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EXHIBIT 10(m)
FUND AMERICAN ENTERPRISES HOLDINGS, INC.
_____________________________________________
FEDERAL TAX SHARING AGREEMENT
Dated as of January 1, 1991
And Effective For Taxable Years Beginning After December 31, 1990
_____________________________________________
SOURCE ONE MORTGAGE SERVICES CORPORATION
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FEDERAL TAX SHARING AGREEMENT
Federal Tax Sharing Agreement ("Agreement"), dated as of January 1,
1991, and effective for taxable years beginning after December 31, 1990, by and
among Fund American Enterprises Holdings, Inc., a Delaware corporation
("XXXX"), and Source One Mortgage Services Corporation, a Delaware corporation
("Source One").
Whereas, the parties to this Agreement are part of the XXXX affiliated
group (the "XXXX Group") as defined in 1504(a) of the Internal Revenue Code of
1986, as amended (the "Code");
Whereas, the XXXX Group files consolidated Federal income tax returns;
Whereas, Source One is a wholly-owned subsidiary of XXXX and, as a
member of the XXXX Group, is included in the consolidated Federal income tax
return filed by XXXX on behalf of the XXXX Group; and
Whereas, the parties to this Agreement have determined that execution
of this Agreement setting forth the methodology and procedures for allocating
the XXXX Group's consolidated Federal tax liability (or benefit) to and amongst
XXXX and its affiliates is in the interest of each party to this Agreement;
Now therefore, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1. Source One Subsidiaries Incorporated Into This Agreement: Source One,
by entering into this Agreement, agrees to bind each of its current
subsidiaries (together with Source One, the "Source One Group"), jointly and
severally, to all the terms of this Agreement. If at any time any member of
the Source One Group acquires or creates one or more subsidiary corporations
which would be an includible corporation or corporations, as defined in Code
1504, in an affiliated group of which Source One (or its successor) is a common
parent, this Agreement and all references to the Source One Group shall
thereafter be interpreted to include such subsidiary corporations.
2. XXXX Responsibility for Filing U.S. Federal Income Tax Return: A Form
1120, U.S. Federal Income Tax Return ("Return") shall be filed with the
Internal Revenue Service ("IRS") by XXXX on behalf of the XXXX Group on a
consolidated basis. Such Return will be filed by XXXX for each taxable year
during which this Agreement is in effect and for which Source One and the other
members of the Source One Group remain members of the XXXX Group, provided such
members are required to file such a Return.
XXXX shall execute and file such Returns, as well as all consents,
elections, and other documents which may be required or appropriate, and each
member of the Source One Group shall be bound by such consents, elections, and
the terms of such other documents. XXXX shall promptly notify Source One of
all such consents, elections, and other terms as they relate to the Source One
Group prior to either the inclusion in the filed Return and/or separate mailing
to the IRS, as the case may be.
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If any penalties, including interest, for failure to file are imposed
on the XXXX Group by the IRS pursuant to Code 6651(a) as a result of XXXX'x
failure to file in a timely manner, XXXX shall bear the entire cost of all such
penalties and interest, provided such penalties and interest were incurred
solely by reason of XXXX'x failure in this regard and not due to any failure on
the part of Source One or the Source One Group.
3. XXXX Responsibility for Paying Federal Income Taxes to IRS: On behalf
of the XXXX Group, XXXX shall be responsible to make all required estimated
payments to the IRS required under Code 6655. Consequently, XXXX shall bear
the entire cost of any underpayment penalties, plus interest, if such penalties
and interest were incurred solely by reason of XXXX'x failure in this regard
and not due to any failure on the part of Source One or the Source One Group.
In addition to the responsibility for making estimated payments on
behalf of the XXXX Group, XXXX shall bear the entire cost of any penalties and
interest which may be imposed by the IRS pursuant to Code 6651(b) for failure
to pay in a timely manner, provided such penalties are solely as a result of
XXXX'x failure to make required payments in a timely manner and not due to any
failure on the part of Source One or the Source One Group.
4. Calculation of Source One Group Amounts to Appear in XXXX Group Return:
Source One shall, on behalf of the Source One Group, compute for each calendar
quarter each item of Federal taxable income, deduction, gain, loss, credit,
carryforward, carryback and tax liability or benefit (collectively, "Tax
Items") for the Source One Group as if the Source One Group itself is a
separate affiliated group as defined in Code 1504(a), totally unrelated to any
other members of the XXXX Group. All calculations of such Tax Items shall be
made pursuant to the provisions of the Code and Treasury Regulations in effect
for the taxable period to which the calculations relate, and shall be
consistent with all Federal tax elections made or expected to be made by XXXX
in the Return incorporating such quarterly period.
Source One acknowledges that XXXX shall have the right to make any and
all Federal tax elections which may be necessary or appropriate for calculating
the Federal taxable income of the XXXX Group, including elections which affect
the Tax Items of any member of the Source One Group. Any question regarding
the interpretation or applicability of any provision of the Code and/or
Treasury Regulations regarding the entitlement to make such elections shall be
left to reasonable resolution by XXXX, taking into consideration elections
normally made in the respective member's industry or industries, as the case
may be. Source One shall provide to XXXX, within fifteen days following each
calendar quarter-end, schedules which present the calculation of the Source One
Group's Tax Items for the current year-to-date period, as such amounts would be
actually included in the Return to be filed by XXXX.
5. Calculation of Source One Group Amounts Due To/From XXXX: Source One
shall be liable to pay to XXXX or receive from XXXX, as the case may be, the
Source One Group's share of the XXXX Group's consolidated Federal income tax
liability (or benefit). Notwithstanding the provisions of Section 4 above,
when calculating the amount of Federal tax due to or from XXXX for a taxable
period, the Source One Group shall be entitled to make, solely on a
hypothetical basis, any elections it would have been entitled to make had it
been a separate affiliated group as defined in Code 1504(a), totally unrelated
to any other members of the XXXX Group. In the event Source One chooses to
make a hypothetical election(s), different than the actual election(s) made by
XXXX, Source One shall provide to XXXX within fifteen days following each
calendar quarter-end:
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(i) Schedules which present the calculation of the Source One
Group's Tax Items for the current year-to-date period, as such amounts would be
included in a hypothetical Form 1120, U.S. Federal Income Tax Return the
"Source One Group Return"), which would be completed by Source One on behalf of
the Source One Group if Source One was not a member of the XXXX Group. Such
Source One Group Returns will utilize the hypothetical elections made by the
Source One Group described above in this Section 5.
(ii) Schedules reconciling the differences between the Source One
Group's Tax Items for the current year-to-date period, as such amounts would be
included in (a) the actual Return to be filed by XXXX and (b) the Source One
Group Return.
All calculations of such Tax Items included in the Source One Group
Return shall be made pursuant to the provisions of the Code and Treasury
Regulations in effect for the taxable period to which the calculations relate.
6. Tax Payments/Refunds: Payments of the Source One Group's periodic
Federal tax liability (or benefit) calculated pursuant to Section 5 shall be
made to XXXX (or to Source One, as the case may be) at the time, and in the
amounts, such payments would be required to be made to (or received from) the
IRS as if Source One is a separate affiliated group filing its own tax
return(s). Underpayment (if any) of those amounts due XXXX shall be treated as
an underpayment of tax and shall bear penalties and interest at the rate(s)
prescribed in the relevant provisions of the Code, Treasury Regulations or IRS
pronouncements. Payments due Source One (if any) from XXXX will likewise bear
interest unless paid within 45 days after the relevant Source One filing/notice
date making demand for such refund.
Source One and XXXX acknowledge that the payments Source One may be
required to make to XXXX (or receive from XXXX) in any particular taxable year
pursuant to this Agreement might be greater or less than the tax liability
which would be allocated to it under one or more of the Federal tax allocation
methods prescribed under Code 1552 and Treasury Regulation 1.1552-1 used for
purposes of determining a separate member's earnings and profits ("E&P").
Source One shall furnish to XXXX in a timely manner a calculation of Source
One's annual E&P calculated in accordance with the rules of Treasury
Regulation 1.1502-33 and 1.1502-33T.
7. Adjustments Resulting from Tax Audits: XXXX, as agent for all members
of the XXXX Group, shall have absolute authority to enter into settlement
agreements, make offers in compromise, file protest letters, make appeals,
pursue litigation and take what other remedial actions are available to XXXX
and deemed appropriate in defending any and all Federal tax controversies
affecting any member(s) of the XXXX Group.
Notwithstanding the above, XXXX shall inform Source One in a timely
manner of the commencement of any audit by the IRS and shall, when feasible,
consult with Source One concerning the appropriate actions or positions to be
taken throughout the course of any audits as they relate to tax issues
attributable solely to the operations and financial results of Source One
included in a Return. In the event such adjustments are made to any Source One
Group Tax Items by reason of an amended return, claim for refund, or audit
conducted by the IRS, the appropriate Source One Group Returns shall be
redetermined to give effect to such adjustments.
In the event the adjustments require payment(s) from Source One on a
hypothetical basis, to XXXX, Source One shall make such payments to XXXX no
later than the time XXXX is, or would be, required to make such payment(s) to
the IRS. Any payment Source One must make to
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XXXX shall include an amount equal to interest and any other addition to tax
imposed on account of such adjustment. However, nothing in thisAgreement
prohibits Source One from paying XXXX an amount constituting full payment of an
asserted tax deficiency - which is solely attributable to Source One - but
which XXXX is not in turn remitting to the IRS due to XXXX'x decision to
protest such proposed deficiency either at the IRS Appeals Division or Tax
Court, as the case may be. Such prepayment (if any) by Source One shall not be
treated as a deposit in the nature ofa bond but shall be a payment of a tax
deficiency which tolls the further accrual of interest on such proposed tax
deficiency attributable to the Source One Group.
Conversely, in the event the adjustments require payment(s) from XXXX
to Source One, any payments due hereunder shall be made by XXXX as required to
be made by the IRS. Such payment to Source One shall include any interest owed
by XXXX on account of said IRS adjustment attributable to Source One.
8. Interpretations and Dispute Resolution: Interpretations and
resolutions of disputes arising from this policy shall be settled by the Chief
Financial Officer of XXXX.
9. Liability; Indemnification: Each party to this Agreement shall be
liable to the other(s) for any liability, damages or expenses of the other
arising out of the gross negligence or willful malfeasance of the party or any
of its directors, officers, employees or affiliates in fulfilling the
obligations of this Agreement.
10. Termination: This Agreement will continue to remain in effect until
such time as the Agreement is terminated. The Agreement may be terminated by
either party upon 30 days notice.
11. Notices: All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally or sent by first
class mail to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to Source One: Source One Mortgage Services Corporation
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000-0000
Attention: Chief Financial Officer
(b) if to XXXX: Fund American Enterprises Holdings, Inc.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
12. Sole Agreement: This Agreement constitutes the sole and only agreement
of the parties hereto relating to its subject and correctly sets forth the
rights, duties and obligations of each party to the other(s) as of its date.
Any prior agreements, promises, negotiations or representations not expressly
set forth in this Agreement are of no force or effect.
13. Waiver or Modification: No waiver or modification of this Agreement
shall be effective unless reduced to a written document signed by a duly
authorized representative of each party hereto.
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14. Law of New Hampshire: This Agreement shall be governed by and
construed in accordance with the laws of the State of New Hampshire, without
regard to principles of conflicts of law.
15. Assignment and Delegation: XXXX shall not have the right to sell,
transfer, delegate or assign this Agreement or its rights or duties to any
person, firm or corporation at any time and any proposed assignee shall not
acquire any rights nor assume any obligations unless the written consent of the
other party(ies) to this Agreement is given before such assignment or
delegation takes place. Subject to this Section, this Agreement binds and
inures to the benefit of the parties and their successors and assigns. Any
attempted assignment not in compliance with this Section shall be null and
void.
16. Confidentiality of Reports and Records: Except as expressly authorized
in this Agreement or directed by the other party in writing, Source One and
XXXX shall keep confidential the records and other information obtained by
reason of this Agreement.
17. Calendar Days: All references in this Agreement to "days" shall mean
calendar, not business, days.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
FUND AMERICAN ENTERPRISES HOLDINGS, INC.
By:_______________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President & Chief Financial
Officer
SOURCE ONE MORTGAGE SERVICES CORPORATION
By: _______________________
Name: Xxxxxxx X. Xxxx
Title: Vice President
