EXHIBIT 10.9
MASTER TAX SHARING AGREEMENT
This Master Tax Sharing Agreement ("Agreement"), which amends and restates in
its entirety the prior Tax Sharing Agreement and incorporates all previous
amendments, is effective as of the first day of the consolidated return year
beginning January 1, 2004, by and among Westcorp (FEIN No. 00-0000000)
("Parent") and each of the undersigned ("Subsidiaries").
Westran Services Corp. (00-0000000)
Western Auto Investments (00-0000000)
Western Financial Bank (00-0000000)
WFS Financial Inc (00-0000000)
WFS Financial Auto Loans, Inc. (00-0000000)
WFS Financial Auto Loans 2, Inc. (00-0000000)
WFS Investments, Inc. (00-0000000)
WFS Funding, Inc. (00-0000000)
WFS Receivables Corporation (00-0000000)
WFS Receivables Corporation 2 (00-0000000)
WFS Receivables Corporation 3 (00-0000000)
WestFin Insurance Agency, Inc. (00-0000000)
Western Consumer Services, Inc. (00-0000000)
Western Reconveyance Company, Inc. (00-0000000)
Westhrift Life Insurance Company (00-0000000)
WFS Web Investments (00-0000000)
Western Consumer Products (00-0000000)
The Xxxxxxx Company, The Mortgage Bankers (00-0000000)
WFS Receivables Corporation 4 (FEIN No. 00-0000000)
Western Financial Associate Solutions (FEIN No. 00-0000000)
WHEREAS, the parties (hereinafter sometimes referred to as "Members") hereto are
part of an affiliated group ("Affiliated Group") as defined in Section 1504(a)
of the Internal Revenue Code of 1986, as amended ("IRC"); and
WHEREAS, such Affiliated Group has since December 31, 1986, filed a consolidated
federal income tax return in accordance with IRC Section 1501 and is required to
file consolidated income tax returns for years subsequent to such year of first
consolidated filing; and
WHEREAS, it is the intent and desire of the parties hereto that a method be
established, pursuant to the Interagency Policy Statement on Income Tax
Allocation in a Holding Company Structure (developed by the Office of Thrift
Supervision, the Federal Deposit Insurance Corporation, the Federal Reserve
Board, and the Office of the Comptroller of the Currency) for allocating the
consolidated "federal income tax liability" (as determined under Regulations
Section 1.1502-2) of the Affiliated Group among its Members (as required by IRC
Section 1552 (a)); for reimbursing the Parent for payment of such tax liability;
for compensating any Member for use of its "net operating loss" or "tax credit"
in arriving at such tax liability; and to provide for the allocation and payment
of any refund arising from a carryback of net operating losses or tax credits of
subsequent taxable years.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, the parties hereto agree as follows:
1. A U.S. consolidated federal income tax return shall be filed by the Parent
for the taxable year ended December 31, 2003, and for each subsequent taxable
year in respect of which this Agreement is in effect and for which the
Affiliated Group is required or permitted to file a consolidated federal income
tax return. The Parent and each Subsidiary shall execute and follow such
consents, elections, and other documents that may be required or appropriate for
the proper filing of such returns.
2. The Parent and Subsidiaries have hereby elected to allocate their federal
tax liability during consolidated tax return years pursuant to Regulation
Section 1.1552-1 (a)(1) using method one in
1
conjunction with the election pursuant to Regulation Section 1.1502-33(d)(3),
provided that the basis for allocation of total tax is based on the ratio that
each Member's separate return taxable income for the tax year bears to the sum
of the separate taxable income of each Member. Each Member agrees that the
policy of the Affiliated Group is to compute its taxable income on a separate
return basis. The fixed percentage to be used under Regulation Section 1.1502-33
(d)(3) shall be 100%.
3. The taxable income of the Parent Affiliated Group, which is all the
Members, shall be used to determine the allocation of the tax liability, unless
the use of that number results in an allocation which is unfavorable to the Bank
Affiliated Group, which is all the Members except the Parent, Westran Services
Corporation, WFS Receivables Corporation 2, Western Consumer Products and WFS
Receivables Corporation 4, in which case, the separate tax liability of the
Bank's Affiliated Group shall be allocated among the members of the Bank
Affiliated Group.
4. Each Member shall pay the Parent its allocated consolidated federal income
tax liability under this Agreement. Such payment is expressly limited to the
portion currently due and payable to the Internal Revenue Service ("IRS"). The
timing of such payment shall be consistent with the due date of the payment from
each Member if it had been filed on a separate return basis provided that in no
event shall payment be made until expiration of any extension that may be in
effect as to the Parent. Current payment by any Member to the Parent of that
Member's deferred tax liability is expressly forbidden. Each Member benefiting
from net operating losses and tax credits shall pay to the Parent its added tax
assessment determined under paragraph 2 of the Agreement. The Parent shall pay
to each Member with a net operating loss or tax credit during the taxable year
its allocable share of the total of the additional amounts due from other
Members pursuant to paragraph 2 of this Agreement. Payments for these allocable
shares are to be made no later than 30 days after the date of filing of the
consolidated federal income tax return for such taxable year. Due to
administrative costs of completing cash transfers, deminimus payments by and
among the Members, in the amount of twenty dollars ($20.00) or less, need not be
allocated amongst the Members.
5. Each Member shall determine its share of estimated tax payments to be made
on the projected consolidated federal income tax liability for each year on a
separate return basis. Payment to the Parent shall be made at the time the
estimated payment is due. Such Member will receive credit for such prepayments
in the year end computation under paragraph 4 of this Agreement.
6. If part or all of an unused consolidated net operating loss or tax credit
is allocated to a Member of the Affiliated Group pursuant to Regulations Section
1.1502-79, and it is carried back or forward to a year in which such Member
filed a separate income tax return or a consolidated federal income tax return
with another affiliated group, any refund or reduction in tax liability arising
from the carryback or carryover shall be retained by such Member. (If such
refund or reduction goes to some entity other than the Member, then such entity
shall pay over such amount to the Member.) Notwithstanding the above, the Parent
shall determine whether an election shall be made not to carry back any
consolidated net operating loss arising in a consolidated return year (including
any portion allocated to a Member under Regulations Section 1.1502-79) in
accordance with IRC Section 172(b)(3). Notwithstanding, in keeping with the
separate return basis, Members shall receive payment for any refund of
previously paid taxes it could have received if such losses could have carried
back for a tax refund on a separate Member basis.
7. If the consolidated federal income tax liability is adjusted for any
taxable period, whether by means of amended return, claim for refund, or
after-tax audit by the IRS, the liability of each Member shall be recomputed
under paragraph 2 of this Agreement to give effect to such adjustments. In the
case of a deminimus refund of $10,000 or less, which the Parent shall hold in
Trust for each Member, the Parent shall make payment to each Member for its
share of the refund within thirty (30) days after the refund is received by the
Parent, and in the case of a deminimus increase of up to $10,000 in tax
liability, each Member shall pay to the Parent to be held in Trust for the
Parent its allocable share of such increased tax liability no later than thirty
(30) days after the Parent must make such payment. In the case of a refund
greater than $10,000, which the Parent shall hold in Trust for each Member, the
Parent shall make payment to each Member for its share of the refund within ten
(10) business days after the refund is received by the Parent, and in the case
of an increase greater than $10,000 in tax liability, each Member shall pay to
the Parent to be held in Trust for the Parent its allocable share of such
increased tax liability
2
no later than ten (10) days after the Parent must make such payment. If any
interest is to be paid or received as a result of a consolidated federal income
tax deficiency or refund, such interest shall be allocated to the Members in the
ratio of each Members' change in consolidated federal income tax liability bears
to the total change in tax liability. Any penalty shall be allocated upon such
basis as the Members deems just and proper in view of all applicable
circumstances and which is consistent with the separate return provisions of
this Agreement.
8. The administration of this Agreement as regards the determination of
amounts payable to or from the Subsidiaries hereunder shall be reasonably
determined by independent certified public accountants and, subject to the
specific provisions of this Agreement, in accordance with generally accepted
accounting principles.
9. Notwithstanding any other provision of this Agreement, under no
circumstances shall the amounts payable by a Subsidiary to Parent hereunder in
any taxable year exceed the tax liability currently payable to tax authorities
by any Member on a separate return basis. If under the mechanics of this
Agreement, unreasonable results are obtained, the results can be adjusted using
any reasonable methodology.
10. This Agreement shall apply to the taxable years specified in the preamble
of this Agreement, and all subsequent taxable years, unless the Members agree in
writing to terminate the Agreement. Notwithstanding such termination, this
Agreement shall continue in effect with respect to any payment or refunds due
for all taxable periods prior to termination.
11. This Agreement shall not be assignable by any Member without the prior
written consent of the others.
12. All materials including, but not limited to, returns, supporting
schedules, work papers, correspondence and other documents relating to the
consolidated federal income tax returns filed for a taxable year during which
this Agreement was in effect shall be made available to any Member to the
Agreement during regular business hours for a minimum period equal to applicable
Federal record retention requirements.
13. Any dispute or controversy among the parties arising out of or relating to
any of the terms, conditions or covenants, of this Agreement shall be submitted
to arbitration upon written request of any party, such request to be served upon
all other parties to the Agreement according to the following procedure:
a) All parties to the Agreement shall select one arbitrator to hear and
determine the dispute. If, within 30 days of the above-mentioned
notice, the parties shall fail to appoint such arbitrator, then such
appointment shall be made by the American Arbitration Association.
b) The award rendered by the arbitrator shall be final, conclusive and
binding upon all parties to the Agreement and judgment thereon may
be entered in any court having jurisdiction thereof.
14. Any Member corporation which leaves the consolidated group shall be bound
by this Agreement.
15. The Members hereto specifically recognize that from time to time other
companies may become Members of the Affiliated Group and hereby agree that such
new Members may become parties to this Agreement by executing the master copy of
this Agreement which shall be maintained at the Parent's corporate offices
located at 00 Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000. It will not be necessary for
all the other Members to resign the Agreement but the new Members may simply
sign the existing agreement and it will be effective as if the old Members had
resigned.
16. The Members hereto specifically recognize that from time to time certain
amendments to this Agreement may affect only certain members, for example, in
the case of a name change and hereby
3
agree that such amendments need only be executed by a designee of the Parent and
a designee of the Member or Members directly affected by the amendment.
17. Any alteration, modification, addition, deletion, or other change in the
consolidated income tax return provisions of the Code or the regulations
thereunder shall automatically be applicable to this Agreement.
18. Failure of one or more parties hereto to qualify by meeting the definition
of Members of the "Affiliated Group" shall not operate to terminate this
Agreement with respect to the other parties as long as two or more parties
hereto continue to qualify.
19. This Agreement shall bind and inure to the respective successors and
assigns of the parties hereto; and no assignment shall relieve any party's
obligations hereunder without the written consent of the other parties.
20. This Agreement shall be governed by the laws of the State of California.
21. This Agreement specifically addresses the federal tax liability but does
not make reference to the state tax liability. Similar methodology will be used
for purposes of allocating the state tax liability in states where the group
files on either a combined or consolidated basis. California does not permit the
filing of a consolidated return. However, the Parent and Subsidiaries are
members of a unitary group filing a combined California return, and the results
will be approximately the same as if a consolidated return were filed (with the
exception that the financial institutions pay at a rate higher than that of the
nonfinancial institutions).
IN WITNESS WHEREOF, the parties hereto acknowledge that this Master Tax Sharing
Agreement supersedes all earlier dated agreements and amendments and have caused
their names to be subscribed and executed by their respective authorized
officers on the dates indicated, effective as of the date first written above.
WESTCORP
By: Date: December ___, 2003
____________________________
Xxxxxx X. Xxxxx, President
WESTRAN SERVICES CORPORATION
By: Date: December ___, 2003
____________________________
Xxxxxxx X. Xxxxx, President
WESTERN FINANCIAL BANK
By: Date: December ___, 2003
____________________________
Xxxxxx X. Xxxxx, President
WFS FINANCIAL INC
By: Date: December ___, 2003
____________________________
Xxxxxx X. Xxxxx, President
4
WFS FINANCIAL AUTO LOANS, INC.
By: Date: December ___, 2003
____________________________
Xxxx Xxxxxxxx, President
WFS FINANCIAL AUTO LOANS 2, INC.
By: Date: December ___, 2003
____________________________
Xxxx Xxxxxxxx, President
WFS INVESTMENTS, INC.
By: Date: December ___, 2003
____________________________
Xxx X. Xxxxxxxx, Vice
President
WFS FUNDING, INC.
By: Date: December ___, 2003
____________________________
Xxxx Xxxxxxxx, President
WFS RECEIVABLES CORPORATION
By: Date: December ___, 2003
____________________________
Xxxx Xxxxxxxx, President
WFS RECEIVABLES CORPORATION 2
By: Date: December ___, 2003
____________________________
Xxxx Xxxxxxxx, President
WFS RECEIVABLES CORPORATION 3
By: Date: December ___, 2003
____________________________
Xxxx Xxxxxxxx, President
WESTERN AUTO INVESTMENTS, INC.
By: Date: December ___, 2003
____________________________
Xxxx Xxxxxxxx, President
WESTERN CONSUMER SERVICES, INC.
By: Date: December ___, 2003
____________________________
Xxxxx X. Xxxxx, President
5
WESTERN CONSUMER PRODUCTS
By: Date: December ___, 2003
____________________________
Xxxx Xxxxx, President
WESTERN RECONVEYANCE COMPANY, INC.
By: Date: December ___, 2003
____________________________
J. Xxxxx Xxxxxx, President
WESTFIN INSURANCE AGENCY, INC.
By: Date: December ___, 2003
____________________________
Xxxxxx X. Xxxxx, President
WFS WEB INVESTMENTS
By: Date: December ___, 2003
____________________________
Xxxxxx X. Xxxxx, President
THE XXXXXXX COMPANY, THE MORTGAGE BANKERS
By: Date: December ___, 2003
____________________________
Xxxxxx X. Xxxxx, President
WESTHRIFT LIFE INSURANCE COMPANY
By: Date: December ___, 2003
____________________________
Xxx X. Xxxxxxxx, President
WFS RECEIVABLES CORPORATION 4
By: Date: December ___, 2003
____________________________
Xxxx Xxxxxxxx, President
WESTERN FINANCIAL ASSOCIATE SOLUTIONS
By: Date: December ___, 2003
____________________________
Xxxxx Xxxxxxx, President
6
