EX-6.5 9 v66242ex6-5.txt EXHIBIT 6.5 1 EXHIBIT 6.5 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 required tax returns and in connection with the audit of such tax returns including making 1 3 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 5480 East Ferguson Drive, Commerce, California, 90022, 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 2 4 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/ Gary M. Cypres -------------------------------------- Gary M. Cypres, Chief Executive Officer HISPANIC EXPRESS, INC. By: /s/ Gary M. Cypres -------------------------------------- Gary M. Cypres, Chief Executive Officer, President and Secretary BANNER CENTRAL FINANCE COMPANY By: /s/ Gary M. Cypres -------------------------------------- Gary M. Cypres, Chief Executive Officer, Chief Financial Officer and Secretary 3