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EXHIBIT 10.1
PRIMARY TAX ALLOCATION AGREEMENT
THIS PRIMARY TAX ALLOCATION AGREEMENT (this "Agreement") is made and
entered into effective as of January 1, 2001 by and among WATERMARK COMMUNITIES
INC., a Delaware corporation (the "Parent"), WCI COMMUNITIES, INC., a Delaware
corporation ("WCI"), BAY COLONY-GATEWAY, INC., a Delaware corporation ("BCG"),
BCG's Subsidiaries (each a "BCG Subsidiary") and each of the other direct and
indirect subsidiaries of WCI, (excluding BCG's Subsidiaries, each a
"Subsidiary" and collectively the "Subsidiaries").
WITNESSETH:
WHEREAS, the parties hereto are some of the members of an affiliated group
(the "Affiliate Group") as defined in Section 1504(a) of the Internal Revenue
Code (the "Code"); and
WHEREAS, the Affiliated Group will file U.S. and state consolidated income
tax returns for its tax year 2001 and is required to file consolidated tax
returns for subsequent years; and
WHEREAS, it is the intent and desire of the parties hereto that a method
be established for allocating the consolidated federal and state income tax
liability, intangibles tax liability, franchise tax liability and other similar
tax liability of the Affiliated Group among its members, for reimbursing the
Parent for payment of such tax liability, for compensating any party for use of
its losses or tax credits, to provide for special allocation of deductions
created by the payment to a party, or accrual of an item payable to a party,
which creates a deduction with respect to the payment on accrual, and to
provide for the allocation and payment of any refund arising from a carryback
on losses or tax credits from subsequent tax years; and
WHEREAS, the parties desire to treat BCG and BCG's Subsidiaries as a
separate subgroup of the Affiliated Group (the "BCG Subgroup") for purposes of
allocating the appropriate portion of the consolidated federal and state income
tax liability, intangibles tax liability, franchise tax liability and other
similar tax liability of the Affiliated Group;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1. U.S. and State consolidated income tax returns shall be filed by the
Parent for the tax year ended December 31, 2001, and for each subsequent
taxable period in respect of which this Agreement is in effect and for which
the Affiliated Group is required or permitted to file consolidated tax
returns. WCI, BCG and the Subsidiaries will execute and file, and BCG will
cause each member of the BCG Subgroup to execute and file, such consents,
elections, and other documents as may be required or appropriate for the proper
filing of such returns.
2. For purposes of calculating each party's share of the consolidated
federal and state tax liability, the Parent shall specially allocate to each
of WCI, the BCG Subgroup and each Subsidiary any item of deduction resulting
from the payment by the Parent or WCI to WCI, any member of the BCG Subgroup or
any Subsidiary, or the accrual of any such payment.
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3. For each tax period, after the special allocations made pursuant to
the provisions in Section 2, each of WCI, BCG (on behalf of the BCG Subgroup)
and each Subsidiary shall compute its separate federal and state income tax
liability by multiplying its net taxable income by the Parent's effective
consolidated federal and state income tax rate (the "Combined Tax Rate"). The
separate federal and state income tax liability shall be computed, in the case
of WCI and a Subsidiary, on a separate company basis as if it were filing
separate federal and state corporate income tax returns, and, in the case of
BCG (on behalf of the BCG Group), on a separate Affiliated Group basis, as if
BCG were filing consolidated federal and state corporate income tax returns on
behalf of the BCG Group. For purposes of this calculation, none of the income
or losses of WCI, the BCG Subgroup or any Subsidiary shall be attributed to the
Parent or used in the calculation of the Parent's taxable income, and none of
the income or losses of the BCG Subgroup shall be attributed to WCI or any
Subsidiary, or used in the calculation of WCI taxable income.
4. If WCI, the BCG Subgroup and each Subsidiary would be subject to
federal and state income tax if it filed a separate income return, then WCI,
the BCG Subgroup and each Subsidiary shall pay its amount so calculated under
Section 3 to the Parent.
5. If WCI, the BCG Subgroup and each Subsidiary would be entitled to a
refund of federal and state income tax if it filed a separate income tax
return, Parent shall pay WCI, the BCG Subgroup, and each Subsidiary the amount
so calculated under Section 3.
6. In the event that the Parent is not able to pay interest on
obligations because WCI did not, or was not permitted to, make distributions to
the Parent to permit such payment but the Parent may deduct such interest
accrued for federal or state income tax purposes, and such deduction results in
reducing the federal and/or state income taxes payable by the Affiliated Group,
then WCI shall pay to the Parent its proportionate share, determined in the
manner provided in Sections 3, 4 and 5, of the reduction of federal and/or
state income taxes payable by the Affiliated Group resulting from the amount by
which the amount of interest accrued and deducted exceeds the amount of
interest actually paid.
7. For each tax period WCI, BCG on behalf of the BCG Subgroup, and each
Subsidiary shall calculate its separate intangibles tax liability on the basis
of taxable intangibles owned by it and on the value of its own equity
(exclusive of its subsidiaries) and not eliminated in consolidation, and shall
calculate its separate franchise tax liability and other similar tax
liability, and each of WCI, the BCG Subgroup and the Subsidiaries shall pay to
the Parent (a) its appropriate share of consolidated intangibles tax
liability, based upon the ratio that each member's separate liability, as so
determined, bears to the consolidated intangibles tax liability, and (b) its
appropriate share of consolidated or combined franchise tax liability and
other similar tax liability in the ratio that its separate liability for each
of such items, as so determined, bears to the consolidated or combined
liability, or on some other equitable basis as determined by the Parent.
8. For purposes of this Agreement, any consolidated liability for
alternative minimum tax shall be calculated and paid by the parties consistent
with the manner in which federal and state income tax liabilities are
determined under this Agreement.
9. Payment of the consolidated federal and state income tax liability,
intangibles tax liability, franchise tax liability and other similar tax
liability for a taxable period shall include the payment of estimated tax
installments due for such taxable period, and WCI, BCG (on behalf of
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the BCG Subgroup), and each Subsidiary shall pay to the Parent its share of
each payment within ten days of receiving notice of such payment from the
Parent, but in no event later than the due date for each such payment. Any
amounts paid by WCI, any member of the BCG Subgroup or any Subsidiary on
account of separate estimated tax payments that are credited against the
consolidated federal or state income tax liability, intangibles tax liability,
franchise tax liability and other similar tax liability of the Affiliated Group
shall be included in determining the payments due from WCI, the BCG Subgroup or
any Subsidiary. Any overpayment of estimated tax shall be refunded to the
party who made such payment.
10. If the consolidated federal, state, intangibles, franchise, and other
similar tax liability of the Affiliated Group is adjusted for any taxable
period, whether by means of an amended return, claim for refund or audit by the
Internal Revenue Service or any comparable state agency, the liability of the
Parent, WCI, the BCG Subgroup and each Subsidiary shall be recomputed to give
effect to such adjustments. In the case that the Parent receives a refund, the
Parent shall make payment to each of WCI, BCG and each Subsidiary for its share
of the refund, determined in the same manner as provided in Sections 2, 3, 4
and 5 above, within ten days after the refund its received by the Parent; and
in the case of an increase in tax liability of the Parent, WCI, BCG and each
Subsidiary shall pay to the Parent its allocable share of such increased tax
liability, determined in the same manner as provided in Sections 2, 3, 4 and 5
above, within ten days after receiving notice of such liability from the
Parent.
11. If during a consolidated return period, the Parent or WCI acquires or
organizes another corporation that is required to be included in the
consolidated return, that corporation shall join in and be bound by this
Agreement.
12. This Agreement shall apply, with respect to each party, to each tax
year with respect to which such party was a member of the Affiliated Group
under Section 1504(a) of the Code, unless the Parent, WCI, BCG and the
Subsidiaries agree to terminate the Agreement. Notwithstanding such
termination, this Agreement shall continue in effect with respect to any
payment or refunds due for all taxable periods prior to termination.
13. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date first above
written.
WATERMARK COMMUNITIES INC.
BY: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
WCI COMMUNITIES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BAY COLONY-GATEWAY, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
FINANCIAL RESOURCES GROUP, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
FIRST FIDELITY TITLE, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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FLORIDA LIFESTYLE MANAGEMENT
COMPANY
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXXX NAPLES, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXXX ROAD, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
PANTHER DEVELOPMENTS, LLC
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
SUN CITY CENTER GOLF PROPERTIES,
INC.
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
SUN CITY CENTER REALTY, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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WATERMARK REALTY, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
WI ULTRACORP OF FLORIDA, INC.
By: /s/ XXXXXX X. PAGE
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Name: Xxxxxx X. Page
Title: President
THE COLONY AT PELICAN LANDING GOLF
CLUB, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
COMMUNITIES AMENITIES, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
COMMUNITIES HOME BUILDERS, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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GATEWAY COMMUNICATIONS SERVICES,
INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
JYC HOLDINGS, INC.
By: /s/ XXXXXX X. PAGE
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Name: Xxxxxx X. Page
Title: President
MARBELLA AT PELICAN BAY, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
PELICAN LANDING GOLF RESORT
VENTURES, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
SARASOTA TOWER, INC.
By: /s/ XXXXXX X. PAGE
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Name: Xxxxxx X. Page
Title: President
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TARPON COVE YACHT & RACQUET CLUB,
INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
TIBURON GOLF VENTURES, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
WATERMARK POOLS, INC.
By: /s/ XXXXXX XxXXXX
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Name: Xxxxxx XxXxxx
Title: Secretary
WATERMARK REALTY REFERRAL, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
WCI COMMUNITIES PROPERTY
MANAGEMENT, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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WCI GOLF GROUP, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
WCI REALTY, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
BAY COLONY REALTY ASSOCIATES, INC
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
BAY COLONY REALTY ASSOCIATES, INC
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
CORAL RIDGE COMMUNITIES, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
CORAL RIDGE PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
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CORAL RIDGE REALTY, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
CORAL RIDGE REALTY SALES, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
FLORIDA DESIGN COMMUNITIES, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
FLORIDA NATIONAL PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
GATEWAY COMMUNITIES, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
GATEWAY REALTY SALES, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
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HERON BAY, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
HERON BAY GOLF COURSE PROPERTIES,
INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
PELICAN BAY PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
PELICAN LANDING COMMUNITIES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
PELICAN LANDING PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
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PELICAN XXXXX PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
TARPON COVE REALTY, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
WCI HOMES, INC.
By: /s/ XXXXXXX XXXXXXXXXX
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Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
COMMUNITIES FINANCE COMPANY, LLC
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
