Exhibit 10.12
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FIRST SUPPLEMENTAL INDENTURE
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Dated as of February 26, 1999
Supplementing the Indenture, dated
as of February 25, 1999, between
PepsiCo, Inc. and
The Chase Manhattan Bank, as Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of February 26, 1999
(the "First Supplemental Indenture"), among PepsiCo, Inc., a North Carolina
Corporation ("PepsiCo"), The Pepsi Bottling Group, Inc., a Delaware corporation
("PBG"), Bottling Group, LLC, a Delaware limited liability company ("Bottling
LLC"), and The Chase Manhattan Bank (the "Trustee"), as Trustee under the
Indenture referred to herein.
WHEREAS, PepsiCo and the Trustee heretofore executed and
delivered an Indenture, dated as of February 25, 1999 (the "Indenture"), in
respect of the Series A Senior Notes due 2000 (the "Notes"); and
WHEREAS, PepsiCo, PBG and Bottling LLC heretofore executed and
delivered an Assignment and Assumption Agreement, dated as of February 25, 1999
(the "Assumption Agreement"), under which PepsiCo and PBG stated their desire to
effect the assignment of all of PepsiCo's obligations under the Notes to PBG and
the assumption of all of the obligations of PepsiCo in that respect by PBG (the
"Assumption") and for Bottling LLC to provide an unconditional and irrevocable
guarantee of all payments of principal, interest and all monetary obligations of
PBG under the Notes (the "Guarantee"); and
WHEREAS, Bottling LLC is a subsidiary of PBG; and
WHEREAS, PBG and Bottling LLC are engaged in related business,
and Bottling LLC will derive substantial direct and indirect benefit from the
Assumption; and
WHEREAS, Section 801 of the Indenture provides that PepsiCo
and the Trustee may amend the Indenture without notice to or consent of any
Holders of the Notes in order to provide for the assumption of all of PepsiCo's
rights, obligations and duties and liabilities under the Indenture and the Notes
by PBG and the issuance of the Guarantee by Bottling LLC.
WHEREAS, this First Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of each of PepsiCo, PBG
and Bottling LLC.
NOW, THEREFORE, PepsiCo, PBG, Bottling LLC and the Trustee
agree as follows for the equal and ratable benefit of the Holders of the Notes:
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ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
SECTION 1.1 ASSUMPTION OF THE NOTES. PBG hereby expressly
assumes the due and punctual payment of the principal of, premium, if any, and
interest on the Notes and all obligations of PepsiCo under the Notes and the
Indenture and shall be the successor to PepsiCo under the Indenture.
SECTION 1.2 RELEASE OF PEPSICO. Upon PBG becoming the
successor Obligor under the Indenture, PepsiCo shall be discharged from all
obligations and covenants under the Notes and the Indenture.
SECTION 1.3 TRUSTEE'S ACCEPTANCE. The Trustee hereby accepts
this First Supplemental Indenture and agrees to perform the same under the terms
and conditions set forth in the Indenture.
SECTION 1.4 NOTICES. For purposes of Section 105(2) of the
Indenture, the address of PBG shall be ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel.
SECTION 1.5 THE NOTES. All Notes now outstanding under the
Indenture shall be cancelled in accordance with the provisions of the Indenture
and notwithstanding Exhibit A to the Indenture, as long as PBG is the Obligor
under the Indenture, all Notes shall be reissued in the name of, and executed
by, PBG and shall refer to PBG as the Obligor, and shall have the Guarantee
endorsed thereon.
SECTION 1.6 NO ASSUMPTION OF TAX INDEMNITY. Nothing in this
Supplemental Indenture shall be construed as an assignment by PepsiCo to PBG of,
or an assumption by PBG from PepsiCo of, PepsiCo's obligations under its letter
agreement dated February 25, 1999 with ▇▇▇▇▇▇ Brothers Inc. and Credit Suisse
First Boston Corporation regarding the tax consequences of the substitution of
PBG for PepsiCo as obligor on the Notes.
ARTICLE II
ADDITION OF GUARANTOR
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SECTION 2.1 ADDITION OF BOTTLING LLC. In accordance with
Sections 801 and Article XI of the Indenture, Bottling LLC hereby
unconditionally and irrevocably guarantees to each Holder of the Notes the
payment of principal, interest and all other monetary obligations under the
Notes, to the extent and manner set forth in the Indenture.
SECTION 2.2 REFERENCES IN THE INDENTURE. By reason of the
addition of Bottling LLC as the Guarantor under the Indenture, all references in
the Indenture to the "Guarantor" are hereby deemed to refer to Bottling LLC.
SECTION 2.3 EXECUTION OF THE GUARANTEE. Concurrently with the
execution of this Supplemental Indenture, Bottling LLC shall execute the
Guarantee in the form attached to the Indenture as Exhibit C, in the manner
provided in the Indenture, and shall cause such Guarantee to be endorsed upon
any Notes reissued in accordance with Section 1.5 hereof.
SECTION 2.4 NOTICES. For the purposes of Section 105(3) of the
Indenture, the address of Bottling LLC shall be ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Managing Director.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the later
to occur of (i) the execution and delivery of this First Supplemental Indenture
by PepsiCo, PBG, Bottling LLC and the Trustee and (ii) the consummation of the
Assumption, the Indenture shall be supplemented in accordance herewith, and this
First Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Notes heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby.
SECTION 3.2 INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except
as supplemented hereby, all provisions in the Indenture shall remain in full
force and effect.
SECTION 3.3 INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED
TOGETHER. This First Supplemental Indenture is an indenture supplemental to and
in
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implementation of the Indenture, and the Indenture and this First Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.4 CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this First Supplemental Indenture is in all
respects confirmed and preserved.
SECTION 3.5 CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with any provision of the TIA that would be required under the TIA to be part of
and govern any provision of this First Supplemental Indenture were the Indenture
qualified under the TIA, the provision of the TIA shall control. If any
provision of this First Supplemental Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the provision of the
TIA shall be deemed to apply to the Indenture as so modified or to be excluded
by this First Supplemental Indenture, as the case may be.
SECTION 3.6 SEVERABILITY. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 3.7 TERMS DEFINED IN THE INDENTURE. All capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Indenture.
SECTION 3.8 HEADINGS. The Article and Section headings of this
First Supplemental Indenture have been inserted for convenience of reference
only, are not to be considered a part of this First Supplemental Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 3.9 BENEFITS OF FIRST SUPPLEMENTAL INDENTURE, ETC.
Nothing in this First Supplemental Indenture or the Notes, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of the Notes, any benefit or
any legal or equitable right, remedy or claim under the Indenture, this First
Supplemental Indenture or the Notes.
SECTION 3.10 SUCCESSORS. All agreements of PBG, Bottling LLC,
and PepsiCo in this First Supplemental Indenture shall bind their respective
succes-
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sors. All agreements of the Trustee in this First Supplemental Indenture shall
bind its successors.
SECTION 3.11 TRUSTEE NOT RESPONSIBLE FOR RECITALS. The
recitals contained herein shall be taken as the statements of PepsiCo, PBG, and
Bottling LLC and the Trustee assumes no responsibility for their correctness or
for the validity or sufficiency of this First Supplemental Indenture.
SECTION 3.12 CERTAIN DUTIES AND RESPONSIBILITIES OF THE
TRUSTEE. In entering into this First Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
SECTION 3.13 GOVERNING LAW. This First Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 3.14 COUNTERPART ORIGINALS. The parties may sign any
number of copies of this First Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
THE PEPSI BOTTLING GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and Treasurer
BOTTLING GROUP, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
PEPSICO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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