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EXHIBIT 10.7
TAX SHARING AGREEMENT
This TAX SHARING AGREEMENT (the "Agreement") is dated as of June 24,
1996 among CENTRAL FINANCIAL ACCEPTANCE CORPORATION, a Delaware corporation
("Central"), BANNER'S CENTRAL ELECTRIC, INC., a California corporation
("Banner"), and BANNER HOLDINGS, INC., a Delaware corporation ("Holdings").
WHEREAS, concurrently herewith, Central, Banner and Holdings have
entered into a Reorganization Agreement dated as of the date hereof pursuant to
which Central will acquire the consumer finance businesses of Holdings and
Banner (the "Reorganization");
WHEREAS, Central has filed a registration statement with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, covering the issuance and sale by Central of up to 2,127,000 shares of
its common stock, par value of $.01 per share (the "Offering");
WHEREAS, concurrently herewith, Central, Banner and Holdings have
entered into various additional agreements for the purpose of defining the
ongoing relationship among the parties following the Reorganization;
WHEREAS, the consumer finance businesses of Central will be included
in the consolidated federal, state and other income tax returns of Holdings
until the consummation of the Offering;
WHEREAS, effective upon the consummation of the Offering, Central and
its subsidiaries (collectively with Central and any predecessor of any
subsidiary, the "Subsidiaries," and individually, a "Subsidiary") will not be
included in Holdings' consolidated federal, state and other income tax returns.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the parties agree as follows:
1. Remittance to Holdings. For all periods during which the
Subsidiaries were included in the consolidated federal, state and other income
tax returns of Holdings, Central shall remit to
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Holdings in a timely manner all taxes that would have been due the respective
governmental entities from each of the Subsidiaries if such Subsidiary had
filed separate income tax returns for the applicable period. For purposes of
this Agreement, the tax which would have been payable by a Subsidiary if it had
filed separate returns shall be computed as if such Subsidiary had filed
separate returns for all years during which such Subsidiary is includible in
the consolidated income tax returns of Holdings.
2. Refunds. Holdings shall remit to each Subsidiary in a timely
manner all refunds, together with interest thereon, that would be due the
Subsidiary if the Subsidiary had filed separate income tax returns.
3. Indemnification; Audits. The Subsidiaries shall indemnify
Holdings for all income tax liabilities for periods during which the
Subsidiaries were included in Holdings' consolidated income tax returns. In
the event of any changes to such consolidated income tax returns upon audit by
the Internal Revenue Service, a recalculation of the tax liability of each
Subsidiary shall be made and appropriate payments (including any interest and
penalties) shall be made by the Subsidiary based on the result of such audit.
4. Filing of Consolidated Returns; Taxes Due. Holdings 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 Holdings is 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 available to each other all applicable records and other
documents pertinent thereto. Holdings shall not consent to any adjustments
which would increase the tax liability of a Subsidiary without the consent of
such Subsidiary, provided that Holdings 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.
5. Use of Accountants. For the purposes of this Agreement, all
computations or recomputations of income tax
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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 Holdings and Central.
6. 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.
7. 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.
8. 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 answerback is received.
9. 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.
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10. 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 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.
11. 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.
12. 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.
13. 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 and President
BANNER'S CENTRAL ELECTRIC, INC.
By /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Chief Executive Officer and President
BANNER HOLDINGS, INC.
By /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Chief Executive Officer and President
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