EXHIBIT 10.25
TAX SHARING AGREEMENT
Agreement made as of May 1, 1996, between Bank United Corp. ("Parent"), a
Delaware corporation, and Bank United ("Bank"), a Federal savings bank and the
subsidiaries of Bank which are signatories hereto.
Whereas, Parent owns, and may subsequently own indirectly, all of the
issued and outstanding shares of common stock of Bank; Bank is a member of an
affiliated group within the meaning of Section 1504(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), of which Parent is the common parent
corporation (the "Group"); and Parent proposes to include Bank in filing, among
other things, consolidated federal income tax returns for the year beginning
October 1, 1995 and thereafter, as provided herein; and,
Whereas, Parent and Bank desire to establish a method for allocating the
consolidated tax liability of the Group among its members and for reimbursing
Parent for the payment of such tax liability;
Now, therefore, Parent and Bank agree as follows:
1. CONSOLIDATED RETURN ELECTION. If at any time and from time to time
Parent so elects, Bank and each of its direct or indirect subsidiaries which are
includible corporations in the Group (such subsidiaries together with Bank, the
"Subgroup") will join in the filing of (x) consolidated federal income tax
returns for the year beginning October 1, 1995 and for any subsequent taxable
periods for which the Group is required or permitted to file such a return and
(y) any state combined, consolidated or unitary returns which Parent elects to
file which includes a member of the Subgroup and a member of the Group that is
not a member of the Subgroup (a "Unitary Return"). Each member of the Subgroup
agrees to file such consents, elections, and other documents and take such other
action as may be necessary or appropriate to carry out the purpose of this
Section 1. Any period for which any member of the Subgroup is included in a
consolidated federal income tax return filed by Parent or a Unitary Return is
referred to in this Agreement as an "Bank Consolidated Return Year."
2. BANK LIABILITY TO PARENT FOR BANK CONSOLIDATED RETURN YEARS. Within 30
days after the filing of a consolidated federal income tax return or Unitary
Return, for each Bank consolidated Return Year, as the case may be, Bank shall,
subject to paragraph 7 hereof, (x) pay to Parent the amount (if any) of federal
income taxes and/or state income taxes which the Subgroup would have been
actually liable to pay currently for that year, or (y) receive from Parent the
amount (if any) of federal income taxes and/or state income taxes which the
Subgroup would have been entitled to receive as a refund for
that year, in each case, computed as though relevant members of the Subgroup had
filed their own combined, consolidated or unitary return for each Bank
Consolidated Return Year with respect to the relevant tax. For purposes of
determining such hypothetical tax liability of the Subgroup, any net operating
loss or other attribute of such member carried forward as of the date hereof
shall be taken into account as an operating loss or attribute of such member. No
deferred taxes shall be paid by the Subgroup to the Parent. Parent shall not
forgive any deferred tax liability of a member of the Subgroup.
3. INTERIM ESTIMATED PAYMENTS. Prior to the end of any Bank Consolidated
Return Year, Bank shall advance to Parent (within 30 days after receipt of proof
of payment by Parent) amounts necessary to reimburse Parent for that portion of
any estimated federal income tax payments and that portion of any estimated
state income tax payments for jurisdictions in which Unitary Returns are filed
("Unitary Taxes"), in each case, attributable to the inclusion of the members of
the Subgroup in the Group. Any amounts so paid in any year shall operate to
reduce the amount payable to Parent following the end of such year pursuant to
Section 2, and any balance resulting from such reduction shall promptly be
refunded by Parent to Bank.
4. TAX ADJUSTMENTS. In the event of any adjustment to the tax returns of
Parent as filed (by reason of an amended return, claim for refund, or an audit
by the Internal Revenue Service (or appropriate state taxing authority), the
liability and rights to payment of Bank under Sections 2 and 3 shall be
redetermined to give effect to any such adjustment as if it has been made as
part of the original computation of tax liability, and payments between Parent
and Bank shall be made within 30 business days after any such payments are made
or refunds are received, or, in the case of contested proceedings, within 30
business days after a final determination of the contest.
5. BANK SUBSIDIARIES. All subsidiaries of Bank shall be subject to this
Agreement. If at any time Bank acquires or creates one or more subsidiary
corporations that are includable corporations of the Group, they shall be
subject to this Agreement and all references to the Subgroup herein shall
thereafter be interpreted to refer to Bank and such subsidiaries as a group.
6. INTENT AND INTERPRETATION. The liability of the Subgroup as established
under this Agreement shall be computed in a manner consistent with the
provisions of Section 1.1552-1(a) (2) (i) of the Treasury Regulations
promulgated under the Code. The intent of this Agreement is that Bank should
make Parent whole, without more, by reimbursing Parent only to the extent of
Parent' actual federal tax and Unitary Tax expenditure incurred by reason of
inclusion of members of the Subgroup in the Group and that Bank not pay more
than the Subgroup would have paid on a standalone basis.
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7. SUCCESSORS. This Agreement shall be binding on and inure to the benefit
of any successor, by merger, acquisition of assets or otherwise, to any of the
parties hereto (including but not limited to any successor of Parent or any
member of the Subgroup succeeding to the tax attributes of either under Section
381 of the Code), to the same extent as if such successor has been an original
party to this Agreement.
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In witness whereof, each of the parties hereto has executed this Agreement
by authorized officers thereof as of the date first above written.
BANK UNITED CORP.
By: /s/ XXXXXXXX X. XXXXXXX
Name: Xxxxxxxx X. Xxxxxxx
Title:
BANK UNITED
By: /s/ XXXXXXXX X. XXXXXXX
Name: Xxxxxxxx X. Xxxxxxx
Title:
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