AMENDMENT NO. 1
TO
TAX SHARING AGREEMENT
Amendment No. 1 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 (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) the following items shall 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 April 23, 1999 the
foregoing items shall 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 the
foregoing, the amount by which any payment hereunder shall be reduced
by the second proviso in clause (ii) of the preceding sentence shall be
due and payable hereunder at such time as the corresponding reduction
in the value of the items set forth in clause (ii) of the preceding
sentence would not cause a default under Section 7.2.4 (a) of the
Credit Agreement. 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. 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.
3. 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.
4. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
5. 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.
6. 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
