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EXHIBIT 10.5
CONTRIBUTION AGREEMENT
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CONTRIBUTION AGREEMENT
(HISPANIC EXPRESS, INC.)
This CONTRIBUTION AGREEMENT ("Agreement") is dated as of September
6, 2000 by and between CENTRAL FINANCIAL ACCEPTANCE CORPORATION, a Delaware
corporation ("CFAC") and HISPANIC EXPRESS, INC., a Delaware corporation
("Hispanic Express").
WHEREAS, concurrently herewith, CFAC has adopted a Plan of Complete
Dissolution, Liquidation and Distribution (the "Plan of Liquidation") pursuant
to which CFAC will be completely liquidated and dissolved;
WHEREAS, pursuant to the Plan of Liquidation, CFAC will distribute
for the benefit of its stockholders all of the issued and outstanding shares of
Hispanic Express and Banner Central Finance Company, which are CFAC's
wholly-owned first tier subsidiaries;
WHEREAS, CFAC owns all of the issued and outstanding capital stock
of (i) BCE Properties, Inc., a California corporation, (ii) Central Consumer
Finance Company, a California corporation; and (iii) Centravel, Inc., a
California corporation (collectively, the "Contributed Subsidiaries" and, with
respect to the shares thereof, the "Contributed Shares"); and
WHEREAS, CFAC desires to contribute to Hispanic Express the
Contributed Shares, and Hispanic Express desires to assume the obligations and
liabilities of CFAC and indemnify CFAC and its stockholders, all upon the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the parties agree as follows:
1. Contribution by CFAC to Hispanic Express. CFAC hereby contributes,
conveys, assigns and delivers the Contributed Shares to Hispanic Express
in accordance with Section 351 of the Internal Revenue Code of 1986, as
amended, and Hispanic Express hereby accepts the Contributed Shares from
CFAC.
2. Contribution of Additional Assets by CFAC to Hispanic Express. Prior to
or upon the dissolution and liquidation of CFAC under the Plan of
Liquidation, CFAC shall have the right to contribute, convey, assign and
deliver to Hispanic Express, and Hispanic Express shall accept from
CFAC, such additional CFAC assets as CFAC may choose at CFAC's sole and
exclusive discretion.
3. Assumption of Obligations and Liabilities. Hispanic Express hereby
assumes all obligations and liabilities of CFAC, whether past, present
or future, known or unknown, contingent or otherwise, and of any kind or
character.
4. Indemnification. Hispanic Express shall indemnify and hold harmless CFAC
against and in respect of any damages, claims, demands, debts,
obligations, losses, liabilities, costs and expenses (collectively,
"Damages") incurred or suffered by CFAC that arise out of,
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relate to or are connected with any breach of any provision of this
Agreement By Hispanic Express.
(a) Hispanic Express shall indemnify and hold harmless each person or
entity that is a stockholder of CFAC on the date that CFAC
dissolves and liquidates under the Plan of Liquidation against
and in respect of any Damages incurred or suffered by such person
or entity (i) that arise out of, relate to or are connected with
any breach of any provision of this Agreement By Hispanic Express
or (ii) because such person or entity, by virtue of being a
stockholder of CFAC on the date that CFAC dissolves and
liquidates under the Plan of Liquidation, is or becomes liable
for any Damages that would have otherwise been incurred or
suffered by CFAC if CFAC did not dissolve and liquidate under the
Plan of Liquidation.
5. Representations and Warranties of CFAC. CFAC represents and warrants to
Hispanic Express as follows:
(a) Title to Contributed Shares. The Contributed Shares have been
duly authorized and validly issued, are fully paid and
non-assessable and are owned of record, beneficially and directly
by CFAC, free and clear of any security interests, liens,
encumbrances, equities or claims, except for those that may exist
under the terms and conditions of that certain Pledge Agreement
dated August 11, 2000 between CFAC and Union Bank of California,
N.A. Upon delivery of the stock certificates representing the
Contributed Shares to Hispanic Express, valid and marketable
title to the Contributed Shares will pass free and clear of any
security interests, liens, encumbrances, equities or claims,
except as described in the immediately preceding sentence.
(b) Good Standing. Each of the Contributed Subsidiaries is a
corporation duly organized, validly existing and in good standing
under its jurisdiction of incorporation, has full power and
authority to own, lease and operate its properties and assets and
to conduct its business as now being conducted, and is duly
qualified or licensed to do business as a foreign corporation,
and is in good standing, in all jurisdictions where the character
of the properties it owns, leases or operates, or the conduct of
its business, requires such qualification or licensing.
(c) Permits. CFAC and each of the Contributed Subsidiaries holds all
permits, licenses and franchises necessary for or material to the
current use, occupancy or operation of their respective
businesses; and no notice of violation of any applicable permit,
license or franchise or other similar law binding on CFAC or any
of the Contributed Subsidiaries with respect to their respective
businesses has been received.
(d) Governmental Authorizations. No governmental authorization,
approval, order, license, permit, franchise, or consent and no
registration, declaration or filing by CFAC or any of the
Contributed Subsidiaries with any governmental authority is
required in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby.
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(e) Due Authorization. CFAC has full legal right, power and
authority, and all approvals required by law, to enter into this
Agreement, to sell, assign, transfer and deliver the Contributed
Shares in the manner provided in this Agreement and to perform
all of its obligations hereunder. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action. This Agreement constitutes the legal,
valid and binding obligation of CFAC, enforceable in accordance
with its terms.
6. Deliveries of CFAC. Concurrently with the execution of this Agreement,
CFAC is delivering to Hispanic Express the stock certificates
representing the Contributed Shares, duly endorsed in blank or
accompanied by proper instruments of transfer duly signed by CFAC and
accompanied by necessary transfer tax stamps or funds therefor.
7. Further Assurances. CFAC agrees at any time and from time to time, upon
the request of Hispanic Express, to do, execute, acknowledge and
deliver, or to cause to be done, executed, acknowledged and delivered,
all such further acts, assignments, transfers, powers of attorney and
assurances as may be required for the better assigning, transferring,
conveying, and confirming to Hispanic Express, or to its successors and
assigns, of any or all of the Contributed Shares and to carry out the
terms and conditions of this Agreement.
8. Survival of Representations and Warranties. The representations and
warranties contained herein shall survive the execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby and remain in full force and effect, notwithstanding any
investigation at any time made by or on behalf of the parties.
9. 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.
10. 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 5480 East Ferguson Drive, Commerce, California 90022 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.
11. 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.
12. 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
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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.
13. 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.
14. 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.
15. 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.
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IN WITNESS WHEREOF the parties have executed this Agreement as of
the date first set forth above.
CENTRAL FINANCIAL ACCEPTANCE CORPORATION
By: /s/ Gary M. Cypres
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Chief Executive Officer
HISPANIC EXPRESS, INC.
By: /s/ Gary M. Cypre s
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Chief Executive Officer, President
and Secretary