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Exhibit 10.1
TAX SHARING AGREEMENT
THIS TAX SHARING AGREEMENT ("Agreement") is entered into as of
June 30, 2000 by and between AUTONATION, INC., a Delaware corporation
("Distributing Co.") and ANC RENTAL CORPORATION, a Delaware corporation
("Controlled Co.") (Distributing Co. and Controlled Co. are sometimes
collectively referred to herein as the "Companies"). Capitalized terms used in
this Agreement are defined in Section 1 below. Unless otherwise indicated, all
"Section" references in this Agreement are to sections of this Agreement.
PRELIMINARY STATEMENTS
A. As of the date hereof, Distributing Co. is the common parent
of an affiliated group of corporations, including Controlled Co., which has
elected to file consolidated Federal income tax returns.
B. Incident to the distribution of Controlled Co. by Distributing
Co., the Companies have entered into a Separation and Distribution Agreement
(the "Distribution Agreement").
C. The Distribution Agreement sets forth corporate transactions
pursuant to which Distributing Co., subject to the satisfaction of certain terms
and conditions, will distribute all of the capital stock of Controlled Co. held
by Distributing Co. to Distributing Co.'s shareholders in a transaction intended
to qualify as a tax-free distribution to Distributing Co. and its shareholders
under Section 355 of the Code and pursuant to a Private Letter Ruling issued by
the Internal Revenue Service dated September 28, 1999 (the "Letter Ruling").
D. As a result of the Distribution, Controlled Co. and its
subsidiaries will cease to be members of the affiliated group of which
Distributing Co. is the common parent (the "Distribution Closing Date").
E. The Companies desire to provide for and agree upon the
allocation between the parties of liabilities for Taxes arising prior to, as a
result of, and subsequent to the transactions contemplated by the Distribution
Agreement, and to provide for and agree upon other matters relating to Taxes.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the mutual covenants
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITION OF TERMS. For purposes of this Agreement (including the
recitals hereof), the following terms have the following meanings:
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"Accounting Cutoff Date" means, with respect to Controlled Co., any
date as of the end of which there is a closing of the financial accounting
records for such entity.
"Accounting Firm" shall have the meaning provided in Section 15.
"Adjustment Request" means any formal or informal claim or request
filed with any Tax Authority, or with any administrative agency or court, for
the adjustment, refund, or credit of Taxes, including (a) the filing of a Tax
Return for a Tax Period showing a Tax overpayment for such Tax Period and
requesting a refund or credit of that Tax overpayment, (b) any amended Tax
return claiming adjustment to the Taxes as reported on the Tax Return or, if
applicable, as previously adjusted, or (c) any claim for refund or credit of
Taxes previously paid.
"Affiliate" means any entity that directly or indirectly is
"controlled" by the person or entity in question. "Control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity, whether through
ownership of voting securities, by contract or otherwise. Except as otherwise
provided herein, the term Affiliate shall refer to Affiliates of a person as
determined immediately after the Distribution. The term "Affiliate" includes a
Subsidiary, partnership or limited liability company of an entity.
"Agreement" shall mean this Tax Sharing Agreement.
"Carryback" means any net operating loss, net capital loss, excess tax
credit, or other similar Tax Item which may or must be carried from one Tax
Period to an earlier Tax Period under the Code or other applicable Tax Law.
"Code" means the U.S. Internal Revenue Code of 1986, as amended, or any
successor law.
"Companies" means Distributing Co. and Controlled Co., collectively,
and "Company" means any one of Distributing Co. and Controlled Co.
"Consolidated or Combined Income Tax" means any Income Tax computed by
reference to the assets or activities of members of more than one Group.
"Consolidated or Combined State Income Tax" means any State Income Tax
computed by reference to the assets or activities of members of more than one
Group.
"Consolidated Tax Liability" means, with respect to any Distributing
Co. Federal Consolidated Return, the Tax liability of the group as determined
under Section 1502 of the Code and the Treasury Regulations thereunder.
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"Controlled Adjustment" means any proposed adjustment by a Tax
Authority or claim for refund asserted in a Tax Contest or Adjustment Request to
the extent Controlled Co. would be exclusively liable for any resulting Tax
under this Agreement or exclusively entitled under Section 4.7(d) to receive any
resulting Tax Benefit under this Agreement.
"Controlled Group" means Controlled Co. and its Subsidiaries and
partnerships, limited liability companies, or other entities that are Affiliates
and in which Controlled Co. or its Subsidiaries own an interest as determined
immediately after the Distribution Closing Date or entities that were previously
Affiliates engaged in the Company Business as defined in Section 1.13 of the
Distribution Agreement.
"Controlled Group Consolidated Tax Liability" or "Controlled Group
Consolidated or Combined State Income Tax Liability" with respect to any Tax
period means such Tax Liability allocated to the Controlled Group as if the
relevant members of the Controlled Group were not and never were part of the
Group which includes one or more members of the Distributing Group, but rather
were a separate affiliated group of corporations filing a similar group return.
This computation shall be made (a) by taking into account transactions with any
member of the Distributing Group in the first Tax period such transactions are
required to be taken into account for Tax purposes under applicable law; (b)
without regard to the income, deductions (including net operating loss and
capital loss deductions), credits or other Tax Items in any year of any member
of the Distributing Group; (c) by not taking into account net operating loss or
net capital loss carryovers and carrybacks, minimum Tax credits from earlier
years or any other Tax Item of the Controlled Group from any Tax period other
than the particular Tax period for which the Tax Liability is being computed;
(d) by applying the maximum applicable statutory Tax rate in effect under
applicable law during the relevant year; (e) reflecting the positions, elections
and accounting methods used by the Group in preparing the relevant Return for
the Group; and (f) for State Income Tax, without regard to the sales, property
or other apportionment factors of any member of the Distributing Group. The
Controlled Group Consolidated Tax Liability or Controlled Group Consolidated or
Combined State Income Tax Liability may not exceed the actual Consolidated Tax
Liability of the Group or actual Consolidated or Combined State Income Tax
Liability of the relevant Group.
"Distributing Adjustment" means any proposed adjustment by a Tax
Authority or claim for refund asserted in a Tax Contest or Adjustment Request to
the extent Distributing Co. would be exclusively liable for any resulting Tax
under this Agreement and exclusively entitled to receive any resulting Tax
Benefit under this Agreement.
"Distributing Co. Federal Consolidated Return" means any United States
Federal Tax Return for the affiliated group (as that term is defined in Code
Section
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1504) that includes Distributing Co. as the common parent and any member of the
Controlled Group.
"Distributing Group" means Distributing Co. and its Subsidiaries and
partnerships, limited liability companies, or other entities that currently are
or previously have been Affiliates, excluding any entity that is a member of the
Controlled Group.
"Distribution" means the distribution to Distributing Co. shareholders
on the Distribution Closing Date of all of the outstanding capital stock of
Controlled Co. owned by Distributing Co. or any other distribution of the
capital stock of a Subsidiary in connection with the Transactions that is
intended to be tax-free under Section 355 of the Code.
"Distribution Agreement" means the Separation and Distribution
Agreement dated as of the date of this Agreement between the Distributing Co.
and the Controlled Co.
"Distribution Closing Date" means the Distribution Date as that term is
defined in the Distribution Agreement.
"Federal Income Tax" means any Tax imposed by Subtitle A or F of the
Code.
"Federal Tax Adjustment" shall have the meaning provided in Section
2.2(b).
"Group" means the Distributing Co. Group, the Controlled Co. Group, or
both of such Groups as the context requires.
"Income Tax" means any Federal Income Tax, State Income Tax, or Foreign
Income Tax.
"Joint Adjustment" means any proposed adjustment resulting from a Tax
Contest that is not a (i) Controlled Adjustment, (ii) a Distributing Adjustment,
or (iii) any other type of adjustment that gives rise to an indemnification
payment by one Company to the other Company pursuant to this Agreement.
"Post-Distribution Period" means any Tax Period beginning after the
Distribution Closing Date, and, in the case of any Straddle Period, the portion
of such Straddle Period beginning the day after the Distribution Closing Date.
"Pre-Distribution Period" means any Tax Period ending on or before the
Distribution Closing Date, and, in the case of any Straddle Period, the portion
of such Straddle Period ending on the Distribution Closing Date.
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"Prime Rate" means the base rate on corporate loans charged by
Citibank, N.A., New York, New York from time to time, compounded daily on the
basis of a year of 365 or 366 (as applicable) days and actual days elapsed.
"Prohibited Action" shall have the meaning provided in Section 11(a).
"Responsible Company" means, with respect to any Tax Return, the
Company having responsibility for preparing and filing such Tax Return under
this Agreement.
"Ruling Request" means the letter dated July 9, 1999 filed by
Distributing Co. with the Internal Revenue Service requesting a ruling from the
Internal Revenue Service regarding certain tax consequences of the Distribution
(including all attachments, exhibits, and other materials submitted with such
ruling request letter) and any amendment or supplement to such ruling request
letter.
"Separate Company Tax" means any Tax computed by reference to the
assets and activities of a member or members of a single Group.
"Straddle Period" means any Tax Period that begins on or before and
ends after the Distribution Closing Date.
"State Income Tax" means any Tax imposed by any state of the United
States or by any political subdivision of any such state which is imposed on or
measured by net income, including state and local franchise or similar Taxes
measured by net income.
"Subsidiary" shall have the meaning set forth in Treasury Regulations
section 1.1502-1(c).
"Tax" or "Taxes" means any income, gross income, gross receipts,
profits, capital stock, franchise, withholding, payroll, social security,
workers compensation, unemployment, disability, property, ad valorem, stamp,
excise, severance, occupation, service, sales, use, license, lease, transfer,
import, export, value added, alternative minimum, estimated or other similar tax
(including any fee, assessment, or other charge in the nature of or in lieu of
any tax) imposed by any governmental entity or political subdivision thereof,
and any interest, penalties, additions to tax, or additional amounts in respect
of the foregoing.
"Tax Attribute" means any item of deduction or credit, any net
operating loss, consolidated net operating loss, capital loss, consolidated net
capital loss or other similar Tax Item attributable during a Tax period to the
Distributing Group or the Controlled Group.
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"Tax Authority" means, with respect to any Tax, the governmental entity
or political subdivision thereof that imposes such Tax, and the agency (if any)
charged with the collection of such Tax for such entity or subdivision.
"Tax Benefit" means the Tax effect of any refund, credit, or other
reduction in otherwise required Tax payments (including any reduction in
estimated tax payments) determined at the maximum applicable statutory Tax rate
in effect under applicable law during the relevant year.
"Tax Contest" means an audit, review, examination, or any other
administrative or judicial proceeding with the purpose or effect of
redetermining Taxes of any of the Companies or their Affiliates (including any
administrative or judicial review of any claim for refund) for any Tax Period
ending on or before the Distribution Closing Date or any Straddle Period.
"Tax Detriment" means the Tax effect at the maximum applicable
statutory Tax rate in effect under applicable law during the relevant year with
respect to any increase in gain or income, reduction in deductions or loss or
reduction of credit for Tax Items of the Controlled Group.
"Tax Item" means, with respect to any Income Tax, any item of income,
gain, loss, deduction, and credit.
"Tax Law" means the law of any governmental entity or political
subdivision thereof relating to any Tax.
"Tax Period" means, with respect to any Tax, the period for which the
Tax is reported as provided under the Code or other applicable Tax Law.
"Tax Records" means Tax Returns, Tax Return workpapers, documentation
relating to any Tax Contests, and any other books of account or records
maintained or required to be maintained under the Code or other applicable Tax
Laws or under any record retention agreement with any Tax Authority.
"Tax Return" or "Return" means any report of Taxes due, any claims for
refund of Taxes paid, any information return with respect to Taxes, or any other
similar report, statement, declaration, or document required to be filed under
the Code or other Tax Law, including any attachments, exhibits, or other
materials submitted with any of the foregoing, and including any amendments or
supplements to any of the foregoing.
"Transactions" means only those transactions described in the Letter
Ruling.
"Treasury Regulations" means the regulations promulgated from time to
time under the Code as in effect for the relevant Tax Period.
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2. ALLOCATION OF TAX LIABILITIES. The provisions of this Section 2 are
intended to determine each Company's liability for Taxes with respect to
Pre-Distribution Periods. Once the liability has been determined under this
Section 2, Section 5 determines the time when payment of the liability is to be
made, and whether the payment is to be made to the Tax Authority directly or to
the other Company.
(a) General Rule
(a) Distributing Co. Liability. Distributing Co. shall be
liable for Taxes for Pre- Distribution Periods not specifically allocated to the
Controlled Co. under this Section 2. Distributing Co. shall indemnify and hold
harmless the Controlled Group from and against any liability for Taxes for which
Distributing Co. is liable under this Section 2.1(a).
(b) Controlled Co. Liability. Controlled Co. shall be
liable for, and shall indemnify and hold harmless the Distributing Group from
and against any liability for Taxes which are allocated to Controlled Co. under
this Agreement.
(c) Allocation of Tax Attributes. Tax Attributes shall be
allocated to the appropriate entity which incurred such Tax Attributes,
irrespective of the entity which may have reported them.
(b) Allocation of United States Federal Income Tax. Except as
provided in Section 2.5:
(a) Allocation of Tax Relating to Federal Consolidated
Returns. With respect to the Distributing Co. Federal Consolidated Tax Return to
be filed for the Tax Period ended on December 31, 1999 and December 31, 2000,
the Controlled Co. shall pay the Distributing Co. the amount set forth in
Section 5.1(b).
(b) Allocation of Federal Consolidated Return Tax
Adjustments. If there is any adjustment with respect to any Distributing Co.
Federal Consolidated Return, or to such Return as previously adjusted,
Controlled Co. shall be liable to Distributing Co. for the amounts set forth in
this Section 2.2(b) attributable to the net amount of the adjustments in such
year for Tax Items of the Controlled Group.
(i) The amount, if any, equal to the Controlled
Group Consolidated Tax Liability computed with the net amount of the
adjustments, minus the Controlled Group Consolidated Tax Liability as computed
before such adjustments;
(ii) If any adjustment results in a reduction in
the amount of a Tax Benefit realized by the Distributing Group from a Tax
Attribute of the Controlled Group, the amount of such reduction whether or not
the Controlled Group was previously paid in respect of such Tax Attribute; and
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(iii) If not otherwise taken into account under
subdivision (i) of this Section 2.2(b), the amount of the Tax Detriment to the
Distributing Group from the use in the year of the adjustment of a Tax Attribute
of the Distributing Group against a Tax Item of the Controlled Group even though
such Tax Attribute would otherwise be carried to a future Tax period.
Any amount due to Distributing Co. by Controlled Co. shall be computed initially
by Distributing Co. and confirmed by a nationally recognized accounting firm
selected by Distributing Co. The corporations identified in Schedule "A" hereto
shall be treated for purposes of this Section 2.2(b) as members of the
Distributing Group even though they are members of the Controlled Group and the
Tax Items of these corporations shall belong to the Distributing Group to the
extent set forth in Schedule "A".
(c) Allocation of State Income Taxes. Except as provided in
Section 2.5, State Income Taxes shall be allocated as follows:
(a) Separate Company Taxes. In the case of any State
Income Tax which is a Separate Company Tax, Controlled Co. shall be liable for
such Tax imposed on any members of the Controlled Group.
(b) Consolidated or Combined State Income Taxes. In the
case of any Consolidated or Combined State Income Tax, the liability of
Controlled Co. with respect to such Tax for any Tax Period shall be computed as
follows:
(i) Allocation of Tax Reported on Tax Returns.
In the case of any Consolidated or Combined State Income Tax reported on any Tax
Return to be filed after the Distribution Closing Date, Controlled Co. shall be
liable to Distributing Co. for the State Income Tax liability in accordance with
Section 5.3(b).
(ii) Allocation of Combined or Consolidated State
Income Tax Adjustments. If there is any adjustment with respect to a
Consolidated or Combined State Income Tax Return (or as previously adjusted),
Controlled Co. shall be liable to Distributing Co. for the amounts set forth in
this Section 2.3(b)(ii) attributable to the net amount of the adjustments in
such year for Tax Items of the Controlled Group.
(A) The amount, if any, equal to the
Controlled Group Consolidated or
Combined State Income Tax Liability
computed with the net amount of the
adjustments, minus the Controlled
Group Consolidated or Combined
State Income Tax Liability as
computed before such adjustments;
(B) If any adjustment results in a
reduction in the amount of a Tax
Benefit realized by the
Distributing Group from a Tax
Attribute of the Controlled Group,
the amount of such reduction
whether or not the Controlled Group
was previously paid in respect of
such Tax Attribute; and
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(C) If not otherwise taken into account
under subdivision (ii)(A) of this
Section 2.3(b), the amount of the
Tax Detriment to the Distributing
Group from the use in the year of
the adjustment of a Tax Attribute
of the Distributing Group against a
Tax Item of the Controlled Group
even though such Tax Attribute
would otherwise be carried to a
future Tax period.
Any amount due to Distributing Co. by Controlled Co. shall be computed initially
by Distributing Co. and confirmed by a nationally recognized accounting firm
selected by Distributing Co. and take into account the effective state and local
Income Tax rate of the applicable Group. The corporations identified in Schedule
"A" hereto shall be treated for purposes of this Section 2.3(b)(ii) as members
of the Distributing Group even though they are members of the Controlled Group
and the Tax Items of these corporations shall belong to the Distributing Group
to the extent set forth in Schedule "A".
(d) Allocation of Other Taxes. Except as provided in Section 2.5,
all Taxes other than those specifically allocated pursuant to Sections 2.2 and
2.3 shall be allocated based on the legal entity on which the legal incidence of
the Tax is imposed. As between the parties to this Agreement, Controlled Co.
shall be liable for all Taxes imposed on any member of the Controlled Group
including, for purposes of clarification, any Tax imposed by any foreign
governmental authority or political subdivision thereof. The Companies believe
that there is no Tax not specifically allocated pursuant to Section 2.3 which is
legally imposed on more than one legal entity (e.g., joint and several
liability); however, if there is any such Tax, it shall be allocated in
accordance with past practices as reasonably determined by the Distributing Co.,
or in the absence of such practices, in accordance with any reasonable
allocation method determined by Distributing Co.
(e) Transaction and Other Taxes
(a) Distributing Co. Liability. Except as otherwise
provided in this Section 2.5, Distributing Co. shall be liable for, and shall
indemnify and hold harmless the Controlled Group from and against, any liability
for
(i) any sales and use, documentary, recording or
stamp Tax imposed on the transfer of property to a member of the Distributing
Group occurring solely pursuant to the Transactions;
(ii) any Federal Income Tax or State Income Tax
resulting from any income or gain recognized by Distributing Co. or a Subsidiary
(as determined or identified on or before the Distribution Closing Date) as a
result of a Distribution failing to qualify for tax-free treatment pursuant to
Section 355 of the Code and related provisions;
(iii) any Federal Income Tax or State Income Tax
(other than a Tax described in subparagraph (ii) above) resulting from the
Transactions;
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provided, however, that Distributing Co. shall not be liable for, and shall not
be obligated to indemnify and hold harmless the Controlled Group from and
against liability for any Tax described in clauses (ii) and (iii) above to the
extent it arises as a result of Controlled Co.'s, or any member of the
Controlled Group engaging in any Prohibited Action as defined in Section 11.
Except as otherwise provided in this Section 2.5(a), any Tax resulting from, or
arising by reason of, the Transactions shall be paid by the member of the
Distributing Group or Controlled Group, as the case may be, on which the legal
incidence of the Tax is imposed and which has the primary legal liability for
such Tax. Notwithstanding anything in this Section 2.5 to the contrary, any Tax
from item (vi) in the "Proposed Transaction" as contained in the Letter Ruling
shall be paid by Distributing Co.
(b) Indemnity for Certain Acts. Controlled Co. shall be
liable for, and shall indemnify and hold harmless the Distributing Group from
and against any liability for any Tax described in paragraph (a)(ii) or (a)(iii)
above to the extent arising as a result after the Distribution Closing Date of
Controlled Co.'s or any member of the Controlled Group engaging in any
Prohibited Action as defined in Section 11, or a breach by Controlled Co. of its
representations, warranties and covenants set forth in Section 11. In such case,
Distributing Co. shall not be liable for such amounts. If Controlled Co. is
liable to the Distributing Group by reason of this Section 2.5(b), the Tax
described in paragraph (a)(ii) or (a)(iii) shall be computed in accordance with
Section 2.2(b), Section 2.3(b)(ii) and Section 2.4, as applicable.
(c) Shared Liability. Notwithstanding Section 2.5(a) to
the contrary, the Distributing Group and the Controlled Group shall share
equally any Tax described in paragraph (a)(ii) or (a)(iii) if such Tax did not
arise as a result of a Prohibited Action or breach of any representation
warranty or covenant set forth in Section 11 by any member of the Distributing
Group or the Controlled Group.
3. PRORATION OF TAXES FOR STRADDLE PERIODS
General Method of Proration. In the case of any Straddle
Period, and in the case of a Tax Period of any member of the Controlled Group
which ends on the Distribution Closing Date, Tax Items shall be apportioned
between Pre-Distribution Periods and Post-Distribution Periods in accordance
with the principles of Treasury Regulations under Section 1502 of the Code.
Gains and losses from the disposition of property described in Section 1231 of
the Code by any member of the Controlled Group during any Straddle Period,
including dispositions of vehicles, will be allocated between the
Pre-Distribution Periods and Post-Distribution Periods based upon the actual
disposition date of the property.
4. PREPARATION AND FILING OF TAX RETURNS
(a) General. Except as otherwise provided in this Section 4, Tax
Returns shall be prepared and filed when due (including extensions) by the
person obligated to file such Tax Returns under the Code or applicable Tax Law.
The Companies shall provide, and shall cause their Affiliates to provide,
assistance and cooperate with one another in accordance with Section 7 with
respect to the preparation and filing of Tax Returns, including providing
information required to be provided in Section 7.
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(b) Distributing Co.'s Responsibility. Distributing Co. has the
exclusive obligation and right to prepare and file, or to cause to be prepared
and filed:
(a) Distributing Co. Federal Consolidated Returns for any
Periods ending on, before or after the Distribution Closing Date, including the
Pre-Distribution Period of any member of the Controlled Group.
(b) Consolidated or Combined State Income Tax Returns for
Tax Periods ending on or before the Distribution Closing Date or for any
Straddle Period.
(c) Tax Returns for State Income Taxes (including Tax
Returns with respect to State Income Taxes that are Separate Company Taxes) for
members of the Distributing Group.
(d) Tax Returns for any period before or including the
Distribution Date of any partnership (or other entity treated as a partnership
for Tax purposes) which is a domestic partnership under Section 7701(a)(30)(B)
of the Code, and the Controlled Co. agrees to execute and file, or cause a
member of the Controlled Group to execute and file, such Tax Returns if the
Controlled Co. or such member has that responsibility under applicable law.
(c) Controlled Co. Responsibility. Controlled Co. shall prepare
and file, or shall cause to be prepared and filed, all Tax Returns required to
be filed by or with respect to the Controlled Co. or members of the Controlled
Group other than those Tax Returns which Distributing Co. is required to prepare
and file under Section 4.2.
(d) Tax Accounting Practices
(a) General Rule. Except as otherwise provided in this
Section 4.4, any Tax Return for any Pre-Distribution Period or any Straddle
Period, and any Tax Return for any Post-Distribution Period to the extent items
reported on such Tax Return might reasonably affect items reported on any Tax
Return for any Pre-Distribution Period or any Straddle Period, shall be prepared
in accordance with past Tax accounting practices used with respect to the Tax
Returns in question (unless such past practices are no longer permissible under
the Code or other applicable Tax Law), provided, however, the determination of
depreciation, amortization, gain, and loss on vehicles for any Straddle Period
shall be made by Distributing Co. and to the extent any items are not covered by
past practices (or in the event such past practices are no longer permissible
under the Code or other applicable Tax Law), in accordance with reasonable Tax
accounting practices selected by the Responsible Company.
(b) Reporting of Transaction Tax Items. The tax treatment
reported by Controlled Co. on any Tax Return, whether for a Pre-Distribution or
Post-Distribution Period, of Tax Items relating to the Transactions shall be
consistent with the treatment of such item on the Distributing Co. Federal
Consolidated Return that includes a Distribution.
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(e) Consolidated or Combined Returns. The Companies will elect and
join, and will cause their respective Affiliates to elect and join, in filing
consolidated, unitary, combined, or other similar joint Tax Returns for
Pre-Distribution and Straddle Periods, to the extent each entity is eligible to
join in such Tax Returns, if the Distributing Co. reasonably determines that the
filing of such Tax Returns is consistent with past reporting practices, or in
the absence of applicable past practices, will result in the minimization of the
net present value of the aggregate Tax to the entities eligible to join in such
Tax Returns. In addition, the Controlled Co. shall be required to file a
consolidated return for Federal Income Tax purposes for its first Tax Period in
the Post-Distribution Period ending after the Distribution Closing Date, and the
Controlled Co. shall make all necessary elections, and cause each member of the
Controlled Group to file all necessary consents, in accordance with Treasury
Regulations section 1.1502-75 required to file that consolidated return.
(f) Right to Review Tax Returns
General. The Responsible Company with respect to any Tax
Return shall make such Tax Return and related workpapers available for review by
the other Companies, if requested, to the extent (i) such Tax Return relates to
Taxes for which the requesting party may be liable, (ii) such Tax Return relates
to Taxes for which the requesting party may be liable in whole or in part or for
any additional Taxes owing as a result of adjustments to the amount of Taxes
reported on such Tax Return, (iii) such Tax Return relates to Taxes for which
the requesting party may have a claim for Tax Benefits under this Agreement, or
(iv) the requesting party reasonably determines that it must inspect such Tax
Return to confirm compliance with the terms of this Agreement. The Responsible
Company shall make such Tax Return available for review as required under this
paragraph at least 30 days prior to the due date for filing such Tax Returns to
provide the requesting party with a meaningful opportunity to analyze and
comment on such Tax Returns and have such Tax Returns modified before filing.
The Companies shall attempt in good faith to resolve any issues arising out of
the review of such Tax Returns. Issues that cannot be resolved by the Companies
shall be resolved in the manner set forth in Section 15, provided, however, that
such Tax Return shall be timely filed in the manner prepared by the Responsible
Company if the issues cannot be resolved prior to the time required by law
(including extensions) for the filing of such Tax Return.
(g) Claims for Refund, Carrybacks, and Self-Audit Adjustments
("Adjustment Requests")
(a) Consent Required for Adjustment Requests Related to
Consolidated or Combined Income Taxes. Except as provided in paragraph (b)
below, each of the Companies hereby agrees that (i) any decision to file an
Adjustment Request with respect to any Consolidated or Combined Income Tax for a
Pre-Distribution Period shall be made by Distributing Co., and (ii) any
available elections to waive the right to claim in any Pre-Distribution Period
with respect to any Consolidated or Combined Income Tax any Carryback arising in
a Post-Distribution Period shall be made, and no affirmative election shall be
made to claim any such Carryback. Any Adjustment Request shall be prepared and
filed by the Responsible Company under Section 4.2 for the Tax Return to be
adjusted. The Company requesting the Adjustment Request shall provide to the
Responsible Company all information required for the preparation and filing of
such Adjustment Request in such form and detail as reasonably requested by the
Responsible Company.
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Notwithstanding anything to the contrary in this paragraph (a), the consent of
the Controlled Co. shall not be necessary for any Carryback by Distributing Co.
or any member of the Distributing Group provided such Carryback constitutes a
Distributing Adjustment in the year (or years) such Carryback is absorbed.
(b) Other Adjustment Requests Permitted. Nothing in this
Section 4.7 shall prevent either Company or its Affiliates from filing any
Adjustment Request with respect to Income Taxes which are not Consolidated or
Combined Income Taxes or with respect to any Taxes other than Income Taxes. Any
refund or credit obtained as a result of any such Adjustment Request (or
otherwise) shall be for the account of the person liable for the Tax under this
Agreement.
(c) Payment of Refunds. Any refunds or other Tax Benefits
received by the Controlled Group (or any of its Affiliates) as a result of any
Adjustment Request which are for the account of a member of the Distributing
Group shall be paid by the Controlled Co. to the Distributing Co. in accordance
with Section 6.
(d) Payment of Refunds and Tax Benefits by Distributing
Co. to Controlled Co. The Distributing Co. shall pay the Controlled Co. the
following amounts, with respect to Consolidated or Combined Income Tax for any
Pre-Distribution Periods:
(i) The amount of any refund of Consolidated or
Combined Income Tax (including the amount of any interest received with respect
to such Tax refund) attributable to an adjustment of the Tax Items of the
Controlled Group received by the Distributing Co. as a result of an Adjustment
Request, Tax Contest or other action of a Tax Authority. The amount of such Tax
refund shall equal --
(a) the Consolidated Tax Liability, or
Consolidated or Combined State Income Tax Liability, after all adjustments for
Tax Items of the Distributing Group but before any adjustment for Tax Items of
the Controlled Group, minus
(b) the Consolidated Tax Liability, or
Consolidated or Combined State Income Tax Liability, after all adjustments for
the Tax Items of both the Distributing Group and the Controlled Group;
(ii) The amount payable by the Distributing Co.
to the Controlled Co. under Section 4.7(d)(i) shall be paid with interest at the
Prime Rate from the date such amount is received by Distributing Co. to the date
of payment which shall be made no later than ninety (90) days after the receipt
of such Tax refund by Distributing Co., and shall be reduced by the amounts
Controlled Co. owes, at that time, to the Distributing Co. under this Agreement
or the Distribution Agreement.
(iii) If, as a result of an adjustment in a
particular Tax period, the Controlled Group makes a payment of Tax to the
Distributing Group in accordance with Section 5.2(a) or Section 5.4(a), and such
adjustment leads directly to a reduction of income or an increase in deductions
relating to Tax Items of the Controlled Group in a later Tax period in the Pre-
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Distribution Period (a "Turnaround Adjustment"), the Distributing Co. shall pay
the Controlled Group the Tax attributable to such Turnaround Adjustment. The
amount of the Turnaround Adjustment shall be reduced by the net adjustments for
other Tax Items of the Controlled Group arising in the Tax Period in the
Pre-Distribution Period in which the Turnaround Adjustment is allowed (the
"Turnaround Tax Period"). The Tax attributable to the Turnaround Adjustment
shall equal --
(a) the Consolidated Tax Liability, or
Consolidated or Combined State Income Tax Liability, after all adjustments for
Tax Items of the Distributing Group and the net adjustments for Tax Items of the
Controlled Group (other than the Turnaround Adjustment) which create Tax
Attributes of the Controlled Group used by the Distributing Group, minus
(b) the Consolidated Tax Liability, or
Consolidated or Combined State Income Tax Liability, after all adjustments for
Tax Items of the Distributing Group and the Controlled Group.
The amount of the Tax attributable to the Turnaround Adjustment shall
be paid by Distributing Co. to Controlled Co. within ninety (90) days of the
date following the expiration of the applicable statute of limitations for the
Turnaround Tax Period plus interest as determined under Section 6621 of the Code
(or the corresponding provisions of state law) as if the amount of Tax
attributable to the Turnaround Adjustment was an overpayment of Income Tax for
the Turnaround Tax Period. No payment is required under this Section 4.7(d)(iii)
if the Tax attributable to a Turnaround Adjustment is refunded and paid to the
Controlled Group in accordance with Section 4.7(d)(i) and (ii).
(iv) Notwithstanding Section 5.2(a) or Section
5.4(a) to the contrary, if the Controlled Group would otherwise be required to
make a Tax payment for a Tax period ("Earlier Tax Period") with respect to a Tax
Item giving rise to a Turnaround Adjustment in a Turnaround Tax Period, that Tax
for the Earlier Tax Period will be netted with the Tax attributable to the
Turnaround Adjustment (as determined under Section 4.7(d)(iii)) only if that
Earlier Tax Period and the Turnaround Tax Period are in the same audit cycle and
the statutes of limitation for such Tax Periods expire at the same time.
(v) Except as required in Section 4.7(d)(i) and
(iii), the Distributing Group shall not be obligated to pay the Controlled Group
for the Tax Benefit arising to the Distributing Group from an adjustment to the
Tax Items of the Controlled Group. Notwithstanding the preceding sentence to the
contrary, the amount of such Tax Benefit used by the Distributing Co. as result
of the adjustment to the Tax Items of the Controlled Group in a Tax period shall
constitute a set-off upon the expiration of the statute of limitations for the
Tax period in which the adjustment is made against the amount the Controlled
Group owes to the Distributing Group under this Agreement for another Tax
period. This Section 4.7(d)(v) does not apply to the extent the amount of the
Tax Benefit is refunded to the Controlled Group in accordance with Section
4.7(d)(i) or paid (or offset) to such Group in accordance with Section
4.7(d)(iii) or (iv).
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5. TAX PAYMENTS AND INTERCOMPANY XXXXXXXX
(a) Payment of Taxes With Respect to Distributing Co. Federal
Consolidated Returns Filed After the Distribution Closing Date. In the case of
any Distributing Co. Federal Consolidated Return filed after the Distribution
Closing Date:
(a) Computation and Payment of Tax Due. On or prior to
the filing of such Return, Distributing Co. shall compute the amount of Tax
required to be paid to the Internal Revenue Service (taking into account the
requirements of Section 4.4 relating to consistent accounting practices) with
respect to such Tax Return and shall pay such amount to the Internal Revenue
Service on or before the Payment Date.
(b) Amount Due for Prior Periods. Subject to adjustments
as set forth in Section 2.2(b), no amounts are currently due and owing by the
Controlled Co. with respect to any Consolidated Tax Liability for periods ending
on or prior to the year ended on December 31, 1999 and the Tax period ended in
2000.
(b) Payment of Federal Income Tax Related to Adjustments
(a) Adjustments Resulting in Underpayments. Distributing
Co. shall pay to the Internal Revenue Service when due any additional Federal
Income Tax required to be paid as a result of adjustment to the Tax liability
with respect to any Distributing Co. Federal Consolidated Return. The Controlled
Co. in accordance with Section 2.2(b) shall pay to Distributing Co. any amount
due Distributing Co. under Section 2.2(b) within ninety (90) days from the date
of receipt by Controlled Co. of a written notice and demand from Distributing
Co. for payment of the amount due, accompanied by a statement describing in
reasonable detail the particulars relating thereto. When the adjustments for a
Tax period create additional Federal Income Tax with respect to a Distributing
Co. Federal Consolidated Return, the Controlled Co. shall pay the Distributing
Co. any amount due to the Distributing Co. under Section 2.2(b) no earlier than
when such additional Federal Income Tax is due. In any other case where the
Controlled Co. owes an amount to Distributing Co. under Section 2.2(b) (where,
for example, the adjustments do not create any additional Federal Income Tax
because the Controlled Group uses a Tax Attribute of the Distributing Group),
the Controlled Co. shall pay the Distributing Co. any amount due to the
Distributing Co. under Section 2.2(b) no earlier than after the expiration of
the applicable statute of limitations for the Tax period in which the
adjustments are made. Any payments required under this Section 5.2(a) shall
include interest computed at the Prime Rate based on the number of days from the
date any additional Tax was paid by Distributing Co. to the date of the payment
under this Section 5.2(a), or in the case the amount due Distributing Co. under
Section 2.2(b) does not involve any additional Federal Income Tax (because, for
example, of the use by Controlled Group of a Tax Attribute of the Distributing
Group), from the date any additional Tax would have been required to be paid by
Distributing Co. to the date of payment under this Section 5.2(a).
(b) Adjustments Resulting in Overpayments. Except as
provided in Section 4.7 (d), Distributing Co. shall retain any Tax refund or
other Tax Benefit resulting from any adjustment to the Consolidated Tax
Liability or to any Distributing Co. Federal Consolidated Return.
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(c) Payment of State Income Tax With Respect to Returns Filed
After the Distribution Closing Date. In the case of any Consolidated or Combined
State Income Tax Return filed after the Distribution Closing Date:
(a) Computation and Payment of Tax Due. On or prior to
any Payment Date for any Tax Return with respect to any State Income Tax, the
Responsible Company shall compute the amount of Tax required to be paid to the
applicable Tax Authority (taking into account the requirements of Section 4.4
relating to consistent accounting practices) with respect to such Tax Return on
such Payment Date and the Responsible Company shall, if it is not the Company
liable for the Tax reported on such Tax Return, notify the Company liable for
such Tax in writing of the amount of Tax required to be paid on such Payment
Date. The Company liable for such Tax will pay such amount to such Tax Authority
on or before such Payment Date.
(b) Amount Due for Prior Periods. Subject to adjustments
as set forth in Section 2.3(b)(ii), no amounts are currently due and owing by
the Controlled Co. with respect to any Consolidated or Combined State Income Tax
for periods ending on or prior to the year ended on December 31, 1999 or for Tax
periods ended in 2000.
(d) Payment of State Income Taxes Related to Adjustments
(a) Adjustments Resulting in Underpayments. Distributing
Co. shall pay to the applicable Tax Authority when due any additional State
Income Tax required to be paid as a result of any adjustment to the Tax
liability with respect to any Tax Return for any Consolidated or Combined State
Income Tax for any Pre-Distribution Period. Controlled Co. in accordance with
Section 2.3(b)(ii) shall pay to Distributing Co. any amount due Distributing Co.
under Section 2.3(b)(ii) within ninety (90) days from the date of receipt by
Controlled Co. of a written notice and demand from Distributing Co. for payment
of the amount due, accompanied by a statement describing in reasonable detail
the particulars relating thereto. When the adjustments for a Tax Period create
additional State Income Tax with respect to a Consolidated or Combined State
Income Tax Return, the Controlled Co. shall pay the Distributing Co. any amount
due to the Distributing Co. under Section 2.3(b)(ii) no earlier than when such
additional State Income Tax is due. In any other case where the Controlled Co.
owes an amount to Distributing Co. under Section 2.3(b)(ii) (where, for example,
the adjustments do not create any additional State Income Tax because the
Controlled Group uses a Tax Attribute of the Distributing Group), the Controlled
Co. shall pay the Distributing Co. any amount due to the Distributing Co. no
earlier than after the expiration of the applicable statute of limitations for
the Tax period in which the adjustments are made. Controlled Co. shall also pay
to Distributing Co. interest on its respective share of any additional Tax
computed at the Prime Rate based on the number of days from the date the
additional Tax was paid by Distributing Co. to the date of its payment to
Distributing Co. under this Section 5.4(a), or in the case the amount due
Distributing Co. under Section 2.3(b)(ii) does not involve any additional State
Income Tax (because, for example, of the use by Controlled Group of a Tax
Attribute of the Distributing Group), from the date any additional Tax would
have been required to be paid by Distributing Co. to the date of payment under
this Section 5.2(a).
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(b) Adjustments Resulting in Overpayments. Except as
provided in Section 4.7 (d), Distributing Co. shall retain any Tax refund or
other Tax Benefit resulting from any adjustment to the Tax liability with
respect to any Tax Return for any Consolidated or Combined State Income Tax for
any Pre-Distribution Period.
(e) Payment of Separate Company Taxes. Each Company shall pay, or
shall cause to be paid, to the applicable Tax Authority when due all Separate
Company Taxes owed by such Company or a member of such Company's Group.
(f) Indemnification Payments. If any Company (the "payor") is
required to pay to a Tax Authority a Tax that is properly allocated to another
Company (the "responsible party") under this Agreement, the responsible party
shall reimburse the payor within ninety (90) days of delivery by the payor to
the responsible party of an invoice for the amount due, accompanied by evidence
of payment and a statement detailing the Taxes paid and describing in reasonable
detail the particulars relating thereto. The reimbursement shall include
interest on the Tax payment computed at the Prime Rate based on the number of
days from the date of the payment to the Tax Authority to the date of
reimbursement under this Section 5.6.
6. TAX BENEFITS. If a member of the Controlled Group receives any Tax
Benefit with respect to any Taxes for which a member of the Distributing Group
is liable hereunder, the Controlled Co. shall make a payment to the Distributing
Co. within ninety (90) days following receipt of the Tax Benefit in an amount
equal to the Tax Benefit (including any Tax Benefit realized as a result of the
payment) plus interest on such amount computed at the Prime Rate based on the
number of days from the date of receipt of the Tax Benefit to the date of the
payment of such amount under this Section 6.
7. ASSISTANCE AND COOPERATION
(a) General. After the Distribution Closing Date, each of the
Companies shall cooperate (and cause their respective Affiliates to cooperate)
with each other and with each other's agents, including accounting firms and
legal counsel, in connection with Tax matters relating to the Companies and
their Affiliates including (i) preparation and filing of Tax Returns, (ii) the
liability for and amount of any Taxes due (including estimated Taxes) or the
right to and amount of any refund of Taxes, (iii) examinations of Tax Returns,
and (iv) any administrative or judicial proceeding in respect of Taxes assessed
or proposed to be assessed. Such cooperation shall include making all
information and documents in their possession relating to the other Company and
their Affiliates available to such other Company as provided in Section 8. Each
of the Companies shall also make available to each other, as reasonably
requested and available, personnel (including officers, directors, employees and
agents of the Companies or their respective Affiliates) responsible for
preparing, maintaining, and interpreting information and documents relevant to
Taxes, and personnel reasonably required as witnesses or for purposes of
providing information or documents in connection with any administrative or
judicial proceedings relating to Taxes. For purposes of clarification, the
Distributing Co. and its employees, agents or accountants shall be given direct
access to employees and agents of the Controlled Group engaged in operations in
order to prepare and file Tax Returns. Any information or documents provided
under this Section 7 shall be kept
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confidential by the Company receiving the information or documents, except as
may otherwise be necessary in connection with the filing of Tax Returns or in
connection with any administrative or judicial proceedings relating to Taxes.
(b) Income Tax Return Information. Each Company will provide to
the other Company information and documents relating to their respective Groups
required by the other Company to prepare Tax Returns. The Responsible Company
shall determine a reasonable compliance schedule for such purpose in accordance
with Distributing Co.'s past practices. Any additional information or documents
the Responsible Company requires to prepare such Tax Returns will be provided in
accordance with past practices, if any, or as the Responsible Company reasonably
requests and in sufficient time for the Responsible Company to file such Tax
Returns on a timely basis.
8. TAX RECORDS
(a) Retention of Tax Records. Except as provided in Section 8.2,
each Company shall preserve and keep all Tax Records exclusively relating to the
assets and activities of its respective Group for Pre-Distribution Tax Periods,
and Distributing Co. shall preserve and keep all other Tax Records relating to
Taxes of the Groups for Pre-Distribution Tax Periods, for so long as the
contents thereof may become material in the administration of any matter under
the Code or other applicable Tax Law, but in any event until the later of (i)
ninety (90) days after the expiration of any applicable statutes of limitation,
and (ii) seven years after the Distribution Closing Date. If, prior to the
expiration of the applicable statute of limitation and such seven-year period, a
Company reasonably determines that any Tax Records which it is required to
preserve and keep under this Section 8 are no longer material in the
administration of any matter under the Code or other applicable Tax Law, such
Company may dispose of such records upon 90 days prior notice to the other
Company. Such notice shall include a list of the records to be disposed of
describing in reasonable detail each file, book, or other records being
disposed. The notified Company shall have the opportunity, at its cost and
expense, to copy or remove, within such 90-day period, all or any part of such
Tax Records.
(b) State Income Tax Returns. Tax Returns with respect to State
Income Taxes and workpapers prepared in connection with preparing such Tax
Returns shall be preserved and kept, in accordance with the terms of Section
8.1, by the Company having liability for the Tax.
(c) Access to Tax Records. The Companies and their respective
Affiliates shall make available to each other for inspection and copying during
normal business hours upon reasonable notice all Tax Records in their possession
to the extent reasonably required by the other Company in connection with the
preparation of Tax Returns, audits, litigation, or the resolution of items under
this Agreement.
9. TAX CONTESTS
(a) Notice. Each of the Companies shall provide prompt notice to
the other Company of any proposed assessment, assessment or proceeding or other
Tax Contest on or before ninety (90) days after the date it becomes aware of
such pending or threatened event related to Taxes for Tax Periods for which it
is indemnified by the other Company hereunder. Such notice shall contain
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factual information (to the extent known) describing any asserted Tax liability
in reasonable detail and shall be accompanied by copies of any notice and other
documents received from any Tax Authority in respect of any such matters. If an
indemnified party has knowledge of an asserted Tax liability with respect to a
matter for which it is to be indemnified hereunder and such party fails to give
the indemnifying party prompt notice of such asserted Tax liability, then (i) if
the indemnifying party is precluded from contesting the asserted Tax liability
in any forum as a result of the failure to give prompt notice, the indemnifying
party shall have no obligation to indemnify the indemnified party for any Taxes
arising out of such asserted Tax liability, and (ii) if the indemnifying party
is not precluded from contesting the asserted Tax liability in any forum, but
such failure to give prompt notice results in a monetary detriment to the
indemnifying party, then any amount which the indemnifying party is otherwise
required to pay the indemnified party pursuant to this Agreement shall be
reduced by the amount of such detriment.
(b) Control of Tax Contests
(a) Separate Company Taxes. In the case of any Tax
Contest with respect to any Separate Company Tax, the Company having liability
for the Tax shall have exclusive control over the Tax Contest, including
exclusive authority with respect to any settlement of such Tax liability.
(b) Consolidated or Combined Income Taxes. In the case of
any Tax Contest with respect to any Consolidated or Combined Income Tax, (i)
Distributing Co. shall control and decide on the defense or prosecution of the
portion of the Tax Contest directly and exclusively related to any Distributing
Adjustment, including settlement of any such Distributing Adjustment and (ii)
Controlled Co. shall have the right and authority to direct Distributing Co. in
the defense or prosecution of the portion of the Tax Contest directly and
exclusively related to any Controlled Adjustment, including settlement of any
such Controlled Adjustment, and (iii) Distributing Co. shall control the defense
or prosecution of Joint Adjustments, including settlement of any such Joint
Adjustment, and any and all administrative matters not directly and exclusively
related to any Distributing Adjustment or Controlled Adjustment. A Company shall
not agree to any Tax liability for which another Company may be liable under
this Agreement, or compromise any claim for any Tax Benefit which another
Company may be entitled under this Agreement, without such other Company's
written consent (which consent may be given or withheld at the sole discretion
of the Company from which the consent would be required), except that this
sentence shall not limit Distributing Co.'s authority and rights under clause
(iii) of the preceding sentence. The Distributing Co., in the case of any
examination or audit of a Distributing Co. Federal Consolidated Return, and the
Responsible Company in the case of any examination or audit of a Consolidated or
Combined State Income Tax Return, shall be the only parties representing the
members of the Group before, or meeting with, any Federal or State Tax Authority
in connection with the examination or audit. Notwithstanding the representation
by the Distributing Co. or Responsible Company before such Tax Authority, the
Distributing Co. or Responsible Company shall (a) provide the Controlled Co.
with all information reasonably requested relating to any Controlled Adjustment
or Joint Adjustment; (b) submit to such Tax Authority any facts, legal arguments
or other matters deemed advisable by Controlled Co. and provided by it to
Distributing Co. or the Responsible Company; and (c) not have the authority to
settle or otherwise compromise a Controlled Adjustment.
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10. EFFECTIVE DATE. This Agreement shall be effective on the Distribution
Closing Date.
11. NO INCONSISTENT ACTIONS.
(a) Prohibited Actions. Controlled Co. covenants and
agrees that it will not take any Prohibited Action (as defined below), and it
will cause its Affiliates to refrain from taking any Prohibited Action, unless
it has obtained the prior written consent of Distributing Co. With respect to
any Prohibited Action proposed by Controlled Co., Distributing Co. shall grant
its consent to such Prohibited Action if, subject to Section 11(c), the
Controlled Co. obtains a ruling with respect to the Prohibited Action from the
Internal Revenue Service or other applicable Tax Authority that is reasonably
satisfactory to the Distributing Co., or the Controlled Co. obtains a tax
opinion addressed to Distributing Co. from one or more qualified firms
designated by Distributing Co. and such tax opinion is satisfactory to the
Distributing Co. in its absolute discretion. A Prohibited Action is any action
which is inconsistent with the Tax treatment of the Transactions and
Distribution as contemplated in the Ruling Request and Letter Ruling, and
includes, but is not limited to, the following actions:
(i) any acquisition, directly or indirectly, of
the shares of capital stock of the Controlled Co. which has the effect of
disqualifying a Distribution, or any part thereof, from tax-free treatment under
Section 355 of the Code, including stock redemptions and stock issuances
(whether in public offerings, private placements or otherwise) and whether or
not any such acquisition is the result of direct actions, or within the control,
of the Controlled Co.;
(ii) a liquidation of the Controlled Co.;
(iii) a merger or consolidation with, or
acquisition of Controlled Co. by, another company or person;
(iv) the sale, distribution or other disposition
of the assets of the Controlled Co. in a manner that would adversely affect the
Income Tax consequences of the Transactions;
(v) the discontinuance of any material active
businesses conducted by Controlled Co. as of the Distribution Closing Date;
(vi) any event or fact relating to the Controlled
Co. which is inconsistent with a representation made by the Controlled Co. or
Distributing Co. in the Ruling Request, a representation, condition or factual
assumption contained in the Letter Ruling or otherwise in connection with any
distribution under Code Section 355;
(vii) any issuance of stock of Controlled Co. by
Controlled Co. (whether in public offerings, private placements or otherwise) or
redemption or acquisition of stock of Controlled Co. by Controlled Co., after
the Distribution (including stock of Controlled Co. issued to a person or group
of persons which becomes a 5 percent or greater shareholder of Controlled Co. as
defined in Section 355(e) and actively participates in the management or
operations of Controlled Co. by reason of that acquisition or at any point
thereafter and before the end of the two-year period
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beginning on the Distribution Closing Date) which, by itself or together with
transactions with respect to Controlled Co. after the Distribution Closing Date
and together with other transactions with respect to Distributing Co. or
Controlled Co. stock within two years prior to the Distribution Closing Date,
would cause the Distribution to be presumed under Section 355(e)(2)(B) or
Treasury Regulations thereunder to be a distribution which is under Section
355(e)(2)(A)(ii) part of a plan or series of related transactions pursuant to
which one or more persons acquire directly or indirectly stock possessing 50
percent or more of the total combined voting power of all classes of stock of
Controlled or stock possessing 50 percent or more of the total value of all
classes of stock of Controlled. In applying this clause (vii) with respect to
other transactions with respect to Distributing Co. or Controlled Co. stock
within two years prior to the Distribution Closing Date, the Distribution,
Distributing Co.'s stock repurchase plan, all outstanding Distributing Co. stock
options and warrants, and stock issued on the exercise of options or as
consideration in acquisitions shall be taken into account. Unless otherwise
provided in proposed, final or temporary Treasury Regulations under Section
355(e) or other clear authority within the meaning of Treasury Regulations
ss.1.6662- 4(d)(3)(iii) and (iv), the exercise of options shall be considered an
issuance or acquisition of stock.
(viii) The termination of any domestic partnerships
(including any entity treated as a domestic partnership for federal income tax
purposes) in which any member of the Controlled Group is a partner during
calendar year 2000.
For purposes of this Section 11(a), any reference to Controlled Co.
includes a reference to any member of the Controlled Group, and any reference to
Distributing Co. includes a reference to any member of the Distributing Group.
Except for a longer period as may be required by Treasury Regulations under
Section 355(e), clauses (i), (ii), (iii), (iv), (vi) and (vii) of this Section
11(a) cease to have effect three years after the Distribution Closing Date;
clause (viii) shall cease to have effect one year thereafter; and clause (v)
shall cease to have effect after December 31, 2002.
(b) No Inconsistent Plan or Intent. Controlled Co. and
Distributing Co. each represents and warrants that neither it nor any of its
Affiliates has any plan or intent to take any action which is inconsistent with
any factual statements or representations in the Letter Ruling or Ruling
Request. Regardless of any change in circumstances, Controlled Co. and
Distributing Co. each covenant and agree that it will not take, and it will
cause its Affiliates to refrain from taking, any such inconsistent action on or
before the expiration of the applicable statute of limitation period for the
assessment of Tax for the Tax period in which the Distribution Closing Date
occurs other than as permitted in this Section 11.
(c) Amended or Supplemental Rulings. No party other than
Distributing Co. shall have the authority to file with the IRS a ruling request
relating to the Transactions or Distribution. At the expense of Controlled Co.,
Controlled Co. may prepare, or cause to be prepared, an amended or supplemental
ruling request to be filed by Distributing Co. and relating to the Transactions
or Distribution and provide a copy of such request to Distributing Co. provided,
however, that any decision whether to file any such request with the IRS, the
form and content of such request and the precise rulings requested shall be made
exclusively by Distributing Co.
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(d) Waiver.
(i) Notwithstanding Section 11(a)(i) or (vii) to
the contrary, the limitations in Section 11(a)(vii) shall not apply if (x) there
is no excess of the fair market value of all of the shares of Controlled Co.
distributed in the Distribution on the Distribution Closing Date over the
adjusted tax basis of those shares and (y) the Controlled Co. obtains a tax
opinion addressed to Distributing Co. from a qualified firm designated by
Controlled Co. and such tax opinion is satisfactory to Distributing Co. in its
reasonable discretion. The adjusted basis of the shares in clause (i) of this
Section 11(d) shall be estimated by Distributing Co. within one hundred twenty
(120) days after the Distribution Closing Date and that amount shall be provided
in writing to Controlled Co. The initial estimate of the adjusted tax basis of
the shares shall be adjusted based upon the Consolidated Tax Return as filed by
the Distributing Group for the Tax period ended on December 31, 2000, or as
later adjusted by a Tax Authority, but any such adjustment (whether by such Tax
Return or a Tax Authority) shall not affect the application of clauses (i) and
(ii), or stock issuances or other actions limited by Section 11(a)(i) or (vii),
before the particular adjustment;
(ii) Notwithstanding Section 11(a)(i) or (vii) to
the contrary, the Controlled Co. is hereby granted consent to issue whether in a
public offering, private placement or otherwise, after the Distributions Closing
Date up to that number of its shares of common stock as set forth in accordance
with Schedule "B" attached hereto.
(iii) In accordance with the tax opinion issued by
Xxxxxx Xxxxxxxx & Xx.xx connection with the Distribution, and notwithstanding
Section 11(a)(i) or (vii) to the contrary, the Controlled Co. is hereby granted
the consent to issue, whether in a public offering, private placement or
otherwise, up to that number of its shares of common stock as set forth in
accordance with Schedule "C" attached hereto.
(e) Effect of Waiver. The Distributing Co.'s granting of
consent to a Prohibited Action, whether in accordance with Section 11(d),
Section 11(a) or otherwise, does not make a Prohibited Action a non-Prohibited
Action for purposes of this Agreement. Thus, the Controlled Co. may be liable to
the Distributing Group for such Prohibited Action despite such consent in
accordance with Section 2.5(b) or Section 11(f).
(f) Additional Indemnification by Controlled Co. In
addition to the Controlled Co. being responsible under Section 2.5(a)(ii),
2.5(a)(iii) and 2.5(b) for Taxes as a result of the Controlled Co. engaging in
any Prohibited Action or breaching its representations, warranties or covenants
in Section 11(b), the Controlled Co. and each member of the Controlled Group
indemnifies, defends and holds harmless the Distributing Co. and each member of
the Distributing Group, and each of their respective directors, officers,
employees and agents and each of the heirs, executors, successors and assigns of
any of the foregoing, from and against any and all liabilities, obligations,
damages, costs, expenses or fees relating to, arising out of or resulting from
the Controlled Co. or any member of the Controlled Group engaging in any
Prohibited Action or breaching its representations, warranties or covenants in
Section 11(b) including, but not limited to, any and all liabilities,
obligations, damages, costs, expenses or fees relating to any lawsuit by the
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shareholders of Distributing Co. against the Distributing Co. which may be filed
if the Distribution fails to qualify for tax-free treatment for such
shareholders under Section 355 of the Code.
(g) Additional Indemnification by Distributing Co. For
purposes of this Section 11(g), a Prohibited Action of Distributing Co. has the
meaning it has in Section 11(a) by substituting "Distributing Co." for
"Controlled Co." The Distributing Co. and each member of the Distributing Group
indemnifies, defends and holds harmless the Controlled Co. and each member of
the Controlled Group, and each of their respective directors, officers,
employees and agents and each of the heirs, executors, successors and assigns of
any of the foregoing, from and against any and all liabilities, obligations,
damages, costs, expenses or fees relating to, arising out of or resulting from
the Distributing Co. or any member of the Distributing Group engaging in any
Prohibited Action or breaching its representations, warranties or covenants in
Section 11(b) including, but not limited to, any and all liabilities,
obligations, damages, costs, expenses or fees relating to any lawsuit by the
shareholders of Distributing Co. against the Controlled Co. which may be filed
if the Distribution fails to qualify for tax-free treatment for such
shareholders under Section 355 of the Code.
(h) Additional Taxes. Controlled Co. shall also be liable
for any Income Taxes of the Distributing Group for its Tax Period ending on
December 31, 2000 relating to income arising by reason of Treasury Regulation
ss.1.1502-19, if Controlled Co. does not contribute before the Distribution
Closing Date funds to its subsidiaries as directed by Distributing Co. and, as a
result of such failure, income arises in the Distributing Group by reason of
Treasury Regulations ss.1.1502-19.
(i) Standard. Any opinion issued to Distributing Co. in
accordance with Section 11(a) or 11(d)(i) shall be issued under a "should"
standard rather than under a "more likely than not" or lesser standard of
certainty.
12. SURVIVAL OF OBLIGATIONS. The representations, warranties, covenants and
agreements set forth in this Agreement shall be unconditional and absolute and
shall remain in effect without limitation as to time.
13. CLOSING AGREEMENT. Controlled Co. shall join with Distributing Co. in
the filing with the IRS of a ruling request in accordance with Treasury
Regulation Section 1.1503-2(g) and to execute in connection therewith a closing
agreement with IRS in the form set forth in Schedule "D" hereto containing the
Controlled Group's agreement as the new consolidated group to the provisions of
paragraphs (g)(2)(iv)(B)(2)(i), (ii) and (iii) of Treasury Regulation Section
1.1503-2 or other provisions requested by Distributing Co. or IRS. Controlled
Co. shall cooperate with Distributing Co. in the filing of such ruling request
and the execution of such closing agreement. If required by Treasury Regulations
section 1.1502-2 (g) (2) (iv) (B) (2), the affiliated domestic owners of
separate units (as defined in Treasury Regulations section 1.1502-2 (c)(3), (c)
(9) and (c) (13)) which are members of the Controlled Group shall become parties
to such a closing agreement.
14. TREATMENT OF PAYMENTS; TAX GROSS UP
(a) Treatment of Tax Indemnity and Tax Benefit Payments. In the
absence of any change in tax treatment under the Code or other applicable Tax
Law,
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(a) any Tax indemnity payments made by a Company under
Section 5 shall be reported for Tax purposes by the payor and the recipient as
distributions or capital contributions, as appropriate, occurring immediately
before the Distribution Closing Date, but only to the extent the payment does
not relate to a Tax allocated to the payor in accordance with Treasury
Regulation Section 1.1502-33(d) (or under corresponding principles of other
applicable Tax Laws), and
(b) any Tax Benefit payments made by a Company under
Section 6, shall be reported for Tax purposes by the payor and the recipient as
distributions or capital contributions, as appropriate, occurring immediately
before the Distribution Closing Date, but only to the extent the payment does
not relate to a Tax allocated to the payor in accordance with Treasury
Regulation Section 1.1502-33(d) (or under corresponding principles of other
applicable Tax Laws).
(b) Tax Gross Up. If notwithstanding the manner in which Tax
indemnity payments and Tax Benefit payments were reported, there is an
adjustment to the Tax liability of a Company as a result of its receipt of a
payment pursuant to this Agreement, such payment shall be appropriately adjusted
so that the amount of such payment, reduced by the amount of all Income Taxes
payable with respect to the receipt thereof (but taking into account all
correlative Tax Benefits resulting from the payment of such Income Taxes), shall
equal the amount of the payment which the Company receiving such payment would
otherwise be entitled to receive pursuant to this Agreement.
(c) Interest Under This Agreement. Anything herein to the contrary
notwithstanding, to the extent one Company ("indemnitor") makes a payment of
interest to another Company ("indemnitee") under this Agreement with respect to
the period from the date that the indemnitee made a payment of Tax to a Tax
Authority to the date that the indemnitor reimbursed the indemnitee for such Tax
payment, or with respect to the period from the date that the indemnitor
received a Tax Benefit to the date indemnitor paid the Tax Benefit to the
indemnitee, the interest payment shall be treated as interest expense to the
indemnitor (deductible to the extent provided by law) and as interest income by
the indemnitee (includible in income to the extent provided by law). The amount
of the interest payment shall not be adjusted under Section 14.2 to take into
account any associated Tax Benefit to the indemnitor or increase in Tax to the
indemnitee.
(d) Exercise of Options. To the extent that any employee or former
employee of Controlled Co. exercises compensatory options to acquire shares of
capital stock of Distributing Co. ("Distributing Options") on or after the
Distribution Closing Date, any Tax deduction attributable thereto shall be
allocated to and treated as a Tax Attribute of Distributing Co. Upon the
exercise of Distributing Options by Controlled Co. employees, the Controlled Co.
shall pay to Distributing Co. the total amount of federal, state and local
income tax required to be withheld and remitted to governmental authorities in
connection with such exercise, and the total amount of the employee's share of
FICA, FUTA and other payroll taxes attributable to such exercise; provided,
however, that Controlled Co. shall not be required to pay said amounts to
Distributing Co. to the extent that said amounts are paid to Distributing Co. by
the holder of the Distributing Options. Said payments shall be made as soon as
possible after said exercise, but in no event more than 10 days after such
exercise. If, notwithstanding the first sentence of this Section 14.4 to the
contrary, the Tax deduction allocated to Distributing Co. is disallowed and
allocated to a member of the Controlled Group, the
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Controlled Group shall pay to Distributing Co. amounts that would have been owed
to Distributing Co. in accordance with Section 2.2(b) and Section 2.3(b)(ii) as
if the Tax Return of Distributing Co. for the Tax Period in which the Tax
deduction is disallowed constituted a Distributing Co. Federal Consolidated
Return and a Consolidated or Combined State Income Tax Return. Any amounts that
may be due to Distributing Co. by Controlled Co. under this Section 14.4 are
subject to the provisions of Section 14.2.
15. DISAGREEMENTS. If after good faith negotiations the parties cannot
agree on the application of this Agreement to any Tax matter, then the Tax
matter will be referred to a nationally recognized accounting firm selected by
Distributing Co. (the "Accounting Firm") provided, however, that the firm so
selected may not be the firm regularly used by Distributing Co. or Controlled
Co. The Accounting Firm shall furnish written notice to the parties of its
resolution of any such disagreement as soon as practical, but in any event no
later than 45 days after its acceptance of the matter for resolution. Any such
resolution by the Accounting Firm will be conclusive and binding on all parties
to this Agreement. In accordance with Section 17, each party shall pay its own
fees and expenses (including the fees and expenses of its representatives)
incurred in connection with the referral of the matter to the Accounting Firm.
All fees and expenses of the Accounting Firm in connection with such referral
shall be shared equally by the parties affected by the matter.
16. LATE PAYMENTS . Any amount owed by one party to another party under
this Agreement which is not paid when due shall bear interest at the Prime Rate
plus two percent, compounded semiannually, from the due date of the payment to
the date paid. To the extent interest required to be paid under this Section 16
duplicates interest required to be paid under any other provision of this
Agreement, interest shall be computed at the higher of the interest rate
provided under this Section 16 or the interest rate provided under such other
provision.
17. EXPENSES.
(a) Except as otherwise provided in this Agreement, each
party and its Affiliates shall bear their own expenses incurred in connection
with the preparation of Tax Returns, Tax Contests, and other matters related to
Taxes under the provisions of this Agreement.
(b) Fees, costs and expenses incurred by the Distributing
Group to unaffiliated third parties ("Third-Party Costs") shall be paid by the
Controlled Group to the extent set forth in this Section 17(b).
(i) Fifty percent (50%) of the Third-Party Costs
relating to the following Costs:
(A) Costs to the Accounting Firm as
provided in Section 15;
(B) Costs relating to a Tax Contest
which involves a Joint Adjustment or
shared liability under Section
2.5(c); and
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(C) Costs relating to confirmation by an
accounting firm of the Controlled
Group's determinations under
Sections 5.1(c)(ii) and 5.3(c)(ii).
(ii) One hundred percent (100%) of the Third-
Party Costs relating to the following Costs:
(A) Costs relating to the preparation
and filing of Consolidated or
Combined Income Tax Returns
specified in Section 5.1(c) and
Section 5.3(c), which are allocated
by the third party providing the
services to members of the
Controlled Group;
(B) Costs relating to the preparation
and filing of Tax Returns described
in Section 4.2(d);
(C) Costs relating to a Tax Contest
which involves a Controlled
Adjustment; and
(D) Costs incurred by the Distributing
Group in connection with an action,
or proposed action, of a member of
the Controlled Group which
constitutes, or might constitute, a
Prohibited Action under Section 11,
including any Costs incurred by the
Distributing Group in making a
decision to waive the restriction on
an action of a member of the
Controlled Group which constitutes,
or might constitute, a Prohibited
Action.
18. GENERAL PROVISIONS
(a) Addresses and Notices. Any notice, demand, request or report
required or permitted to be given or made to any party under this Agreement
shall be in writing and shall be deemed given or made when delivered in party or
when sent by first class mail or by other commercially reasonable means of
written communication (including delivery by an internationally recognized
courier service or by facsimile transmission) to the party at the party's
principal business address. A party may change the address for receiving notices
under this Agreement by providing written notice of the change of address to the
other parties.
(b) Binding Effect . This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
(c) Waiver. No failure by any party to insist upon the strict
performance of any obligation under this Agreement or to exercise any right or
remedy under this Agreement shall constitute waiver of any such obligation,
right, or remedy or any other obligation, rights, or remedies under this
Agreement.
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(d) Invalidity of Provisions. If any provision of this Agreement
is or becomes invalid, illegal or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions contained herein shall
not be affected thereby.
(e) Further Action. The parties shall execute and deliver all
documents, provide all information, and take or refrain from taking action as
may be necessary or appropriate to achieve the purposes of this Agreement,
including the execution and delivery to the other parties and their Affiliates
and representatives of such powers of attorney or other authorizing
documentation as is reasonably necessary or appropriate in connection with Tax
Contests (or portions thereof) under the control of such other parties in
accordance with Section 9. The Agreement attached hereto as Schedule "E" shall
be executed by the parties specified in that Agreement on the date this
Agreement is executed.
(f) Integration. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter of this Agreement and
supersedes all prior agreements and understandings pertaining thereto. In the
event of any inconsistency between this Agreement and the Distribution Agreement
or any other agreements relating to the transactions contemplated by the
Distribution Agreement, the provisions of this Agreement shall control.
(g) Construction. The language in all parts of this Agreement
shall in all cases be construed according to its fair meaning and shall not be
strictly construed for or against any party.
(h) No Double Recovery; Subrogation. No provision of this
Agreement shall be construed to provide an indemnity or other recovery for any
costs, damages, or other amounts for which the damaged party has been fully
compensated under any other provision of this Agreement or under any other
agreement or action at law or equity. Unless expressly required in this
Agreement, a party shall not be required to exhaust all remedies available under
other agreements or at law or equity before recovering under the remedies
provided in this Agreement. Subject to any limitations provided in this
Agreement (for example, the limitation on filing claims for refund in Section
4.7), the indemnifying party shall be subrogated to all rights of the
indemnified party for recovery from any third party.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
(j) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida applicable to
contracts executed in and to be performed in that State.
(k) Joint and Several Liability. Whenever the Distributing Co. is
liable to the Controlled Co. under this Agreement (a "Distributing Co.
Liability") or the Controlled Co. is liable to the Distributing Co. hereunder (a
"Controlled Co. Liability"), each member of the Distributing Group shall be
jointly and severally liable for a Distributing Co. Liability and each member of
the Controlled Group shall be jointly and severally liable for a Controlled Co.
Liability. This Section
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18.11 shall be binding upon the successors, assigns or transferees of any member
of the applicable Group, and upon any entity which becomes affiliated with the
applicable Group after the date hereof and which would have been a member of the
Distributing Group or Controlled Group if the affiliation existed immediately
after the Distribution Closing Date (a "New Member"). Each of the Distributing
Co. and the Controlled Co. shall cause each existing member and New Member of
the Distributing Group and Controlled Group, as applicable, to execute a
counterpart to this Agreement and agree to the provisions hereof including this
Section 18.11.
(l) General Provision. The Distributing Co. shall be responsible
for preparing and mailing to the shareholders of Distributing Co. the statement
required by Treasury Regulation Section 1.355-5(b).
[Signatures on the Next Page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers as of the date first written above.
AUTONATION, INC.
By: /s/ Xxxxxx Xxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxx Xxxxx
-------------------------------------
Title: V.P.
------------------------------------
ANC RENTAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
-------------------------------------
Title: SVP
------------------------------------
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