Exhibit 10.10
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FIRST SUPPLEMENTAL INDENTURE
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Dated as of February 8, 1999
Supplementing the Indenture, dated
as of February 8, 1999, among
Pepsi Bottling Holdings, Inc.,
PepsiCo, Inc., and
The Chase Manhattan Bank, as Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of February 8, 1999
(the "First Supplemental Indenture"), among PepsiCo, Inc., a North Carolina
Corporation (the "Guarantor"), Pepsi Bottling Holdings, Inc., a Delaware
corporation ("Holdings"), Bottling Group, LLC, a Delaware limited liability
company ("Bottling LLC"), and The Chase Manhattan Bank (the "Trustee"), as
Trustee under the Indenture referred to herein.
WHEREAS, Holdings, the Guarantor and the Trustee heretofore
executed and delivered an Indenture, dated as of February 8, 1999 (the
"Indenture"), in respect of the 5 3/8% Senior Notes due 2004 (the "2004
Notes") and the 5 5/8% Senior Notes due 2009 (the "2009 Notes" and together
with the 2004 Notes, the "Notes") and the related Guarantees; and
WHEREAS, Holdings and the Guarantor have entered into an
Indemnification Agreement, dated as of February 8, 1999 (the "Indemnification
Agreement"), pursuant to which Holdings will indemnify the Guarantor and hold
the Guarantor harmless from any monetary obligations of the Guarantor under the
Guarantees; and
WHEREAS, Holdings, Bottling LLC and the Guarantor have entered
into the Assignment and Assumption Agreement, dated as of February 8, 1999,
pursuant to which Holdings will assign all of its obligations in respect of the
Notes to Bottling LLC and Bottling LLC will assume all of the obligations of
Holdings in that respect (the "Assumption"); and
WHEREAS, Section 801 of the Indenture provides that Holdings,
the Guarantor and the Trustee may amend the Indenture without notice to or
consent of any Holders of the Notes in order to evidence the succession of
another corporation to the Obligor, or successive successions, and the
assumption by any such successor of the covenants, agreements and obligations of
the Obligor pursuant to Article Seven of the Indenture; and
WHEREAS, this First Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of each of Holdings,
the Guarantor and Bottling LLC.
NOW, THEREFORE, Holdings, the Guarantor, the Trustee and
Bottling LLC agree as follows for the equal and ratable benefit of the Holders
of the Notes:
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ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
SECTION 1.1. ASSUMPTION OF THE NOTES. Bottling LLC hereby
expressly assumes the due and punctual payment of the principal of, premium, if
any, and interest on the Notes and all obligations of Holdings in respect of the
Notes, the Guarantees and the Indenture (but not in respect of the
Indemnification Agreement) and shall be the successor to Holdings under the
Indenture.
SECTION 1.2. RELEASE OF HOLDINGS. Upon Bottling LLC becoming
the successor Obligor under the Indenture, Holdings shall be discharged from all
obligations and covenants in respect of the Notes, the Guarantees and the
Indenture (but not in respect of the Indemnification Agreement).
SECTION 1.3. TRUSTEE'S ACCEPTANCE. The Trustee hereby accepts
this First Supplemental Indenture and agrees to perform the same under the terms
and conditions set forth in the Indenture.
SECTION 1.4. NOTICES. For purposes of Section 105(2) of the
Indenture, the address of Bottling LLC shall be ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: General Counsel.
SECTION 1.5 THE NOTES. Notwithstanding Exhibits A and B to the
Indenture, as long as Bottling LLC is the Obligor under the Indenture, all Notes
issued after the date hereof shall be issued in the name of, and executed by,
Bottling LLC and shall refer to Bottling LLC as the Obligor.
ARTICLE II
MISCELLANEOUS
SECTION 2.1. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the later
to occur of (i) the execution and delivery of this First Supplemental Indenture
by Holdings, Bottling LLC, the Guarantor and the Trustee and (ii) the
consummation of the Assumption, the Indenture shall be supplemented in
accordance herewith, and this First Supplemental Indenture shall form a part of
the Indenture for all purposes,
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and every Holder of Notes heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby.
SECTION 2.2. INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented hereby, all provisions in the Indenture shall remain in
full force and effect.
SECTION 2.3. INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED
TOGETHER. This First Supplemental Indenture is an indenture supplemental to and
in implementation of the Indenture, and the Indenture and this First
Supplemental Indenture shall henceforth be read and construed together.
SECTION 2.4. CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this First Supplemental Indenture is in all
respects confirmed and preserved.
SECTION 2.5. CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with any provision of the TIA that would be required under the TIA to be part of
and govern any provision of this First Supplemental Indenture were the Indenture
qualified under the TIA, the provision of the TIA shall control. If any
provision of this First Supplemental Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the provision of the
TIA shall be deemed to apply to the Indenture as so modified or to be excluded
by this First Supplemental Indenture, as the case may be.
SECTION 2.6. SEVERABILITY. In case any provision in this
First Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 2.7. TERMS DEFINED IN THE INDENTURE. All capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Indenture.
SECTION 2.8. HEADINGS. The Article and Section headings of
this First Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this First Supplemental
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
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SECTION 2.9. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE, ETC.
Nothing in this First Supplemental Indenture or the Notes, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of the Notes, any benefit or
any legal or equitable right, remedy or claim under the Indenture, this First
Supplemental Indenture or the Notes.
SECTION 2.10. SUCCESSORS. All agreements of Bottling LLC, the
Guarantor and Holdings in this First Supplemental Indenture shall bind their
respective successors. All agreements of the Trustee in this First Supplemental
Indenture shall bind its successors.
SECTION 2.11. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The
recitals contained herein shall be taken as the statements of Holdings, the
Guarantor and Bottling LLC, and the Trustee assumes no responsibility for their
correctness or for the validity or sufficiency of this First Supplemental
Indenture.
SECTION 2.12. CERTAIN DUTIES AND RESPONSIBILITIES OF THE
TRUSTEE. In entering into this First Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
SECTION 2.13. GOVERNING LAW. This First Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 2.14. COUNTERPART ORIGINALS. The parties may sign any
number of copies of this First Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
PEPSI BOTTLING HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
BOTTLING GROUP, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
PEPSICO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP and Treasurer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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