Exhibit 10.9
PEPSI BOTTLING HOLDINGS, INC.
(as Obligor)
PEPSICO, INC.
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Trustee)
$1,000,000,000 5 3/8% Senior Notes due 2004
$1,300,000,000 5 5/8% Senior Notes due 2009
Indenture
Dated as of February 8, 1999
TABLE OF CONTENTS
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Recitals of the Obligor................................................................................1
Agreements of the Parties..............................................................................1
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions............................................................................1
Section 102. Officers' Certificates and Opinions...................................................10
Section 103. Form of Documents Delivered to Trustee................................................11
Section 104. Acts of Holders.......................................................................11
Section 105. Notices, etc., to Trustee, ▇▇▇▇▇▇▇ and Guarantor......................................12
Section 106. Notice to Holders; Waiver.............................................................13
Section 107. Conflict with Trust Indenture Act.....................................................13
Section 108. Effect of Headings and Table of Contents..............................................13
Section 109. Successors and Assigns................................................................13
Section 110. Separability Clause...................................................................13
Section 111. Benefits of Indenture.................................................................13
Section 112. Governing Law.........................................................................14
Section 113. Counterparts..........................................................................14
Section 114. Legal Holidays........................................................................14
ARTICLE II.
THE NOTES
Section 201. Form and Dating.......................................................................14
Section 202. Execution and Authentication; Aggregate Principal Amount..............................16
Section 203. Temporary Notes.......................................................................16
Section 204. Registration, Transfer and Exchange...................................................17
Section 205. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Lost and Stolen Notes...........................................21
Section 206. Payment of Interest; Interest Rights Preserved........................................22
Section 207. Persons Deemed Owners.................................................................23
Section 208. Cancellation..........................................................................23
Section 209. Computation of Interest...............................................................23
Section 210. CUSIP Numbers.........................................................................24
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ARTICLE III.
SATISFACTION AND DISCHARGE
Section 301. Satisfaction and Discharge of Indenture...............................................24
Section 302. Defeasance and Discharge of Covenants upon Deposit of Moneys,
U.S. Government Obligations.........................................................25
Section 303. Application of Trust Money............................................................26
Section 304. Paying Agent to Repay Moneys Held.....................................................26
Section 305. Return of Unclaimed Amounts...........................................................27
ARTICLE IV.
REMEDIES
Section 401. Events of Default.....................................................................27
Section 402. Acceleration of Maturity; Rescission, and Annulment...................................28
Section 403. Collection of Indebtedness and Suits for Enforcement..................................30
Section 404. Trustee May File Proofs of Claim......................................................30
Section 405. Trustee May Enforce Claims Without Possession of Notes................................31
Section 406. Application of Money Collected........................................................31
Section 407. Limitation on Suits...................................................................32
Section 408. Unconditional Right of Holders to Receive Payment of Principal,
Premium, and Interest...............................................................32
Section 409. Restoration of Rights and Remedies....................................................32
Section 410. Rights and Remedies Cumulative........................................................33
Section 411. Delay or Omission Not Waiver..........................................................33
Section 412. Control by Holders....................................................................33
Section 413. Waiver of Past Defaults...............................................................33
Section 414. Undertaking for Costs.................................................................34
Section 415. Waiver of Stay or Extension Laws......................................................34
ARTICLE V.
THE TRUSTEE
Section 501. Certain Duties and Responsibilities of Trustee........................................34
Section 502. Notice of Defaults....................................................................35
Section 503. Certain Rights of Trustee.............................................................36
Section 504. Not Responsible for Recitals or Issuance of Notes.....................................37
Section 505. May Hold Notes........................................................................37
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Section 506. Money Held in Trust...................................................................37
Section 507. Compensation and Reimbursement........................................................37
Section 508. Disqualification; Conflicting Interests...............................................38
Section 509. Corporate Trustee Required; Eligibility...............................................38
Section 510. Resignation and Removal; Appointment of Successor.....................................39
Section 511. Acceptance of Appointment by Successor................................................40
Section 512. ▇▇▇▇▇▇, Conversion, Consolidation or Succession to Business...........................40
Section 513. Preferential Collection of Claims Against Obligor.....................................41
Section 514. Appointment of Authenticating Agent...................................................41
ARTICLE VI.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGOR
Section 601. Obligor to Furnish Trustee Names and Addresses of Holders.............................42
Section 602. Preservation of Information; Communications to Holders................................43
Section 603. Reports by Trustee....................................................................43
Section 604. Reports by ▇▇▇▇▇▇▇ and Guarantor......................................................45
ARTICLE VII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 701. Obligor May Consolidate, etc., Only on Certain Terms..................................45
Section 702. Guarantor May Consolidate, etc., Only on Certain Terms................................46
Section 703. Successor Corporation Substituted.....................................................46
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
Section 801. Supplemental Indentures without Consent of Holders....................................47
Section 802. Supplemental Indentures with Consent of Holders.......................................47
Section 803. Execution of Supplemental Indentures..................................................48
Section 804. Effect of Supplemental Indentures.....................................................49
Section 805. Conformity with Trust Indenture Act...................................................49
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ARTICLE IX.
COVENANTS
Section 901. Payment of Principal, Premium and Interest............................................49
Section 902. Maintenance of Office or Agency.......................................................49
Section 903. Money for Note Payments To Be Held in Trust...........................................50
Section 904. Certificate to Trustee................................................................51
Section 905. Corporate Existence...................................................................51
Section 906. Limitation on Secured Debt: Obligor...................................................51
Section 907. Limitation on Secured Debt: Guarantor.................................................52
Section 908. Waiver of Certain Covenants...........................................................53
ARTICLE X.
REDEMPTION OF NOTES
Section 1001. Election To Redeem; Notice to Trustee.................................................53
Section 1002. Selection by Trustee of Notes To Be Redeemed..........................................53
Section 1003. Notice of Redemption..................................................................54
Section 1004. Deposit of Redemption Price...........................................................54
Section 1005. Notes Payable on Redemption Date......................................................55
Section 1006. Notes Redeemed in Part................................................................55
Section 1007. Optional Redemption...................................................................55
Section 1008. Mandatory Redemption..................................................................56
ARTICLE XI.
GUARANTEES
Section 1101. Guarantees............................................................................56
Section 1102. Execution and Delivery of the Guarantees..............................................58
EXHIBIT A - FORM OF 2004 NOTE..........................................................................A-1
EXHIBIT B - FORM OF 2009 NOTE..........................................................................B-1
EXHIBIT C - FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF NOTES..........................................................C-1
EXHIBIT D - FORM OF GUARANTEE..........................................................................D-1
EXHIBIT E - FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT................................................E-1
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THIS INDENTURE, among Pepsi Bottling Holdings, Inc., a Delaware
corporation (the "Obligor") having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇. 10577, PepsiCo, Inc., a North Carolina corporation, as
guarantor (the "Guarantor"), having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇. 10577, and The Chase Manhattan Bank, a banking corporation
incorporated and existing under the laws of the State of New York, as trustee
(the "Trustee"), is made and entered into as of this 8th day of February, 1999.
RECITALS OF THE OBLIGOR
The Obligor has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the 5 3/8% Senior Notes due 2004 (the
"2004 Notes") and the 5 5/8% Senior Notes due 2009 (the "2009 Notes")
(collectively, the "Notes"), to be issued in fully registered form.
All things necessary to make this Indenture a valid agreement of the
Obligor and the Guarantor, in accordance with its terms, have been done.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are to be authenticated, issued, and delivered,
and in consideration of the premises thereof, and the purchase of Notes by the
Holders (as hereinafter defined) thereof, it is mutually covenanted and agreed
as follows, for the equal and proportionate benefit of all Holders from time to
time of the Notes:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS. For all purposes of this Indenture, and of
any indenture supplemental hereto, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act (as hereinafter defined), either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with
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respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation; and
(4) all references in this instrument to designated
"Articles," "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instrument as originally executed. The
words "herein," "hereof," and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section,
or other subdivision.
"Act," when used with respect to any Holder (as hereinafter defined),
has the meaning specified in Section 104.
"Affiliate" of any specified Person (as hereinafter defined) means any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract, or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Notes under Section 514.
"Authentication Order" has the meaning specified in Section 202.
"Bankruptcy Code" means title 11, U.S. Code, as amended, or any similar
state or federal law for the relief of debtors.
"Board of Directors" means, with respect to any Person, (i) the board
of directors of such Person, (ii) any duly authorized committee of that board,
or (iii) any officer, director, or authorized representative of such Person, in
each case duly authorized by such board to act hereunder.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions in New York are
authorized or required by law, regulation, or executive order to be closed.
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"Chairman" means, with respect to any Person, that Person's Chairman of
the Board.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company Request," "Company Order," and "Company Consent" mean,
respectively, a written request, order, or consent signed in the name of the
Obligor by its Chairman, Chief Executive Officer, Executive Vice President (as
hereinafter defined), or any Vice President (as hereinafter defined), or by any
other officer or officers of the Obligor pursuant to an applicable Board
Resolution, and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of Notes of any tranche to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"Comparable Treasury Price" means with respect to any redemption date
for the Notes of any tranche (i) the average of four Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Consolidated Net Tangible Assets" means, with respect to any Person,
the total amount of assets (less applicable depreciation, amortization, and
other valuation reserves), except to the extent resulting from write-ups of
capital assets (except write-ups in connection with accounting for acquisitions
in accordance with U.S. GAAP), of such Person and its Restricted Subsidiaries,
after deducting therefrom (i) all current liabilities of such Person and its
Restricted Subsidiaries (excluding any such liabilities that are intercompany
items) and (ii) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, all as set forth on the latest
consolidated balance sheet of such Person and its Restricted Subsidiaries
prepared in accordance with U.S. GAAP.
"Corporate Trust Office" means the office of the Trustee in the City of
New York at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, except that with respect to the
presentation of Notes for payment or registration of transfer or exchange and
with respect to the location of the Security Register, such term shall mean the
office or the agency of the Trustee in said city at which at any particular time
its corporate agency business shall be conducted, which office at the date
hereof is located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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"corporation" means any corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust or
unincorporated organization.
"Custodian" means the Person appointed by the Obligor to act as
custodian for the Depositary, which Person shall be the Trustee unless and until
a successor Person is appointed by the Obligor.
"Debt" has the meaning specified in Section 906.
"Defaulted Interest" has the meaning specified in Section 206.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with this Indenture in the form of
Exhibits A and B hereto except that such Note shall not bear the Global Note
Legend (or the "Schedule of Exchanges of Interests in the Global Note" attached
thereto), but may bear the Private Placement Legend, if required by this
Indenture.
"Depositary" means with respect to the Notes issuable or issued in
whole or in part in global form, the Person designated as Depositary by the
Obligor pursuant to Section 204, unless and until a successor Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to any tranche of Notes shall mean the
"Depositary" with respect to that tranche.
"Discharged" has the meaning specified in Section 302.
"Event of Default" has the meaning specified in Article Four.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
together with the rules and regulations promulgated thereunder.
"Executive Vice President" means with respect to any Person, that
Person's Executive Vice President and/or Chief Financial Officer.
"Global Note" means each note in global form issued in accordance with
this Indenture and bearing the Global Note Legend.
"Global Note Legend" means the legend set forth in Section 201(2) which
is required to be placed on all Global Notes issued pursuant to this Indenture.
"Guarantees" means the guarantees of the Notes by the Guarantor
pursuant to Article Eleven hereof.
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"Guarantor" means PepsiCo, unless and until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Guarantor" shall mean such successor corporation.
"Holder" and "Holder of Notes" means a Person in whose name a Note is
registered in the Security Register (as hereinafter defined).
"Indenture" or "this Indenture" means this Indenture, as amended or
supplemented from time to time.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Obligor.
"Interest Payment Date," when used with respect to any Note, means the
date specified in such Note on which an installment of interest on such Note is
scheduled to be paid.
"Maturity," when used with respect to any Note, means the date on which
all or a portion of the principal amount outstanding under such Note becomes due
and payable, whether on the Scheduled Maturity Date (as hereinafter defined), by
declaration of acceleration, call for redemption, or otherwise.
"Mortgage" is defined in Section 906.
"Obligor" means Pepsi Bottling Holdings, Inc., unless and until a
successor corporation shall have assumed the obligations of Pepsi Bottling
Holdings, Inc. under this Indenture and the Notes, and thereafter "Obligor"
shall mean such successor corporation.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the Executive Vice President, any Vice President,
the Treasurer, the Assistant Treasurer or a Managing Director of such Person, or
any other officer or officers of such Person designated pursuant to an
applicable Board Resolution, and delivered to the Trustee.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by any two Officers of such Person.
"Opinion of Counsel" means with respect to the Obligor, the Guarantor
or the Trustee, a written opinion of counsel to the Obligor, the Guarantor or
the Trustee, as the case may be, which may be an employee of the Obligor, the
Guarantor or the Trustee, as the case may be.
"Outstanding," when used with respect to the Notes or Notes of a
particular tranche means, as of the date of determination, all such Notes
theretofore authenticated and delivered under this Indenture, except:
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(i) such Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited in trust
with the Trustee or with any Paying Agent (as hereinafter defined) other than
the Obligor, or, if the Obligor shall act as its own Paying Agent, has been set
aside and segregated in trust by the Obligor; provided, in any case, that if
such Notes are to be redeemed prior to their Scheduled Maturity Date, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) such Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this Indenture, or which
shall have been paid, in each case, pursuant to the terms of Section 205 (except
with respect to any such Note as to which proof satisfactory to the Trustee is
presented that such Note is held by a person in whose hands such Note is a
legal, valid, and binding obligation of the Obligor).
In determining whether the Holders of the requisite principal amount of
such Notes Outstanding have given a direction concerning the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
concerning the exercise of any trust or power conferred upon the Trustee under
this Indenture, or concerning a consent on behalf of the Holders of any tranche
of Notes to the waiver of any past default and its consequences, Notes owned by
the Obligor, any other obligor upon the Notes, or any Affiliate of the Obligor
or such other obligor shall be disregarded and deemed not to be Outstanding. In
determining whether the Trustee shall be protected in relying upon any request,
demand, authorization, direction, notice, consent, or waiver hereunder, only
Notes which a Responsible Officer assigned to the corporate trust department of
the Trustee knows to be owned by the Obligor or any other obligor upon the Notes
or any Affiliate of the Obligor or such other obligor shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to act as owner with respect to such Notes and that the pledgee
is not the Obligor or any other obligor upon the Notes or any Affiliate of the
Obligor or such other obligor.
"Paying Agent" means any Person appointed by the Obligor to distribute
amounts payable by the Obligor on the Notes. As of the date of this Indenture,
the Obligor has appointed The Chase Manhattan Bank as Paying Agent with respect
to all Notes issuable hereunder.
"PBG" means The Pepsi Bottling Group, Inc., a Delaware corporation.
"PepsiCo" means PepsiCo, Inc., a North Carolina corporation.
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"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
"Place of Payment" means the place set forth in Section 902.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 205 in lieu of a lost, destroyed,
mutilated, or stolen Note shall be deemed to evidence the same debt as the lost,
destroyed, mutilated, or stolen Note.
"Principal Property" means, with respect to any Person, any single
manufacturing or processing plant, office building, or warehouse owned or leased
by such Person or a Restricted Subsidiary other than a plant, warehouse, office
building, or portion thereof which, in the opinion of such Person's Board of
Directors, is not of material importance to the business conducted by such
Person and its Restricted Subsidiaries as an entirety.
"Private Placement Legend" means the legend set forth in Section 204(3)
to be placed on all Notes initially issued pursuant to this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"Record Date" means any date as of which the Holder of a Note will be
determined for any purpose described herein, such determination to be made as of
the close of business on such date by reference to the Security Register, and in
relation to a determination in relation to a payment of interest on the Notes,
shall have the meaning specified in the forms of Notes attached as Exhibits A
and B hereto.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date fixed for such redemption in any notice of redemption issued
pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price specified in Section 1007 hereof.
"Reference Treasury Dealer" means, each of ▇▇▇▇▇▇ Brothers Inc., Credit
Suisse First Boston Corporation and two other primary U.S. Governmental
securities dealers in New York City (each, a "Primary Treasury Dealer")
appointed by the Trustee in consultation with the Obligor; PROVIDED, HOWEVER,
that if any of the foregoing shall cease to be a Primary Treasury Dealer, the
Obligor shall substitute therefor another Primary U.S. Treasury Dealer.
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"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
"Registrar" means the Person who maintains the Security Register, which
Person shall be the Trustee unless and until a successor Registrar is appointed
by the Obligor.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Responsible Officer," when used with respect to the Trustee, means the
chairman of the board of directors, the chairman of the executive committee of
the board of directors, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer or trust officer, the controller and
any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Note" means either a Restricted Definitive Note or a
Restricted Global Note.
"Restricted Subsidiary" means, with respect to any Person, at any time
any Subsidiary of such Person except a Subsidiary which is at the time an
Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Scheduled Maturity Date," means February 17, 2004 with respect to the
2004 Notes and February 17, 2009 with respect to the 2009 Notes.
"Securities Act" means the Securities Act of 1933, as amended (or any
successor Act), and the rules and regulations promulgated thereunder (or
respective successor thereto).
"Security Register" shall have the meaning specified in Section 204.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 206.
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"Subsidiary" of any specified corporation means any corporation,
association, partnership or other business entity at least a majority of whose
outstanding Voting Stock shall at the time be owned, directly or indirectly, by
the specified corporation or by one or more of its Subsidiaries, or both.
"Treasury Rate" means, with respect to any Redemption Date for the
Notes of any tranche, (i) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the most recently
published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the applicable
Scheduled Maturity Date, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as in force as of the date hereof, except as provided in Section 805.
"Trustee" means The Chase Manhattan Bank, unless and until a successor
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean and include each Person who is
then a Trustee hereunder.
"Unrestricted Subsidiary" means, with respect to any Person, any
Subsidiary of such Person (not at the time designated a Restricted Subsidiary)
(i) the major part of whose business consists of finance, banking, credit,
leasing, insurance, financial services, or other similar operations, or any
combination thereof, (ii) substantially all the assets of which consist of the
capital stock of one or more such Subsidiaries, or (iii) designated as such by
such Person's Board of Directors; PROVIDED that such designation will not
constitute a violation of the terms of the Notes. Any Subsidiary designated as a
Restricted Subsidiary may be designated as an Unrestricted Subsidiary unless
such designation will constitute a violation of the terms of the Notes.
"U.S. GAAP" means accounting principles as are generally accepted in
the United States of America at the date of any computation required or
permitted under this Indenture.
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"U.S. Government Obligations" means (i) securities that are direct
obligations of the United States of America, the payment of which is
unconditionally guaranteed by the full faith and credit of the United States of
America and (ii) securities that are obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed by the full faith
and credit of the United States of America, and also includes depository
receipts issued by a bank or trust company as custodian with respect to any of
the securities described in the preceding clauses (i) and (ii), and any payment
of interest or principal payable under any of the securities described in the
preceding clauses (i) and (ii) that is held by such custodian for the account of
the holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt, or from any amount received by the
custodian in respect of such securities, or from any specific payment of
interest or principal payable under the securities evidenced by such depository
receipt.
"Vice President," when used with respect to the Obligor or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" means, as applied to any corporation, association,
partnership or other business entity, capital stock (or other interests,
including partnership interests) of any class or classes (however designated),
the outstanding shares of which have, by the terms thereof, ordinary voting
power to elect a majority of the members of the board of directors (or other
governing body) of such corporation, association, partnership or other business
entity, other than stock having such power only by reason of the happening of a
contingency.
Section 102. OFFICERS' CERTIFICATES AND OPINIONS. Every Officers'
Certificate, Opinion of Counsel, and other certificate or opinion to be
delivered to the Trustee under this Indenture with respect to any action to be
taken by the Trustee shall include the following:
(1) a statement that each individual signing such certificate
or opinion has read all covenants and conditions of this Indenture relating to
such proposed action, including the definitions of all applicable capitalized
terms;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
the other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Obligor may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, legal counsel, unless such officer knows that any such
certificate, opinion, or representation is erroneous. Any opinion of counsel for
the Obligor may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Obligor, unless such counsel knows that any such certificate, opinion, or
representation is erroneous.
Where any Person is required to make, give, or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, such instruments may, but need not, be
consolidated and form a single instrument.
Section 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver, or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and (if expressly required by the applicable terms
of this Indenture) to the Obligor. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 501)
conclusive in favor of the Trustee and the Obligor, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
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(c) The ownership of Notes shall for all purposes be determined by
reference to the Security Register, as such register shall exist as of the
applicable Record Date.
(d) If the Obligor shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Obligor
may, at its option, by Board Resolution, fix in advance a Record Date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Obligor shall have
no obligation to do so. If such Record Date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after such Record Date, but only the Holders of record at the close of
business on such Record Date shall be deemed to be Holders for the purpose of
determining whether Holders of the requisite proportion of Notes Outstanding
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
Notes Outstanding shall be computed as of such Record Date; provided that no
such authorization, agreement or consent by the Holders on such Record Date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after such Record Date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind each subsequent
Holder of such Note, and each Holder of any Note issued upon the transfer
thereof or in exchange therefor or in lieu thereof, with respect to anything
done or suffered to be done by the Trustee or the Obligor in reliance upon such
action, whether or not notation of such action is made upon such Note.
Section 105. NOTICES, ETC., TO TRUSTEE, OBLIGOR AND GUARANTOR. Any
request, order, authorization, direction, consent, waiver, or other action to be
taken by the Trustee, the Obligor, the Guarantor or the Holders hereunder
(including any Authentication Order), and any notice to be given to the Trustee,
the Obligor or the Guarantor with respect to any action taken or to be taken by
the Trustee, the Obligor, the Guarantor or the Holders hereunder, shall be
sufficient if made in writing and
(1) if to be furnished or delivered to or filed with the
Trustee by the Obligor, the Guarantor or any Holder, delivered to the Trustee at
its Corporate Trust Office, Attention: Capital Markets Fiduciary Services, or
(2) if to be furnished or delivered to the Obligor by the
Trustee or any Holder, and except as otherwise provided in Section 401(3) mailed
to the Obligor, first-class postage prepaid, at its principal office (as
specified in the first paragraph of this instrument), Attention: General
Counsel, or at any other address hereafter furnished in writing by the Obligor
to the Trustee, or
(3) if to be furnished or delivered to the Guarantor by the
Trustee or any Holder and except as otherwise provided in Section 401(3), mailed
to the Guarantor, first-class
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postage prepaid at its principal office (as specified in the first paragraph of
this instrument), Attention: General Counsel, or at any other address hereafter
furnished in writing by the Guarantor to the Trustee.
Section 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture or any
Note provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise expressly provided herein or in such Note)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his or her address as it appears in the Security Register as
of the applicable Record Date, if any, not later than the latest date or earlier
than the earliest date prescribed by this Indenture or such Note for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture or any Note provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or otherwise, it shall be impractical to mail
notice of any event to any Holder when such notice is required to be given
pursuant to any provision of this Indenture or the applicable Note, then any
method of notification as shall be satisfactory to the Trustee and the Obligor
shall be deemed to be sufficient for the giving of such notice.
Section 107. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this Indenture by any of the provisions of the TIA, if this
Indenture is hereafter qualified under the TIA, such required provision shall
control.
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents hereof are for convenience
only and shall not affect the construction of any provision of this Indenture.
Section 109. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Obligor and the Guarantor shall bind their respective
successors and assigns, whether so expressed or not.
Section 110. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Notes 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 111. BENEFITS OF INDENTURE. Nothing in this Indenture or in any
Notes, express or implied, shall give to any Person, other than the parties
hereto, their successors hereunder, the
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Authenticating Agent, the Registrar, any Paying Agent, and the Holders of Notes
(or such of them as may be affected thereby), any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. GOVERNING LAW. This Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
Section 113. COUNTERPARTS. This instrument may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, but all of which shall together constitute but one and the same
instrument.
Section 114. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date or Scheduled Maturity Date shall not be a Business Day,
then (notwithstanding any other provisions of this Indenture or of the Notes)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Scheduled
Maturity Date, PROVIDED that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Scheduled Maturity Date, as
the case may be.
ARTICLE II.
THE NOTES
Section 201. FORM AND DATING.
(1) GENERAL.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A and B hereto. The Notes may have
notations, legends or endorsements placed thereon, as may be required to comply
with law, or as may, consistently herewith, be determined by the Officers
executing such Notes, as evidenced by their execution of the Notes. Any portion
of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note. Each Note shall be dated
the date of its authentication. Each Note shall have an executed Guarantee from
the Guarantor substantially in the form of Exhibit D hereto endorsed thereon.
The Definitive Notes, if any, shall be printed, lithographed or
engraved or produced by any combination of those methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange, all as determined by the Officers executing such Notes, as
evidenced by their execution of such Notes.
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The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Obligor, the
Guarantor and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for therein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
All Notes issued under this Indenture shall in all respects be equally
and ratably entitled to the benefits hereof, without preference, priority, or
distinction on account of the Scheduled Maturity Date thereof.
(2) GLOBAL NOTES.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more Global Notes, substantially in the form of
Exhibits A and B attached hereto (including the Global Note Legend thereon and
the "Schedule of Exchanges of Interests in the Global Note" attached thereto).
Each Global Note shall represent such of the aggregate principal amount of the
Outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of Outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of Outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of Outstanding Notes represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof as required
by Section 204 hereof.
Each Global Note (i) shall be registered, in the name of the Depositary
designated for such Global Note pursuant to Section 204, or in the name of a
nominee of such Depositary, (ii) shall be deposited with the Trustee, as
Custodian for the Depositary, and (iii) shall bear a legend substantially as
follows:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY."
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Each Depositary designated pursuant to Section 204 for a Global Note
must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange Act and any other
applicable statute or regulation.
Section 202. EXECUTION AND AUTHENTICATION; AGGREGATE PRINCIPAL AMOUNT.
The Notes shall be executed on behalf of the Obligor by any two Officers of the
Obligor under its corporate seal, if any, reproduced thereon. The signature of
any of these officers on the Notes may be manual or facsimile. The seal of the
Obligor may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted, or otherwise reproduced on the Notes. Typographical and other minor
errors or defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of any Note that has been duly
authenticated and delivered by the Trustee.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Obligor shall bind the Obligor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Trustee shall, upon receipt of a written order of the Obligor
signed by an Officer thereof (an "Authentication Order"), in accordance with
procedures acceptable to the Trustee set forth in the Authentication Order, and
subject to the provisions hereof, authenticate and deliver (i) 2004 Notes in
aggregate principal amount not to exceed $1,000,000,000 and (ii) 2009 Notes in
aggregate principal amount not to exceed $1,300,000,000.
The aggregate principal amount of Notes Outstanding at any time may not
exceed the sum of (i) $1,000,000,000 2004 Notes and $1,300,000,000 2009 Notes,
and (ii) the principal amount of lost, destroyed or stolen Notes for which
replacement Notes are issued pursuant to Section 205 hereof.
The Notes shall be in fully registered form, without coupons, in
denominations of $1,000 and integral multiples thereof.
Section 203. TEMPORARY NOTES. Until certificates representing Notes are
ready for delivery, the Obligor may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate and deliver temporary Notes. Temporary
Notes shall be substantially in the form of certificated Notes but may have
variations that the Obligor considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the
Obligor shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes of the same tranche.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
Section 204. REGISTRATION, TRANSFER AND EXCHANGE.
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(1) The Trustee shall keep a register for each tranche of
Notes (herein sometimes referred to as the "Security Register") which shall
provide for the registration of such Notes, and for transfers of such Notes in
accordance with information, if any, to be provided to the Trustee by the
Obligor, subject to such reasonable regulations as the Trustee may prescribe.
Such register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the information contained in such register or registers shall be available for
inspection at the Corporate Trust Office of the Trustee or at such other office
or agency to be maintained by the Obligor pursuant to Section 902 hereof.
Upon due presentation for registration of transfer of any Note
at the Corporate Trust Office of the Trustee or at any other office or agency
maintained by the Obligor pursuant to Section 902 hereof, the Obligor shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of authorized
denominations, of a like aggregate principal amount and Scheduled Maturity Date.
(2) Any other provision of this Section 204 notwithstanding,
unless and until it is exchanged in whole or in part for Definitive Notes, a
Global Note representing all or a portion of the Notes may not be transferred
except as a whole by the Depositary to a nominee of such Depositary, or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary, or by such Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
The Obligor initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes. The Trustee is
authorized to enter into a letter of representations with DTC in the form
provided to the Trustee by the Obligor and to act in accordance with such
letter.
(3) Except as permitted by this Section 204, each certificate
evidencing the Global Notes and each of the Definitive Notes, if any, (and all
Notes issued in exchange therefor or substitution thereof) shall bear a legend
in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
NOTE AGREES FOR THE BENEFIT OF PEPSICO, INC. OR PEPSI BOTTLING
HOLDINGS, INC. OR BOTTLING GROUP, LLC THAT (A) SUCH NOTE MAY BE
17
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF PEPSICO SO
REQUESTS) OR (2) TO PEPSICO, INC., THE PEPSI BOTTLING GROUP, INC. OR
ANY OF THEIR RESPECTIVE SUBSIDIARIES AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE
FROM IT OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
By its acceptance of any Note bearing the Private Placement
Legend, each Holder of such Note acknowledges the restrictions on transfer set
forth in this Indenture and in the Private Placement Legend and agrees that it
will transfer such Note only as provided in this Indenture and in the Private
Placement Legend. Beneficial interests in the Restricted Global Notes shall be
subject to restrictions on transfer comparable to those set forth herein and
therein to the extent required by the Securities Act.
Notwithstanding any other provision of this Indenture, upon
any request for sale or other transfer of a Restricted Note (including any
Restricted Global Notes) made subsequent to the date that is two years (or such
lesser period as may be provided in any amendment to Rule 144(k)) after the
later of (i) the date of original issuance of the Notes and (ii) the last date
on which the Obligor or an affiliate of the Obligor within the meaning of Rule
144 under the Securities Act was the Holder of such Restricted Note and with
respect to which a certification substantially in the form of Exhibit C hereto
is furnished by the transferor, (A) any such Restricted Global Notes shall not
be subject to any restriction on transfer set forth above and (B) in the case of
any Restricted Definitive Note, the Trustee shall permit the Holder thereof to
exchange such Restricted Definitive Note for Definitive Notes that do not bear
the legend set forth above and such request shall be effective to rescind any
restriction on the further transfer of such Note; and in each such case, such
Notes (whether in definitive or global form) shall no longer constitute
"Restricted Notes" for purposes of this Indenture. The Trustee and the Obligor
shall be entitled (but not obligated) to require such additional certificates
and information as it may reasonably deem necessary to demonstrate that any sale
or other transfer of a Restricted Note is made in compliance with the applicable
restrictions set forth above and with applicable securities laws.
(4) Notwithstanding any other provisions of this Indenture or
the Notes, a Global Note shall not be exchanged in whole or in part for a Note
registered in the name of any
18
person other than the Depositary or a nominee thereof, PROVIDED that a Global
Note may be exchanged for Notes registered in the names of any Person designated
by the Depositary in the event that (i) the Depositary has notified the Obligor
that it is unwilling or unable to continue as Depositary for such Global Note or
such Depositary has ceased to be a "clearing agency" registered under the
Exchange Act and the Obligor has not appointed a successor Depositary within 60
days of receiving such notice or of becoming aware of such cessation, (ii) an
Event of Default has occurred and is continuing with respect to the applicable
Notes, or (iii) the Obligor, in its sole discretion, determines that the Notes
issued in the form of Global Notes shall no longer be represented by such Global
Notes as evidenced by a Company Order delivered to the Trustee. Any Global Note
exchanged pursuant to clause (i) or (iii) above shall be so exchanged in whole
and not in part and any Global Note exchanged pursuant to clause (ii) above may
be exchanged in whole or from time to time in part as directed by the
Depositary. Any Note issued in exchange for a Global Note or any portion thereof
shall be a Global Note, PROVIDED that any such Note so issued that is registered
in the name of a Person other than the Depositary or a nominee thereof shall not
be a Global Note.
(5) If at any time the Depositary for the Notes notifies the
Obligor that it is unwilling or unable to continue as Depositary for the Notes
or if the Depositary has ceased to be a "clearing agency" registered under the
Exchange Act, the Obligor may within 60 days of receiving such notice or of
becoming aware of such cessation appoint a successor Depositary with respect to
the Notes.
(6) If in accordance with Section 204(4) hereof Notes in
global form will no longer be represented by Global Notes the Obligor will
execute, and the Trustee, upon receipt of an Authentication Order, will
authenticate and make available for delivery, Definitive Notes in an aggregate
principal amount equal to the principal amount of the Global Notes, in exchange
for such Global Notes.
If a Definitive Note is issued in exchange for any portion of
a Global Note after the close of business at the office or agency where such
exchange occurs on any Record Date for the payment of interest and before the
opening of business at such office or agency on the next succeeding Interest
Payment Date, interest shall not be payable on such Interest Payment Date in
respect of such Definitive Notes, but shall be payable on such Interest Payment
Date only to the Person to whom interest in respect of such portion of such
Global Note is payable in accordance with the provisions of this Indenture.
Definitive Notes issued in exchange for a Global Note pursuant
to this Section shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. Upon execution
and authentication, the Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. To permit registrations of
transfers and exchanges, the Obligor shall execute and the Trustee (or an
Authenticating Agent appointed pursuant to this Indenture) shall authenticate
and make available for delivery Definitive Notes at
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the Registrar's request, and upon direction of the Obligor. No service charge
shall be made for any registration of transfer or exchange, but the Obligor may
require payment of a sum sufficient to cover any transfer tax or other
governmental charge payable in connection with any registration of transfer or
exchange.
When Definitive Notes are presented to the Trustee with a
request to register the transfer of such Definitive Notes or to exchange such
Definitive Notes for an equal principal amount of Definitive Notes of other
authorized denominations and of the same tranche, the Trustee shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; PROVIDED, HOWEVER, that the Definitive Notes surrendered
for transfer or exchange (i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Obligor and the
Trustee, duly executed by the Holder thereof or his attorney, duly authorized in
writing and (ii) in the case of Restricted Definitive Notes only, shall be
accompanied by the following additional information and documents, as
applicable:
(A) if such Restricted Definitive Note is being exchanged,
without transfer, a certification from such Holder to that effect (in
substantially the form of Exhibit C hereto);
(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A or pursuant to an exemption from
registration in accordance with Rule 144(k) under the Securities Act or
Regulation S, a certification from the transferor to that effect (in
substantially the form of Exhibit C hereto); or
(C) if such Restricted Definitive Note is being transferred to
the Guarantor or PBG or any of their respective Subsidiaries, a
certification from the transferor to that effect (in substantially the
form of Exhibit C hereto).
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Obligor, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(7) At such time as all interests in Global Notes have either
been exchanged for Definitive Notes or cancelled, such Global Note shall be
cancelled by the Trustee in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in a Global Note is exchanged for
Definitive Notes or cancelled, the principal amount of Global Notes shall, in
accordance with the standing procedures and instructions existing between the
Depositary and the Custodian, be reduced and an endorsement shall be made on
such Global Note, by the Trustee or the Custodian, at the direction of the
Trustee, to reflect such reduction.
(8) Notwithstanding anything in this Indenture to the
contrary, (i) all transfers and exchanges of the Notes may be made only in
accordance with the procedures set forth in this
20
Indenture (including the restrictions on transfer); and (ii) the transfer and
exchange of a beneficial interest in a Global Note may only be effected through
the Depositary in accordance with the procedures promulgated by the Depositary.
The Obligor shall not be required to (i) issue, register the transfer
of, or exchange any Note of any tranche during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Notes of such tranche under Section 1003 and ending at the close of business on
the date of such mailing, or (ii) register the transfer of or exchange any Note
so selected for redemption in whole or in part, except in the case of any Note
to be redeemed in part, the portion thereof not to be redeemed.
Section 205. ▇▇▇▇▇▇▇▇▇, DESTROYED, LOST AND STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Trustee, or the Obligor and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Obligor and the Trustee such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Obligor or the Trustee that such Note has been
acquired by a bona fide purchaser, the Obligor may in its discretion execute and
upon request of the Obligor the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
new Note of like tenor, Scheduled Maturity Date, and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Obligor in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Obligor may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Obligor, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes of the same tranche duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 206. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Interest
on any Note which is payable and is punctually paid or duly provided for on any
Interest Payment Date shall, if so provided in such Note, be paid to the Person
in whose name that Note (or one or more
21
Predecessor Notes) is registered at the close of business on the applicable
Record Date, notwithstanding any transfer or exchange of such Note subsequent to
such Record Date and prior to such Interest Payment Date (unless such Interest
Payment Date is also a date of Maturity of such Note, in which case such
interest shall be payable to the Person to whom principal is payable).
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
applicable Record Date by virtue of his having been such Holder; and, except as
hereinafter provided, such Defaulted Interest may be paid by the Obligor, at its
election in each case, as provided in clause (1) or clause (2) below:
(1) The Obligor may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Obligor shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such Note and the date of the
proposed payment, and at the same time the Obligor shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Obligor of such Special Record Date and, in the name and at the expense of the
Obligor, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to the Holder of each such Note at his address as it appears in the Note
Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Notes (or their respective Predecessor Notes) are
registered on such Special Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Obligor may make payment of any Defaulted Interest in
any other lawful manner if, after notice given by the Obligor to the Trustee of
the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
If any installment of interest on any Note called for redemption
pursuant to Article Ten is due and payable on or prior to the Redemption Date
and is not paid or duly provided for on or prior to the Redemption Date in
accordance with the foregoing provisions of this Section 206, such interest
shall be payable as part of the Redemption Price of such Notes.
22
Interest on Notes may be paid by mailing a check to the address of the
Person entitled thereto at such address as shall appear in the Security Register
for such tranche or by such other means as may be specified in the form of such
Note.
Subject to the foregoing provisions of this Section 206 and the
provisions of Section 204 hereof, each Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Note
shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
Section 207. PERSONS DEEMED OWNERS. Prior to due presentment of a Note
for registration of transfer, the Obligor, the Guarantor, the Trustee, and any
agent of the Obligor, the Guarantor or the Trustee may treat the Person in whose
name any Note is registered on the Security Register as the owner of such Note
for the purpose of receiving payment of principal, premium, if any, and (subject
to Sections 204 and 206) interest, and (subject to Section 104(d)) for all other
purposes whatsoever, whether or not such Note is overdue, and neither the
Obligor, the Guarantor, the Trustee, nor any agent of the Obligor, the Guarantor
or the Trustee shall be affected by notice to the contrary.
None of the Obligor, the Guarantor, the Trustee, any Authenticating
Agent, any Paying Agent, the Registrar, or any Co-Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests and each of them may act or refrain from acting
without liability on any information relating to such records provided by the
Depositary.
Section 208. CANCELLATION. All Notes surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Obligor may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Obligor may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly cancelled by the
Trustee. Acquisition of such Notes by the Obligor shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes unless
and until the same are delivered to the Trustee for cancellation. No Note shall
be authenticated in lieu of or in exchange for any Notes cancelled as provided
in this Section, except as expressly permitted by this Indenture. The Trustee
shall dispose of all cancelled Notes in accordance with its customary procedures
and deliver a certificate of such disposition to the Obligor.
Section 209. COMPUTATION OF INTEREST. Interest on the Notes shall be
calculated on the basis of a 360-day year of twelve 30-day months.
Section 210. CUSIP NUMBERS. The Obligor in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
CUSIP numbers in notices of
23
redemption as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or the
omission of such numbers. The Obligor will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE III.
SATISFACTION AND DISCHARGE
Section 301. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to any tranche of Notes (except
as to any surviving rights of transfer or exchange of Notes expressly provided
for herein), and the Trustee, on demand of and at the expense of the Obligor,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such tranche, when
(1) either
(a) all Notes of such tranche theretofore
authenticated and delivered (other than (i) Notes which have been destroyed,
lost, or stolen and which have been replaced or paid as provided in Section 205,
and (ii) Notes of such tranche for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Obligor and thereafter
repaid to the Obligor or discharged from such trust, as provided in Section 305)
have been delivered to the Trustee cancelled or for cancellation; or
(b) all such Notes of the applicable tranche not
theretofore delivered to the Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will, in accordance with their
Scheduled Maturity Date, become due and payable within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense,
of the Obligor,
and, in any of the cases described in subparagraphs (i), (ii), or (iii) above,
the Obligor has deposited or caused to be deposited with the Trustee, as trust
funds, in trust for the purpose, an amount of money in U.S. dollars sufficient,
non-callable U.S. Government Obligations, the principal of and interest on which
when due, will be sufficient, or a combination thereof, sufficient to pay and
discharge the entire indebtedness on the Notes with respect to principal,
24
premium, if any, and interest to the date of such deposit (in the case of Notes
which have become due and payable), or to the Scheduled Maturity Date or
Redemption Date, as the case may be; and
(2) the Obligor has paid or caused to be paid all other sums
payable hereunder by the Obligor with respect to the Notes of the applicable
tranche; and
(3) the Obligor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Notes of such tranche have been complied with and,
in the case of the Opinion of Counsel, stating either that no requirement to
register under the Investment Company Act of 1940, as amended, will arise as a
result of the Obligor's exercise of its option under this Section 301 or that
any such registration requirement has been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Obligor under paragraph (1) of this Section 301 and its
obligations to the Trustee under Section 507 shall survive, and the obligations
of the Trustee under Sections 303 and 305 shall survive.
Section 302. DEFEASANCE AND DISCHARGE OF COVENANTS UPON DEPOSIT OF
MONEYS, U.S. GOVERNMENT OBLIGATIONS. At the Obligor's option, either (a) the
Obligor shall be deemed to have been Discharged (as defined below) from its
obligations with respect to any tranche of Notes on the 91st day after the
applicable conditions set forth below have been satisfied and/or (b) the Obligor
and the Guarantor shall cease to be under any obligation to comply with any
term, provision or condition set forth in Sections 701, 702, 906 or 907 hereof
with respect to any tranche of Notes at any time after the applicable conditions
set forth below have been satisfied:
(1) The Obligor or the Guarantor shall have deposited or
caused to be deposited irrevocably with the Trustee, as trust funds, in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Notes of the applicable tranche, an amount of money, in cash
in U.S. dollars sufficient, non-callable U.S. Government Obligations, the
principal of and interest on which when due, will be sufficient, or a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire indebtedness on such
Notes with respect to principal, premium, if any, and interest to the date of
such deposit (in the case of Notes that have become due and payable), or to the
Scheduled Maturity Date or Redemption Date, as the case may be.
(2) No Event of Default, or event which with notice or lapse
of time would become an Event of Default with respect to the Notes of such
tranche, shall have occurred and be continuing on the date of such deposit.
25
(3) The Obligor shall have delivered to the Trustee (i) an
Opinion of Counsel to the effect that (a) such deposit and defeasance will not
cause the Holders of the Notes of the applicable tranche to recognize income,
gain or loss for Federal income tax purposes as a result of the Obligor's
exercise of its option under this Section 302 and (b) either no requirement to
register under the Investment Company Act of 1940, as amended, will arise as a
result of the Obligor's exercise of its option under this Section 302 or any
such registration requirement has been complied with and (ii) an Opinion of
Counsel and an Officers' Certificate stating that all conditions precedent
herein provided for relating to such deposit and defeasance have been complied
with.
If in connection with the exercise by the Obligor of any option under
this Section 302, the Notes of the applicable tranche are to be redeemed, either
notice of such redemption shall have been duly given pursuant to this Indenture
or provision therefor satisfactory to the Trustee shall have been made.
Notwithstanding the exercise by the Obligor of its option under Section
302(b) with respect to Section 701, the obligation of any successor corporation
to assume the obligations to the Trustee under Section 507 shall not be
discharged.
"Discharged" means that the Obligor shall be deemed to have paid and discharged
the entire indebtedness represented by, and obligations under, the Notes of such
tranche and to have satisfied all the obligations under this Indenture relating
to such Notes (and the Trustee, at the expense of the Obligor, shall execute
proper instruments acknowledging the same), except (A) the rights of Holders of
Notes of such tranche to receive, from the trust fund described in clause (1)
above, payment of the principal of, premium, if any, and the interest, if any,
on such Notes when such payments are due; (B) the Obligor's obligations with
respect to such Notes under Sections 204, 205, 302(1), 303, and 902 hereof and
its obligations under Section 507; and (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder.
Section 303. APPLICATION OF TRUST MONEY. All money deposited with the
Trustee pursuant to Section 301 or Section 302 hereof shall be held in trust and
applied by it, in accordance with the provisions of this Indenture, to the
payment, either directly or through any Paying Agent (including the Obligor
acting as its own Paying Agent), as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any, and interest, for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
Section 304. PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction
and discharge of this Indenture, all moneys then held by any Paying Agent of the
Notes (other than the Trustee) shall, upon demand of the Obligor, be repaid to
it or paid to the Trustee, and thereupon such Paying Agent shall be released
from all further liability with respect to such moneys.
26
Section 305. RETURN OF UNCLAIMED AMOUNTS. Any amounts deposited with or
paid to the Trustee or any Paying Agent for payment of the principal of,
premium, if any, or interest on the Notes or then held by the Obligor, in trust
for the payment of the principal of, premium, if any, or interest on the Notes
and not applied but remaining unclaimed by the Holders of such Notes for two
years after the date upon which the principal of, premium, if any, or interest
on such Notes, as the case may be, shall have become due and payable, shall be
repaid to the Obligor by the Trustee on demand or (if then held by the Obligor)
shall be discharged from such Trust; and the Holder of any of such Notes shall
thereafter, as an unsecured general creditor, look only to the Obligor for any
payment which such Holder may be entitled to collect (until such time as such
unclaimed amounts shall escheat, if at all, to any applicable jurisdiction) and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Obligor as trustee thereof, shall thereupon
cease. Notwithstanding the foregoing, the Trustee or Paying Agent, before being
required to make any such repayment, may at the expense of the Obligor cause to
be published once a week for two successive weeks (in each case on any day of
the week) in a newspaper printed in the English language and customarily
published at least once a day at least five days in each calendar week and of
general circulation in the Borough of Manhattan, in the City and State of New
York, a notice that said amounts have not been so applied and that after a date
named therein any unclaimed balance of said amounts then remaining will be
promptly returned to the Obligor.
ARTICLE IV.
REMEDIES
Section 401. EVENTS OF DEFAULT. "Event of Default," wherever used
herein, means with respect to any tranche of Notes any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Note of such
tranche when it becomes due and payable, and continuance of such default for a
period of 30 days; provided, that the Holders of not less than 75% of the then
Outstanding Notes of such tranche shall not have consented to a postponement of
such payment (which extension shall in no event be for a period longer than
three years from the date such payment of interest would otherwise be due); or
(2) default in the payment of the principal amount of (or
premium, if any, on) any Note of such tranche as and when the same shall become
due, either at Maturity, upon redemption, by declaration, or otherwise; or
(3) default in the performance or breach of any covenant or
warranty of the Obligor or the Guarantor in this Indenture in respect of the
Notes of such tranche, and continuance of such default or breach for a period of
90 days after there has been given, by
27
registered or certified mail, to the Obligor or the Guarantor by the Trustee or
to the Obligor or the Guarantor and the Trustee by the Holders of at least 51%
in the principal amount of the Outstanding Notes of such tranche, a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) the entry of an order for relief against the Obligor or
the Guarantor under the Bankruptcy Code by a court having jurisdiction in the
premises or a decree or order by a court having jurisdiction in the premises
adjudging the Obligor or the Guarantor a bankrupt or insolvent under any other
applicable Federal or State law, or the entry of a decree or order approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Obligor or the Guarantor under the
Bankruptcy Code or any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Obligor or the Guarantor or of any substantial part of their
respective property, or ordering the winding up or liquidation of their
respective affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 90 consecutive days; or
(5) the consent by the Obligor or the Guarantor to the
institution of bankruptcy or insolvency proceedings against either of them, or
the filing by either the Obligor or the Guarantor of a petition or answer or
consent seeking reorganization or relief under the Bankruptcy Code or any other
applicable Federal or State law, or the consent by either the Obligor or the
Guarantor to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Obligor or the Guarantor or of any substantial part of their
respective property, or the making by either the Obligor or the Guarantor of an
assignment for the benefit of creditors, or the admission by either the Obligor
or the Guarantor in writing of either the Obligor's or the Guarantor's inability
to pay debts generally as they become due, or the taking of corporate action by
the Obligor or the Guarantor in furtherance of any such action; or
(6) any Guarantee with respect to the Notes ceases to be in
full force or effect or the Guarantor denies or disaffirms its obligations under
such Guarantee.
A default under any Debt of the Obligor, PBG or the Guarantor
other than the Notes will not constitute an Event of Default under this
Indenture, and a default in the payment of the principal on, premium, if any, or
interest on one tranche of Notes will not constitute a default under any other
tranche of Notes.
Section 402. ACCELERATION OF MATURITY; RESCISSION, AND ANNULMENT. If
any Event of Default described in clauses (1), (2) or (3) of Section 401 above
shall have occurred and be continuing with respect to any tranche of Notes, then
and in each and every such case, unless the principal of all the Notes of such
tranche shall have already become due and payable, either the Trustee or the
Holders of not less than 51% in aggregate principal amount of the Notes of such
tranche then Outstanding hereunder, by notice in writing to the Obligor (and to
the Trustee if
28
given by Holders), may declare the principal amount of all the Notes of such
tranche and any and all accrued interest thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, any provision of this Indenture notwithstanding. If
any Event of Default described in clauses (4), (5) or (6) of Section 401 above
shall have occurred and be continuing, then and in each and every such case,
unless the principal of all the Notes shall have already become due and payable,
either the Trustee or the Holders of not less than 51% in aggregate principal
amount of all of the Notes then Outstanding hereunder, by notice in writing to
the Obligor (and to the Trustee if given by Holders), may declare the principal
amount of all of the Notes and any and all accrued interest thereon to be due
and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, any provision of this Indenture
notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to the Notes and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Outstanding Notes of such
tranche, or all tranches in the case of any Event of Default described in
clauses (4), (5) or (6) of Section 401, by written notice to the Obligor and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Obligor has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue installments of interest, if any, on
such Notes,
(b) the principal of (and premium, if any, on) any
such Notes which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate borne by of such Notes, to the
extent that payment of such interest is lawful,
(c) interest on overdue installments of interest at
the rate or rates prescribed therefor by the terms of such Notes to the extent
that payment of such interest is lawful, and
(d) the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and all
other amounts due the Trustee under Section 507; and
(2) all Events of Default, other than the nonpayment of the
principal of the Notes which have become due solely by such acceleration, have
been cured or waived as provided in Section 413.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 403. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT. The Obligor covenants that if:
29
(1) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable, or
(2) default is made in the payment of (or premium, if any, on)
the principal of any Note at the Maturity thereof, and
(3) any such default continues for any period of grace
provided in relation to such default pursuant to Section 401,
then, with respect to such Notes, the Obligor will, upon demand of the Trustee,
pay to it, for the benefit of the Holder of any such Note, the whole amount then
due and payable on any such Note for principal (and premium, if any) and
interest with interest (to the extent that payment of such interest shall be
legally enforceable) upon the overdue principal (and premium, if any) and upon
overdue installments of interest at such rate as may be borne by the terms of
any such Note; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section 507.
If the Obligor fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Obligor or any other obligor upon the Notes and collect the money
adjudged or decreed to be payable in the manner provided by law out of the
property of the Obligor or any other obligor upon such Notes, wherever situated.
If an Event of Default with respect to any tranche of Notes occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Notes of the applicable tranche by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 404. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition, or other judicial proceeding relative to
the Obligor or any other obligor upon the Notes or the property of the Obligor
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Obligor for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such
proceedings or otherwise,
30
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of the
Notes, and to file such other papers or documents as may be necessary and
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements, and advances of the
Trustee, its agents and counsel, and all other amounts due the Trustee under
Section 507) and of the Holders allowed in such judicial proceedings, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agent and counsel, and any
other amounts due the Trustee under Section 507 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 405. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee and its agents and counsel, be for the ratable benefit of the
Holders of the applicable tranche of Notes.
Section 406. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee with respect to Notes of a particular tranche pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, if any, upon presentation of the Notes and the
notation thereon of the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: To the payment of all amounts due the Trustee under Section 507
hereof.
Second: To the payment of the amounts then due and unpaid upon the
Notes of such tranche for principal, premium, if any, and interest, in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind.
31
Section 407. LIMITATION ON SUITS. No Holder of any Note of any tranche
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 51% in principal amount of
the Outstanding Notes of such tranche shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request, and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes of such tranche;
it being understood and intended that no one or more Holders of Notes of such
tranche shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Notes of such tranche, or to obtain or to seek to obtain
priority or preference over any other such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
proportionate benefit of all the Holders of all Notes of such tranche.
Section 408. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PAYMENT OF
PRINCIPAL, PREMIUM, AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal, premium, if any, and
(subject to Section 206) interest on such Note on or after the respective
payment dates expressed in such Note (or, in the case of redemption on the
Redemption Date) and to institute suit for the enforcement of any such payment
on or after such respective date, and such right shall not be impaired or
affected without the consent of such Holder.
Section 409. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
then and in every such case the Obligor, the Trustee and the Holders shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 410. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right or remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 411. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 412. CONTROL BY HOLDERS. The Holders of a majority in principal
amount of the Outstanding Notes of any tranche shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Notes of such tranche, PROVIDED THAT:
(1) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 413. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Notes of any tranche may, on
behalf of the Holders of all the Notes of such tranche, waive any past default
hereunder with respect to such tranche and its consequences, except a default
not theretofore cured:
(1) in the payment of principal, premium, if any, or interest
on any Note of such tranche, or
(2) in respect of a covenant or provision in this Indenture
which, under Article Eight hereof, cannot be modified or amended without the
consent of the Holder of each Outstanding Note of such tranche.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 414. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Notes of any tranche to which the suit relates, or to any suit
instituted by any Holder for the enforcement of the payment of principal,
premium, if any, or interest on any Note on or after the respective payment
dates expressed in such Note (or, in the case of redemption on or after the
Redemption Date).
Section 415. WAIVER OF STAY OR EXTENSION LAWS. Each of the Obligor and
the Guarantor covenants (to the extent that each may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law (other than any
bankruptcy law) wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Obligor and the Guarantor (to the extent that each may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE V.
THE TRUSTEE
Section 501. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE. (a) Except
during the continuance of an Event of Default with respect to any tranche of
Notes,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with respect to such
tranche of Notes, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to such tranche of Notes, conclusively rely, as to the truth of the
statements and the correctness of
34
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture.
(b) In case an Event of Default with respect to any tranche of Notes
has occurred and is continuing, the Trustee shall exercise, with respect to such
Notes, such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of the
Outstanding Notes of any tranche relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee with respect
to such Notes, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to Notes of such tranche; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 502. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to Notes of any tranche, the Trustee shall
transmit by mail to all Holders of such tranche, as their names and addresses
appear in the Security Register, notice of such
35
default hereunder known to the Trustee, unless such default shall have been
cured or waived; PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal or interest, if any, on any Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders and; PROVIDED, FURTHER, that, in the
case of any default of the character specified in Section 401(3), no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Section 503. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in
Section 501 above:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Obligor mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be
36
entitled to examine the books, records and premises of the Obligor, personally
or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 504. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, except the certificates of
authentication, shall be taken as the statements of the Obligor, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Obligor of Notes or the proceeds thereof. The Trustee shall not be charged with
notice or knowledge of any Event of Default under Section 401(6) unless either
(i) a Responsible Officer of the Trustee assigned to and working in its
Corporate Trust Office shall have actual knowledge thereof or (ii) notice
thereof shall have been given to the Trustee in accordance with Section 105 from
the Obligor, the Guarantor or any Holder.
Section 505. MAY HOLD NOTES. The Trustee or any Paying Agent,
Registrar, or other agent of the Obligor or the Guarantor, in its individual or
any other capacity, may become the owner or pledgee of Notes and, subject to
Sections 508 and 512 hereof, may otherwise deal with the Obligor or the
Guarantor with the same rights it would have if it were not Trustee, Paying
Agent, Registrar, or such other agent.
Section 506. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Obligor.
Section 507. COMPENSATION AND REIMBURSEMENT. The Obligor covenants and
agrees
(1) to pay the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
37
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 401(4) and 401(5)
above, such expenses (including the reasonable charges and expenses of its
counsel) and compensation for such services are intended to constitute expenses
of administration under any applicable Federal or State bankruptcy, insolvency,
reorganization, or other similar law.
Section 508. DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee
has or shall acquire any conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such interest or resign as Trustee, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under:
(i) the Indenture dated as of December 14, 1994, between
PepsiCo and the Trustee relating to certain debt securities, (ii) the Indenture
dated as of September 28, 1990, between PepsiCo and the Trustee relating to
certain debt securities, (iii) the Indenture dated as of October 15, 1986,
between PepsiCo and the Trustee relating to certain debt securities, (iv) the
Indenture dated as of October 1, 1986, between PepsiCo and the Trustee relating
to PepsiCo's Euro-Medium-Term securities, (v) the Trust Agreement with Puerto
Rico Industrial, Medical and Environmental Pollution Control Facilities
Financing Authority (the "Authority") dated as of November 15, 1983, under which
the Authority assigned certain rights under a Loan Agreement dated November 15,
1983, between the Authority and PepsiCo, including the right to payment from
PepsiCo of amounts sufficient to enable the Authority to pay principal and
interest and redemption payments (including redemption premium, if any) on the
bonds issued under said Trust Agreement, (vi) the Indenture dated as of March 2,
1982, among PepsiCo Capital Corporation N.V., PepsiCo, as guarantor, and the
Trustee relating to the PepsiCo Capital Corporation N.V. Zero Coupon Guaranteed
Notes due 1994 and (vii) the Indenture dated as of April 1, 1982, among PepsiCo
Capital Resources, Inc., PepsiCo, as guarantor, and the Trustee relating to the
PepsiCo Capital Resources, Inc. Zero Coupon Serial Guaranteed Debentures Due
1988-2012.
Section 509. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at
all times be a Trustee hereunder that shall be a corporation organized and doing
business under the laws of the United States of America or of any State or
Territory thereof or of the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by Federal or State
authority and having its principal office and place of business in the City of
New York, if there
38
be such a corporation having its principal office and place of business in said
City. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 510. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 511.
(b) The Trustee may resign at any time by giving 60 days' written
notice thereof to the Obligor. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
66 2/3% in principal amount of the Outstanding Notes, delivered to the Trustee
and to the Obligor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 508 above
after written request therefor by the Obligor or by any Holder who has been a
bona fide Holder of a Note for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 509
above and shall fail to resign after written request therefor by the Obligor or
by any such Holder, or
(3) the Trustee shall become incapable of acting with respect
to the Notes, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then, in
any such case (i) the Obligor may remove the Trustee, or (ii) subject to Section
414, any Holder who has been a bona fide Holder of a Note for at least 6 months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Obligor shall promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapacity, or the
39
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of 66 2/3% in principal amount of the Outstanding Notes delivered to the
Obligor and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Obligor. If no successor
Trustee shall have been so appointed by the Obligor or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been bona
fide Holder of a Note for at least 6 months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Obligor shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Notes as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address of its principal
Corporate Trust Office.
Section 511. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Obligor and to the predecessor Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee; but, on request of the Obligor or the successor
Trustee, such predecessor Trustee shall, upon payment of its reasonable charges,
if any, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the predecessor Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such predecessor Trustee hereunder. Upon reasonable request of any such
successor Trustee, the Obligor shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 512. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
Trustee by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such Notes.
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Section 513. PREFERENTIAL COLLECTION OF CLAIMS AGAINST OBLIGOR. If and
when the Trustee shall be or shall become a creditor, of the Obligor (or of any
other obligor upon the Notes), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Obligor
(or against any such other obligor, as the case may be).
Section 514. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any
of the Notes remain Outstanding the Trustee, with the approval of the Obligor,
may appoint an Authenticating Agent or Agents which shall be authorized to act
on behalf of the Trustee to authenticate Notes issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
205, and Notes so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Obligor and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as an Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and, if other than the Obligor itself,
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and, if other than the Obligor, to the Obligor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Obligor, to the Obligor. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee,
with the approval of the Obligor, may appoint a successor Authenticating Agent
which shall be acceptable to the Obligor
41
and shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Notes, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 507.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
As Trustee
By:
----------------------------------------
As Authenticating Agent
By:
----------------------------------------
Authorized Officer
ARTICLE VI.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGOR
Section 601. OBLIGOR TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Obligor will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after the Record Date for the
payment of interest in respect of such Notes, in such form as the Trustee may
reasonably require, a list of the names and addresses of the Holders of such
Notes as of such date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Obligor of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided that if the Trustee shall be the Registrar, such list
shall not be required to be furnished.
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Section 602. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Notes contained in the most
recent list furnished to the Trustee as provided in Section 601 and the names
and addresses of Holders of Notes received by the Trustee in its capacity as
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 601 upon receipt of a new list so furnished.
(b) If three or more Holders of Notes (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Notes
with respect to their rights under this Indenture or under the Notes and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 602(a), or
(ii) inform such applicants as to the approximate number of
Holders of Notes, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 602(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Note, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
602(a), a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing.
(c) Every Holder of Notes, by receiving and holding the same, agrees
with the Obligor and the Trustee that neither the Obligor nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders of Notes in accordance with Section
602(b), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 602(b).
Section 603. REPORTS BY TRUSTEE. (a) The term "reporting date" as used
in this Section, means May 15. Within 60 days after the reporting date in each
year, beginning in 1999, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security
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Register, a brief report dated as of such reporting date with respect to (but if
no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 509 and its
qualifications under Section 508;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of Notes, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect) to report
such advances if such advances so remaining unpaid aggregate not more than 1/2
of 1% of the principal amount of the Notes Outstanding on the date of such
report;
(3) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Obligor (or by any other obligor on the
Notes) to the Trustee in its individual capacity, on the date of such report,
with a brief description of any property held as collateral security therefor,
except an indebtedness based upon a creditor relationship arising in any manner
described in Section 311(b)(2), (3), (4) or (6) of the TIA;
(4) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report; and
(5) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its opinion
materially affects the Notes, except action in respect of a default, notice of
which has been or is to be withheld by the Trustee in accordance with Section
502.
(b) The Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Notes of any tranche, on property
or funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this Subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate 10% or less of the principal amount of the Notes
Outstanding of such tranche at such time, such report to be transmitted within
90 days after such time.
(c) The Trustee shall also transmit by mail the foregoing reports as
required by Section 313(c) of the TIA.
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Section 604. REPORTS BY OBLIGOR AND GUARANTOR.
(1) The Guarantor will file with the Trustee, within 15 days
after the Guarantor is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Guarantor may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act.
(2) The Obligor shall comply with the provisions of Section
314(a) and 314(c) of the TIA (provided that unless this Indenture is hereafter
qualified under the TIA the Obligor shall not be required to file with the
Commission any information, documents or other reports that are otherwise filed
with the Trustee or transmitted to Holders pursuant to this Section 604(2)).
(3) For so long as the Obligor is not subject to Section 13 or
Section 15(d) of the Exchange Act, upon the request of a Holder of the Notes,
the Obligor will promptly furnish or cause the Trustee to furnish to such Holder
or to a prospective purchaser of a Note designated by such Holder, as the case
may be, the information, if any, required to be delivered by it pursuant to
Rule 144A(d)(4) under the Securities Act to permit compliance with Rule 144A
in connection with resales of the Notes.
ARTICLE VII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 701. OBLIGOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. (a)
The Obligor shall not consolidate with or merge into any other corporation, or
convey or transfer all or substantially all of its properties and assets to any
Person, unless;
(1) either the Obligor shall be the continuing corporation, or
the corporation formed by such consolidation or into which the Obligor is merged
or the Person which acquires by conveyance or transfer all or substantially all
of the properties and assets of the Obligor shall be a corporation organized and
existing under the laws of the United States of America or any State or the
District of Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal, premium, if any, and
interest on all the Notes and the performance of every covenant of this
Indenture on the part of the Obligor to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing; and
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(3) the Obligor has delivered to the Trustee an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, conveyance
or transfer and any assumption permitted or required by this Article complies
with the provisions of this Article.
(b) Upon the execution by Pepsi Bottling Holdings, Inc.,
Bottling Group, LLC, a Delaware limited liability company and the Guarantor of
an Assignment and Assumption Agreement substantially in the form of Exhibit E
hereto, and upon execution of an indenture supplemental hereto by such parties
and the Trustee in accordance with Section 801 hereof, Bottling Group, LLC shall
become the Obligor and Pepsi Bottling Holdings, Inc. shall thereupon be released
from all obligations hereunder and under the Notes.
Section 702. GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Guarantor shall not consolidate with or merge into any other corporation, or
convey or transfer all or substantially all of its properties and assets to any
Person unless:
(1) either the Guarantor shall be the continuing corporation,
or the corporation formed by such consolidation or into which the Guarantor is
merged or the Person which acquires by conveyance or transfer all or
substantially all of the properties and assets of the Guarantor shall be a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Guarantor under this
Indenture and the Guarantees;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing; and
(3) the Guarantor has delivered to the Trustee an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, conveyance
or transfer and any assumption permitted or required by this Article complies
with the provisions of this Article.
Section 703. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger, or any conveyance or transfer of all or substantially all of the
properties and assets of the Obligor or the Guarantor in accordance with
Sections 701 and 702, as the case may be, the successor corporation formed by
such consolidation or into which the Obligor or the Guarantor, as the case may
be, is merged or to which such conveyance or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Obligor
or the Guarantor, as the case may be, under this Indenture and the Guarantees,
as applicable, with the same effect as if such successor corporation had been
named as the Obligor or the Guarantor, as the case may be, herein and therein
and the Obligor or the Guarantor, as the case may be, shall thereupon be
released from all obligations hereunder and under the Notes and the Guarantees,
as applicable.
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ARTICLE VIII.
SUPPLEMENTAL INDENTURES
Section 801. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of the Holders of any Notes, the Obligor, the Guarantor and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the TIA
as in force at the date of execution thereof), in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Obligor or the Guarantor, or successive successions, and the assumption by any
such successor of the covenants, agreements and obligations of the Obligor or
the Guarantor pursuant to Article Seven hereof; or
(2) to add to the covenants of the Obligor or the Guarantor
such further covenants, restrictions or conditions for the protection of the
Holders of the Notes as the Obligor, the Guarantor and the Trustee shall
consider to be for the protection of the Holders of the Notes or to surrender
any right or power herein conferred upon the Obligor or the Guarantor; or
(3) to cure any defect or ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other provision herein
or in any supplemental indenture, or to make any other provisions with respect
to matters or questions arising under this Indenture; or
(4) to add to this Indenture such provisions as may be
expressly permitted by the TIA as in effect at the date as of which this
instrument is executed or any corresponding provision in any similar federal
statute hereafter enacted; or
(5) to add to the rights of the Holders of the Notes; or
(6) to evidence and provide for the acceptance of appointment
by another corporation as a successor Trustee hereunder; or
(7) to add any additional Events of Default in respect of the
Notes.
No supplemental indenture for the purposes identified in clauses (2),
(3), (5) or (7) above may be entered into if to do so would adversely affect the
interest of the Holders of Notes.
Section 802. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Notes of each tranche affected thereby, by Act of said Holders
delivered to the Obligor, the Guarantor and the Trustee, the Obligor, the
Guarantor and the Trustee may from time to time and at any time enter
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into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Notes of such tranche under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby (or the Holders
of at least 75% in aggregate principal amount of Outstanding Notes of the
related tranche with respect to an extension of the time for payment of any
installment of interest with respect to Notes of such tranche (which extension
shall in no event be for a period longer than three years from the date such
payment of interest would otherwise be due)):
(1) change the Scheduled Maturity Date or the stated payment
date of any payment of premium or interest payable on any Note, or reduce the
principal amount thereof, or any amount of interest payable thereon, or change
the method of computing the amount of interest payable thereon on any date, or
change any Place of Payment where, or the coin or currency in which, any Note or
any payment of principal, premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
same shall become due and payable, whether at Maturity or, in the case of
redemption on or after the Redemption Date; or
(2) reduce the percentage in principal amount of the
Outstanding Notes of any tranche, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences, provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 413
or Section 908, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby.
It shall not be necessary for any Act of Holders under this Section 802
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 803. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
501) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. Upon request of the Obligor and, in the case of Section 802,
upon filing with the Trustee of evidence of an Act of Holders as aforementioned,
the Trustee and the Guarantor shall join with the Obligor in the execution of
such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, powers, trusts, duties or immunities under this
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Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
Section 804. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be and be
deemed to be modified and amended in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and the
respective rights, limitation of rights, duties, powers, trusts and immunities
under this Indenture of the Trustee, the Obligor, the Guarantor and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be determined, exercised and enforced thereunder to the extent provided therein.
Section 805. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
ARTICLE IX.
COVENANTS
Section 901. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Obligor
will duly and punctually pay or cause to be paid the principal, premium, if any,
and interest on the Notes on the dates and in the manner provided in the Notes,
and will duly comply with all the other terms, agreements and conditions
contained in this Indenture for the benefit of the Notes.
The Obligor shall pay interest (including post-petition
interest in any proceeding under any Federal or State bankruptcy, insolvency,
reorganization, or other similar law) on overdue principal and premium, if any,
from time to time on demand at the rate borne by the Notes of such tranche; it
shall pay interest (including post-petition interest in any proceeding under any
Federal or State bankruptcy, insolvency, reorganization, or other similar law)
on overdue installments of interest and (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Section 902. MAINTENANCE OF OFFICE OR AGENCY. So long as any of the
Notes remain outstanding, the Obligor will maintain an office or agency in the
City of New York where Notes may be presented or surrendered for payment, where
Notes may be surrendered for transfer or exchange, and where notices and demands
to or upon the Obligor in respect of the Notes and this Indenture may be served.
The Obligor will give prompt written notice to the Trustee of the location, and
of any change in the location, of such office or agency. If at any time the
Obligor shall fail to maintain such office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the principal Corporate Trust Office of the
Trustee, and the Obligor hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
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The Obligor may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Obligor of its obligation to maintain an office or agency in the City of New
York for such purposes. The Obligor shall give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 903. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. If the
Obligor shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal, premium, if any, or interest on any of the
Notes, segregate and hold in trust for the benefit of the Holders of the Notes a
sum sufficient to pay such principal, premium or interest so becoming due until
such sums shall be paid to such Holders of the Notes or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Obligor shall have one or more Paying Agents, it will, on
or prior to each due date of the principal, premium, if any, or interest, on any
Notes, deposit with a Paying Agent a sum sufficient to pay such principal,
premium, or interest so becoming due, such sum to be held in trust for the
benefit of the Holders of the Notes entitled to the same and (unless such Paying
Agent is the Trustee) the Obligor will promptly notify the Trustee of its action
or failure so to act.
The Obligor will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of principal,
premium, if any, or interest, on Notes in trust for the benefit of the Holders
of the Notes entitled thereto until such sums shall be paid to such Holders of
the Notes or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Obligor (or
any other obligor upon the Notes) in the making of any such payment of
principal, premium, if any, or interest, on the Notes; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Obligor may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Obligor or such Paying Agent or, if for any other purpose, all sums
so held in trust by the Obligor in respect of all Notes, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Obligor or
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such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Section 904. CERTIFICATE TO TRUSTEE. The Obligor and the Guarantor will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Obligor (beginning in 1999), an Officers' Certificate stating that in the course
of the performance by the signers of their duties as officers of the Obligor or
the Guarantor, as the case may be, they would normally have knowledge of any
default by the Obligor in the performance of any of its covenants or agreements
contained herein, stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge and
the nature thereof.
Section 905. CORPORATE EXISTENCE. Subject to Article Seven, the Obligor
and the Guarantor will do or cause to be done all things necessary to preserve
and keep in full force and effect their respective corporate existence.
Section 906. LIMITATION ON SECURED DEBT: OBLIGOR. So long as any of the
Notes shall be Outstanding, neither the Obligor nor any Restricted Subsidiary
will incur, suffer to exist or guarantee any indebtedness for borrowed money
("Debt"), secured by a mortgage, pledge, or lien (a "Mortgage") on any Principal
Property or on any shares of stock of any Restricted Subsidiary unless the
Obligor or such Restricted Subsidiary secures or the Obligor causes such
Restricted Subsidiary to secure the Notes (and any other Debt of the Obligor or
such Restricted Subsidiary, at the option of the Obligor or such Restricted
Subsidiary, not subordinate to the Notes) equally and ratably with (or prior to)
such secured Debt, so long as such secured Debt shall be so secured, unless
after giving effect thereto the aggregate amount of all such Debt so secured
does not exceed 10% of Consolidated Net Tangible Assets of the Obligor. This
restriction will not, however, apply to Debt secured by:
(1) Mortgages existing prior to the issuance of the Notes;
(2) Mortgages on property of, or on shares of stock of or Debt
of, any corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(3) Mortgages in favor of the Obligor or any Restricted
Subsidiary;
(4) Mortgages in favor of any governmental bodies to secure
progress or advance payments;
(5) Mortgages on property or shares of stock existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase price
thereof or construction thereon or to secure any Debt incurred prior to, at the
time of, or within 120 days after the later of the acquisition, the completion
of construction, or the commencement of full operation of such property or
within
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120 days after the acquisition of such shares for the purpose of financing all
or any part of the purchase price thereof or construction thereon; and
(6) any extension, renewal or refunding of any Mortgages
referred to in the foregoing clauses (1) to (5), inclusive.
The transfer of a Principal Property by the Obligor to an Unrestricted
Subsidiary of the Obligor or the change in designation by the Obligor of a
Subsidiary which owns a principal property from Restricted Subsidiary to
Unrestricted Subsidiary shall not be restricted.
Section 907. LIMITATION ON SECURED DEBT: GUARANTOR. So long as any of
the Notes shall be Outstanding, neither the Guarantor nor any Restricted
Subsidiary (other than, for the purposes of this Section 907, the Obligor) will
incur, suffer to exist or guarantee any Debt, secured by a Mortgage on any
Principal Property or on any shares of stock of any Restricted Subsidiary unless
the Guarantor or such Restricted Subsidiary secures or the Guarantor causes such
Restricted Subsidiary to secure the Guarantees (and any other Debt of the
Guarantor or such Restricted Subsidiary, at the option of the Guarantor or such
Restricted Subsidiary, not subordinate to the Guarantees) equally and ratably
with (or prior to) such secured Debt, so long as such secured Debt shall be so
secured, unless after giving effect thereto the aggregate amount of all such
Debt so secured does not exceed 10% of Consolidated Net Tangible Assets of the
Guarantor. This restriction will not, however, apply to Debt secured by:
(1) Mortgages existing prior to the issuance of the
Guarantees;
(2) Mortgages on property of, or on shares of stock of or Debt
of, any corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(3) Mortgages in favor of the Guarantor or any Restricted
Subsidiary;
(4) Mortgages in favor of any governmental bodies to secure
progress or advance payments;
(5) Mortgages on property or shares of stock existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase price
thereof or construction thereon or to secure any Debt incurred prior to, at the
time of, or within 120 days after the later of the acquisition, the completion
of construction, or the commencement of full operation of such property or
within 120 days after the acquisition of such shares for the purpose of
financing all or any part of the purchase price thereof or construction thereon;
and
(6) any extension, renewal or refunding of any Mortgage
referred to in the foregoing clauses (1) to (5), inclusive.
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The transfer of a Principal Property by the Guarantor to an
Unrestricted Subsidiary of the Guarantor or the change in designation by the
Guarantor of a Subsidiary which owns a Principal Property from Restricted
Subsidiary to Unrestricted Subsidiary shall not be restricted.
Section 908. WAIVER OF CERTAIN COVENANTS. The Obligor may omit, in any
particular instance, to comply with any covenant or condition set forth in
Section 906, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Notes at the time Outstanding shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, provided, however,
that no waiver by the Holders of the Notes shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Obligor and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE X.
REDEMPTION OF NOTES
Section 1001. ELECTION TO REDEEM; NOTICE TO TRUSTEE. If the Obligor
elects to redeem Notes of any tranche pursuant to the optional redemption
provisions of Section 1007 hereof, it shall furnish to the Trustee, at least 45
days but not more than 60 days before a Redemption Date, an Officers'
Certificate setting forth (i) the Redemption Date, (ii) the principal amount of
Notes to be redeemed and (iii) the CUSIP numbers of the Notes to be redeemed.
Section 1002. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. If fewer
than all the Notes of any tranche are to be redeemed, the particular Notes to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee from the Outstanding Notes of such tranche not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate. The
portions of the principal of Notes so selected for partial redemption shall be
equal to the minimum authorized denomination of the Notes, or an integral
multiple thereof, and the principal amount which remains Outstanding shall not
be less than the minimum authorized denomination for Notes.
The Trustee shall promptly notify the Obligor in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal of such Note which has been or is to be redeemed.
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Section 1003. NOTICE OF REDEMPTION. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not fewer than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Notes to be redeemed, at
his or her address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the manner of calculating the Redemption Price;
(3) if fewer than all Outstanding Notes of any tranche are to
be redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Notes to be redeemed, from the Holder to
whom the notice is given and that on and after the date fixed for redemption,
upon surrender of such Note, a new Note or Notes of the same tranche in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued in accordance with Section 1006;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note, and that interest, if any, thereon
shall cease to accrue from and after said date;
(5) the place where such Notes are to be surrendered for
payment of the Redemption Price, which shall be the office or agency maintained
by the Obligor pursuant to Section 902 hereof;
(6) the name and address of the Paying Agent;
(7) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price; and
(8) the CUSIP number, and that no representation is made as to
the correctness or accuracy of the CUSIP number, if any, listed in such notice
or printed on the Notes.
Notice of redemption of Notes shall be given by the Obligor
or, at the Obligor's request, by the Trustee in the name and at the expense of
the Obligor.
Section 1004. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Obligor shall deposit with the Trustee or with a Paying
Agent (or, if the Obligor is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 903) an amount of money sufficient to pay the
Redemption Price of all the Notes which are to be redeemed on that date.
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Section 1005. NOTES PAYABLE ON REDEMPTION DATE. Notice of Redemption
having been given as aforesaid, the Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Obligor shall default in the
payment of the Redemption Price) such Notes shall cease to bear interest. Upon
surrender of such Notes for redemption in accordance with the notice, such Notes
shall be paid by the Obligor at the Redemption Price. Any installment of
interest due and payable on or prior to the Redemption Date shall be payable to
the Holders of such Notes registered as such on the relevant Record Date
according to the terms and the provisions of Section 206 above.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Note, or as otherwise provided in such
Note.
Section 1006. NOTES REDEEMED IN PART. Any Note that is to be redeemed
only in part shall be surrendered at the office or agency maintained by the
Obligor pursuant to Section 902 hereof (with, if the Obligor or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Obligor and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing) and the Obligor shall execute and
the Trustee shall authenticate and deliver to the Holder of such Note without
service charge and at the expense of the Obligor, a new Note or Notes of the
same tranche and Scheduled Maturity Date, of any authorized denomination as
requested by such Holders in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Note so surrendered.
Section 1007. OPTIONAL REDEMPTION. The Notes of each tranche will be
redeemable in whole or in part at any time at the option of the Obligor, at the
Redemption Price equal to the greater of:
(i) 100% of the principal amount of the Notes being redeemed,
or
(ii) as determined by an Independent Investment Banker, the
sum of the present values of the remaining scheduled payments of principal and
interest on the Notes being redeemed from the Redemption Date to the applicable
Scheduled Maturity Date discounted to the date of redemption on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at a discount
rate equal to:
(1) the Treasury Rate plus 10 basis points in the
case of the 2004 Notes, and
(2) the Treasury Rate plus 15 basis points in the
case of the 2009 Notes,
55
plus, for (i) and (ii) above, whichever is applicable, accrued and unpaid
interest on such Notes to the date of redemption. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date and notice
thereof shall promptly be given by the Obligor to the Trustee.
Any redemption pursuant to this Section 1007 shall be made pursuant to
the provisions of Section 1001 through 1006 hereof.
Section 1008. MANDATORY REDEMPTION. The Obligor shall not be required
to make mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE XI.
GUARANTEES
Section 1101. GUARANTEES. Subject to the provisions of this Article
Eleven, the Guarantor unconditionally and irrevocably guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, that: (i) the principal of, premium,
if any, and interest on the Notes will be duly and punctually paid in full
when due, whether at maturity, by acceleration, by redemption or otherwise,
and interest on overdue principal and (to the extent permitted by law)
interest on any interest on the Notes and all other monetary obligations of
the Obligor to the Holders or the Trustee hereunder or under the Notes
(including fees and expenses) will be promptly paid in full, all in
accordance with the terms hereof; and (ii) in case of any extension of time
of payment or renewal of any of the Notes or any of such other monetary
obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal. Failing payment when
due of any amount so guaranteed, or failing performance of any other monetary
obligation of the Obligor to the Holders, for whatever reason, the Guarantor
will be obligated to pay, or to perform or to cause the performance of, the
same immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under this Guarantee, and shall entitle the
Trustee or Holders of the Notes to accelerate the obligations of the
Guarantor under this Guarantee in the same manner and to the same extent as
the obligations of the Obligor. The Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, including,
without limitation, an Event of Default set forth in paragraphs (4) and (5)
of Section 401 of this Indenture, the Trustee or any Holders are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of the Notes, to collect interest on the Notes, or to enforce any
other right or remedy with respect to the Notes, the Guarantor agrees to pay
to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of the Holders.
The Guarantor hereby agrees that its obligations under this Guarantee
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this
56
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, any
change in ownership of the Obligor, any acceptance of partial payments from the
Obligor, the entry of any judgment against the Obligor, any action to enforce
the same or any other action or circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Guarantor. The Guarantor hereby
waives and relinquishes: (a) any right to require the Trustee, the Holders or
the Obligor (each, a "Benefitted Party") to proceed against the Obligor or any
other Person or to proceed against or exhaust any security held by a Benefitted
Party at any time or to pursue any other remedy in any secured party's power
before proceeding against the Guarantor, including without limitation, any
rights or benefits granted by N.C. Gen. Stat. Sections 26-7 through 26-9, or any
similar provisions of any successor Act; (b) any defense that may arise by
reason of the incapacity, lack of authority, death or disability of any other
Person or Persons or the failure of a Benefitted Party to file or enforce a
claim against the estate (in administration, bankruptcy or any other proceeding)
of any other Person or Persons; (c) diligence, presentment, all demands
whatsoever (including demand of payment), protest and notice of any kind (except
as expressly required by this Indenture), including but not limited to any
action or non-action on the part of the Guarantor, the Obligor, any Benefitted
Party, any creditor of the Guarantor, the Obligor or on the part of any other
Person whomsoever in connection with any obligations the performance of which
are guaranteed under this Guarantee; (d) any defense based upon an election of
remedies by a Benefitted Party, including but not limited to an election to
proceed against the Guarantor for reimbursement; (e) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; and (f) any defense based on any borrowing or grant of a security
interest under Section 364 of the Bankruptcy Code. The Guarantor hereby
covenants that this Guarantee will not be discharged except by payment in full
of all principal, premium, if any, and interest on the Notes so guaranteed and
all other costs provided for under this Indenture, and by complete performance
of the obligations contained in the Notes, this Indenture and the Guarantee. The
Guarantee is a guaranty of payment and not of collectibility.
If any Holder or the Trustee is required by any court or otherwise to
return to either the Obligor or the Guarantor, or any trustee or similar
official acting in relation to either the Obligor or the Guarantor, any amount
paid by the Obligor or the Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor agrees that it will not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed under this Guarantee until payment in full of all obligations
guaranteed hereby. The Guarantor agrees that, after the occurrence and during
the continuance of any Event of Default, the Guarantor will not demand, sue for
or otherwise attempt to collect any indebtedness of the Obligor to the Guarantor
until all of the obligations of the Obligor under this Indenture and the Notes
shall have been paid in full. If, notwithstanding the foregoing sentence, the
Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness in violation of the foregoing sentence while any obligations of the
Obligor are still outstanding, such amounts shall be collected, enforced and
received by the Guarantor for the benefit of, and held in trust for the benefit
of, the Holders of the Notes, and shall forthwith be
57
paid to the Trustee for the benefit of such Holders to be credited and applied
upon the Notes, whether matured or unmatured, in accordance with the terms of
this Indenture. The Guarantor agrees that, as between it, on the one hand, and
the Holders of the Notes and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed under this Guarantee may be accelerated as provided
in Article Five hereof for the purposes hereof, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Five hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by such Guarantor for
the purpose of this Guarantee. The provisions of this Section shall survive the
expiration or termination of this Indenture and the Notes.
Section 1102. EXECUTION AND DELIVERY OF THE GUARANTEES. To evidence the
Guarantee set forth in Section 1101 hereof, the Guarantor agrees that a notation
of this Guarantee substantially in the form included in Exhibit D hereto shall
be endorsed on each Note authenticated and delivered by the Trustee and executed
on behalf of the Guarantor by the Chairman of the Board, the Chief Executive
Officer, any Vice Chairman, the President or one of the Vice Presidents of the
Guarantor.
If an Officer of the Guarantor whose facsimile signature is on a
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which the Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed on
such Note on behalf of the Guarantor.
58
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested; all as of the day and year first above written.
Pepsi Bottling Holdings, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
PepsiCo, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
The Chase Manhattan Bank,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trust Officer
59
State of New York, County of New York, ss.:
On the day of February 1999 before me personally came
, to me known, who, being by me duly sworn, did
depose and say that he resides at
; that he is the of The
Chase Manhattan Bank, one of the parties described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to that instrument is such corporate seal; that it was affixed by
authority of the board of directors of said corporation; and that he signed his
name thereto by like authority.
Name:
Notary Public, State of New York No.
Qualified in County Commission Expires
[Notarial Seal]
60
State of New York, County of New York, ss.:
On the day of February, 1999 before me personally came
, to me known, who, being by me duly sworn,
did depose and say that he resides at
; that he is the
of Pepsi Bottling Holdings, Inc., one of the parties described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to that instrument is such corporate
seal; that it was affixed by authority of the board of directors of said
corporation; and that he signed his name thereto by like authority.
Name:
Notary Public, State of New York No.
Qualified in County Commission Expires
[Notarial Seal]
61
State of New York, County of New York, ss.:
On the day of February, 1999 before me personally came
, to me known, who, being by me duly sworn,
did depose and say that he resides at
; that he is the
of PepsiCo, Inc., one of the parties described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to that instrument is such corporate seal;
that it was affixed by authority of the board of directors of said corporation;
and that he signed his name thereto by like authority.
Name:
Notary Public, State of New York No.
Qualified in County Commission Expires
[Notarial Seal]
62
EXHIBIT A
FORM OF 2004 NOTE
[FORM OF FACE OF NOTE]
[Insert global security legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert private placement legend, if applicable,
pursuant to the provisions of the Indenture]
No. CUSIP _____________
PEPSI BOTTLING HOLDINGS, INC.
5 3/8% SENIOR NOTE DUE 2004
PEPSI BOTTLING HOLDINGS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Obligor,"
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to [insert if a
Global Note: Cede & Co.] [insert if a Definitive Note: ] (the "Holder") or
to its registered assigns, the principal sum of ___ [Insert if a Global Note: or
such other principal amount as shall be set forth on the Schedule of Exchanges
of Interests in the Global Note annexed hereto] on February 17, 2004, and to pay
interest on said principal sum semi-annually on February 17 and August 17 of
each year (each, an "Interest Payment Date"), commencing August 17, 1999, at the
rate of 5 3/8% per annum from February 9, 1999, or from the most recent date in
respect of which interest has been paid or duly provided for, until payment of
the principal sum has been made or duly provided for. The interest so payable
and punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Note (or one
or more Predecessor Notes) is registered at the close of business on the Record
Date for such Interest Payment Date, which shall be the fifteenth day (whether
or not a Business Day) next preceding such Interest Payment Date, provided that
interest payable on an Interest Payment Date that is a Redemption Date or the
Scheduled Maturity Date shall be payable to the Person to whom principal is
payable. Any such interest that is payable but is not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Record Date and may be paid to the Person in whose name this Note (or one
or more Predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes not earlier than 10
days prior to such Special Record Date.
Payment of the principal and interest on this Note will be made at the
Place of Payment in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
A-1
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
at this place. Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Obligor has caused this instrument to be duly
executed by manual or facsimile signature under its corporate seal or a
facsimile thereof.
Dated:
PEPSI BOTTLING HOLDINGS, INC.
By:
------------------------------------------
Authorized Officer
By:
------------------------------------------
Authorized Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By:
------------------------------------------
Authorized Officer
A-2
[FORM OF REVERSE OF NOTE]
PEPSI BOTTLING HOLDINGS, INC.
5 3/8% SENIOR NOTE DUE 2004
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Pepsi Bottling Holdings, Inc., a Delaware corporation (the
"Obligor"), promises to pay interest on the principal amount of this Note at the
rate of 5 3/8% per annum from February 9, 1999 until maturity on February 17,
2004. The Obligor shall pay interest on each Interest Payment Date (or if such
day is not a Business Day, on the next succeeding Business Day and no interest
on the amount payable on such Interest Payment Date shall accrue for the
intervening period). Interest on the Notes shall accrue from the most recent
date to which interest has been paid or duly provided for or, if no interest has
been paid, from the date of original issuance; PROVIDED that if there is no
existing default or Event of Default relating to the payment of interest, and if
this Note is authenticated between a Record Date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; PROVIDED, FURTHER, that the first
Interest Payment Date shall be August 17, 1999. The Obligor shall pay interest
(including post-petition interest in any proceeding under any Federal or State
bankruptcy, insolvency, reorganization, or other similar law) on overdue
principal and premium, if any, from time to time on demand at the rate borne by
this Note; it shall pay interest (including post-petition interest in any
proceeding under any Federal or State bankruptcy, insolvency, reorganization, or
other similar law) on overdue installments of interest and (without regard to
any applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Obligor shall pay interest on the Notes
(except Defaulted Interest) to the Persons who are registered Holders of Notes
on the Record Date therefor, even if such Notes are cancelled after such Record
Date and on or before such Interest Payment Date, except as provided in Section
206 of the Indenture, provided that interest payable on an Interest Payment Date
that is a Redemption Date or the Scheduled Maturity Date shall be payable to the
Person to whom principal is payable. The Notes shall be payable as to principal,
premium, if any, and interest at the office or agency of the Obligor maintained
for such purpose as set forth in Section 902 of the Indenture, or, at the option
of the Obligor, payment of interest may be made by check mailed to the Holders
at their addresses set forth in the Security Register, and PROVIDED that payment
by wire transfer of immediately available funds shall be required with respect
to principal of, premium, if any, and interest on Global Notes and a Holder of
$10,000,000 or more in aggregate principal amount of Notes will be entitled to
receive payments of interest, other than interest due at maturity or any date of
redemption, by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received by the Trustee in writing not less than
15 calendar days prior to the applicable Interest Payment Date. Payment of
principal of, premium, if any, and interest on
A-3
the Notes shall be in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Chase Manhattan Bank, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Obligor may appoint and change any Paying Agent or Registrar without notice to
any Holder. The Obligor or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Obligor issued the Notes under an Indenture dated as
of February 8, 1999 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture") among the Obligor, the
Guarantor and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of such terms. To
the extent any provision of this Note conflicts with the express provisions of
the Indenture, the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION. The Notes will be redeemable, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at any time at the
option of the Obligor, at the Redemption Price equal to the greater of: (1) 100%
of the principal amount of the Notes being redeemed, or (2) as determined by an
Independent Investment Banker, the sum of the present value of the remaining
scheduled payments of principal and interest on the Notes being redeemed from
the Redemption Date to the applicable Scheduled Maturity Date discounted to the
date of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at a discount rate equal to the Treasury Rate plus 10
basis points; plus, for (1) and (2) above, whichever is applicable, accrued and
unpaid interest on such Notes to the date of redemption.
6. MANDATORY REDEMPTION. The Obligor shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Obligor may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Obligor need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being
A-4
redeemed in part. Also, the Obligor need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed.
9. PERSONS DEEMED OWNERS. Except as provided in the Indenture, the
registered Holder of a Note on the Registrar's books may be treated as its owner
for all purposes under the Indenture.
10. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Obligor and the Guarantor and
the rights of the Holders of the Notes under the Indenture at any time by the
Obligor, the Guarantor and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Notes of each tranche
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the 2004 Notes at the time
Outstanding, on behalf of the Holders of all 2004 Notes, to waive compliance by
the Obligor with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
11. DEFAULTS AND REMEDIES. The Indenture provides that each of the
following events constitutes an Event of Default with respect to this Note: (i)
failure to make any payment of principal when due (whether at maturity, upon
redemption or otherwise) on the 2004 Notes; (ii) failure to make any payment of
interest when due on the 2004 Notes, which failure is not cured within 30 days;
provided, that the Holders of not less than 75% of the then Outstanding 2004
Notes shall not have consented to a postponement of such payment; (iii) failure
of the Obligor or the Guarantor to observe or perform any of their other
respective covenants or warranties under the Indenture for the benefit of the
holders of the 2004 Notes, which failure is not cured within 90 days after
notice is given as specified in the Indenture; (iv) certain events of
bankruptcy, insolvency, or reorganization of the Obligor or the Guarantor; and
(v) any Guarantee of the Notes ceases to be in full force or effect or the
Guarantor (or any successor guarantor) denies or disaffirms its obligations
under the Guarantee of the Notes.
If an Event of Default with respect to the 2004 Notes shall occur and
be continuing, the principal amount hereof may be declared due and payable in
the manner and with the effect provided in the Indenture.
12. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
13. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
A-5
14. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Obligor has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
15. GOVERNING LAW. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
A-6
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Obligor. The agent may substitute
another to act for him.
Date: Your Signature:
-------------------- ------------------------------------
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No:
-------------------------------
SIGNATURE GUARANTEE:
-----------------------------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
A-7
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE 1/
The following exchanges of a part of this Global Note for a
Definitive Note, or exchanges of a Definitive Note for an interest in this
Global Note, have been made:
Principal ▇▇▇▇▇▇
▇▇▇▇▇▇ of decrease Amount of increase of this Global Note Signature of
in Principal in Principal following such authorized officer
Amount of this Amount of this decrease of Trustee or
Date of Exchange Global Note Global Note (or increase) Custodian
---------------------- --------------------- --------------------- ---------------------- ----------------------
--------
1 THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
A-8
EXHIBIT B
[FORM OF 2009 NOTE]
[FORM OF FACE OF NOTE]
[Insert global security legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert private placement legend, if applicable,
pursuant to the provisions of the Indenture]
No. CUSIP _____________
PEPSI BOTTLING HOLDINGS, INC.
5 5/8% SENIOR NOTE DUE 2009
PEPSI BOTTLING HOLDINGS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Obligor,"
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to [insert if a
Global Note: Cede & Co.] [insert if a Definitive Note: ] (the "Holder") or
to its registered assigns, the principal sum of ___ [Insert if a Global Note: or
such other principal amount as shall be set forth on the Schedule of Exchanges
of Interests in the Global Note annexed hereto] on February 17, 2009, and to pay
interest on said principal sum semi-annually on February 17 and August 17 of
each year (each, an "Interest Payment Date"), commencing August 17, 1999, at the
rate of 5 5/8% per annum from February 9, 1999, or from the most recent date in
respect of which interest has been paid or duly provided for, until payment of
the principal sum has been made or duly provided for. The interest so payable
and punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Note (or one
or more Predecessor Notes) is registered at the close of business on the Record
Date for such Interest Payment Date, which shall be the fifteenth day (whether
or not a Business Day) next preceding such Interest Payment Date, provided that
interest payable on an Interest Payment Date that is a Redemption Date or the
Scheduled Maturity Date shall be payable to the Person to whom principal is
payable. Any such interest that is payable but is not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Record Date and may be paid to the Person in whose name this Note (or one
or more Predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes not earlier than 10
days prior to such Special Record Date.
Payment of the principal and interest on this Note will be made at the
Place of Payment in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
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Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
at this place. Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Obligor has caused this instrument to be duly
executed by manual or facsimile signature under its corporate seal or a
facsimile thereof.
Dated:
PEPSI BOTTLING HOLDINGS, INC.
By:
--------------------------------------
Authorized Officer
By:
--------------------------------------
Authorized Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By:
--------------------------------------
Authorized Officer
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[FORM OF REVERSE OF NOTE]
PEPSI BOTTLING HOLDINGS, INC.
5 5/8% SENIOR NOTE DUE 2009
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Pepsi Bottling Holdings, Inc., a Delaware corporation (the
"Obligor"), promises to pay interest on the principal amount of this Note at the
rate of 5 5/8% per annum from February 9, 1999 until maturity on February 17,
2009. The Obligor shall pay interest on each Interest Payment Date (or if such
day is not a Business Day, on the next succeeding Business Day and no interest
on the amount payable on such Interest Payment Date shall accrue for the
intervening period). Interest on the Notes shall accrue from the most recent
date to which interest has been paid or duly provided for or, if no interest has
been paid, from the date of original issuance; PROVIDED that if there is no
existing default or Event of Default relating to the payment of interest, and if
this Note is authenticated between a Record Date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; PROVIDED, FURTHER, that the first
Interest Payment Date shall be August 17, 1999. The Obligor shall pay interest
(including post-petition interest in any proceeding under any Federal or State
bankruptcy, insolvency, reorganization, or other similar law) on overdue
principal and premium, if any, from time to time on demand at the rate borne by
this Note; it shall pay interest (including post-petition interest in any
proceeding under any Federal or State bankruptcy, insolvency, reorganization, or
other similar law) on overdue installments of interest and (without regard to
any applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Obligor shall pay interest on the Notes
(except Defaulted Interest) to the Persons who are registered Holders of Notes
on the Record Date therefor, even if such Notes are cancelled after such Record
Date and on or before such Interest Payment Date, except as provided in Section
206 of the Indenture, provided that interest payable on an Interest Payment Date
that is a Redemption Date or the Scheduled Maturity Date shall be payable to the
Person to whom principal is payable. The Notes shall be payable as to principal,
premium, if any, and interest at the office or agency of the Obligor maintained
for such purpose as set forth in Section 902 of the Indenture, or, at the option
of the Obligor, payment of interest may be made by check mailed to the Holders
at their addresses set forth in the Security Register, and PROVIDED that payment
by wire transfer of immediately available funds shall be required with respect
to principal of, premium, if any, and interest on Global Notes and a Holder of
$10,000,000 or more in aggregate principal amount of Notes will be entitled to
receive payments of interest, other than interest due at maturity or any date of
redemption, by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received by the
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Trustee in writing not less than 15 calendar days prior to the applicable
Interest Payment Date. Payment of principal of, premium, if any, and interest on
the Notes shall be in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Chase Manhattan Bank, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Obligor may appoint and change any Paying Agent or Registrar without notice to
any Holder. The Obligor or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Obligor issued the Notes under an Indenture dated as
of February 8, 1999 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture") among the Obligor, the
Guarantor and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of such terms. To
the extent any provision of this Note conflicts with the express provisions of
the Indenture, the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION. The Notes will be redeemable, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at any time at the
option of the Obligor, at the Redemption Price equal to the greater of: (1) 100%
of the principal amount of the Notes being redeemed, or (2) as determined by an
Independent Investment Banker, the sum of the present value of the remaining
scheduled payments of principal and interest on the Notes being redeemed from
the Redemption Date to the applicable Scheduled Maturity Date discounted to the
date of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at a discount rate equal to the Treasury Rate plus 15
basis points; plus, for (1) and (2) above, whichever is applicable, accrued and
unpaid interest on such Notes to the date of redemption.
6. MANDATORY REDEMPTION. The Obligor shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Obligor may require a Holder to pay any taxes and fees required by
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law or permitted by the Indenture. The Obligor need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Obligor
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed.
9. PERSONS DEEMED OWNERS. Except as provided in the Indenture, the
registered Holder of a Note on the Registrar's books may be treated as its owner
for all purposes under the Indenture.
10. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Obligor and the Guarantor and
the rights of the Holders of the Notes under the Indenture at any time by the
Obligor, the Guarantor and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Notes of each tranche
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the 2009 Notes at the time
Outstanding, on behalf of the Holders of all 2009 Notes, to waive compliance by
the Obligor with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
11. DEFAULTS AND REMEDIES. The Indenture provides that each of the
following events constitutes an Event of Default with respect to this Note: (i)
failure to make any payment of principal when due (whether at maturity, upon
redemption or otherwise) on the 2009 Notes; (ii) failure to make any payment of
interest when due on the 2009 Notes, which failure is not cured within 30 days;
provided, that the Holders of not less than 75% of the then Outstanding 2009
Notes shall not have consented to a postponement of such payment; (iii) failure
of the Obligor or the Guarantor to observe or perform any of their other
respective covenants or warranties under the Indenture for the benefit of the
holders of the 2009 Notes, which failure is not cured within 90 days after
notice is given as specified in the Indenture; (iv) certain events of
bankruptcy, insolvency, or reorganization of the Obligor or the Guarantor; and
(v) any Guarantee of the Notes ceases to be in full force or effect or the
Guarantor (or any successor guarantor) denies or disaffirms its obligations
under the Guarantee of the Notes.
If an Event of Default with respect to the 2009 Notes shall
occur and be continuing, the principal amount hereof may be declared due and
payable in the manner and with the effect provided in the Indenture.
12. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
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13. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entirety), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
14. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Obligor has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
15. GOVERNING LAW. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Obligor. The agent may substitute
another to act for him.
Date: Your Signature:
-------------------- ------------------------------------
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No:
-------------------------------
SIGNATURE GUARANTEE:
-----------------------------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE 2/
The following exchanges of a part of this Global Note for a
Definitive Note, or exchanges of a Definitive Note for an interest in this
Global Note, have been made:
Principal ▇▇▇▇▇▇
▇▇▇▇▇▇ of decrease Amount of increase of this Global Note Signature of
in Principal in Principal following such authorized officer
Amount of this Amount of this decrease of Trustee or
Date of Exchange Global Note Global Note (or increase) Custodian
---------------------- --------------------- --------------------- ---------------------- ----------------------
--------
2 THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
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EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: ___% Senior Notes due 200_ of Pepsi Bottling Holdings, Inc.
This Certificate relates to $_______________ principal amount
of Notes held in definitive form by ________________ (the "Transferor").
The Transferor has requested the Trustee by written order to
exchange or register the transfer of a Note or Notes.
In connection with such request and in respect of each such
Note, the Transferor does hereby certify to the Obligor and the Trustee as
follows:*
/ / Such Note is owned by the Transferor and is being
exchanged without transfer; or
/ / Such Note is being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")) in reliance on Rule 144A; or
/ / Such Note is being transferred in accordance with Rule
144(k) under the Securities Act; or
/ / Such Note is being transferred in accordance with
Regulation S under the Securities Act; or
/ / Such Note is being transferred to the Guarantor or The
Pepsi Bottling Group, Inc. or one of their respective subsidiaries.
[INSERT NAME OF TRANSFEROR]
By:
------------------------------------
Date:
* Check applicable box.
C-1
EXHIBIT D
GUARANTEE
PepsiCo, Inc. (hereinafter referred to as the "Guarantor"), which term
includes any successor or assign under the Indenture, dated as of February 8,
1999, among Pepsi Bottling Holdings, Inc., a Delaware corporation or any
assignee or successor thereto (the "Obligor"), the Guarantor party thereto and
The Chase Manhattan Bank, as trustee (the "Indenture"), hereby irrevocably and
unconditionally guarantees that: (i) the principal of, premium, if any, and
interest on the % Senior Notes due 200_ (the "200_ Notes") will be duly and
punctually paid in full when due, whether at maturity, by acceleration, by
redemption or otherwise, and interest on overdue principal and (to the extent
permitted by law) interest on any interest on the 200_ Notes and all other
monetary obligations of the Obligor to the Holders or the Trustee hereunder or
under the 200_ Notes (including fees and expenses) will be promptly paid in
full, all in accordance with the terms hereof; and (ii) in case of any extension
of time of payment or renewal of any of the 200_ Notes or any of such other
monetary obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal.
The obligations of the Guarantor to the Holder and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
Eleven of the Indenture and reference is hereby made to such Indenture for the
precise terms of this Guarantee.
No stockholder, officer, director or incorporator, as such, past,
present or future of the Guarantor shall have any liability under this Guarantee
by reason of his or its status as such stockholder, officer, director or
incorporator.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon the Guarantor and its successors and assigns
until full and final payment and performance of all of the Obligor's obligations
under the 200_ Notes and Indenture and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders, and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. This is a Guarantee of payment and not of collectibility.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
endorsed shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers.
THE TERMS OF ARTICLE ELEVEN OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
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Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
Guarantor:
By:
-------------------------------------------
Name:
Title:
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EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
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