EXHIBIT 10.13
TAX DISAFFILIATION AGREEMENT
TAX DISAFFILIATION AGREEMENT (the "Agreement") entered into as of May 20,
2004, but effective upon the occurrence of the Distribution (as defined herein),
by and between WCA Waste Corporation, a Delaware corporation, and Waste
Corporation of America, LLC, a Delaware limited liability company ("WCA").
Capitalized terms used in this Agreement are defined in Section 1.1 below.
Unless otherwise indicated all "Section" references in this Agreement are to
sections of this Agreement.
RECITALS
WHEREAS, WCA Waste Corporation is the common parent of an affiliated group
of corporations within the meaning of Section 1504(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), (the "Consolidated Group").
WHEREAS, the members of such Consolidated Group have heretofore joined in
filing consolidated federal Income Tax Tax Returns as well as certain
consolidated, combined, and unitary Tax Returns for state and local
jurisdictions.
WHEREAS, prior to the Internal Reorganization, WCA was the parent
corporation of the Consolidated Group.
WHEREAS, following and as a result of the Internal Reorganization, WCA
converted from a corporation to a limited liability corporation in which WCA
Waste Corporation has a 100 percent ownership interest.
WHEREAS, as a result of the Internal Reorganization, WCA wholly-owns
directly or indirectly certain members of the Consolidated Group (the "WCA
Group").
WHEREAS, the board of directors of WCA Waste Corporation determined that
it is in the best interests of WCA Waste Corporation to distribute its ownership
interest in WCA to its shareholders (the "Distribution").
WHEREAS, subsequent to the Distribution, WCA and each member of the WCA
Group will no longer be members of the Consolidated Group except for those
purposes described herein.
WHEREAS, WCA will be treated as a partnership for federal Income Tax
purposes after the Distribution.
WHEREAS, the Consolidated Group and WCA desire on behalf of themselves and
their successors to set forth their rights and obligations with respect to Taxes
due for periods before and after the Distribution.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 For the purposes of this Agreement, the following terms have the
following meanings:
"Agreement" shall have the meaning set forth in the preamble.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions located in the State of Texas are authorized or
obligated by law or executive order to close.
"Carryforward Tax Attribute" means a deductible or creditable consolidated
United States federal Tax attribute, or similar state or local Tax attribute,
including (i) a consolidated net operating loss, a consolidated net capital
loss, a consolidated unused investment credit, a consolidated unused foreign Tax
credit, or a consolidated excess charitable contribution, and (ii) the
consolidated minimum Tax credit, credit for producing fuel from a
nonconventional source or other consolidated general business credits that can
be carried forward from one Tax period to subsequent Tax periods.
"Code" shall have the meaning set forth in the Recitals.
"Consolidated Group" shall have the meaning set forth in the Recitals.
"Consolidated Return" means any consolidated, combined or unitary Tax
Return filed by WCA Waste Corporation for the Consolidated Period with respect
to United States federal, state or local Taxes, including Taxes imposed or based
on net income, net worth or gross receipts.
"Consolidated Period" means (a) any Tax period of the Consolidated Group
ending before, with, or which includes the Distribution Date during which WCA or
any member of the WCA Group was a member of the Consolidated Group and (b) any
Tax period ending after the Distribution Date in which (i) WCA Waste Corporation
or a Continuing Member and (ii) WCA or a member of the WCA Group are required to
file a consolidated, combined or unitary state or local Tax Return.
"Continuing Member" means any member of the Consolidated Group on the
Distribution Date other than any member of the WCA Group.
"Distribution" shall have the meaning set forth in the Recitals.
"Distribution Date" means the last date that the members of the WCA Group
are included in the Consolidated Group's consolidated federal Income Tax Tax
Return, either as a member or as a disregarded entity.
"Distribution Tax" means any registration, transfer or Income Taxes
(including any Taxes incurred with regard to Section 311(b) of the Code)
directly resulting from the Distribution imposed upon WCA or any member of the
WCA Group; provided that such
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term shall not refer to the collateral Tax effects of the Distribution
(including with regard to the Tax basis of assets).
"Final Determination" shall mean with respect to any issue (a) a decision,
judgment, decree or other order by any court of competent jurisdiction, which
decision, judgment, decree or other order has become final and not subject to
further appeal; (b) a closing agreement entered into under Section 7121 of the
Code or any other binding settlement agreement entered into in connection with
or in contemplation of an administrative judicial proceeding; or (c) the
completion of the highest level of administrative proceedings if a judicial
contest is not, or is no longer, available.
"Income Tax" means any United States federal, state, local or foreign Tax,
charge, fee, levy or other assessment which is determined with reference to (a)
net income or profits (including capital gains, gross receipts, value added or
minimum Tax, but not including sales or use Tax), or (b) multiple bases,
including but not limited to, corporate franchise, gross receipts, net worth,
privilege, doing business or occupation Taxes, if one of the bases is listed in
clause (a).
"Independent Firm" shall have the meaning set forth in Section 6.2.
"Internal Reorganization" means the transactions undertaken in connection
with the Distribution to restructure or separate those companies or entities
that will be owned directly or indirectly by WCA Waste Corporation on or after
the Distribution Date, on the one hand, and those companies or entities that
will be owned directly or indirectly by WCA, on the other hand.
"Internal Reorganization Tax" means any registration, transfer or Income
Taxes (including any Taxes incurred with regard to Section 311(b) of the Code)
directly resulting from the Internal Reorganization imposed upon WCA or any
member of the WCA Group; provided that such term shall not refer to the
collateral Tax effects of the Internal Reorganization (including with regard to
the Tax basis of assets).
"Loss" means all liabilities, costs, expenses, (including reasonable
expenses of investigation and attorneys' fees and expenses), losses, damages,
assessments, settlements or judgments arising out of or incident to the
imposition, assessment or assertion of any Tax liability.
"Notice" shall have the meaning set forth in Section 8.2.
"Proceeding" means any audit or other examination, protest, appeals or
other administrative or judicial proceeding relating to liability or refunds or
adjustments with respect to Taxes for any Tax period.
"Regulations" means the regulations promulgated under the Code, in effect
from time to time.
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"Separate Return Tax Period" means a Tax period of WCA or a member of the
WCA Group which is not included in a Consolidated Period, or any Tax period of
WCA Waste Corporation subsequent to a final Consolidated Period.
"Tax" means all taxes, charges, fees, levies, imposts, duties and other
assessments, including, without limitations, income, gross receipts, excise,
personal property, real property, sales, ad valorem, value-added, withholding,
social security, occupation, use, service, service use, leasing, leasing use,
license, payroll, franchise, transfer and recording taxes, fees and charges,
imposed by the United States or any state, local, or foreign governmental
authority whether computed on a separate, consolidated, unitary, combined or
another basis; and such term shall include (including without limitation any
duty to reimburse another party for indemnified Taxes or refunds or credit of
Taxes) any interest, fines, penalties and additional amounts attributable to,
imposed on, or with respect to, any such taxes, charges, fees, levies, imposts,
duties or other assessments, and interest thereon.
"Tax Authority" means with respect to any Tax, the jurisdiction (or
political subdivision thereof) or governmental entity that imposes such Tax, and
the agency (if any) charged with the collection of such Tax for such
jurisdiction or governmental entity.
"Tax Benefit" shall have the meaning set forth in Section 2.5(e).
"Tax Item" shall have the meaning set forth in Section 2.1(a)(i).
"Tax Return" shall mean any return, information return, form, report,
filing, statement, declaration or other document required to be filed with a Tax
Authority in respect of any Tax or Taxes.
"WCA" means (a) WCA including WCA when it was a Delaware corporation prior
to its conversion to a Delaware limited liability company or (b) any successor
to WCA.
"WCA Group" shall have the meaning set forth in the Recitals.
"WCA Group Federal Tax Liability" means the WCA Group's consolidated
federal Income Tax liability, determined as of the end of the applicable Tax
period in accordance with Section 1.1502-1, et seq. of the Regulations as if (a)
the highest rate of Tax specified in Section 11(b) of the Code were the only
rate set forth in that subsection, and (b) the WCA Group was a separate
affiliated group of corporations filing a consolidated federal Income Tax
Return, including any elections that have been made for or on behalf of any
member of the WCA Group for the Consolidated Period pursuant to the Code or
Regulations.
"WCA Group State and Local Tax Liability" means the WCA Group's liability
for Taxes as determined under Section 2.3(c) of this Agreement.
"WCA Waste Corporation" means (a) WCA Waste Corporation, (b) any successor
common parent corporation described in Section 1.1502-75(d)(2)(i) or (ii) of
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the Regulations, or (c) any corporation as to which WCA Waste Corporation (or
successor corporation described in clause (b) hereof) is the "predecessor"
within the meaning of Section 1.1502-1(f)(4) of the Regulations, if such
corporation acquires WCA Waste Corporation (or a successor corporation described
in clause (b) hereof) in an acquisition within the meaning of Section
1.1502-75(d)(3) of the Regulations.
ARTICLE II
TAX RETURNS, TAX PAYMENTS AND EVENT OF LOSS
2.1 Obligation to Prepare and File Tax Returns.
(a) Consolidated or Combined Tax Returns.
(i) WCA Waste Corporation shall prepare and file, or cause to be
prepared and filed, all Consolidated Returns (including any Consolidated Returns
that include the Distribution Date). WCA Waste Corporation shall have the
exclusive right, in its sole discretion, with respect to any Tax Return
described in this Section 2.1(a) to determine (1) the manner in which such Tax
Return shall be prepared and filed, including the elections, methods of
accounting, positions, conventions and principles of taxation to be used and the
manner in which any item of income, gain, loss, deduction, credit or other
attribute (a "Tax Item") shall be reported; (2) whether any extensions may be
requested; (3) the elections that will be made by WCA Waste Corporation; any
Continuing Member; WCA; and any member of the WCA Group on such Tax Return; (4)
whether any amended Tax Returns shall be filed; (5) whether any claims for
refund shall be made; (6) whether any refunds shall be paid by way of refund or
credited against liability for the related Tax; and (7) whether to retain
outside firms to prepare or review such Tax Return.
(ii) For each Consolidated Period, WCA shall provide WCA Waste
Corporation with documents and other information including workpapers and
schedules, state apportionment schedules, fixed asset ledgers, detailed general
ledgers, Schedule M analysis and journal entries, in order for WCA Waste
Corporation to prepare Consolidated Returns for each jurisdiction in which WCA
or a member of the WCA Group is included in a Consolidated Return with any
Continuing Member, in each case, on or before the date which is fifteen (15)
Business Days prior to the due date of such Tax Return. Tax Items to be included
in any Consolidated Returns for the Consolidated Period that includes the
Distribution Date shall be determined by the method described in Section 2.1(a)
(iii).
(iii) Notwithstanding anything in this Agreement to the contrary,
the WCA Group Federal Tax Liability for the Consolidated Period that includes
the Distribution Date shall be determined pursuant to Section 1.1502-76 of the
Regulations by including only that portion of the Tax year ending on the
Distribution Date, based on a closing of the books for Income Tax purposes and,
immediately before the Distribution Date, Tax Items will be taken into account
(to the extent not previously taken into account in the computation of the WCA
Group Federal Tax Liability) as required by the applicable intercompany
transaction Regulations.
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(b) Separate Returns.
(i) WCA shall prepare and timely file Tax Returns and pay any member
of the WCA Group's separate Tax liabilities, or estimated separate Tax
liabilities, with respect to any Tax Authority under which a member of the WCA
Group is required to file (or does file) a separate state, local or foreign Tax
Return directly with the Tax Authority and not as a part of a Consolidated Group
Tax Return for a period that includes a Consolidated Period.
(ii) WCA Waste Corporation and the Continuing Members, on the one
hand, and WCA and the WCA Group, on the other hand, shall each prepare and
timely file Tax Returns with, and pay their own Tax liabilities directly to, the
appropriate Tax Authorities for all Separate Return Tax Periods.
(iii) If there are any adjustments to the Tax liabilities of any of
the members of the WCA Group for Separate Return Tax Periods or for separate
state or local Tax Returns for a Consolidated Period, WCA will control the
conduct of Proceedings related thereto, and will pay the Tax liability, if any,
directly to the relevant Tax Authority.
2.2 Payment of Taxes for Consolidated Period to Taxing Authorities.
(a) WCA Waste Corporation shall pay (or cause to be paid) to the
appropriate Tax Authorities, and shall indemnify WCA and each member of the WCA
Group against liability for, all Taxes with respect to the Consolidated Group's
Consolidated Returns for the Consolidated Period.
(b) WCA shall pay (or cause to be paid) to the appropriate Tax
Authorities, and shall indemnify WCA Waste Corporation and each Continuing
Member against liability for, all Taxes with respect to any separate state,
local, or foreign Tax Return filed or required to be filed by WCA for the
Consolidated Period.
2.3 Allocation of Taxes.
(a) For each Consolidated Period, WCA shall be liable for and shall pay to
WCA Waste Corporation an amount equal to the sum of the WCA Group Federal Tax
Liability and the WCA Group State and Local Tax Liability for such Tax period.
The WCA Group Federal Tax Liability and the WCA Group State and Local Tax
Liability shall not include any Internal Reorganization Taxes, which are
provided for in Section 2.5(c), or any Distribution Taxes, which are provided
for in Section 2.5(d).
(b) With respect to each Consolidated Period, the WCA Group Federal Tax
Liability for such Tax period shall be WCA 's liability for federal Income Taxes
for such Tax period, as determined in accordance with Section 2.1(a)(iii).
(c) With respect to any Consolidated Period, the WCA Group State and Local
Tax Liability shall be the sum for such Tax period of the WCA Group's state and
local
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Tax liability for each Consolidated Tax Return, as determined in a manner
consistent with the principles and procedures set forth in Section 2.1(a)(iii).
2.4 Recomputation and Adjustment of Taxes; Amended Returns. For any
Consolidated Period, in the event of a redetermination of any Tax Item of any
Continuing Member or the WCA Group as a result of a Final Determination, the
filing of a Tax refund claim or the filing of an amended Tax Return pursuant to
which Taxes are paid to a Tax Authority or a refund of Taxes is received from a
Tax Authority, WCA Waste Corporation and WCA shall prepare jointly, in
accordance with the principles and procedures set forth in this Agreement,
revised Tax Returns, as appropriate, to reflect the redetermination of such Tax
Item as a result of such Final Determination, filing of a Tax refund claim or
filing of an amended Tax Return. Following the preparation of such revised Tax
Returns, WCA's payment obligations under Section 2.3 hereof shall be
redetermined. Without the prior written consent of WCA Waste Corporation (which
consent may be withheld in its sole discretion) WCA shall not amend any Tax
Return, including any foreign Tax Returns, for any Consolidated Period.
2.5 Indemnification.
(a) WCA Waste Corporation and each Continuing Member shall jointly and
severally indemnify WCA and each member of the WCA Group and their respective
directors, officers and employees, and hold them harmless from and against any
Tax or Loss that is attributable to, or results from, the failure of WCA Waste
Corporation to make any payment required to be made under this Agreement. WCA
and each member of the WCA Group shall jointly and severally indemnify WCA Waste
Corporation and each Continuing Member and their respective directors, officers
and employees, and hold them harmless from and against any Tax or Loss that is
attributable to, or results from, the failure of WCA to make any payment
required to be made under this Agreement.
(b) WCA Waste Corporation and each Continuing Member shall jointly and
severally indemnify WCA, each member of the WCA Group and their respective
directors, officers and employees and hold them harmless from and against any
Tax or Loss attributable to the negligence of WCA Waste Corporation or any
Continuing Member in supplying WCA or any member of the WCA Group with
inaccurate or incomplete information, in connection with the preparation of any
Tax Return or the conduct of any Proceeding. WCA and each member of the WCA
Group shall jointly and severally indemnify WCA Waste Corporation, each
Continuing Member and their respective directors, officers and employees and
hold them harmless from and against any Tax or loss attributable to the
negligence of WCA or any member of the WCA Group in supplying WCA Waste
Corporation or any Continuing Member with inaccurate or incomplete information,
in connection with the preparation of any Tax Return or the conduct of any
Proceeding.
(c) Notwithstanding anything in this Agreement to the contrary, WCA Waste
Corporation and each Continuing Member shall jointly and severally indemnify
WCA, each member of the WCA Group and their respective directors, officers and
employees, and hold them harmless from and against any Internal Reorganization
Taxes incurred by
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WCA or any member of the WCA Group as a result of the Internal Reorganization,
which is not otherwise offset by net operating losses, net capital losses,
unused Tax credits and other deductible or creditable Tax attributes available
to the Consolidated Group.
(d) Notwithstanding anything in this Agreement to the contrary, WCA Waste
Corporation and each Continuing Member shall jointly and severally indemnify
WCA, each member of the WCA Group and their respective directors, officers and
employees, and hold them harmless from and against any Distribution Taxes
incurred by WCA or any member of the WCA Group as a result of the Distribution,
which is not otherwise offset by net operating losses, net capital losses,
unused Tax credits and other deductible or creditable Tax attributes available
to the Consolidated Group.
(E) If an indemnification obligation of any Continuing Member (including
WCA Waste Corporation) or the WCA Group (including WCA) under this Section 2.5
with respect to a Consolidated Period arises in respect of an adjustment that
makes allowable to an indemnified Continuing Member or an indemnified member of
the WCA Group any credit, deduction, amortization, exclusion from income or
other allowance (a "Tax Benefit") that would not, but for such adjustment, be
allowable, then any payment by any Continuing Member or any member of the WCA
Group pursuant to this Section 2.5 shall be an amount equal to the amount
otherwise due but for this subsection (e), minus the present value of the
product of (x) the Tax Benefit multiplied (y) (i) 100 percent for any portion of
a Tax Benefit that is treated as a credit or else (ii) by the maximum corporate
Tax rate of the Tax Authority as to which the Tax Benefit relates and as of the
period in which the Tax Benefit is first allowable. The present value of such
product shall be determined by discounting such product from the time the Tax
Benefit becomes allowable at a per annum rate equal to the long-term applicable
federal rate in effect on the last day of such period plus 200 basis points.
2.6 Payment of Taxes for Separate Return Tax Periods. Except as otherwise
provided in this Agreement, WCA Waste Corporation shall pay or cause to be paid
all Taxes and shall be entitled to receive and retain all refunds of Taxes with
respect to Tax Returns relating to Separate Return Tax Periods for which WCA
Waste Corporation has filing responsibility, including under this Agreement.
Except as otherwise provided in this Agreement, WCA shall pay or cause to be
paid all Taxes and shall be entitled to receive and retain all refunds of Taxes
with respect to Tax Returns relating to Separate Return Tax Periods for which
WCA has filing responsibility, including under this Agreement.
2.7 Interest. Payments pursuant to this Agreement that are not made within
the period prescribed in this Agreement or, if no period is prescribed, within
fifteen (15) Business Days after demand for payment is made shall bear interest
for the period from and including the date immediately following the fifteenth
(15th) Business Day after demand for payment is made through the date of payment
at a per annum rate equal to the long-term applicable federal rate in effect on
the last day of such period plus 200 basis points. Such interest will be payable
at the same time as the payment to which it relates
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and shall be calculated on the basis of a year of 365 days and the actual number
of days for which due.
ARTICLE III
CARRYFORWARD TAX ATTRIBUTES
3.1 Separate Return Tax Period Carryforward Tax Attributes. Unless the
final or temporary Regulations require an allocation of particular items of
Consolidated Group's Carryforward Tax Attributes from the final Consolidated
Period to WCA's Separate Return Tax Periods, no Carryforward Tax Attributes will
be allocated to WCA or any member of the WCA Group. WCA Waste Corporation will
allocate to WCA and members of the WCA Group only that portion, if any, of
particular Carryforward Tax Attribute items as the final or temporary
Regulations require to be so allocated.
3.2 Calculation of Carryforward Tax Attributes. Calculation of the portion
of any Carryforward Tax Attributes available to WCA and members of the WCA Group
shall be made by WCA Waste Corporation in accordance with this Article III. Such
calculation will be provided to WCA as soon as practicable but in any case
estimates shall be provided to WCA not later than a date that permits WCA
sufficient time to prepare and to timely file Tax Returns for WCA's and each
member of the WCA Group's Separate Return Tax periods, taking all extensions of
time to file Tax Returns into consideration. WCA Waste Corporation shall also
advise WCA of any adjustments to such calculations as a result of a Tax audit, a
Final Determination, or otherwise. WCA shall have a right to review WCA Waste
Corporation's calculations made pursuant to this Section 3.2.
3.3 Tax Attributes to be Claimed for Separate Return Tax Periods. WCA
shall prepare and file all of its and for all of the members of the WCA Group's
Tax Returns for all Separate Return Tax Periods taking into account the amount
of the Carryforward Tax Attributes provided to WCA and members of the WCA Group
by WCA Waste Corporation pursuant to this Article III.
3.4 Carryback Items from Separate Return Tax Periods. With respect to
carrybacks by WCA and members of the WCA Group of net operating losses, net
capital losses, unused Tax credits and other deductible or creditable Tax
attributes to a Consolidated Period from a Separate Return Tax Period which
would be permitted under the Code and the Regulations (or state law and state
regulations), taking into consideration the separate return limitation year
rules whenever appropriate to do so by the Code and the Regulations (or state
law and state regulations), WCA shall elect for itself and for members of the
WCA Group to relinquish any carryback period which would include any
Consolidated Period. In cases where WCA cannot relinquish the carryback period,
or if the parties otherwise agree, WCA Waste Corporation shall cooperate with
WCA in seeking Tax refunds from the appropriate Tax Authority, at WCA's expense,
and WCA or a member of the WCA Group shall be entitled to such refund, including
interest paid by the Tax Authority in connection with such refund; provided,
however, that WCA shall indemnify and hold WCA Waste Corporation harmless from
and against any and all collateral Tax consequences resulting from or
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caused by the carryback of deductible or creditable Tax attributes by WCA or a
member of the WCA Group from a Separate Return Tax Period to a Consolidated
Period, including Tax attributes of WCA Waste Corporation or a Continuing Member
that expire unused and that would have been used but for such carryback. The
amount of such indemnity shall be limited to the actual Tax benefit to which WCA
Waste Corporation or a Continuing Member would have been entitled in the absence
of the carryback of the deductible or creditable Tax attribute of WCA or a
member of the WCA Group. WCA Waste Corporation shall only be entitled to
indemnification under this Section 3.4 if WCA Waste Corporation has used
reasonable efforts to avoid the collateral Tax consequence being indemnified.
WCA shall have the right to review the collateral Tax consequence being
indemnified. The amount of the refund due to WCA from WCA Waste Corporation
shall be reduced by the amount of the indemnification, if any.
In the event that (i) WCA or a member of the WCA Group has filed a refund
claim with a Tax Authority for a Consolidated Period as contemplated by this
Section 3.4, (ii) the refund claim has been allowed, and (iii) the Tax Authority
has applied the refund to an amount owed by WCA Waste Corporation or a
Continuing Member, then WCA Waste Corporation shall pay WCA the amount of the
refund, including the amount of interest that would otherwise have been paid by
the Tax Authority to WCA or to a member of the WCA Group. The refund payment
shall be due to WCA within ten (10) Business Days after the earlier of (i) the
date that WCA Waste Corporation or a Continuing Member receives the refund from
the Tax Authority, or (ii) the date that WCA Waste Corporation receives notice
from the applicable Tax Authority that it has applied the refund to an amount
owed by WCA Waste Corporation or a Continuing Member.
ARTICLE IV
TAX AUDITS
4.1 General. WCA Waste Corporation shall have the sole right to represent
the interests of the Consolidated Group, including WCA and each member of the
WCA Group, in any Proceeding in connection with any Tax liability for a
Consolidated Period for which a member of the Consolidated Group may be liable.
WCA Waste Corporation's rights shall extend to any matter pertaining to the
management and control of a Proceeding, including, without limitation, execution
of waivers, choice of forum, scheduling of conferences and the resolution of any
Tax Item. Notwithstanding the foregoing, if such Proceeding relates to Taxes as
to which WCA or a member of the WCA Group is solely liable for the payment of
such Taxes under this Agreement or otherwise and would not result in any
additional Tax liability or detriment to the Consolidated Group, WCA shall have
the right to represent the interests of WCA and members of the WCA Group in such
Proceeding so long as (x) WCA shall have agreed in writing to pay all costs and
expenses that it shall incur in connection with the Proceeding including all
attorneys', accountants' and investigatory fees and disbursements and (y) WCA
shall have acknowledged in writing its obligation to pay the Taxes and/or
indemnify the Consolidated Group against all costs and expenses with respect to
such Proceeding; provided, however, if such Proceeding would result in the
extension of the statute of limitations with respect to any Tax Return for which
any member of the
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Consolidated Group may be liable, WCA Waste Corporation may, in its sole
discretion, on at least ten (10) Business Days notice to WCA, require WCA to pay
the Tax proposed and xxx for a refund or to take any other action WCA Waste
Corporation may reasonably request to prevent such an extension.
4.2 Notice of Proceeding. WCA Waste Corporation will notify WCA in writing
of any pending or threatened Proceeding in connection with any Tax liability for
which WCA may be liable, promptly upon receipt of notice of such Proceeding by
any Continuing Member. WCA will notify WCA Waste Corporation in writing of any
pending or threatened Proceeding in connection with any Tax liability for which
any member of the Consolidated Group may be liable, promptly upon receipt of
notice of such Proceeding by WCA. Notification must include a complete copy of
any written communication, and a complete written summary of any oral
communication. The failure of WCA Waste Corporation or WCA to timely forward
such notification shall not relieve the other party of its obligation to pay
such Tax, except to the extent that the failure to timely forward notification
prejudices the ability of the other party to contest the Tax liability.
ARTICLE V
COOPERATION, RECORD RETENTION, ACCESS, CONFIDENTIALITY
5.1 Cooperation. WCA Waste Corporation and WCA will provide each other
with the cooperation and information reasonably requested by the other party in
connection with Tax planning, the preparation or filing of any Tax Return (or
claim for refund), the determination and payment of any Tax (or estimated Tax),
or the conduct of any Proceeding; provided, however, that neither party is
required to disclose privileged and confidential information. Such cooperation
and information includes: (i) promptly forwarding copies of appropriate notices
and other communications (including information document requests, revenue
agent's reports and similar reports, notices of proposed adjustments and notices
of deficiency) received from or sent to any Tax Authority, (ii) providing copies
of all relevant Tax Returns (including workpapers and schedules), and documents
relating to rulings or other determinations by Tax Authorities, (iii) providing
copies of records concerning the ownership and Tax basis of property, (iv)
providing other relevant information which either party may possess, including
explanations of documents and information provided under this Agreement, as well
as access to appropriate personnel, (v) the execution of any document that may
be necessary or reasonably helpful in connection with the filing of a Tax Return
(or claim for refund) or in connection with any Proceeding, including waivers,
consents or powers of attorney, and (vi) the use of the parties' reasonable
efforts to obtain any documentation from a governmental authority or a third
party that may be necessary or reasonable helpful in connection with any of the
foregoing.
5.2 Record Retention; Access. WCA Waste Corporation and WCA shall each (a)
until sixty (60) days after the expiration of the relevant statute of
limitations (including any extensions of which it has actual notice) retain
records, documents, accounting data and other information (including computer
data) necessary for the preparation and filing of all Tax Returns for all
Consolidated Periods in respect of Taxes of WCA Waste
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Corporation and members of the Consolidated Group or WCA and members of the WCA
Group or for the audit of such Tax Returns; and (b) give to the other party
reasonable access to such records, documents, accounting data and other
information (including computer data) and to its personnel (insuring their
cooperation) and premises, for the purpose of the review or audit of such Tax
Returns to the extent relevant to an obligation or liability of a party under
this Agreement. Prior to destroying any records, documents, data or other
information in accordance with this Section 5.2, the party wishing to destroy
such items will give the other party a reasonable opportunity to obtain such
items (at such other party's expense).
5.3 Information Confidential. WCA Waste Corporation and each Continuing
Member and WCA and each member of the WCA Group shall hold and cause its
employees, consultants, advisors and any other agents to hold in strict
confidence, unless compelled to disclose by judicial or administrative process
or, in the opinion of its counsel, by other requirements of law, all information
(other than any such information relating solely to the business or affairs of
such party) concerning the other party furnished to it by the other party or its
representatives pursuant to this Agreement (except to the extent that such
information was (i) in the public domain through no fault of the party to which
it was furnished, or (ii) lawfully acquired from other sources by such party),
and shall not release or disclose such information to any other person, except
its auditors, attorneys, financial advisors, bankers and other consultants and
advisors who shall be advised of the provisions of this Section 5.3. Any
disclosure of information by either party to accountants for review purposes
pursuant to sections of the Agreement providing for review rights shall not
constitute a breach of confidentiality under this Agreement.
ARTICLE VI
DISPUTE RESOLUTION
6.1 Intent of Parties. Except as otherwise provided in this Agreement, it
is the intent of the parties that WCA's federal, state, local and foreign Tax
liability for all Tax periods, beginning with the Tax period that includes the
Distribution Date, will be determined as if the WCA and the members of the WCA
Group were a group of entities separate from the Consolidated Group. This
Agreement shall at all times be interpreted consistently with such intent.
6.2 Dispute Resolution. In the event that WCA Waste Corporation and WCA
disagree as to the amount or calculation of any payment to be made under this
Agreement, or the interpretation or application of any provision under this
Agreement, the parties shall attempt in good faith to resolve such dispute. If
such dispute is not resolved within sixty (60) Business Days following the
commencement of the dispute, WCA Waste Corporation and WCA shall jointly retain
a nationally recognized law firm or "Big Four" accounting firm, which firm is
independent of both parties (the "Independent Firm"), to resolve the dispute.
The Independent Firm shall act as an arbitrator to resolve all points of
disagreement and its decision shall be final and binding upon all parties
involved. Following the decision of the Independent Firm, WCA Waste Corporation
and WCA shall each take or cause to be taken any action necessary to
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implement the decision of the Independent Firm. The fees and expenses relating
to the Independent Firm shall be borne equally by WCA Waste Corporation and WCA.
ARTICLE VII
COVENANTS
7.1 No Conversion to a Corporation. WCA agrees that it will not convert
into an entity treated as a corporation or an association for federal Income Tax
purposes before January 1st, 2006 without the prior written consent of WCA Waste
Corporation, which consent may be withheld in the sole discretion of WCA Waste
Corporation.
7.2 No Transfer to a Corporation. WCA agrees that it will not transfer
substantially all of its assets to another entity that is treated as a
corporation or association for federal Income Tax purposes and that has
substantially the same ownership as that of WCA on the first (1st) Business Day
following the Distribution Date prior to January 1st, 2006 without the prior
written consent of WCA Waste Corporation, which consent may be withheld in the
sole discretion of WCA Waste Corporation.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Termination. Notwithstanding any other provision in this Agreement,
any liabilities determined under this Agreement shall not terminate any earlier
than sixty (60) days after the expiration of the applicable statute of
limitations for such liability. All other representations, warranties and
covenants under this Agreement shall survive indefinitely.
8.2 Notices. Every notice, request, settlement, or xxxx or other
communication provided for in this Agreement (a "Notice") must be in writing and
may be personally served, provided a receipt is obtained, or may be sent by
certified mail, return receipt requested, postage prepaid, or may be sent by
facsimile, with acknowledgment of receipt requested, to the parties at the
following addresses (or such other address as one party may specify by Notice to
the other parties).
If to WCA Waste Corporation:
WCA Waste Corporation
Xxx Xxxxx Xxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
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If to WCA:
Waste Corporation of America, LLC
Xxx Xxxxx Xxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
A Notice which is delivered personally is given as of the date specified in the
written receipt. A Notice sent by certified mail is given on the third (3rd)
Business Day following the date of mailing. A Notice by facsimile is given on
the date it is transmitted, provided that acknowledgment of receipt is received
by sender.
8.3 Governing Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by,
and construed in accordance with, the laws of the State of Texas, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Texas or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Texas.
8.4 Change in Law. If, due to any change in applicable law or regulation
or the interpretation thereof by any court of law or other governing body having
jurisdiction, subsequent to the date of the Agreement, performance of any
provision of or any transaction contemplated by this Agreement shall become
impracticable or impossible, the parties will use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by this Agreement.
8.5 Treatment of Payments. The parties hereto shall treat any payments
made pursuant to the terms of this Agreement as a capital transaction occurring
prior to the Distribution Date for all Tax purposes, except to the extent such
payments represent interest paid pursuant to Section 2.7.
8.6 Binding Effect; No Assignment; Third Party Beneficiaries. This
Agreement shall be binding on, and shall inure to the benefit of, the parties
and their respective successors and assigns. WCA Waste Corporation and WCA
hereby guarantee the performance of all actions, agreements and obligations
provided for under this Agreement of each Continuing Member and WCA Group,
respectively. WCA Waste Corporation and WCA shall not assign any of their rights
or delegate any of their duties under this Agreement without the prior written
consent of the other party. No person (including, without limitation, any
employee of a party or any stockholder of a party) shall be, or shall be deemed
to be, a third party beneficiary of this Agreement.
8.7 Entire Agreement; Amendments. This Agreement constitutes the entire
agreement of the parties concerning the subject matter hereof and supersedes all
prior agreements, whether or not written, concerning such subject matter. The
provisions of this Agreement may not be amended and parties hereto may not take
any action herein prohibited, or fail to perform any act herein required to be
performed by it, unless such
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party has obtained the prior written consent of the other party. No other course
of dealing among the parties hereto or any delay in exercising any rights
hereunder or shall operate as a waiver of any rights hereunder. The parties
recognize and acknowledge their intention to enter into additional agreements
from time to time with respect to the allocation of Taxes not covered by this
Agreement.
8.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which shall
constitute together the sane document.
8.9 Interpretation; Descriptive Headings. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." The words describing the singular
number shall include the plural and vice versa. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement.
8.10 Successors and Assigns. This Agreement shall inure to the benefit of,
and be binding upon the parties and their respective successors, predecessors
and assigns, but no assignment of this Agreement shall relieve any party of its
obligations without the written consent of the other party.
IN WITNESS WHEREOF, each of the Parties has duly executed this Agreement
as of the date first set forth above.
"WCA"
WASTE CORPORATION OF AMERICA, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
WCA WASTE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
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