EXHIBIT 10.15
TAX SHARING AGREEMENT
This agreement is effective as of August 6, 1999 between and among Mattress
Discounters Holding L.L.C. ("LLC"), Mattress Discounters Holding Corporation
("Holding"), Mattress Discounters Corporation ("Discounters"), The Bedding
Experts, Inc. ("Bedding"), T.J.B., Inc. ("T.J.B."), and Comfort Source Mattress
Company ("Comfort Source") and each such other corporation as may become a party
hereto pursuant to the provisions hereof. Holding, Discounters, Bedding, T.J.B.
and Comfort Source may be referred to individually as a "Subsidiary" and
collectively as the "Subsidiaries." As used in this Agreement, "Parent" shall
refer to LLC and any successor corporation which may become the common parent of
the Mattress Group (as defined below).
Recitals
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A. WHEREAS, Parent will become the common parent of an affiliated group of
corporations (the "Mattress Group") as defined by Section 1504(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the
Subsidiaries are members of the Mattress Group. (Parent and each Subsidiary
may be referred to individually as a "Member" and collectively as the
"Members.")
B. WHEREAS, the Mattress Group will file a consolidated U.S. Federal income
tax return for each taxable year for which it is eligible to do so.
C. WHEREAS, the Members wish to define the rights and obligations of the
Members regarding the computation, allocation and payment of the Mattress
Group's Federal income tax liability, and various administrative matters
related thereto.
NOW, THEREFORE, the Members hereby agree as follows:
1. Definitions
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The following terms as used herein shall have the meanings set forth below:
"Consolidated Return" means a consolidated U.S. Federal income tax return
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filed pursuant to Code (S)1501.
"Consolidated Tax Liability" means the Federal income tax liability of the
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Mattress Group for a given taxable year.
"IRS" means the Internal Revenue Service, or any successor organization.
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"Regulations" means the Treasury regulations as in effect from time to
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time.
"Separate Return Tax Credit" means the Federal income tax refund or credit
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(arising from net operating loss carryovers, foreign tax credit carryovers or
any other tax items), if any, that would be available to a Member, computed as
if the Member had filed a separate Federal income tax return, with the
modifications set forth in Regulation (S)1.1552-1(a)(2)(ii), for the applicable
taxable year and for all prior taxable years in which the Member was a member of
the Mattress Group.
"Separate Return Tax Liability" means the Federal income tax liability, if
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any, that would be owed by a Member, computed as if the Member had filed a
separate Federal income tax return, with the modifications set forth in
Regulation (S)1.1552-1(a)(2)(ii), for the applicable taxable year and for all
prior taxable years in which the Member was a member of the Mattress Group.
2. Treatment of Separate Return Tax Liability and Separate Return Tax
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Credit
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(a) If a Consolidated Return is filed by the Mattress Group for any
taxable year, then, (i) each Member shall owe the amount of such Member's
Separate Return Tax Liability; or (ii) each Member shall be owed the amount of
such Member's Separate Return Tax Credit.
(b) Payment with respect to each Member's Separate Return Tax Liability or
Separate Return Tax Credit are governed by Sections 3 and 4 below.
3. Payment of Separate Return Tax Liability
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(a) A Subsidiary's Separate Return Tax Liability shall be an obligation
from such Subsidiary to Parent.
(b) During each taxable year for which Parent files a Consolidated Return
in which any Subsidiary is a member of the Mattress Group each such Subsidiary
will deposit with or at the discretion of Parent, no more than ten days prior to
the due date of each quarterly estimated tax payment of Parent to the IRS, an
amount established by the financial officers of Parent and each such Subsidiary
as appropriately reflecting the estimated tax, if any, which would be payable by
each such Subsidiary on such date if it filed a separate return for such year.
(c) Each Subsidiary shall pay to Parent the amount of such Subsidiary's
Separate Return Tax Liability no later than the due date (excluding extensions)
of the Consolidated Return for the applicable year, less any amount paid by such
Subsidiary to Parent under Section 3(b) for such year. If the Subsidiary's
Separate Return Tax Liability as computed at the time the Consolidated Return is
filed differs from the amount previously paid by Subsidiary to Parent pursuant
to this Section 3, then such difference shall be paid by Subsidiary to Parent
(or vice verse) promptly after such filing.
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4. Payment of Separate Return Tax Credit
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(a) A Subsidiary's Separate Return Tax Credit shall be an obligation from
Parent to such Subsidiary.
(b) Parent shall pay the amount of a Subsidiary's Separate Return Tax
Credit at such time as, and to the extent that, such Separate Return Tax Credit
actually reduces the Consolidated Tax Liability. The amount of such reduction
shall be calculated by computing the Consolidated Tax Liability including the
Separate Return Tax Credit, and then again but excluding the Separate Return Tax
Credit, adopting such other methods and practices as Parent may choose. If a
Separate Return Tax Credit from more than one Subsidiary is available to reduce
the Consolidated Tax Liability, then the use of such Separate Return Tax Credits
shall be apportioned among the Subsidiaries with such available Separate Return
Tax Credits using such methods and practices as Parent may adopt.
(c) No payment will be made to a Subsidiary under this Section 4 to the
extent, on or prior to such payment being made, such Subsidiary's Separate
Return Tax Credit reduces the amount of the Subsidiary's Separate Return Tax
Liability computed for a given year.
(d) To the extent a Subsidiary receives a payment pursuant to this Section
4 for a Separate Return Tax Credit, such Separate Return Tax Credit shall not be
taken into account in computing the Subsidiary's Separate Return Tax Liability
or Separate Return Tax Credit for future years.
5. Redeterminations
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Separate Return Tax Liability and Separate Return Tax Credit will be
recomputed if the income tax items of the Member are recomputed on audit or
otherwise. Any interest and penalties related to such recomputed items shall be
(i) allocated to the Member whose items are recomputed and (ii) treated as a
Separate Return Tax Liability of the Member, payable upon a final determination
that such amount is owing.
6. Procedural Matters
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(a) The Members will join in the filing of a Federal consolidated income
tax return.
(b) Parent will prepare and file the Consolidated Return and any other
returns, documents or statements required to be filed with the IRS with respect
to the determination of the Consolidated Tax Liability.
(c) In its sole discretion, Parent will have the right with respect to any
Consolidated Returns which it has filed or will file, (i) to determine (A) the
manner in which such returns, documents or statement shall be prepared and
filed, including, without limitation, the manner in which any item of income,
gain, loss, deduction or credit shall be reported, (B) whether any extensions
may be requested and (C) the elections that will be made by any Member; (ii) to
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contest, compromise or settle any adjustment or deficiency proposed, asserted or
assessed as a result of any audit of such returns by the IRS; (iii) to file,
prosecute compromise or settle any claim for refund; and (iv) to determine
whether any refund shall be paid by way of refund or credited against the
Consolidated Tax Liability.
(d) In its sole discretion, consistent with the provisions of this
Agreement, Parent will have the right to compute the Separate Return Tax
Liability or Separate Return Tax Credit for each Member, including the adoption
of any elections or interpretations necessary for the computation thereof.
(e) Each Member hereby irrevocably appoints Parent as its agent and
attorney-in-fact to take such action (including the execution of documents) as
Parent may deem appropriate to effect the provisions of this Agreement. Each
Member shall execute any necessary consents, powers of attorney or other
documents necessary to carry out the provisions of this Agreement.
7. Departure from the Mattress Group
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If a Member ceases to be a member of the Mattresss Group, it will have no
obligation under this Agreement for taxable periods the income from which is not
includable in the Consolidated Return for the Mattress Group. However, this
Agreement shall remain in effect for those taxable periods the Member's income
from which is includable in the Consolidated Return for the Mattress Group,
notwithstanding the fact that such Member is no longer a member of the Mattress
Group.
8. State and Local Taxes
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To the extent that the Mattress Group (or a portion thereof) files any
state or local income tax return on a consolidated or combined basis, the
Members shall share the state or local income tax liability using the same
principles as those applicable to the Consolidated Tax Liability under the terms
of this Agreement, with such other provisions and procedures as Parent may
reasonably establish.
9. Miscellaneous
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(a) Parent and each Subsidiary agree that if any Member merges into, is
consolidated with, or transfers substantially all of its assets to another
corporation, such surviving corporation shall succeed to the rights and
obligations of such Member herein, and all covenants and agreements in this
Agreement shall be binding upon, and inure to the benefit of, such surviving
corporation.
(b) The parties intend that this Agreement shall apply to all corporations
which are or which may become members of the Mattress Group. Parent and each
Subsidiary agree that they will make every reasonable effort to ensure that any
corporation that becomes a member of the Mattress Group agrees to be bound by
the terms of this Agreement by executing and delivering to Parent a counterpart
of this Agreement.
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(c) This Agreement contains the entire understanding of the parties hereto
with respect to the subject matter contained herein. No alternation, amendment
or modification of any of the terms of this Agreement shall be valid against any
party hereto unless made by an instrument signed in writing by such party.
(d) This Agreement has been made in and shall be construed and enforced in
accordance with the law of the State of New York without giving any effect to
any choice or conflict of law provision or rule.
(e) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
MATTRESS DISCOUNTERS HOLDING L.L.C.
/s/ Xxxxxxx X. Xxxxxx
By___________________________________
Representative
Its__________________________________
MATTRESS DISCOUNTERS HOLDING CORPORATION
/s/ Xxxxxxx X. Xxxxxx
By___________________________________
President
Its__________________________________
MATTRESS DISCOUNTERS CORPORATION
/s/ Xxxxxxx X. Xxxxxx
By___________________________________
Vice President
Its__________________________________
T.J.B., INC.
/s/ Xxxxxxx X. Xxxxxx
By___________________________________
Vice President
Its__________________________________
THE BEDDING EXPERTS, INC.
/s/ Xxxxxxx X. Xxxxxx
By___________________________________
Vice President
Its__________________________________
COMFORT SOURCE MATTRESS COMPANY
/s/ Xxxxxxx X. Xxxxxx
By___________________________________
Vice President
Its__________________________________
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