conditions of a Consolidated Income Tax Payment Agreement with XXXXXX dated as
of February 28, 1997, as amended (the "Prior Agreement"); and
WHEREAS, AMERICAN, for itself and its subsidiaries, desires to withdraw
from the Prior Agreement and become parties to this Agreement, and XXXXXX has
agreed that the Prior Agreement shall terminate as to AMERICAN and it
subsidiaries, effective upon the execution of this Agreement; and
WHEREAS, XXXXXX, AMERICAN and other members of the Consolidated Group
(as defined below) will join in the filing of a consolidated federal income tax
return pursuant to Section 1501 of the Code; and
WHEREAS, XXXXXX and AMERICAN may be required to or may be eligible to
join in a combined, consolidated or unitary state income, franchise or other tax
return filing; and
WHEREAS, it is the intent of XXXXXX and AMERICAN that a formal method
be established for (a) allocating any federal and state tax liability for a
return in which they join; (b) reimbursing XXXXXX or AMERICAN for payment of
such federal and state tax liabilities; and (c) providing for the allocation and
payment of any recovery arising from a carryback of tax attributes.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and
obligations contained herein, the parties agree as follows:
SECTION 1. DEFINITIONS
For purposes of this Agreement:
"AMERICAN GROUP" means all corporations which are now, or from time to
time hereafter are eligible or required to be included in a consolidated federal
income tax return with AMERICAN as the common parent corporation if AMERICAN had
no parent corporation and such corporation.
"Common Parent" means XXXXXX, determined as if XXXXXX had no parent
corporation and was not includible in any chain of corporations connected
through stock ownership with a common parent corporation other than XXXXXX.
"Consolidated Group" means XXXXXX and all corporations which XXXXXX may
now or from time to time hereafter may be eligible or required to include in a
consolidated federal income tax return with XXXXXX as the common parent
corporation, including the XXXXXX GROUP and the AMERICAN GROUP..
"Consolidated Group Return" means, with respect to any Consolidated
Return Year, the consolidated federal income tax return of the Consolidated
Group.
"Consolidated Return Date" means each date upon which the Consolidated
Group shall file its federal income tax return.
"Consolidated Return Year" means any taxable year or period during
which XXXXXX owns outstanding stock of AMERICAN in such amounts and having such
characteristics as shall meet the requirements of Section 1504 (a)(1) of the
Code and for which a consolidated return is filed by XXXXXX for the Consolidated
Group.
"XXXXXX GROUP" means the Consolidated Group excluding any corporations
within the AMERICAN GROUP.
"Estimated Payment Date" means each date occurring during any
Consolidated Return Year upon which the Consolidated Group is required to make a
payment of estimated tax whether or not such a payment is due, for such
Consolidated Return Year.
"Extension Payment Date" means, with respect to any Consolidated Return
Year, any date under which the Consolidated Group shall be required to make a
payment of federal income taxes in connection with any request by XXXXXX on
behalf of the Consolidated Group for an extension of the date upon which it
would have been required, absent such extension, to file its federal income tax
return for such Consolidated Return Year.
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"Group Refund Claim" means any claim filed by XXXXXX on behalf of the
Consolidated Group for a refund of federal income taxes.
"IRS" and the "Code" mean the United States Internal Revenue Service
and United States Internal Revenue Code of 1986, as amended, respectively.
"Regulations" means the Regulations issued by the Secretary of the
Treasury interpreting and implementing the Code.
SECTION 2. STATE INCOME AND FRANCHISE TAXES
To the extent the XXXXXX GROUP and the AMERICAN GROUP file consolidated
or combined state income and/or franchise tax returns, the consolidated or
combined tax liability shall be allocated and paid in a manner consistent with
and comparable to the provisions of this Agreement governing the payment of
federal income tax liabilities. All references to federal income taxes shall be
considered to apply in a similar manner to state income and franchise taxes in
those states where the XXXXXX GROUP and the AMERICAN GROUP join in the filing of
consolidated or combined state income and/or franchise tax returns.
SECTION 3. CONSENT TO FILE CONSOLIDATED RETURNS
XXXXXX and AMERICAN hereby consent to the filing of consolidated or
combined federal and state income and franchise tax returns, where required or
permitted by federal or state law and where eligible to do so, and to any
applications for extensions of time to file such returns which XXXXXX may choose
to file. AMERICAN further agrees to obtain the consent of each member of the
AMERICAN GROUP to the filing of such returns and applications for extension in
the manner, and to the extent, required by applicable law. XXXXXX shall have
sole discretion as to the determination of whether combined state income and
franchise tax returns will be filed, where eligible to do so under state law.
XXXXXX agrees to furnish all information and to execute all elections and other
documents which may be necessary or appropriate to evidence such consent or to
prepare and file such returns and such applications for extension of time to
file such returns. AMERICAN agrees to make or to cause the members of the
AMERICAN GROUP to make such elections and execute such documents as may be
necessary or appropriate to evidence its consent to any such action. In the
event consent is given by the IRS to revoke the election to file a consolidated
federal income tax return by the Consolidated Group, XXXXXX and AMERICAN hereby
agree to continue to file a consolidated federal income tax return until XXXXXX
notifies AMERICAN of the intention to file on a separate return basis.
SECTION 4. EXTENSION AND ESTIMATED PAYMENTS OF ALLOCATED TAX LIABILITY
(a) Prior to each Estimated Payment Date of each Consolidated Return
Year, XXXXXX shall determine the method or methods (specified in Section 6655 of
the Code) to be used by the Consolidated Group in making estimated tax
computations for such Consolidated Return Year. XXXXXX shall prepare such
computations and remit to the IRS and all applicable state taxing authorities
all payments on behalf of the Consolidated Group. AMERICAN agrees
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to provide, and to cause each member of the AMERICAN GROUP to provide, XXXXXX
with all information reasonably necessary to enable XXXXXX properly to compute
the Consolidated Group's requisite tax payments, including information relative
to the income, losses, or activities of any corporation within the AMERICAN
GROUP. AMERICAN shall pay to XXXXXX an amount equal to the AMERICAN GROUP'S
share of any such payment, computed in accordance with Section 5, within ten
days following AMERICAN'S receipt of notice of such amount from XXXXXX, which
shall in no event be later than the due date for such payment.
(b) If XXXXXX shall request an extension of time to file the
Consolidated Group Return for any Consolidated Return Year, then XXXXXX shall
compute the Consolidated Group's estimated tax liability for the year. AMERICAN
shall provide, and shall cause each member of the AMERICAN GROUP to provide, any
information reasonably necessary for XXXXXX to prepare such computations on a
timely basis, to the extent such information relates to the income, losses, or
activities of any corporation within the AMERICAN GROUP. Any incremental tax due
by AMERICAN (computed in accordance with Section 5) in excess of the payments
previously made to XXXXXX with respect to the relevant taxable year pursuant to
Section 4(a) shall be due from AMERICAN to XXXXXX at such Extension Payment
Date. XXXXXX in its sole judgment may defer the due date of this payment
requirement.
SECTION 5. DETERMINATION OF ACTUAL ALLOCATED TAX LIABILITY
(a) For each Consolidated Return Year and at a mutually agreed upon
date, XXXXXX shall prepare a hypothetical separate tax return for the AMERICAN
GROUP
(b) For each tax period, AMERICAN shall pay to XXXXXX the amount of the
AMERICAN GROUP'S separate tax liability computed pursuant to Section 5(a). For
purposes of this Agreement, any liability for alternative minimum tax shall be
treated as part of the AMERICAN GROUP'S separate tax liability. The liability
for any payment by AMERICAN to XXXXXX pursuant to this Section 5(b) shall be
joint and several as among members of the AMERICAN GROUP, but, as among such
members, such liability shall be allocated among such members pro-rata, based on
the hypothetical separate return tax liability of each such member of the
AMERICAN GROUP, as determined by AMERICAN on a basis consistent with the
provisions of this Section 5 of this Agreement.
(c) If for any Consolidated Return Year, (i) the AMERICAN GROUP
generates a net operating loss, net capital loss, or tax credit as computed on
its hypothetical separate tax return, and (ii) all or a portion of such loss or
credit is not useable by the AMERICAN GROUP to reduce the consolidated tax
liability of the AMERICAN GROUP in the current Consolidated Return Year, then
the AMERICAN GROUP shall not carry such loss or such portion of such loss back
to any prior years' hypothetical separate tax returns, and XXXXXX shall have no
obligation to reimburse AMERICAN in an amount equal to a hypothetical refund
which such loss would have resulted in had the AMERICAN GROUP filed a separate
tax return for such year(s).
(d) The hypothetical separate return tax liability of the AMERICAN
GROUP for any Consolidated Return Year shall be computed after taking into
account the AMERICAN
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GROUP'S previously unused net operating losses, net capital losses, or any
income tax credit carry-forwards allowed under the Code. The hypothetical
separate tax return for the AMERICAN GROUP for such Consolidated Return Year
shall not take into account any net operating losses, capital loss or tax credit
carry-back from any subsequent period.
(e) If part or all of an unused loss or tax credit is allocated to a
member of the Consolidated Group pursuant to Regulations Section 1.1502-21T(b)
or 1.1502-79 and is carried back or forward to a year in which such member filed
a separate return or a consolidated return with another consolidated group, any
refund or reduction in tax liability arising from the carryback or carryover
shall be retained by such member. Notwithstanding the foregoing, XXXXXX shall
determine whether an election shall be made not to carry back part or all of a
consolidated net operating loss for any tax year in accordance with Regulation
Section 1.1502-21T(b)(3).
(f) Any dividends received by XXXXXX from any member of the
Consolidated Group, and any dividends received by AMERICAN from any member of
the AMERICAN GROUP, will be assumed to qualify for the 100% dividends-received
deduction of Section 243 of the Code.
(g) To the extent the separate return tax liability of the AMERICAN
GROUP for a Consolidated Return Year, computed in accordance with Section 5,
exceeds the payments previously made by AMERICAN pursuant to Section 4 for such
Consolidated Return Year, AMERICAN shall pay XXXXXX the difference by the
Consolidated Return Date, taking into account extensions. XXXXXX in its sole
judgment may defer the due date of this payment requirement. To the extent that
the separate return tax liability of the AMERICAN GROUP for a Consolidated
Return Year is less than the payments made by the AMERICAN GROUP for such
Consolidated Return Year pursuant to Section 4, XXXXXX will reimburse the
AMERICAN GROUP for the difference by the Consolidated Return Date.
SECTION 6. ADMINISTRATION
The provisions of this agreement shall be administered by the tax
department of XXXXXX.
SECTION 7. ADJUSTMENTS AFTER DECONSOLIDATION
If AMERICAN shall cease to be included in the Consolidated Group and
thereafter shall earn a tax attribute which is carried back to a Consolidated
Return Year, XXXXXX and AMERICAN shall furnish to each other any and all data
relating to that tax attribute which may be necessary or helpful in connection
with the preparation by XXXXXX of a Consolidated Group Refund Claim with respect
to such tax attribute, or of an Application for a Tentative Carryback Adjustment
(which each company shall sign). XXXXXX shall file such Consolidated Group
Refund Claim within a reasonable time period but in no event later than the
expiration of the statute of limitations with respect thereto, provided AMERICAN
furnishes XXXXXX the relevant information and data not later than ninety (90)
days prior to the expiration of such statute of limitations. Upon the receipt by
XXXXXX of any refund relating to such refund claim,
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XXXXXX shall pay to each company the amount of refund each company would have
received if it had filed hypothetical separate returns for all Consolidated
Return Years involved in or relevant to such refund claim (based upon the law
and facts as finally determined in connection with such Group Refund Claim).
SECTION 8. PAYMENT OF CONSOLIDATED GROUP TAX AND ALLOCATED TAX
LIABILITIES
All payments of actual or estimated federal income taxes owed by the
Consolidated Group shall be paid to the appropriate governmental authority by
XXXXXX, and XXXXXX shall be entitled to receive any and all refunds of income
taxes owed to the Consolidated Group, subject to XXXXXX'x obligations to account
for any such refund to the other members of the Consolidated Group under the
provisions of this Agreement. XXXXXX shall indemnify and hold harmless each
member of the Consolidated Group from and against any claims by the governmental
authority in connection with the income tax liability of the Consolidated Group
for a particular Consolidated Return Year to the extent any such claim is not
based on any item of income, expense, gain, loss or credit that was included in
the hypothetical separate return of the AMERICAN GROUP prepared by XXXXXX and to
the extent each company pays timely to XXXXXX all amounts owed to XXXXXX under
this Agreement in respect to such Consolidated Return Year. If any such claims
result in a final adjustment of any item of income, expense, gain, or loss of
credit included in the hypothetical separate returns of the AMERICAN GROUP, a
proper adjustment will be made with respect to payment obligations between
AMERICAN and XXXXXX in accordance and on a basis consistent with the principles
set forth in Section 5 Each member of the Consolidated Group shall be entitled
to receive from XXXXXX all amounts which may become owing to such company
pursuant to Sections 5 (adjusting for any estimated and extension payments made
pursuant to Section 4) and 7 of this Agreement.
SECTION 9. ALLOCATION OF TAX LIABILITY
For federal and state income tax purposes only, XXXXXX may elect on
behalf of the Consolidated Group to allocate the actual tax liability of the
Consolidated Group among its members in accordance with any method permitted by
law, provided that such election shall have no effect on the intercompany
payments provided for by this Agreement.
SECTION 10. DISPUTES WITH GOVERNMENTAL AUTHORITY AND GROUP REFUND
CLAIMS
In the event of a dispute with a governmental authority concerning the
amount of any income tax liability of or refund due the Consolidated Group, and
in connection with every Group Refund Claim, each member of the AMERICAN GROUP
hereby expressly confirms the authority granted to XXXXXX in Regulations Section
1.1502-77 (and in any successor provision thereto) to act on its behalf, and
authorizes XXXXXX and its representatives to pursue such dispute or Group Refund
Claim either administratively or by court action. AMERICAN agrees to cooperate
by furnishing to XXXXXX all relevant records and documents possessed by the
AMERICAN GROUP, and by making personnel available for testimony who may be
necessary or helpful in connection with the negotiation or settlement of such
dispute or Group Refund Claim. XXXXXX shall have the exclusive right to make any
and all decisions to pursue, settle,
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or appeal any Group Refund Claim or dispute with the IRS, and to control all
administrative and court proceedings, and the control of all negotiations and
settlements shall rest exclusively with XXXXXX.
Additionally, if AMERICAN is the subject of a formal governmental
audit, the parties agree as follows:
(a) XXXXXX will defend, with its best efforts, any issues arising from
operations of the AMERICAN GROUP;
(b) AMERICAN may join in the defense of audit issues arising from the
operations of the AMERICAN GROUP, at its own expense;
(c) Notwithstanding above paragraph (b), XXXXXX will not concede
control of the audit process, and each member of the AMERICAN GROUP agrees to be
bound by the provisions of Regulations Section 1.1502-77 (and by any successor
provisions thereto) at all times.
SECTION 11. DISAGREEMENTS
In the event XXXXXX disagrees with any computations prepared by
AMERICAN pursuant to this Agreement, or AMERICAN disagrees with any computations
prepared by XXXXXX pursuant to this Agreement, and in the further event XXXXXX
and AMERICAN are unable to settle their disagreement, the differing computations
shall be referred to the certified public accounting firm as mutually agreed to
by the parties at the time of such referral, and such firm shall review the
income tax return and determine the correct computation. The decision of the
certified public accounting firm so selected shall be final and binding upon the
parties hereto for all purposes.
SECTION 12. INTEREST AND PENALTIES
In connection with any amounts due and payable under this Agreement,
interest and penalties shall be calculated at the same rates and upon the same
principles as are applied by the IRS to the Consolidated Group tax liability or
the Consolidated Group refund in question.
SECTION 13. PRIORITY OF AGREEMENT
As between the parties, the provisions of this Agreement shall fix the
liability of XXXXXX on the one hand, and AMERICAN, on the other hand, to each
other as to the matters provided for herein even if payments made pursuant
hereto are treated otherwise for federal or state income tax purposes.
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SECTION 14. OTHER GROUP MEMBERS
XXXXXX and AMERICAN recognize that other corporations currently are,
and may from time to time hereafter, become members of the Consolidated Group
under circumstances which may warrant other methods of sharing. XXXXXX is
authorized to enter into the same, similar or different tax sharing agreements
with any corporation which is now or may hereafter become a member of the
Consolidated Group. Notwithstanding the foregoing, if AMERICAN becomes the owner
of outstanding stock of another corporation in such amounts and having such
characteristics as shall meet the requirements of Section 1504(a)(l) of the
Code, then AMERICAN shall cause such corporation to adopt and become bound by
this Agreement as a member of the Consolidated Group. Such adoption may be
effected by having the new member execute the master copy of this Agreement
which shall be maintained at XXXXXX'x corporate headquarters. It will not be
necessary for all other members to re-sign the Agreement, but the new member
shall simply sign the existing Agreement and it shall be effective for all
purposes as if the old members had re-signed.
SECTION 15. RECORD RETENTION
AMERICAN shall retain all material, including but not limited to,
returns, supporting schedules, workpapers, correspondence, and other documents
relating to the income tax returns filed for a taxable year during which this
Agreement was in effect, and shall make such items available to XXXXXX during
regular business hours for the period equal to that specified in XXXXXX'x
records retention schedule.
SECTION 16. INFORMATION AND EXPENSES
XXXXXX shall be authorized to retain accountants and attorneys for the
purpose of preparing the Consolidated Group Return and any other returns
provided for herein, and each company agrees to pay all the costs incurred by
such company in furnishing records, documents or other information in the form
requested by XXXXXX in connection with such records, documents and information
as XXXXXX shall request in connection with the preparation of such returns.
AMERICAN shall promptly provide XXXXXX with such records, documents, and other
information as XXXXXX shall reasonably request in connection with the
preparation of such returns. XXXXXX shall be authorized to retain accountants
and attorneys for the purpose of preparing any of the refund claims provided for
herein, and of representing any of the parties hereto in connection with any
disputes with the governmental authority. In cases where the action taken is
company specific or where AMERICAN has agreed the action taken is appropriate,
AMERICAN shall pay the costs reasonably allocated to it by XXXXXX of employing
such attorneys and accountants (including associated court costs), and shall
bear the costs incurred by XXXXXX or AMERICAN in furnishing records, documents,
and testimony in connection with any matter described in Section 10 hereof.
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SECTION 17. AMENDMENTS AND MODIFICATIONS
With mutual consent, the parties hereto may make amendments,
modifications, additions, deletions, or other changes to this Agreement based
upon their mutual benefit. Such amendments, modifications, additions, deletions,
or other changes must be made in writing.
SECTION 18. TERM
This Agreement shall apply to the Consolidated Return Year specified in
the preamble of this Agreement, and all subsequent Consolidated Return Years,
unless the members agree in writing to terminate the Agreement. Notwithstanding
such termination, this Agreement shall continue in effect with respect to any
payment or refund due for all taxable periods prior to termination. Except as
provided in Sections 7 and 10, this Agreement shall terminate on the date
AMERICAN ceases to be a member of the Consolidated Group.
SECTION 19. ASSIGNMENT
The Agreement shall not be assignable by XXXXXX or AMERICAN without the
prior written consent of the other.
SECTION 20. AMENDMENTS AND MODIFICATIONS TO THE CODE
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.
SECTION 21. QUALIFICATION
Failure of either party hereto to qualify in meeting the definition of
a member of the "Consolidated Group" shall not operate to terminate this
Agreement with respect to the other party as long as two or more members of the
Consolidated Group continue so to qualify.
SECTION 22. CONTROLLING LAW
This Agreement shall be governed by the laws of the State of Oklahoma.
SECTION 23. ATTORNEY'S FEES & EXPENSES
In the event of a breach or violation of any provision of this
Agreement, the parties hereto agree that the prevailing party shall be entitled
to receive from the non-prevailing party, all costs of enforcing this Agreement,
including, but not limited to, court costs and reasonable attorney's fees and
expenses.
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SECTION 24. BINDING EFFECT; TERMINATION OF PRIOR AGREEMENT.
This Agreement shall be binding upon, enforceable by and against, and
inure to the benefit of the parties hereto and their respective successors and
assigns, but no assignment hereof shall relieve any party of its obligations
hereunder without the written consent of the other party. Any member corporation
which leaves the Consolidated Group shall be bound by this Agreement to the
extent provided herein. The obligations of the parties to one another under the
Prior Agreement are hereby terminated and cancelled, and are superceded by this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate by their duly authorized representatives.
XXXXXX COMMUNICATIONS
CORPORATION
By: /s/ XXXXX X. XXXXXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxxxxx
Vice President
AMERICAN CELLULAR CORPORATION
By: /s/ XXXXX X. XXXXXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxxxxx
Vice President
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