AMENDMENT NO. 2
TO
TAX SHARING AGREEMENT
Amendment No. 2 to Tax Sharing Agreement (this "Amendment") made as of the
23rd day of April, 1999 by and among Triarc Companies, Inc., a Delaware
corporation ("TRI"), Triarc Consumer Products Group, LLC ("TCPG"), a Delaware
limited liability company and Triarc Beverage Holdings Corp. ("TBHC"), Snapple
Beverage Corp. ("Snapple"), Mistic Brands, Inc. ("Mistic"), Cable Car Beverage
Corp. ("Cable Car"), RC/Arby's Corporation ("RCAC"), Royal Crown Company, Inc.
("RCCI"), Arby's, Inc. ("Arby's"), each a Delaware corporation, and ARHC, LLC
("ARHC"), a Delaware limited liability company.
Each of the parties hereto is a party to a Tax Sharing Agreement made as of
February 25, 1999, as amended by Amendment Xx. 0 xxxxxxx xxxx xx xx Xxxxx 00,
0000 (xx so amended, the "Tax Sharing Agreement"). Capitalized terms used herein
and not otherwise defined have the meanings given to them in the Tax Sharing
Agreement.
Each of the parties to the Tax Sharing Agreement have determined that it
would be in its best interest to amend the terms thereof to the extent set forth
in this Amendment.
Accordingly, the parties to this Amendment agree as follows:
1. Amendment to the Tax Sharing Agreement. Section 2 of the Tax Sharing
Agreement is hereby amended and restated to read in its entirety to read as
follows:
"2. Computation of Tax Liability of the TCPG Group
For the first taxable year ending after the Effective Date, and for
each subsequent taxable year of the TRI Group for which this Agreement
remains in effect, TCPG shall pay or cause to be paid to TRI (in the
manner provided in Section 1.4 hereof), on behalf of itself and any
members of the TCPG Group, an amount equal to the federal income tax
liability that would have been payable by the members of the TCPG Group
for such year,
determined as if TCPG had filed a separate, consolidated federal income
tax return for such year and all prior years for which the Agreement
was in effect on behalf of itself and all TCPG Subsidiaries that were
includible corporations (within the meaning of section 1504(a)(1) of
the Code) in the TCPG Group for such year, computed in accordance with
the actual elections, conventions and other determinations with respect
to the TCPG Group reflected in the Consolidated Return filed by TRI;
provided, however, that (i) any item of income or loss of a member of
the TCPG Group that is treated as deferred on the Consolidated Return
filed by TRI (e.g., gain or loss on an intercompany transaction between
a member of the TCPG Group and TRI that is deferred pursuant to section
1.1502-13 or 1.1502-13T of the regulations) shall be taken into account
in computing taxable income of the TCPG Group for purposes of this
Agreement only at such time and in such amount as such item is actually
taken into account on the Consolidated Return filed by TRI; and (ii) to
the extent that the following assets of TCPG have not theretofore been
utilized by TCPG, TRI shall (subject to the proviso below) have the
right, in its sole discretion and from time to time to require that the
following items be disregarded: (a) losses, credits and overpayments of
any member of the TCPG Group carried over from 1998 or prior years; (b)
deductions with respect to the write-off of call premiums and debt
issuance expenses on indebtedness of members of the TCPG Group that was
outstanding prior to the Effective Date; (c) deductions with respect to
the exercise or payment in cancellation of stock options of TRI; and
(d) any losses with respect to any investment made prior to the
Effective Date in Chesapeake Insurance Company Limited by a member of
the TCPG Group, provided, further, however, that from and after
February 25, 1999 the foregoing items may be disregarded only to the
extent that the reduction in the value of such items as a result of
this clause (ii) shall not cause a default under Section 7.2.4(a) of
the Credit Agreement dated as of February 25, 1999 (the "Credit
Agreement') among Snapple, Mistic, Cable Car, RCAC, RCCI, the various
financial institutions party thereto, DLJ Capital Funding, Inc., as
syndication agent, Xxxxxx Xxxxxxx Senior Funding, Inc., as
documentation agent, and The Bank of New York, as administrative agent.
Notwithstanding anything herein to the contrary, TRI shall not be
entitled to recover the amount by which any payment hereunder has been
reduced by reason of the utilization by TCPG of the items listed in the
second proviso in clause (ii) of the preceding sentence. If TCPG shall
be the sole member of the TCPG Group for any year (or portion thereof),
the payment required to be made by or on behalf of TCPG pursuant to
this Section 2 shall be determined as hereinbefore provided in this
Section, but as if TCPG had filed a separate income tax return for such
year (or portion thereof). Any amount payable by or on behalf of TCPG
pursuant to this Section 2 shall be allocated among the members of the
TCPG Group as directed by TCPG. Payments made by TCPG or on behalf of
TCPG by the TCPG Subsidiaries pursuant to this Section and Section 1.3
above shall be in lieu of any other payment by the TCPG Group (or any
member thereof) on account of its share, if any, of the consolidated
federal income tax liability of the TRI Group for such taxable
year. Except as hereinbefore provided with respect to deferred
transaction, payments made for any taxable year by TCPG pursuant to
this Section 2 shall be made without regard to the actual consolidated
federal income tax liability, if any, of the TRI Group for such taxable
year."
2. Repayment by TRI. Within five (5) business days of the execution and
delivery of this Amendment by each of the parties hereto, TRI shall repay to
TCPG $1,100,000 representing certain funds paid to TRI under the Tax Sharing
Agreement as in effect prior to the date of this Amendment which would no longer
be payable by TCPG pursuant to the Tax Sharing Agreement as amended by this
Amendment.
3. Effective Date. Upon the execution and delivery hereof, this
Amendment shall have effect from the date as of which the Tax Sharing Agreement
was executed and delivered.
4. Confirmation of the Tax Sharing Agreement. Except to the extent
amended by this Amendment, the provisions of the Tax Sharing Agreement are
hereby confirmed and shall remain in full force and effect.
5. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
6. Governing Law. This Amendment shall be governed by the laws of the
State of New York, without regard to the conflict of laws rules thereof.
7. Counterparts. This Amendment may be executed into one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
In Witness Whereof, the parties have executed this Amendment as of the
date first above written.
TRIARC COMPANIES, INC. TRIARC CONSUMER PRODUCTS
GROUP, LLC
By: /s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------ -------------------------------------
Name: Xxxxxxx X. XxXxxxxx Name: Xxxxxxx X. XxXxxxxx
Title: Sr. Vice President - Taxes Title: Sr. Vice President - Taxes
TRIARC BEVERAGE HOLDINGS SNAPPLE BEVERAGE CORP.
CORP.
By: /s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------ -------------------------------------
Name: Xxxxxxx X. XxXxxxxx Name: Xxxxxxx X. XxXxxxxx
Title: Sr. Vice President - Taxes Title: Sr. Vice President - Taxes
MISTIC BRANDS, INC. CABLE CAR BEVERAGE CORP.
By: /s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------ -------------------------------------
Name: Xxxxxxx X. XxXxxxxx Name: Xxxxxxx X. XxXxxxxx
Title: Sr. Vice President - Taxes Title: Sr. Vice President - Taxes
RC/ARBY'S CORPORATION ROYAL CROWN COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------ -------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. XxXxxxxx
Title: Controller Title: Sr. Vice President - Taxes
ARBY'S, INC. ARHC, LLC
By: /s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------ -------------------------------------
Name: Xxxxxxx X. XxXxxxxx Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President - Taxes Title: Vice President
