Exhibit 10.4
TAX SHARING
AGREEMENT
THIS TAX SHARING AGREEMENT (the
“Agreement”) dated as of October 1, 2002, between
Nationwide Life Insurance Company of America, a Pennsylvania
insurance company (“Nationwide Life of America”) and
any corporation that may hereafter be a subsidiary of Nationwide
Life of America and become a party hereto as contemplated by
Section 8 hereof (collectively, the
“Subsidiaries”).
Nationwide Life of America and the Subsidiaries
are members of an affiliated group of corporations as defined in
Section 1504 of the Internal Revenue Code of 1986, as amended (the
“Code”), of which Nationwide Life of America is the
common parent. Such affiliated group of corporations is referred to
herein as the “Group.” The Group will file consolidated
federal income tax returns pursuant to Sections 1501 et seq
of the Code. In addition, members of the Group may be eligible to
file consolidated or combined state or local income or franchise
tax returns. Nationwide Life of America and the Subsidiaries desire
to allocate among themselves the benefits and burdens which arise
from filing of such consolidated or combined tax returns and,
accordingly, hereby agree as follows:
Section 1. Definitions . As used herein,
the following terms shall have the following meanings (all terms
defined in this Section 1 or in other provisions of this Agreement
in the singular shall have the same meanings when used in the
plural and vice versa):
“Includible Corporation” shall mean,
with respect to any entity, any corporation that is a subsidiary of
such entity and that now or in the future qualifies under Section
1501 et seq. of the Code as an includible corporation of an
affiliated group of corporations of which such entity is the
parent.
“Obligor” shall mean, individually,
Nationwide Life of America and each of the Subsidiaries that is or
becomes a party hereto.
“Tax Year” shall mean each year or
other period during which the Subsidiaries are included in a
consolidated federal income tax return with Nationwide Life of
America.
In addition, for purposes of this
Agreement, the “federal income tax liability” or
“federal income tax refund” for any Tax Year shall be
an amount equal to the decrease or increase, respectively, in the
earnings and profits of Nationwide Life of America or any
Subsidiary as calculated under Section 1552(a)(2) and Regulation
1.1502-33(d)(3) (the Percentage Method, using 100%), but without
regard to the provisions of Section 55 of the Code.
Section 2. Representations and Warranties
. Each Obligor hereby represents and warrants to each other Obligor
that:
(a) Such Obligor is a corporation duly
incorporated, validly existing and in good standing under the laws
of the jurisdiction of its incorporation.
(b) None of the execution and delivery of this
Agreement, the consummation of the transaction herein contemplated
or compliance with the terms and provisions hereof will conflict
with or result in a breach of, or require any consent under, the
Charter, Bylaws, Code of Regulations or Articles of Incorporation
of such Obligor, or, to the best knowledge of such Obligor, any
applicable law or regulation, or any order, writ,
1
injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to
which such Obligor is a party or by which such Obligor is bound or
to which such Obligor is subject, or constitute a default under any
such agreement or instrument, or result in the creation or
imposition of any lien on any of the revenues or assets of such
Obligor pursuant to the terms of any such agreement or
instrument.
(c) Such Obligor has all necessary corporate
power and authority to execute, deliver and perform its obligations
under this Agreement; the execution, delivery and performance by
such Obligor of this Agreement have been duly authorized by all
necessary corporate action on its part; and this Agreement has been
duly and validly executed and delivered by such Obligor and
constitutes its legal, valid and binding obligation, enforceable
against such Obligor in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors’ rights and (b) the
application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(d) No authorizations, approvals or consents of
and no filing or registrations with, any governmental or regulatory
authority or agency are necessary for the execution, delivery or
performance by such Obligor of this Agreement or for the validity
or enforceability hereof or such authorizations, approvals,
consents, filings or registrations have been obtained or
made.
Section 3. Consolidated Tax Returns .
Nationwide Life of America will file a consolidated federal income
tax return for all taxable periods that it is eligible to do so.
Nationwide Life of America and the Subsidiaries agree to file such
consents, elections and other documents and to take such other
action as may be necessary or appropriate to carry out the purposes
of this Section 3. Nationwide Life of America will timely pay the
Group’s federal income tax liability for each Tax
Year.
Section 4. Payment of Tax Liability . For
each Tax Year, each Subsidiary will pay to Nationwide Life of
America an amount equal to the federal income tax liability
attributable to such Subsidiary for such Tax Year within sixty (60)
days following the filing of the consolidated federal income tax
return of the Group.
Section 5. Estimated Taxes . If in any
Tax Year Nationwide Life of America believes in good faith that any
Subsidiary will be obligated to make payment to Nationwide Life of
America pursuant to Section 4 hereof in respect of such Tax Year,
such Subsidiary may be required by Nationwide Life of America to
pay such amounts as would be necessary to make estimated payments
in respect of its federal income tax liability, if any, that the
Subsidiary will be obligated to pay under Section 4 hereof.
Nationwide Life of America shall calculate the amount of the
payments to be made by the Subsidiary pursuant to this Section 5 in
a manner consistent with the conventions used by Nationwide Life of
America to compute its estimated tax, and shall provide the
Subsidiary with at least 10 days’ notice of the amount due.
Estimated payments may be required to be paid by the Subsidiary to
Nationwide Life of America, even if no such payment by Nationwide
Life of America is required at that time. Estimated payments to be
made under this Sectio
