EXHIBIT 10.14
FAIRFAX, INC.
TAX ALLOCATION AGREEMENT
The purpose of this agreement (the "Agreement") is to determine the amount
of federal and (where applicable) state income tax allocated to members of the
affiliated group (as described below) and the amount each will pay to or receive
from Fairfax, Inc. This Agreement is between Fairfax, Inc., a Wyoming
corporation ("Parent"), and the undersigned subsidiary corporations (hereafter
collectively called the "Subsidiaries" or individually called "Subsidiary").
Parent and the Subsidiaries are sometimes hereafter collectively referred to as
the "Group". Each Subsidiary is a party to an intercompany tax allocation
agreement with its respective subsidiaries, which groups are collectively
referred to as "Subsidiary Groups".
1. The members of the Group are affiliated corporations and have elected to
file a consolidated federal income tax return under the provisions of Section
1501, et seq., of the Internal Revenue Code of 1986, as amended, (the "Code").
Each Subsidiary will remit to the Parent the federal income tax liability for
the Subsidiary Group as determined under their separate intercompany tax
allocation agreements. Parent will then prepare, or cause to be prepared, and
will file the consolidated federal income tax return and pay the tax for the
Group. The Parent and Subsidiary Groups shall review the accuracy of the
accounting and methodology of the consolidated federal income tax return and
make any necessary adjustments no less than thirty (30) days prior to the filing
of the return.
2. Each Subsidiary shall pay its Subsidiary Group's tax liability to the
Parent by no later than the applicable due date or dates that such payments
would have been required by the internal Revenue Service if the Subsidiary had
filed a separate return, or as soon thereafter as possible.
3. If a Subsidiary Group would not have to pay any federal income tax or
would have a claim for refund of federal income taxes, the Parent will pay to
such Subsidiary Group an amount equal to the refund such Subsidiary Group would
have been entitled to under their separate intercompany tax allocation
agreement. The Parent shall make the payment to the Subsidiary by no later than
the applicable due date or dates that payment would have been made
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by the Internal Revenue Service if such Subsidiary had filed a timely claim for
refund, or as soon thereafter as possible.
4. If all or a portion of the Group is required or has elected to file a
unitary or combined state income tax return (each such Group hereafter called a
"State Group"), the parent of the particular State Group will compute, report
and pay the State Group's state income tax liability in accordance with the
applicable state laws and regulations and will file the State Group's required
annual return. Within thirty (30) days from the filing of the State Group's
annual return, the parent of the State Group will calculate and assess to each
member of the State Group its share of the State Group's state income tax
liability based on (i) the methodology required or established by state income
tax law or, (ii) if none, the percentage of each member's separate income or tax
divided by the total separate income or tax of the State Group. Within thirty
(30) days of such assessment, each member will pay to the Parent its share of
the state income tax liability.
5. If after the filing of a return it is determined that the liability
computed hereunder is incorrect, whether by reason of an Internal Revenue
Service or state audit, discovery of error, the learning of new information, or
otherwise, appropriate payments including allocations of penalty and/or
interest, if applicable, shall be made promptly to reflect the payments that
should have been made.
6. In lieu of actual payments, adjustments to intercompany payables and
receivables may be made, and any net balances due will be paid within 90 days of
each adjustment. All payments under this Agreement, including subsequent changes
in the amount of a Subsidiary's tax liability or reimbursement payment, shall be
considered an intercompany payable or receivable, as the case may be, until such
adjustment is paid, and shall not be considered a dividend or surplus
contribution.
7. The Parent agrees to indemnify and reimburse each Subsidiary for any and
all claims, demands and expenses in the event that the Internal Revenue Service
levies upon the assets of such Subsidiary for unpaid taxes, including penalties
and interest, in excess of that amount for which such Subsidiary may be liable
pursuant to the terms of this Agreement.
8. This Agreement shall be applicable only with respect to periods for
which the parties are members of the same affiliated Group filing a consolidated
federal income tax return.
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No adjustments hereunder shall be made with respect to periods for which either
the Parent or one or more of the Subsidiaries filed a separate return or is a
member of another affiliated Group filing a consolidated federal income tax
return. If at any time the Parent acquires, creates, or otherwise adds one or
more entities that are includable members of the Group (as defined under Section
1504 of the Code), it is understood that any such entity shall automatically be
made subject to this Agreement to the same extent as if such entity had been an
original party to the Agreement.
9. This Agreement shall take effect as of January l, 2000 and shall
continue until terminated by the mutual written agreement of all of the parties.
In the event any party ceases to be affiliated with the Group, this Agreement
automatically terminates only with respect to that member. This Agreement shall
also terminate if the Group fails to file a consolidated federal income tax
return for any tax year of this Agreement. Notwithstanding the termination of
this Agreement, its provisions will remain in effect, with respect to any period
of time during the tax year in which termination occurs, for which the income of
the terminating party must be included in the consolidated federal income tax
return.
10. This Agreement may, from time to time, be amended, modified, and
supplemented in such manner as may be mutually agreed upon by the parties,
subject to the approval of any regulatory authorities as required by law. Any
amendment, modification or supplement to this Agreement shall be in writing and
shall be executed by a duly appointed representative of each of the parties.
11. Every article, term, condition and provision of this Agreement is
declared to be independent of and severable from all other articles, terms,
conditions and provisions of the Agreement. Invalidation, whether judicial or
otherwise, of any article, term, condition or provision contained in this
Agreement shall in no way affect any other provisions of this Agreement, all of
which shall remain in full force and effect.
12. The books, accounts, tax returns and records of the Parent,
Subsidiaries, and Subsidiary Groups shall be maintained so as to clearly and
adequately disclose the precise nature and details of the obligations and
liabilities under this Agreement. All materials relating to the tax returns,
including but not limited to the returns, supporting schedules, work papers, and
correspondence, shall be available for inspection at any time during normal
business hours by the
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Parent or any Subsidiary Group member. Each party to this Agreement shall
maintain, at its principal or home office, records of all tax allocations, and
any subsequent Internal Revenue Service or state review or adjustment. The
provisions of this section shall survive termination of this Agreement.
13. This Agreement has been approved by the Board of Directors of each
party to this Agreement to the extent required by regulatory authorities.
14. This Agreement is not assignable by any party without the prior written
consent of the other parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized officers to be effective January 1, 2000.
FAIRFAX, INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXX & XXXXXXX HOLDINGS, INC.
By: /s/ XXXX XXXX XXXXXXXXX
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Name: Xxxx Xxxx Xxxxxxxxx
Title: Executive VP and CFO
ODYSSEY RE HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
RIVERSTONE GROUP, LLC.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, General Counsel
& Secretary
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TIG HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXX, III
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Name: Xxxxxxx X. Xxxx, III
Title: SVP
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