AMENDED AND
RESTATED
TAX SHARING
AGREEMENT
BETWEEN FORD MOTOR COMPANY
AND
FORD MOTOR CREDIT
COMPANY
THIS TAX SHARING AGREEMENT (this
“Agreement”) dated December 12, 2006, is made and
entered into by Ford Motor Company (“Ford”), a Delaware
corporation, and Ford Motor Credit Company (“Ford
Credit”), a Delaware corporation.
RECITALS
WHEREAS, Ford is the common parent corporation
of an affiliated group of corporations within the meaning of
Section 1504(a) of the Internal Revenue Code of 1986, as amended
(the “Code”) and of combined groups as defined under
similar laws of other jurisdictions and Ford Credit is a member of
such groups; and
WHEREAS, the groups of which Ford is the common
parent and Ford Credit is a member file or intend to file
Consolidated Returns and Combined Returns; and
WHEREAS, Ford and Ford Credit desire to provide
for the allocation of liabilities and procedures to be followed
with respect to certain tax matters arising on and after January 1,
2006.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual
covenants and promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
Section
1. Definitions
1.1.
“Adjusted Tax Asset Balance” means
Ford Credit's aggregate Tax Assets adjusted to reflect only the
portion of such assets that Ford determines to have resulted in an
actual cash tax benefit to the Ford Group.
1.2.
“Audit” includes any audit, assessment
of Taxes, other examination by any Tax Authority, proceeding, or
appeal of such proceeding relating to Taxes, whether administrative
or judicial.
1.3.
“Combined
Group” means, for each Non-Federal Combined
Tax, the group of corporations or other entities that files the
Combined Return.
1.4.
“Combined Return” means any Tax Return
with respect to Non-Federal Taxes filed on a consolidated, combined
(including nexus combination, worldwide combination, domestic
combination, line of business combination or any other form of
combination) or unitary basis wherein Ford Credit joins in the
filing of such Tax Return (for any taxable period or portion
thereof) with Ford or one or more Ford Affiliates.
1.5.
“Consolidated Group” means an
affiliated group of corporations within the meaning of Section
1504(a) of the Code of which Ford is the common parent and that
files a consolidated return.
1.6.
“Consolidated Return” means any Tax
Return with respect to Federal Income Taxes filed on a consolidated
basis wherein Ford Credit joins in the filing of such Tax Return
(for any taxable period or portion thereof) with Ford or one or
more Ford Affiliates.
1.7.
“Contingent Tax Liability" means
Ford's estimate of an expected Redetermination Amount.
1.8.
“Estimated Tax Installment Date” means
the installment due dates prescribed in Section 6655(c) of the Code
(presently April 15, June 15 , September 15 and December
15).
1.9.
“Federal Income Tax” means any
tax imposed under Subtitle A of the Code (including the taxes
imposed by Sections 11, 55, 59A, and 1201(a) of the Code) and any
other income based United States Federal Tax which is hereinafter
imposed upon corporations.
1.10.
“Federal Tax” means any Tax imposed or
required to be withheld by any Tax Authority of the United
States.
1.11.
“Final Determination” means any of (a)
the final resolution of any Tax (or other matter) for a taxable
period that, under applicable law, is not subject to further
appeal, review or modification through proceedings or otherwise,
including (1) by the expiration of a statute of limitations (giving
effect to any extension, waiver or mitigation thereof) or a period
for the filing of claims for refunds, amending Tax
Returns, appealing from adverse determinations, or recovering any
refund (including by offset), (2) by a decision, judgment, decree,
or other order by a court of competent jurisdiction, which has
become final and unappealable, (3) by a closing agreement or an
accepted offer in compromise under Section 7121 or 7122 of the
Code, or comparable agreements under laws of other jurisdictions,
(4) by execution of an Internal Revenue Service Form 870AD, or by a
comparable form under the laws of other jurisdictions (excluding,
however, with respect to a particular Tax Item for a particular
taxable period any such form that reserves (whether by its terms or
by operation of law) the right of the taxpayer to file a claim for
refund and/or the right of the Taxing Authority to assert a further
deficiency with respect to such Tax Item for such period), or (5)
by any allowance of a refund or credit, but only after the
expiration of all periods during which such refund or credit may be
recovered (including by way of offset) or (b) the payment of Tax by
any member of the Consolidated Group or Combined Group with respect
to any Tax Item disallowed or adjusted by a Taxing Authority
provided that Ford determines that no action should be taken to
recoup such payment.
1.12.
“Ford Credit Combined Tax Liability”
means, with respect to any taxable period, Ford Credit's liability
for Non-Federal Combined Taxes as determined under Section 3.3 of
this Agreement.
1.13.
“Ford Credit Federal Income Tax
Liability” means, with respect to any taxable
period, Ford Credit's liability for Federal Income Taxes as
determined under Section 3.2 of this Agreement.
1.14.
“Ford Affiliate” means any corporation
or other entity directly or indirectly controlled by Ford, but
excluding Ford Credit.
1.15.
“Ford Group” means the affiliated
group of corporations as defined in Section
1504(a) of the
Code, or similar group of entities as defined under corresponding
provisions of the laws of other jurisdictions, of which Ford is the
common parent, and any corporation or other entity which may be,
may have been or may become a member of such group from time to
time, but excluding Ford Credit.
1.16.
“Non-Federal Combined Tax” means any
Non-Federal Tax with respect to which a Combined Return is
filed.
1.17.
“Non-Federal Separate Tax” means any
Non-Federal Tax other than a Non-Federal Combined Tax.
1.18 .
“Non-Federal Tax”
means any Tax other than a Federal Tax.
1.19.
“Pro Forma Ford Credit Combined
Return” means a pro forma Non-Federal Combined Tax
return or other schedule prepared pursuant to Section 3.3 of this
Agreement.
1.20.
“Pro Forma Ford Credit Federal Return”
means a pro forma Federal Income Tax return or other schedule
prepared pursuant to Section 3.2 of this Agreement.
1.21.
“Redetermination Amount” means, with
respect to any Tax for any taxable period, the amount determined
under Section 4.7 of this Agreement.
1.22.
“Tax” means any charges, fees, levies,
imposts, duties, or other assessments of a similar nature,
including income, alternative or add-on minimum, gross receipts,
profits, lease, service, service use, wage, wage withholding,
employment, workers compensation, business occupation, occupation,
premiums, environmental, estimated, excise, employment, sales, use,
transfer, license, payroll, franchise, severance, stamp,
collection, windfall profits, withholding, social security,
unemployment, disability, ad valorem, highway use, commercial rent,
capital stock, paid up capital, recording, registration, property,
real property gains, value added, business license, customs duties,
or other tax or governmental fee of any kind whatsoever, imposed or
required to be withheld by any Tax Authority.
1.23.
“Tax Asset” means any Tax Item that
could reduce a Tax, including a net operating loss, net capital
loss, investment tax credit, foreign tax credit, charitable
deduction or credit related to alternative minimum tax.
1.24.
“Tax Authority” means any governmental
authority or any subdivision, agency, commission or authority
thereof or any quasi-governmental or private body having
jurisdiction over the assessment, determination, collection or
Imposition of any Tax (including the Internal Revenue
Service).
1.25.
"Tax Item” means any item of income, gain,
loss, deduction or credit, or other attribute than may have the
effect of increasing or decreasing any Tax.
1.26.
“Tax Return” means any return, report,
schedule, certificate, form or similar statement or document
(including any related or supporting information or schedule
attached thereto and any information return, amended tax return,
claim for refund or declaration of estimated tax) required to be
supplied to, or flied with, a Tax Authority in connection with the
determination, assessment or collection of any Tax or the
administration of any laws, regulations or administrative
requirements relating to any Tax.
Section
2. In General
2.1.
Preparation and Filing of Tax
Returns. Ford shall have the sole and exclusive
responsibility for the preparation and filing of all Consolidated
Returns and all Combined Returns. Ford shall have the exclusive
right, in its sole discretion, with respect to any such Tax Return
to determine (a) the manner in which such Tax Return shall be
prepared and filed, including the elections, methods of accounting,
positions, conventions and principles of taxation to be used and
the manner in which any Tax Item shall be reported, (b) whether any
extensions may be requested, (c) the elections that will be made by
Ford, any Ford Affiliate and Ford Credit in such Tax Return, (d)
whether any amended Tax Returns shall be flied, (e) whether any
claims for refund shall be made, (f) whether any refunds shall be
paid by way of refund or credited against any liability for the
related Tax, and (g) whether to retain outside specialists to
prepare such Tax Return, whom to retain for such p
