EXHIBIT 10.6
TAX SHARING AGREEMENT
Agreement effective as of the first day of the consolidated return year
beginning January 1, 2001, by and between Transition Leasing Management, Inc.
("Parent"), a Texas corporation, Transition Auto Finance, Inc., a Texas
corporation, ("TAFI"), Transition Auto Finance II, Inc., a Texas corporation
("TAFI-II"), Transition Auto Finance III, Inc., a Texas corporation,
("TAFI-III") and Transition Auto Finance IV, Inc., a Texas corporation
("TAFI-IV").
WITNESSETH
WHEREAS, each of TAFI, TAFI-II, TAFI-II and TAFI-IV are subsidiaries of
Parent and the parties hereto (hereinafter sometimes referred to singularly as a
"Member" and collectively as "Members") are part of an affiliated group
("Affiliated Group") as defined by the Internal Revenue Code of 1986, as amended
("Code"), Section 1504(a); and
WHEREAS, such Affiliated Group filed a consolidated federal income tax
return in accordance with Section 1501 of the Code for tax years ending prior to
July 1, 1994, and is required to file consolidated income tax returns for years
subsequent thereto; and
WHEREAS, it is the intent and desire of the parties hereto that a
method be established 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 Section 1552(a) of the Code) and the
manner in which such liability shall be paid;
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
Parent for each 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. Parent and each subsidiary shall execute and file
such consents, elections, and other documents that may be required or
appropriate for the proper filing of such returns.
2. The Affiliated Group acknowledges that the consolidated federal
income tax liability of such Affiliated Group shall be apportioned among the
Members in accordance with the method set forth in Section 1552(a)(1) of the
Code.
3. In order to compensate Members of the Affiliated Group for the use
of net operating losses or tax credits in arriving at the consolidated federal
income tax liability of the Affiliated Group, the Members of the Affiliated
Group agree to determine and allocate the tax liability of the Affiliated Group
among themselves in the following manner:
Step 1. The consolidated federal income tax liability of the Affiliated Group,
as determined under Regulations Section 1.1502-2 shall be allocated to
the Members in accordance with Regulations Section 1.1552-1 (a)( I);
Step 2. An additional amount shall be allocated to each Member equal to 100
percent of the excess, if any, of (1) the "separate return tax
liability" (as defined below) of such Member for the taxable year, over
(2) the tax liability of such Member in accordance with Step 1 of
paragraph 3 of this Agreement. For purposes of the preceding sentence,
the "separate return tax liability" of each Member for the taxable year
shall be determined as if such Member were filing a separate tax return
l.1552-1(a)(2)(ii). If the computation of a Member's separate return
tax liability as provided herein does not result in a positive amount
such Member's separate return tax liability shall be deemed to be zero.
Step 3. The total of any additional amounts allocated to Members pursuant to
Step 2 of paragraph 3 of this Agreement shall be paid strictly as
provided in paragraph 6, and subject to the principles of paragraph 4,
of this Agreement by such Members to those other Members which had
items of income, deductions, net operating losses, or tax credits to
which such total is attributable pursuant to a consistent method which
reasonably reflects such items of income, deductions, net operating
losses, or tax credits (such consistency and reasonableness to be
determined by the party charged with the administration of this
Agreement in accordance with paragraph 5 of this Agreement). However,
for this purpose, the amounts paid to Members will generally be deemed
consistent and reasonable if paid on a basis equal to highest marginal
corporate tax rate in effect with respect to net operating losses
utilized and 100 percent of tax credits utilized (unless, due to
special circumstances, this would be inequitable) and which is
substantiated by specific records maintained by the Affiliated Group
for such purposes.
Under the principles of Revenue Ruling 66-374, 1966-2 C.B. 427, the
"net operating loss" of a Member is the deduction which such Member would have
had available if it actually filed a separate return for the year and thus would
not include any portion of a Member's net operating loss sustained in a prior or
subsequent year which had been absorbed by the Affiliated Group or by the Member
in computing actual liabilities for prior or subsequent years. Notwithstanding
the preceding sentence, no benefit under Step 3 of paragraph 3 of this Agreement
shall be granted a Member unless the net operating loss is availed in reducing
the consolidated federal income tax liability. The rules stated in the previous
sentences regarding carryover net operating losses will also apply in the
computation of other carryover items such as investment tax credits, foreign tax
credits, and charitable contributions deductions.
4. Regarding the application of the allocation method in paragraph 3 of
this Agreement, the following principles will govern:
(a) Allocation of the consolidated federal income tax liability for the
Affiliated Group under Step 1 of paragraph 3 of this Agreement, shall (in
accordance with Regulations Section 1.1552-1(b)(2)) in the amount allocated to
each Member (i) decrease the earnings and profits of such
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Member and (ii) be treated as a liability of such Member for such amount. The
Members agree that any liability created hereby shall not be satisfied by an
actual payment between Members but rather that the amount shall be treated as
paid through a distribution with respect to stock, a contribution of capital, or
combination thereof, as the case may be, following the principles of Regulation
Section 1.1552-l(b)(2).
(b) Allocations under Step 2 and Step 3 (but not Step 1) to individual
Members of the Affiliated Group will create liabilities and receivables among
such Members under the principles of Regulations Section 1.1552-1(b)(2). The
Members agree that any liability created hereby shall not be satisfied by an
actual payment between Members but rather that the amount shall be treated as
paid through a distribution with respect to stock, a contribution of capital, or
combination thereof, as the case may be, following the principles of Regulation
Section 1.1552-1 (b)(2).
5. The provisions of this Agreement shall be administered by Parent.
6. Parent shall prepare and file, or cause to be prepared and filed,
all consolidated federal income tax returns, and estimated tax returns and all
state, local consolidated combined or unitary income tax returns and estimated
tax returns thereof, Parent shall pay all taxes due with respect to such returns
and shall indemnify and hold harmless each Subsidiary against all liability in
respect thereof. For purposes of state, and local consolidated, combined and
unitary income taxes, principles analogous to those in paragraph 3 of this
Agreement shall be used to determine the liability therefor and payments to be
made.
7. If the consolidated federal income tax liability is adjusted for any
taxable period, whether by means of an amended return, claim for refund, or
after-tax audit by the Internal Revenue Service, the liability of each Member
shall be recomputed under paragraphs 2 and 3 of this Agreement to give effect to
such adjustments. In the case of a refund, the Parent shall be entitled to
retain any such refund, subject only to its obligation under paragraph 6.
8. This Agreement shall apply to the taxable year specified in the
preamble of this Agreement, and all subsequent taxable years and may be
terminated no earlier than the repayment of indebtedness represented by up to
$10,000,000 of TAFI-II's 11% Secured Notes, up to $20,000,000 of TAFI-III's 11%
Secured Notes, up to $10,000,000 of TAFI-IV's 9.0% Secured Redeemable Promissory
Notes and any subsequent financing programs. Notwithstanding such termination,
this Agreement shall continue in effect with respect to any payment or refunds
due for all taxable periods prior to termination.
9. This Agreement constitutes the entire agreement of the Members
concerning the subject matter hereof and supersedes all other agreements,
whether or not written. This Agreement shall not be amended unless the Members
agree in writing thereto and in no event shall any amendment hereto be made
until the indebtedness represented by the Notes described in paragraph 8 or any
subsequent financing programs has been fully paid.
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10. All material 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.
11. All determinations required hereunder shall be made by the
independent accounting firm regularly employed by Parent at the time of such
determination. Such determination shall be binding and conclusive upon the
parties hereto for the purposes hereof.
12. Any Member corporation which leaves the consolidated group shall be
bound by this Agreement with respect to periods during which it was a member of
the consolidated group.
13. 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 Parent's headquarters. It
will not be necessary for all the other Members to resign the Agreement but the
new Member may simply sign the existing Agreement and it will be effective as if
the old Members had resigned.
14. 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 mutatis mutandis.
15. Failure of one or more parties hereto to qualify by meeting the
definition of Member 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 so to qualify.
16. This Agreement shall bind and inure to the respective successors
and assigns of the parties hereto; but no assignment shall relieve any party of
its obligations hereunder.
17. This Agreement shall be governed by the laws of the State of Texas.
(Signature page follows.)
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IN WITNESS WHEREOF, the parties hereto 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.
Date: TRANSITION LEASING MANAGEMENT, INC.,
-------------- a Texas corporation
By:
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Name:
Title:
Date: TRANSITION AUTO FINANCE, INC.,
-------------- a Texas corporation
By:
--------------------------------------
Name:
Title:
Date: TRANSITION AUTO FINANCE II, INC.,
-------------- a Texas corporation
By:
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Name:
Title:
Date: TRANSITION AUTO FINANCE III, INC.,
-------------- a Texas corporation
By:
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Name:
Title:
5
Date: TRANSITION AUTO FINANCE IV , INC.,
-------------- a Texas corporation
By:
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Name:
Title:
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