EXHIBIT 10(g)
AGREEMENT CONCERNING TAXES
THIS AGREEMENT (this "Agreement"), dated as of [March] 20, 1990, is by and
between SANTA FE PACIFIC CORPORATION ("SFP") and SANTA FE ENERGY RESOURCES, INC.
("Energy"), and those subsidiaries of Energy signatory hereto (the "Energy
Subsidiaries").
WHEREAS, Energy and the Energy Subsidiaries are members of an affiliated
group of corporations within the meaning of Section 1504 (a) of the Internal
Revenue Code of 1986, as amended (the "Code"), of which SFP is the common parent
(the "SFP Group"), and which files consolidated federal income tax returns as
well as certain consolidated, combined or unitary state tax returns;
WHEREAS, SFP, Energy and the Energy Subsidiaries are parties to the
Agreement for the Allocation of the Consolidated Federal Income Tax Liability
Among the Members of the Santa Fe Pacific Corporation Affiliated Group (the "Tax
Sharing Agreement") as well as the Agreement for the Allocation of the Combined
Arizona Income Tax Liability Among the Members of the Santa Fe Pacific
Corporation Affiliated Group, the Agreement for the Allocation of the Combined
California Franchise Tax Liability Among the Members of the Santa Fe Pacific
Corporation Affiliated Group, the Agreement for the Allocation of the Combined
Illinois Income Tax Liability Among the Members of the Santa Fe Pacific
Corporation Affiliated Group, the Agreement for the Allocation of the Combined
Kansas Income Tax Liability Among the Members of the Santa Fe Pacific
Corporation Affiliated
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Group, the Agreement for the Allocation of the Consolidated New Mexico Income
Tax Liability Among the Members of the Santa Fe Pacific Corporation Affiliated
Group, the Agreement for the Allocation of the Combined Oregon Excise Tax
Liability Among the Members of the Santa Fe Pacific Corporation Affiliated
Group, and the Agreement for the Allocation of the Combined Utah Franchise Tax
Liability Among the Members of the Santa Fe Pacific Corporation Affiliated Group
(the "State Tax Sharing Agreements"); and
WHEREAS, the parties desire to set forth their agreements with regard to
their respective liabilities for federal, state and local taxes as well as their
agreements if Energy and the Energy Subsidiaries cease to be members of the SFP
Group;
NOW THEREFORE, it is agreed as follows:
1. DEFINITIONS.
For all purposes of this Agreement, the terms defined in this Section 1
shall have the meanings assigned to them in this Section 1.
"Code" shall have the meaning specified in the preamble hereof.
"Disaffiliation" means the Energy Companies ceasing to be members of
the SFP Group.
"Disaffiliation Date" means the date Disaffiliation shall occur as
determined in conformity with Treasury Regulation Section 1.1502-76(b).
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"Energy Companies" means Energy, the Energy Subsidiaries, their respective
divisions and their successors and assigns.
"Return" shall mean any SFP Consolidated Return and any State and Local
Return.
"SFP Consolidated Return" means any consolidated federal income tax return
of the SFP Group which includes one or more of the Energy Companies.
"SFP Consolidated Return Year" means any taxable period of the SFP Group
ending on or before the Disaffiliation Date.
"SFP Group" shall have the meaning specified in the preamble hereof.
"SFP Subsidiary" means any corporation (other than an Energy Company) the
stock of which is owned directly or indirectly by SFP and which joins in the
filing of State and Local Returns.
"State and Local Returns" shall have the meaning specified in paragraph 3
of Section 3 hereof.
2. TAX SHARING AGREEMENT TO CONTINUE IN EFFECT.
Except to the extent that it is expressly modified or supplemented herein,
the Tax Sharing Agreement, including Article 8.4 thereof, shall continue in full
force and effect, and the State Tax Sharing Agreements, as modified by SFP's
agreement with regard to tax consolidation in connection with
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the Credit Agreement dated as of December 29, 1989, among SFER and various
banks, shall continue in full force and effect. Consequently, for example, for
taxable periods ending on or before the Disaffiliation Date, payments to SFP or
any Energy Company, as the case may be, shall continue to be made in accordance
with the Tax Sharing Agreement and the State Tax Sharing Agreements. The
provisions of the Tax Sharing Agreement and the State Tax Sharing Agreements
shall fix the rights and obligations of the parties as to the matters covered
thereby whether or not followed for federal income tax or other purposes by the
SFP Group including but not limited to the computation of earnings and profits
for federal income tax purposes.
3. TAX RETURN FILING.
A. FEDERAL RETURNS. If at any time and from time to time SFP so elects,
Energy and each Energy Subsidiary agree to continue to join in the filing of
consolidated federal income tax returns for the calendar year 1989 and for any
subsequent taxable periods of SFP ending before, on or after the Disaffiliation
Date for which the SFP Group is eligible to file a consolidated federal income
tax return including any Energy Company with respect to pre-Disaffiliation
operations. SFP shall continue to prepare and file all consolidated federal
income tax returns which are required to be filed by the SFP Group for all such
taxable periods and pay all taxes due thereon. Such returns shall include all
income, gains, losses, deductions and credits of the Energy Companies. SFP will
make all decisions relating to the preparation and filing of such returns.
Energy and each Energy Subsidiary further agree to file, or join in the filing
of such authorizations, elections, consents and other documents and take such
other actions as may
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be necessary or appropriate in the opinion of SFP to carry out the purposes and
intent of this paragraph A of Section 3. Energy shall furnish SFP at least forty
five (45) days before such return is due (with extensions) with its completed
section of each year's consolidated federal income tax return, prepared in
accordance with instructions from SFP, on the Price Waterhouse Domestic Tax
Management System ("DTMS"). Energy shall also furnish DTMS workpapers and such
other information and documentation as is requested by SFP. Such information
shall have been reviewed and approved by Energy's independent auditors prior to
its submission to SFP. SFP and Energy shall each pay one half of the cost of
such review and approval by Energy's independent auditors, provided, however,
that Energy's portion of such costs shall not exceed $10,000.
B. STATE AND LOCAL RETURNS. For the calendar year 1989 and for any
subsequent taxable periods ending before, on or after the Disaffiliation Date,
SFP will prepare and file all combined, consolidated or unitary state or local
income or franchise tax returns (herein "State and Local Returns") which are
required to be filed and which include the pre-Disaffiliation operations of any
Energy Company and SFP or any SFP subsidiary. SFP will pay all taxes due on such
returns. SFP will timely advise Energy of the inclusion of any Energy Companies
in any State and Local Returns and the states and localities in which such
returns will be filed. Each of the Energy Companies whose tax information is
included in any State and Local Return will evidence its agreement to be
included in such return on the appropriate form and take such other action as
may be appropriate, in the opinion of SFP, to carry out the purposes and intent
of this paragraph B of Section 3. Energy shall furnish SFP with a final copy of
the information necessary for SFP to complete such combined, consolidated or
unitary returns at least forty five (45) days before such returns are due (with
extension).
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4. CARRYOVERS OF ENERGY TAX BENEFITS.
SFP shall notify Energy, after Disaffiliation, of any consolidated
carryover item which may be partially or totally attributed to and carried over
by an Energy Company and will notify such Energy Company of subsequent
adjustments which may effect such carryover item.
5. AUDIT ADJUSTMENTS.
Pursuant to Article 8.4 of the Tax Sharing Agreement, if an Energy Company
ceases to be a member of the SFP Group, the Tax Sharing Agreement shall apply
with respect to any period in which the income of the terminating member is
included in the SFP Consolidated Return. The terminating member shall remain
liable to SFP for payments required under the Tax Sharing Agreement, including,
but not limited to, payments of tax and estimated tax for periods in which the
member's income is included in the SFP Consolidated Return and payments
attributable to adjustments referred to in Article 7.1 of the Tax Sharing
Agreements and to interest and penalties referred to in Articles 5.3 and 7.2 of
the Tax Sharing Agreement. Additionally, the terminating member shall cooperate
and provide reasonable access to books, records and other information needed in
connection with audits, administrative proceedings, litigation and other similar
matters related to periods in which the member was a member of the SFP Group.
However, Article 8.4 of the Tax Sharing Agreement and any similar Article
contained in the State Tax Sharing Agreements is hereby modified so that an
Energy Company that ceases to be a member of the SFP Group shall be entitled to
compensation or reimbursement with respect to any tax refund, overpayment,
benefit or other similar item realized by the SFP Group after such member leaves
the SFP Group, including carrybacks into a return of the SFP Group, which is
attributable to such Energy Company. Nothing
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contained herein or in the Tax Sharing Agreement shall be construed to prevent
Energy and the Energy Subsidiaries from making an election in a
post-Disaffiliation year under Section 172(b)(3)(C) of the Code or under similar
provisions of applicable state law. Any such payments or reimbursements shall be
made in accordance with Article 7.1 and Article 7.3 of the Tax Sharing
Agreement. Notwithstanding the foregoing, Energy and the Energy Subsidiaries
will not be required under the State Tax Sharing Agreements to pay more tax on a
combined or consolidated basis than that which they would have been required to
pay had Energy and the Energy Subsidiaries filed combined or consolidated State
and Local Returns with Energy as the common parent. If for any period in which
an Energy Company was included in the State and Local Returns there is a final
determination that any Energy Company should not have been included in one or
more of such returns, SFP shall refund to such Energy Company any sums paid by
such Energy Company to the SFP Group with respect to such returns which are not
credited against such Energy Company's separate state or local tax liability as
well as any interest that the SFP Group receives from a state or local
government with respect to sums paid by such Energy company to the SFP Group
with respect to such returns which are credited against the SFP Group's separate
state or local tax liability, and such Energy Company shall have no further
rights or obligations with respect to such State and Local Returns, including
the right to compensation, reimbursement or refund with respect to such returns.
6. CONTEST.
If an audit adjustment is proposed or any other claim is made by any
taxing authority with respect to a tax liability of Energy or an Energy
Subsidiary with regard to an SFP Consolidated Return or a State and Local Tax
Return, SFP shall promptly notify Energy of such proposed adjustment or claim
(unless Energy previously was notified directly by the relevant
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tax authority). If Energy so requests and at Energy's expense. SFP shall contest
or shall permit the relevant Energy Company to contest such claim on audit or in
a related administrative or judicial proceeding or by appropriate claim for
refund or credit of taxes, subject, however to SFP's right to control the
prosecution of any such audit or refund claim or related administrative or
judicial proceeding with respect to those matters which could affect SFP's tax
liability, including its liability under this Agreement and, where deemed
necessary by SFP, the relevant entity shall authorize by appropriate powers of
attorney such persons as SFP shall designate to represent such entity with
respect to such audit or refund claim or related administrative or judicial
proceeding.
7. ALLOCATION; INFORMATION AND COOPERATION.
A. ALLOCATION. Federal income taxes will be calculated for the taxable
period ending on the Disaffiliation Date on the basis of allocations made in
accordance with the Tax Sharing Agreement. State and local taxes will be
calculated for such period in accordance with the State Tax Sharing Agreements
with regard to the allocation of state and local tax liabilities where combined,
consolidated or unitary state and local tax returns are filed.
B. INFORMATION AND COOPERATION. From and after the Disaffiliation Date,
Energy shall deliver to SFP, as soon as practicable after SFP's request, such
information and data concerning the pre-Disaffiliation operations of Energy and
the Energy Subsidiaries and make available such knowledgeable employees of
Energy or the Energy Subsidiaries as SFP may reasonably request, including
providing the information and data required by SFP's customary internal tax and
accounting
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procedures, in order to enable SFP to complete and file all tax forms or reports
that it may be required to file with respect to the activities of Energy and the
Energy Subsidiaries for taxable periods ending on, prior to or including the
Disaffiliation Date, to respond to audits by any taxing authorities with respect
to such activities, to prosecute or defend any administrative or judicial
proceeding and to otherwise enable SFP to satisfy its accounting and tax
requirements. From and after the Disaffiliation Date, SFP shall deliver to
Energy as soon as practical after Energy's request, such information and data
concerning any tax attributes which were allocated to Energy or the Energy
Subsidiaries that is reasonably necessary in order to enable Energy to complete
and file all tax forms or reports that it may be required to file with respect
to such activities of Energy and the Energy Subsidiaries from and after the
Disaffiliation Date, to respond to audits by any tax authorities with respect to
such activities, to prosecute or defend claims for taxes in any administrative
or judicial proceeding, and to otherwise enable Energy to satisfy its accounting
and tax requirements. In addition, SFP shall make available to Energy such of
its knowledgeable employees for such purposes.
8. PAYMENTS.
Payments with respect to federal income taxes shall be made in accordance
with the Tax Sharing Agreement. Any interest or penalties for underpayment of
estimated taxes which are allocated to an Energy Company shall be paid no later
than 30 days after billing by SFP. Energy shall pay the portion of the taxes
shown on each State and Local Tax Return which is allocable to the Energy
Companies in accordance with the State Tax Sharing Agreement no later than 30
days after such return
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is filed. All payments in excess of $50,000 to be made hereunder shall be made
in immediately available funds. All payments not made when due hereunder or
under the Tax Sharing Agreement or the State Tax Sharing Agreements shall bear
interest from the due date until paid at a rate per annum equal to one (1)
percentage point above the monthly average of the daily Effective Federal Funds
Rate as stated by The Federal Reserve Bank of New York.
9. NOTICES.
Any notice, request, instruction or other document to be given under this
Agreement by any party to another party shall be in writing, shall be deemed to
have been duly given or delivered personally, or telecopied (receipt confirmed,
with a copy sent by certified or registered mail as set forth in this Agreement)
or, upon receipt (as indicated by return receipt), when sent by certified or
registered mail, postage prepaid, return receipt requested, or by Federal
Express or other overnight delivery service, to the address of the party set
forth below or to such address as the party to whom notice is to be given may
provide in a written notice to each of the other parties to this Agreement:
If to SFP, to:
Santa Fe Pacific Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Westarbeck
Vice President and Tax Counsel
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If to Energy or any Energy Company:
Santa Fe Energy Resources, Inc.
0000 Xxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxx, President
and
Xxxxx X. Xxxxx, General Counsel
10. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of any
successor to the parties hereto as if such successor had been a party to this
agreement; provided, nothing in this agreement is intended to confer any rights
or impose any obligations on any third parties.
11. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Illinois and
shall be construed in accordance with such laws.
12. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
13. TITLES AND SUBTITLES.
The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
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14. AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended and the observance of any term
of this Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only with the written consent of each
of the parties.
15. SEVERABILITY.
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and
the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms to the fullest
extent permitted by law.
16. FURTHER ASSURANCES.
Each of the parties shall, without further consideration, use reasonable
efforts to execute and deliver such additional documents and take such other
action, as the other parties, or any of them may reasonably request to carry out
the intent of this Agreement and the transactions contemplated by this
Agreement.
17. ENTIRE AGREEMENT.
This Agreement, embodies the entire agreement and understanding of the
parties in respect of the actions and transactions contemplated by this
Agreement. There are no restrictions, promises, inducements, representations,
warranties, covenants or undertakings, other than those expressly set forth or
referred to in this Agreement.
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18. SPECIFIC PERFORMANCE.
Each of the parties acknowledges and agrees that in the event of any
breach of this Agreement, the non-breaching party or parties would be
irreparably harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties will waive the defense in any action for
specific performance that a remedy at law would be adequate and that the
parties, in addition to any other remedy to which they may be entitled at law or
in equity, shall be entitled to compel specific performance of this Agreement in
any action instituted in the United States District Court for the Northern
District of Illinois or, in the event said Court would not have jurisdiction for
such action, in any court of the United States or any state thereof having
jurisdiction for such action.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to the
executed by their respective duly authorized officers as of the date first above
written.
SANTA FE PACIFIC CORPORATION
SFELP, Inc.
By: /s/ X. X. XXXXX
X. X. Xxxxx
Its President
SANTA FE ENERGY RESOURCES, INC.
SANTA FE ENERGY PRODUCTS COMPANY
SANTA FE OIL COMPANY
SANTA FE PACIFIC EXPLORATION COMPANY
SANTA FE PACIFIC FUELS COMPANY
SF ENERGY COMPANY OF ARGENTINA
SF ENERGY COMPANY OF BOLIVIA
SF ENERGY COMPANY OF COLOMBIA
SF ENERGY COMPANY OF INDONESIA
SF ENERGY COMPANY OF INDONESIA-BUNYU BLOCK
SF ENERGY COMPANY OF PAKISTAN
SF ENERGY COMPANY OF TUNISIA
By: /s/ X. X. XXXXX
X. X. Xxxxx
Its President
