Exhibit 10.13
THE PEPSI BOTTLING GROUP, INC.
(as Obligor)
BOTTLING GROUP, LLC
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Trustee)
$2,500,000,000 Series B Senior Notes due 2000
Indenture
Dated as of March 5, 1999
TABLE OF CONTENTS
Page
Recitals of the Obligor and the Guarantor ................................. 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 ....................... 10
Section 104. Acts of Holders .............................................. 11
Section 105. Notices, etc., to Trustee, Obligor and Guarantor ............. 12
Section 106. Notice to Holders; Waiver .................................... 12
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 ................................................ 13
Section 113. Counterparts ................................................. 13
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. Mutilated, Destroyed, Lost and Stolen Notes .................. 21
Section 206. Payment of Interest; Interest Rights Preserved ............... 21
Section 207. Persons Deemed Owners ........................................ 22
Section 208. Cancellation ................................................. 22
Section 209. Computation of Interest ...................................... 22
Section 210. CUSIP Numbers ................................................ 22
ARTICLE III. SATISFACTION AND DISCHARGE
Section 301. Satisfaction and Discharge of Indenture ...................... 23
Section 302. Defeasance and Discharge of Covenants upon Deposit of Moneys,
U.S. Government Obligations................................ 24
Section 303. Application of Trust Money ................................... 26
Section 304. Paying Agent to Repay Moneys Held ............................ 26
Section 305. Return of Unclaimed Amounts .................................. 26
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ARTICLE IV.REMEDIES
Section 401. Events of Default ............................................. 26
Section 402. Acceleration of Maturity; Rescission, and Annulment ........... 28
Section 403. Collection of Indebtedness and Suits for Enforcement .......... 29
Section 404. Trustee May File Proofs of Claim .............................. 30
Section 405. Trustee May Enforce Claims Without Possession of Notes ........ 30
Section 406. Application of Money Collected ................................ 30
Section 407. Limitation on Suits ........................................... 31
Section 408. Unconditional Right of Holders to Receive Payment of Principal,
Premium, and Interest....................................... 31
Section 409. Restoration of Rights and Remedies ............................ 32
Section 410. Rights and Remedies Cumulative ................................ 32
Section 411. Delay or Omission Not Waiver .................................. 32
Section 412. Control by Holders ............................................ 32
Section 413. Waiver of Past Defaults ....................................... 32
Section 414. Undertaking for Costs ......................................... 33
Section 415. Waiver of Stay or Extension Laws .............................. 33
ARTICLE V.THE TRUSTEE
Section 501. Certain Duties and Responsibilities of Trustee ............... 33
Section 502. Notice of Defaults ........................................... 35
Section 503. Certain Rights of Trustee .................................... 35
Section 504. Not Responsible for Recitals or Issuance of Notes ............ 36
Section 505. May Hold Notes ............................................... 36
Section 506. Money Held in Trust .......................................... 36
Section 507. Compensation and Reimbursement ............................... 36
Section 508. Disqualification; Conflicting Interests ...................... 37
Section 509. Corporate Trustee Required; Eligibility ...................... 37
Section 510. Resignation and Removal; Appointment of Successor ............ 38
Section 511. Acceptance of Appointment by Successor ....................... 39
Section 512. Merger, Conversion, Consolidation or Succession to Business .. 39
Section 513. Preferential Collection of Claims Against Obligor ............ 39
Section 514. Appointment of Authenticating Agent .......................... 40
Section 515. Calculation Agent ............................................ 41
ARTICLE VI. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGOR
Section 601. Obligor to Furnish Trustee Names and Addresses of Holders .... 41
Section 602. Preservation of Information; Communications to Holders ....... 42
Section 603. Reports by Trustee ........................................... 42
Section 604. Reports by Obligor and Guarantor ............................. 43
ARTICLE VII.CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
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Section 701 Obligor and Guarantor May Consolidate, etc.,
Only on Certain Terms ..................................... 44
Section 702. Successor Corporation Substituted ............................ 45
ARTICLE VIII. SUPPLEMENTAL INDENTURES
Section 801. Supplemental Indentures without Consent of Holders ........... 45
Section 802. Supplemental Indentures with Consent of Holders .............. 46
Section 803. Execution of Supplemental Indentures ......................... 47
Section 804. Effect of Supplemental Indentures ............................ 47
Section 805. Conformity with Trust Indenture Act .......................... 47
ARTICLE IX. COVENANTS
Section 901. Payment of Principal, Premium and Interest ................... 47
Section 902. Maintenance of Office or Agency .............................. 48
Section 903. Money for Note Payments To Be Held in Trust .................. 48
Section 904. Certificate to Trustee ....................................... 49
Section 905. Corporate Existence .......................................... 49
Section 906. Limitation on Liens .......................................... 49
Section 907. Limitation on Sale-Leaseback Transactions .................... 50
ARTICLE X. REDEMPTION OF NOTES
Section 1001. Election To Redeem; Notice to Trustee ....................... 51
Section 1002. Selection by Trustee of Notes To Be Redeemed ................ 51
Section 1003. Notice of Redemption ........................................ 51
Section 1004. Deposit of Redemption Price ................................. 52
Section 1005. Notes Payable on Redemption Date ............................ 52
Section 1006. Notes Redeemed in Part ...................................... 53
Section 1007. Optional Redemption by the Obligor .......................... 53
Section 1008. Optional Redemption by the Holders .......................... 53
Section 1009. Mandatory Redemption ........................................ 54
ARTICLE XI. GUARANTEE
Section 1101. Guarantee ................................................... 54
Section 1102. Execution and Delivery of the Guarantee ..................... 55
Section 1103. Limitation of Guarantor's Liability ......................... 56
EXHIBIT A - FORM OF NOTE ................................................. A-1
EXHIBIT B - FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OR NOTES ............................ X-0
XXXXXXX X - XXXX XX XXXXXXXXX ............................................ C-1
EXHIBIT D - OPTION OF HOLDER TO ELECT REDEMPTION .......................... D-1
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THIS INDENTURE, among The Pepsi Bottling Group, Inc., a Delaware
corporation (the "Obligor") having its principal office at Xxx Xxxxx Xxx,
Xxxxxx, XX 00000, Bottling Group, LLC, a Delaware limited liability company, as
guarantor (the "Guarantor"), having its principal office at Xxx Xxxxx Xxx,
Xxxxxx, XX 00000 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 5th day of March, 1999.
Recitals of the Obligor and the Guarantor
-----------------------------------------
WHEREAS, the Obligor has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Series B Senior Notes due 2000
(the "Notes"), to be issued in fully registered form;
WHEREAS, this Indenture provides for the issuance of a
guarantee of the Notes to be endorsed on any Notes issued
hereunder;
WHEREAS, the Obligor and the Guarantor are engaged in related businesses
and the Guarantor will derive substantial direct and indirect benefit from the
issuance of the Notes hereunder and consequently, the Guarantor wishes to
guarantee the Notes as provided herein;
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;
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(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 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.
"Attributable Debt" for a lease means the aggregate of present values
(discounted at a rate per annum equal to the average interest rate borne by the
Notes determined on a weighted average basis and compounded semi-annually) of
the obligations of the Obligor or any Restricted Subsidiary of the Obligor for
net rental payments during the remaining term of such lease (including any
period for which such lease has been extended or may at the option of the
lessor, be extended). The term "net rental payments" under any lease of any
period shall mean the sum of the rental and other payments required to be paid
in such period by the lessee thereunder, not including, however, any amounts
required to be paid by such lessee on account of maintenance and repairs,
reconstruction, insurance, taxes, assessments, water rates or similar charges
required to be paid by such lessee thereunder or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and
repairs, reconstruction, insurance, taxes, assessments, water rates or similar
charges. Attributable Debt may be reduced by the present value of the rental
obligations, calculated on the same basis, that any sublessee has for all or
part of the leased property.
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"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 or (ii) any duly authorized committee of that board.
"Board Resolution" means, with respect to any Person, a copy of a
resolution of the Board of Directors 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.
"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.
"Consolidated Net Tangible Assets" means, with respect to the Obligor, the
total amount of assets of the Obligor and its Subsidiaries minus (i) all
applicable depreciation, amortization, and other valuation reserves, (ii) the
amount of assets resulting from write-ups of capital assets (except write-ups in
connection with accounting for acquisitions in accordance with U.S. GAAP), (iii)
all current liabilities of the Obligor and its Subsidiaries (excluding any such
liabilities that are intercompany items) and (iv) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the latest quarterly consolidated balance sheet
of the Obligor and its Subsidiaries (or until such time as the
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Obligor has prepared quarterly consolidated balance sheets, the latest quarterly
combined balance sheet of the Obligor and its 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 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"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" means any debt for borrowed money, capitalized lease obligations
and purchase money obligations, or any guarantee of such debt, in any such case
which would appear on the consolidated balance sheet of the Obligor as a
liability.
"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
Exhibit A 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.
"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.
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"Executive Vice President" means with respect to any Person, that Person's
Executive Vice President and/or Chief Financial Officer.
"Exempted Debt" means the sum, without duplication, of the following items
outstanding as of the date Exempted Debt is being determined: (i) Debt incurred
after the date of this Indenture and secured by liens created or assumed or
permitted to exist pursuant to the covenant as described under the second
paragraph of Section 906 and (ii) Attributable Debt of the Obligor and its
Restricted Subsidiaries in respect of all sale and lease-back transactions with
regard to any Principal Property entered into pursuant to the covenant as
described under paragraph (b) of Section 907.
"Final Margin" means 0.25%.
"Funded Debt" means all Debt having a maturity of more than one year from
the date of its creation or having a maturity of less than one year but by its
terms being renewable or extendible, at the option of the obligor in respect
thereof, beyond one year from its creation.
"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.
"Guarantee" means the guarantee of the Notes by the
Guarantor pursuant to Article Eleven hereof.
"Guarantor" means Bottling Group, LLC, a Delaware limited liability
company, unless and until a successor corporation shall have assumed the
obligations of the Guarantor under this Indenture and the Guarantee 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.
"Initial Margin" means 0.25%.
"Interest Payment Date," when used with respect to any Note, means the
date specified in such Note on which interest on such Note is scheduled to be
paid.
"Lien" has the meaning set forth in Section 906.
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"Material Domestic Subsidiary" means any Subsidiary of a Person which (i)
is a "significant subsidiary" as that term is defined in Rule 1-02(w) of
Regulation S-X under the Securities Act, and (ii) has its principal operations
located within the 50 states of the United States of America, the District of
Columbia or Puerto Rico.
"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 Maturity Date (as hereinafter defined), by
declaration of acceleration, call for redemption, or otherwise.
"Maturity Date" means March 6, 2000.
"Obligor" means The Pepsi Bottling Group, Inc. a Delaware corporation,
unless and until a successor corporation shall have assumed the obligations of
PBG 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.
"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by any two Officers of such Person, that meets
the applicable requirements of this Indenture.
"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 counsel 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 means, as of the date
of determination, all such Notes theretofore authenticated and delivered under
this Indenture, except:
(1) such Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) 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 Maturity Date, notice
of such redemp-
6
tion has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(3) 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 the 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.
"Person" means any individual, corporation, partnership, limited liability
company, 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.
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"Principal" of any Debt (including the Notes) means the principal amount
of such Debt plus the premium, if any, on such Debt.
"Principal Property" means, with respect to the Obligor, any single
manufacturing or processing plant, office building, or warehouse owned or leased
by the Obligor or a Subsidiary of the Obligor, in each case, located in the 50
states of the United States, the District of Columbia or Puerto Rico, other than
a plant, warehouse, office building, or portion thereof which, in the opinion of
the Obligor's Board of Directors evidenced by a Board Resolution, is not of
material importance to the business conducted by the Obligor and its
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, or in
connection with any payment due on the Notes, as of the applicable payment date.
"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 Sections 1007 and 1008 hereof.
"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.
"Repurchase Date" has the meaning specified in Section 1008.
"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
8
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 (x) any Subsidiary (i) substantially all of
the property of which is located, or substantially all of the business of which
is carried on, within the fifty states of the United States of America, the
District of Columbia or Puerto Rico and (ii) which owns or leases any Principal
Property and (y) any guarantor of the Notes.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"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.
"Subsidiary" of any specified Person means any Person at least a majority
of whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by the specified Person or by one or more of its Subsidiaries, or
both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force as of the date hereof; PROVIDED THAT, with respect to every
supplemental indenture executed pursuant to this Indenture, "Trust Indenture
Act" or "TIA" shall mean the Trust Indenture Act of 1939, as then in effect.
"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.
"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.
"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
9
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 Person, 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 Person, 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.
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
10
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.
(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, or in connection with any payment due on the Notes, as
of the applicable payment date.
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(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 postage prepaid at its principal office (as specified in
the supplemental indenture pursuant to
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which such Guarantor guarantees the Notes), 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 or
Redemption Date, Repurchase Date or the 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) shall be postponed
to the next succeeding Business Day and interest shall continue to accrue
thereon at the applicable rate of interest determined from time to time in the
manner provided for in the Notes to the actual date of payment.
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 Exhibit A 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 C 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.
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
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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 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 Exhibit A
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:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR IS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
15
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE OBLIGOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
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. The signature of any of these officers on the Notes may be manual or
facsimile. Typographical and other minor errors or defects in 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 the Notes in aggregate principal
amount not to exceed $2,500,000,000.
The aggregate principal amount of Notes Outstanding at any time may not
exceed the sum of (i) $2,500,000,000 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 minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.
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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.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
Section 204. Registration, Transfer and Exchange.
(1) The Trustee shall keep a register of the 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 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:
17
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX 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 THE PEPSI
BOTTLING GROUP, INC. OR BOTTLING GROUP, LLC THAT (A) SUCH NOTE MAY BE
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 NON-U.S. 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 THE PEPSI BOTTLING GROUP, INC. SO
REQUESTS) OR (2) TO THE PEPSI BOTTLING GROUP, INC. OR BOTTLING GROUP LLC
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 B hereto
is furnished by the transferor, (A) any such
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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 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.
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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 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, 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 B 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 B hereto); or
(C) if such Restricted Definitive Note is being transferred to the
Obligor or any of its Subsidiaries, a certification from the transferor to
that effect (in substantially the form of Exhibit B 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
20
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 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 during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Notes 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. Mutilated, 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, 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
21
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes 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 shall be payable to the Person to whom principal is payable.
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
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
22
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 in the manner set forth in the Notes.
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 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 will
be discharged with respect to the Notes and will cease to be of further effect
as to all Notes (except as to any surviving rights of transfer or exchange of
Notes expressly provided for herein) when
(1) either
(a) all Notes theretofore authenticated and delivered (except
(i) lost, stolen or destroyed Notes which have been replaced or paid, as
provided in Section 205, and (ii) Notes 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 not theretofore delivered to
the Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will, in accordance with their Maturity
Date, become due and payable within one year, or
23
(iii) are to be called for redemption 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 (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 such Notes with respect to principal and accrued and
unpaid interest to the date of such deposit (in the case of Notes that have
become due and payable), or to maturity or redemption, as the case may be;
(2) the Obligor has paid or caused to be paid all other sums payable by it
with respect to the Notes under this Indenture;
(3) no Event of Default or event which with notice or lapse of time would
become an Event of Default with respect to the Notes has occurred and is
continuing with respect to such Notes on the date of such deposit;
(4) the Obligor has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent to satisfaction
and discharge of this Indenture with respect to the Notes have been complied
with, and, in the case of the Opinion of Counsel, stating
(i) such deposit and defeasance will not cause the holders of
such Notes to recognize income, gain or loss for Federal income tax
purposes and such holders will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have
been the case if such option had not been exercised, and
(ii) either that no requirement to register under the Investment
Company Act of 1940, as amended, will arise as a result of the
satisfaction and discharge of this Indenture or that any such registration
requirement has been complied with; and
(5) such deposit and defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or instrument
to which the Obligor is a party.
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
24
been Discharged (as defined below) from its obligations with respect to the
Notes on the 123rd 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, 906 or 907 hereof with respect to the Notes at any time after the
applicable conditions set forth below have been satisfied:
(1) The Obligor 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, 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
accrued and unpaid interest to the date of such deposit (in the case of Notes
that have become due and payable), or to the 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, shall have occurred and be
continuing on the date of such deposit;
(3) The Obligor shall have delivered to the Trustee (i) an Officer's
Certificate and an Opinion of Counsel each stating that all conditions precedent
to the defeasance and discharge contemplated by this Section have been complied
with, and, in the case of the Opinion of Counsel stating that (a) the deposit
and defeasance contemplated by this Section will not cause the Holders of the
Notes of 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 such
Holders will be subject to Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such option had not
been exercised, which Opinion of Counsel (in the case of a discharge under
Section 302(a)) must be based upon a ruling of the Internal Revenue Service to
the same effect or a change in applicable Federal income tax law or related
treasury regulations after the date of this Indenture, (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
(4) With respect to a defeasance under clause (a) above, 123 days shall
have passed during which no Event of Default under subparagraphs (4) and (5) of
Section 401 has occurred.
25
If in connection with the exercise by the Obligor of any option under this
Section 302, the Notes 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 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
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.
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
26
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 the Notes any 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 principal when due (whether at maturity,
upon redemption or otherwise) on the Notes;
(2) default in the payment of any interest on any Note, when it becomes due
and payable, and continuance of such default for a period of 30 days;
(3) default in the performance or breach of any covenant or warranty of the
Obligor or the Guarantor under this Indenture, and continuance of such default
or breach for a period of 90 days after there has been given, by 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 25% in the principal
amount of the Outstanding Notes, 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;
(4) the entry of an order for relief against the Obligor or any Material
Domestic Subsidiary of the Obligor 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 any Material Domestic Subsidiary of the
Obligor 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 any Material Domestic Subsidiary of the Obligor 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 any Material Domestic Subsidiary of the
27
Obligor 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;
(5) the consent by the Obligor or any Material Domestic Subsidiary of the
Obligor to the institution of bankruptcy or insolvency proceedings against
either of them, or the filing by either the Obligor or any Material Domestic
Subsidiary of the Obligor 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 the Obligor or any Material Domestic
Subsidiary of the Obligor 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 any Material Domestic Subsidiary of the
Obligor or of any substantial part of their respective property, or the making
by either the Obligor or any Material Domestic Subsidiary of the Obligor of an
assignment for the benefit of creditors, or the admission by either the Obligor
or any Material Domestic Subsidiary of the Obligor in writing of either the
Obligor's or any Material Domestic Subsidiary of the Obligor's inability to pay
debts generally as they become due, or the taking of corporate action by the
Obligor or any Material Domestic Subsidiary of the Obligor in furtherance of any
such action;
(6) the maturity of any Debt of the Obligor or any Material Domestic
Subsidiary of the Obligor having a then outstanding principal amount in excess
of $50 million shall have been accelerated by any holder or holders thereof or
any trustee or agent acting on behalf of such holder or holders, in accordance
with the provisions of any contract evidencing, providing for the creation of or
concerning such Debt or failure to pay at the stated maturity (and the
expiration of any grace period) any Debt of the Obligor or any Material Domestic
Subsidiary of the Obligor having a then outstanding principal amount in excess
of $50 million; and
(7) the Guarantee of the Notes ceases to be in full force and effect or the
Guarantor denies or disaffirms its obligations under the Guarantee, except as a
result of a transaction permitted under Section 701.
Section 402. Acceleration of Maturity; Rescission, and Annulment. If any
Event of Default (other than an Event of Default specified in clause (4) or (5)
of Section 401) occurs and is continuing, then either the Trustee or the Holders
of no less than 25% in aggregate principal amount of the Outstanding Notes may
declare the principal of all Outstanding Notes, and the interest, if any,
accrued thereon, to be immediately due and payable by notice in writing to the
Obligor (and to the Trustee if given by Holders). If an Event of Default
described in clause (4) or (5) of Section 401 occurs, the principal amount and
accrued interest, if any, on all the Notes as of the date of such Event of
Default will IPSO FACTO become and be immediately due and payable without any
declaration or other act on the part of the Trustee or the Holders of the Notes.
28
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, by
written notice to the Obligor and the Trustee, may rescind and annul such
declaration or waive past defaults and its consequences if:
(1) the Obligor has paid or deposited with the Trustee a sum sufficient to pay:
(a) all overdue 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 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:
(1) default is made in the payment of any 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
29
interest shall be legally enforceable) upon the overdue principal (and premium,
if any) and upon overdue interest at the applicable rate of interest determined
from time to time in the manner provided for in the Notes; 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 the 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 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 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,
(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
30
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 Notes.
Section 406. Application of Money Collected. Any money collected by the
Trustee with respect to Notes 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
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.
Section 407. Limitation on Suits. No Holder of any Note may institute any
action under this Indenture, unless and until
(1) such Holder has given the Trustee written notice of an Event
of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes have requested the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders has or have offered the Trustee such
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request as the Trustee may require;
31
(4) the Trustee has failed to institute an action for 60 days after
its receipt of such notice, request and offer of indemnity; and
(5) no inconsistent direction has been given to the Trustee during
such 60-day period by the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes;
it being understood and intended that no one or more Holders of Notes 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, 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.
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
interest on such Note on or after the respective payment dates expressed in such
Note (or, in the case of redemption or repurchase on the Redemption Date or
Repurchase 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 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
32
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 aggregate
principal amount of the Outstanding Notes shall have the right, to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Notes 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 is 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 may, on behalf of the
Holders of all Notes, waive any past default hereunder with respect to the
Notes, except a default not theretofore cured:
(1) in the payment of principal of or interest on any Notes, or
(2) in respect of a covenant or provision in this Indenture which, under
Article Eight hereof, cannot be modified without the consent of the Holder of
each Outstanding Note.
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 to which the suit relates, or to any suit instituted by any
Holder for the enforcement of the payment of
33
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:
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, 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 conclusively
rely, as to the truth of the statements and the correctness of 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 has occurred and is continuing, the Trustee
shall exercise 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 person
would exercise or use under the circumstances in the conduct of his or her 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;
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(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
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
such Notes; 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, the Trustee shall transmit by mail to
all Holders of such Notes, as their names and addresses appear in the Security
Register, notice of such 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 determine in good faith
that the withholding of such notice is in the interests of the Holders of the
Outstanding Notes 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;
35
(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 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) or (7) or of
the identity of a Material Domestic Subsidiary of the Obligor 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
36
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
(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
37
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 February 8, 1999, among Pepsi
Bottling Holdings, Inc., PepsiCo, Inc., as guarantor, and the Trustee, as
supplemented by the Supplemental Indenture dated as of February 9, 1999, among
Pepsi Bottling Holdings, Inc., PepsiCo, Inc. and Bottling Group, LLC relating to
the Bottling Group, LLC Guaranteed Senior Notes due 2004 and 2009 and (ii) the
Indenture dated as of February 25, 1999 between PepsiCo, Inc. and the Trustee,
as supplemented by the Supplemental Indenture dated as of February 26, 1999
among PepsiCo, Inc., PBG, Bottling Group, LLC and the Trustee.
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 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:
38
(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 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
39
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.
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 11.
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
40
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 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:
---------------------------
41
As Authenticating Agent
By:
---------------------------
Authorized Officer
Section 515. Calculation Agent. The Chase Manhattan Bank, in its capacity
as Calculation Agent with respect to the Notes shall be entitled to all the
rights, protections and immunities (including, without limitation, rights under
Section 507) available to it in its capacity as Trustee hereunder.
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) on June 30 and December 31 of each year, 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.
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:
42
(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 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
43
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, 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 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.
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)).
44
(3) For so long as the Obligor or the Guarantor 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 and/or the Guarantor as the case may be, 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 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 and Guarantor May Consolidate, etc., Only on Certain
Terms. The Obligor and the Guarantor may each consolidate or merge with or into,
or transfer or lease all or substantially all of its assets to, any corporation
that is organized and validly existing under the laws of any domestic
jurisdiction, and may permit any such corporation to consolidate with or merge
into the Obligor or the Guarantor or convey, transfer, or lease all or
substantially all of its assets to the Obligor or the Guarantor, PROVIDED,
(1) that either the Obligor or the Guarantor will be the surviving
corporation or, if not, that the successor corporation will expressly assume by
a supplemental indenture the due and punctual payment of the principal, premium,
if any, and interest on the Notes, in the case of the Obligor, the due and
punctual payment of all amounts owing under the Guarantee, in the case of
Guarantor, and the performance of every covenant of the Indenture to be
performed or observed by the Obligor or the Guarantor, as the case may be,
(2) the Obligor, the Guarantor or such successor corporation will not,
immediately after such merger, consolidation, sale, or conveyance or lease, be
in default in the performance of any such obligations, and
(3) the Obligor shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and any assumption permitted or required
by this Article complies with the provisions of this Article.
Section 702. 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 Section
701, as the case may be, the successor corporation will succeed to and be
substituted for the Obligor or the Guarantor, as the case may be, as Obligor or
Guarantor, as the case may be, on the Notes or on the Guarantee, as the case may
be, with the same effect as if it had been named in this Indenture as the
Obligor or as Guarantor, as the case may be and the Obligor or the Guarantor, as
the case may be, shall thereupon, except in the case
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of a lease, be released from all obligations hereunder and under the Notes and
the Guarantee, as applicable.
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 evidence the surrender of any right or power of the Obligor;
(4) 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 provided that such action pursuant to
this Subsection (4) shall not adversely effect the interests of the Holders in
any respect; or
(5) 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
(6) to add to the rights of the Holders of the Notes; or
(7) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder; or
(8) to add any additional Events of Default in respect of the Notes.
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No supplemental indenture for the purposes identified in Subsection (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 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 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 under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(1) change the 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 the Repurchase Date; or
(2) reduce the percentage in principal amount of the Outstanding Notes, 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 or Section 413, 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
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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 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 applicable rate of interest determined from time to time in the
manner provided for in the Notes; 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 rates 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
48
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.
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.
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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 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 Liens. So long as any of the Notes shall be
Outstanding, neither the Obligor nor any Restricted Subsidiary of the Obligor
will incur, suffer to exist or guarantee any Debt, secured by a mortgage, pledge
or lien (a "Lien") on any Principal Property or on any shares of stock of any
Restricted Subsidiary of the Obligor unless the Obligor or such first mentioned
Restricted Subsidiary secures or the Obligor causes such Restricted Subsidiary
to secure the Notes or the Guarantee, as the case may be (and any other Debt of
the Obligor or such Restricted Subsidiary, at the option of the Obligor or such
Restricted Subsidiary, as the case may be, not subordinate to the Notes, or the
Guarantee, as the case may be), equally and ratably with (or prior to) such
secured Debt, for so long as such secured Debt shall be so secured. This
restriction will not, however, apply to Debt secured by:
(1) Liens existing prior to the issuance of the Notes;
(2) Liens on property of or shares of stock of or Debt of any corporation
existing at the time such corporation becomes a Restricted Subsidiary of the
Obligor;
(3) Liens on property or shares of stock existing at the time of
acquisition (including acquisition through merger or consolidation);
(4) any Lien securing indebtedness incurred to finance all or any part of
the purchase price or cost of construction of property (or additions,
substantial repairs, alterations or substantial improvements thereto), provided
that such Lien and the indebtedness secured thereby
50
are incurred within 365 days of the later of acquisition or completion of
construction (or addition, repair, alteration or improvement) and full operation
thereof;
(5) Liens in favor of the Obligor or any of its Restricted Subsidiaries;
(6) Liens in favor of, or required by contracts with, governmental
entities; and
(7) any extension, renewal, or refunding referred to in any of the
preceding clauses (1) through (6), PROVIDED THAT in the case of a Lien permitted
under clause (1), (2), (3), (4) or (5), the Debt secured is not increased nor
the Lien extended to any additional assets.
Notwithstanding the foregoing, the Obligor or any of its Restricted
Subsidiaries may incur, suffer to exist or guarantee any Debt secured by a Lien
on any Principal Property or on any shares of stock of any Restricted Subsidiary
of the Obligor if, after giving effect thereto, the aggregate amount of Exempted
Debt does not exceed 15% of Consolidated Net Tangible Assets.
Section 907. Limitation on Sale-Leaseback Transactions. (a) The Obligor
will not, and will not permit, any of its Restricted Subsidiaries to, sell or
transfer, directly or indirectly, except to the Obligor or a Restricted
Subsidiary of the Obligor, any Principal Property as an entirety, or any
substantial portion thereof, with the intention of taking back a lease of all or
part of such property, except a lease for a period of three years or less at the
end of which it is intended that the use of such property by the lessee will be
discontinued; PROVIDED that, notwithstanding the foregoing, the Obligor or any
of its Restricted Subsidiaries may sell a Principal Property and lease it back
for a longer period (i) if the Obligor or such Restricted Subsidiary would be
entitled, pursuant to Section 906, to create a Lien on the property to be leased
securing Debt in an amount equal to the Attributable Debt with respect to the
sale and lease-back transaction without equally and ratably securing the
outstanding Notes or (ii) if (A) the Obligor promptly informs the Trustee of
such transactions, (B) the net proceeds of such transactions are at least equal
to the fair value (as determined by a Board Resolution) of such property and (C)
the Obligor causes an amount equal to the net proceeds of the sale to be applied
either (i) to the retirement (whether by redemption, cancellation after
open-market purchases, or otherwise), within 365 days after receipt of such
proceeds, of Funded Debt having an outstanding principal amount equal to such
net proceeds or (ii) to the purchase or acquisition (or in the case of property,
the construction) of property or assets used in the business of the Obligor or
any Restricted Subsidiary, within 365 days after receipt of such proceeds.
(b) Notwithstanding the foregoing paragraph (a), the Obligor or any
Restricted Subsidiary of the Obligor may enter into sale and lease-back
transactions in addition to those permitted by the foregoing paragraph (a), and
without any obligation to retire any outstanding Funded Debt or to purchase
property or assets, PROVIDED that at the time of entering into such sale and
lease-back transactions and after giving effect thereto, Exempted Debt does not
exceed 15% of Consolidated Net Tangible Assets.
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ARTICLE X.
REDEMPTION OF NOTES
Section 1001. Election To Redeem; Notice to Trustee. If the Obligor elects
to redeem Notes pursuant to the optional redemption provisions of Section 1007
hereof, it shall furnish to the Trustee, at least eight Business Days but not
more than 15 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 of the Notes are to be redeemed at any time pursuant to Section 1007,
selection of Notes for redemption will be made by the Trustee by such method as
the Trustee shall deem fair and appropriate; PROVIDED that no Notes in
denominations of $250,000 shall be redeemed in part. 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 of $1,000
in excess 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.
Section 1003. Notice of Redemption. The Notes will be subject to redemption
pursuant to Section 1007 upon not less than five Business Days' prior notice
mailed to each Holder of Notes to be redeemed at its registered address by
first-class mail.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all Outstanding Notes 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
52
redemption, upon surrender of such Note, a new Note or Notes 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 pursuant to Section 1007 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 or Repurchase 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.
Section 1005. Notes Payable on Redemption Date. Notice of redemption having
been given as aforesaid or, in connection with a redemption under Section 1008,
the applicable Note having been surrendered in accordance with such Section, 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 said notice of redemption or in accordance with Section 1008
such Notes shall be paid by the Obligor at the Redemption Price.
If any Note called for redemption or subject to redemption under Section
1008 shall not be so paid upon surrender thereof for redemption, the principal
shall, until paid, bear interest from the Redemption Date at the rate of
interest determined from time to time in the manner provided for in the Notes.
53
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 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 by the Obligor. The Notes will be
redeemable at the option of the Obligor, in whole but not in part, on the 45th
day following the original issuance of the Notes hereunder, at a Redemption
Price equal to 100% of the principal amount of the Notes being redeemed plus
accrued and unpaid interest on such Notes to the date of redemption.
The Notes will also be redeemable at the option of the Obligor, in whole or
in part, beginning on the 60th day following the original issuance of the Notes
hereunder, and monthly thereafter, at a Redemption Price equal to 100% of the
principal amount of the Notes being redeemed plus accrued and unpaid interest on
such Notes to the date of redemption.
If any date fixed for redemption of the Notes is not a Business Day, then
the Redemption Date will be postponed to the next succeeding day that is a
Business Day and interest shall continue to accrue thereon at the applicable
rate of interest determined from time to time in the manner provided for in the
Notes to the actual date of payment.
Section 1008. Optional Redemption by the Holders. Each Holder will have the
right, at the Holder's option, to require the Obligor to redeem any or all of
such Holder's Notes at a Redemption Price in cash equal to 100% of the principal
amount thereof, plus all accrued and unpaid interest to the date of repurchase,
beginning on 60th day following the date of original issuance of the Notes
hereunder, and monthly thereafter (or the next succeeding Business Day if such
date is not a Business Day) (each such date, a "Repurchase Date"). Holders
electing to have a Note redeemed will be required to surrender the Note, duly
endorsed for transfer, with the form entitled "Option of Holder to Elect
Redemption" on the reverse of the Note completed, to the Paying Agent prior to
the close of business on the third Business Day preceding the applicable
Repurchase Date.
Section 1009. Mandatory Redemption. Except as provided for in Section 1008,
the Obligor shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
ARTICLE XI.
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GUARANTEE
Section 1101. Guarantee. 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 premium, if any, and (to the extent permitted by law)
interest on any interest, if any, on the Notes and all other 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 obligations, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance of any
other 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
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 hereby agrees that its obligations under this Guarantee shall
be unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any thereof, the
entry of any judgment against the Obligor, any action to enforce the same or any
other 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; (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) demand, protest and notice of any kind (except as
expressly required by this Indenture), including but not limited to notice of
the existence, creation or incurring of any new or additional Indebtedness or
obligation or of 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
55
other respects more burdensome than that of the principal; (f) any defense
arising because of a Benefitted Party's election, in any proceeding instituted
under the Bankruptcy Law, of the application of Section 1111(b)(2) of the
Bankruptcy Code; and (g) 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 and all other costs
provided for under this Indenture. This is a Guarantee 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, 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.
Section 1102. Execution and Delivery of the Guarantee. 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 C hereto shall
be endorsed on each Note authenticated and delivered by the Trustee and executed
on behalf of the Guarantor by one of the Managing Directors of the Guarantor by
manual or facsimile signature. Each Guarantor agrees that the Guarantee set
forth in this Article Eleven will remain in full force and effect and apply to
all the Notes notwithstanding any failure to endorse on each Note a notation of
the Guarantee.
If an Officer of the Guarantor whose manual or 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.
Section 1103. Limitation of Guarantor's Liability
The Guarantor, and by its acceptance hereof, each Holder, hereby
confirms that it is the intention of both parties that the Guarantee not
constitute a fraudulent transfer or convey-
56
ance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar Federal or State law. To
effectuate the foregoing intention, the Holders and the Guarantor hereby
irrevocably agree that the obligations of the Guarantor under this Article
Eleven shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of the Guarantor, result in the
obligations of the Guarantor under the Guarantee not constituting a fraudulent
transfer or conveyance under federal or state law.
57
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
The Pepsi Bottling Group, Inc.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
Bottling Group, LLC
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
The Chase Manhattan Bank,
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
State of New York, County of New York, ss.:
On the day of March, 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]
00
Xxxxx xx Xxx Xxxx, Xxxxxx xx Xxx Xxxx, ss.:
On the day of March, 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 Pepsi Bottling Group, 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]
00
Xxxxx xx Xxx Xxxx, Xxxxxx xx Xxx Xxxx, ss.:
On the day of March, 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 Bottling Group LLC, 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
EXHIBIT A
FORM OF 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
THE PEPSI BOTTLING GROUP, INC.
SERIES B SENIOR NOTE DUE 2000
THE PEPSI BOTTLING GROUP, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Obligor"),
for value received, hereby promises to pay to [insert if a Global Note: Cede &
Co. as nominee for The Depository Trust Company] [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 March
6, 2000 (the "Maturity Date"), and interest on said principal sum on the earlier
of the Maturity Date or the date of redemption of such Notes (each, an "Interest
Payment Date") at the rate and in the manner set forth on the reverse hereof.
The amount of interest accruing on the Notes for any Interest Period will be
calculated on the basis of the actual number of days in the relevant Interest
Period, divided by 360.
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
on the relevant Interest Payment 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.
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.
Dated:
THE PEPSI BOTTLING GROUP, 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
[FORM OF REVERSE OF NOTE]
THE PEPSI BOTTLING GROUP, INC.
SERIES B SENIOR NOTE DUE 2000
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. Interest. The Pepsi Bottling Group, Inc., a Delaware corporation (the
"Obligor") promises to pay interest on the Notes to the Holders thereof on the
earlier of the Maturity Date or the redemption of the Notes. The Notes will bear
interest from the date of original issuance for each Interest Period at a per
annum rate (the "Interest Rate") determined by The Chase Manhattan Bank, or its
successor appointed by the Obligor, acting as calculation agent (the
"Calculation Agent"). Interest will be compounded as of each Interest Rate Reset
Date. The period commencing on an Interest Rate Reset Date and ending on the day
preceding the next succeeding Interest Rate Reset Date is called an "Interest
Period", with the exception that (i) the first Interest Period shall begin on
the date of the original issuance of the Notes and shall end on the 59th day
following the original issuance of the Notes, the day immediately preceding the
first Interest Rate Reset Date and (ii) the final Interest Period shall end on
the Maturity Date (or the date of redemption of such Notes) and shall commence
on the Interest Rate Reset Date immediately preceding such date, provided, that
if the full amount of principal and interest payable on such scheduled Maturity
Date or date of redemption is not paid, the final Interest Period shall end on
the date such amount is actually paid. The Interest Rate will be equal to LIBOR
(as defined below) on the second London Business Day (as defined below)
immediately preceding the first day of each Interest Period (each, an "Interest
Determination Date") plus the Initial Margin in respect of the Interest Rate for
the first Interest Period and the Final Margin in respect of the Interest Rate
for any subsequent Interest Period; PROVIDED, HOWEVER, that in certain
circumstances described below, the Interest Rate will be determined in an
alternative manner without reference to LIBOR. Promptly upon such determination,
the Calculation Agent will notify the Trustee of the Interest Rate for the
related Interest Period.
For purposes of this calculation, "London Business Day" is defined as a day
on which dealings in deposits in U.S. dollars are transacted, or with respect to
any future date, are expected to be transacted, in the London interbank market.
"Interest Rate Reset Date" means (i) the 60th day following the issuance of
the Notes (or the next succeeding Business Day if such date is not a Business
Day) and (ii) every 30th day (or the next succeeding Business Day if such date
is not a Business Day) following the immediately preceding Interest Reset Date.
A-4
"LIBOR" for (i) the first Interest Period will be the offered rate
for deposits in U.S. dollars having an index maturity of 60-days for a period
commencing on the second London Business Day immediately following the related
Interest Determination Date ("60-Day Deposits") in amounts of not less than
$1,000,000, as such rate appears on Telerate Page 3750 (as defined below), or a
successor reporter of such rates selected by the Calculation Agent and
acceptable to the Obligor, at approximately 11:00 a.m., London time, on the
Interest Determination Date (the "60-Day Reported Rate"), and (ii) any
subsequent Interest Period will be the offered rate for deposits in U.S. dollars
having an index maturity of 30-days for a period commencing on the second London
Business Day immediately following the related Interest Determination Date
("30-Day Deposits") in amounts of not less than $1,000,000, as such rate appears
on Telerate Page 3750 (as defined below), or a successor reporter of such rates
selected by the Calculation Agent and acceptable to the Obligor, at
approximately 11:00 a.m., London time, on the Interest Determination Date (the
"30-Day Reported Rate").
"Telerate Page 3750" means the display designated as "Page 3750" on
Bridge Telerate, Inc. (or such other page as may replace Page 3750 on that
service or such other service or services as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits).
If the following circumstances exist on any Interest Determination
Date, the Calculation Agent shall determine the Interest Rate for the Notes as
follows (in the following order of priority):
(i) In the event no 60-Day Reported Rate or 30-Day Reported Rate, as
applicable, appears on Telerate Page 3750 as of approximately 11:00 a.m.
London time on an Interest Determination Date, the Calculation Agent shall
request the principal London offices of each of four major banks in the
London interbank market selected by the Calculation Agent (after
consultation with the Obligor) to provide a quotation of the rate (a "Rate
Quotation") at which (a) 60-day Deposits, in the case of the determination
of LIBOR for the first Interest Period, or (b) 30-Day Deposits, in the
case of the determination of LIBOR for subsequent Interest Periods, in
each case, in amounts of not less than $1,000,000 are offered by it to
prime banks in the London interbank market, as of approximately 11:00 a.m.
London time on such Interest Determination Date, that is representative of
single transactions at such time ("Representative Amounts"). If at least
two Rate Quotations are provided, the Interest Rate will be the arithmetic
mean of the Rate Quotations obtained by the Calculation Agent, plus the
Initial Margin in respect of the determination of the Interest Rate for
the first Interest Period, and the Final Margin in either case in respect
of the determination of the Interest Rate for any subsequent Interest
Period.
(ii) In the event no Reported Rate appears on Telerate Page 3750 and there
are fewer than two Rate Quotations, the Interest Rate will be the
arithmetic mean of the rates quoted at
A-5
approximately 11:00 a.m. New York City time on such Interest Determination
Date, by three major banks in New York City, selected by the Calculation
Agent (after consultation with the Obligor), for loans in Representative
Amounts in U.S. dollars to leading European banks, having an index maturity
of (a) 60-days, in the case of the determination of LIBOR for the first
Interest Period, or (b) 30-days, in the case of the determination of LIBOR
for any subsequent Interest Period, for a period commencing on the second
London Business Day immediately following such Interest Determination Date,
plus the Initial Margin in respect of the determination of the Interest
Rate for the first Interest Period and the Final Margin in respect of the
determination of the Interest Rate for any subsequent Interest Period;
PROVIDED, HOWEVER, that if fewer than three banks selected by the
Calculation Agent are quoting such rates, the Interest Rate for the
applicable period will be the same as the Interest Rate in effect for the
immediately preceding Interest Period.
All percentages resulting from any calculations on the Notes will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths or more of a percentage point rounded upward
(e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and
all dollar amounts used or resulting from such calculation will be rounded to
the nearest cent (with one-half cent or more being rounded upward).
Upon the request of the holder of any Note, the Calculation Agent
will provide to such holder the Interest Rate in effect on the date of such
request and, if determined, the Interest Rate for the next Interest Period.
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 applicable rate of interest determined from
time to time in the manner provided for in 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 (without regard to any applicable grace periods) from
time to time on demand at the same rates to the extent lawful.
2. Method of Payment. Principal and interest on the Notes will be
payable at the office or agency of the Obligor maintained for such purpose
within the City and State of New York. Until otherwise designated by the
Obligor, the Obligor's office or agency in New York will be the office of the
Trustee maintained for such purpose or, at the option of the Obligor. Payment
by wire transfer of immediately available funds shall be required with
respect to principal of, premium, if any, and interest on Global Notes.
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.
A-6
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
March 5, 1999 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture") between 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 of 1939, as amended. 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 by the Obligor. The Notes will be redeemable at the
option of the Obligor, in whole but not in part, on the 45th day following the
original issuance of the Notes, at redemption price equal to 100% of the
principal amount of the notes being redeemed plus accrued and unpaid interest on
such Notes to the date of redemption.
The Notes will also be redeemable at the option of the Obligor, in
whole or in part, beginning on the 60th day following the original issuance of
the Notes, and monthly thereafter, at redemption price equal to 100% of the
principal amount of the Notes being redeemed plus accrued and unpaid interest on
such Notes to the date of redemption.
If any date fixed for redemption of the Notes is not a Business day,
then the redemption date will be postponed to the next succeeding day that is a
Business Day.
6. Optional Redemption by the Holders. Each Holder will have the right, at
Holder's option, to require the Obligor to redeem any or all of such Holder's
Notes at a redemption price in cash equal to 100% of the principal amount
thereof, plus all accrued and unpaid interest to the date of repurchase,
beginning on 60th day following the date of original issuance of the Notes, and
monthly thereafter (or the next succeeding Business Day if such date is not a
Business Day) (each such date, a "Repurchase Date"). Holders electing to have a
Note redeemed will be required to surrender the Note, duly endorsed for
transfer, with the form entitled "Option of Holder to Elect Redemption" on the
reverse of this Note completed, to the Paying Agent prior to the close of
business on the third Business Day preceding the applicable Repurchase Date.
7. Mandatory Redemption. Except as provided in paragraph 6 of this Note,
the Obligor shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
A-7
8. Notice of Redemption. The Notes will be subject to redemption pursuant
to paragraph 5 of this Note upon not less than five Business Days' prior notice
mailed to each holder of Notes to be redeemed at its registered address by
first-class mail.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $250,000 and integral multiples of $1,000 in
excess thereof. 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 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.
10. 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.
11. 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 affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Notes at the time Outstanding, on behalf of
the Holders of all Notes, to waive 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.
12. 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 Notes; (ii) failure to make any payment of
interest when due on the Notes, which failure is not cured within 30 days; (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 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 any Material Domestic Subsidiary
of the Obligor; (v) the maturity of any Debt of the Obligor or any Material
Domestic Subsidiary of the Obligor having a then outstanding principal amount in
excess of $50 million shall have been accelerated by a holder or holders thereof
or any trustee or agent acting
A-8
on behalf of such holder or holders, in accordance with the provision of any
contract evidencing, providing for the creation of or concerning such Debt or
failure to pay at the stated maturity (and the expiration of any grace period)
any Debt of the Obligor or any Material Domestic Subsidiary of the Obligor
having a then outstanding principal amount in excess of $50 million; and (vi)
any Guarantee of the notes ceases to be in full force and effect or the
Guarantor denies or disaffirms its obligations under any Guarantee of the Notes.
If an Event of Default with respect to the 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.
13. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
14. 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).
15. 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.
16. Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
A-9
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-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1/
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:
Amount of Amount of Principal Amount Signature
decrease in increase in of this Global Note of authorized
Date of Principal Amount Principal Amount of following such decrease officer of Trustee
Exchange of this Global Note this Global Note (or increase) or Custodian
-------------- ------------------- ------------------- ----------------------- ------------------
----------
(1) THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
A-11
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: Series B Senior Notes due 2000
of The Pepsi Bottling Group, 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 Obligor or one of its
subsidiaries.
[INSERT NAME OF TRANSFEROR]
By:
--------------------------------
Date:
* Check applicable box.
B-1
EXHIBIT C
GUARANTEE
Bottling Group, LLC, a Delaware limited liability company (hereinafter
referred to as the "Guarantor"), which term includes any successor under the
Indenture, dated as of March 5, 1999, among The Pepsi Bottling Group, Inc., a
Delaware corporation or any successor thereto (the "Obligor"), the Guarantor 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 Notes will be duly and punctually paid in full when due, whether
at maturity, by acceleration or otherwise, and interest on overdue principal,
and premium, if any, and (to the extent permitted by law) interest on any
interest, if any, on the Notes and all other 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 obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
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 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.
C-1
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
Guarantor:
By:
-------------------------------------
Name:
Title:
C-2
EXHIBIT D
OPTION OF HOLDER TO ELECT REDEMPTION
If you want to elect to have this Note redeemed by the Obligor pursuant to
Section 1008 of the Indenture, check the box below:
/ / Section 1008
If you want to elect to have only part of this Note redeemed by the Obligor
pursuant to Section 1008 of the Indenture, state the amount you elect to have
redeemed:
$_____________ ($250,000 or integral multiples of $1,000 in excess thereof)
and the denominations of the Notes issued in respect of the portions not
redeemed.
Date: ___________ Your Signature:________________________________
(Sign exactly as your name appears on the Note)
By:________________________
Notice: To be executed by an executive officer
Tax Identification No.: _______________________
Signature Guarantee:*__________________________
-------------
* Signature must be guaranteed
D-1
