1
EXHIBIT 10.7
TAX SHARING AGREEMENT
2
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
3
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. 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.
4
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 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
----------------------------------
Xxxx X. Xxxxxx,
Chief Executive Officer
HISPANIC EXPRESS, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx,
Chief Executive Officer, President
and Secretary
BANNER CENTRAL FINANCE COMPANY
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx,
Chief Executive Officer, Chief
Financial Officer and Secretary
