EXHIBIT 10.17
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TAX AGREEMENT
THIS TAX AGREEMENT (this "Agreement") is entered into as of
December 29, 2000, by and among Northbrook Corporation, a Delaware
corporation ("Parent") and Amfac/JMB Hawaii, L.L.C., a Hawaii limited
liability company ("AHI").
WHEREAS, Parent is the common parent of an affiliated group of
corporations as defined in section 1504(a) of the Internal Revenue Code of
1986, as amended (the "Code");
WHEREAS, Parent, as successor in interest to Amfac, Inc., a Hawaii
corporation, and AHI, as successor in interest to Amfac/JMB Hawaii, Inc., a
Hawaii corporation, are currently parties to a Tax Sharing Agreement dated
as of February 27, 1989 (the "Prior Agreement");
WHEREAS, AHI is the owner, directly or indirectly, of various
subsidiary corporations which are identified on Schedule A hereto;
WHEREAS, the parties desire to terminate the Prior Agreement and to
agree, as to taxable periods after 2000 Taxable Year as defined below, upon
the method set forth in this Agreement for determining the financial
consequences to Parent and the AHI Group (as defined below) for filing
consolidated federal income tax returns by Parent; and
WHEREAS, the parties desire to set forth the continuing rights and
obligations of AHI for the taxable periods that were covered by the Prior
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties agree as follows:
1. DEFINITIONS
(a) Terms used in this Agreement shall have the meanings ascribed
to them in the Code, and the regulations and rulings issued thereunder, as
from time to time in effect. Concepts referred to in this Agreement shall
be interpreted in view of the provisions of the Code and the regulations
and rulings thereunder then in effect.
(b) For purposes of this Agreement, the terms set forth below shall
be defined as follows:
(i) "AHI GROUP ESTIMATED TAX LIABILITY" means the
hypothetical estimated consolidated federal income tax liability for the
AHI Group determined in accordance with the principles of paragraph 1(b)
(iv).
(ii) "AHI GROUP" means AHI as if it were a separate
corporation and the hypothetical common parent of an affiliated group of
corporations and each AHI Subsidiary.
(iii) "AHI GROUP MEMBER" means AHI as if it was a separate
corporation and each AHI Subsidiary.
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(iv) "AHI GROUP TAX LIABILITY" means the hypothetical federal
income tax liability of the AHI Group for a taxable year after 2000 Taxable
Year, determined as if (a) AHI were treated as a separate corporation for
federal income tax purposes and was the common parent of the AHI Group, and
(b) the AHI Group had filed its own separate federal income tax
consolidated return for such taxable year and all prior taxable years (if
any) after the 2000 Taxable Year. Such hypothetical federal income tax
liability shall be finally determined no later than ten days after the date
of the filing of the Consolidated Return of the Group for such taxable year
and shall reflect any tax elections, conventions, treatments or methods
which are actually utilized by the Group in its Consolidated Return. For
the avoidance of doubt, AHI Group shall be treated as having available as
loss or credit carryovers for purposes of computing AHI Group Tax Liability
all losses or credits generated by any AHI Group Member during any taxable
year after 2000 Taxable Year ("Post-2000 Losses"). Notwithstanding the
foregoing, (i) the AHI Group shall not be entitled to any reimbursement for
losses or credits generated by an AHI Group Member except to the extent
such payment is an AHI Group Tax Refund; (ii) AHI Group shall not be
entitled to use Post-2000 Losses to compute AHI Group Tax Liability for any
year to the extent the losses or credits were previously taken into account
in computing the AHI Group Tax Liability or AHI Group Tax Refund, (iii) the
AHI Group shall not be treated as having available for purposes of
computing AHI Group Tax Liability any losses or credits generated by an AHI
Group Member in any taxable year prior to its 2001 Taxable Year which, for
federal income tax purposes, could be carried to a taxable year after its
2000 Taxable Year, and (iv) the AHI Group shall not be entitled to any
reimbursement for losses generated by an AHI Group Member in any year prior
to its 2001 Taxable Year.
(v) "AHI GROUP TAX REFUND" means the hypothetical federal
income tax refund for any taxable year after the 2001 Taxable Year to which
AHI Group would be entitled, determined in accordance with the principles
of paragraph 1(b)(iv), provided, however, that the AHI Group shall not be
entitled to use Post-2000 Losses to compute the AHI Group Tax Refund for a
given year to the extent the Post-2000 Losses were previously taken into
account in computing an AHI Group Tax Liability or AHI Group Tax Refund.
Notwithstanding the foregoing, the amount of any AHI Group Tax Refund for a
given year shall not exceed the sum of all AHI Group Tax Liabilities
previously paid by AHI to Parent less the aggregate of all AHI Group Tax
Refunds previously paid by Parent to AHI.
(vi) "AHI SUBSIDIARY" means each existing or subsequently
acquired or newly formed corporation that would be entitled to join in a
Consolidated Return with AHI if AHI were a separate corporation and common
parent of the consolidated group.
(vii) "COMBINED RETURN" means any tax return for Other Income
Taxes for any taxable year or period after the 2000 Taxable Year in which
the tax liability is computed by reference to (1) the income of AHI or any
AHI Group Member and (2) the income of the Parent or any Member other than
an AHI Group Member
(viii) "CONSOLIDATED RETURN" means any consolidated federal
income tax return.
(ix) "GROUP" means Parent and all corporations (whether now
existing or hereafter formed or acquired) that at the time would be
entitled or required to join with Parent in filing a Consolidated Return.
(x) "MEMBER" means any corporate entity entitled to be
included in the Group (for avoidance of doubt, the term includes any
corporation that is treated as a division of a Member for federal income
tax purposes).
(xi) "OTHER INCOME TAX RETURN" means any state, local or
foreign income tax return which has been, is being or will be filed on or
on behalf of any AHI Group Member for any Pre-2001 Group Return Years,
whether or not on a separate, combined or consolidated basis.
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(xii) "OTHER INCOME TAXES" means all state and local income
taxes and all income taxes imposed by any foreign jurisdiction or taxing
authority.
(xiii) "PARENT" means Parent, or any successor common parent
corporation of the group.
(xiv) "PRE-2001 GROUP YEAR" means any taxable year or portion
thereof prior to 2001 Taxable Year during which AHI or any predecessor of
AHI was a Member.
(xv) "PRIOR ADDITIONAL TAX LIABILITY" means any increase in
the federal income tax liability of the Group with respect to a Pre-2001
Group Year Consolidated Return (including interest and penalties) resulting
from the filing of an amended return, a tax audit or otherwise, beyond the
tax liabilities of the Group shown on such Consolidated Return as
originally filed.
(xvi) "2000 TAXABLE YEAR" and "2001 TAXABLE YEAR" mean,
respectively, the taxable years of the Group ending December 31, 2000 and
December 31, 2001.
2. ALLOCATIONS OF CONSOLIDATED FEDERAL INCOME TAX LIABILITY
(a) Filing by Parent
Parent shall continue to file Consolidated Returns for each taxable
year ending after the date hereof.
(b) Payment of Tax Liability
For each taxable year or portion thereof after the 2000 Taxable Year
during which any AHI Group Member is included in a Consolidated Return
with Parent, Parent shall be entitled to, and AHI will pay to Parent, an
amount equal to the AHI Group Tax Liability. To the extent that the
obligation to pay such amount has not been fully satisfied pursuant to
paragraph 2(c) of this Agreement, AHI shall pay any such remaining amount
to Parent no later than ten days after receiving notice from Parent, which
notice shall not be given earlier than fifteen days before Parent is
required to make a corresponding payment on behalf of the Group, or if
Parent is not required to make such a payment, no earlier than fifteen days
before the last date on which a corporate taxpayer with the same taxable
year as Parent would be required to make its final payment of federal
income taxes for the taxable year without incurring any penalties or
additions to tax.
(c) Estimated Payments
On or before any date on which a corporate taxpayer is required to
make an estimated payment of federal income tax under the Code, Parent
shall be entitled to, and AHI will make estimated payments to Parent, in an
amount such that its aggregate payments under this paragraph 2(c) for the
taxable year for which such payments are being made are equal to its
aggregate AHI Group Estimated Tax Liability for such taxable year. If the
total of such estimated payments made by AHI to Parent with respect to a
taxable year shall be in excess of the liability of AHI to Parent pursuant
to paragraph 2(b) of this Agreement for such taxable year, Parent shall pay
the amount of such excess to AHI no later than the date on which Parent
files the Consolidated Return for the Group.
(d) Tax Refunds
(i) Parent shall pay to AHI the amount of the AHI Group Tax
Refund with respect to each taxable year ending after the 2001 Taxable
Year.
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(ii) The payments described in this paragraph 2(d) shall be
made not later than ten days after such refund is received by Parent (or
would have been received by Parent if the Group were entitled to a refund
for such taxable year).
3. CHANGES IN TAX LIABILITY
(a) If the AHI Group Tax Liability is changed as the result of the
filing of an amended Consolidated Return or of any final administrative or
judicial determination (including a final "determination" as defined in
Section 1313(a) of the Code) with respect to Consolidated Returns actually
filed by the Group, then the amount of the payments required from AHI to
Parent under paragraph 2(b) or the amount of the payment required from
Parent to AHI under paragraph 2(d)(i), as the case may be, shall be
recomputed by substituting the amount of AHI Group Tax Liability (or AHI
Group Tax Refund) after the adjustments described above, plus the amount of
any interest or penalties incurred with respect to such adjustments that
are properly allocable (as determined by Parent) to AHI, in place of the
AHI Group Tax Liability (or AHI Group Tax Refund), provided that the
principles of paragraph 1(b)(iv) shall be applied in connection with such
recomputation notwithstanding any contrary determination. If such filing
of an amended Consolidated Return or such final determination results in an
increase in the AHI Group Tax Liability, AHI shall pay to Parent not later
than ten days after such filing or such final determination an amount equal
to the excess of the new AHI Group Tax Liability over the amount previously
paid to Parent by AHI. If such filing of an amended Consolidated Return or
such final determination results in a AHI Group Tax Refund or increases the
amount of an AHI Group Tax Refund, Parent shall pay to AHI not later than
ten days after such filing or receiving such refund an amount equal to the
excess of the new AHI Group Tax Refund over the amount previously paid to
AHI by Parent. The parties recognize that such new liability (or refund)
for any taxable year is not necessarily AHI's final liability (or refund)
for that year, and may be recomputed more than once.
(b) Payments made pursuant to paragraph (a) shall bear interest in
the same manner as any late payment or refund of federal income tax.
4. PAYMENT
Any payment required by AHI to Parent or by Parent to AHI under this
Agreement shall be made in cash, unless the recipient party consents to a
different form of payment. Notwithstanding the foregoing, Parent may
elect, in lieu of making a cash payment, to offset any amount it may owe
AHI under this Agreement against amounts AHI owes to Parent including, but
not limited to, amounts due Parent for (a) tax related obligations, (b)
corporate general and administrative services, (c) corporate allocated
charges including, without limitation, the following: (i) out of pocket
costs, (ii) allocation of employee costs (on a time basis) for services
provided by employees outside of the AHI Group, (iii) self insurance costs
attributable to claims against Amber Insurance Company Ltd., and (iv)
allocation of third-party costs benefiting the AHI Group; and (d) principal
and interest under any and all debt instruments.
5. PARENT OBLIGATIONS
(a) Parent will bear any Prior Additional Tax Liability and shall
pay, be responsible for and indemnify and hold harmless all AHI Group
Members for any Prior Additional Tax Liability. Any refund of federal
income tax (including interest) for or attributable to a Pre-2001 Group
Year Consolidated Return shall be paid to, be retained by and be for the
sole benefit of Parent. Parent agrees to perform any and all acts, and
defray the expenses thereof, in connection with the final determination of
the federal income tax liability of all AHI Group Members for any Pre-2001
Group Year Consolidated Return. Parent shall have the sole and exclusive
authority and discretion as to deciding what action, if any, should be
taken with respect to adjustments of items of income, deductions, or
credits attributable to any AHI Group Member for any Pre-2001 Group Year
Consolidated Return.
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(b) Parent shall pay, be responsible for and indemnify and hold
harmless all AHI Group Members for all federal income tax liability of the
Group with respect to any Pre-2001 Group Year which is otherwise
attributable to or payable by any AHI Group Member (including those taxes
payable by a AHI Group Members by reason of its joint liability for all
federal income taxes of the Group), including such taxes that are payable
with respect to any Pre-2001 Group Year which a tax return has not been
filed as of the date hereof. Any refund of federal income tax (including
interest and penalties) otherwise attributable to or payable to an AHI
Group Member for or attributable to a Pre-2001 Group Year shall be paid to,
be retained by and be for the sole benefit of Parent. Parent agrees to
perform any and all acts, and defray the expense thereof, in connection
with the final determination of the federal income tax liability of any AHI
Group Member for any Pre-2001 Group Year. Parent shall have the sole and
exclusive authority and discretion as to deciding what action, if any,
should be taken with respect to adjustments of items of income, deductions,
or credits attributable to any AHI Group Members for any Pre-2001 Group
Year.
(c) With respect to any year or period before 2001 Taxable Year,
Parent shall pay, be responsible for and indemnify and hold harmless all
AHI Group Members for all Other Income Taxes which are otherwise
attributable to or payable by an AHI Group Member. Any refund of Other
Income Taxes (including interest and penalties) otherwise attributable to
or payable to an AHI Group Members for any such year or period shall be
paid to, be retained by and be for the sole benefit of Parent. Parent
agrees to perform any and all acts, and defray the expenses thereof, in
connection with the final determination of liability for such Other Income
Taxes of all AHI Group Members. Parent shall have the sole and exclusive
authority and discretion as to deciding what action, if any, should be
taken with respect to adjustments of items of income, deductions, or
credits of AHI Group Members with respect to any Other Income Tax for any
year or period.
(d) Parent agrees to indemnify, defend and hold harmless all AHI
Group Members from and against any liability for taxes under Treas. Reg.
section 1.1502-6 for any taxable year after the 2000 Taxable Year to the
extent such liability is attributable to Members other than AHI Group
Members.
6. EFFECT OF AGREEMENT
(a) As between Parent and AHI, the provisions of this Agreement
shall fix the liability of each to the other as to the matters covered
hereunder, even if such provisions are not controlling for tax or other
purposes (including, but not limited to, the computation of earnings and
profits for federal income tax purposes).
(b) This Agreement shall be effective as between Parent and AHI in
respect of all taxable years after 2000 Taxable Year during which AHI or
any AHI Subsidiary is a member of the Group.
7. OTHER INCOME TAXES
The principles and procedures (including the indemnity in paragraph
5) stated in this Agreement shall apply for purposes of allocating any tax
liability for any Combined Return for any taxable year or period after 2000
Taxable Year. For instance, if Parent files a Combined Return, AHI shall
reimburse Parent for the amount of any tax liability to the extent the tax
liability is paid by the Parent and is attributable to the operations of
AHI or to any AHI Group Member. For the avoidance of doubt, each member of
the AHI Group shall otherwise be responsible for its own Other Income
Taxes, and all other taxes.
8. TERMINATION OF PRIOR AGREEMENT
Immediately prior to the date hereof, the Prior Agreement shall
terminate and shall have no further effect. Parent and AHI hereby
acknowledge and consent to the termination of the Prior Agreement.
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9. AGREEMENT OF COOPERATION
AHI hereby designates Parent irrevocably as its agent with respect to
all matters relating to, and for the purpose of taking any and all action
necessary, or incidental, to, (i) any Consolidated Returns which have been,
are being or will be filed by the Group for any Pre-2001 Group Year, and
determining the federal income tax liabilities of any AHI Group Member for
all Pre-2001 Group Years; and (ii) any Other Income Tax Returns, and AHI
hereby designates Parent as its agent with respect to all matters relating
to any Consolidated Returns or Combined Returns for all taxable years and
periods after 2000 Taxable Year during which AHI is a Member. AHI agree to
cooperate fully in any action or matter, of whatever nature, related to the
preparation, filing, audit, examination and contest of such Consolidated
Returns, Combined Returns and Other Income Tax Returns including, but not
limited to, (a) taking any action and furnishing Parent that is necessary
or incidental to such Consolidated Returns, Combined Returns and Other
Income Tax Returns or the filing of any procedural requests of whatever
nature with the Internal Revenue Service or other relevant taxing
authority, (b) cooperating fully in connection with any income tax refund
claim and any related administrative or judicial proceeding with respect to
any year, (c) taking any action and furnishing Parent with any and all
information requested by Parent that is necessary or incidental to the
handling of any audit by the Internal Revenue Service or other relevant
taxing authority and any related administrative or judicial proceeding for
any Consolidated Return, Combined Returns or Other Income Tax Return for
any year such return was or is filed by or joined in by any AHI Group
Member and cooperating fully with Parent in connection with any such audit
or proceeding and (d) paying its share of any costs or expenses incurred by
Parent in connection with such preparation, filing, audit, examination or
contest, as determined by Parent in good faith.
10. MISCELLANEOUS PROVISIONS
(a) This Agreement contains the entire understanding of the parties
hereto with respect to the subject matter contained herein. No alteration,
amendment or modification of any of the terms of this Agreement shall be
valid unless made by an instrument signed in writing by an authorized
officer of each party.
(b) This Agreement has been made in and shall be construed and
enforced in accordance with the law of the State of Illinois from time to
time obtaining, without regard to the conflicts of laws provisions thereof.
(c) This Agreement shall be binding upon and inure to the benefit
of each party hereto and its respective successors and assigns.
(d) All notices and other communications hereunder shall be deemed
to have been duly given if given in writing and delivered by hand or
mailed, certified or registered mail, with postage prepaid addressed to the
party to which the notice or other communication is given.
(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.
(f) the headings of the paragraphs of this Agreement are inserted
for convenience only and shall not constitute a part hereof.
(g) AHI agrees to not unreasonably withhold its consent to any
amendment to this Agreement that is proposed by Parent, provided that such
amendment cannot reasonably be expected to have the effect of increasing
the aggregate amounts payable by AHI to Parent hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be signed by their duly authorized representatives as of the date first
above written.
NORTHBROOK CORPORATION
By:
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Its:
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AMFAC/JMB HAWAII, L.L.C.
By:
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Its:
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SCHEDULE A
AHI SUBSIDIARIES
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Amfac Land Company, Limited
Pioneer Mill Company, Limited
Waiahole Irrigation Company, Limited
Kekaha Sugar Company, Limited
Kaanapali Estate Coffee, Inc.
Puna Sugar Company, Limited
Oahu Sugar Company, Limited
The Lihue Plantation Company, Limited
Amfac Property Development Corp.
KDCW, Inc.
Amfac Holdings Corp.
Kaanapali Development Corp.
Waikele Golf Club, Inc.
Amfac Vacations Managers, Inc.
X. Xxxxxxxx & Co., Ltd.
