EXHIBIT 4
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
_________________________
FIRST SUPPLEMENTAL INDENTURE
dated as of May ___, 1999
to
INDENTURE
dated as of January 15, 1993
_________________________
XXXXXXX CORPORATION
THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is made
and dated as of May __, 1999 by and between Xxxxxxx Corporation, a Delaware
corporation formerly known as Heartland Territories Holdings, Inc. ("New
Xxxxxxx"), and The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States (the
"Trustee"). Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Indenture (as defined below).
WHEREAS, Xxxxxxx Corporation, a corporation organized and existing under
the laws of the State of Delaware, ("Old Xxxxxxx") and Trustee entered into an
Indenture dated as of January 15, 1993, pursuant to which Old Xxxxxxx issued
debt securities in the form of unsecured notes (the "Securities");
WHEREAS, as of the date hereof, $__________ aggregate principal amount of
the Securities are outstanding;
WHEREAS, pursuant to an Amended and Restated Contribution and Merger
Agreement dated as of March 18, 1999 among Old Xxxxxxx, PepsiCo, Inc., a North
Carolina corporation ("PepsiCo"), and Heartland Territories Holdings, Inc., a
Delaware corporation and wholly owned subsidiary of PepsiCo ("Heartland"), Old
Xxxxxxx has been merged (the "Merger") with and into Heartland, with Heartland
surviving as New Xxxxxxx, and New Xxxxxxx has assumed various liabilities and
obligations of Old Xxxxxxx, including those under the Indenture and with respect
to the Securities;
WHEREAS, in connection with the Merger and in accordance with Section
10.01(a) of the Indenture, the parties desire to enter into this Supplemental
Indenture, without the consent of the holders of the outstanding Securities, in
order to evidence the succession under the Indenture of New Xxxxxxx to Old
Xxxxxxx and the assumption by New Xxxxxxx of the covenants, agreements and
obligations of Old Xxxxxxx contained in the Indenture;
WHEREAS, Old Xxxxxxx has delivered to the Trustee the Certified Board
Resolution and Opinion of Counsel required by Sections 10.01 and 11.03 of the
Indenture.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, New Xxxxxxx and the Trustee agree as follows:
1. Assumption of Obligations. In accordance with Section 11.01 of the
Indenture, New Xxxxxxx hereby expressly assumes the due and punctual payment of
the principal of (and premium, if any) and any interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of the Indenture to be performed by Old
Xxxxxxx.
2. Succession. In accordance with Section 11.02 of the Indenture, New
Xxxxxxx hereby succeeds to and is substituted for Old Xxxxxxx, with the same
effect as if New Xxxxxxx were a party to the Indenture.
3. Effect of Supplemental Indenture. In accordance with Section 10.03 of
the Indenture, the Indenture is hereby deemed to be modified and amended by this
Supplemental Indenture with respect to the Securities and the respective rights,
limitations of rights, obligations,
duties and immunities under the Indenture of the Trustee, Old Xxxxxxx and the
Holders of Securities shall be determined, exercised and enforced under the
Indenture, as supplemented by this Supplemental Indenture, and all the terms and
conditions of this Supplemental Indenture shall be and are hereby deemed to be
part of the terms and conditions of the Indenture for any and all purposes. As
supplemented by this Supplemental Indenture, the Indenture is in all respects
ratified and confirmed and the Indenture and this Supplemental Indenture shall
be read, taken and construed as one and the same instrument. From and after the
date of this Supplemental Indenture, all references in the Indenture to this
"Indenture" shall refer to the Indenture as supplemented hereby.
4. Notation of Changes. In accordance with Section 10.04 of the
Indenture, Securities authenticated and delivered after the execution of this
Supplemental Indenture in exchange for or in lieu of any Securities outstanding
shall, if required by the Trustee, bear a legend as follows:
"Pursuant to a First Supplemental Indenture dated as of May __, 1999
(the "Supplemental Indenture") between Xxxxxxx Corporation, a Delaware
corporation formerly known as Heartland Territories Holdings, Inc.
("New Xxxxxxx"), and the Trustee, New Xxxxxxx has expressly assumed
all the obligations under this Security and of the Indenture expressed
therein to be performed by Xxxxxxx Corporation, a Delaware corporation
which merged into New Xxxxxxx on May __, 1999. Copies of the
Supplemental Indenture are on file with the Trustee."
5. Acceptance by Trustee. The Trustee accepts the amendment of the
Indenture effected by this Supplemental Indenture and agrees to perform the
Indenture as supplemented hereby, but only upon the terms and conditions set
forth in the Indenture.
6. Governing Law. This Supplemental Indenture shall be deemed to be a
contract under the laws of the State of Illinois, and for all purposes shall be
governed by and construed in accordance with the laws of such State.
7. Counterparts. This Supplemental Indenture may be executed in any
number of counterparts, each of which shall be deemed to be an original but all
of which shall constitute one and the same instrument.
8. Notices. New Xxxxxxx and Old Xxxxxxx have the same principal business
address so any required notices or demands under the Indenture shall be
delivered or sent to New Xxxxxxx at the address set forth in Section 14.03 of
the Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXXXXX CORPORATION
By:____________________________
Name:
Title:
Attest:
___________________________
Secretary
[CORPORATE SEAL]
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:____________________________
Name:
Title:
Attest:
__________________________
Secretary
[CORPORATE SEAL]
