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EXHIBIT 6.5
TAX SHARING AGREEMENT
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TAX SHARING AGREEMENT
THIS TAX SHARING AGREEMENT (the "Agreement") is dated as of September 6,
2000, by and among Hispanic Express, Inc. a Delaware corporation ("Hispanic
Express"), Banner Central Finance Company, a Delaware corporation ("Banner
Central Finance"), and Central Financial Acceptance Corporation, a Delaware
corporation ("CFAC").
WHEREAS, concurrently herewith, CFAC has adopted a Plan of Complete
Dissolution, Liquidation and Distribution (the "Plan of Liquidation") pursuant
to which CFAC will completely liquidate and dissolve;
WHEREAS, pursuant to the Plan of Liquidation, CFAC will distribute for
the benefit of its stockholders all of the issued and outstanding shares of
common stock of Hispanic Express and Banner Central Finance, which are CFAC's
wholly-owned first tier subsidiaries (the "Subsidiaries");
WHEREAS, Hispanic Express and Banner Central Finance each have their own
wholly-owned subsidiaries;
WHEREAS, CFAC, Hispanic Express, Banner Central Finance and their
respective subsidiaries have been filing consolidated federal income tax returns
heretofore;
WHEREAS, Hispanic Express and Banner Central Finance will each be the
common parent of separate affiliated groups of corporations subsequent to and as
a result of the liquidation of CFAC; and
WHEREAS, concurrently herewith, CFAC, Hispanic Express and Banner
Central Finance have entered into various additional agreements for the purpose
of defining the ongoing relationship among the parties following the liquidation
of CFAC.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the parties agree as follows:
1. Indemnification; Audits. The Subsidiaries shall indemnify each other
for all income or franchise tax liabilities attributable to members of their
respective groups on a separate return basis for periods during which the
Subsidiaries were included in CFAC's consolidated or unitary income or franchise
tax returns. In the event of any changes to such consolidated or unitary income
or franchise tax returns upon audit by the Internal Revenue Service or a state
tax agency, a recalculation of the tax liability of each Subsidiary and their
respective group members shall be made and appropriate payments (including any
interest and penalties) shall be made by the Subsidiary based on the result of
such audit.
2. Filing of Consolidated Returns; Taxes Due. CFAC or its successor
shall be responsible for filing the consolidated federal, state and other income
tax returns, for making all elections with respect thereto and for the payment
of all taxes due in respect thereof for all periods during which the
Subsidiaries were members of the affiliated group of which CFAC was the common
parent. The parties agree to cooperate with each other in the preparation of all
required tax returns and in connection with the audit of such tax returns
including making
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available to each other all applicable records and other documents pertinent
thereto. Hispanic Express and Banner Central Finance will contribute, and will
cause their respective subsidiaries to contribute, to CFAC or its successor
their shares of the tax liability of the CFAC group (computed on a separate
return basis) within ten (10) business days of receipt of written request
therefor. CFAC or its successor shall not consent to any adjustments that would
increase the tax liability of a Subsidiary attributable to members of their
respective groups on a separate return basis without the consent of such
Subsidiary, provided that CFAC or its successor may consent to such adjustments
if it has the right to and does file a refund claim which preserves the right of
such Subsidiary to contest the adjustment.
3. Use of Accountants. For the purposes of this Agreement, all
computations or recomputations of income tax liability, and all determinations
of payments or repayments, or determinations of any other nature required to be
made by this Agreement, shall be based on the conclusions of the independent
public accountants for CFAC, Hispanic Express and Banner Central Finance.
4. Dispute Resolution. In an effort to resolve informally and amicably
any claim or controversy arising out of or related to the interpretation or
performance of this Agreement without resorting to litigation, the parties shall
first notify the other parties of any difference or dispute hereunder that
requires resolution. The disputing parties shall each designate an employee to
investigate, discuss and seek to settle the matter between them. If such parties
are unable to settle the matter within 30 days after such notification, the
matter shall be submitted to an independent director of each for consideration.
If settlement cannot be reached through their efforts within an additional 30
days, or such longer time period as they shall agree upon, the parties shall
consider arbitration or other alternative means to resolve the dispute. If they
are unable to agree on an alternative dispute resolution mechanism, any party
may initiate legal proceedings to resolve such matter.
5. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement may not be assigned or delegated by any party
without the consent of the other parties.
6. Notices. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing (including telecopier or
similar writing) and shall be deemed to have been given at the time when mailed
in any general or branch office of the United States Postal Service, enclosed in
a registered or certified postpaid envelope, or sent by Federal Express or other
similar overnight courier service, addressed to the appropriate party at 0000
Xxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000, attention: Secretary, or to
such changed address as such party may have fixed by notice or, if given by
telecopier, when such telecopy is transmitted and the appropriate answer-back is
received.
7. Governing Law. This Agreement shall be governed by the laws of the
State of California without giving effect to the principles of conflicts of law.
8. Entire Agreement. This Agreement sets forth the entire agreement
among the parties with respect to its subject matter. This Agreement may not be
amended or otherwise
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modified except in writing duly executed by all of the parties. No waiver of any
provision or breach of this Agreement shall be effective unless such waiver is
in writing and signed by the party against which enforcement of such waiver is
sought. A waiver by any party of any breach or violation of this Agreement shall
not be deemed or construed as a waiver of any subsequent breach or violation
thereof.
9. Severability. Should any part, term or condition hereof be declared
illegal or unenforceable or in conflict with any other law, the validity of the
remaining portions or provisions of this Agreement shall not be affected
thereby, and the illegal or unenforceable portions of the Agreement shall be and
hereby are redrafted to conform with applicable law, while leaving the remaining
portions of this Agreement intact.
10. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same document.
11. Headings. Section headings are for convenience only and do not
control or affect the meaning or interpretation of any terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CENTRAL FINANCIAL ACCEPTANCE CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
Chief Executive Officer
HISPANIC EXPRESS, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
Chief Executive Officer, President
and Secretary
BANNER CENTRAL FINANCE COMPANY
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
Chief Executive Officer, Chief
Financial Officer and Secretary
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