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10.6(b)
AMENDMENT NO. 1
THIS AMENDMENT NO. 1 (the "Amendment") to the Tax Allocation Agreement
(the "Tax Agreement") dated as of April 28, 1992, by and among Pacific USA
Holdings Corp. (the "Parent") and Pacific American Homes, Inc., Lifescape
Development Corporation, Pacific Southwest Bank, F.S.B. and such of their
affiliates, whether presently existing or hereafter acquired, as are or shall
be part of the "Group" as hereinafter defined (each a "Subsidiary" and
collectively, the "Subsidiaries") is effective as of this ___ day of January,
1998 by and among the Parent and the Subsidiaries
RECITALS
A. The Parent and the Subsidiaries entered into the Tax Agreement
to provide for the treatment of such parties as an affiliated group (the
"Group") within the meaning of Section 1504(a) of the Internal Revenue Code of
1986, as amended (the "Code").
B. The Parent and the Subsidiaries desire to make certain
amendments to the Tax Agreement as set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, the parties hereby agree to amend the Tax Agreement as
follows:
1. Section V. is amended to include as subsection F. the following:
F. Notwithstanding anything to the contrary stated herein, Parent
shall indemnify Subsidiary on an after-tax basis (taking into account,
when realized, any tax detriment or tax benefit to Subsidiary (or any
subsidiary of a Subsidiary) of (i) a payment hereunder or (ii) the
liability to the Internal Revenue Service or state, local or foreign
taxing authority giving rise to such a payment), with respect to and
in the amount of:
(1) Any liability for federal income tax incurred by
Subsidiary or any subsidiary of Subsidiary for any taxable
year with respect to which Subsidiary or such subsidiary is
included in the Parent's consolidated return; provided that
Subsidiary shall have made payments to Parent as provided in
this agreement in complete satisfaction of the Subsidiary's
consolidated tax liability for such taxable year;
(2) Any liability for state or local income tax incurred
by Subsidiary or any subsidiary of Subsidiary with respect to
any jurisdiction for any taxable year with respect to which
Subsidiary or any such subsidiary of Subsidiary participates
in the filing of a consolidated, combined or unitary return
with Parent or any subsidiary of Parent (other than Subsidiary
or any subsidiary of Subsidiary); provided and to the extent
that Subsidiary shall have made payments to Parent as provided
in this agreement in complete satisfaction of Subsidiary's
state and local tax liability for such taxable year;
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(3) Any liability for federal, state or local income tax
incurred by Subsidiary or any subsidiary of Subsidiary to the
extent attributable to any member of the Group (other than
Subsidiary or any of its subsidiaries) and for which
Subsidiary or such subsidiary is liable as a result of being
included in a consolidated return of the Group or as a result
of participating in the filing of a consolidated, combined or
unitary state or local income tax return with Parent or any
subsidiary of Parent (other than Subsidiary or any subsidiary
of Subsidiary); and
(4) Interest, penalties and additions to tax, and costs
and expenses in connection with any liabilities described in
subsections (1), (2) or (3) above.
Parent shall pay to Subsidiary amounts due under subsections (1), (2)
and (3) and subsection (4) (to the extent such amounts are related to amounts
under subsections (1), (2) or (3) above) no later than seven (7) days after the
date of a final determination with respect thereto; provided, however, that no
such indemnification shall be made to the extent that Subsidiary has failed to
make a payment to Parent under the provisions of this agreement.
2. Except as expressly amended by this Amendment, all provisions of the Tax
Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties execute this Amendment as of the date
first written above.
PACIFIC USA HOLDINGS CORP.
By:
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(Name)
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(Title)
PACIFIC AMERICAN HOMES, INC.
By:
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(Name)
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(Title)
LIFESCAPE DEVELOPMENT CORPORATION
By:
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(Name)
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(Title)
PACIFIC SOUTHWEST BANK, F.S.B.
By:
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(Name)
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(Title)
NEWMARK HOMES CORP.
By:
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(Name)
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(Title)
