As filed with the Securities and Exchange Commission on
October 15, 2008
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, DC 20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
PepsiCo, Inc.
(Exact Name of Registrant as
Specified in Its Charter)
|
|
|
North Carolina
|
|
13-1584302
|
(State or Other Jurisdiction
of
Incorporation or Organization)
|
|
(I.R.S. Employer
Identification Number)
|
700 Anderson Hill Road
Purchase, New York
10577
(914) 253-2000
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
Thomas H. Tamoney, Jr.
Senior Vice President, Deputy
General Counsel and Assistant Secretary
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York
10577
(914) 253-2000
Fax:
(914) 253-3123
(Name, Address, Including Zip
Code, and Telephone Number, Including Area Code, of Agent For
Service)
Copy to:
Joseph A. Hall
Davis Polk &
Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
Fax: (212) 450-4800
Approximate date of commencement of proposed sale to the
public:
From time to time after this registration
statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of earlier effective registration
statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act.
|
|
|
|
Large
accelerated
filer
þ
|
Accelerated
filer
o
|
Non-accelerated
filer
o
|
Smaller reporting
company
o
|
(Do not check if a smaller
reporting company)
CALCULATION OF REGISTRATION
FEE
|
|
|
|
|
|
|
|
|
|
Amount to Be Registered/Proposed Maximum
|
|
|
|
Title of Each Class of Securities
|
|
|
Offering Price Per Unit/Proposed Maximum
|
|
|
Amount of
|
to Be Registered
|
|
|
Aggregate Offering Price(1)
|
|
|
Registration Fee(1)
|
Common stock, par value
1
2
/
3
cents per share
|
|
|
|
|
|
|
Debt securities
|
|
|
|
|
|
|
Guarantees of debt securities
|
|
|
|
|
|
|
Warrants
|
|
|
|
|
|
|
Units
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
An indeterminate aggregate initial
offering price and number or amount of the securities of each
identified class is being registered as may from time to time be
sold at indeterminate prices. In accordance with Rules 456(b)
and 457(r), the registrant is deferring payment of all of the
registration fee.
|
PROSPECTUS
PepsiCo,
Inc.
COMMON
STOCK
DEBT SECURITIES
GUARANTEES OF DEBT SECURITIES
WARRANTS
UNITS
We may offer from time to time common stock, debt securities,
guarantees of debt securities, warrants or units. Specific terms
of these securities will be provided in supplements to this
prospectus. You should read this prospectus and any supplement
carefully before you invest.
Investing in these securities involves certain risks. See the
information included and incorporated by reference in this
prospectus and the accompanying prospectus supplement for a
discussion of the factors you should carefully consider before
deciding to purchase these securities, including the information
under Risk Factors in our most recent annual report
on
Form 10-K
filed with the Securities and Exchange Commission.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities, or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is October 15, 2008.
You should rely only on the information contained in or
incorporated by reference in this prospectus, in any
accompanying prospectus supplement or in any free writing
prospectus filed by us with the Securities and Exchange
Commission (the SEC) and any information about the
terms of securities offered conveyed to you by us, our
underwriters or our agents. We have not authorized anyone to
provide you with different information. We are not making an
offer of these securities in any state where the offer is not
permitted. You should not assume that the information contained
in or incorporated by reference in this prospectus or any
prospectus supplement or in any such free writing prospectus is
accurate as of any date other than their respective dates.
The terms PepsiCo, we, us,
and our refer to PepsiCo, Inc.
TABLE OF
CONTENTS
THE
COMPANY
We are a leading global snack and beverage company. We
manufacture, market and sell a variety of salty, convenient,
sweet and grain-based snacks, carbonated and non-carbonated
beverages and foods in approximately 200 countries, with our
largest operations in North America (United States and Canada),
Mexico and the United Kingdom.
We are comprised of three business units, as follows:
(1) PepsiCo Americas Foods (PAF), which includes Frito-Lay
North America (FLNA), Quaker Foods North America (QFNA) and all
of our Latin American food and snack businesses (LAF), including
our Sabritas and Gamesa businesses in Mexico;
(2) PepsiCo Americas Beverages (PAB), which includes
PepsiCo Beverages North America (PBNA) and all of our Latin
American beverage businesses; and
(3) PepsiCo International (PI), which includes all PepsiCo
businesses in the United Kingdom, Europe, Asia, Middle East and
Africa.
Our three business units are comprised of six reportable
segments, as follows:
Frito-Lay
North America
Frito-Lay North America, or FLNA, manufactures or uses contract
manufacturers, markets, sells and distributes branded snacks.
These snacks include Lays potato chips, Doritos tortilla
chips, Tostitos tortilla chips, Cheetos cheese flavored snacks,
branded dips, Fritos corn chips, Ruffles potato chips, Quaker
Chewy granola bars, SunChips multigrain snacks, Rold Gold
pretzels, Santitas tortilla chips, Grandmas cookies,
Frito-Lay nuts, Munchies snack mix, Gamesa cookies, Funyuns
onion flavored rings, Quaker Quakes corn and rice snacks, Miss
Vickies potato chips, Stacys pita chips, Smartfood
popcorn, Chesters fries, branded crackers and Flat Earth
crisps. FLNA branded products are sold to independent
distributors and retailers.
Quaker
Foods North America
Quaker Foods North America, or QFNA, manufactures or uses
contract manufacturers, markets and sells cereals, rice, pasta
and other branded products. QFNAs products include Quaker
oatmeal, Aunt Jemima mixes and syrups, Life cereal, Capn
Crunch cereal, Quaker grits,
Rice-A-Roni,
Pasta Roni and Near East side dishes. These branded products are
sold to independent distributors and retailers.
Latin
America Foods
Latin America Foods, or LAF, manufactures, markets and sells a
number of leading salty and sweet snack brands including Gamesa,
Doritos, Cheetos, Ruffles, Sabritas and Lays. Further, LAF
manufactures or uses contract manufacturers, markets and sells
many Quaker brand cereals and snacks. These branded products are
sold to independent distributors and retailers.
PepsiCo
Americas Beverages
PepsiCo Americas Beverages, or PAB, manufactures or uses
contract manufacturers, markets and sells beverage concentrates,
fountain syrups and finished goods, under various beverage
brands including Pepsi, Mountain Dew, Gatorade, 7UP (outside the
U.S.), Tropicana Pure Premium, Sierra Mist, Mirinda, Propel,
Tropicana juice drinks, Dole, SoBe Life Water, Naked juice and
Izze. PAB also manufactures or uses contract manufacturers,
markets and sells ready-to-drink tea, coffee and water products
through joint ventures with Unilever (under the Lipton brand
name) and Starbucks. In addition, PAB licenses the Aquafina
water brand to its bottlers and markets this brand. PAB sells
concentrate and finished goods for some of these brands to
authorized bottlers, and some of these branded products are sold
directly by us to independent distributors and retailers. The
bottlers sell our brands as finished goods to independent
distributors and retailers. PABs volume reflects sales to
its independent distributors and retailers, as well as the sales
of beverages bearing our trademarks that bottlers have reported
as sold to independent distributors and retailers. Bottler case
sales
1
(BCS) and concentrate shipments and equivalents (CSE) are not
necessarily equal during any given period due to seasonality,
timing of product launches, product mix, bottler inventory
practices and other factors. While our revenues are not based on
BCS volume, we believe that BCS is a valuable measure as it
measures the sell-through of our products at the consumer level.
United
Kingdom & Europe
United Kingdom & Europe, or UKEU, manufactures,
markets and sells through consolidated businesses as well as
through noncontrolled affiliates, a number of leading salty and
sweet snack brands including Lays, Walkers, Cheetos,
Doritos and Ruffles. Further, UKEU manufactures or uses contract
manufacturers, markets and sells many Quaker brand cereals and
snacks. UKEU also manufactures, markets and sells beverage
concentrates, fountain syrups and finished goods, under various
beverage brands including Pepsi, 7UP and Tropicana. These brands
are sold to authorized bottlers, independent distributors and
retailers. However, in certain markets, UKEU operates its own
bottling plants and distribution facilities. In addition, UKEU
licenses the Aquafina water brand to certain of its authorized
bottlers. UKEU also manufactures or uses contract manufacturers,
markets and sells ready-to-drink tea products through a joint
venture with Unilever (under the Lipton brand name).
Middle
East, Africa & Asia
Middle East, Africa & Asia, or MEAA, manufactures,
markets and sells through consolidated businesses as well as
through noncontrolled affiliates, a number of leading salty and
sweet snack brands including Lays, Doritos, Cheetos,
Smiths and Ruffles. Further, MEAA manufactures or uses
contract manufacturers, markets and sells many Quaker brand
cereals and snacks. MEAA also manufactures, markets and sells
beverage concentrates, fountain syrups and finished goods, under
various beverage brands including Pepsi, Mirinda, 7UP and
Mountain Dew. These brands are sold to authorized bottlers,
independent distributors and retailers. However, in certain
markets, MEAA operates its own bottling plants and distribution
facilities. In addition, MEAA licenses the Aquafina water brand
to certain of its authorized bottlers. MEAA also manufactures or
uses contract manufacturers, markets and sells ready-to-drink
tea products through the joint venture with Unilever (see United
Kingdom & Europe above).
Our principal executive offices are located at 700 Anderson Hill
Road, Purchase, New York 10577 and our telephone number is
(914) 253-2000.
We maintain a website at www.pepsico.com where general
information about us is available. We are not incorporating the
contents of the website into this prospectus.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the SEC utilizing a shelf registration
process. Under this shelf process, we may sell any combination
of the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with
additional information described under the heading Where
You Can Find More Information.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any
document that we file at the Public Reference Room of the SEC at
100 F Street, N.E., Washington, D.C. 20549. You
may obtain information on the operation of the Public Reference
Room by calling the SEC at
1-800-SEC-0330.
In addition, the SEC maintains an Internet site at
http://www.sec.gov,
from which interested persons can electronically access the
registration statement including the exhibits and schedules
thereto.
2
The SEC allows us to incorporate by reference the
information we file with them, which means that we can disclose
important information to you by referring you to those
documents. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed
below and any future filings we make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended (the Exchange Act)
(other than, in each case, documents or information deemed to
have been furnished and not filed in accordance with SEC rules),
on or after the date of this prospectus until we sell all of the
securities covered by this registration statement:
|
|
|
|
|
Annual report of PepsiCo, Inc. on
Form 10-K
for the fiscal year ended December 29, 2007;
|
|
|
|
Definitive proxy statement of PepsiCo, Inc. on Schedule 14A
filed with the SEC on March 24, 2008;
|
|
|
|
Quarterly reports of PepsiCo, Inc. on
Form 10-Q
for the twelve, twenty-four and thirty-six weeks ended
March 22, 2008, June 14, 2008 and September 6,
2008; and
|
|
|
|
Current reports of PepsiCo, Inc. on
Form 8-K
filed with the SEC on February 25, 2008, March 24,
2008, April 7, 2008, May 21, 2008, August 6, 2008
and October 14, 2008 (except for the information furnished
pursuant to Item 2.02 of Form 8-K and the furnished
exhibit relating to that information).
|
Our current report on
Form 8-K
filed with the SEC on April 7, 2008 provides revised
historical segment information on a basis consistent with our
current segment reporting structure, as described above under
The Company. As a result of the change in reporting
structure, the segment discussions within
Item 7 Managements Discussion and
Analysis of Financial Condition and Results of Operations and
Notes 1, 3 and 4 to our consolidated financial statements
included in our annual report on
Form 10-K
for the fiscal year ended December 29, 2007 have been
revised and are included in Exhibit 99.1 to our current
report on
Form 8-K
filed with the SEC on April 7, 2008.
You may request a copy of these filings at no cost, by writing
or telephoning the office of Manager, Shareholder Relations,
PepsiCo, Inc., 700 Anderson Hill Road, Purchase, New York 10577,
(914) 253-3055.
SPECIAL
NOTE ON FORWARD-LOOKING STATEMENTS
We discuss expectations regarding our future performance, such
as our business outlook, in our annual and quarterly reports,
press releases, and statements incorporated by reference in this
prospectus. These statements, and statements other than
statements of historical facts included or incorporated by
reference in this prospectus, including, without limitation,
statements regarding our future financial position, business
strategy, budgets, projected costs and plans and objectives of
management for future operations, are forward-looking
statements. These forward-looking statements are
based on currently available information, operating plans and
projections about future events and trends. They inherently
involve risks and uncertainties, and investors must recognize
that events could turn out to be significantly different from
our expectations. All subsequent written and oral
forward-looking statements attributable to us, or persons acting
on our behalf, are expressly qualified in their entirety by
these cautionary statements. We do not undertake to update our
forward-looking statements to reflect future events or
circumstances, except as may be required by applicable law.
USE OF
PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net
proceeds from the sale of the securities will be used for
general corporate purposes.
3
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed
charges for the periods indicated. Fixed charges
consist of interest expense, capitalized interest, amortization
of debt discount, and the interest portion of net rent expense
which is deemed to be representative of the interest factor. The
ratio of earnings to fixed charges is calculated as income from
continuing operations, before provision for income taxes and
cumulative effect of accounting changes, where applicable, less
net unconsolidated affiliates interests, plus fixed
charges (excluding capitalized interest), plus amortization of
capitalized interest, with the sum divided by fixed charges.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36 Weeks Ended
|
|
Year Ended
|
September 6,
|
|
September 8,
|
|
December 29,
|
|
December 30,
|
|
December 31,
|
|
December 25,
|
|
December 27,
|
2008
|
|
2007
|
|
2007
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
|
20.70
|
|
|
|
24.10
|
|
|
|
22.01
|
|
|
|
19.99
|
|
|
|
19.03
|
|
|
|
22.00
|
|
|
|
20.37
|
|
4
DESCRIPTION
OF CAPITAL STOCK
The following description of our capital stock is based upon our
Amended and Restated Articles of Incorporation (Articles
of Incorporation), our By-Laws, as amended to
February 2, 2007 (By-Laws) and applicable
provisions of law. We have summarized certain portions of the
Articles of Incorporation and By-Laws below. The summary is not
complete. The Articles of Incorporation and By-Laws are
incorporated by reference as exhibits to the registration
statement of which this prospectus forms a part. You should read
the Articles of Incorporation and By-Laws for the provisions
that are important to you.
Authorized
Capital Stock
Our Articles of Incorporation authorizes us to issue
3,600,000,000 shares of common stock, par value one and
two-thirds cents
(1
2
/
3
cents) per share and 3,000,000 shares of convertible
preferred stock, no par value per share.
Common
Stock
As of September 6, 2008 there were
1,557,630,468 shares of common stock outstanding which were
held of record by 182,261 shareholders.
Each holder of a share of PepsiCo common stock is entitled to
one vote for each share held of record on the applicable record
date on all matters submitted to a vote of shareholders. Holders
of PepsiCo common stock are entitled to receive dividends as may
be declared from time to time by PepsiCos Board of
Directors out of funds legally available therefor. Holders of
PepsiCo common stock are entitled to share pro rata, upon any
liquidation or dissolution of PepsiCo, in all remaining assets
available for distribution to shareholders after payment or
providing for PepsiCos liabilities and the liquidation
preference of any outstanding PepsiCo convertible preferred
stock. Holders of PepsiCo common stock do not have the right to
subscribe for, purchase or receive new or additional capital
stock or other securities.
Convertible
Preferred Stock
As of September 6, 2008 there were 274,653 shares of
convertible preferred stock outstanding, which were held of
record by 2,183 shareholders. The convertible preferred
stock was issued, in connection with our merger with the Quaker
Oats Company, to Fidelity Trust Management Co., as trustee
of the Quaker 401(k) plans for hourly and salaried employees,
which subsequently merged into the PepsiCo 401(k) Plan for
Salaried Employees and the PepsiCo 401(k) Plan for Hourly
Employees. These shares are held in the ESOP portion of these
plans, which we refer to as the PepsiCo ESOP. If the shares of
convertible preferred stock are transferred to any person other
than a successor trustee, the shares of convertible preferred
stock will automatically convert into shares of common stock.
Ranking.
The convertible preferred stock ranks
ahead of our common stock with respect to the payment of
dividends and the distribution of assets in the event of our
liquidation or dissolution.
Dividends.
Subject to the rights of the
holders of any capital stock ranking senior to convertible
preferred stock, holders of convertible preferred stock will
receive cumulative cash dividends when, as and if declared by
our Board of Directors. Dividends of $5.46 per share per year
accrue on a daily basis, payable quarterly in arrears on the
fifteenth of January, April, July and October to holders of
record at the start of business on that dividend payment date.
So long as any shares of convertible preferred stock are
outstanding, no dividend may be declared or paid on any other
series of stock of the same rank, unless all accrued dividends
on the convertible preferred stock are paid. Generally, if full
cumulative dividends on the convertible preferred stock have not
been paid, we will not pay any dividends or make any other
distributions on any other class of stock or series of our
capital stock ranking junior to the convertible preferred stock
until full cumulative dividends on the convertible preferred
stock have been paid.
5
Voting Rights.
Holders of convertible
preferred stock will be entitled to vote as one voting group
with the holders of common stock on all matters submitted to a
vote of the shareholders. The holder of each share of
convertible preferred stock will be entitled to a number of
votes equal to the number of shares of common stock into which
each share of convertible preferred stock could be converted on
the relevant record date, rounded to the nearest one-tenth of a
vote. Whenever the conversion price is adjusted for dilution,
the voting rights of the convertible preferred stock will be
similarly adjusted.
Except as otherwise required by law, holders of the convertible
preferred stock will not have any special voting rights and
their consent will not be required, except to the extent that
they are entitled to vote with the holders of the common stock,
for the taking of any corporate action. The approval of at least
two-thirds of the outstanding shares of the convertible
preferred stock, voting separately as one voting group, will be
required if an alteration, amendment or repeal of any provision
of our Articles of Incorporation would adversely affect their
powers, preferences or special rights.
Rights upon Liquidation, Dissolution or Winding
Up.
In the event of any voluntary or involuntary
liquidation, dissolution or winding up of us, the holders of
convertible preferred stock will be entitled to receive, before
any distribution is made to the holders of common stock or any
other series of stock ranking junior to the convertible
preferred stock, a liquidation preference in the amount of
$78.00 per share, plus accrued and unpaid dividends. If the
amounts payable with respect to convertible preferred stock and
any other stock of the same rank are not paid in full, the
holders of convertible preferred stock and any stock of equal
rank will share pro rata in any distribution of assets. After
payment of the full amount to which they are entitled, the
holders of shares of convertible preferred stock will not be
entitled to any further right or claim to any of our remaining
assets.
Mandatory Redemption by PepsiCo.
We must
redeem the convertible preferred stock upon termination of the
PepsiCo ESOP in accordance with the PepsiCo ESOPs terms.
We will redeem all then outstanding shares of convertible
preferred stock for a per share amount equal to the greater of
$78.00 plus accrued and unpaid dividends or the fair market
value of the convertible preferred stock. We, at our option, may
make payment in cash or in shares of our common stock or in a
combination of shares and cash.
Optional Redemption by the Holders.
Holders of
the convertible preferred stock may elect to redeem their shares
if we enter into any consolidation or merger or similar business
combination in which we exchange our common stock for property
other than employer securities or qualifying employer
securities. Upon notice from us of the agreement and the
material terms of the transaction, each holder of convertible
preferred stock will have the right to elect, by written notice
to us, to receive a cash payment upon consummation of the
transaction equal to the greater of the fair market value of the
shares of convertible preferred stock to be so redeemed or
$78.00 per share plus accrued and unpaid dividends.
Additionally, holders of convertible preferred stock may redeem
their shares under other limited circumstances more fully
described in the Articles of Incorporation.
Conversion.
On or prior to any date fixed for
redemption, a holder of convertible preferred stock may elect to
convert any or all of his or her shares into shares of common
stock at a conversion ratio (which is subject to adjustment for
a number of dilutive events) more fully described in the
Articles of Incorporation.
Preemptive Rights.
Holders of the convertible
preferred stock do not have the right to subscribe for, purchase
or receive new or additional capital stock or other securities.
Transfer
Agent and Registrar
The Bank of New York Mellon is the transfer agent and registrar
for PepsiCo common stock.
Stock
Exchange Listing
The New York Stock Exchange is the principal market for
PepsiCos common stock, which is also listed on the Chicago
and Swiss stock exchanges.
6
Certain
Provisions of PepsiCos Articles of Incorporation and
By-Laws; Director Indemnification Agreements
Advance Notice of Proposals and
Nominations.
Our By-Laws provide that
shareholders must provide timely written notice to bring
business before an annual meeting of shareholders or to nominate
candidates for election as directors at an annual meeting of
shareholders. Notice for an annual meeting is timely if it is
received at our principal office not less than 90 days nor
more than 120 days prior to the first anniversary of the
preceding years annual meeting. However, if the date of
the annual meeting is advanced by more than 30 days or
delayed more than 60 days from this anniversary date, such
notice by the shareholder must be delivered not earlier than the
120th day prior to the annual meeting and not later than
the close of business on the later of the 90th day prior to
such annual meeting or the tenth day following the day on which
public announcement of the date of such annual meeting was first
made. The By-Laws also specify the form and content of a
shareholders notice. These provisions may prevent
shareholders from bringing matters before an annual meeting of
shareholders or from nominating candidates for election as
directors at an annual meeting of shareholders.
Limits on Special Meetings.
A special meeting
of the shareholders may be called by our corporate secretary
upon written request of the shareholders owning a majority of
shares of our outstanding common stock entitled to vote at such
meeting. Any such special meeting called at the request of our
shareholders must be held at our principal office within
90 days from the receipt of such request by the corporate
secretary. The By-Laws specify the form and content of a
shareholders request for a special meeting.
Indemnification of Directors, Officers and
Employees.
Our By-Laws provide that we shall
indemnify, to the full extent permitted by law, any person who
was or is, or who is threatened to be made, a party to an
action, suit or proceeding (including appeals), whether civil,
criminal, administrative, investigative or arbitrative, by
reason of the fact that such person, such persons testator
or intestate, is or was one of our directors, officers or
employees, or is or was serving at our request as a director,
officer or employee of another enterprise, against expenses
(including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding.
Pursuant to our By-Laws this indemnification may, at the
Boards discretion, also include advancement of expenses
related to such action, suit or proceeding.
In addition, we have entered into indemnification agreements
with each of our directors, pursuant to which we have agreed to
indemnify and hold harmless, to the full extent permitted by
law, each director against any and all liabilities and
assessments (including attorneys fees and other costs,
expenses and obligations) arising out of or related to any
threatened, pending or completed action, suit, proceeding,
inquiry or investigation, whether civil, criminal,
administrative, or other, including, but not limited to,
judgments, fines, penalties and amounts paid in settlement
(whether with or without court approval), and any interest,
assessments, excise taxes or other charges paid or payable in
connection with or in respect of any of the foregoing, incurred
by the director and arising out of his status as a director or
member of a committee of our Board, or by reason of anything
done or not done by the director in such capacities. After
receipt of an appropriate request by a director, we will also
advance all expenses, costs and other obligations (including
attorneys fees) arising out of or related to such matters.
We will not be liable for payment of any liability or expense
incurred by a director on account of acts which, at the time
taken, were known or believed by such director to be clearly in
conflict with our best interests.
Certain
Anti-Takeover Effects of North Carolina Law
The North Carolina Shareholder Protection Act generally requires
the affirmative vote of 95% of a public corporations
voting shares to approve a business combination with
any entity that a majority of continuing directors determines
beneficially owns, directly or indirectly, more than 20% of the
voting shares of the corporation (or ever owned, directly or
indirectly, more than 20% and is still an affiliate
of the corporation) unless the fair price provisions and the
procedural provisions of the Act are satisfied.
Business combination is defined by the Act as
(i) any merger, consolidation or conversion of a
corporation with or into any other entity, or (ii) any sale
or lease of all or any substantial part of the
corporations assets to any other entity, or (iii) any
payment, sale or lease to the corporation or any subsidiary
7
thereof in exchange for securities of the corporation of any
assets having an aggregate fair market value equal to or greater
than $5,000,000 of any other entity.
The Act contains provisions that allowed a corporation to
opt out of the applicability of the Acts
voting provisions within specified time periods that generally
have expired. The Act applies to PepsiCo since we did not opt
out within these time periods.
This statute could discourage a third party from making a
partial tender offer or otherwise attempting to obtain a
substantial position in our equity securities or seeking to
obtain control of us. It also might limit the price that certain
investors might be willing to pay in the future for our shares
of common stock and may have the effect of delaying or
preventing a change of control of us.
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general terms and provisions
of the debt securities. The debt securities will be issued under
an indenture between us and The Bank of New York Mellon, as
trustee. When we offer to sell a particular series of debt
securities, we will describe the specific terms for the
securities in a supplement to this prospectus. The prospectus
supplement will also indicate whether the general terms and
provisions described in this prospectus apply to a particular
series of debt securities.
We have summarized certain terms and provisions of the
indenture. The summary is not complete. The indenture has been
incorporated by reference as an exhibit to the registration
statement for these securities that we have filed with the SEC.
You should read the indenture for the provisions which may be
important to you. The indenture is subject to and governed by
the Trust Indenture Act of 1939, as amended.
The indenture does not limit the amount of debt securities which
we may issue. We may issue debt securities up to an aggregate
principal amount as we may authorize from time to time. The
prospectus supplement will describe the terms of any debt
securities being offered, including:
|
|
|
|
|
classification as senior or subordinated debt securities;
|
|
|
|
ranking of the specific series of debt securities relative to
other outstanding indebtedness, including subsidiaries
debt;
|
|
|
|
if the debt securities are subordinated, the aggregate amount of
outstanding indebtedness, as of a recent date, that is senior to
the subordinated securities, and any limitation on the issuance
of additional senior indebtedness;
|
|
|
|
the designation, aggregate principal amount and authorized
denominations;
|
|
|
|
the maturity date;
|
|
|
|
the interest rate, if any, and the method for calculating the
interest rate;
|
|
|
|
the interest payment dates and the record dates for the interest
payments;
|
|
|
|
any mandatory or optional redemption terms or prepayment,
conversion, sinking fund or exchangeability or convertibility
provisions;
|
|
|
|
the place where we will pay principal and interest;
|
|
|
|
if other than denominations of $1,000 or multiples of $1,000,
the denominations the debt securities will be issued in;
|
|
|
|
whether the debt securities will be issued in the form of global
securities or certificates;
|
|
|
|
the inapplicability of and additional provisions, if any,
relating to the defeasance of the debt securities;
|
|
|
|
the currency or currencies, if other than the currency of the
United States, in which principal and interest will be paid;
|
|
|
|
any material United States federal income tax consequences;
|
8
|
|
|
|
|
the dates on which premium, if any, will be paid;
|
|
|
|
our right, if any, to defer payment of interest and the maximum
length of this deferral period;
|
|
|
|
any listing on a securities exchange;
|
|
|
|
the initial public offering price; and
|
|
|
|
other specific terms, including any additional events of default
or covenants.
|
Senior
Debt
Senior debt securities will rank equally and pari passu with all
other unsecured and unsubordinated debt of PepsiCo.
Subordinated
Debt
Subordinated debt securities will be subordinate and junior in
right of payment, to the extent and in the manner set forth in
the indenture, to all senior indebtedness of
PepsiCo. The indenture defines senior indebtedness
as obligations or indebtedness of, or guaranteed or assumed by,
PepsiCo for borrowed money whether or not represented by bonds,
debentures, notes or other similar instruments, and amendments,
renewals, extensions, modifications and refundings of any such
indebtedness or obligation. Senior indebtedness does
not include nonrecourse obligations, the subordinated debt
securities or any other obligations specifically designated as
being subordinate in right of payment to senior indebtedness.
See the indenture, section 13.03.
In general, the holders of all senior indebtedness are first
entitled to receive payment of the full amount unpaid on senior
indebtedness before the holders of any of the subordinated debt
securities or coupons are entitled to receive a payment on
account of the principal or interest on the indebtedness
evidenced by the subordinated debt securities in certain events.
These events include:
|
|
|
|
|
any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings which
concern PepsiCo or a substantial part of its property;
|
|
|
|
a default having occurred for the payment of principal, premium,
if any, or interest on or other monetary amounts due and payable
on any senior indebtedness or any other default having occurred
concerning any senior indebtedness, which permits the holder or
holders of any senior indebtedness to accelerate the maturity of
any senior indebtedness with notice or lapse of time, or both.
Such an event of default must have continued beyond the period
of grace, if any, provided for such event of default, and such
an event of default shall not have been cured or waived or shall
not have ceased to exist; or
|
|
|
|
the principal of, and accrued interest on, any series of the
subordinated debt securities having been declared due and
payable upon an event of default pursuant to section 5.02
of the indenture. This declaration must not have been rescinded
and annulled as provided in the indenture.
|
If this prospectus is being delivered in connection with a
series of subordinated debt securities, the accompanying
prospectus supplement or the information incorporated in this
prospectus by reference will set forth the approximate amount of
senior indebtedness outstanding as of the end of the most recent
fiscal quarter.
Events of
Default
When we use the term Event of Default in the
indenture with respect to the debt securities of any series,
here are some examples of what we mean:
(1) default in paying interest on the debt securities when
it becomes due and the default continues for a period of
30 days or more;
(2) default in paying principal, or premium, if any, on the
debt securities when due;
9
(3) default is made in the payment of any sinking or
purchase fund or analogous obligation when the same becomes due,
and such default continues for 30 days or more;
(4) default in the performance, or breach, of any covenant
in the indenture (other than defaults specified in clause (1),
(2) or (3) above) and the default or breach continues
for a period of 90 days or more after we receive written
notice from the trustee or we and the trustee receive notice
from the holders of at least 51% in aggregate principal amount
of the outstanding debt securities of the series;
(5) certain events of bankruptcy, insolvency,
reorganization, administration or similar proceedings with
respect to PepsiCo has occurred; or
(6) any other Events of Default set forth in the prospectus
supplement.
If an Event of Default (other than an Event of Default specified
in clause (5) with respect to PepsiCo) under the indenture
occurs with respect to the debt securities of any series and is
continuing, then the trustee or the holders of at least 51% in
principal amount of the outstanding debt securities of that
series may by written notice require us to repay immediately the
entire principal amount of the outstanding debt securities of
that series (or such lesser amount as may be provided in the
terms of the securities), together with all accrued and unpaid
interest and premium, if any.
If an Event of Default under the indenture specified in
clause (5) with respect to PepsiCo occurs and is
continuing, then the entire principal amount of the outstanding
debt securities (or such lesser amount as may be provided in the
terms of the securities) will automatically become due and
payable immediately without any declaration or other act on the
part of the trustee or any holder.
After a declaration of acceleration, the holders of a majority
in principal amount of outstanding debt securities of any series
may rescind this accelerated payment requirement if all existing
Events of Default, except for nonpayment of the principal and
interest on the debt securities of that series that has become
due solely as a result of the accelerated payment requirement,
have been cured or waived and if the rescission of acceleration
would not conflict with any judgment or decree. The holders of a
majority in principal amount of the outstanding debt securities
of any series also have the right to waive past defaults, except
a default in paying principal or interest on any outstanding
debt security, or in respect of a covenant or a provision that
cannot be modified or amended without the consent of all holders
of the debt securities of that series.
Holders of at least 51% in principal amount of the outstanding
debt securities of a series may seek to institute a proceeding
only after they have notified the Trustee of a continuing Event
of Default in writing and made a written request, and offered
reasonable indemnity, to the trustee to institute a proceeding
and the trustee has failed to do so within 60 days after it
received this notice. In addition, within this
60-day
period the trustee must not have received directions
inconsistent with this written request by holders of a majority
in principal amount of the outstanding debt securities of that
series. These limitations do not apply, however, to a suit
instituted by a holder of a debt security for the enforcement of
the payment of principal, interest or any premium on or after
the due dates for such payment.
During the existence of an Event of Default, the trustee is
required to exercise the rights and powers vested in it under
the indenture and use the same degree of care and skill in its
exercise as a prudent man would under the circumstances in the
conduct of that persons own affairs. If an Event of
Default has occurred and is continuing, the trustee is not under
any obligation to exercise any of its rights or powers at the
request or direction of any of the holders unless the holders
have offered to the trustee reasonable security or indemnity.
Subject to certain provisions, the holders of a majority in
principal amount of the outstanding debt securities of any
series have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
trustee, or exercising any trust, or power conferred on the
trustee.
The trustee will, within 90 days after any default occurs,
give notice of the default to the holders of the debt securities
of that series, unless the default was already cured or waived.
Unless there is a default in paying principal, interest or any
premium when due, the trustee can withhold giving notice to the
holders if it determines in good faith that the withholding of
notice is in the interest of the holders.
10
Modification
and Waiver
The indenture may be amended or modified without the consent of
any holder of debt securities in order to:
|
|
|
|
|
evidence a succession to the Trustee;
|
|
|
|
cure ambiguities, defects or inconsistencies;
|
|
|
|
provide for the assumption of our obligations in the case of a
merger or consolidation or transfer of all or substantially all
of our assets;
|
|
|
|
make any change that would provide any additional rights or
benefits to the holders of the debt securities of a series;
|
|
|
|
add guarantors with respect to the debt securities of any series;
|
|
|
|
secure the debt securities of a series;
|
|
|
|
establish the form or forms of debt securities of any series;
|
|
|
|
maintain the qualification of the indenture under the
Trust Indenture Act; or
|
|
|
|
make any change that does not adversely affect in any material
respect the interests of any holder.
|
Other amendments and modifications of the indenture or the debt
securities issued may be made with the consent of the holders of
not less than a majority of the aggregate principal amount of
the outstanding debt securities of each series affected by the
amendment or modification. However, no modification or amendment
may, without the consent of the holder of each outstanding debt
security affected:
|
|
|
|
|
reduce the principal amount, or extend the fixed maturity, of
the debt securities;
|
|
|
|
alter or waive the redemption provisions of the debt securities;
|
|
|
|
change the currency in which principal, any premium or interest
is paid;
|
|
|
|
reduce the percentage in principal amount outstanding of debt
securities of any series which must consent to an amendment,
supplement or waiver or consent to take any action;
|
|
|
|
impair the right to institute suit for the enforcement of any
payment on the debt securities;
|
|
|
|
waive a payment default with respect to the debt securities or
any guarantor;
|
|
|
|
reduce the interest rate or extend the time for payment of
interest on the debt securities;
|
|
|
|
adversely affect the ranking of the debt securities of any
series; or
|
|
|
|
release any guarantor from any of its obligations under its
guarantee or the indenture, except in compliance with the terms
of the indenture.
|
Covenants
Limitation
of Liens Applicable to Senior Debt Securities
The indenture provides that with respect to senior debt
securities, unless otherwise provided in a particular series of
senior debt securities, we will not, and will not permit any of
our restricted subsidiaries to, incur, suffer to exist or
guarantee any debt secured by a lien on any principal property
or on any shares of stock of (or other interests in) any of our
restricted subsidiaries unless we or that first-mentioned
restricted subsidiary secures or causes such restricted
subsidiary to secure the senior debt securities (and any of its
or such restricted subsidiarys other debt, at its option
or such restricted subsidiarys option, as the case may be,
not subordinate to the senior debt securities), equally and
ratably with (or prior to) such secured debt, for as long as
such secured debt will be so secured.
11
These restrictions will not, however, apply to debt secured by:
(1) any liens existing prior to the issuance of such senior
debt securities;
(2) any lien on property of or shares of stock of (or other
interests in) or debt of any entity existing at the time such
entity becomes a restricted subsidiary;
(3) any liens on property, shares of stock of (or other
interests in) or debt of any entity (a) existing at the
time of acquisition of such property or shares (or other
interests) (including acquisition through merger or
consolidation), (b) to secure the payment of all or any
part of the purchase price of such property or shares (or other
interests) or construction or improvement of such property or
(c) to secure any debt incurred prior to, at the time of,
or within 365 days after the later of the acquisition, the
completion of construction or the commencement of full operation
of such property or within 365 days after the acquisition
of such shares (or other interests) for the purpose of financing
all or any part of the purchase price of such shares (or other
interests) or construction thereon;
(4) any liens in favor of us or any of our restricted
subsidiaries;
(5) any liens in favor of, or required by contracts with,
governmental entities; or
(6) any extension, renewal, or refunding of liens referred
to in any of the preceding clauses (1) through (5).
Notwithstanding the foregoing, we or any of our 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 (or other interests in) any of our restricted
subsidiaries if, after giving effect thereto, the aggregate
amount of such debt does not exceed 15% of our consolidated net
tangible assets.
The indenture does not restrict the transfer by us of a
principal property to any of our unrestricted subsidiaries or
our ability to change the designation of a subsidiary owning
principal property from a restricted subsidiary to an
unrestricted subsidiary and, if we were to do so, any such
unrestricted subsidiary would not be restricted from incurring
secured debt nor would we be required, upon such incurrence, to
secure the debt securities equally and ratably with such secured
debt.
Definitions.
The following are definitions of
some terms used in the above description. We refer you to the
indenture for a full description of all of these terms, as well
as any other terms used herein for which no definition is
provided.
Consolidated net tangible assets
means the
total amount of our assets and our restricted subsidiaries
assets minus:
|
|
|
|
|
all applicable depreciation, amortization and other valuation
reserves;
|
|
|
|
all current liabilities of ours and our restricted subsidiaries
(excluding any intercompany liabilities); and
|
|
|
|
all goodwill, trade names, trademarks, patents, unamortized debt
discount and expenses and other like intangibles, all as set
forth on our and our restricted subsidiaries latest
consolidated balance sheets prepared in accordance with
U.S. GAAP.
|
Debt
means any indebtedness for borrowed
money.
Principal property
means any single
manufacturing or processing plant, office building or warehouse
owned or leased by us or any of our restricted subsidiaries
other than a plant, warehouse, office building or portion
thereof which, in the opinion of our Board of Directors, is not
of material importance to the business conducted by us and our
restricted subsidiaries taken as an entirety.
Restricted subsidiary
means, at any time, any
subsidiary which at the time is not an unrestricted subsidiary
of ours.
Subsidiary
means any entity, at least a
majority of the outstanding voting stock of which shall at the
time be owned, directly or indirectly, by us or by one or more
of our subsidiaries, or both.
12
Unrestricted subsidiary
means any subsidiary
of ours (not at the time designated as our restricted
subsidiary) (1) the major part of whose business consists
of finance, banking, credit, leasing, insurance, financial
services or other similar operations, or any combination
thereof, (2) substantially all the assets of which consist
of the capital stock of one or more subsidiaries engaged in the
operations referred to in the preceding clause (1), or
(3) designated as an unrestricted subsidiary by our Board
of Directors.
Consolidation,
Merger or Sale of Assets
The indenture provides that we may consolidate or merge with or
into, or convey or transfer all or substantially all of our
assets to, any entity (including, without limitation, a limited
partnership or a limited liability company);
provided
that:
|
|
|
|
|
we will be the surviving corporation or, if not, that the
successor will be a corporation that is organized and validly
existing under the laws of any state of the United States of
America or the District of Columbia and will expressly assume by
a supplemental indenture our obligations under the indenture and
the debt securities;
|
|
|
|
immediately after giving effect to such transaction, no event of
default, and no default or other event which, after notice or
lapse of time, or both, would become an event of default, will
have happened and be continuing; and
|
|
|
|
we will have delivered to the trustee an opinion of counsel,
stating that such consolidation, merger, conveyance or transfer
complies with the indenture.
|
In the event of any such consolidation, merger, conveyance,
transfer or lease, any such successor will succeed to and be
substituted for us as obligor on the debt securities with the
same effect as if it had been named in the indenture as obligor.
There are no other restrictive covenants contained in the
Indenture. The Indenture does not contain any provision that
will restrict us from entering into one or more additional
indentures providing for the issuance of debt securities or
warrants, or from incurring, assuming, or becoming liable with
respect to any indebtedness or other obligation, whether secured
or unsecured, or from paying dividends or making other
distributions on our capital stock, or from purchasing or
redeeming our capital stock. The Indenture does not contain any
financial ratios or specified levels of net worth or liquidity
to which we must adhere. In addition, the Indenture does not
contain any provision that would require us to repurchase,
redeem, or otherwise modify the terms of any of the debt
securities upon a change in control or other event involving us
that may adversely affect our creditworthiness or the value of
the debt securities.
Satisfaction,
Discharge and Covenant Defeasance
We may terminate our obligations under the indenture, when:
|
|
|
|
|
all debt securities of any series issued that have been
authenticated and delivered have been delivered to the trustee
for cancellation; or
|
|
|
|
all the debt securities of any series issued that have not been
delivered to the trustee for cancellation have become due and
payable, will become due and payable within one year, or are to
be called for redemption within one year and we have made
arrangements satisfactory to the trustee for the giving of
notice of redemption by such trustee in our name and at our
expense, and in each case, we have irrevocably deposited or
caused to be deposited with the trustee sufficient funds to pay
and discharge the entire indebtedness on the series of debt
securities to pay principal, interest and any premium; and
|
|
|
|
|
|
we have paid or caused to be paid all other sums then due and
payable under the indenture; and
|
|
|
|
we have delivered to the trustee an officers certificate
and an opinion of counsel, each stating that all conditions
precedent under the indenture relating to the satisfaction and
discharge of the indenture have been complied with.
|
13
We may elect to have our obligations under the indenture
discharged with respect to the outstanding debt securities of
any series (legal defeasance). Legal defeasance
means that we will be deemed to have paid and discharged the
entire indebtedness represented by the outstanding debt
securities of such series under the indenture, except for:
|
|
|
|
|
the rights of holders of the debt securities to receive
principal, interest and any premium when due;
|
|
|
|
our obligations with respect to the debt securities concerning
issuing temporary debt securities, registration of transfer of
debt securities, mutilated, destroyed, lost or stolen debt
securities and the maintenance of an office or agency for
payment for security payments held in trust;
|
|
|
|
the rights, powers, trusts, duties and immunities of the
trustee; and
|
|
|
|
the defeasance provisions of the indenture.
|
In addition, we may elect to have our obligations released with
respect to certain covenants in the indenture (covenant
defeasance). Any omission to comply with these obligations
will not constitute a default or an event of default with
respect to the debt securities of any series. In the event
covenant defeasance occurs, certain events, not including
non-payment, bankruptcy and insolvency events, described under
Events of Default above will no longer constitute an
event of default for that series.
In order to exercise either legal defeasance or covenant
defeasance with respect to outstanding debt securities of any
series:
|
|
|
|
|
we must irrevocably have deposited or caused to be deposited
with the trustee as trust funds for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to the benefits of the holders of the debt
securities of a series:
|
|
|
|
|
|
money in an amount;
|
|
|
|
U.S. government obligations (or equivalent government
obligations in the case of debt securities denominated in other
than U.S. dollars or a specified currency) that will
provide, not later than one day before the due date of any
payment, money in an amount; or
|
|
|
|
a combination of money and U.S government obligations (or
equivalent government obligations, as applicable),
|
in each case sufficient, in the written opinion (with respect to
U.S. or equivalent government obligations or a combination
of money and U.S. or equivalent government obligations, as
applicable) of a nationally recognized firm of independent
registered public accountants to pay and discharge, and which
shall be applied by the trustee to pay and discharge, all of the
principal (including mandatory sinking fund payments), interest
and any premium at due date or maturity;
|
|
|
|
|
in the case of legal defeasance, we have delivered to the
trustee an opinion of counsel stating that, under then
applicable Federal income tax law, the holders of the debt
securities of that series will not recognize income, gain or
loss for federal income tax purposes as a result of the deposit,
defeasance and discharge to be effected and will be subject to
the same federal income tax as would be the case if the deposit,
defeasance and discharge did not occur;
|
|
|
|
in the case of covenant defeasance, we have delivered to the
trustee an opinion of counsel to the effect that the holders of
the debt securities of that series will not recognize income,
gain or loss for U.S. federal income tax purposes as a
result of the deposit and covenant defeasance to be effected and
will be subject to the same federal income tax as would be the
case if the deposit and covenant defeasance did not occur;
|
|
|
|
no event of default or default with respect to the outstanding
debt securities of that series has occurred and is continuing at
the time of such deposit after giving effect to the deposit or,
in the case of legal defeasance, no default relating to
bankruptcy or insolvency has occurred and is continuing at any
time on or before the 91st day after the date of such
deposit, it being understood that this condition is not deemed
satisfied until after the 91st day;
|
14
|
|
|
|
|
the legal defeasance or covenant defeasance will not cause the
trustee to have a conflicting interest within the meaning of the
Trust Indenture Act, assuming all debt securities of a series
were in default within the meaning of such Act;
|
|
|
|
the legal defeasance or covenant defeasance will not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which we are a party;
|
|
|
|
the legal defeasance or covenant defeasance will not result in
the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of
1940, as amended, unless the trust is registered under such Act
or exempt from registration; and
|
|
|
|
we have delivered to the trustee an officers certificate
and an opinion of counsel stating that all conditions precedent
with respect to the defeasance or covenant defeasance have been
complied with.
|
Concerning
our Relationship with the Trustee
We and our subsidiaries maintain ordinary banking relationships
and credit facilities with The Bank of New York Mellon, which
serves as trustee under certain indentures related to other
securities that we have issued or guaranteed.
DESCRIPTION
OF GUARANTEES OF DEBT SECURITIES
We may issue guarantees of debt securities of Bottling Group,
LLC, The Pepsi Bottling Group, Inc. or any other direct or
indirect subsidiary of The Pepsi Bottling Group, Inc. Each
series of guarantees will be issued under an indenture among us,
the issuer of the underlying debt securities and The Bank of
New York Mellon, as trustee.
Our obligations under the guarantees will only become
effective if and when a guarantee commencement date
occurs.
The prospectus supplement will specify
the applicable guarantee commencement date, and will describe
any conditions that must be met for the applicable guarantee
commencement date to occur. Pursuant to the guarantees, and
unless otherwise specified in the prospectus supplement,
beginning on the specified guarantee commencement date, if and
when it occurs, we will unconditionally and irrevocably
guarantee, on a senior unsecured basis, the payment of all, or
in some cases a specified percentage, of the principal of and
interest and premium, if any, on the underlying debt securities
when due and payable, whether at maturity, by acceleration,
redemption or otherwise (and in the case of any extension of
time of payment or renewal of any underlying debt securities
under the applicable indenture or the underlying debt
securities, the payment of such amount when due and payable in
accordance with the terms of such extension or renewal). If the
issuer of the underlying debt securities defaults in the payment
of principal of and interest and premium, if any, on the
underlying debt securities upon maturity, redemption,
acceleration or otherwise, in each case, on or after the
applicable guarantee commencement date, then the amount of
payment each holder of underlying debt securities is entitled to
receive from us under our guarantee will be the amount of
principal of and interest and premium, if any, due and payable
on such holders underlying debt securities, or, if
applicable, the product of (1) the specified percentage
referred to above and (2) the amount of principal of and
interest and premium, if any, due and payable on such
holders underlying debt securities.
The prospectus supplement will describe the terms of the
guarantees, including the following, where applicable:
|
|
|
|
|
the issuer of the underlying debt securities to which the
guarantees apply;
|
|
|
|
the series of underlying debt securities to which the guarantees
apply;
|
|
|
|
whether the guarantees are conditional or unconditional;
|
|
|
|
the guarantee commencement date, if applicable;
|
|
|
|
any covenants that we have agreed to in connection with the
issuance of the guarantees;
|
|
|
|
the terms under which the guarantees may be amended, modified,
waived, released or otherwise terminated, if different from the
provisions applicable to the underlying debt securities; and
|
|
|
|
any additional terms of the guarantees.
|
15
DESCRIPTION
OF WARRANTS
We may issue warrants to purchase our debt or equity securities
or securities of third parties or other rights, including rights
to receive payment in cash or securities based on the value,
rate or price of one or more specified commodities, currencies,
securities or indices, or any combination of the foregoing.
Warrants may be issued independently or together with any other
securities and may be attached to, or separate from, such
securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a
warrant agent. The terms of any warrants to be issued and a
description of the material provisions of the applicable warrant
agreement will be set forth in the applicable prospectus
supplement.
The applicable prospectus supplement will describe the following
terms of any warrants in respect of which this prospectus is
being delivered:
|
|
|
|
|
the title of such warrants;
|
|
|
|
the aggregate number of such warrants;
|
|
|
|
the price or prices at which such warrants will be issued;
|
|
|
|
the currency or currencies in which the price of such warrants
will be payable;
|
|
|
|
the securities or other rights, including rights to receive
payment in cash or securities based on the value, rate or price
of one or more specified commodities, currencies, securities or
indices, or any combination of the foregoing, purchasable upon
exercise of such warrants;
|
|
|
|
the price at which and the currency or currencies in which the
securities or other rights purchasable upon exercise of such
warrants may be purchased;
|
|
|
|
the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
|
|
|
|
if applicable, the minimum or maximum amount of such warrants
which may be exercised at any one time;
|
|
|
|
if applicable, the designation and terms of the securities with
which such warrants are issued and the number of such warrants
issued with each such security;
|
|
|
|
if applicable, the date on and after which such warrants and the
related securities will be separately transferable;
|
|
|
|
information with respect to book-entry procedures, if any;
|
|
|
|
if applicable, a discussion of any material United States
Federal income tax considerations; and
|
|
|
|
any other terms of such warrants, including terms, procedures
and limitations relating to the exchange and exercise of such
warrants.
|
DESCRIPTION
OF UNITS
As specified in the applicable prospectus supplement, we may
issue units consisting of one or more warrants, debt securities,
shares of common stock or any combination of such securities.
The applicable prospectus supplement will describe:
|
|
|
|
|
the terms of the units and of the warrants, debt securities and
common stock comprising the units, including whether and under
what circumstances the securities comprising the units may be
traded separately;
|
|
|
|
a description of the terms of any unit agreement governing the
units; and
|
|
|
|
a description of the provisions for the payment, settlement,
transfer or exchange or the units.
|
16
FORMS OF
SECURITIES
Each debt security, guarantee of debt securities, warrant, and
unit will be represented either by a certificate issued in
definitive form to a particular investor or by one or more
global securities representing the entire issuance of
securities. Certificated securities in definitive form and
global securities will be issued in registered form. Definitive
securities name you or your nominee as the owner of the
security, and in order to transfer or exchange these securities
or to receive payments other than interest or other interim
payments, you or your nominee must physically deliver the
securities to the trustee, registrar, paying agent or other
agent, as applicable. Global securities name a depositary or its
nominee as the owner of the debt securities, guarantees of debt
securities, warrants, or units represented by these global
securities. The depositary maintains a computerized system that
will reflect each investors beneficial ownership of the
securities through an account maintained by the investor with
its broker/dealer, bank, trust company or other representative,
as we explain more fully below.
Global
Securities
Registered Global Securities.
We may issue the
registered debt securities, guarantees of debt securities,
warrants, and units in the form of one or more fully registered
global securities that will be deposited with a depositary or
its custodian identified in the applicable prospectus supplement
and registered in the name of that depositary or its nominee. In
those cases, one or more registered global securities will be
issued in a denomination or aggregate denominations equal to the
portion of the aggregate principal or face amount of the
securities to be represented by registered global securities.
Unless and until it is exchanged in whole for securities in
definitive registered form, a registered global security may not
be transferred except as a whole by and among the depositary for
the registered global security, the nominees of the depositary
or any successors of the depositary or those nominees.
If not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by
a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global
security will be limited to persons, called participants, that
have accounts with the depositary or persons that may hold
interests through participants. Upon the issuance of a
registered global security, the depositary will credit, on its
book-entry registration and transfer system, the
participants accounts with the respective principal or
face amounts of the securities beneficially owned by the
participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the
accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect
to interests of persons holding through participants. The laws
of some states may require that some purchasers of securities
take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge
beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered
owner of a registered global security, that depositary or its
nominee, as the case may be, will be considered the sole owner
or holder of the securities represented by the registered global
security for all purposes under the applicable indenture,
warrant agreement, guarantee or unit agreement. Except as
described below, owners of beneficial interests in a registered
global security will not be entitled to have the securities
represented by the registered global security registered in
their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be
considered the owners or holders of the securities under the
applicable indenture, warrant agreement, guarantee or unit
agreement. Accordingly, each person owning a beneficial interest
in a registered global security must rely on the procedures of
the depositary for that registered global security and, if that
person is not a participant, on the procedures of the
participant through which the person owns its interest, to
exercise any rights of a holder under the applicable indenture,
warrant agreement, guarantee or unit agreement. We understand
that under existing industry practices, if we request any action
of holders or if an owner of a beneficial interest in a
registered global security desires to give or take any action
17
that a holder is entitled to give or take under the applicable
indenture, warrant agreement, guarantee or unit agreement, the
depositary for the registered global security would authorize
the participants holding the relevant beneficial interests to
give or take that action, and the participants would authorize
beneficial owners owning through them to give or take that
action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt
securities, and any payments to holders with respect to
warrants, guarantees of debt securities or units, represented by
a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its
nominee, as the case may be, as the registered owner of the
registered global security. None of PepsiCo, the trustee, the
warrant agents, the unit agents or any other agent of PepsiCo,
agent of the trustee or agent of the warrant agents or unit
agents will have any responsibility or liability for any aspect
of the records relating to payments made on account of
beneficial ownership interests in the registered global security
or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the depositary for any of the securities
represented by a registered global security, upon receipt of any
payment of principal, premium, interest or other distribution of
underlying securities or other property to holders on that
registered global security, will immediately credit
participants accounts in amounts proportionate to their
respective beneficial interests in that registered global
security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial
interests in a registered global security held through
participants will be governed by standing customer instructions
and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered
in street name, and will be the responsibility of
those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, and a
successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 is not appointed by us within
90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held
by the depositary. Any securities issued in definitive form in
exchange for a registered global security will be registered in
the name or names that the depositary gives to the relevant
trustee, warrant agent, unit agent or other relevant agent of
ours or theirs. It is expected that the depositarys
instructions will be based upon directions received by the
depositary from participants with respect to ownership of
beneficial interests in the registered global security that had
been held by the depositary.
VALIDITY
OF SECURITIES
The validity of the securities in respect of which this
prospectus is being delivered will be passed on for us by Davis
Polk & Wardwell, New York, New York, as to New York
law, and by Womble Carlyle Sandridge & Rice, PLLC,
Research Triangle Park, North Carolina, as to North Carolina law.
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
The consolidated financial statements of PepsiCo, Inc. as of
December 29, 2007 and December 30, 2006, and for each
of the years in the three-year period ended December 29,
2007, and the effectiveness of internal control over financial
reporting as of December 29, 2007, are incorporated by
reference herein in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts
in accounting and auditing.
18
With respect to the unaudited interim financial information for
the twelve weeks ended March 22, 2008 and March 24,
2007, for the twelve and twenty-four weeks ended June 14,
2008 and June 16, 2007 and for the twelve and thirty-six
weeks ended September 6, 2008 and September 8, 2007,
incorporated by reference herein, the independent registered
public accounting firm has reported that they applied limited
procedures in accordance with professional standards for a
review of such information. However, their separate report
included in our quarterly reports on
Form 10-Q
for the twelve weeks ended March 22, 2008, the twenty-four
weeks ended June 14, 2008 and the thirty-six weeks ended
September 6, 2008, and incorporated by reference herein,
state that they did not audit and they do not express an opinion
on that interim financial information. Accordingly, the degree
of reliance on their report on such information should be
restricted in light of the limited nature of the review
procedures applied. The accountants are not subject to the
liability provisions of Section 11 of the Securities Act of
1933, as amended (the Securities Act) for their
report on the unaudited interim financial information because
that report is not a report or a part of
the registration statement prepared or certified by the
accountants within the meaning of Sections 7 and 11 of the
Securities Act.
19
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution
|
The following table sets forth the costs and expenses payable by
the registrant in connection with the sale of the securities
being registered hereby.
|
|
|
|
|
|
|
Amount to be
|
|
|
|
Paid
|
|
|
Registration fee
|
|
|
(1
|
)
|
Printing
|
|
|
*
|
|
Legal fees and expenses
|
|
|
*
|
|
Trustee fees
|
|
|
*
|
|
Accounting fees and expenses
|
|
|
*
|
|
Miscellaneous
|
|
|
*
|
|
|
|
|
|
|
TOTAL
|
|
|
*
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Deferred in reliance upon Rule 456(b) and Rule 457(r).
|
|
*
|
|
Not presently determinable.
|
|
|
Item 15.
|
Indemnification
of Directors and Officers
|
PepsiCo, Inc. (PepsiCo) does not have any provisions
for indemnification of directors or officers in its Amended and
Restated Articles of Incorporation. Article III,
Section 3.7 of the By-Laws, as amended to February 2,
2007, provides that PepsiCo shall indemnify, to the full extent
permitted by law, any person who was or is, or who is threatened
to be made, a party to an action, suit or proceeding (and any
appeal therein), whether civil, criminal, administrative,
investigative or arbitrative, by reason of the fact that such
person, such persons testator or intestate, is or was a
director, officer or employee of PepsiCo, or is or was serving
at the request of PepsiCo as a director, officer or employee of
another enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such
action, suit or proceeding. At the Boards discretion, such
indemnification may also include advances of a directors,
officers or employees expenses prior to final
disposition of such action, suit or proceeding.
Section 55-2-02
of the North Carolina Business Corporation Act (the North
Carolina Act) enables a corporation in its articles of
incorporation to eliminate or limit, with certain exceptions,
the personal liability of directors arising out of an action
whether by or in the right of the corporation or otherwise for
monetary damages for breach of their duties as directors. No
such provision is effective to eliminate or limit a
directors liability for: (1) acts or omissions that
the director at the time of the breach knew or believed to be
clearly in conflict with the best interests of the corporation;
(2) improper distributions as described in
Section 55-8-33
of the North Carolina Act; (3) any transaction from which
the director derived an improper personal benefit; or
(4) acts or omissions occurring prior to the date the
exculpatory provision became effective. As noted above,
PepsiCos Amended and Restated Articles of Incorporation do
not contain a provision that eliminates or limits such personal
liability.
Sections 55-8-50
through
55-8-58
of
the North Carolina Act permit a corporation to indemnify its
directors, officers, employees or agents under either or both a
statutory or nonstatutory scheme of indemnification. Under the
statutory scheme, a corporation may, with certain exceptions,
indemnify a director, officer, employee or agent of the
corporation who was, is, or is threatened to be made, a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative and
whether formal or informal, because of the fact that such person
was or is a director, officer, agent or employee of the
corporation, or is or was serving at the request of such
corporation as a director, officer,
II-1
employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. This
indemnity may include the obligation to pay any judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan) or reasonable expenses
incurred in connection with a proceeding (including counsel
fees), but no such indemnification may be granted unless such
director, officer, employee or agent (1) conducted himself
in good faith, (2) reasonably believed (a) that any
action taken in his official capacity with the corporation was
in the best interests of the corporation or (b) that in all
other cases his conduct was at least not opposed to the
corporations best interests, and (3) in the case of
any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. Whether a director has met the requisite
standard of conduct for the type of indemnification set forth
above is determined by a majority vote of a quorum of the board
of directors who are not parties to the proceeding in question,
a duly designated committee of directors if a quorum of the full
board cannot be established, special legal counsel selected by
the board or duly designated committee of directors, or the
shareholders (excluding shares owned or controlled by directors
who are parties to the proceeding in question) in accordance
with
Section 55-8-55
of the North Carolina Act. A corporation may not indemnify a
director under the statutory scheme in connection with a
proceeding by or in the right of the corporation in which a
director was adjudged liable to the corporation or in connection
with any other proceeding charging improper personal benefit in
which a director was adjudged liable (whether or not involving
action in his official capacity) on the basis of having received
an improper personal benefit.
Sections 55-8-52
and
55-8-56
of the North Carolina Act require a corporation, unless its
articles of incorporation provide otherwise, to indemnify a
director or officer who has been wholly successful, on the
merits or otherwise, in the defense of any proceeding to which
such director or officer was, or was threatened to be, made a
party because he is or was a director or officer of the
corporation against reasonable expenses incurred by him in
connection with the proceeding. Unless prohibited by the
articles of incorporation, a director or officer also may make
application for and obtain court-ordered indemnification if the
court determines that such director or officer is
(1) entitled to mandatory indemnification under
Section 55-8-52,
in which case the court will also order the corporation to pay
the directors or officers reasonable expenses
incurred to obtain court-ordered indemnification, and
(2) fairly and reasonably entitled to indemnification in
view of all relevant circumstances, whether or not he met the
standard of conduct set forth in
Section 55-8-51
or was adjudged liable as described in
Section 55-8-51.
In addition to, and notwithstanding the conditions of and
limitations on, the indemnification described above under the
statutory scheme,
Section 55-8-57
of the North Carolina Act permits a corporation to indemnify, or
agree to indemnify, any of its directors, officers, employees or
agents against liability and expenses (including attorneys
fees) in any proceeding (including proceedings brought by or on
behalf of the corporation) arising out of their status as such
or their activities in such capacities, except for any
liabilities or expenses incurred on account of activities that
were, at the time taken, known or believed by the person to be
clearly in conflict with the best interests of the corporation.
Consistent with the foregoing, PepsiCo has entered into
indemnification agreements with each of its directors, pursuant
to which PepsiCo has agreed to indemnify and hold harmless, to
the full extent permitted by law, each director against any and
all liabilities and assessments (including attorneys fees
and other costs, expenses and obligations) arising out of or
related to any threatened, pending or completed action, suit,
proceeding, inquiry or investigation, whether civil, criminal,
administrative, or other, including, but not limited to,
judgments, fines, penalties and amounts paid in settlement
(whether with or without court approval), and any interest,
assessments, excise taxes or other charges paid or payable in
connection with or in respect of any of the foregoing, incurred
by the director and arising out of his status as a director or
member of a committee of the Board of PepsiCo, or by reason of
anything done or not done by the director in such capacities.
After receipt of an appropriate request by a director, PepsiCo
will also advance all expenses, costs and other obligations
(including attorneys fees) arising out of or related to
such matters. PepsiCo will not be liable for payment of any
liability or expense incurred by a director on account of acts
which, at the time taken, were known or believed by such
director to be clearly in conflict with PepsiCos best
interests.
Additionally,
Section 55-8-57
of the North Carolina Act authorizes a corporation to purchase
and maintain insurance on behalf of an individual who is or was
a director, officer, employee or agent of the
II-2
corporation against certain liabilities incurred by such a
person, whether or not the corporation is otherwise authorized
by the North Carolina Act to indemnify that person. PepsiCo has
purchased and maintains such insurance.
The form of underwriting agreement filed as Exhibit 1.1 to
this registration statement provides for indemnification of
directors and officers of the registrant by the underwriters
against certain liabilities.
|
|
Item 16.
|
Exhibits
and Financial Statement Schedules
|
(a) The list of exhibits is incorporated herein by
reference to the Exhibit Index following the signature pages.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of securities registered hereby, a post-effective
amendment to this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i), (ii) and
(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to
II-3
Rule 415(a)(1)(i), (vii) or (x) for the purpose
of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to
which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-4
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective; and
(2) For purposes of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Purchase, State of New York, on October 15, 2008.
PepsiCo, Inc.
Name: Indra K. Nooyi
|
|
|
|
Title:
|
Chairman of the Board and Chief Executive Officer
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Larry D. Thompson and
Thomas H. Tamoney, Jr., and each of them, his or her true
and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this registration statement and any and all additional
registration statements pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents or either of them or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
/s/ Indra
K. Nooyi
Indra
K. Nooyi
|
|
Chairman of the Board and Chief Executive Officer
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Richard
Goodman
Richard
Goodman
|
|
Chief Financial Officer
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Peter
A. Bridgman
Peter
A. Bridgman
|
|
Senior Vice President and Controller (Principal Accounting
Officer)
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Ian
M. Cook
Ian
M. Cook
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Dina
Dublon
Dina
Dublon
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Victor
J. Dzau
Victor
J. Dzau
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Ray
L. Hunt
Ray
L. Hunt
|
|
Director
|
|
October 15, 2008
|
II-6
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
/s/ Alberto
Ibargüen
Alberto
Ibargüen
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Arthur
C. Martinez
Arthur
C. Martinez
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Sharon
Percy Rockefeller
Sharon
Percy Rockefeller
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ James
J. Schiro
James
J. Schiro
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Lloyd
G. Trotter
Lloyd
G. Trotter
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Daniel
Vasella
Daniel
Vasella
|
|
Director
|
|
October 15, 2008
|
|
|
|
|
|
/s/ Michael
D. White
Michael
D. White
|
|
Director
|
|
October 15, 2008
|
II-7
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Document
|
|
|
1
|
.1
|
|
Form of Underwriting Agreement (common stock and debt securities)
|
|
1
|
.2
|
|
Form of Distribution Agreement (debt securities, warrants and
units)
|
|
1
|
.3*
|
|
Form of Underwriting Agreement (guarantees of debt securities)
|
|
4
|
.1
|
|
Amended and Restated Articles of Incorporation of PepsiCo, Inc.
(incorporated herein by reference to exhibit 4.1 to
PepsiCo, Inc.s registration statement on
Form S-8
(Registration
No. 333-66632))
|
|
4
|
.2
|
|
By-laws of PepsiCo, Inc. (incorporated herein by reference to
exhibit 3.2 to PepsiCo, Inc.s annual report on
Form 10-K
for the fiscal year ended December 30, 2006)
|
|
4
|
.3
|
|
Indenture dated as of May 21, 2007 between PepsiCo, Inc.
and The Bank of New York, as Trustee
|
|
4
|
.4
|
|
Form of Note (included in exhibit 4.3)
|
|
4
|
.5
|
|
Form of Guarantee of Debt Securities, included in Form of
Indenture among PepsiCo, Inc., Bottling Group LLC and The Bank
of New York Mellon
|
|
4
|
.6*
|
|
Form of Warrant Agreement
|
|
4
|
.7*
|
|
Form of Unit Agreement
|
|
5
|
.1
|
|
Opinion of Davis Polk & Wardwell
|
|
5
|
.2
|
|
Opinion of Womble Carlyle Sandridge & Rice, PLLC
|
|
12
|
.1
|
|
Statement regarding computation of Ratio of Earnings to Fixed
Charges (incorporated herein by reference to exhibit 12 to
PepsiCo, Inc.s annual report on
Form 10-K
for the fiscal year ended December 29, 2007 and quarterly
reports on
Form 10-Q
for the twelve, twenty-four and thirty-six weeks ended
March 22, 2008, June 14, 2008 and September 6,
2008)
|
|
15
|
.1
|
|
Letter regarding unaudited interim financial information
|
|
23
|
.1
|
|
Consent of KPMG LLP
|
|
23
|
.2
|
|
Consent of Davis Polk & Wardwell (included in
exhibit 5.1)
|
|
23
|
.3
|
|
Consent of Womble Carlyle Sandridge & Rice, PLLC
(included in exhibit 5.2)
|
|
24
|
.1
|
|
Power of Attorney (included on the signature page of the
registration statement)
|
|
25
|
.1
|
|
Statement of Eligibility on
Form T-1
of The Bank of New York Mellon (debt securities)
|
|
25
|
.2
|
|
Statement of Eligibility on
Form T-1
of The Bank of New York Mellon (guarantees of debt securities)
|
|
|
|
*
|
|
To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein in connection with an offering
of the offered securities.
|
II-8
Exhibit 1.1
PEPSICO, INC.
UNDERWRITING AGREEMENT STANDARD PROVISIONS
Dated as of October 1, 2008
From time to time, PepsiCo, Inc., a corporation organized under the laws of the State of North
Carolina (the
Company
), may enter into one or more terms agreements (each, a
Terms Agreement
)
in substantially the form of Exhibit A hereto, with such additions and deletions as the parties
thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue
and sell certain securities (the
Securities
) to the underwriter or underwriters named in the
applicable Terms Agreement (the
Underwriters
, which term shall include any underwriter
substituted pursuant to Section 8 hereof). The provisions included herein (the
Standard
Provisions
) shall be attached to and incorporated by reference into each Terms Agreement.
Section 1
. Definitions.
The Company has filed with the Securities and Exchange Commission
(the
Commission
) an automatic shelf registration statement as defined in Rule 405 under the
Securities Act of 1933, as amended (the
Securities Act
) on Form S-3 covering the registration of
certain Securities of the Company to be issued and sold from time to time, in or pursuant to one or
more offerings on terms to be determined at the time of sale, in accordance with Rule 415 under the
Securities Act. Such registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430B under the Securities Act
(the
Rule 430 Information
), is referred to herein as the
Registration Statement
; and the base
prospectus included in the Registration Statement at the time of filing (the
Base Prospectus
) and
the final prospectus supplement relating to a particular offering of Underwritten Securities (as
defined below) referred to in a Terms Agreement, in the forms first used to confirm sales of such
Underwritten Securities (or in the form first made available to the Underwriters by the Company to
meet requests of purchasers pursuant to Rule 173 under the Securities Act), are collectively
referred to herein as the
Prospectus
. All references herein to the Registration Statement and
the Prospectus shall be deemed to include all documents incorporated therein by reference which
are filed by the Company pursuant to the Securities Exchange Act of 1934, as amended (the
Exchange
Act
) or the Securities Act, prior to the execution of the applicable Terms Agreement. References
herein to a
preliminary prospectus
relating to an offering of particular Underwritten Securities
pursuant to a Terms Agreement shall be deemed to refer to the Base Prospectus and to the prospectus
supplement (a
preliminary prospectus supplement
) relating to such Underwritten Securities that
omitted Rule 430 Information or other information to be included upon pricing in a form of
prospectus relating to such Underwritten Securities filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act and that was used prior to the initial delivery of
the Prospectus relating to such Underwritten Securities to the Underwriters by the Company.
For purposes of these Standard Provisions and the Terms Agreement relating to an offering of
particular Underwritten Securities,
free writing prospectus
has the meaning set
forth in Rule 405 under the Securities Act, and
Time of Sale Prospectus
means the Base
Prospectus, the final preliminary prospectus supplement filed prior to the
Time of Sale
set forth
in such Terms Agreement, together with any free writing prospectus or other information stated in
such Terms Agreement to form part of the Time of Sale Prospectus. For purposes of these Standard
Provisions, all references to the Registration Statement, Prospectus, preliminary prospectus
or Time of Sale Prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (
EDGAR
).
All references in these Standard Provisions to financial statements and schedules and other
information which is contained, included or stated (or other references of like import) in
the Registration Statement, preliminary prospectus, Time of Sale Prospectus or Prospectus shall be
deemed to mean and include all such financial statements and schedules and other information which
is incorporated by reference in the Registration Statement, the applicable preliminary prospectus,
the applicable Time of Sale Prospectus or the applicable Prospectus, as the case may be, prior to
the execution of the applicable Terms Agreement; and all references in these Standard Provisions to
amendments or supplements to the Registration Statement, preliminary prospectus, Time of Sale
Prospectus or Prospectus shall be deemed to include the filing of any document under the Exchange
Act which is incorporated by reference in the Registration Statement, the applicable preliminary
prospectus, the applicable Time of Sale Prospectus or the applicable Prospectus, as the case may
be, after the execution of the applicable Terms Agreement.
Section 2
. Purchase and Sale of Securities by the Underwriters.
Whenever the Company
determines to make an offering of Securities to be governed by these Standard Provisions, the
Company will enter into a Terms Agreement providing for the sale of such Securities to, and the
purchase and offering thereof by, the Underwriters. The Terms Agreement relating to the offering
of Securities shall specify the number or amount of Securities to be issued (the
Underwritten
Securities
), the name of each Underwriter participating in such offering (subject to substitution
as provided in Section 8 hereof) and the name of any Underwriter acting as manager or co-manager in
connection with such offering, the number or amount of Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or variable price
basis and, if on a fixed price basis, the initial offering price, the price at which the
Underwritten Securities are to be purchased by the Underwriters, the form, time, date and place of
delivery and payment of the Underwritten Securities and any other material terms of the
Underwritten Securities. The Terms Agreement may take the form of an exchange of any standard form
of written telecommunication between the Company and the Underwriter or Underwriters, acting
through the Underwriters representative (the
Representative
) identified as such in the
applicable Terms Agreement. Each offering of Underwritten Securities will be governed by these
Standard Provisions, as supplemented by the applicable Terms Agreement.
If so specified in the applicable Terms Agreement, the Company may grant the Underwriters the
option to purchase at their election up to the number of additional Securities (the
Optional
Securities
) set forth in such Terms Agreement at the purchase price per Security set forth
therein, for the sole purpose of covering over-allotments of Securities in excess of the number of
Firm Securities
set forth in such Terms Agreement. Both Firm Securities and
2
Optional Securities shall be deemed Underwritten Securities hereunder. Any such election to
purchase Optional Securities may be exercised only once, and only by written notice from the
Representative to the Company, given within a period of 30 calendar days after the date of such
Terms Agreement and setting forth the aggregate number of Optional Securities to be purchased and
the time and date on which such Optional Securities are to be delivered (which shall be a Closing
Time (as defined below) hereunder), as determined by the Representative but in no event earlier
than the initial Closing Date (as defined below) for the Firm Securities or, unless the
Representative and the Company otherwise agree in writing, earlier than two or later than ten
Business Days (as defined below) after the date of such notice. If the Company shall have granted
such an option to the Underwriters, then in the event and to the extent that the Underwriters shall
exercise such option as provided above, the Company will sell to each of the Underwriters, and each
of the Underwriters will, severally and not jointly, purchase from the Company, at the purchase
price set forth in such Terms Agreement, subject to adjustment as provided below, that portion of
the number of Optional Securities as to which such option shall have been exercised (to be adjusted
by the Representative so as to eliminate fractional Securities) determined by multiplying such
number of Optional Securities by a fraction the numerator of which is the number of Firm Securities
which such Underwriter is required to purchase as set forth opposite the name of such Underwriter
in such Terms Agreement and the denominator of which is the aggregate number of Firm Securities
that all of the Underwriters are required to purchase thereunder.
As used herein,
Business Day
means any day other than a Saturday, Sunday or other day on
which commercial banks are permitted or required to be closed in New York City.
Section 3
. Underwriters Obligation to Purchase Underwritten Securities.
The several
commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the representations, warranties
and agreements herein contained and shall be subject to the terms and conditions herein set forth.
Section 4
. Terms Agreement.
No agreement for the purchase of the Underwritten Securities by
the Underwriters will be deemed to exist until the Company and the Representative, on behalf of the
Underwriters, have executed a Terms Agreement. Each Terms Agreement will incorporate all
applicable terms and provisions of these Standard Provisions as fully as though such terms and
provisions were expressly stated therein.
Section 5
. Delivery of Certain Documents, Certificates, and Opinions.
At each Closing Time,
the Underwriters shall have received the following documents:
(a) the opinion and disclosure letter of Davis Polk & Wardwell, or other special New York
counsel for the Company reasonably acceptable to the Representative; the opinion of internal
counsel for the Company; and the opinion of Womble Carlyle Sandridge & Rice, PLLC, or other special
North Carolina counsel for the Company reasonably acceptable to the Representative, each dated as
of the Closing Date, substantially in the respective forms of Exhibits B-1, B-2, B-3 and B-4
hereto,
3
(b) the opinion of counsel to the Underwriters, selected by the Representative and reasonably
acceptable to the Company, dated as of the Closing Date, in form and substance reasonably
satisfactory to the Underwriters,
(c) a certificate of the Assistant Secretary of the Company, dated as of the Closing Date,
substantially in the form of Exhibit C hereto, and
(d) a certificate of the Chief Financial Officer or Treasurer of the Company, dated as of the
Closing Date, substantially in the form of Exhibit D hereto.
Section 6
. Certain Conditions Precedent to the Underwriters Obligations.
The Underwriters
obligation to purchase any Underwritten Securities will in all cases be subject to the accuracy of
the representations and warranties of the Company set forth in Section 7 hereof, to the receipt of
the opinions and certificates to be delivered to the Underwriters pursuant to the terms of Section
5 hereof, to the accuracy of the statements of the Companys officers made in each certificate to
be furnished as provided herein, to the performance and observance by the Company of all covenants
and agreements contained herein on its part to be performed and observed, in each case at the time
the Company executes a Terms Agreement and as of the applicable Closing Date, and (in each case) to
the following additional conditions precedent, when and as specified:
(a) As of the Closing Time for any Underwritten Securities, and with respect to the period
from the date of the applicable Terms Agreement to and including the applicable Closing Time:
(i) there shall not have occurred (A) any material adverse change (or development
involving a prospective material adverse change) in the business, properties, earnings, or
financial condition of the Company and its subsidiaries on a consolidated basis (a
Material
Adverse Effect
) or (B) any suspension or material limitation of trading in the Companys
common stock, par value one and two-thirds cents (1-2/3 cents) per share, of the Company
(
Common Stock
), by the Commission or the New York Stock Exchange, Inc. (the
NYSE
), the
effect of any of which shall have made it impracticable, in the reasonable judgment of the
Underwriters, to market such Underwritten Securities, such judgment to be based on relevant
market conditions;
(ii) there shall not have occurred (A) any suspension or material limitation of trading
in securities generally on the NYSE, (B) a declaration of a general moratorium on commercial
banking activities in New York by either Federal or New York State authorities, or (C) any
outbreak or material escalation of hostilities or other national or international calamity
or crisis, the effect of any of which shall have made it impracticable, in the judgment of
the Underwriters, to market such Underwritten Securities, such judgment to be based on
relevant market conditions; and
(iii) there shall not have been issued any stop order suspending the effectiveness of
the Registration Statement nor shall any proceedings for that purpose or pursuant to Section
8A of the Securities Act against the Company or related to the offering of the Underwritten
Securities have been instituted or threatened.
4
(b) The Underwriters will receive, upon execution and delivery of any applicable Terms
Agreement, a letter from KPMG LLP, or such other independent registered public accounting firm as
may be selected by the Company, containing statements and information of the type ordinarily
included in accountants comfort letters to underwriters with respect to the financial statements
and certain financial information of the Company contained in the Registration Statement and the
Prospectus.
(c) At each Closing Time, the Underwriters shall have received from KPMG LLP, or such other
independent registered public accounting firm as may be selected by the Company, a letter, dated as
of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (b) of this Section, except that the cut off date referred to therein
shall be a date not more than five Business Days prior to the Closing Date.
(d) On each Closing Date, the Underwriters shall have received from the Company such
appropriate further information, certificates, and documents as the Company and the Underwriters
shall have agreed, as reflected in the applicable Terms Agreement.
(e)
[The following provision shall apply only to a Terms Agreement in which the Underwritten
Securities include debt securities]
Subsequent to the execution and delivery of the applicable
Terms Agreement and prior to the Closing Time, there shall not have been any material downgrading,
nor any notice given of any intended or potential material downgrading or of a possible material
change that does not indicate the direction of the possible material change, in the rating accorded
any of the Companys securities, including the Underwritten Securities, by either Moodys Investors
Service, Inc. or Standard & Poors Ratings Services, a division of The McGraw Hill Companies, Inc.
Section 7
. Representations and Warranties of the Company.
The Company represents and
warrants to each Underwriter named in the applicable Terms Agreement, as of the date thereof, and
as of each Closing Time, the following statements are and shall be true:
(a) (i) The Registration Statement constitutes an automatic shelf registration statement (as
defined in Rule 405 under the Securities Act) filed within three years of the date of the
applicable Terms Agreement, (ii) the Company is a well known seasoned issuer (as defined in Rule
405 under the Securities Act), (iii) the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf
registration statement form, (iv) the Registration Statement became effective upon filing with the
Commission and no stop order suspending the effectiveness of the Registration Statement is in
effect nor, to the Companys knowledge, are any proceedings for such purpose pending before or
threatened by the Commission, (v) as of the effective date of the Registration Statement (the
Effective Date
), the Company met the applicable requirements for use of Form S-3 under the
Securities Act with respect to the registration under the Securities Act of the Securities, and
(vi) as of the Effective Date, the Registration Statement met the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and complied in all material respects with said Rule.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act or the
Securities Act and incorporated or to be incorporated by reference in the Prospectus or Time of
5
Sale Prospectus complies or will comply, in all material respects, with the applicable
provisions of the Exchange Act or the Securities Act, as applicable, and the rules and regulations
of the Commission thereunder, (ii) the Registration Statement does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration Statement and the Prospectus
comply, in all material respects, with the Securities Act and the rules and regulations of the
Commission thereunder, (iv) the Prospectus does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (v) the Time of Sale Prospectus does
not as of its date (which shall be the date of the preliminary prospectus supplement included
therein, if applicable), and will not as of the Time of Sale and at the Closing Date, the Time of
Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however,
that the Company makes no representations and warranties as to information
contained in or omitted from the Registration Statement, the Prospectus or the Time of Sale
Prospectus in reliance upon and in conformity with information furnished in writing to the Company
by the Underwriters expressly for use in the Registration Statement, the Prospectus or the Time of
Sale Prospectus or any amendment or supplement thereto or the Statement of Eligibility and
Qualification of the Trustee (the
Form T-1
) under the Trust Indenture Act of 1939, as amended
(the
Trust Indenture Act
).
(c) The Company is not an ineligible issuer in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(d) The Company has been duly incorporated and is validly existing under the laws of the State
of North Carolina, has the corporate power and authority to own its property and to conduct its
business as described in the Time of Sale Prospectus and the Prospectus, and is duly qualified to
transact business as a foreign corporation and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or in good standing would not have a
Material Adverse Effect.
(e) The applicable Terms Agreement, incorporating these Standard Provisions, as amended by
agreement of the parties to the applicable Terms Agreement, as of the date of such Terms Agreement
will have been, duly authorized, executed and delivered by the Company.
(f)
[The following provision shall apply only to a Terms Agreement in which the Underwritten
Securities include Common Stock]
The Underwritten Securities have been duly authorized for
issuance and sale pursuant to these Standard Provisions and the applicable Terms Agreement. Such
Underwritten Securities, when issued and delivered by the Company pursuant to these Standard
Provisions and such Terms Agreement against payment of the consideration therefor specified in such
Terms Agreement, will be validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the
6
Company. No holder of such Underwritten Securities is or will be subject to personal liability
by reason of being such a holder.
[The following provision shall apply only to a Terms Agreement in which the Underwritten
Securities include debt securities]
The Underwritten Securities have been duly authorized and,
when issued, executed, and authenticated in accordance with the provisions of the applicable
indenture (the
Indenture
), or when countersigned by the trustee in accordance with the provisions
of the Indenture, as the case may be, will be entitled to the benefits of the Indenture, and will
be valid and binding obligations of the Company, enforceable against the Company in accordance with
their respective terms, except as such enforceability may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or similar laws relating to
creditors rights generally, by any other federal or state laws, by rights of acceleration, if
applicable, by general principles of equity.
(g)
[The following provision shall apply only to a Terms Agreement in which the Underwritten
Securities include debt securities]
The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended and has been duly authorized, executed, and delivered by the
Company and (assuming due authorization, valid execution, and delivery thereof by the trustee) is a
valid and binding agreement of the Company, enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by the laws of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, or similar laws relating to creditors rights
generally, by any other federal or state laws, by rights of acceleration, by general principles of
equity.
(h) The execution and delivery of and performance by the Company of its obligations under the
applicable Terms Agreement, incorporating these Standard Provisions as amended by agreement of the
parties to such Terms Agreement, Indenture and the issuance and sale of the Underwritten
Securities, as the case may be, will not contravene any provision of any applicable law or of the
Restated Charter or By-Laws of the Company, or of any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and its subsidiaries taken
as a whole, or of any judgment, order, or decree of any governmental body, agency, or court having
jurisdiction over the Company or any of its subsidiaries, in each of the foregoing cases except as
would not reasonably be expected to have a Material Adverse Effect, and no consent, approval,
authorization, or order of or qualification with any governmental body or agency is, to the
Companys knowledge, required for the performance by the Company of its obligations under the
applicable Terms Agreement, incorporating these Standard Provisions as amended by agreement of the
parties to such Terms Agreement, or the issuance and sale of the Underwritten Securities, except
such as may be required by Blue Sky laws or other securities laws of the various states in which
the issuance and sale of the Underwritten Securities are offered and sold and except to the extent
where the failure to obtain such consent, approval, authorization, order or qualification would not
reasonably be expected to have a Material Adverse Effect.
(i) There has not been any material adverse change (or development involving a prospective
material adverse change) in the business, properties, earnings, or financial condition of the
Company and its subsidiaries on a consolidated basis from that set forth in the Companys last
periodic report filed with the Commission under the Exchange Act and the rules and
7
regulations promulgated thereunder. Since the respective dates as of which information is
given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except as
otherwise stated therein, there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(j) There are no legal or governmental proceedings pending or, to the Companys knowledge,
threatened, to which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that is required to be described in
the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described,
or any applicable statute, regulation, contract, or other document that is required to be described
in the Registration Statement, the Time of Sale Prospectus or the Prospectus that is not so
described.
(k) The independent registered public accounting firm who audited the financial statements and
supporting schedules incorporated by reference in the Registration Statement are independent
registered public accountants as required by the Securities Act.
(l) The financial statements included or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, together with the related schedules and
notes, present fairly the financial position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations, shareholders equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; said financial statements have
been prepared in conformity with U.S. generally accepted accounting principles (
GAAP
) applied on
a consistent basis throughout the periods involved. The supporting schedules, if any, present
fairly in accordance with GAAP the information required to be stated therein.
Section 8
. Default by One or More of the Underwriters.
If one or more of the Underwriters
shall fail at the Closing Time to purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the
Defaulted Securities
), then the
remaining Underwriters shall have the right, within 24 hours thereafter, to make arrangements for
one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Underwriters shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number or principal amount of Defaulted Securities does not exceed 10% of the
number of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement,
the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount of Defaulted Securities exceeds 10% of the
number or aggregate principal amount of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement shall terminate without liability on the
part of any non-defaulting Underwriter. No action taken pursuant to this Section 8 shall relieve
any defaulting Underwriter from liability in respect of its default.
8
In the event of any such default which does not result in a termination of the applicable
Terms Agreement, either the Underwriters or the Company shall have the right to postpone the
Closing Time for a period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or arrangements.
Section 9
. Agreements.
(a) The Company covenants with the Underwriters as follows:
(i) Prior to the filing by the Company of any amendment to the Registration Statement,
the Time of Sale Prospectus or of any prospectus supplement that shall name the Underwriters
or the filing or use of any free writing prospectus, the Company will afford the
Underwriters or their counsel a reasonable opportunity to review and comment on the same,
provided, however
, that the foregoing requirement will not apply to any of the Companys
filings with the Commission required to be filed pursuant to Sections 13(a), 13(c), 14, or
15(d) of the Exchange Act. Subject to the foregoing sentence, the Company will promptly
cause each applicable prospectus supplement and free writing prospectus to be filed with or
transmitted for filing with the Commission in accordance with Rule 424(b) or 424(c) under
the Securities Act or Rule 433 under the Securities Act, respectively, or pursuant to such
other rule or regulation of the Commission as then deemed appropriate by the Company. The
Company will promptly advise the Underwriters of (A) the filing and effectiveness of any
amendment to the Registration Statement other than by virtue of the Companys filing any
report required to be filed under the Exchange Act, (B) any request by the Commission for
any amendment to the Registration Statement, for any amendment or supplement to the Time of
Sale Prospectus or the Prospectus, or for any information from the Company, (C) the issuance
by the Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose, and (D) the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Underwritten Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company will use reasonable efforts
to prevent the issuance of any such stop order or notice of suspension of qualification and,
if issued, to obtain as soon as reasonably possible the withdrawal thereof.
(ii) If the Time of Sale Prospectus is being used to solicit offers to buy the
Underwritten Securities at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it is necessary
to amend or supplement the Time of Sale Prospectus in order to make the statements therein,
in the light of the circumstances, not misleading, or if any event shall occur or condition
exist as a result of which the Time of Sale Prospectus conflicts with the information
contained in the Registration Statement then on file, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when
delivered to a prospective purchaser, be misleading or so that the
9
Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented,
will comply with applicable law.
(iii) If, at any time when a Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act) relating to any Underwritten Securities is required to
be delivered under the Securities Act, any event occurs or condition exists as a result of
which the Prospectus would include an untrue statement of a material fact, or omit to state
a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary to amend or supplement the
Prospectus in order to comply with the Securities Act, the Exchange Act, the respective
rules and regulations of the Commission thereunder, or any other applicable law, the Company
will promptly notify the Underwriters, by telephone or by facsimile (in either case with
written confirmation from the Company by mail), to cease use and distribution of the
Prospectus (and all then existing supplements thereto) and to suspend all efforts to resell
the Underwritten Securities in its capacity as underwriter or dealer, as the case may be,
and the Underwriters will promptly comply with the terms of such notice. The Company will
forthwith prepare and cause to be filed with the Commission an amendment or supplement to
the Registration Statement or the Prospectus, as the case may be, satisfactory in the
reasonable judgment of the Underwriters to correct such statement or omission or to effect
such compliance, and the Company will supply the Underwriters with one signed copy of such
amended Registration Statement and as many copies of such amended or supplemented Prospectus
as the Underwriters may reasonably request,
provided, however
, that the expense of
preparing, filing, and supplying copies to the Underwriters of any such amendment or
supplement will be borne by the Company only for the nine-month period immediately following
the purchase of such Underwritten Securities by the Underwriters and thereafter will be
borne by the Underwriters.
(iv) The Company will furnish to the Underwriters, without charge, as many copies of
the Time of Sale Prospectus, the Prospectus, each preliminary prospectus, any documents
incorporated by reference therein, and any supplements and amendments thereto and any free
writing prospectus as the Underwriters may reasonably request.
(v) The Company will, with such assistance from the Underwriters as the Company may
reasonably request, endeavor to qualify the Securities for offer and sale under the Blue Sky
laws or other securities laws of such jurisdictions as the Underwriters shall reasonably
request and will maintain such qualifications for as long as required with respect to the
offer, sale, and distribution of the Securities.
(vi)
[The following provision shall apply only to a Terms Agreement in which the
Underwritten Securities include Common Stock]
During the period specified in the
applicable Terms Agreement, the Company will not, without the prior written consent of the
Representative, directly or indirectly, (A) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, lend or otherwise dispose of or transfer any share of
Common Stock or any securities convertible into or exercisable or exchangeable for or
10
repayable with Common Stock or (B) enter into any swap or any other agreement that
transfers, in whole or in part, the economic consequences of ownership of the Common Stock,
whether any such swap or transaction described in clause (A) or (B) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (1) the Underwritten Securities to be sold pursuant to the
applicable Terms Agreement, (2) Common Stock issued by the Company upon the exercise of an
option or warrant or the conversion of a security outstanding on the date of the applicable
Terms Agreement, (3) any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing and future employee benefit plans of the
Company, (4) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend
reinvestment plan, or (5) up to $500,000,000 worth of shares of Common Stock issued in
connection with any merger, joint venture or other strategic transaction.
(vii) The Company will make generally available to its security holders earnings
statements that satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder.
(viii)
[The following provision shall apply only to a Terms Agreement in which the
Underwritten Securities include Common Stock]
The Company will use its best efforts to
effect the listing of the Common Stock, prior to the Closing Time, on the NYSE.
(b) Each Underwriter, severally and not jointly, covenants with the Company as
follows:
(i) It has not and will not use, authorize use of, refer to, or participate
in the planning for use of, any free writing prospectus, as defined in Rule 405 under
the Securities Act (which term includes use of any written information furnished to the
Commission by the Company and not incorporated by reference into the Registration
Statement and any press release issued by the Company) (each such communication by the
Company or its agents or representatives (excluding any Underwriter) an
Issuer Free
Writing Prospectus
) other than (A) a free writing prospectus that contains no issuer
information (as defined in Rule 433(h)(2) under the Securities Act) that was not
included (including through incorporation by reference) in the preliminary prospectus or a
previously filed Issuer Free Writing Prospectus, (B) any Issuer Free Writing Prospectus
listed on Schedule I to the applicable Terms Agreement or (C) any free writing prospectus
prepared by such Underwriter and approved by the Company in advance in writing (each such
free writing prospectus referred to in clauses (A) or (C), an
Underwriter Free Writing
Prospectus
).
(ii) It has not and will not distribute any Underwriter Free Writing Prospectus
referred to in Section 9(b)(i)(A) above in a manner reasonably designed to lead to its
broad unrestricted dissemination.
11
(iii) It has not and will not, without the prior written consent of the Company, use
any free writing prospectus that contains the final terms of the Underwritten Securities
unless such terms have previously been included in a free writing prospectus filed with
the Commission.
(iv) It is not subject to any pending proceeding under Section 8A of the Securities
Act with respect to the offering (and will promptly notify the Company if any such
proceeding against it is initiated during the
Prospectus Delivery Period
, which means
such period of time beginning on the first date of the public offering of the Underwritten
Securities and ending on the later of the Closing Date or such date, as in the opinion of
counsel for the Underwriters a prospectus relating to the Underwritten Securities is
required by law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Underwritten Securities by any Underwriter
or dealer).
(v) Notwithstanding any of the above, each of the Underwriters may use one or more
term sheets relating to the Underwritten Securities containing customary information,
including Bloomberg email announcement, price talk guidance, comparable bond pricing and
final pricing terms, not inconsistent with the form of the final term sheet set forth in
the Terms Agreement, without the prior consent of the Company, so long as such term sheet
is not required to be filed as a free writing prospectus with the Commission pursuant to
Rule 433 under the Securities Act.
Section 10.
Fees and Expenses
. The Company will pay all costs, fees, and expenses arising in
connection with the sale of any Underwritten Securities through the Underwriters and in connection
with the performance by the Company of its obligations hereunder and under any Terms Agreement,
including the following: (i) expenses incident to the preparation and filing of the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free
writing prospectus prepared by or on behalf of, used by, or referred to by the Company, and all
amendments and supplements thereto, (ii) expenses incident to the issuance and delivery of such
Underwritten Securities, (iii) the fees and disbursements of counsel for the Company and the
Companys independent registered public accounting firm, (iv) if approved by the Company in advance
and in writing, expenses incident to the qualification of such Underwritten Securities under Blue
Sky laws and other applicable state securities laws in accordance with the provisions of Section
9(a)(v) hereof, including related filing fees and the reasonable fees and disbursements of the
Underwriters counsel in connection therewith and in connection with the preparation of any survey
of Blue Sky laws, (v) expenses incident to the printing and delivery to the Underwriters, in the
quantities hereinabove stated, of copies of the Registration Statement and all amendments thereto
and of the Prospectus, each preliminary prospectus, and all amendments and supplements thereto,
(vi) the fees and expenses, if any, incurred with respect to any applicable filing with the
Financial
12
Industry Regulatory Authority, (vii) the fees and expenses incurred in connection with the
listing of any Underwritten Securities on the NYSE and (viii) if applicable, the fees and expenses
of the trustee under the applicable Indenture. If so stated in the applicable Terms Agreement, the
Underwriters agree to reimburse the Company for the stated amount of its expenses incurred in
connection with the transactions contemplated by the applicable Terms Agreement.
Section 11
. Inspection; Place of Delivery; Payment.
(a)
Inspection
. The Company agrees to have available for inspection, checking, and packaging
by the Underwriters in The City of New York, the Underwritten Securities to be sold to the
Underwriters hereunder, not later than 1:00 P.M. on the Business Day prior to the applicable
Closing Date.
(b)
Place of Delivery of Documents, Certificates and Opinions
. The documents, certificates
and opinions required to be delivered to the Underwriters pursuant to Sections 5 and 6 hereof will
be delivered at the
Closing Location
specified in the applicable Terms Agreement, or at such
other location as may be agreed upon by the Company and the Underwriters, not later than the
Closing Time.
(c)
Payment
. Payment of the purchase price for, and delivery of certificates for, the
Underwritten Securities shall be made at the Closing Location, or at such other place as shall be
agreed upon by the Underwriters and the Company, at the
Closing Time
specified in the applicable
Terms Agreement or the applicable written notice from the Representative to the Company in
connection with an election to purchase Optional Securities, as the case may be (the date on which
the Closing Time occurs being referred to as the
Closing Date
), or such other time not later than
ten Business Days after such date as shall be agreed upon by the Representative and the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated in writing by the Company, against delivery to the Underwriters for the
respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. It
is understood that each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities
which it has severally agreed to purchase. The Representative, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Underwritten Securities to be purchased by any Underwriter whose funds have
not been received by the Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
Section 12
. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, harmless from
13
and against any and all losses, claims, damages, or liabilities to which such Underwriter come
subject under the Securities Act, the Exchange Act, or any other federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims, damages, or liabilities
(and actions in respect thereof) arise out of, are based upon, or are caused by any untrue
statement or allegedly untrue statement of a material fact contained in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto, or arise out of, are based upon or are caused
by any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the Company agrees to reimburse
each such indemnified party for any reasonable legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage, liability, or action;
provided, however
, that the Company will not be liable to the extent that such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of, are based upon, or are caused
by any such untrue statement or omission or allegedly untrue statement or omission included in or
omitted from the Registration Statement, any preliminary prospectus or the Prospectus in reliance
upon and in conformity with information furnished by the Underwriters in writing expressly for use
in the Registration Statement or such preliminary prospectus or the Time of Sale Prospectus or the
Prospectus or any amendment or supplement thereto.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement, and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to the Underwriters,
but only with respect to such losses, claims, damages, and liabilities (and actions in respect
thereof) that arise out of, are based upon, or are caused by any untrue statement or omission of a
material fact or allegedly untrue statement or omission of a material fact included in or omitted
from (i) any Underwriter Free Writing Prospectus used by such Underwriter or (ii) the Registration
Statement, or any preliminary prospectus or the Time of Sale Prospectus or the Prospectus in
reliance upon and in conformity with information furnished by the Underwriters in writing expressly
for use in the Registration Statement or such preliminary prospectus or the Time of Sale Prospectus
or the Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to either paragraph (a)
or (b) of this Section 12, such person (the
indemnified party
) will promptly notify the person
against whom such indemnity may be sought (the
indemnifying party
) in writing and the
indemnifying party, upon request of the indemnified party, will retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
14
and any others the indemnifying party may designate in such proceeding and will pay the fees
and disbursements of such counsel related to such proceeding. In any such proceeding, any
indemnified party will have the right to retain its own counsel, but the fees and expenses of such
counsel will be borne by the indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and, in the judgment of the indemnified party, representation of
both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party will not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all such indemnified parties
and that all such reasonable fees and expenses will be reimbursed as they are incurred. Such firm
will be designated in writing by the Underwriters (in the case of parties indemnified pursuant to
paragraph (a) of this Section 12) or by the Company (in the case of parties indemnified pursuant to
paragraph (b) of this Section 12), as the case may be. The indemnifying party will not be liable
for any settlement of any proceeding effected without its written consent, but if settled with such
consent, or if there shall be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason of such settlement
or judgment. No indemnifying party will, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such proceeding. Any
provision of this paragraph (c) to the contrary notwithstanding, no failure by an indemnified party
to notify the indemnifying party as required hereunder will relieve the indemnifying party from any
liability it may have had to an indemnified party otherwise than under this Section 12 to the
extent the indemnifying party is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on account of this
indemnity agreement.
(d) If the indemnification provided for in paragraph (a) or (b) of this Section 12 is
unavailable to an indemnified party or is insufficient in respect of any losses, claims, damages,
or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying the indemnified party thereunder, will contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other, from the offering of the Underwritten Securities pursuant
to the applicable Terms Agreement, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such
15
proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the
other, in connection with the statements or omissions that resulted in such losses, claims,
damages, or liabilities, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the Underwriters, on the other, in
connection with the offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case as set forth on the
cover of the Prospectus, bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover. The relative fault of the Company, on the one hand, and of
the Underwriters, on the other, will be determined by reference to, among other things, whether the
untrue or allegedly untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied or to be supplied by the Company or by the
Underwriters and the parties relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission. The Underwriters respective obligations to
contribute pursuant to this Section 12(d) are several in proportion to the number of Underwritten
Securities set forth opposite their respective names in the applicable Terms Agreement, and not
joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to paragraph (d) above were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations referred to
therein. The amount paid or payable by an indemnified party as a result of the losses, claims,
damages, and liabilities referred to in paragraph (d) above will be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim. Any other
provisions of this Section 12 to the contrary notwithstanding, (i) the Underwriters will not be
required to contribute to the Company any amount in excess of the amount by which the total price
at which the Underwritten Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has otherwise been required
to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission
(other than in reliance upon and in conformity with information furnished to the Company by the
Underwriters in writing expressly for use in the Registration Statement, the preliminary prospectus
or the Prospectus or any amendment or supplement thereto), and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
16
(f) The remedies provided for in this Section 12 are not exclusive and will not limit any
rights or remedies that may otherwise be available to any indemnified party at law or in equity.
Section 13
. Termination.
The applicable Terms Agreement will automatically terminate upon
the expiration of the offering to which the Prospectus relates. The applicable Terms Agreement may
not be terminated by the Underwriters prior to delivery of and payment for such Securities except
upon the failure of any of the conditions precedent described in Section 6 hereof.
Section 14
. Survival.
The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained herein or made by or on
behalf of the Company or the Underwriters pursuant hereto or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Underwritten Securities and shall remain
in full force and effect, regardless of any termination of a Terms Agreement or any investigation
made by or on behalf of the Company or the Underwriters.
Section 15
. Notices.
All notices, documents and other communications hereunder shall be in
writing and shall be deemed received upon delivery, if delivered by hand or via facsimile
transmission (with confirmation of receipt) to a partys address or facsimile number set forth
below, in the case of the Company, and in the applicable Terms Agreement, in the case of the
Underwriters or the Representative (or to such other address or facsimile number as a party may
hereafter designate to the other parties in writing), and shall be deemed received one Business Day
after having been mailed via Express Mail or deposited with Federal Express or any nationally
recognized commercial courier service for next day delivery to such address. In the event that
any Terms Agreement or any certificate or opinion to be delivered pursuant to Section 5 hereof is
delivered via facsimile transmission, the parties will use reasonable efforts to ensure that
original copies of such documents are distributed promptly thereafter.
The address and facsimile number for the Company, unless otherwise specified, is as follows:
|
|
|
|
|
|
|
PepsiCo, Inc.
|
|
|
700 Anderson Hill Road
|
|
|
Purchase, New York 10577
|
|
|
Attn:
|
|
Chief Financial Officer
|
|
|
|
|
General Counsel
|
|
|
Facsimile no: 914-253-3123
|
Section 16
. Successors; Non-transferability.
The applicable Terms Agreement shall inure to
the benefit of and be binding upon the Company and the Underwriters, their respective successors,
and the officers, directors, and controlling persons referred to in Section 12 hereof. No other
person will have
17
any right or obligation hereunder. No party to the applicable Terms Agreement may assign its
rights thereunder without the written consent of the other parties.
Section 17
. Counterparts.
The Terms Agreement may be signed in any number of counterparts,
each of which will be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.
Section 18
. Applicable Law.
These Standard Provisions and any applicable Terms Agreement
will be governed by and construed in accordance with the laws of the State of New York without
regard to principles of conflicts of law.
Section 19
. Headings.
The headings of the sections of these Standard Provisions have been
inserted for convenience of reference only and will not affect the construction of any of the terms
or provisions hereof.
Section 20
. No Advisory or Fiduciary Relationships.
The Company acknowledges and agrees that
(a) the purchase and sale of the Underwritten Securities pursuant to the Standard Provisions and
the applicable Terms Agreement, including the determination of the public offering price of the
Underwritten Securities and any related discounts and commissions, is an arms-length commercial
transaction between the Company, on the one hand, and the several Underwriters, on the other hand,
(b) in connection with the offering contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of
the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has
assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect
to the offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters) and no Underwriter
has any obligation to the Company with respect to the offering contemplated hereby except the
obligations expressly set forth in the Standard Provisions and the applicable Terms Agreement, (d)
the Underwriters and their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company, and (e) the Underwriters have not
provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
18
Exhibit A
PEPSICO, INC.
[IDENTIFY UNDERWRITTEN SECURITIES]
TERMS AGREEMENT
[Date]
|
|
|
To:
|
|
PepsiCo, Inc.
|
|
|
700 Anderson Hill Road
|
|
|
Purchase, New York 10577
|
Ladies and Gentlemen:
We understand that PepsiCo, Inc., a North Carolina corporation (the
Company
), proposes to
issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include
both Firm Securities and Optional Securities] (such securities also being hereinafter referred to
as the
Underwritten Securities
) subject to the terms and conditions stated herein and in the
PepsiCo, Inc. Underwriting Agreement Standard Provisions dated as of October 1, 2008 attached
hereto (the
Standard Provisions
). Each of the applicable provisions in the Standard Provisions
is incorporated herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full herein. We, the
underwriters named below (the
Underwriters
), offer to purchase, severally and not jointly, the
number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a
purchase price set forth below.
|
|
|
|
|
|
|
[Number][Principal
|
|
|
|
Amount] of
|
|
|
|
[Underwritten] [Firm]
|
|
Underwriters
|
|
Securities
|
|
[Name]
|
|
|
|
|
|
|
|
|
Total
|
|
[$]
|
|
|
|
|
|
The Underwritten Securities and the offering thereof shall have the following additional
terms:
Terms of the Underwritten Securities and the Offering
|
|
|
[Number][Principal Amount] of
|
|
|
Underwritten Securities
|
|
|
[Number of Firm Securities]
|
|
|
[Number of Optional Securities]
|
|
|
Initial public offering price
|
|
|
A-1
|
|
|
Purchase price
|
|
|
Lock-up period specified in Section
9(a)(vi) of the Standard Provisions (if
applicable)
|
|
___ days beginning from the date
of this Terms Agreement
|
Time of Sale Prospectus
|
|
Base Prospectus dated October
___, 2008, preliminary prospectus
supplement dated ___, 20___,
|
Representative of the Underwriters
|
|
|
Address and facsimile number for
notices to the Representative and the
Underwriters
|
|
|
Time of Sale
|
|
|
Closing Time
|
|
|
Closing Location
|
|
|
Other terms and conditions
|
|
|
[Amount of reimbursement to the Company
from the Underwriters]
|
|
|
The Representative represents and warrants that it is duly authorized to execute and deliver
this Terms Agreement on behalf of the several Underwriters named above.
A-2
IN WITNESS WHEREOF, the parties hereto have executed this Terms Agreement as of the date first
above written.
|
|
|
|
|
|
|
|
|
[NAME OF REPRESENTATIVE],
|
|
|
|
|
as Representative of the several
|
|
|
|
|
Underwriters named above
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
Accepted and agreed.
|
|
|
|
|
|
|
|
PEPSICO, INC.
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
A-3
Schedule I
[identify each Issuer Free Writing Prospectus]
A-1
Exhibit B-1
FORM OF OPINION OF COMPANYS NEW YORK COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(a)
1.
[The following provision shall apply only to a Terms Agreement in which the Underwritten
Securities include debt securities]
The Indenture qualified under the Trust Indenture Act of
1939, as amended, upon the filing of the Registration Statement with the Commission on October ___,
2008 pursuant to Rule 462(e) under the Securities Act, and assuming due authorization, execution
and delivery thereof by the Company, the Indenture is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors rights generally, concepts of reasonableness and equitable principles of
general applicability,
provided
that counsel need not express any opinion as to (w) the
enforceability of any waiver of rights under any usury or stay law, (x) the applicability (and if
applicable, the effect) of Section 548 of the United States Bankruptcy Code or any comparable
provision of state law to the questions addressed above or on the conclusions expressed with
respect thereto, (y) the validity, legally binding effect or enforceability of any provision of the
Indenture or any related provision in the Underwritten Securities that requires or relates to
adjustments to the conversion price at a rate or in an amount that a court would determine in the
circumstances under applicable law to be commercially unreasonable or a penalty or forfeiture or
(z) the validity, legally binding effect or enforceability of any provision that permits holders to
collect any portion of stated principal amount upon acceleration of the Underwritten Securities to
the extent determined to constitute unearned interest.
2.
[The following provision shall apply only to a Terms Agreement in which the Underwritten
Securities include debt securities]
Assuming the due authorization of the Underwritten Securities
by the Company, the Underwritten Securities, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Terms
Agreement, will be valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors
rights generally, concepts of reasonableness and equitable principles of general applicability, and
will be entitled to the benefits of the Indenture pursuant to which such Underwritten Securities
are to be issued,
provided
that counsel need not express any opinion as to (w) the enforceability
of any waiver of rights under any usury or stay law, (x) the applicability (and if applicable, the
effect) of Section 548 of the United States Bankruptcy Code or any comparable provision of state
law to the questions addressed above or on the conclusions expressed with respect thereto, (y) the
validity, legally binding effect or enforceability of any provision in the Underwritten Securities
that requires or relates to adjustments to the conversion price at a rate or in an amount that a
court would determine in the circumstances under applicable law to be commercially unreasonable or
a penalty or forfeiture or
B-1-1
(z) the validity, legally binding effect or enforceability of any provision that permits
holders to collect any portion of stated principal amount upon acceleration of the Underwritten
Securities to the extent determined to constitute unearned interest.
3. No consent, approval, authorization, or order of, or qualification with, any state
governmental body or agency under the laws of the State of New York or any federal law of the
United States of America that in counsels experience is normally applicable to general business
corporations in relation to transactions of the type contemplated by the Terms Agreement is
required for the execution, delivery and performance by the Company of its obligations under the
Terms Agreement, except such as may be required under federal or state securities or Blue Sky laws
as to which counsel need not express an opinion.
4. Any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has
been made in the manner and within the time period required by Rule 424(b); any required filing of
the Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act has been made in
the manner and within the time period required by Rule 433(d); and, to counsels knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued under the
Securities Act and no proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
5.
[The following provision shall apply only to a Terms Agreement in which the Underwritten
Securities include debt securities]
Counsel has considered the statements included in the
Prospectus under the captions Description of Debt Securities and Description of ___ insofar
as they summarize provisions of the Indenture and the Underwritten Securities. In counsels
opinion, such statements fairly summarize these provisions in all material respects.
6. The statements included in the Prospectus under the caption [Certain U.S. Federal Income
Tax Considerations,] insofar as they purport to describe provisions of U.S. federal income tax
laws or legal conclusions with respect thereto, fairly and accurately summarize the matters
referred to therein in all material respects.
In rendering the opinions above, counsel may assume that each party to the Terms Agreement,
the Indenture (if applicable) and the Underwritten Securities (collectively, the
Documents
) has
been duly incorporated and is validly existing and in good standing under the laws of the
jurisdiction of its organization. In addition, counsel may assume that (i) the execution, delivery
and performance by each party thereto of each Document to which it is a party, (a) are within its
corporate powers, (b) do not contravene, or constitute a default under, the certificate of
incorporation or bylaws or other constitutive documents of such party, (c) require no action by or
in respect of, or filing with, any governmental body, agency or official and (d) do not contravene,
or constitute a default under,
B-1-2
any provision of applicable law or regulation or any judgment, injunction, order or decree or
any agreement or other instrument binding upon such party and (ii) each Document is a valid,
binding and enforceable agreement of each party thereto (other than as expressly covered above in
respect of the Company).
Counsel need not express an opinion as to any law, rule or regulation that is applicable to
the Company, the Documents or such transactions solely because such law, rule or regulation is part
of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due
to the specific assets or business of such party or such affiliate. Insofar as the foregoing
opinion involves matters governed by the laws of the State of North Carolina, counsel may rely,
without independent investigation, on the opinion of North Carolina counsel to the Company
delivered to the Underwriters pursuant to the Terms Agreement.
B-1-3
Exhibit B-2
FORM
OF DISCLOSURE LETTER OF COMPANYS NEW YORK
COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(a)
The primary purpose of our professional engagement was not to establish or confirm factual
matters or financial, accounting or quantitative information. Furthermore, many determinations
involved in the preparation of the Registration Statement, the Time of Sale Prospectus and the
Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the
scope of our opinion separately delivered to you today in respect of certain matters under the laws
of the State of New York and the federal laws of the United States of America. As a result, we are
not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information furnished in such documents (except to the extent expressly set
forth in our opinion letter separately delivered to you today as to statements included in the
Prospectus under the captions [Description of Debt Securities, and Description of ___ and
[Certain U.S. Federal Income Tax Considerations]). However, in the course of our acting as
counsel to the Company in connection with the preparation of the Registration Statement, the Time
of Sale Prospectus and the Prospectus, we have generally reviewed and discussed with your
representatives and your counsel and with certain officers and employees of, and independent public
accountants for, the Company the information furnished, whether or not subject to our check and
verification. We have also reviewed and relied upon certain corporate records and documents,
letters from counsel and accountants and oral and written statements of officers and other
representatives of the Company and others as to the existence and consequence of certain factual
and other matters.
On the basis of the information gained in the course of the performance of the services
rendered above, but without independent check or verification except as stated above:
(i) the Registration Statement and the Prospectus appear on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder; and
(ii) nothing has come to our attention that causes us to believe that, insofar as relevant to
the offering of the Underwritten Securities,:
(a) on the date of the Terms Agreement, the Registration Statement contained any
untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
B-2-1
(b) at the Time of Sale, the Time of Sale Prospectus contained any untrue statement
of a material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, or
(c) the Prospectus as of the date of the Terms Agreement or as of the Closing Date
contained or contains any untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In providing this letter to you and the other several Underwriters, we have not been called to
pass upon, and we express no view regarding, the financial statements or financial schedules or
other financial or accounting data included in the Registration Statement, the Time of Sale
Prospectus, the Prospectus, or the Statement of Eligibility of the Trustee on Form T-1. In
addition, we express no view as to the conveyance of the Time of Sale Prospectus or the information
contained therein to investors.
B-2-2
Exhibit B-3
FORM OF OPINION OF COMPANYS INTERNAL COUNSEL TO BE
DELIVERED PURSUANT TO SECTION 5(a)
1. The execution, delivery and performance by the Company of its obligations under the Terms
Agreement[, the Indenture] and the Underwritten Securities will not contravene any provision of the
Restated Charter or By-Laws of the Company, or of any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and its subsidiaries taken
as a whole, or, to counsels knowledge, of any judgment, order, or decree of any governmental body,
agency, or court having jurisdiction over the Company or any of its subsidiaries, in each of the
foregoing cases except as would not reasonably be expected to have a material adverse effect on the
business, financial condition or results of operations of the Company and its subsidiaries, taken
as a whole.
2. To counsels knowledge, there is no legal or governmental proceeding pending or threatened
to which the Company or any of its significant subsidiaries is a party, or by which any of the
properties of the Company or its significant subsidiaries is bound, which would reasonably be
expected to have a material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole; and to counsels knowledge, there
is no agreement or other document that is required to be described in the Registration Statement,
the Prospectus or the Time of Sale Prospectus, or that is required to be filed as an exhibit to the
Registration Statement, that is not so described or filed.
In rendering such opinion, counsel may rely, as to matters of fact, to the extent counsel
deems proper, on certificates of responsible officers of the Company and public officials. Such
opinion will be limited to the laws of the State of New York and the federal laws of the United
States of America. Insofar as such opinion involves matters governed by the laws of North
Carolina, counsel may rely, without independent investigation, on the opinion of North Carolina
counsel for the Company.
B-3-1
Exhibit B-4
FORM
OF OPINION OF COMPANYS NORTH CAROLINA COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(a)
1. The Company is a corporation in existence under the laws of the State of North Carolina,
with corporate power to conduct its business as described in the Time of Sale Prospectus and the
Prospectus.
2. The Company has authorized by all necessary corporate action the execution and delivery of
the Terms Agreement[, the Indenture] and the Underwritten Securities.
3. The Terms Agreement[, the Indenture] and the Underwritten Securities have been duly
executed by the Company.
4.
[The following provision shall apply only to a Terms Agreement in which the Underwritten
Securities include Common Stock]
The Underwritten Securities, when issued and delivered to and
paid for by the Underwriters pursuant to the Terms Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such Underwritten Securities is not subject to any
statutory preemptive rights.
5. The execution and delivery of and performance by the Company of its obligations under the
Terms Agreement[, the Indenture] and the Underwritten Securities do not violate any provision of
the articles of incorporation or by-laws of the Company.
6. No consent, approval, authorization, or order of or qualification with any North Carolina
governmental body or agency is required to be obtained or made by the Company for the execution,
delivery and performance by the Company of the Terms Agreement or the issuance of the Underwritten
Securities, except as may be required by the Blue Sky or other securities laws if the Underwritten
Securities are offered or sold in North Carolina and except for consents, approvals,
authorizations, actions, filings and registrations which, if not obtained or made, are not
reasonably likely to have a material adverse effect on the business, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole.
B-4-1
Exhibit C
FORM OF ASSISTANT SECRETARYS CERTIFICATE
I,
, the duly qualified, elected, and acting Secretary of PepsiCo, Inc., a company
organized under the laws of the State of North Carolina (the
Company
), hereby certify as follows:
1. Attached hereto as Exhibit A is a true and complete copy of the Restated Articles of
Incorporation of the Company, certified as of
by the Secretary of State of the State of
North Carolina. No further amendments or supplements to the Restated Articles of Incorporation have
been proposed to or approved by the Board of Directors or shareholders of the Company.
2. Attached hereto as Exhibit B is a true, correct, and complete copy of the By-Laws of the
Company. Such By-Laws have been in effect at all times since
.
3. Attached hereto as Exhibit C are true, correct and complete copies of certain resolutions
duly adopted by the Board of Directors of the Company on
. Such resolutions have not been
amended or modified, are in full force and effect in the form adopted and are the only resolutions
adopted by the Board of Directors of the Company or a duly authorized committee thereof relating to
(i) the authorization of the Companys Registration Statement on Form S-3 (File No. 333-
),
(the
Registration Statement
) filed with the Securities and Exchange Commission (the
Commission
)
for the registration of Companys securities, (ii) the execution and delivery of the Terms
Agreement, dated
(the
Terms Agreement
), between the Company and
(the
Underwriters
), and (iii) all other actions relating to the foregoing. Such resolutions have not
been amended, rescinded or modified since their adoption (other than as expressly set forth in such
resolutions) and remain in full force and effect as of the date of this Certificate.
4. Each person who, as a director or officer of the Company or attorney-in-fact of such
director or officer, signed (i) the Registration Statement, (ii) the Terms Agreement, and (iii) any
document delivered prior hereto or on the date of this Certificate in connection with the execution
and filing of the Registration Statement, or the execution and delivery of the Terms Agreement, or
the transactions contemplated thereby, or the execution and delivery of the certificates
representing the Shares, was, at the time or the respective times of such execution and delivery of
such documents, and, in the case of the filing of the Registration Statement with the Commission,
duly elected or appointed, qualified and acting as such director or officer or duly appointed and
acting as such attorney-in-fact and the signatures of such persons appearing on such documents are
their genuine signatures or, in case of the certificates evidencing the Shares, the true facsimile
thereof.
C-1
5. The minute book records of the Company relating to proceedings of the Board of Directors of
the Company made available to
, counsel for the Underwriters, are true and correct
and constitute all such records in the possession and control of the Company through and including
.
The persons named below are duly qualified, elected, and acting officers of the Company, have
been duly elected or appointed to the offices set forth opposite their respective names, have held
such offices at all times relevant to the preparation of the Registration Statement, and hold such
offices as of the date hereof. The signatures set forth below opposite the names of such persons
are the genuine signatures of such persons.
C-2
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Company as of the
___ day of
, 20___.
I,
, a Vice President of the Company, hereby certify that
is
the duly qualified, elected, and acting
of the Company, has been duly
elected or appointed to such offices, has held such offices at all times relevant to the
preparation of the Registration Statement, holds such offices as of the date hereof, and that the
signature set forth above is his genuine signature.
IN
WITNESS WHEREOF, I have hereunto set my hand as of the ___ day of
, 20___.
C-3
Exhibit D
FORM OF OFFICERS CERTIFICATE
[Name:]
, [title:]
, and
[name:]
, [title:]
, of PepsiCo, Inc., a corporation organized under the laws of the State of
North Carolina (the
Company
), each hereby certifies as follows:
1. I have examined the Companys Registration Statement on Form S-3 (File No. 333-
)
(the
Registration Statement
) filed by the Company with the Securities and Exchange Commission
(the
Commission
) on October ___, 2008, including all of the documents filed as exhibits thereto.
Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms by
the prospectus filed as part of the Registration Statement (such prospectus hereinafter the
Prospectus
).
2. To my knowledge, no proceedings for the merger, consolidation, liquidation, or dissolution
of the Company or the sale of all or substantially all of its assets are pending or contemplated.
3. To my knowledge, the Registration Statement as supplemented by the Time of Sale Prospectus
(i) contains no untrue statement of a material fact regarding the Company or any of its
consolidated subsidiaries and (ii) does not omit to state any material fact necessary to make any
such statement, in the light of the circumstances under which it was made, not misleading.
IN
WITNESS WHEREOF, I have hereunto set my hand as of the ___ of
, 20___.
D-1
Exhibit 1.2
PEPSICO, INC.
Debt Securities, Warrants and Units
U.S. DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
SECTION 1
. Definitions
|
|
|
1
|
|
SECTION 2
. Appointment of Banks as Agents
|
|
|
1
|
|
SECTION 3
. Purchase and Sale of Securities by a Bank as Underwriter
|
|
|
3
|
|
SECTION 4
. Terms Agreement; Administrative Procedures
|
|
|
4
|
|
SECTION 5
. Certain Conditions Precedent to Banks Obligations
|
|
|
4
|
|
SECTION 6
. Representations and Warranties of the Company
|
|
|
6
|
|
SECTION 7
. Authority, Compliance with Laws
|
|
|
10
|
|
SECTION 8
. Agreements
|
|
|
11
|
|
SECTION 9
. Fees and Expenses
|
|
|
14
|
|
SECTION 10
. Inspection; Place of Delivery; Payment
|
|
|
15
|
|
SECTION 11
. Indemnification and Contribution
|
|
|
15
|
|
SECTION 12
. Termination
|
|
|
19
|
|
SECTION 13
. Representations and Indemnities to Survive
|
|
|
19
|
|
SECTION 14
. Notices
|
|
|
20
|
|
SECTION 15
. Successors; Non-Transferability
|
|
|
20
|
|
SECTION 16
. Counterparts
|
|
|
20
|
|
SECTION 17
. Applicable Law
|
|
|
20
|
|
SECTION 18
. Headings
|
|
|
20
|
|
Schedule I List of Participating Banks
|
|
|
|
|
Schedule II Form of Terms Agreement
|
|
|
|
|
Schedule III Administrative Procedures
|
|
|
|
|
|
|
|
|
|
Exhibit A-1 Form of Opinion of Companys New York Counsel
|
|
|
|
|
Exhibit A-2 Form of Disclosure Letter of Companys New York Counsel
|
|
|
|
|
Exhibit A-3 Form of Opinion of Companys Internal Counsel
|
|
|
|
|
Exhibit A-4 Form of Opinion of Companys North Carolina Counsel
|
|
|
|
|
Exhibit B Form of Banks Counsel Opinion
|
|
|
|
|
Exhibit C Form of Assistant Secretarys Certificate
|
|
|
|
|
Exhibit D Form of Officers Certificate
|
|
|
|
|
i
THIS DISTRIBUTION AGREEMENT, dated as of
, among PepsiCo, Inc., a corporation
organized under the laws of the State of North Carolina (the
Company
), and the banks set forth in
Schedule I hereto (individually, the
Bank
and collectively, the
Banks
).
W I T N E S S E T H:
WHEREAS, the Company has filed with the Securities and Exchange Commission (the
Commission
)
a registration statement on Form S-3, File
No. 333-
(the
Registration Statement
),
including a prospectus (the
Prospectus
), relating to the Companys securities, including the
Companys Debt Securities, Warrants and Units (as such terms are defined in the Prospectus); and
WHEREAS, each Bank has agreed to participate in the offer and sale of Debt Securities,
Warrants and Units (sometimes referred to collectively as the
Securities
) to investors on the
terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1
. Definitions.
Capitalized terms used in this Agreement and not otherwise defined
herein have the meanings ascribed to such terms by the Prospectus;
provided, however
, that in the
event of a conflict between the Prospectus and any applicable Supplement regarding the definition
of any capitalized term used herein, the definition set forth in the applicable Supplement will
govern; and
provided, further
, that the terms
Registration Statement
,
Prospectus
,
Pricing
Supplement
,
Prospectus Supplement
, and
Time of Sale Prospectus
as used herein, (a) include, in
each case, the documents (if any) incorporated by reference therein, and (b) refer, in each case,
to such document as supplemented or otherwise amended from time to time.
For purposes of this Agreement and each Terms Agreement (as defined below),
free writing
prospectus
has the meaning set forth in Rule 405 under the Securities Act,
Time of Sale
Prospectus
means the prospectus, the final preliminary prospectus together with the free writing
prospectuses, if any, each identified in Annex A to the applicable Terms Agreement.
Section 2
. Appointment of Banks as Agents.
From the date hereof and until the expiration or
earlier termination of this Agreement, each Bank will be an agent of the Company with respect to
the distribution and sale of the Securities, and will use reasonable efforts, consistent with
standard industry practice, to solicit offers for the purchase of the Securities upon the terms and
conditions set forth in the Prospectus and, with respect to Securities of a given series, in the
applicable preliminary and final Pricing Supplement or Prospectus Supplement (each such supplement
a
Supplement
or an
applicable Supplement
),
1
provided, however,
that no Bank will be required to solicit offers to purchase Securities
issued pursuant to a Supplement that does not name such Bank as an agent. All sales of Securities
resulting from a solicitation made or an offer to purchase received by any Bank in its capacity as
agent during the term of this Agreement will be subject to the provisions of this Section 2 and to
all other provisions of this Agreement not specifically limited to sales of Securities made to such
Bank as underwriter and/or as purchaser for its own account.
(a)
Non-Exclusive Agency.
Each Bank acknowledges and agrees that its agency hereunder is
non-exclusive and that its obligations as agent hereunder will continue notwithstanding the offer
or sale of Securities by the Company directly to investors (including such Bank as purchaser for
its own account), to underwriters (including such Bank as underwriter, as contemplated by Section 3
below), and/or through other agents, as the Company may, in its sole discretion, elect. The
obligations of each Bank in its capacity as agent hereunder, and the obligations of each other
person that has been authorized by the Company to act as its agent in soliciting offers to purchase
Securities, shall be several and not joint.
(b)
Solicitation of Offers as Agent; Rights of Acceptance and Rejection of Offers.
Each Bank
may reject, and will not be required to communicate to the Company, any offer to purchase
Securities that it reasonably deems unacceptable. The Company will have the sole right to accept
any offer to purchase Securities and may reject any such offer in whole or in part. The Company
will in no event approve any solicitation of offers or accept any offers to purchase Securities the
aggregate public offering price of which, with respect to Securities of a given series, would
exceed the maximum aggregate public offering price stated in the applicable Supplement.
(c)
Commissions.
As consideration for the sale of Securities of a given series that occurs as
a result of a solicitation made or an offer to purchase received by any Bank in its capacity as
agent, the Company will pay such Bank the commission identified in the applicable Supplement, which
commission will be expressed as a percentage of the aggregate public offering price of such
Securities. Payment of the commission will be made on the Settlement Date (as defined in Section
10(c) hereof), in U.S. dollars or such other currency as the Company and such Bank may agree in
writing, by discount from the proceeds of the sale of such Securities or by such other means as may
be agreed to in writing by the Company and such Bank and set forth in the applicable Terms
Agreement (hereinafter defined). Any provision of this Agreement to the contrary notwithstanding,
no Bank will be entitled to payment of any commission with respect to the sale of a given Security
unless (i) the sale of such Security shall have occurred as a result of a solicitation made or an
offer to purchase received by such Bank in its capacity as agent hereunder, on the terms and
conditions set forth herein and in the applicable Terms Agreement, (ii) such Bank shall have been
2
named as an agent in the applicable Supplement, and (iii) such Security shall have been sold
by the Company directly to a third-party investor without such Bank acquiring legal title thereto.
(d)
Termination or Suspension of Solicitations by Banks as Agents.
The Company may at any time
require the Banks to terminate or temporarily suspend the solicitation of offers to purchase
Securities. Upon receipt of written notice from the Company to the Banks directing the Banks (or
any of them) to terminate or suspend solicitations of offers to purchase Securities, until (in the
case of a temporary suspension) such time as may be indicated in such notice or in any subsequent
notice from the Company to the Banks, the Banks will forthwith terminate or suspend such
solicitations (as the case may be). The provisions of this paragraph notwithstanding, the
termination or suspension by the Company of any Banks solicitation of offers to purchase
Securities will not (except under the circumstances contemplated in Section 5 or Section 8(b)
hereof) relieve or otherwise affect any Banks obligation to purchase any Securities such Bank
shall have agreed to purchase in its capacity as underwriter, or the Companys obligation to sell
any Securities it shall have agreed to sell to a third-party investor through such Bank in its
capacity as agent, in either case as set forth in an applicable Terms Agreement that shall have
been executed and delivered by both the Company and such Bank.
(e)
Scope of Agency.
In soliciting offers to purchase Securities, the Banks will be acting
solely as agents for the Company. Each Bank will use its best efforts consistent with standard
industry practice to assist the Company in obtaining performance by each purchaser whose offer to
purchase Securities has been solicited by such Bank and accepted by the Company, but no Bank will
have any liability to the Company in the event that any such purchase is not consummated for any
reason. If the Company shall default in its obligations to deliver Securities to a purchaser whose
offer it has accepted, the Company will hold each Bank harmless against any loss, claim, damage, or
liability arising from or as a result of such default and will pay to such Bank the commission such
Bank would have received had such sale been consummated.
Section 3
. Purchase and Sale of Securities by a Bank as Underwriter.
The Company and any Bank
may agree upon one or more sales of Securities to such Bank as underwriter, for resale to investors
on the terms set forth in the Prospectus and in any applicable Supplement. All sales of Securities
made to a Bank in its capacity as underwriter during the term of this Agreement will be subject to
the provisions of this Section 3 and to all other provisions of this Agreement not specifically
limited to sales of Securities through such Bank as agent and/or to such Bank as purchaser for its
own account.
(a)
The Banks Obligation to Purchase Securities; Multiple Underwriters.
In the event that a
Bank is the sole underwriter with respect to a
3
particular series of Securities, such Bank will be obligated to purchase all of the Securities
of such series. In the event that such Bank is one of two or more underwriters with respect to a
particular series of Securities, the applicable Terms Agreement will specify the aggregate public
offering price of the Securities that such Bank and such other underwriter or underwriters will be
obligated to purchase, such obligations to be several and not joint.
(b)
Discounts.
All Securities of any series to be sold to a Bank in its capacity as
underwriter will be sold at a discount from the price at which such Securities are to be sold to
the public. Such discount will be identified in the applicable Terms Agreement, expressed as a
percentage of the aggregate public offering price of such Securities. Any provision of this
Agreement to the contrary notwithstanding, such Bank will not be entitled to any discount with
respect to the purchase of a given Security unless (i) such Bank shall have purchased such Security
with a view, at the time of such purchase, to the immediate resale thereof to a third-party
investor, unless the Company shall have otherwise agreed in the applicable Terms Agreement, and
(ii) such Bank shall have been named as an underwriter in the applicable Supplement. It is
expressly acknowledged and agreed that a Bank may, in its capacity as underwriter with respect to
any given series of Securities, sell such Securities to one or more dealers that are not parties to
this Agreement or the applicable Terms Agreement, and may allow to such dealers a discount from the
public offering price of such Securities, provided that the aggregate of all such discounts allowed
by such Bank to such dealers with respect to such Securities will not exceed the discount received
by such Bank from the Company with respect to such Securities.
Section 4
. Terms Agreement; Administrative Procedures.
No agreement for the purchase of
Securities by any Bank in its capacity as underwriter or through any Bank in its capacity as agent
will be deemed to exist until the terms of such agreement shall have been put in writing,
substantially in the form of the attached Schedule II, and such writing shall have been signed by
both the Company and such Bank (any such signed writing a
Terms Agreement
). In the event of a
conflict between any provision of a Terms Agreement with respect to Securities of a given series
and any term of the applicable Supplement, the terms of the applicable Supplement will govern.
Each of the Company and the Banks agrees that it will perform its respective administrative
obligations with respect to the offer and sale of Securities as set forth in the Administrative
Procedures attached to this Agreement as Schedule III. Each Terms Agreement will incorporate all
applicable terms and provisions of this Agreement and the Administrative Procedures as fully as
though such terms and provisions were expressly stated therein.
Section 5
. Certain Conditions Precedent to Banks Obligations.
The obligation of each Bank to
solicit offers to purchase Securities in its capacity as
4
agent, and its obligation to purchase any Securities in its capacity as underwriter, will in
all cases be subject to the accuracy of the representations and warranties of the Company set forth
in Section 6 hereof or in the applicable Terms Agreement (as the case may be), to receipt of the
opinions and certificates to be delivered to such Bank pursuant to the terms of Section 5 and 8
hereof or the provisions of the applicable Terms Agreement (as the case may be), to the accuracy of
the statements of the Companys officers made in each certificate to be furnished as provided
herein or in the applicable Terms Agreement (as the case may be), to the performance and observance
by the Company of all covenants and agreements contained herein or in the applicable Terms
Agreement (as the case may be) on its part to be performed and observed, in each case at the time
of solicitation by such Bank of offers to purchase Securities, at the time the Company accepts any
offer to purchase Securities through such Bank in its capacity as agent or by such Bank in its
capacity as underwriter, as the case may be, and at the time of purchase, and (in each case) to the
following additional conditions precedent, when and as specified:
(a) As of the Settlement Date for any Securities to be purchased through a Bank in its
capacity as agent or by a Bank in its capacity as underwriter (for purposes of this paragraph (a),
the
Applicable Settlement Date
), and with respect to the period from the date of the applicable
Terms Agreement to and including the Applicable Settlement Date:
(i) there shall not have occurred (A) any material adverse change (or development
involving a prospective material adverse change) in the business, properties, earnings, or
financial condition of the Company and its subsidiaries on a consolidated basis or (B) any
suspension or material limitation of trading in the Companys capital stock by the
Commission or the New York Stock Exchange, Inc. (the
NYSE
) (the events described in the
foregoing clauses A and B, the
Company-Specific Events
), the effect of any of which
Company-Specific Events shall have made it impracticable, in the reasonable judgment of
such Bank, to market such securities, such judgment to be based on relevant market
conditions;
(ii) there shall not have occurred (A) any suspension or material limitation of
trading in securities generally on the NYSE, (B) a declaration of a general moratorium on
commercial banking activities in New York by either Federal or New York State authorities,
or (C) any outbreak or material escalation of hostilities or other national or
international calamity or crisis (the events described in the foregoing clauses A through
C the
Market Events
), the effect of any of which Market Events shall have made it
impracticable, in the reasonable judgment of such Bank, to market such Securities, such
judgment to be based on relevant market conditions, including, without limitation, the
5
impact of such Market Event on debt securities having substantially similar
characteristics; and
(iii) there shall not have been issued any stop order suspending the effectiveness of
the Registration Statement nor shall any proceedings for that purpose or pursuant to
Section 8A of the Securities Act against the Company or related to the offering of the
Securities have been instituted or threatened.
(b) Each relevant Bank will receive, upon execution and delivery of any applicable Terms
Agreement and on each Settlement Date, a letter from KPMG LLP (
KPMG
), or such other independent
certified public accountants as may be selected by the Company (KPMG or such other independent
certified public accountants each, successively, the
Companys Auditors
), dated such date
containing statements and information of the type ordinarily included in accountants comfort
letters to underwriters with respect to financial statements and certain financial information
contained in the Registration Statement, the Prospectus and the applicable Supplement (each such
letter, an
Auditors Letter
).
(c) On each Settlement Date, the relevant Bank shall have received the following documents and
such appropriate further information, certificates, and documents as the Company and such Bank
shall have agreed, as reflected in the applicable Terms Agreement:
(i) the opinions of counsels to the Company, selected by the Company and reasonably
agreed to by such Bank (the
Companys Counsel
), dated as of such Settlement Date,
substantially in the forms of Exhibit A hereto,
(ii) the opinion of counsel to the Banks, selected by the Banks and reasonably agreed
to by the Company (the
Banks Counsel
), dated as of such Settlement Date, substantially
in the form of Exhibit B hereto,
(iii) a certificate of the Assistant Secretary of the Company, dated as of such
Settlement Date, substantially in the form of Exhibit C hereto, and
(iv) a certificate of the Chief Financial Officer and Senior Vice President or
Treasurer of the Company, dated as of such Settlement Date, substantially in the form of
Exhibit D hereto.
Section 6
. Representations and Warranties of the Company.
The Company represents and warrants
to each Bank that, as of each date on which the Company and such Bank execute and deliver a Terms
Agreement and as of each
6
date the Company issues and sells Securities through such Bank in its capacity as agent or to
such Bank in its capacity as underwriter:
(a) (i) The Registration Statement constitutes an automatic shelf registration statement (as
defined in Rule 405 of the Securities Act) filed within three years of the date of the applicable
Terms Agreement, (ii) the Company is a well known seasoned issuer (as defined in Rule 405 of the
Securities Act), (iii) the Registration Statement has become effective and no stop order suspending
the effectiveness of the Registration Statement is in effect nor, to the Companys knowledge, are
any proceedings for such purpose pending before or threatened by the Commission, (iv) as of the
effective date of the Registration Statement (the
Effective Date
), the Company met the applicable
requirements for use of Form S-3 under the Securities Act with respect to the registration under
the Securities Act of the Securities, and (v) as of the Effective Date, the Registration Statement
met the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complied in all
material respects with said Rule.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated or to be incorporated by reference in the Prospectus or Time of Sale Prospectus
complies or will comply, in all material respects, with the applicable provisions of the Exchange
Act and the rules and regulations of the Commission thereunder, (ii) the Registration Statement
does not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, (iii) the
Registration Statement and the Prospectus comply, in all material respects, with the Securities Act
and the rules and regulations of the Commission thereunder, and (iv) the Prospectus does not
contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading,
and (v) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in
connection with the offering when the Prospectus is not yet available to prospective purchasers and
at the Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company,
if applicable, will not, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
provided, however,
that the Company makes no representations
and warranties as to information contained in or omitted from the Registration Statement, the
Prospectus or the Time of Sale Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the underwriters expressly for use in the Registration
Statement, the Prospectus or the Time of Sale Prospectus or any amendment or supplement thereto or
the Statement of Eligibility and Qualification of the Trustee (the
Form T-1
) under the Trust
Indenture Act of 1939, as amended (the
Trust Indenture Act
).
7
(c) The Company is not an ineligible issuer in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(d) The Company has been duly incorporated and is validly existing under the laws of the State
of North Carolina, has the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and the Time of Sale Prospectus, and is duly qualified to
transact business as a foreign corporation in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification, except to the extent
that the failure to be so qualified would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(e) The Indenture has been duly qualified under the Trust Indenture Act and has been duly
authorized, executed, and delivered by the Company and (assuming due authorization, valid
execution, and delivery thereof by the Trustee) is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as such enforceability may be
limited by the laws of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium,
or similar laws relating to creditors rights generally, by any other federal or state laws, by
rights of acceleration, by general principles of equity, or by the discretion of any court before
which any proceeding therefor may be brought.
(f) This Agreement has been duly authorized, executed, and delivered by the Company and
(assuming due authorization, valid execution, and delivery by each Bank) is a valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms, except as
the enforceability of any term or provision hereof (including, without limitation, the Companys
indemnity obligations under Section 11 hereof) may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or similar laws relating to
creditors rights generally, by rights of acceleration, by any other federal or state law, by
general principles of equity, or by the discretion of any court before which any proceeding
therefor may be brought.
(g) The form of Terms Agreement filed by the Company as exhibits to the Registration
Statement, and the form of any Shelf Warrant Agreement or Unit Agreement to be filed by the Company
as an exhibit to the Registration Statement, have been or will be duly authorized by the Company
and, assuming valid execution and delivery by the Company and due authorization, valid execution,
and delivery by each of the other parties thereto, each such agreement will be a valid and binding
agreement of the Company, enforceable against the
8
Company in accordance with its respective terms, except as such enforceability may be limited
by the laws of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws relating to creditors rights generally, by any other federal or state laws, by
general principles of equity, or by the discretion of any court before which any proceeding
therefor may be brought.
(h) The Securities have been duly authorized and, when issued, executed, and authenticated in
accordance with the provisions of the Indenture, or when countersigned by the Warrant Agent or Unit
Agent in accordance with the provisions of the applicable Warrant Agreement or Unit Agreement, as
the case may be, and delivered to and duly paid for in accordance with the applicable provisions of
the Prospectus and the Time of Sale Prospectus and any applicable Supplement, and Section 10(c)
hereof, will be entitled to the benefits of the Indenture, or the applicable Warrant Agreement or
Unit Agreement, as the case may be, and will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms, except as such
enforceability may be limited by the laws of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar laws relating to creditors rights generally, by any other
federal or state laws, by rights of acceleration, if applicable, by general principles of equity.
(i) The execution and delivery of and performance by the Company of its obligations under this
Agreement, the Securities, the Indenture, any Warrant Agreement, any Unit Agreement and any Terms
Agreement, as the case may be, will not contravene any provision of any applicable law or of the
Restated Charter or By-Laws of the Company, or of any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and its subsidiaries taken
as a whole, or of any judgment, order, or decree of any governmental body, agency, or court having
jurisdiction over the Company or any of its subsidiaries, in each of the foregoing cases except as
would not reasonably be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole, and no consent, approval, authorization, or order of or
qualification with any governmental body or agency is, to the Companys knowledge, required for the
performance by the Company of its obligations under this Agreement, the Securities, the Indenture,
or any Warrant Agreement or any Unit Agreement or Terms Agreement, except such as may be required
by Blue Sky laws or other securities laws of the various states in which the Securities are offered
and sold and except to the extent where the failure to obtain such consent, approval,
authorization, order or qualification would not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(j) There has not been any material adverse change (or development involving a prospective
material adverse change) in the business, properties, earnings, or financial condition of the
Company and its subsidiaries on a
9
consolidated basis from that set forth in the Companys last periodic report filed with the
Commission under the Exchange Act and the rules and regulations promulgated thereunder.
(k) There are no legal or governmental proceedings pending or, to the Companys knowledge,
threatened, to which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that is required to be described in
the Registration Statement, the Prospectus or the Time of Sale Prospectus and is not so described,
or any applicable statute, regulation, contract, or other document that is required to be described
in the Registration Statement, the Prospectus or the Time of Sale Prospectus that is not so
described.
Section 7
. Authority, Compliance with Laws.
As of each date on which the Company and any
Bank execute and deliver a Terms Agreement and as of each date the Company issues and sells
Securities through any Bank in its capacity as agent or to any Bank in its capacity as underwriter,
the following statements are and shall be true:
(a) Each of this Agreement and any Terms Agreement has been duly authorized, executed, and
delivered by such Bank and (assuming due authorization, valid execution, and delivery thereof by
the Company) is a valid and binding agreement of such Bank, enforceable against such Bank in
accordance with its respective terms, except as the enforceability of any such terms or provisions
(including, without limitation, such Banks agency obligations under Section 2 hereof and such
Banks indemnification obligations under Section 11 hereof) may be limited by the laws of
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, or similar laws relating
to creditors rights generally, by any other federal or state laws, by general principles of
equity, or by the discretion of any court before which any proceeding therefor may be brought.
(b) Neither the execution and delivery of this Agreement or any Terms Agreement by such Bank
nor the performance by such Bank of its obligations hereunder or thereunder is precluded by any
provision of any applicable federal or state law (including, without limitation, the Blue Sky laws
of any jurisdiction, to the extent that such laws apply to such Bank), or of any term or provision
of the Charter or By-Laws of such Bank, any agreement or other instrument binding upon such Bank,
or any judgment, order, or decree of any governmental body, agency, or court having jurisdiction
over such Bank, and all consents, approvals, authorizations, and orders of and qualifications with
all governmental bodies and agencies that are, to such Banks knowledge, required for the
performance by such Bank of its obligations under this Agreement or any Terms Agreement have been
obtained, except such as may be required by Blue Sky laws or other securities laws of the various
states in which the Securities are offered and sold.
10
(c) Each Bank has delivered and will deliver a copy of the Prospectus and the Time of Sale
Prospectus (as the same may be amended as of the date of such delivery, together with all
applicable Supplements), to each person who has agreed to purchase Securities as to which such Bank
is named as an agent or underwriter, in each case in accordance with all applicable federal and
state laws. Such Bank has not made and will not make any representation, warranty, or other
statement to any third party in connection with the solicitation, offer, sale, or distribution of
any of the Securities that is or, at the time it is made, will be in violation of any applicable
federal or state law.
Section 8
. Agreements.
The Company and each Bank agree as follows:
(a) Prior to the filing by the Company of any amendment to any Prospectus or of any Supplement
that shall name such Bank as agent or underwriter, the Company will afford such Bank or such Banks
Counsel a reasonable opportunity to review and comment on the same,
provided, however
, that the
foregoing requirement will not apply to any of the Companys filings with the Commission required
to be filed pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act. Subject to the
foregoing sentence, the Company will promptly cause each applicable Supplement to be filed with or
transmitted for filing with the Commission in accordance with Rule 424(b) or 424(c) under the
Securities Act or pursuant to such other rule or regulation of the Commission as then deemed
appropriate by the Company. The Company will promptly advise the Banks of (i) any request by the
Commission for any amendment to the Registration Statement, for any amendment or supplement to the
Prospectus, or for any information from the Company, (ii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (iii) the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will
use reasonable efforts to prevent the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as reasonably possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to any series of Securities is required to be
delivered under the Securities Act, any event occurs or condition exists as a result of which the
Prospectus or the Time of Sale Prospectus would include an untrue statement of a material fact, or
omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, the Exchange Act, the
respective rules and regulations of the Commission thereunder, or any other applicable law, the
Company will promptly notify each Bank, by telephone or by facsimile (in either case with written
confirmation from the
11
Company by mail), to cease use and distribution of the Prospectus or the Time of Sale
Prospectus (and all then existing supplements thereto) and to suspend all efforts to solicit offers
to purchase Securities in its capacity as agent or to suspend all efforts to resell the Securities
in its capacity as underwriter or dealer, as the case may be, and each Bank will promptly comply
with the terms of such notice. If the Company thereafter decides to amend or supplement the
Registration Statement or the Time of Sale Prospectus or the Prospectus to correct such statement
or omission or to effect such compliance, it will promptly advise each Bank of such decision,
either by telephone or telecopier (in either case with confirmation from the Company by mail) and,
at the Companys expense, will promptly prepare and cause to be filed with the Commission an
appropriate amendment or supplement to the Registration Statement or the Time of Sale Prospectus or
the Prospectus, as the case may be, and will supply each Bank with one signed copy of any such
amended Registration Statement and as many copies of any such amended or supplemented Prospectus as
such Bank may reasonably request. If such amendment or supplement is satisfactory in the reasonable
judgment of the Banks to correct such statement or omission or to effect such compliance, then upon
the effective date of such amendment to the Registration Statement or the filing with the
Commission of such amendment or supplement to the Prospectus or the Time of Sale Prospectus, as the
case may be, the Banks may resume solicitation of offers to purchase such Securities or the resale
of such Securities as the case may be, in accordance with the terms hereof. Any other provision of
this Agreement to the contrary notwithstanding, if any event or condition contemplated in the first
sentence of this paragraph (b) shall occur before the Settlement Date for any sale of Securities to
be made through any Bank in its capacity as agent, or before such Bank has completed distribution
of any Securities it may have purchased in its capacity as underwriter, the Company will forthwith
prepare and cause to be filed with the Commission an amendment or supplement to the Registration
Statement or the Prospectus or the Time of Sale Prospectus, as the case may be, satisfactory in the
reasonable judgment of such Bank to correct such statement or omission or to effect such
compliance, and the Company will supply such Bank with one signed copy of such amended Registration
Statement and as many copies of such amended or supplemented Prospectus or the Time of Sale
Prospectus as such Bank may reasonably request,
provided, however
, that the expense of preparing,
filing, and supplying copies to such Bank of any such amendment or supplement will be borne by the
Company only for the nine-month period immediately following the purchase of such Securities by
such Bank and thereafter will be borne by such Bank.
(c) The Company will furnish to each Bank, without charge, as many copies of the Prospectus
and the Time of Sale Prospectus, any documents incorporated by reference therein, and any
supplements and amendments thereto as such Bank may reasonably request.
12
(d) The Company will, with such assistance from the Banks as the Company may reasonably
request, endeavor to qualify the Securities for offer and sale under the Blue Sky laws or other
securities laws of such jurisdictions as the Banks shall reasonably request and will maintain such
qualifications for as long as required with respect to the offer, sale, and distribution of the
Securities.
(e) From the date of any Terms Agreement providing for the purchase of Securities by any Bank
in its capacity as an underwriter hereunder to and including the corresponding Settlement Date, the
Company will not, without such Banks prior consent (which consent may not be unreasonably
withheld), offer, sell, or contract to sell to, or announce any offering of any Securities to be
distributed by, any underwriter other than such Bank pursuant to any underwriting agreement or
other similar agreement (including a distribution agreement) between the Company and one or more
third parties. It is expressly understood and agreed that the foregoing will not prohibit or
restrict any sale of Securities outside the United States or any sale of Securities by the Company
directly to one or more investors, through such Bank as agent hereunder, or through any other agent
of the Company.
(f) As of each date on which the Company and the Banks execute and deliver a Terms Agreement
and as of each date the Company issues and sells Securities through the Banks in their capacity as
agents or to the Banks in their capacity as underwriters, each Bank has disclosed and will disclose
to the Company the purchase of any Security made by such Bank as principal, for its own account,
and not with a view to the immediate sale or resale of such Security to a bona fide third-party
investor.
(g) Such Bank has not used and will not use, has not authorized the use of and will not
authorize the use of, has not referred to and will not refer to, and has not participated and will
not participate in the planning for use of any free writing prospectus, as defined in Rule 405
under the Securities Act (which term includes use of any written information furnished to the
Commission by the Company and not incorporated by reference into the Registration Statement and any
press release issued by the Company) (each such communication by the Company or its agents or
representatives, an
Issuer Free Writing Prospectus
) other than (i) a free writing prospectus
that contains no issuer information (as defined in Rule 433(h)(2) under the Securities Act) that
was not included (including through incorporation by reference) in the preliminary prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on
Annex A to the applicable Terms Agreement or (iii) any free writing prospectus prepared by such
Bank and approved by the Company in advance in writing (each such free writing prospectus referred
to in clauses (i) or (iii), an
Underwriter Free Writing Prospectus
).
13
(h) Such Bank has not distributed and will not distribute any Underwriter Free Writing
Prospectus in a manner reasonably designed to lead to its broad unrestricted distribution.
(i) Such Bank has not used and will not use, without the prior written consent of the Company,
any free writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission.
(j) Such Bank represents and warrants that it is not subject to any pending proceeding under
Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company
if any such proceeding against it is initiated during the prospectus delivery period).
Section 9
. Fees and Expenses.
The Company will pay all costs, fees, and expenses arising in
connection with the sale of any Securities through the Banks in their capacity as agents or to the
Banks in their capacity as underwriters and in connection with the performance by the Banks of
their related obligations hereunder and under any Terms Agreement, including the following: (a)
expenses incident to the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus, any free writing prospectus and the Time of Sale Prospectus and all
amendments and supplements thereto, (b) expenses incident to the issuance and delivery of such
Securities, (c) the fees and disbursements of the Companys Counsel, the Tax Counsel, the Companys
Auditors and the Trustee, (d) expenses incident to the qualification of such Securities under Blue
Sky laws and other applicable state securities laws in accordance with the provisions of Section
8(d) hereof, including related filing fees and the reasonable fees and disbursements of the Banks
Counsel in connection therewith and in connection with the preparation of any survey of Blue Sky
laws (a
Blue Sky Survey
), (e) expenses incident to the printing and delivery to the Banks, in the
quantities hereinabove stated, of copies of the Registration Statement and all amendments thereto,
of the Prospectus and all amendments and supplements thereto, and of the Time of Sale Prospectus
and all amendments and supplements thereto, (f) expenses incident to the printing and delivery to
the Banks, in such quantities as each Bank shall reasonably request, of copies of the Indenture,
any Warrant Agreement, any Unit Agreement and any Blue Sky Survey, (g) any fees charged by rating
agencies for the rating of such Securities, (h) the fees and expenses, if any, incurred with
respect to any applicable filing with the National Association of Securities Dealers, and (i) the
reasonable fees and disbursements of the Banks Counsel incurred in connection with the offering
and sale of such Securities, including reasonable fees for the issuance of any opinion to be
delivered by the Banks Counsel hereunder;
provided, however
, that each Bank will pay all costs,
fees, and expenses incurred by such Bank in connection with the purchase of Securities by such Bank
for its own account or with respect to the resale of Securities purchased by such Bank in its
capacity as
14
underwriter hereunder, including all transfer taxes, advertising expenses, and fees and
expenses of the Banks Counsel incident to the resale of any such Securities.
Section 10
. Inspection; Place of Delivery; Payment.
(a)
Inspection
. The Company agrees to have available for inspection, checking, and packaging
by the Banks or their appointed agent, at the office of the Trustee in The City of New York, the
Securities to be sold through or to the Banks as agents or underwriters hereunder, not later than
1:00 p.m. on the New York Business Day prior to the applicable Settlement Date. As used in this
Agreement,
New York Business Day
means any day, other than a Saturday or Sunday, that is neither
a legal holiday nor a day on which banking institutions are authorized or required by law or
regulation to close in The City of New York.
(b)
Place of Delivery of Documents, Certificates and Opinions
. The documents, certificates and
opinions required to be delivered to the Banks pursuant to Section 5 of this Agreement will be
delivered at the offices of the Banks Counsel, or at such other location as may be agreed upon by
the Company and the Banks, not later than 12:00 p.m., New York time, in each case on the date or
dates indicated in the applicable Section, or at such other time as the Banks and the Company may
agree upon in writing.
(c)
Payment
. Delivery of Securities sold by or through the Banks as underwriters or agents
will be made to the Banks on the date that the Company receives payment in full of the aggregate
purchase price therefor, discounted as provided in the applicable Supplement with respect to
Securities purchased by the Banks as underwriters or (unless otherwise set forth in the applicable
Terms Agreement) discounted as provided in paragraph 2(c) hereof regarding payment of the
commission set forth in the applicable Supplement with respect to Securities sold through the Banks
as agents (each such date a
Settlement Date
), in the currency specified in such Securities and in
the applicable Supplement, by wire transfer of immediately available funds to an account designated
in writing by the Company or by such other means as may be agreed upon by the Company and the Banks
and set forth in the applicable Terms Agreement.
Section 11
. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold each Bank and each person, if any, who controls
such Bank within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, harmless from and against any and all losses, claims, damages, or liabilities to
which any Bank comes subject under the Securities Act, the Exchange Act, or any other federal or
state law or regulation, at common law or otherwise, insofar as such losses, claims, damages, or
liabilities (and actions in respect thereof) arise out of, are based upon, or are caused by any
untrue statement or allegedly untrue statement of a material
15
fact contained in the Registration Statement, any preliminary prospectus, the Prospectus, or
the Time of Sale Prospectus or in any amendment or supplement thereto, or arise out of, are based
upon or are caused by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, and the Company
agrees to reimburse each such indemnified party for any reasonable legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage, liability, or action;
provided, however,
that the Company will not be liable to the extent
that such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of, are
based upon, or are caused by any such untrue statement or omission or allegedly untrue statement or
omission included in or omitted from the Registration Statement, the Prospectus or the Time of Sale
Prospectus in reliance upon and in conformity with information furnished to the Company by the
Banks in writing expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or the Time of Sale Prospectus or any amendment or supplement thereto,
provided,
further,
that any amount payable by the Company to any Bank pursuant to the provisions of this
paragraph shall be offset by the amount of any losses, claims, damages, and liabilities sustained
or incurred by the Company arising out of or in connection with a violation by the Banks of the
provisions of paragraph (b) of Section 7 hereof (except to the extent that such violation occurs as
a direct result of a violation by the Company of its obligations under paragraphs (b) or (c) of
Section 8 hereof), as such amounts are finally determined by a court of competent jurisdiction, and
provided
that the foregoing indemnity with respect to any preliminary prospectus, the Prospectus or
the Time of Sale Prospectus will not inure to the benefit of any Bank, or any underwriter or agent
from whom the person asserting any losses, claims, damages or liabilities otherwise covered by this
paragraph purchased Securities, or to the benefit of any person controlling such underwriter or
agent, if a copy of the preliminary prospectus, the Prospectus or the Time of Sale Prospectus (as
then amended and supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such underwriter or agent to such person if
required so to have been delivered, at or prior to the entry into the contract of sale of
Securities with such person, and if the preliminary prospectus, the Prospectus or the Time of Sale
Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability.
(b) The Banks agree to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement, and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Banks, but only with respect to such
losses, claims, damages, and liabilities (and actions in respect thereof) that arise out of, are
based upon, or are caused by any untrue statement or omission or
16
allegedly untrue statement or omission included in or omitted from the Registration Statement,
the Prospectus or the Time of Sale Prospectus in reliance upon and in conformity with information
furnished to the Company by the Banks in writing expressly for use in the Registration Statement,
the Prospectus or the Time of Sale Prospectus, in each case as amended or supplemented.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to either paragraphs (a)
or (b) of this Section 11, such person (the
indemnified party
) will promptly notify the person
against whom such indemnity may be sought (the
indemnifying party
) in writing and the
indemnifying party, upon request of the indemnified party, will retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and will pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified party will have the
right to retain its own counsel, but the fees and expenses of such counsel will be borne by the
indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the indemnifying party will not,
in connection with any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any local counsel) for all
such indemnified parties and that all such reasonable fees and expenses will be reimbursed as they
are incurred. Such firm will be designated in writing by the Banks (in the case of parties
indemnified pursuant to the second preceding paragraph) or by the Company (in the case of parties
indemnified pursuant to the first preceding paragraph), as the case may be. The indemnifying party
will not be liable for any settlement of any proceeding effected without its written consent, but
if settled with such consent, or if there shall be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. No indemnifying party will, without the prior written
consent of the indemnified party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such
proceeding. Any provision of this paragraph (c) to the contrary notwithstanding, no failure by an
indemnified party to notify the indemnifying party as required hereunder will relieve the
indemnifying party from any liability it may have had to an indemnified party otherwise than under
this Section 11.
17
(d) If the indemnification provided for in paragraph (a) or (b) of this Section 11 is
unavailable to an indemnified party or is insufficient in respect of any losses, claims, damages,
or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying the indemnified party thereunder, will contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Banks, on the other, from the offering of Securities as to which the Banks were named
agents or underwriters, or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on the one hand, and
the Banks, on the other, in connection with the statements or omissions that resulted in such
losses, claims, damages, or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Banks, on the other, in
connection with the offering of Securities as to which the Banks were named agents or underwriters
will be deemed to be in the same proportion as the total net proceeds received by the Company from
the offering of such Securities bears to the total discounts and commissions received by the Banks
from the Company in respect thereof. The relative fault of the Company, on the one hand, and of the
Banks, on the other, will be determined by reference to, among other things, whether the untrue or
allegedly untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied or to be supplied by the Company or by the Banks and
the parties relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Banks agree that it would not be just or equitable if contribution
pursuant to paragraph (d) above were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred to therein. The
amount paid or payable by an indemnified party as a result of the losses, claims, damages, and
liabilities referred to in paragraph (d) above will be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim. Any other
provisions of this Section 11 to the contrary notwithstanding, (i) the Banks will not be required
to contribute to the Company any amount in excess of the amount by which the aggregate public
offering price of all Securities as to which the Banks were named agents or underwriters exceeds
the amount of losses, claims, damages, and liabilities sustained or incurred by any Bank arising
out of, based upon, or caused by any untrue statement or omission or allegedly untrue statement or
omission included in or omitted from the Registration Statement, the Prospectus or the Time of Sale
Prospectus (other than in reliance upon and in conformity with information
18
furnished to the Company by the Banks in writing expressly for use in the Registration
Statement, the Prospectus or the Time of Sale Prospectus or any amendment or supplement thereto),
(ii) any amount payable by the Company or any Bank, as the case may be (the
Contributing Party
),
pursuant to the provisions of this paragraph or paragraph (d) of this Section 11 shall be offset by
the amount of any losses, claims, damages, and liabilities sustained or incurred by the other party
arising out of or in connection with a violation (x) by any Bank of the provisions of paragraph (c)
of Section 7 hereof (if the Company is the Contributing Party) or (y) by the Company of its
obligations under paragraphs (b) or (c) of Section 8 hereof (if such Bank is the Contributing
Party), in each case as such amounts are finally determined by a court of competent jurisdiction,
and (iii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) The remedies provided for in this Section 11 are not exclusive and will not limit any
rights or remedies that may otherwise be available to any indemnified party at law or in equity.
Section 12
. Termination.
This Agreement will automatically terminate upon the expiration of
the offering to which the Prospectus relates and may be earlier terminated by the Company or the
Banks upon the giving of written notice of such termination to the other party hereto in accordance
with the provisions of Section 14 hereof,
provided, however
, that if the Company and the Banks
shall have executed a Terms Agreement for the purchase of Securities by the Banks in their capacity
as underwriters, this Agreement may not be terminated by the Banks prior to delivery of and payment
for such Securities except upon the failure of any of the conditions precedent described in Section
5(a) hereof, and
provided, further
, that if the Company and the Banks shall have executed a Terms
Agreement for the purchase of Securities through the Banks as agent, this Agreement may not be
terminated by the Banks prior to delivery of and payment for such Securities unless and until the
Banks shall have exercised best efforts consistent with standard industry practice to assist the
Company in obtaining performance by each purchaser whose offer to purchase such Securities is
reflected in such Terms Agreement.
Section 13
. Representations and Indemnities to Survive.
The respective agreements of the
Company and each Bank set forth in Section 2(e), 4, 8(b), 9, 11, and 17 hereof, the representations
and warranties of the Company set forth in Section 6 hereof, the representations and warranties of
each Bank set forth in Section 7 hereof, and the statements and opinions of the Company and its
officers set forth in the documents to be delivered by the Company to the Banks as provided in
Section 5(c) hereof, will survive delivery of and payment for any Securities as contemplated
hereunder and will survive termination of this Agreement in accordance with the provisions of
Section 12 above.
19
Section 14
. Notices.
Except as otherwise specifically provided herein, all communications
hereunder will be in writing and will be effective one business day after having been delivered by
hand, mailed via Express Mail, deposited with Federal Express or any nationally recognized
commercial courier service for next day delivery, or telecopied and confirmed in writing (by
telecopied facsimile or otherwise) to the respective addresses or telecopier numbers set forth on
the signature page hereto, or to such other address or telecopier number as either party may
hereafter designate to the other in writing. The foregoing notwithstanding, copies of any Terms
Agreement and of any certificate or opinion to be delivered by the Company to the Banks under
Section 5(c) hereof will be deemed delivered if executed by all required signatories and telecopied
to the Company and/or the Banks, as the case may be, with receipt confirmed in writing (by
telecopied facsimile or otherwise). In the event that any Terms Agreement or any such certificate
or opinion is delivered via telecopier as contemplated in the preceding sentence, the parties will
use best efforts to ensure that original copies of such documents will be distributed promptly
thereafter.
Section 15
. Successors; Non-Transferability.
This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors, and the officers, directors,
and controlling persons referred to in Section 11 hereof. No other person will have any right or
obligation hereunder. Neither party to this Agreement may assign its rights hereunder without the
written consent of the other party.
Section 16
. Counterparts.
This Agreement may be signed in any number of counterparts, each
of which will be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Section 17
. Applicable Law.
This Agreement will be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts of law.
Section 18
. Headings.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and will not affect the construction of any of the terms or
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Distribution Agreement as of the
day of
.
20
|
|
|
|
|
|
|
|
|
PEPSICO, INC.
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
Notice Information:
|
|
|
PepsiCo, Inc.
|
|
|
700 Anderson Hill Road
|
|
|
Purchase, New York 10577
|
|
|
Telephone No.:
|
|
|
Facsimile No.:
|
|
|
Attention:
|
|
|
|
|
|
|
|
|
|
[NAME OF BANK]
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
Notice Information:
|
|
|
[NAME OF BANK]
|
|
|
[ADDRESS]
|
|
|
Telephone No.:
|
|
|
Facsimile No.:
|
|
|
Attention:
|
21
Schedule I
Participating Banks:
S-I-1
SCHEDULE II
PEPSICO, INC.
Debt Securities, Warrants and Units
TERMS AGREEMENT
Under
the Distribution Agreement, dated
, 200
,
Among PepsiCo, Inc. and [Name of Bank(s)]
(the
Distribution Agreement
)
, 20
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, N.Y. 10577
Attention:
In accordance with the provisions of the above-referenced Distribution Agreement, the
undersigned [the
Bank
][(individually, the
Bank
and collectively, the
Banks
)], in [its][their]
capacity as [Agent(s)][Underwriter(s)] under the Distribution Agreement, hereby [deliver(s) on
behalf of one or more third-party investors an offer][agree(s)] to purchase $
in
aggregate initial offering price of the Securities identified below on the terms hereinafter set
forth.
All capitalized terms used in this Terms Agreement and not otherwise defined herein have the
meanings ascribed to such terms by the Prospectus (as such term is defined in the Distribution
Agreement);
provided, however
, that in the event of a conflict between the Prospectus and the
Pricing Supplement or Prospectus Supplement applicable to the Securities to which this Terms
Agreement relates, the definition set forth in the applicable Supplement will govern.
Designation or Title of Securities:
Issue Price [i.e., Price to Public]:
[Agent(s) Commission][Underwriter(s) Discount]:
Currency:
S-II-1
Interest Rate [or, if a Floating Rate Debt Security, Initial Interest Rate]:
Date of Issue:
Interest accrual date [if other than Date of Issue]:
Interest Payment Dates:
Principal Payment Dates [if other than at maturity]:
Scheduled Maturity Date:
Calculation Agent:
[Total amount of OID:]
[Optional redemption dates:]
[Option to elect repayment:]
[Sinking fund:]
[Acceleration provisions:]
[Exchange Rate Agent:]
[Other terms, if any:]
Settlement Date [and scheduled time and place]:
Possible additional terms for Floating Rate Debt Securities
[Base Rate:]
[Index Maturity:]
[Spread:]
[Spread Multiplier:]
[Spread Divisor:]
[Interest Period:]
[Interest Reset Dates:]
[Maximum Interest Rate:]
S-II-2
[Minimum Interest Rate:]
The provisions of Sections [2 (if the Bank(s) [is][are] acting as agent(s))][3 (if the Bank(s)
[is][are] acting as underwriter(s))] and 4 through 14 of the Distribution Agreement are
incorporated by reference herein with the same force and effect as if set forth in full herein.
[In the event that two or more banks are signing this Terms Agreement: The Company represents
that the respective Distribution Agreements executed and delivered by the Company and each of the
Banks prior to or together with the execution and delivery of this Terms Agreement are identical in
all material respects.]
This Terms Agreement will be (i) governed by and construed in accordance with the internal
laws of the State of New York without regard to principles of conflicts of law, (ii) inure to the
benefit of and be binding upon the parties hereto, their respective successors, and the officers,
directors, and controlling persons referred to in Section 11 of the Distribution Agreement, and no
other person will have any right or obligation hereunder. No party to this Terms Agreement may
assign its rights hereunder without the written consent of the other parties. This Terms Agreement
may be signed in any number of counterparts, each of which will be an original, with the same
effect as if the signatures thereto and hereto were upon one and the same instrument.
|
|
|
|
|
|
[NAME OF BANK(S)]
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
Accepted this
day of
|
|
|
, 20
.
|
|
|
|
|
|
|
|
|
|
PEPSICO, INC.
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
S-II-3
ANNEX A
Time of Sale Prospectus:
1.
|
|
Preliminary Prospectus issued [date]
|
|
2.
|
|
Any free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act
|
|
3.
|
|
[free writing prospectus containing a description of terms that does not reflect final terms, if
the Time of Sale Prospectus does not include a final term sheet]
|
|
4.
|
|
[orally communicated pricing information to be included on Schedule II to the Underwriting
Agreement if a final term sheet is not used]
|
S-II-4
SCHEDULE III
PEPSICO, INC.
ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures applicable to the offering of the notes,
debentures, and other evidences of unsecured indebtedness (the
securities
) of PepsiCo, Inc. (the
Company
), that have been registered by the Company with the Securities and Exchange Commission
(the
Commission
) under the Companys registration statement on Form S-3, File No.
333-
such securities hereinafter the
Debt Securities
and such registration statement
hereinafter the
Registration Statement
). The Debt Securities will be offered pursuant to one or
more agreements in substantially the form of Distribution Agreement filed as an exhibit to the
Registration Statement (the
Distribution Agreement
).
The Debt Securities will be issued pursuant to the provisions of the Indenture, dated as of
May 21, 2007 (as it may be supplemented or amended from time to time, the
Indenture
), between the
Company and The Bank of New York Mellon, as trustee. The Bank of New York Mellon will be the
Registrar, Authentication Agent, and Paying Agent for the Debt Securities and will perform the
duties specified below. The Debt Securities may bear interest at a fixed rate (the
Fixed Rate
Debt Securities
) or a floating rate (the
Floating Rate Debt Securities
). Each Debt Security
will be issued either (a) in book-entry form, as a beneficial interest in a single global Debt
Security (a
Global Debt Security
) to be delivered to The Bank of New York Mellon, as agent for
The Depository Trust Company (
DTC
), and registered in the name of Cede & Co. or such other
nominee of DTC as may be designated by DTC, or (b) in certificated form (a
Certificated Debt
Security
) to be delivered to the holder thereof or to a person designated by such holder. Except
in limited circumstances, Book-Entry Debt Securities will not be exchangeable for Certificated Debt
Securities.
Book-Entry Debt Securities will be issued in accordance with the administrative procedures set
forth in Part I hereof, as such procedures may from time to time be amended as a result of changes
in DTCs operating procedures. Certificated Debt Securities will be issued in accordance with the
administrative procedures set forth in Part II hereof.
All capitalized terms used herein and not otherwise defined have the meanings ascribed to such
terms by the Prospectus filed as part of the Registration Statement (the
Prospectus
). In the
event of a conflict between the terms hereof and the terms of the Prospectus or any amendment or
supplement thereto, the terms of the Prospectus, as so amended or supplemented, shall govern.
S-III-1
PART I
ADMINISTRATIVE PROCEDURES RE: BOOK-ENTRY DEBT SECURITIES
In connection with the qualification of the Book-Entry Debt Securities for eligibility in the
book-entry system maintained by DTC, The Bank of New York Mellon will perform certain custodial,
document control, and administrative functions as described below and in accordance with its
obligations as a participant in DTCs book-entry system, including DTCs Same-Day Funds Settlement
System (
SDFS
).
Issuance:
On any Settlement Date (as defined in the Distribution Agreement) for one or more Book-Entry
Debt Securities of the same series, the Company will issue one or more Global Debt Securities, in
fully registered form, without coupons, each representing up to $500,000,000 in aggregate principal
amount of such Debt Securities. Each Global Debt Security will be dated and issued as of the date
of its authentication by The Bank of New York Mellon. The Interest accrual date for any Global Debt
Security will be as follows: (i) with respect to an original Global Debt Security (or any portion
thereof), its date of issue, and (ii) with respect to any Global Debt Security (or any portion
thereof) issued upon exchange of a Global Debt Security or in lieu of a destroyed, lost, or stolen
Global Debt Security, the most recent preceding Interest Payment Date under the predecessor Global
Debt Security or Securities (or, if no interest has been paid or provided for as of the date of
issuance of such succeeding Global Debt Security, the date of issuance of the predecessor Global
Debt Security), regardless of the date of authentication of such subsequently issued Global Debt
Security. No Global Debt Security will represent any Certificated Debt Security.
Identification Numbers:
Prior to each Settlement Date, the Company will obtain from the CUSIP Service Bureau of
Standard & Poors (the
CUSIP Service Bureau
) new CUSIP numbers (including tranche numbers) for
the Debt Securities to be issued on such Settlement Date and shall deliver such CUSIP numbers to
The Bank of New York Mellon and DTC.
Registration:
Each Global Debt Security will be registered in the name of Cede & Co., as nominee for DTC, on
the Security register maintained under the Indenture. The beneficial owner of a Book-Entry Debt
Security (or one or more indirect participants in DTC, as designated by such owner) will designate
one or more participants in DTC (with respect to such Debt Security, the
Participants
) to act as
agent or agents for such owner in connection with the book-entry system
S-III-2
maintained by DTC, and DTC will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to such beneficial owner in such Debt
Security in the account of such Participants. The ownership interest of such beneficial owner in
such Debt Security will be recorded through the records of such Participants or through the
separate records of such Participants and one or more indirect participants in DTC.
Transfers:
Transfers of a Book-Entry Debt Security will be accompanied by book entries made by DTC and,
in turn, by Participants (and in certain cases, one or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees of such Debt Security.
Exchanges:
The Bank of New York Mellon may, upon notice to the Company, deliver to DTC and the CUSIP
Service Bureau at any time a written notice of consolidation (a copy of which shall be attached to
the Global Debt Security resulting from such consolidation) specifying: (i) the CUSIP numbers of
two or more outstanding Global Debt Securities that represent Book-Entry Debt Securities of the
same series and for which interest has been paid to the same date, (ii) a date, occurring at least
30 days after such written notice is delivered and at least 30 days before the next Interest
Payment Date for such Book-Entry Debt Securities, on which such Global Debt Securities shall be
exchanged for a single replacement Global Debt Security, and (iii) a new CUSIP number to be
assigned by the Company to such replacement Global Debt Security. Upon receipt of such a notice,
DTC will send to its Participants (including The Bank of New York Mellon) a written reorganization
notice to the effect that such exchange will occur on such date. Prior to the specified exchange
date, The Bank of New York Mellon will deliver to the CUSIP Service Bureau a written notice setting
forth such exchange date and the new CUSIP number and stating that, as of such exchange date, the
CUSIP numbers of the Global Debt Securities to be exchanged will no longer be valid. On the
specified exchange date, The Bank of New York Mellon will exchange such Global Debt Securities for
a single Global Debt Security bearing the new CUSIP number and a new Interest accrual date, and the
CUSIP numbers of the exchanged Global Debt Securities will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. Notwithstanding the foregoing, if the
Global Debt Securities to be exchanged exceed $500,000,000 in aggregate principal amount, one
Global Debt Security will be authenticated and issued to represent each $500,000,000 principal
amount of the exchanged Global Debt Security and an additional Global Debt Security will be
authenticated and issued to represent any remaining principal amount of such Global Debt Securities
(see
Denominations
below).
S-III-3
Maturities:
Each Book-Entry Debt Security will mature on a date not less than nine months after the
Settlement Date for such Debt Security. The date on which all outstanding principal of and interest
on any Debt Security will be due and payable is referred to herein as the
Maturity Date
for such
Debt Security.
Notice of Redemption:
Notice of Redemption Dates: The Bank of New York Mellon will give notice to DTC prior to each
Redemption Date as specified in the Debt Security.
Denominations:
Unless otherwise set forth in the form of the applicable Global Debt Security, Book-Entry Debt
Securities will be issued in principal amounts of $100,000,000 or any amount in excess thereof that
is an integral multiple of $1,000. Global Debt Securities will be denominated in principal amounts
not in excess of $500,000,000. If one or more Book-Entry Debt Securities having an aggregate
principal amount in excess of $500,000,000 would, but for the preceding sentence, be represented by
a single Global Debt Security, then one Global Debt Security will be issued to represent each
$500,000,000 principal amount of such Book-Entry Debt Security or Securities and an additional
Global Debt Security will be issued to represent any remaining principal amount of such Book-Entry
Debt Security or Securities, subject to the minimum denomination requirement set forth above. In
such a case, each of the Global Debt Securities representing such Book-Entry Debt Security or
Securities shall be assigned the same CUSIP number. (References in this paragraph to U.S. dollars
shall refer instead to any Specified Currency, as may be applicable.)
Interest:
General
. Interest on each Book-Entry Debt Security will accrue from the Interest accrual date
of the Global Debt Security representing such Book-Entry Debt Security. Each payment of interest
on a Book-Entry Debt Security will include interest from and including the Interest accrual date or
the most recent date for which interest has been paid or provided for, as the case may be, to but
excluding the next succeeding Interest Payment Date or the Maturity Date, as the case may be.
Interest payable on any Interest Payment Date will be paid to the Holder of Record as of the
applicable Record Date (see below), provided that interest, if any, payable at the maturity or upon
redemption of a Book-Entry Debt Security will be payable to the person to whom the principal of
such Debt Security is payable.
Record Dates:
S-III-4
The Record Date with respect to any Interest Payment Date shall be the date fifteen calendar
days immediately preceding such Interest Payment Date.
Fixed Rate Book-Entry Debt Securities
. Interest Payment Dates for Fixed Rate Book-Entry Debt
Securities will be as set forth in the applicable form of Fixed Rate Global Debt Security.
Floating Rate Book-Entry Debt Securities
. Interest Payment Dates for Floating Rate Book-Entry
Debt Securities will be as set forth in the applicable form of Floating Rate Global Debt Security.
Unless otherwise set forth in the applicable form of Global Debt Security, interest on Floating
Rate Book-Entry Debt Securities will be payable monthly, quarterly, semi-annually, or annually and
(a) in the case of Floating Rate Book-Entry Debt Securities with a daily, weekly, or monthly
Interest Reset Date, on the third Wednesday of each month or on the third Wednesday of each March,
June, September, and December during the term of such Security, as specified pursuant to Settlement
Procedure
A
below; (b) in the case of Floating Rate Debt Securities with a quarterly Interest
Reset Date, on the third Wednesday of each March, June, September, and December during the term of
such Security; (c) in the case of Floating Rate Debt Securities with a semi-annual Interest Reset
Date, on the third Wednesday of the two months specified pursuant to Settlement Procedure
A
below; and (d) in the case of Floating Rate Debt Securities with an annual Interest Reset Date, on
the third Wednesday of the month specified pursuant to Settlement Procedure
A
below;
provided,
however
, that if an Interest Payment Date (other than the Maturity Date or a redemption date or a
repayment date) for any Floating Rate Book-Entry Debt Security would otherwise be a day that is not
a New York Business Day, such Interest Payment Date will be the next succeeding New York Business
Day, except that in the case of a LIBOR-indexed Debt Security, if such New York Business Day is in
the next succeeding calendar month, such Interest Payment Date will be the immediately preceding
New York Business Day.
Notice of Interest Payment and Record Dates
. On the first New York Business Day of each
January, April, July, and October during the period that the Registration Statement is in effect,
The Bank of New York Mellon will deliver to the Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with respect to then outstanding Book-Entry Debt Securities
during the six-month period beginning on such first New York Business Day.
Calculation of Interest:
Fixed Rate Book-Entry Debt Securities
. Unless otherwise set forth in the applicable form of
Fixed Rate Global Debt Security and in the applicable Pricing Supplement, the amount of interest
payable on any Interest Payment Date for
S-III-5
Fixed Rate Book-Entry Debt Securities shall be computed on the basis of a 360-day year of
twelve 30-day months and the amount of interest payable for any partial period shall be computed on
the basis of the actual number of days elapsed in a 360-day year of twelve 30-day months.
Floating Rate Book-Entry Debt Securities
. Unless otherwise set forth in the applicable form
of Floating Rate Global Debt Security and in the applicable Pricing Supplement, interest on
Floating Rate Book-Entry Debt Securities will be calculated on the basis of actual days elapsed and
a year of 360 days.
Payments of Principal and Interest:
Payments of Interest
. Promptly after each Record Date, The Bank of New York Mellon will
deliver to the Company and DTC a written notice specifying by CUSIP number the amount of interest
(to the extent then ascertainable) to be paid on each Global Debt Security (other than an
amortizing Debt Security) on the following Interest Payment Date (other than an Interest Payment
Date coinciding with maturity) and the total of such amounts. In the case of amortizing Debt
Securities, The Bank of New York Mellon will provide separate written notice to DTC prior to each
Interest Payment Date at the times and in the manner set forth in DTCs operational arrangements.
The Company will pay to The Bank of New York Mellon, as paying agent, the total amount of interest
due on such Interest Payment Date (and, in the case of an amortizing Debt Security, principal and
interest) (other than at maturity), and The Bank of New York Mellon will pay such amount to DTC at
the times and in the manner set forth below under
Manner of Payment
. If any Interest Payment
Date for a Fixed Rate Book-Entry Debt Security is not a New York Business Day, the payment due on
such day shall be made on the next succeeding New York Business Day and no interest shall accrue on
such payment for the period from and after such Interest Payment Date.
Payments at Maturity or Upon Redemption
. On or about the first New York Business Day of each
month during the period that the Registration Statement is in effect, The Bank of New York Mellon
will deliver to the Company and DTC a written list of principal and interest (to the extent then
ascertainable) to be paid on each then outstanding Global Debt Security (other than an amortizing
Debt Security) maturing either at maturity or on a redemption date in the following month. The
Company and DTC will confirm the amounts of such principal and interest payments with respect to
each such Global Debt Security on or about the fifth New York Business day preceding the Maturity
Date or redemption date of such Global Debt Security. In the case of amortizing Debt Securities,
The Bank of New York Mellon will provide separate written notice to DTC prior to each Interest
Payment Date at the times and in the manner set forth in DTCs operational arrangements. The
Company will pay to The Bank of New York Mellon, as the paying agent, the principal amount of such
Global
S-III-6
Debt Security, together with interest due at such Maturity Date or redemption date. The Bank
of New York Mellon will pay such amounts to DTC at the times and in the manner set forth below
under
Manner of Payment
. If any Maturity Date or redemption date or repayment date of a Global
Debt Security representing Book-Entry Debt Securities is not a New York Business Day, the payment
due on such day shall be made on the next succeeding New York Business Day and no interest shall
accrue on such payment for the period from and after such Maturity Date or redemption date or
repayment date. Promptly after payment to DTC of the principal and interest due on the Maturity
Date or redemption date of such Global Debt Security, The Bank of New York Mellon will cancel such
Global Debt Security in accordance with the terms of the Indenture and deliver it to the Company
with a certificate of cancellation.
Manner of Payment
. The total amount of any principal and interest due on Global Debt
Securities on any Interest Payment Date or at maturity or upon redemption shall be paid by the
Company to The Bank of New York Mellon in funds available for immediate use by The Bank of New York
Mellon as of 9:30 A.M. (New York City time) on such date. The Company will make such payment on
such Global Securities by instructing The Bank of New York Mellon to withdraw funds from an account
maintained by the Company at The Bank of New York Mellon. The Company will confirm such
instructions in writing to The Bank of New York Mellon. Prior to 10 A.M. (New York City time) on
each Maturity Date or redemption date or as soon as possible thereafter, The Bank of New York
Mellon will pay by separate wire transfer (using Fedwire message entry instructions in a form
previously specified by DTC) to an account at the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate use by DTC, each payment of interest or
principal (together with interest thereon) due on Global Debt Securities on any Maturity Date or
redemption date. On each Interest Payment Date, interest payments (and, in the case of amortizing
Debt Securities, interest and principal payments) shall be made to DTC in same day funds in
accordance with existing arrangements between The Bank of New York Mellon and DTC. Thereafter on
each such date, DTC will pay, in accordance with its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the respective Participants in whose names the
Book-Entry Debt Securities represented by such Global Debt Securities are recorded in the
book-entry system maintained by DTC. NEITHER THE COMPANY NOR THE BANK OF NEW YORK MELLON SHALL
HAVE ANY RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY DTC TO SUCH PARTICIPANTS OF THE PRINCIPAL
OF AND INTEREST ON THE BOOK-ENTRY DEBT SECURITIES.
Withholding Taxes
. The amount of any taxes required under applicable law to be withheld from
any interest payment on a Book-Entry Debt Security will be determined and withheld by the
Participant, indirect participant in DTC, or
S-III-7
other person responsible for forwarding payments directly to the beneficial owner of such Debt
Security.
Preparation of Pricing Supplement:
If any order to purchase one or more Book-Entry Debt Securities is accepted by or on behalf of
the Company, the Company will prepare an applicable Pricing Supplement to the Prospectus,
reflecting the terms of such Debt Security. The Company will arrange to file such Pricing
Supplement with the Commission in accordance with the provisions of paragraph (b) or (c) of Rule
424 promulgated under the Securities Act and will deliver the number of copies of such Pricing
Supplement to each Bank as such Bank shall have reasonably requested by the close of business on
the preceding New York Business Day. The Banks will cause such Pricing Supplement to be delivered
to each purchaser of such Book-Entry Debt Securities in accordance with the applicable provisions
of the Securities Act. In each instance that a Pricing Supplement is prepared, the Banks will affix
the Pricing Supplement to the Prospectus (as amended or supplemented) prior to use of either such
Pricing Supplement or the Prospectus (as amended or supplemented). Outdated Pricing Supplements,
and the copies of the Prospectus to which they are attached (other than those retained files), will
be destroyed.
Settlement:
The receipt by the Company of immediately available funds in payment for a Book-Entry Debt
Security and the authentication and issuance of the Global Debt Security representing such Debt
Security shall constitute settlement with respect to such Debt Security. All orders accepted by
the Company will be settled on the fifth New York Business Day next succeeding the date of
acceptance pursuant to the timetable for settlement set forth below, unless the Company and the
purchaser agree to settlement on another day (which day shall be no earlier than the next
succeeding New York Business Day).
Settlement Procedures with regard to each Book-Entry Debt Security sold by the Company to or
through any Bank shall be as follows:
A. The Banks will advise the Company by telephone that such Debt Security is a Book-Entry Debt
Security and of the following settlement information:
Order number.
Principal amount.
Maturity Date.
CUSIP number.
S-III-8
In the case of a Fixed Rate Book-Entry Debt Security, the interest rate and whether such Debt
Security is an amortizing Debt Security, or in the case of a Floating Rate Book-Entry Debt
Security, the Initial Interest Rate (if known at such time), Base Rate, Index Maturity, Interest
Reset Periods, Interest Periods, Spread or Spread Multiplier (if any), Maximum and Minimum Interest
Rates (if any), alternate rate event spread (if any), and the applicability of the Business Day
Convention.
Interest Payment Dates.
Record dates.
Redemption and/or repayment provisions, if any.
Trade date.
Settlement Date.
Issue Price.
Banks commission or discount, if any, determined as provided in the applicable Terms
Agreement.
Whether the Debt Security is an OID Debt Security and, if it is, the total amount of OID, the
yield to maturity, the initial accrual period OID, and the applicability of Modified Payment upon
Acceleration.
Net proceeds to Company.
Each Banks Name and whether such Bank is acting as agent, underwriter, or principal for its
own account.
Any other applicable terms.
B. The Company will advise The Bank of New York Mellon by telephone or electronic transmission
(confirmed in writing at any time on the same date) of the information set forth in Settlement
Procedure
A
above. The Company will provide to The Bank of New York Mellon a CUSIP number to be
assigned to the Global Debt Security representing such Book-Entry Debt Security and will notify the
Banks of such CUSIP number by telephone as soon as practicable.
C. The Bank of New York Mellon will enter a pending deposit message through DTCs Participant
Terminal System, providing the following settlement information to DTC and the Agent:
S-III-9
The information set forth in Settlement Procedure
A
.
The Initial Interest Payment Date for such Debt Security, the number of days by which such
date succeeds the related DTC Record Date (which in the case of Floating Rate Debt Securities that
reset daily or weekly shall be the date 5 calendar days immediately preceding the applicable
Interest Payment Date and, in the case of all other Book-Entry Debt Securities, shall be the Record
Date as defined in the Debt Security) and the amount of interest payable on such Initial Interest
Payment Date.
The CUSIP number of the Global Debt Security representing such Book-Entry Debt Security.
Whether such Global Debt Security will represent any other Book-Entry Debt Security (to the
extent known at such time).
Whether such Debt Security is an amortizing Debt Security (by appropriate notation in the
comments field of DTCs Participant Terminal System).
D. The Bank of New York Mellon will complete and authenticate the Global Debt Security
representing such Debt Security.
E. DTC will credit such Debt Security to The Bank of New York Mellons participant account at
DTC.
F. The Bank of New York Mellon will enter a Same Day Funds Settlement (
SDFS
) delivery order
through DTCs Participant Terminal System instructing DTC to (i) debit such Debt Security to The
Bank of New York Mellons participant account and credit such Debt Security to each Banks
participant account, and (ii) debit such Banks settlement account and credit The Bank of New York
Mellons settlement account for an amount equal to the price of such Debt Security less such Banks
commission or discount, if any. The entry of such a delivery order shall constitute a
representation and warranty by The Bank of New York Mellon to DTC that (a) the Global Debt Security
representing such Book-Entry Debt Security has been issued and authenticated and (b) The Bank of
New York Mellon is holding such Global Debt Security as custodian for DTC.
G. Unless such Bank purchased such debt Security as principal for its own account, each Bank
will enter an SDFS delivery order through DTCs Participant Terminal System instructing DTC (i) to
debit such Debt Security to such Banks participant account and credit such Debt Security to the
participant accounts of the Participants with respect to such Debt Security, and (ii) to debit
S-III-10
the settlement accounts of such Participants and credit the settlement account of such Bank
for an amount equal to the price of such Debt Security.
H. Transfers of funds in accordance with SDFS delivery orders described in Settlement
Procedures
F
and
G
will be settled in accordance with SDFS operating procedures in effect on
the Settlement Date.
I. The Bank of New York Mellon will credit to the account of the Company maintained at The
Bank of New York Mellon, New York, New York, in funds available for immediate use, in the amount
transferred to The Bank of New York Mellon in accordance with Settlement Procedure
F
.
J. Unless such Bank purchased such Debt Security as underwriter or as principal for its own
account, each Bank will confirm the purchase of such Debt Security to the purchaser either by
transmitting to the Participants with respect to such Debt Security a confirmation order or orders
through DTCs institutional delivery system or by mailing a written confirmation to such purchaser.
K. Monthly, The Bank of New York Mellon will send to the Company a statement setting forth the
principal amount of Debt Securities outstanding under the Indenture as of such date and setting
forth a brief description of any sales of which the Company has advised The Bank of New York Mellon
but which have not yet been settled.
For sales by the Company of Book-Entry Securities to or through the Banks for settlement on
the first New York Business Day after the sale date, Settlement Procedures
A
through
J
set
forth above shall be completed as soon as possible but not later than the respective times (New
York City time) set forth below:
|
|
|
|
|
|
|
Procedure A:
|
|
11:00 a.m. on Sale Date
|
|
|
Procedure B:
|
|
12:00 p.m. on Sale Date
|
|
|
Procedure C:
|
|
2:00 p.m. on Sale Date
|
|
|
Procedure D:
|
|
9:00 a.m. on Settlement Date
|
|
|
Procedure E:
|
|
10:00 a.m. on Settlement Date
|
|
|
Procedure F:
|
|
2:00 p.m. on Settlement Date
|
|
|
Procedure G:
|
|
2:00 p.m. on Settlement Date
|
|
|
Procedure H:
|
|
4:45 p.m. on Settlement Date
|
|
|
Procedure I:
|
|
5:00 p.m. on Settlement Date
|
|
|
Procedure J:
|
|
5:00 p.m. on Settlement Date
|
If a sale is to be settled more than one New York Business Day after the sale date, Settlement
Procedures
A
,
B
, and
C
shall be completed as soon as practicable but not later than 11:00
A.M., 12:00 P.M., and 2:00 P.M.,
S-III-11
respectively, on the first New York Business Day after the sale date. If the initial interest
rate for a Floating Rate Book-Entry Debt Security has not been determined at the time that
Settlement Procedure
A
is completed, Settlement Procedures
B
and
C
shall be completed as soon
as such rate has been determined but no later than 12:00 P.M. and 2:00 P.M., respectively, on the
second New York Business Day before the Settlement Date. Settlement Procedure
H
is subject to
extension in accordance with any extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the Settlement Date. If settlement of a
Book-Entry Debt Security is rescheduled or canceled, The Bank of New York Mellon, after receiving
notice from the company or the Banks, will deliver to DTC, through DTCs Participant Terminal
System, a cancellation message to such effect by no later than 2:00 P.M. on the New York Business
Day immediately preceding the scheduled Settlement Date.
Failure to Settle:
If The Bank of New York Mellon fails to enter an SDFS delivery order with respect to a
Book-Entry Debt Security pursuant to Settlement Procedure
F
, The Bank of New York Mellon may
deliver to DTC, through DTCs Participant Terminal System, as soon as practicable, a withdrawal
message instructing DTC to debit such Debt Security to The Bank of New York Mellons participant
account, provided that The Bank of New York Mellons participant account contains a principal
amount of the Global Debt Security representing such Debt Security that is at least equal to the
principal amount to be debited. If a withdrawal message is processed with respect to all the
Book-Entry Debt Securities represented by a Global Debt Security, The Bank of New York Mellon will
mark such Global Debt Security
canceled
, make appropriate entries in The Bank of New York
Mellons records and send such canceled Global Debt Security to the Company. The CUSIP number
assigned to such Global Debt Security shall, in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If a withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Debt Securities represented by a Global Debt Security, The
Bank of New York Mellon will exchange such Global Debt Security for two Global Debt Securities, one
of which shall represent such Book-Entry Debt Security or Securities and shall be canceled
immediately after issuance, and the other of which shall represent the remaining Book-Entry Debt
Securities previously represented by the surrendered Global Debt Security and shall bear the CUSIP
number of the surrendered Global Debt Security.
If the purchase price for any Book-Entry Debt Security is not timely paid to the Participants
with respect to such Debt Security by the beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn,
each Bank may enter SDFS deliver orders through DTCs Participant Terminal System reversing the
orders
S-III-12
entered pursuant to Settlement Procedures
F
and
G
, respectively. Thereafter, The Bank of
New York Mellon will deliver the withdrawal message and take the related actions described in the
preceding paragraph. Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Debt Security, DTC may take any actions in accordance with its SDFS operating procedures
then in effect. In the event of a failure to settle with respect to one or more, but not all, of
the Book-Entry Debt Securities to have been represented by a Global Debt Security, The Bank of New
York Mellon will provide, in accordance with Settlement Procedures
D
and
F
, for the
authentication and issuance of a Global Debt Security representing the Book-Entry Debt Securities
to be represented by such Global Debt Security and will make appropriate entries in its records.
PART II
ADMINISTRATIVE PROCEDURES RE:
CERTIFICATED DEBT SECURITIES
The Bank of New York Mellon will serve as registrar in connection with the Debt Securities.
Issuance:
Each Certificated Debt Security will be dated and issued as of the date of its authentication
by The Bank of New York Mellon. The Interest accrual date for any Certificated Debt Security will
be as follows: (i) with respect to an original Certificated Debt Security (or any portion thereof),
its original issuance date and (ii) with respect to any Certificated Debt Security (or portion
thereof) issued subsequently upon transfer or exchange of a Certificated Debt Security or in lieu
of a destroyed, lost, or stolen Certificated Debt Security, the original issuance date of the
predecessor Certificated Debt Security, regardless of the date of authentication of such
subsequently issued Certificated Debt Security.
Registration:
Certificated Debt Securities will be issued only in fully registered form without coupons.
Transfers and Exchanges:
A Certificated Debt Security may be presented for transfer or exchange at the corporate trust
office of The Bank of New York Mellon or as set forth in the form of Certificated Debt Security.
Certificated Debt Securities will be exchangeable for other Certificated Debt Securities having
identical terms but
S-III-13
different denominations without service charge. Certificated Debt Securities will not be
exchangeable for Book-Entry Debt Securities.
Maturities:
Each Certificated Debt Security will mature on a date not less than nine months from the
Settlement Date for such Debt Security.
Currency:
The currency denomination with respect to any Certificated Debt Security and the payment of
interest and the repayment of principal with respect thereto shall be as set forth therein and in
the applicable Pricing Supplement.
Except as otherwise specified in the form of Certificated Debt Security, the minimum
denomination of any Certificated Debt Security will be U.S. $100,000,000 or any amount in excess
thereof that is an integral multiple of U.S. $1,000. (References in this paragraph to U.S. dollars
shall refer instead to any Specified Currency, as may be applicable.)
Interest:
General
: Interest on each Certificated Debt Security shall accrue from the Interest accrual
date. Each payment of interest on a Certificated Debt Security will include interest from and
including the Interest accrual date or the most recent date for which interest has been paid or
provided for, as the case may be, to but excluding the next succeeding Interest Payment Date or the
Maturity Date, as the case may be. Interest payable on any Interest Payment Date will be paid to
the Holder of Record as of the applicable Record Date, provided that interest, if any, payable at
the maturity or upon redemption of such Debt Security will be payable to the person to whom the
principal of such Debt Security is payable.
Fixed Rate Certificate Debt Securities
. Interest Payment Dates for Fixed Rate Debt Securities
will be as set forth in the applicable form of Certificated Debt Security.
Floating Rate Certificated Debt Securities
:
Interest Payment Dates for Floating Rate Certificated Debt Securities will be as set forth in
the form of Certificated Debt Security and in the applicable Pricing Supplement. Unless otherwise
set forth in such form of Certificated Debt Security and in the applicable Pricing Supplement,
interest on Floating Rate Certificated Debt Securities will be payable monthly, quarterly,
semi-annually, or annually and (a) in the case of Floating Rate Certificated Debt Securities with a
daily, weekly or monthly Interest Reset Date, on the third Wednesday of each month or on the third
Wednesday of each March, June, September, and December
S-III-14
during the term of such Debt Security, as specified pursuant to Settlement Procedure
A
below; (b) in the case of Floating Rate Certificated Debt Securities with a quarterly interest
Payment Reset Date, on the third Wednesday of each March, June, September, and December during the
term of such Debt Security; (c) in the case of Debt Securities with a semi-annual Interest Reset
Date, on the third Wednesday of the two months specified pursuant to Settlement Procedure
A
below; and (d) in the case of Floating Rate Certificated Debt Securities with an annual Interest
Reset Date, on the third Wednesday of the month specified pursuant to Settlement Procedure
A
below;
provided, however
, that if an Interest Payment Date (other than the Maturity Date or a
redemption date or a repayment date) for Floating Rate Certificated Debt Securities would otherwise
be a day that is not a New York Business Day, such Interest Payment Date will be the next
succeeding New York Business Day, except that in the case of a LIBOR-indexed Debt Security if such
succeeding New York Business Day is in the next succeeding calendar month, such Interest Payment
Date will be the immediately preceding New York Business Day.
Calculation of Interest:
Fixed Rate Certificated Debt Securities
. Unless otherwise set forth in the applicable form of
Certificated Debt Security and in the applicable Pricing Supplement, the amount of interest payable
on any Interest Payment Date for Fixed Rate Book-Entry Debt Securities shall be computed on the
basis of a 360-day year of twelve 30-day months and the amount of interest payable for any partial
period shall be computed on the basis of the actual number of days elapsed in a 360-day year of
twelve 30-day months.
Floating Rate Certificated Debt Securities
. Interest rates on Floating Rate Certificated Debt
Securities will be determined as set forth in the form of such Debt Securities and in the
applicable Pricing Supplement. Unless otherwise set forth in the applicable form of Debt Security
and in the applicable Pricing Supplement, interest on Floating Rate Certificated Debt Securities
will be calculated on the basis of actual days elapsed and a year of 360 days.
Payments of Principal and Interest:
The Bank of New York Mellon will pay the principal amount of each Certificated Debt Security
at maturity or upon redemption upon presentation and surrender of such Debt Security to The Bank of
New York Mellon. Such payment, together with payment of interest due at maturity or upon
redemption of such Debt Security, will be made in funds available for immediate use by The Bank of
New York Mellon and in turn by the holder of such Debt Security. Certificated Debt Securities
presented to The Bank of New York Mellon at maturity or upon redemption for payment will be
canceled by The Bank of New York Mellon and delivered to the Company with a certificate of
cancellation. All
S-III-15
interest payments on a Certificated U.S. dollar Debt Security (other than interest due at
maturity or upon redemption) will be made by U.S. dollar check drawn on The Bank of New York Mellon
(or another person appointed by The Bank of New York Mellon) and mailed by The Bank of New York
Mellon to the person entitled thereto as provided in such Debt Security and the Indenture;
provided, however
, that the holder of $10,000,000 or more of Certificated Debt Securities having
the same Interest Payment Date will be entitled to receive payment by wire transfer of immediately
available funds;
provided
, that such holder shall have given The Bank of New York Mellon notice of
the account to which such transfer shall be made at least 15 calendar days prior to the applicable
payment date. Following each Record Date during the period that the Registration Statement is in
effect, The Bank of New York Mellon will furnish the Company with a list of interest payments (to
the extent then ascertainable) to be made on the following Interest Payment Date for each then
outstanding Certificated Debt Security and in total for all such Certificated Debt Securities.
Interest at maturity or upon redemption will be payable to the person to whom the payment of
principal is payable. The Bank of New York Mellon will provide monthly to the Company lists of
principal and interest, to the extent ascertainable, to be paid on Certificated Debt Securities
maturing or to be redeemed in the next month. The Bank of New York Mellon will be responsible for
withholding taxes on interest paid on Certificated Debt Securities as required by applicable law.
If any Interest Payment Date or the Maturity Date or redemption date of a Fixed-Rate
Certificated Debt Security is not a New York Business Day, the payment due on such day shall be
made on the next succeeding New York Business Day and no interest shall accrue on such payment for
the period from and after such Interest Payment Date, Maturity Date or redemption date, as the case
may be. If the Maturity Date or any redemption date or repayment date for any Certificated
Floating Rate Debt Security would fall on a day that is not a New York Business Day, the payment of
principal and interest due on such day shall be made on the next succeeding New York Business Day
and no interest shall accrue on such payment for the period from and after the Maturity Date or
such redemption date or repayment date, as the case may be.
Preparation of Pricing Supplement:
If any order to purchase a Certificated Debt Security is accepted by or on behalf of the
Company, the Company will prepare an applicable Pricing Supplement to the Prospectus (as amended or
supplemented), reflecting the terms of such Debt Security. The Company will file such Pricing
Supplement with the Commission in accordance with the provisions of paragraph (b) or (c) of Rule
424 promulgated under the Securities Act and will deliver the number of copies of such Pricing
Supplement to each Bank as such Bank shall have requested by the close of business on the preceding
New York Business Day. The Banks will cause such Pricing Supplement to be delivered to the
purchaser of the Certificated
S-III-16
Debt Security in accordance with the applicable provisions of the Securities Act. In each
instance that a Pricing Supplement is prepared, the Banks will affix the Pricing Supplement to the
Prospectus (as amended or supplemented) prior to use of either such Pricing Supplement or the
Prospectus (as amended or supplemented). Outdated Pricing Supplements, and the copies of the
Prospectus to which they are attached (other than those retained for files), will be destroyed.
Settlement:
The receipt by the Company of immediately available funds in exchange for an authenticated
Certificated Debt Security delivered to the Banks and the Banks delivery of such Debt Security
against receipt of immediately available funds shall constitute
settlement
with respect thereto.
All orders accepted by the Company will be settled on or before the third New York Business Day
next succeeding the date of acceptance pursuant to the timetable for settlement set forth below,
unless the Company and the purchaser agree to settlement on another date.
Settlement Procedures:
Settlement Procedures with regard to each Certificated Debt Security sold by the Company to or
through the Banks shall be as follows:
A. The Banks will advise the Company by telephone that such Debt Security is a Certificated
Debt Security and of the following settlement information:
Order number.
Principal amount.
Maturity Date.
Name in which Certificated Debt Security is to be registered (the
Registered Owner
).
Address of the Registered Owner and address for payment of principal and interest.
Taxpayer identification number of the Registered Owner (if available).
In the case of a Fixed Rate Certificated Debt Security, the interest rate and whether such
Debt Security is an amortizing Debt Security, or in the case of a Floating Rate Certificated Debt
Security, the Initial Interest Rate (if known at such time), Base Rate, Index Maturity, Interest
Reset Periods, Interest Periods, Spread or Spread Multiplier (if any), Maximum and Minimum Interest
Rates (if
S-III-17
any), alternate rate event spread (if any), and the applicability of the Business Day
Convention.
Interest Payment Dates.
Record dates.
Redemption and/or repayment provisions, if any.
Trade date.
Settlement Date.
Issue Price.
Banks commission or discount, if any, determined as provided in the applicable Terms
Agreement.
Whether the Certificated Debt Security is an OID Debt Security and, if it is, the total amount
of OID, the yield to maturity, the initial accrual period OID, and the applicability of Modified
Payment upon Acceleration.
Net proceeds to Company.
Each Banks name and whether such Bank is acting as agent, underwriter, or as principal for
its own account.
Any other applicable terms.
B. The Company will advise The Bank of New York Mellon by telephone or electronic transmission
(confirmed in writing at any time on the same date) of the information set forth in Settlement
Procedure
A
above.
C. The Company will have delivered to The Bank of New York Mellon a pre-printed 4-ply packet
for such Certificated Debt Security, which packet will contain the following documents in forms
that have been approved by the Company, the Banks, and the Trustee: (a) Certificate with customer
confirmation, (b) Stub One (for The Bank of New York Mellon), (c) Stub Two (for the Banks), and (d)
Stub Three (for the Company).
The information set forth in Settlement Procedure
A
.
D. The Bank of New York Mellon will complete and authenticate such Certificated Debt Security
and deliver it (with the confirmation) and Stubs One and Two to the Banks, and the Banks will
acknowledge receipt of such Debt Security by stamping or otherwise marking Stub One and returning
it to The Bank
S-III-18
of New York Mellon. Such delivery will be made only against such acknowledgment of receipt and
evidence that instructions have been given by the Banks for payment to the account of the Company
at The Bank of New York Mellon, New York, New York, in funds available for immediate use, of an
amount equal to the price of such Debt Security less the Banks commission or discount, if any. In
the event that the instructions given by the Banks for payment to the account of the Company are
revoked, the Company will as promptly as possible wire transfer to the account of each Bank an
amount of immediately available funds equal to the amount of such payment made.
E. Unless such Bank purchased such Debt Security as principal for its own account, each Bank
will deliver such Debt Security (with the confirmation) to the customer against payment in
immediately available funds. The Banks will obtain the acknowledgment of receipt of such Debt
Security by retaining Stub Two.
F. The Bank of New York Mellon will send Stub Three to the Company by first-class mail.
Periodically during the period that the Registration Statement is in effect, The Bank of New York
Mellon will also send to the Company a statement setting forth the principal amount of the
Certificated Debt Securities then outstanding under the Indenture and setting forth a brief
description of any sales of which the Company has advised The Bank of New York Mellon but which
have not yet been settled.
Timetable: For sales by the Company of Certificated Debt Securities to or through the Banks,
Settlement Procedures
A
through
F
set forth above shall be completed as soon as possible but
not later than the respective times (New York City Time) set forth below:
|
|
|
|
|
|
|
Procedure A:
|
|
2:00 p.m. on day before Settlement Date
|
|
|
Procedure B:
|
|
2:15 p.m. on day before Settlement Date
|
|
|
Procedure C:
|
|
2:15 p.m. on day before Settlement Date
|
|
|
Procedure D:
|
|
2:15 p.m. on Settlement Date
|
|
|
Procedure E:
|
|
3:00 p.m. on Settlement Date
|
|
|
Procedure F:
|
|
5:00 p.m. on Settlement Date
|
Failure to Settle:
If a purchaser (other than a Bank acting as underwriter or as principal for its own account) fails
to accept delivery of and make payment for any Certificated Debt Security, the Banks will notify
the Company and The Bank of New York Mellon by telephone and will return such Debt Security to The
Bank of New York Mellon. Upon receipt of such notice, the Company will immediately wire transfer to
the account of such Bank an amount equal to the amount previously credited thereto in respect of
such Debt Security. Such wire transfer will be made on the
S-III-19
Settlement Date, if possible, and in any event not later than the New York Business Day following
such Settlement Date. If the failure shall have occurred for any reason other than a default by
any Bank of its obligations hereunder or under the Distribution Agreement or the applicable Terms
Agreement, then the Company will reimburse such Bank on an equitable basis, for its loss of the use
of the funds during the period when they were credited to the account of the Company. Immediately
upon receipt of the Certificated Debt Security in respect of which such failure occurred, The Bank
of New York Mellon will mark such Debt Security
canceled
, make appropriate entries in its
records, and send such Debt Security to the Company.
S-III-20
Exhibit A-1
FORM OF OPINION OF COMPANYS NEW YORK COUNSEL
1. The Indenture qualified under the Trust Indenture Act of 1939, as amended, upon the filing
of the Registration Statement with the Commission on October ___, 2008 pursuant to Rule 462(e) under
the Securities Act, and assuming due authorization, execution and delivery thereof by the Company,
the Indenture is a valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights
generally, concepts of reasonableness and equitable principles of general applicability,
provided
that counsel need not express any opinion as to (w) the enforceability of any waiver of rights
under any usury or stay law, (x) the applicability (and if applicable, the effect) of Section 548
of the United States Bankruptcy Code or any comparable provision of state law to the questions
addressed above or on the conclusions expressed with respect thereto, (y) the validity, legally
binding effect or enforceability of any provision of the Indenture or any related provision in the
Underwritten Securities that requires or relates to adjustments to the conversion price at a rate
or in an amount that a court would determine in the circumstances under applicable law to be
commercially unreasonable or a penalty or forfeiture or (z) the validity, legally binding effect or
enforceability of any provision that permits holders to collect any portion of stated principal
amount upon acceleration of the Underwritten Securities to the extent determined to constitute
unearned interest.
2. Assuming the due authorization, execution and delivery of each of the form of Warrant
Agreement included as Exhibit 4.7 to the Registration Statement (the
Debt Warrant Agreement
) and
the form of Unit Agreement included as Exhibit 4.8 to the Registration Statement (the
Unit
Agreement
) by the Company, each of the Debt Warrant Agreement and the Unit Agreement will be valid
and binding obligations of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors rights generally and
equitable principles of general applicability,
provided
that counsel need not express any opinion
as to (w) the enforceability of any waiver of rights under any usury or stay law, (x) the
applicability (and if applicable, the effect) of Section 548 of the United States Bankruptcy Code
or any comparable provision of state law to the questions addressed above or on the conclusions
expressed with respect thereto, (y) the validity, legally binding effect or enforceability of any
provision of the Indenture or any related provision in the Underwritten Securities that requires or
relates to adjustments to the conversion price at a rate or in an amount that a court would
determine in the circumstances under applicable law to be commercially unreasonable or a penalty or
forfeiture or (z) the validity, legally binding effect or enforceability of any provision that
permits holders to collect any portion of stated
A-1
principal amount upon acceleration of the Underwritten Securities to the extent determined to
constitute unearned interest.
3. Assuming the due authorization, execution and delivery of Debt Securities, Debt Warrants
and Units by the Company, the Debt Securities, Debt Warrants and Units will be valid and binding
obligations of the Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors rights generally and equitable
principles of general applicability,
provided
that counsel need not express any opinion as to (w)
the enforceability of any waiver of rights under any usury or stay law, (x) the applicability (and
if applicable, the effect) of Section 548 of the United States Bankruptcy Code or any comparable
provision of state law to the questions addressed above or on the conclusions expressed with
respect thereto, (y) the validity, legally binding effect or enforceability of any provision of the
Indenture or any related provision in the Underwritten Securities that requires or relates to
adjustments to the conversion price at a rate or in an amount that a court would determine in the
circumstances under applicable law to be commercially unreasonable or a penalty or forfeiture or
(z) the validity, legally binding effect or enforceability of any provision that permits holders to
collect any portion of stated principal amount upon acceleration of the Underwritten Securities to
the extent determined to constitute unearned interest.
4. No consent, approval, authorization, or order of, or qualification with, any state
governmental body or agency under the laws of the State of New York or any federal law of the
United States of America is required to be obtained or made by the Company for the execution and
delivery by the Company of the Distribution Agreement, the Indenture, the Debt Warrant Agreement,
the Unit Agreement, the Debt Securities, the Debt Warrants, or the Units (collectively, the
Documents
) is required for the execution, delivery and performance by the Company of its
obligations under the Documents, except such as may be required under federal or state securities
or Blue Sky laws as to which we express no opinion in this paragraph.
5. Any required filing of the Prospectus pursuant to Rule 424(b) under the Act has been made
in the manner and within the time period required by Rule 424(b); any required filing of the Issuer
Free Writing Prospectus pursuant to Rule 433 under the Act has been made in the manner and within
the time period required by Rule 433(d); and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or threatened by the Commission.
6. We have considered the statements relating to legal matters or documents included in the
Prospectus under the captions [
Description of Debt Securities
,] [
Description of Warrants
] [and]
[
Description of Units
]. In
A-2
my opinion, such statements fairly summarize in all material respects such matters or
documents.
In rendering the opinions in paragraphs ([1]) through ([4]) above, we have assumed that each
party to the Documents has been duly incorporated and is validly existing and in good standing
under the laws of the jurisdiction of its organization. In addition, we have assumed that the
execution, delivery and performance by each party thereto of each Document to which it is a party,
(i) are within its corporate powers, (ii) do not contravene, or constitute a default under, the
certificate of incorporation or by-laws or other constitutive documents of such party, (iii) other
than as expressly covered in paragraph ([4]) above in respect of the Company, require no action by
or in respect of, or filing with, any governmental body, agency or official and (iv) do not
contravene, or constitute a default under, any provision of applicable law or regulation or any
judgment, injunction, order or decree or any agreement or other instrument binding upon such party,
and that each Document is a valid, binding and enforceable agreement of each party thereto, other
than the Company.
Counsel need not express an opinion as to any law, rule or regulation that is applicable to
the Company, the Documents or such transactions solely because such law, rule or regulation is part
of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due
to the specific assets or business of such party or such affiliate. Insofar as the foregoing
opinion involves matters governed by the laws of the State of North Carolina, counsel may rely,
without independent investigation, on the opinion of North Carolina counsel to the Company
delivered to the Underwriters pursuant to the Terms Agreement.
A-3
Exhibit A-2
FORM OF DISCLOSURE LETTER OF COMPANYS NEW YORK COUNSEL
The primary purpose of our professional engagement was not to establish or confirm factual
matters or financial, accounting or quantitative information. Furthermore, many determinations
involved in the preparation of the Registration Statement, the Time of Sale Prospectus and the
Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the
scope of our opinion separately delivered to you today in respect of certain matters under the laws
of the State of New York and the federal laws of the United States of America. As a result, we are
not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information furnished in such documents (except to the extent expressly set
forth in our opinion letter separately delivered to you today as to statements included in the
Prospectus under the captions [
Description of Debt Securities
,] [
Description of Notes
,]
[
Description of Warrants
,] [and] [
Description of Units
] and
Material United States Federal Tax
Considerations
)). However, in the course of our acting as counsel to the Company in connection
with the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus,
we have generally reviewed and discussed with your representatives and your counsel and with
certain officers and employees of, and independent public accountants for, the Company the
information furnished, whether or not subject to our check and verification. We have also reviewed
and relied upon certain corporate records and documents, letters from counsel and accountants and
oral and written statements of officers and other representatives of the Company and others as to
the existence and consequence of certain factual and other matters.
On the basis of the information gained in the course of the performance of the services
rendered above, but without independent check or verification except as stated above:
(i) the Registration Statement and the Prospectus appear on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder; and
(ii) nothing has come to our attention that causes us to believe that, insofar as relevant to
the offering of the Underwritten Securities,:
A-4
(a) on the date of the Terms Agreement, the Registration Statement contained any
untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(b) at the Time of Sale, the Time of Sale Prospectus contained any untrue statement
of a material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, or
(c) the Prospectus as of the date of the Terms Agreement or as of the Closing Date
contained or contains any untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In providing this letter to you and the other several Underwriters, we have not been called to
pass upon, and we express no view regarding, the financial statements or financial schedules or
other financial or accounting data included in the Registration Statement, the Time of Sale
Prospectus, the Prospectus, or the Statement of Eligibility of the Trustee on Form T-1. In
addition, we express no view as to the conveyance of the Time of Sale Prospectus or the information
contained therein to investors.
A-5
Exhibit A-3
FORM OF OPINION OF COMPANYS INTERNAL COUNSEL
1. The execution and delivery of and performance by the Company of its obligations under the
Distribution Agreement, the Indenture, the Debt Warrant Agreement, the Unit Agreement, the Debt
Securities, the Debt Warrants and the Units will not contravene any provision of the Restated
Charter or By-Laws of the Company, or of any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its subsidiaries taken as a whole,
or, to counsels knowledge, of any judgment, order, or decree of any governmental body, agency, or
court having jurisdiction over the Company or any of its subsidiaries, in each of the foregoing
cases except as would be reasonably be expected to have a material adverse effect on the business,
financial condition or results of operations of the Company and its subsidiaries, taken as a whole.
2. To counsels knowledge, there is no legal or governmental proceeding pending or threatened
to which the Company or any of its significant subsidiaries is a party, or by which any of the
properties of the Company or its significant subsidiaries is bound, which would reasonably be
expected to have a material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole; and to counsels knowledge, there
is no agreement or other document that is required to be described in the Registration Statement,
the Prospectus, any applicable Pricing Supplement or Prospectus Supplement, or any Time of Sale
Prospectus, or that is required to be filed as an exhibit to the Registration Statement, that is
not so described or filed.
In rendering such opinion, counsel may rely, as to matters of fact (but not as to legal
conclusions), to the extent counsel deem proper, on certificates of responsible officers of the
Company and public officials. Such opinion will be limited to the laws of the State of New York and
the federal laws of the United States of America. Insofar as such opinion involves matters governed
by the laws of North Carolina, I may rely, without independent investigation, on the opinion of
North Carolina counsel for the Company.
A-6
Exhibit A-4
FORM OF OPINION OF COMPANYS NORTH CAROLINA COUNSEL
1. The Company is a corporation in existence under the laws of the State of North Carolina,
with corporate power to conduct its business as described in the Time of Sale Prospectus and the
Prospectus.
2. The Company has authorized by all necessary corporate action the execution and delivery of
the Distribution Agreement and the Indenture.
3. The Company has authorized by all necessary corporate action the execution and delivery of
each of the form of Warrant Agreement included as Exhibit 4.7 to the Registration Statement (the
Debt Warrant Agreement
) and the form of Unit Agreement included as Exhibit 4.8 to the
Registration Statement (the
Unit Agreement
).
4. The Company has authorized by all necessary corporate action the execution and delivery of
Debt Securities, Debt Warrants and Units.
5. The execution and delivery of and performance by the Company of its obligations under the
Distribution Agreement, the Indenture, the Debt Warrant Agreement, the Unit Agreement, the Debt
Securities, the Debt Warrants, or the Units (collectively, the Documents) do not violate any
provision of the articles of incorporation or by-laws of the Company.
6. No consent, approval, authorization, or order of or qualification with any North Carolina
governmental body or agency is required to be obtained or made by the Company for the execution,
delivery and performance by the Company of the Distribution Agreement or the issuance of the
Underwritten Securities, except as may be required by the Blue Sky or other securities laws if the
Underwritten Securities are offered or sold in North Carolina and except for consents, approvals,
authorizations, actions, filings and registrations which, if not obtained or made, are not
reasonably likely to have a material adverse effect on the business, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole.
A-7
EXHIBIT B
FORM OF BANKS COUNSEL OPINION
1. Each of the Debt Warrant Agreement and the Unit Agreement, when duly authorized, executed
and delivered by the Company (assuming the due authorization, valid execution and delivery thereof
by the other parties thereto) will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as such enforceability may be limited by
the laws of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, or similar
laws relating to creditors rights generally, by any other federal or state laws, by rights of
acceleration, if applicable, by general principles of equity.
2. The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended,
and has been duly authorized, executed and delivered by the Company and (assuming due
authorization, valid execution and delivery thereof by the Trustee) is a valid and binding
agreement of the Company, enforceable in accordance with its terms, except as such enforceability
may be limited by the laws of bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, or similar laws relating to creditors rights generally, by any other federal or state
laws, by rights of acceleration, if applicable, by general principles of equity.
3. The Securities have been duly authorized and when issued and delivered by the Company and
authenticated by the Trustee or the Warrant Agent or the Unit Agent, as the case may be, in
accordance with the provisions of the Indenture or the Debt Warrant Agreement or the Unit
Agreement, as the case may, and duly paid for by the purchasers thereof, will be entitled to the
benefits of the Indenture or the Debt Warrant Agreement or the Unit Agreement, as the case may be,
and will be valid and binding obligations of the Company, enforceable in accordance with their
respective terms, except as such enforceability may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or similar laws relating to
creditors rights generally, by any other federal or state laws, by rights of acceleration, if
applicable, by general principles of equity.
4. We have considered the statements relating to legal matters or documents included in the
Prospectus under the captions [
Description of Debt Securities
], [
Description of Warrants
],
[and] [
Description of Units
]. In our opinion, such statements fairly summarize in all material
respects such matters or documents.
5. The Registration Statement is effective under the Securities Act; any required filing of
the Prospectus pursuant to Rule 424(b) has been made in the
B-1
manner and within the time period required by Rule 424(b); and, to our knowledge, no stop
order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the Securities Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
6. We have not ourselves checked the accuracy, completeness or fairness of, or otherwise
verified, the information furnished with respect to matters in the Registration Statement, the Time
of Sale Prospectus or the Prospectus (except to the extent stated in paragraph 4 above). We have
generally reviewed and discussed with your representatives and with certain officers and employees
of, and counsel for, the Company, and with independent registered public accountants for the
Company, the information furnished, whether or not subject to our check and verification. On the
basis of such consideration, review and discussion, but without independent check or verification
except as stated above, (i) in our opinion, the Registration Statement and the Prospectus appear on
their face to be appropriately responsive in all material respects to the requirements of the Act
and the applicable rules and regulations of the Commission thereunder, and (ii) nothing has come to
our attention that causes us to believe that, insofar as relevant to the offering of the
Securities, (a) the Registration Statement at the time such Registration Statement became effective
contained an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (b) the Time of Sale
Prospectus, as of the Time of Sale, contained an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or (c) the Prospectus, as of its date or as of the date
hereof, contained or contains any untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In expressing the foregoing opinion and
belief, we have not been called to pass upon, and we express no opinion or belief as to, the
financial statements or financial schedules or other financial or statistical data included in the
Registration Statement, the Time of Sale Prospectus or the Prospectus or the Statement of
Eligibility of the Trustee on Form T-1.
The opinions and belief expressed in paragraph (3) above (except as to due authorization of
the Securities), in paragraph (4) above as to the statements in the Prospectus under the captions
[
Description of Debt Securities
], [
Description of Debt Warrants
] [and] [
Description of Units
]
and in paragraph (6) above do not, in any case, address any provision of the Commodity Exchange
Act, as amended, or the rules, regulations, or interpretations of the Commodity Futures Trading
Commission, as may be applicable to any Debt Securities whose principal and/or interest payments
will be determined by reference to one or more currency exchange rates, commodity prices, equity
indices, or other variable
B-2
factors, or as may be applicable to any Debt Warrants or Units relating to any such Debt
Securities.
B-3
EXHIBIT C
FORM OF ASSISTANT SECRETARYS CERTIFICATE
I,
, the duly qualified, elected, and acting Assistant Secretary of PepsiCo, Inc., a
company organized under the laws of the State of North Carolina (the
Company
), hereby certify as
follows:
1. Attached hereto as Exhibit A is a true and complete copy of the Restated Articles of
Incorporation of the Company, certified as of
by the Secretary of State of the
State of North Carolina. No further amendments or supplements to the Restated Articles of
Incorporation have been proposed to or approved by the Board of Directors or shareholders of the
Company.
2. Attached hereto as Exhibit B is a true, correct, and complete copy of the By-Laws of the
Company. Such By-Laws have been in effect at all times since
.
3. Attached hereto as Exhibits C-1 and C-2 are copies of resolutions duly adopted by the Board
of Directors of the Company on
-___ relating to the issuance of short-term and
long-term debt securities, which resolutions are in full force and effect as of the date hereof.
4. The documents described below have been duly authorized, executed (except as otherwise
indicated below), and filed by the Company with the Securities and Exchange Commission:
(a) the Registration Statement on Form S-3, File No. 333-
, filed by the
Company on [Date] (the
Registration Statement
), relating to the Companys securities, a copy of
which is attached hereto as Exhibit D;
(b) the Indenture, dated as of May 21, 2007, between the Company and The Bank of New York, as
trustee, which is incorporated by reference from Exhibit 4.3 to PepsiCos Registration Statement on
Form S-3 (File No. 333-
);
(c) the form of Debt Warrant Agreement or Unit Agreement that may be entered into by the
Company and The Bank of New York Mellon, as trustee, warrant agent or unit agent, as the case may
be, a copy of which is incorporated by reference from Exhibit 4.7 or 4.8 to PepsiCos Registration
Statement on Form S-3 (File No. 333-
); and
(d) the form of Distribution Agreement that may be entered into by the Company and one or more
agents and underwriters in connection with the offer
C-1
and sale of the Debt Securities, Warrants and Units, a copy of which is attached as Exhibit
1.2 to the Registration Statement.
5. The Debt Securities may be issued from time to time, in substantially the forms attached
hereto as Exhibit E (with respect to Fixed Rate Debt Securities) and Exhibit F (with respect to
Floating Rate Debt Securities), on such terms as shall be determined by any two of the following
officers of the Company: (i) the Chairman of the Board and Chief Executive Officer (the
Chairman
), (ii) Chief Financial Officer (the
Executive Vice President
), (iii) the Senior Vice
President and Treasurer (the
Treasurer
), and (iv) such other officer of the Company as may be
designated by the Chairman, the Executive Vice President, or the Treasurer pursuant to the
Delegation of Authority attached hereto as Exhibit G (any two of the Chairman, the Executive Vice
President, the Treasurer, and such other officer hereinafter referred to as the
Authorized
Persons
), provided, that such terms will in no event violate or conflict with the terms and
provisions set forth in the Indenture or the Prospectus or (to the extent that the terms of an
applicable Pricing Supplement supersede the terms and provisions of the Prospectus) the applicable
Pricing Supplement.
6. The Debt Warrants and Units may be issued from time to time, alone or together with one or
more series of Debt Securities, in substantially the form attached hereto as Exhibit H and I,
respectively, on such terms as shall be determined by any two Authorized Persons, provided that
such terms will in no event violate or conflict with the terms and provisions of the Debt Warrant
Agreement or the Unit Agreement, as the case may be, or the Prospectus or (to the extent that the
terms of an applicable Prospectus Supplement supersede the terms and provisions of the Prospectus)
the applicable Prospectus Supplement.
7. The persons named below are duly qualified, elected, and acting officers of the Company,
have been duly elected or appointed to the offices set forth opposite their respective names, have
held such offices at all times since
, and hold such offices as of the date hereof. The
signatures set forth below opposite the names of such persons are the genuine signatures of such
persons.
C-2
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Company as of the
day of
, 20
.
C-3
I,
, a Vice President of the Company, hereby certify that
is the
duly qualified, elected, and acting Assistant Secretary of the Company, has been duly elected or
appointed to such office, has held such office at all times since
, holds such office as of
the date hereof, and that the signature set forth below is his genuine signature.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
day of
, 20
.
C-4
EXHIBIT D
FORM OF OFFICERS CERTIFICATE
, Chief Financial Officer, and
, Senior Vice President or
Treasurer, of PepsiCo, Inc., a corporation organized under the laws of the State of North Carolina
(the
Company
), each hereby certifies as follows:
1. I have examined the Companys Registration Statement on Form S-3, File No.
333-
(the
Registration Statement
), as filed by the Company with the Securities
and Exchange Commission (the
Commission
) on October___, 2008, including all of the documents filed
as exhibits thereto. Capitalized terms used herein and not otherwise defined have the meanings
ascribed to such terms by the prospectus filed as part of the Registration Statement (such
prospectus hereinafter the
Prospectus
).
2. To my knowledge, no proceedings for the merger, consolidation, liquidation, or dissolution
of the Company or the sale of all or substantially all of its assets are pending or contemplated.
3. To my knowledge, the Registration Statement as supplemented by the Time of Sale Prospectus
(i) contains no untrue statement of a material fact regarding the Company or any of its
consolidated subsidiaries and (ii) does not omit to state any material fact necessary to make any
such statement, in the light of the circumstances under which it was made, not misleading.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
of
, 20
.
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
|
|
|
|
Name:
|
|
|
Title:
|
D-1
Exhibit 4.3
PEPSICO, INC.
and
THE BANK OF NEW YORK, as Trustee
Indenture
Dated as of May 21, 2007
Providing for Issuance of Debt Securities
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE 1
|
|
|
|
|
Definitions and Other Provisions of General Application
|
|
|
|
|
|
|
|
|
|
Section 1.01
. Definitions
|
|
|
1
|
|
Section 1.02
. Officers Certificates and Opinions
|
|
|
9
|
|
Section 1.03
. Form of Documents Delivered to Trustee
|
|
|
9
|
|
Section 1.04
. Acts of Securityholders
|
|
|
10
|
|
Section 1.05
. Notices, etc., to Trustee and Company
|
|
|
11
|
|
Section 1.06
. Notice To Securityholders; Waiver
|
|
|
12
|
|
Section 1.07
. Conflict with Trust Indenture Act
|
|
|
12
|
|
Section 1.08
. Effect of Headings and Table of Contents
|
|
|
12
|
|
Section 1.09
. Successors and Assigns
|
|
|
12
|
|
Section 1.10
. Separability Clause
|
|
|
12
|
|
Section 1.11
. Benefits Of Indenture
|
|
|
12
|
|
Section 1.12
. Governing Law
|
|
|
13
|
|
Section 1.13
. Counterparts
|
|
|
13
|
|
Section 1.14
. Judgment Currency
|
|
|
13
|
|
Section 1.15
. Legal Holidays
|
|
|
13
|
|
|
|
|
|
|
ARTICLE 2
|
|
|
|
|
Security Forms
|
|
|
|
|
|
|
|
|
|
Section 2.01
. Forms Generally
|
|
|
14
|
|
Section 2.02
. Forms of Securities
|
|
|
14
|
|
Section 2.03
. Securities in Global Form
|
|
|
14
|
|
Section 2.04
. Form of Trustees Certificate of Authentication
|
|
|
15
|
|
|
|
|
|
|
ARTICLE 3
|
|
|
|
|
The Securities
|
|
|
|
|
|
|
|
|
|
Section 3.01
. General Title; General Limitations; Issuable in Series;
Terms of Particular Series
|
|
|
15
|
|
Section 3.02
. Denominations and Currency
|
|
|
19
|
|
Section 3.03
. Execution, Authentication and Delivery, and Dating
|
|
|
19
|
|
Section 3.04
. Temporary Securities
|
|
|
21
|
|
Section 3.05
. Registration, Transfer and Exchange
|
|
|
22
|
|
Section 3.06
. Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
25
|
|
Section 3.07
. Payment of Interest; Interest Rights Preserved
|
|
|
26
|
|
Section 3.08
. Persons Deemed Owners
|
|
|
27
|
|
Section 3.09
. Cancellation
|
|
|
27
|
|
Section 3.10
. Computation of Interest
|
|
|
28
|
|
i
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
ARTICLE 4
|
|
|
|
|
Satisfaction and Discharge
|
|
|
|
|
|
|
|
|
|
Section 4.01
. Satisfaction and Discharge of Indenture
|
|
|
28
|
|
Section 4.02.
Discharge and Defeasancec
|
|
|
29
|
|
Section 4.03
. Covenant Defeasance
|
|
|
30
|
|
Section 4.04.
Conditions To Defeasance Or Covenant Defeasance
|
|
|
31
|
|
Section 4.05
. Application of Trust Money; Excess Funds
|
|
|
32
|
|
Section 4.06
. Paying Agent to Repay Moneys Held
|
|
|
33
|
|
Section 4.07
. Return of Unclaimed Amounts
|
|
|
33
|
|
|
|
|
|
|
ARTICLE 5
|
|
|
|
|
Remedies
|
|
|
|
|
|
|
|
|
|
Section 5.01
. Events of Default
|
|
|
34
|
|
Section 5.02
. Acceleration of Maturity; Rescission, and Annulment
|
|
|
35
|
|
Section 5.03.
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
36
|
|
Section 5.04
. Trustee May File Proofs of Claim
|
|
|
37
|
|
Section 5.05
. Trustee May Enforce Claims Without Possession of Securities
|
|
|
38
|
|
Section 5.06
. Application of Money Collected
|
|
|
38
|
|
Section 5.07
. Limitation on Suits
|
|
|
38
|
|
Section 5.08
. Unconditional Right of Securityholders to Receive Principal, Premium, and Interest
|
|
|
39
|
|
Section 5.09
. Restoration of Rights and Remedies
|
|
|
39
|
|
Section 5.10
. Rights and Remedies Cumulative
|
|
|
40
|
|
Section 5.11
. Delay or Omission Not Waiver
|
|
|
40
|
|
Section 5.12
. Control by Securityholders
|
|
|
40
|
|
Section 5.13
. Waiver of Past Defaults
|
|
|
40
|
|
Section 5.14
. Undertaking for Costs
|
|
|
41
|
|
Section 5.15
. Waiver of Stay or Extension Laws
|
|
|
41
|
|
|
|
|
|
|
ARTICLE 6
|
|
|
|
|
The Trustee
|
|
|
|
|
|
|
|
|
|
Section 6.01
. Certain Duties and Responsibilities of Trustee
|
|
|
41
|
|
Section 6.02
. Notice of Defaults
|
|
|
43
|
|
Section 6.03
. Certain Rights of Trustee
|
|
|
43
|
|
Section 6.04
. Not Responsible for Recitals or Issuance of Securities
|
|
|
44
|
|
Section 6.05
. May Hold Securities
|
|
|
44
|
|
Section 6.06
. Money Held in Trust
|
|
|
44
|
|
Section 6.07.
Compensation and Reimbursement
|
|
|
44
|
|
Section 6.08
. Disqualification; Conflicting Interests
|
|
|
45
|
|
Section 6.09
. Corporate Trustee Required; Eligibility
|
|
|
46
|
|
Section 6.10
. Resignation and Removal; Appointment of Successor
|
|
|
46
|
|
Section 6.11
. Acceptance of Appointment by Successor
|
|
|
48
|
|
Section 6.12
. Merger, Conversion, Consolidation or Succession to Business
|
|
|
49
|
|
ii
|
|
|
|
|
|
|
Page
|
|
Section 6.13
. Preferential Collection of Claims Against Company
|
|
|
49
|
|
Section 6.14
. Appointment of Authenticating Agent
|
|
|
49
|
|
|
|
|
|
|
ARTICLE 7
|
|
|
|
|
Securityholders Lists and Reports by Trustee and Company
|
|
|
|
|
|
|
|
|
|
Section 7.01.
Company to Furnish Trustee Names and Addresses of Securityholders
|
|
|
51
|
|
Section 7.02
. Preservation of Information; Communications to Securityholders
|
|
|
51
|
|
Section 7.03
. Reports by Trustee
|
|
|
53
|
|
Section 7.04.
Reports by Company
|
|
|
53
|
|
|
|
|
|
|
ARTICLE 8
|
|
|
|
|
Consolidation, Merger, Conveyance or Transfer
|
|
|
|
|
|
|
|
|
|
Section 8.01
. Company May Consolidate, etc., Only on Certain Terms
|
|
|
54
|
|
Section 8.02
. Successor Corporation Substituted
|
|
|
54
|
|
|
|
|
|
|
ARTICLE 9
|
|
|
|
|
Supplemental Indentures
|
|
|
|
|
|
|
|
|
|
Section 9.01
. Supplemental Indentures Without Consent of Securityholders
|
|
|
55
|
|
Section 9.02
. Supplemental Indentures With Consent of Securityholders
|
|
|
56
|
|
Section 9.03
. Execution of Supplemental Indentures
|
|
|
57
|
|
Section 9.04
. Effect of Supplemental Indentures
|
|
|
58
|
|
Section 9.05
. Conformity With Trust Indenture Act
|
|
|
58
|
|
Section 9.06
. Reference in Securities to Supplemental Indentures
|
|
|
58
|
|
|
|
|
|
|
ARTICLE 10
|
|
|
|
|
Covenants
|
|
|
|
|
|
|
|
|
|
Section 10.01
. Payment of Principal, Premium and Interest
|
|
|
58
|
|
Section 10.02
. Maintenance of Office or Agency
|
|
|
58
|
|
Section 10.03
. Money or Security Payments to Be Held in Trust
|
|
|
59
|
|
Section 10.04
. Certificate to Trustee
|
|
|
60
|
|
Section 10.05
. Corporate Existence
|
|
|
60
|
|
Section 10.06
. Limitation on Secured Debt
|
|
|
60
|
|
Section 10.07
. Waiver of Certain Covenants
|
|
|
61
|
|
|
|
|
|
|
ARTICLE 11
|
|
|
|
|
Redemption of Securities
|
|
|
|
|
|
|
|
|
|
Section 11.01
. Applicability of Article
|
|
|
61
|
|
Section 11.02
. Election to Redeem; Notice to Trustee
|
|
|
62
|
|
Section 11.03
. Selection by Trustee of Securities to be Redeemed
|
|
|
62
|
|
Section 11.04
. Notice of Redemption
|
|
|
62
|
|
iii
|
|
|
|
|
|
|
Page
|
|
Section 11.05
. Deposit of Redemption Price
|
|
|
63
|
|
Section 11.06
. Securities Payable on Redemption Date
|
|
|
63
|
|
Section 11.07
. Securities Redeemed in Part
|
|
|
64
|
|
Section 11.08
. Provisions with Respect to any Sinking Funds
|
|
|
64
|
|
|
|
|
|
|
ARTICLE 12
|
|
|
|
|
Repayment at Option of Holders
|
|
|
|
|
|
|
|
|
|
Section 12.01
. Applicability of Article
|
|
|
66
|
|
Section 12.02
. Repayment of Securities
|
|
|
66
|
|
Section 12.03
. Exercise of Option
|
|
|
66
|
|
Section 12.04
. When Securities Presented for Repayment Become Due and Payable
|
|
|
67
|
|
Section 12.05
. Securities Repaid in Part
|
|
|
67
|
|
|
|
|
|
|
ARTICLE 13
|
|
|
|
|
Subordination Of Subordinated Securities
|
|
|
|
|
|
|
|
|
|
Section 13.01
. Agreement To Subordinate
|
|
|
67
|
|
Section 13.02
. Payment On Dissolution, Liquidation Or Reorganization; Default On Senior Indebtedness
|
|
|
67
|
|
Section 13.03
. Payment Prior To Dissolution Or Default
|
|
|
70
|
|
Section 13.04
. Securityholders Authorize Trustee To Effectuate Subordination of Securities
|
|
|
71
|
|
Section 13.05
. Right Of Trustee To Hold Senior Indebtedness
|
|
|
71
|
|
Section 13.06
. Article 13 Not To Prevent Events Of Default
|
|
|
71
|
|
Section 13.07
. No Fiduciary Duty Of Trustee To Holders Of Senior Indebtedness
|
|
|
71
|
|
iv
THIS INDENTURE, between PepsiCo, Inc., a North Carolina corporation (hereinafter called the
Company
) having its principal office at 700 Anderson Hill Road, Purchase, N.Y. 10577, and The
Bank of New York, a New York banking corporation, as trustee (hereinafter called the
Trustee
), is
made and entered into as of this 21st day of May, 2007.
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of its unsecured debentures, notes, bonds, and other evidences of indebtedness, to be
issued in one or more fully registered series.
All things necessary to make this Indenture a valid agreement of the Company, 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
Securities (as hereinafter defined) are and are to be authenticated, issued, and delivered, and in
consideration of the premises thereof, and the purchase of Securities 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 Securities or of any series thereof,
as the case may be:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01
. Definitions.
For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;
(b) 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;
(c) 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
1
hereunder shall mean such accounting principles as are generally accepted in the United States
of America at the date of such computation; and
(d) 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 Securityholder (as hereinafter defined), has the meaning
specified in Section 1.04.
Affiliate
of any specified Person (as hereinafter defined) means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition, control when used with respect to any
specified Person means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract, or otherwise; and the
terms controlling and controlled have meanings correlative to the foregoing.
Authenticating Agent
means any Person authorized by the Trustee to authenticate Securities
of one or more series under Section 6.14.
Authentication Order
has the meaning specified in Section 3.03.
Board of Directors
means (i) the board of directors of the Company, (ii) any duly authorized
committee of that board, or (iii) any officer, director, or authorized representative of the
Company, in each case duly authorized by such Board to act hereunder.
Board Resolution
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company 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.
Chairman
means the Companys Chairman of the Board and Chief Executive Officer.
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.
2
Company
means PepsiCo, Inc., unless and until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
Company
shall mean such
successor corporation.
Company Request
,
Company Order
, and
Company Consent
mean, respectively, a written
request, order, or consent signed in the name of the Company by its Chairman, Vice Chairman, Chief
Financial Officer, Senior Vice President, or any Vice President (as hereinafter defined), or by any
other officer or officers of the Company pursuant to an applicable Board Resolution, and delivered
to the Trustee.
Consolidated Net Tangible Assets
means the total amount of assets (less applicable
depreciation, amortization, and other valuation reserves) of the Company and its Restricted
Subsidiaries, after deducting therefrom (i) all current liabilities of the Company and its
Restricted Subsidiaries (excluding any such liabilities that are intercompany items) and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the latest consolidated balance sheet of the Company and its
Restricted Subsidiaries prepared in accordance with generally accepted accounting principles.
Corporate Trust Office
means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 101 Barclay Street, 8W, New York, New York 10286.
corporation
means a corporation, association, company, joint-stock company, limited
liability company or business trust.
Covenant Defeasance
has the meaning specified in Section 4.03.
Debt
has the meaning specified in Section 10.06.
Defaulted Interest
has the meaning specified in Section 3.07.
Defeasance
has the meaning specified in Section 4.02.
Depositary
means with respect to the Securities of any series issuable or issued in whole or
in part in global form, the Person designated as Depositary by the Company pursuant to Section
3.01, unless and until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter
Depositary
shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than one such Person,
Depositary
as
used with respect to the Securities of any such series shall mean the
Depositary
with respect to
the Securities of that series.
3
Equivalent Government Securities
means, in relation to Securities denominated in a currency
other than U.S. dollars, securities of the government that issued the currency in which such
Securities are denominated or securities of government agencies backed by the full faith and credit
of such government.
Event of Default
has the meaning specified in Article 5.
Holder
,
Securityholder
and
Holder of Securities
means a Person in whose name a Security
is registered in the Security Register (as hereinafter defined).
Indenture
or
this Indenture
means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the terms of any particular series
of Securities established as contemplated by Section 3.01.
Interest Payment Date
, when used with respect to any series of Securities, means any date on
which an installment of interest on those Securities is scheduled to be paid.
Maturity
, when used with respect to any Security, means the date on which the principal
amount outstanding under such Security or an installment of principal amount outstanding under such
Security becomes due and payable, as therein or herein provided, whether on the Scheduled Maturity
Date (as hereinafter defined), by declaration of acceleration, call for redemption, or otherwise.
Mortgage
is defined in Section 10.06.
New York Business Day
means (except, with respect to any particular series of Securities, as
may be otherwise provided in the form of such Securities) any day other than a Saturday or Sunday
that is neither a legal holiday nor a day on which banking institutions are authorized or required
by law, regulation, or executive order to be closed.
Officers Certificate
means a certificate signed by any two of the Chairman, Vice Chairman,
Chief Financial Officer, Senior Vice President, any Vice President, the Treasurer, and any
Assistant Treasurer of the Company, or by any other officer or officers of the Company pursuant to
an applicable Board Resolution, and delivered to the Trustee.
Opinion of Counsel
means a written opinion of counsel to the Company, which counsel may be
an employee of the Company or other counsel who shall be reasonably acceptable to the Trustee.
4
Original Issue Discount Security
means any Security which is initially sold at a discount
from the principal amount thereof and the terms of which provide that upon redemption or
acceleration of the Maturity thereof, an amount less than the principal amount thereof would become
due and payable.
Outstanding
, when used with respect to any particular Securities or to the Securities of any
particular series means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered by the Company to the
Trustee for cancellation;
(ii) such Securities, 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 Company, or, if the Company shall act as its own Paying
Agent, has been set aside and segregated in trust by the Company; provided, in any case, that if
such Securities are to be redeemed prior to their Scheduled Maturity Date, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, or which shall have been paid, in each
case, pursuant to the terms of Section 3.06 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a Person in whose
hands such Security is a legal, valid, and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount of such Securities Outstanding
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of any Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof. In determining whether
the Holders of the requisite principal amount of such Securities Outstanding have given a direction
concerning the time, method, and place of conducting any proceeding for any remedy available to the
Trustee, or concerning the exercise of any trust or power conferred upon the Trustee under this
Indenture, or concerning a consent on behalf of the Holders of any series of Securities to the
waiver of any past default and its consequences, Securities owned by the Company, any other obligor
upon the Securities, or any Affiliate of the Company 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 such request, demand, authorization, direction, notice, consent, or waiver, only Securities
which a Responsible Officer assigned to the corporate trust department of the Trustee knows to be
owned by the Company or any other
5
obligor upon the Securities or any Affiliate of the Company or such other obligor shall be so
disregarded. Securities 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 pledgees right to
act as owner with respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other obligor.
Paying Agent
means, with respect to any Securities, any Person appointed by the Company to
distribute amounts payable by the Company on such Securities. If at any time there shall be more
than one such Person, Paying Agent as used with respect to the Securities of any particular
series shall mean the Paying Agent with respect to Securities of that series. As of the date of
this Indenture, the Company has appointed The Bank of New York as Paying Agent with respect to all
Securities issuable hereunder.
Person
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, or government, or any agency or political
subdivision thereof.
Place of Payment
means with respect to any series of Securities issued hereunder the city or
political subdivision so designated with respect to the series of Securities in question in
accordance with the provisions of Section 3.01.
Predecessor Securities
of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 3.06 in lieu of
a lost, destroyed, mutilated, or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed, mutilated, or stolen Security.
Principal Property
means any single manufacturing or processing plant, office building, or
warehouse owned or leased by the Company or a Restricted Subsidiary other than a plant, warehouse,
office building, or portion thereof which, in the opinion of the Companys Board of Directors, is
not of material importance to the business conducted by the Company and its Restricted Subsidiaries
as an entirety.
Record Date
means any date as of which the Holder of a Security 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.
Redemption Date
, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
6
Redemption Price
, when used with respect to any Security to be redeemed, means the price
specified in the Security at which it is to be redeemed pursuant to this Indenture.
Repayment Date
, when used with respect to any Security to be repaid, means the date fixed
for such repayment pursuant to such Security.
Repayment Price
, when used with respect to any Security to be repaid, means the price at
which it is to be repaid pursuant to such Security.
Responsible Officer
, when used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office, having direct responsibility for the administration of this
Indenture, and also, with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of such officers knowledge of and familiarity with the particular
subject.
Restricted Subsidiary
means at any time any Subsidiary of the Company except a Subsidiary
which is at the time an Unrestricted Subsidiary.
Scheduled Maturity Date
, when used with respect to any Security, means the date specified in
such Security as the date on which all outstanding principal and interest will be due and payable.
Security
or
Securities
means any note or notes, bond or bonds, debenture or debentures, or
any other evidences of indebtedness, as the case may be, of any series authenticated and delivered
from time to time under this Indenture.
Security Register
shall have the meaning specified in Section 3.05.
Security Registrar
means the Person who maintains the Security Register, which Person shall
be the Trustee unless and until a successor Security Registrar is appointed by the Company.
Senior Indebtedness
means all obligations or indebtedness of, or guaranteed or assumed by,
the Company, whether or not represented by bonds, debentures notes or similar instruments, for
borrowed money, and any amendments, renewals, extensions, modifications and refundings of any such
obligations or indebtedness, unless in the instrument creating or evidencing any such indebtedness
or obligations or pursuant to which the same is outstanding it is specifically stated, at or prior
to the time the Company becomes liable in respect thereof, that any such obligation or indebtedness
or such amendment, renewal, extension, modification and refunding thereof is not Senior
Indebtedness.
Special Record Date
for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.
Specified Currency
has the meaning specified in Section 3.01.
7
Subordinated Security
means any security issued under this Indenture which is designated as
a Subordinated Security.
Subsidiary
of any specified corporation means any entity at least a majority of whose
outstanding Voting Stock shall at the time be owned, directly or indirectly, by the specified
corporation or by one or more of its Subsidiaries, or both.
Trust Indenture Act
or
TIA
means the Trust Indenture Act of 1939, as in force as of the
date hereof, except as provided in Section 9.05.
Trustee
means the party named as such above until a successor becomes such pursuant to this
Indenture and thereafter means or includes each party who is then a trustee hereunder, and if at
any time there is more than one such party, Trustee as used with respect to the Securities of any
series means the Trustee with respect to Securities of that series. If Trustees with respect to
different series of Securities are trustees under this Indenture, nothing herein shall constitute
the Trustees co-trustees of the same trust, and each Trustee shall be the trustee of a trust
separate and apart from any trust administered by any other Trustee with respect to a different
series of Securities.
Unrestricted Subsidiary
means any Subsidiary of the Company (not at the time designated a
Restricted Subsidiary) (i) the major part of whose business consists of finance, banking, credit,
leasing, insurance, financial services, or other similar operations, or any combination thereof,
(ii) substantially all the assets of which consist of the capital stock of one or more such
Subsidiaries, or (iii) designated as such by the Companys Board of Directors;
provided
that such
designation will not constitute a violation of the terms of the Securities. Any Subsidiary
designated as a Restricted Subsidiary may be designated as an Unrestricted Subsidiary unless such
designation will constitute a violation of the terms of the Securities.
U.S. Government Obligations
means (i) securities that are direct obligations of the United
States of America, the payment of which is unconditionally guaranteed by the full faith and credit
of the United States of America and (ii) securities that are obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed by the full faith and credit of the United States of
America, and also includes depository receipts issued by a bank or trust company as custodian with
respect to any of the securities described in the preceding clauses (i) and (ii), and any payment
of interest or principal payable under any of the securities described in the preceding clauses (i)
and (ii) that is held by such custodian for the account of the holder of a depository receipt,
provided
that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt, or from any amount received by
the custodian in respect of
8
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 Company 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
, as applied to the stock of any corporation, means stock of any class or
classes (however designated), the outstanding shares of which have, by the terms thereof, ordinary
voting power to elect a majority of the members of the board of directors (or other governing body)
of such corporation, other than stock having such power only by reason of the happening of a
contingency.
Section 1.02
. 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 (except for the Officers Certificate required by
Section 10.04) shall include the following:
(a) 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 herein relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
Section 1.03
. Form of Documents Delivered to Trustee.
In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to the other matters,
and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company 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
9
certificate, opinion, or representation is erroneous. Any opinion of counsel for the Company
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 Company, 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 1.04
. Acts of Securityholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver, or other action provided by this Indenture to be given or taken by
Securityholders may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders 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 Company. If any Securities are denominated in coin or currency
other than that of the United States, then for the purposes of determining whether the Holders of
the requisite principal amount of Securities have taken any action as herein described, the
principal amount of such Securities shall be deemed to be that amount of United States dollars that
could be obtained for such principal amount on the basis of the spot rate of exchange into United
States dollars for the currency in which such Securities are denominated (as evidenced to the
Trustee by a certificate provided by a financial institution, selected by the Company, that
maintains an active trade in the currency in question, acting as conversion agent) as of the date
the taking of such action by the Holders of such requisite principal amount is evidenced to the
Trustee as provided in the immediately preceding sentence. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the
Act
of the
Securityholders 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 6.01) conclusive in favor of the Trustee and the Company, 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.
10
(c) The ownership of Securities shall for all purposes be determined by reference to the
Security Register, as such register shall exist as of the applicable date.
(d) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company 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 Company
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
Securities Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the
Securities 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 Security shall bind each subsequent Holder of such Security, and each Holder of
any Security issued upon the registration of 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 Company in
reliance upon such action, whether or not notation of such action is made upon such Security.
Section 1.05
. Notices, etc., to Trustee and Company.
Any request, order, authorization,
direction, consent, waiver, or other action to be taken by the Trustee, the Company, or the
Securityholders hereunder (including any Authentication Order), and any notice to be given to the
Trustee or the Company with respect to any action taken or to be taken by the Trustee, the Company,
or the Securityholders hereunder, shall be sufficient if made in writing and
(a) (if to be furnished or delivered to or filed with the Trustee by the Company or any
Securityholder) delivered to the Trustee at its Corporate Trust Office, Attention: Corporate
Finance, or
(b) (if to be furnished or delivered to the Company by the Trustee or any Securityholder, and
except as otherwise provided in Section 5.01(d) and, in the case of a request for repayment, except
as specified in the Security carrying the right to repayment) mailed to the Company, first-class
postage prepaid, at its principal office (as specified in the first paragraph of this instrument),
Attention: Treasurer, or at any other address hereafter furnished in writing by the Company to the
Trustee.
11
Section 1.06
. Notice To Securityholders; Waiver.
Where this Indenture or any Security
provides for notice to Securityholders of any event, such notice shall be sufficiently given
(unless otherwise expressly provided herein or in such Security) if in writing and mailed,
first-class postage prepaid, to each Securityholder affected by such event, at his or her address
as it appears in the Security Register as of the applicable Record Date, not later than the latest
date or earlier than the earliest date prescribed by this Indenture or such Security for the giving
of such notice. In any case where notice to Securityholders is given by mail, neither the failure
to mail such notice nor any defect in any notice so mailed to any particular Securityholder shall
affect the sufficiency of such notice with respect to other Securityholders. Where this Indenture
or any Security 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 Securityholders 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 Securityholder
when such notice is required to be given pursuant to any provision of this Indenture or the
applicable Security, then any method of notification as shall be satisfactory to the Trustee and
the Company shall be deemed to be sufficient for the giving of such notice.
Section 1.07
. 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, such required provision shall control.
Section 1.08
. 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 1.09
. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10
. Separability Clause.
In case any provision in this Indenture or in the
Securities 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 1.11
. Benefits Of Indenture.
Nothing in this Indenture or in any Securities, express
or implied, shall give to any Person, other than the parties hereto, their successors hereunder,
the Authenticating Agent, the Security Registrar, any Paying Agent, and the Holders of Securities
(or such of them as
12
may be affected thereby), any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 1.12
. Governing Law.
This Indenture shall be governed by and construed in accordance
with the laws of the State of New York.
Section 1.13
. 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 1.14
. Judgment Currency.
The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court with respect to the Securities of any series it is necessary to convert the sum due in
respect of the principal, premium, if any, or interest, if any, payable with respect to such
Securities into a currency in which a judgment can be rendered (the
Judgment Currency
), the rate
of exchange from the currency in which payments under such Securities is payable (the
Required
Currency
) into the Judgment Currency shall be the highest bid quotation (assuming European-style
quotation
i.e.
, Required Currency per Judgment Currency) received by the Company from three
recognized foreign exchange dealers in the City of New York for the purchase of the aggregate
amount of the judgment (as denominated in the Judgment Currency) on the New York Business Day
preceding the date on which a final unappealable judgment is rendered, for settlement on such
payment date, and at which the applicable dealer timely commits to execute a contract, and (b) the
Companys obligations under this Indenture to make payments in the Required Currency (i) shall not
be discharged or satisfied by any tender, or by any recovery pursuant to any judgment (whether or
not entered in accordance with the preceding clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the actual receipt by
the judgment creditor of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so expressed to be payable,
and (iii) shall not be affected by judgment being obtained for any other sum due under this
Indenture.
Section 1.15
. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment Date or Maturity of
any Security shall not be a New York Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Securities) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and effect as if made on
the Interest Payment Date, Redemption Date,
13
Repayment Date or at Maturity,
provided
that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date or Maturity, as the case may be.
ARTICLE 2
Security Forms
Section 2.01
. Forms Generally.
The Securities of each series shall have such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any securities
exchange, or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The definitive Securities, if any, shall be printed, lithographed or engraved or produced by
any combination of these 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
Securities, as evidenced by their execution of such Securities.
Section 2.02
. Forms of Securities.
Each Security shall be in one of the forms approved from
time to time by or pursuant to any Board Resolution, or established in one or more indentures
supplemental hereto. Prior to the delivery to the Trustee for authentication of any Security in any
form approved by or pursuant to a Board Resolution, the Company shall deliver to the Trustee a copy
of such Board Resolution, together with a true and correct copy of the form of Security which has
been approved thereby, or, if a Board Resolution authorizes a specific officer or officers to
approve a form of Security, together with a certificate of such officer or officers approving the
form of Security attached thereto,
provided, however
, that with respect to all Securities issued
pursuant to the same Board Resolution, the required copy of such Board Resolution, together with
the appropriate attachment, need be delivered only once. Any form of Security approved by or
pursuant to a Board Resolution must be acceptable as to form to the Trustee, such acceptance to be
evidenced by the Trustees authentication of Securities in that form or by a certificate signed by
a Responsible Officer of the Trustee and delivered to the Company.
Section 2.03
. Securities in Global Form.
If Securities of a series are issuable in whole or
in part in global form, the global security representing such Securities may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities represented thereby may from time
to time be reduced to reflect exchanges or increased to reflect the issuance of
14
additional Securities. Any endorsement of a Security in global form to reflect the amount (or
any increase or decrease in the amount) of Outstanding Securities represented thereby shall be made
in such manner and by such Person or Persons as shall be specified therein or in the Authentication
Order delivered to the Trustee pursuant to Section 3.03 hereof.
Section 2.04
. Form of Trustees Certificate of Authentication.
The form of Trustees
Certificate of Authentication for any Security issued pursuant to this Indenture shall be
substantially as follows:
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
|
|
|
|
|
The Bank of New York, as Trustee,
|
|
|
By:
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
ARTICLE 3
The Securities
Section 3.01
. General Title; General Limitations; Issuable in Series; Terms of Particular
Series.
The aggregate principal amount of Securities that may be authenticated, delivered, and
Outstanding at any time under this Indenture is not limited.
The Securities may be issued in one or more series in such aggregate principal amount as may
from time to time be authorized by the Board of Directors. All Securities of a series 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 actual time of the authentication
and delivery or Scheduled Maturity Date thereof.
Each series of Securities shall be created either by or pursuant to one or more Board
Resolutions or by one or more indentures supplemental hereto. Any such Board Resolution or
supplemental indenture (or, in the case of a series of Securities created pursuant to a Board
Resolution, any officer or officers authorized by such Board Resolution) shall establish the terms
of any such series of Securities, including the following (as and to such extent as may be
applicable):
(1) the title of such series;
15
(2) the limit, if any, upon the aggregate principal amount or issue price of the Securities of
such series;
(3) the issue date or issue dates of the Securities of such series;
(4) the Scheduled Maturity Date of the Securities of such series;
(5) the place or places where the principal, premium, if any, interest, if any, and additional
amounts, if any, payable with respect to the Securities of such series shall be payable;
(6) whether the Securities of such series will be issued at par or at a premium over or a
discount from their face amount;
(7) the rate or rates (which may be fixed or variable)at which the Securities of such series
shall bear interest, if any, and, if applicable, the method by which such rate or rates may be
determined;
(8) the date or dates (or the method by which such date or dates may be determined) from which
interest, if any, shall accrue, and the Interest Payment Dates on which such interest shall be
payable;
(9) the rights, if any, to defer payments of interest on the Securities by extending the
interest payment periods and the duration of such extension;
(10) the period or periods within which, the Redemption Price(s)or Repayment Price(s) at
which, and any other terms and conditions upon which the Securities of such series may be redeemed
or repaid, in whole or in part, by the Company;
(11) the obligation, if any, of the Company to redeem, repay, or purchase any of the
Securities of such series pursuant to any sinking fund, mandatory redemption, purchase obligation,
or analogous provision at the option of a Holder thereof, and the period or periods within which,
the Redemption Price(s) or Repayment Price(s) or other price or prices at which, and any other
terms and conditions upon which the Securities of such series shall be redeemed, repaid, or
purchased, in whole or in part, pursuant to such obligation;
(12) whether the Securities of such series are to be issued in whole or in part in global form
and, if so, the identity of the Depositary for such global security and the terms and conditions,
if any, upon which interests in the Securities represented by such global security may be
exchanged, in whole or in part, for the individual Securities represented thereby (if other than as
provided in Section 3.05);
(13) whether such Securities are Subordinated Securities and if so, the provisions for such
subordination if other than the provisions set forth in Article 13;
16
(14) the denominations in which the Securities of such series will be issued (which may be any
denomination as set forth in the terms of such Securities) if other than U.S.$1,000 or an integral
multiple thereof;
(15) whether and under what circumstances additional amounts on the Securities of such series
shall be payable in respect of any taxes, assessments, or other governmental charges withheld or
deducted and, if so, whether the Company will have the option to redeem such Securities rather than
pay such additional amounts;
(16) the basis upon which interest shall be calculated;
(17) if the Securities of such series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security for a definitive Security of such series)
only upon receipt of certain certificates or other documents or upon satisfaction of other
conditions, then the form and terms of such certificates, documents, and/or conditions;
(18) the exchange or conversion of the Securities of that series, whether or not at the option
of the Holders thereof, for or into new Securities of a different series or for or into any other
securities which may include shares of Capital Stock of the Company or any Subsidiary of the
Company or securities directly or indirectly convertible into or exchangeable for any such shares
or securities of entities unaffiliated with the Company or any Subsidiary of the Company;
(19) if other than U.S. dollars, the foreign or composite currency or currencies (each such
currency a
Specified Currency
) in which the Securities of such series shall be denominated and in
which payments of principal, premium, if any, interest, if any, or additional amounts, if any,
payable with respect to such Securities shall or may be payable;
(20) if the principal, premium, if any, interest, if any, or additional amounts, if any,
payable with respect to the Securities of such series are to be payable in any currency other than
that in which the Securities are stated to be payable, whether at the election of the Company or of
a Holder thereof, the period or periods within which, and the terms and conditions upon which, such
election may be made;
(21) if the amount of any payment of principal, premium, if any, interest, if any, or other
sum payable with respect to the Securities of such series may be determined by reference to the
relative value of one or more Specified Currencies, commodities, securities, or instruments, the
level of one or more financial or non- financial indices, or any other designated factors or
formulas, the manner in which such amounts shall be determined;
(22) the exchange of Securities of such series, at the option of the Holders thereof, for
other Securities of the same series of the same aggregate principal
17
amount of a different authorized kind or different authorized denomination or denominations,
or both;
(23) the appointment by the Trustee of an Authenticating Agent in one or more places other
than the Corporate Trust Office of the Trustee, with power to act on behalf of the Trustee, and
subject to its direction, in the authentication and delivery of the Securities of such series;
(24) any trustees, depositaries, paying agents, transfer agents, exchange agents, conversion
agents, registrars, or other agents with respect to the Securities of such series if other than the
Trustee, Paying Agent and Security Registrar named herein;
(23) the portion of the principal amount of Securities of such series, if other than the
principal amount thereof, that shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04;
(25) any Event of Default with respect to the Securities of such series, if not set forth
herein, or any modification of any Event of Default set forth herein with respect to such series;
(26) any covenant solely for the benefit of the Securities of such series;
(27) the inapplicability of Section 4.02 and Section 4.03 of this Indenture to the Securities
of such series and if Section 4.03 is applicable, the covenants subject to Covenant Defeasance
under Section 4.03; and
(28) any other terms not inconsistent with the provisions of this Indenture.
If all of the Securities issuable by or pursuant to any Board Resolution are not to be issued
at one time, it shall not be necessary to deliver the Officers Certificate and Opinion of Counsel
required by Section 3.03 hereof at the time of issuance of each such Security, but such Officers
Certificate and Opinion of Counsel shall be delivered at or before the time of issuance of the
first such Security.
If any series of Securities shall be established by action taken pursuant to any Board
Resolution, the execution by the officer or officers authorized by such Board Resolution of an
Authentication Order (as defined in Section 3.03 below) with respect to the first Security of such
series to be issued, and the delivery of such Authentication Order to the Trustee at or before the
time of issuance of the first Security of such series, shall constitute a sufficient record of such
action. Except as otherwise permitted by Section 3.03, if all of the Securities of any such series
are not to be issued at one time, the Company shall deliver an Authentication Order with respect to
each subsequent issuance of Securities of
18
such series, but such Authentication Orders may be executed by any authorized officer or
officers of the Company, whether or not such officer or officers would have been authorized to
establish such series pursuant to the aforementioned Board Resolution.
Unless otherwise provided by or pursuant to the Board Resolution or supplemental indenture
creating such series (i) a series may be reopened for issuances of additional Securities of such
series, and (ii) all Securities of the same series shall be substantially identical, except for the
initial Interest Payment Date, issue price, initial interest accrual date and the amount of the
first interest payment.
The form of the Securities of each series shall be established in a supplemental indenture or
by or pursuant to the Board Resolution creating such series. The Securities of each series shall be
distinguished from the Securities of each other series in such manner as the Board of Directors or
its authorized representative or representatives may determine.
Unless otherwise provided with respect to Securities of a particular series, the Securities of
any series may only be issuable in registered form, without coupons.
Section 3.02
. Denominations and Currency.
The Securities of each series shall be issuable in
such denominations and currency as shall be provided in the provisions of this Indenture or by or
pursuant to the Board Resolution or supplemental indenture creating such series. In the absence of
any such provisions with respect to the Securities of any series, the Securities of that series
shall be issuable only in fully registered form in denominations of U.S. $1,000 and any integral
multiple thereof.
Section 3.03
. Execution, Authentication and Delivery, and Dating.
The Securities shall be
executed on behalf of the Company by any two of the Chairman, Vice Chairman, Chief Financial
Officer, Senior Vice President and any Vice President of the Company under its corporate seal
reproduced thereon and attested by its Secretary or any one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile. The seal of the
Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted, or
otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
Unless otherwise provided in the form of Security for any series, all Securities shall be
dated the date of their authentication.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company,
19
notwithstanding that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities to the Trustee for authentication, together with a Company Order for
authentication and delivery (such Order an Authentication Order) with respect to such Securities,
and the Trustee shall, upon receipt of such 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 such Securities to such recipients as may be specified from time
to time pursuant to such Authentication Order. The material terms of such Securities shall be
determinable by reference to such Authentication Order and procedures. If provided for in such
procedures, such Authentication Order may authorize authentication and delivery of such Securities
pursuant to oral instructions from the Company or its duly authorized agent, which instructions
shall be promptly confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to the provisions of Section 6.01 hereof) shall be fully
protected in relying upon:
(1) an executed supplemental indenture, if any;
(2) an Officers Certificate, certifying as to the authorized form or forms and terms of such
Securities; and
(3) an Opinion of Counsel, stating that:
(a) the form or forms and terms of such Securities have been established by and in
conformity with the provisions of this Indenture;
provided
that if all such Securities are
not to be issued at the same time, such Opinion of Counsel may state that such terms will
be established in conformity with the provisions of this Indenture, subject to any
conditions specified in such Opinion of Counsel; and
(b) such Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, moratorium,
reorganization, and other laws of general applicability relating to or affecting the
enforcement of creditors rights and to general principles of equity;
provided, however
, that if all Securities issuable by or pursuant to a Board Resolution or
supplemental indenture are not to be originally issued at one time, it shall not be necessary to
deliver the Officers Certificate or Opinion of Counsel
20
otherwise required pursuant to this paragraph at or prior to the time of authentication of each
such Security if such documents are delivered at or prior to the time of authentication upon
original issuance of the first such Security to be issued. After the original issuance of the first
such Security to be issued, any separate request by the Company that the Trustee authenticate such
Securities for original issuance will be deemed to be a certification by the Company that it is in
compliance with all conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities.
The Trustee shall not be required to authenticate such Securities if the issue thereof will
adversely affect the Trustees own rights, duties, or immunities under the Securities and this
Indenture.
If the Company shall establish pursuant to Section 3.01 that Securities of a series may be
issued in whole or in part in global form, then the Company shall execute, and the Trustee shall
(in accordance with this Section 3.03 and the Authentication Order with respect to such series)
authenticate and deliver, one or more Securities in global form that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such one or more Securities in global form, (ii)
shall be registered, in the name of the Depositary for such Security or Securities in global form,
or in the name of a nominee of such Depositary, (iii) shall be delivered to such Depositary or
pursuant to such Depositarys instruction, and (iv) shall bear a legend substantially as follows:
Unless and until it is exchanged in whole or in part for Securities in certificated form, this
Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary,
or by a nominee of the Depositary to the Depositary or another nominee of the Depositary, or by the
Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary. Each Depositary designated pursuant to Section 3.01 for a Security in global form
must, at the time of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder.
Section 3.04
. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and, upon receipt of the documents required by Sections 2.02, 3.01
and 3.03 hereof, together with an Authentication Order, the Trustee shall authenticate and deliver,
temporary Securities of such series that are printed, lithographed, typewritten, mimeographed, or
otherwise produced, in any authorized denomination,
21
substantially of the tenor of the definitive Securities in lieu of which they are issued in
registered form, without coupons, and with such appropriate insertions, omissions, substitutions,
and other variations as the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Securities of any series for which a temporary
Security may be issued in global form, such temporary global security shall represent all of the
Outstanding Securities of such series and tenor.
Except in the case of temporary Securities in global form, which shall be exchanged in
accordance with the provisions thereof, if temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities of such series shall be
exchangeable, at the Corporate Trust Office of the Trustee, or at such other office or agency as
may be maintained by the Company in a Place of Payment pursuant to Section 10.02 hereof, for
definitive Securities of such series having identical terms and provisions, upon surrender of the
temporary Securities of such series, at the Companys own expense and without charge to the Holder;
and upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series in authorized denominations containing
identical terms and provisions. Unless otherwise specified as contemplated by Section 3.01 with
respect to a temporary Security in global form, until so exchanged, the temporary Securities of
such series shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
Section 3.05
. Registration, Transfer and Exchange.
With respect to the Securities of each
series, the Trustee shall keep a register (herein sometimes referred to as the Security Register)
which shall provide for the registration of Securities of such series, and for transfers of
Securities of such series, in accordance with information to be provided to the Trustee by the
Company, 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 Company pursuant to Section 10.02 hereof.
Upon due presentation for registration of transfer of any Security of any series at the
Corporate Trust Office of the Trustee or at any other office or agency maintained by the Company
with respect to that series pursuant to Section 10.02 hereof, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of such series of any authorized denominations, of like aggregate
principal amount, tenor, terms and Scheduled Maturity Date.
22
Any other provision of this Section 3.05 notwithstanding, unless and until it is exchanged in
whole or in part for the individual Securities represented thereby, in definitive form, a Security
in global form representing all or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series 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 for such series or a nominee of such
successor Depositary.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
such series of any authorized denominations, of like aggregate principal amount, tenor, terms and
Scheduled Maturity Date, upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Securityholder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series represented by one or more
Securities in global form notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series, or if at any time the Depositary for the Securities
of such series shall no longer be eligible under Section 3.03 hereof, the Company, by Company
Order, shall appoint a successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such ineligibility, the Companys
election pursuant to Section 3.01 that such Securities be represented by one or more Securities in
global form shall no longer be effective with respect to the Securities of such series and the
Company will execute, and the Trustee, upon receipt of an Authentication Order for the
authentication and delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form, in authorized denominations, in an aggregate
principal amount, and of like terms and tenor, equal to the principal amount of the Security or
Securities in global form representing such series, in exchange for such Security or Securities in
global form.
The Company may at any time and in its sole discretion and subject to the procedures of the
Depositary determine that individual Securities of any series issued in global form shall no longer
be represented by such Security or Securities in global form. In such event the Company will
execute, and the Trustee, upon receipt of an Authentication Order for the authentication and
delivery of definitive Securities of such series and of the same terms and tenor, will authenticate
and deliver Securities of such series in definitive form, in authorized denominations, and in
aggregate principal amount equal to the principal amount of the Security or Securities in global
form representing such series in exchange for such Security or Securities in global form.
23
If specified by the Company pursuant to Section 3.01 with respect to a series of Securities
issued in global form, the Depositary for such series of Securities may surrender a Security in
global form for such series of Securities in exchange in whole or in part for Securities of such
series in definitive form and of like terms and tenor on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute, and the Trustee upon receipt of
an Authentication Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to each Person specified by such Depositary, a new definitive Security or Securities of
the same series and of the same tenor and terms, in authorized denominations, in aggregate
principal amount equal to and in exchange for such Persons beneficial interest in the Security in
global form; and
(b) to such Depositary, a new Security in global form in a denomination equal to the
difference, if any, between the principal amount of the surrendered Security in global form and the
aggregate principal amount of the definitive Securities delivered to Holders pursuant to clause (a)
above.
Upon the exchange of a Security in global form for Securities in definitive form, such
Security in global form shall be canceled by the Trustee or an agent of the Company or the Trustee.
Securities issued in definitive form in exchange for a Security in global form pursuant to this
Section 3.05 shall be registered in such names and in such authorized denominations as the
Depositary for such Security in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company or the Trustee in
writing. The Trustee or such agent shall deliver such Securities to or as directed by the Persons
in whose names such Securities are so registered or to the Depositary.
Whenever any securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration of transfer, exchange, redemption or
payment shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the Security Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Security to be transferred or exchanged, no service charge
shall be imposed for any registration of transfer or exchange of
24
Securities, but the Company may (unless otherwise provided in such Security) require payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 3.06,
9.06 and 11.07 hereof not involving any transfer.
The Company shall not be required to (i) issue, register the transfer of, or exchange any
Security of any series during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Securities of such series selected for redemption under
Section 11.03 and ending at the close of business on the date of such mailing, or (ii) register the
transfer of or exchange any Security so selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not to be redeemed.
Section 3.06
. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated
Security is surrendered to the Trustee, or the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and (ii) there is delivered to the
Company 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 Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company may in its discretion execute and upon request of
the Company the Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security of like tenor, terms, series,
Scheduled Maturity Date, and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company 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 Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities of the same series 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 Securities.
25
Section 3.07
. Payment of Interest; Interest Rights Preserved.
Interest on any Security which
is payable and is punctually paid or duly provided for on any Interest Payment Date shall, if so
provided in such Security, be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the applicable Record Date,
notwithstanding any transfer or exchange of such Security subsequent to such Record Date and prior
to such Interest Payment Date. (unless such Interest Payment Date is also the date of Maturity of
such Security).
Any interest on any Security which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called Defaulted Interest) shall forthwith cease to be
payable to the registered Holder on the applicable Record Date by virtue of his having been such
Holder; and, except as hereinafter provided, such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (a) or clause (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names any such Securities (or their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less
than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Holder of each such Security at his address as it
appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of
26
the proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Interest on Securities of any series that bear interest may be paid by mailing a check to the
address of the Person entitled thereto at such address as shall appear in the Securities Register
for such series or by such other means as may be specified in the form of such Security.
Subject to the foregoing provisions of this Section 3.07 and the provisions of Section 3.05
hereof, each Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 3.08
. Persons Deemed Owners.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee, and any agent of the Company or the Trustee may treat the
Person in whose name any Security is registered on the applicable Record Date(s) as the owner of
such Security for the purpose of receiving payment of principal, premium, if any, interest, if any
(subject to Sections 3.05 and 3.07 hereof), and any additional amounts payable with respect to such
Security, and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee, nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
None of the Company, the Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar, or any Co-Security 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 Security
in global form 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 3.09
. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer, exchange, or credit against a sinking or analogous fund shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and, if not already canceled, shall be
promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee.
Acquisition of such Securities by the Company shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are delivered to the
Trustee for cancellation. No Security shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted by this Indenture.
The Trustee shall dispose of all canceled Securities in accordance with its customary procedures
and deliver a certificate of such disposition to the Company.
27
Section 3.10
. Computation of Interest.
Unless otherwise provided as contemplated in Section
3.01, interest on the Securities shall be calculated on the basis of a 360-day year of twelve
30-day months.
ARTICLE 4
Satisfaction and Discharge
Section 4.01
. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of
further effect with respect to any series of Securities (except as to any surviving rights of
conversion or transfer or exchange of Securities of such series expressly provided for herein or in
the form of Security for such series), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(a) either
(i) all Securities of that series theretofore authenticated and delivered (other than
(A) Securities of such series which have been destroyed, lost, or stolen and which have
been replaced or paid as provided in Section 3.06, and (B) Securities of such series for
whose payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 4.07) have been delivered to the Trustee canceled or for
cancellation; or
(ii) all such Securities of that series not theretofore delivered to the Trustee
canceled or for cancellation
(A) have become due and payable, or
(B) will, in accordance with their Scheduled Maturity Date, become due and
payable within one year, or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and, in any of the cases described in subparagraphs (A), (B), or(C) above, the Company has
irrevocably deposited or caused to be deposited with the Trustee, as trust funds in trust for the
purpose, (x) an amount in money sufficient, (y) U.S. Government Obligations or Equivalent
Government Securities which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before the due date of any
payment, money sufficient, or (z) a combination of (x) and (y) sufficient, in the opinion with
28
respect to (y) and (z) 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 Securities with respect to principal, premium, if any, and interest, if any,
to the date of such deposit (in the case of Securities which have become due and payable), or to
the Scheduled Maturity Date or Redemption Date, as the case may be;
provided, however
, that if such
U.S. Government Obligations or Equivalent Government Securities are callable or redeemable at the
option of the issuer thereof, the amount of such money, U.S. Government Obligations, and Equivalent
Government Securities deposited with the Trustee must be sufficient to pay and discharge the entire
indebtedness referred to above if such issuer elects to exercise such call or redemption provisions
at any time prior to the Scheduled Maturity Date or Redemption Date, as the case may be. The
Company, but not the Trustee, shall be responsible for monitoring any such call or redemption
provision; and
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company
with respect to the Securities of such series; and
(c) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Securities of such series have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company under paragraph (a) of this Section 4.01 and its
obligations to the Trustee with respect to that series under Section 6.07 shall survive, and the
obligations of the Trustee under Sections 4.05, 4.07 and 10.03 shall survive.
Section 4.02.
Discharge and Defeasance.
The provisions of this Section and Section 4.04 (insofar as relating to this Section) shall
apply to the Securities of each series unless specifically otherwise provided in a Board Resolution
or indenture supplemental hereto provided pursuant to Section 3.01. In addition to discharge of
this Indenture pursuant to Section 4.01, in the case of any series of Securities with respect to
which the exact amount described in subparagraph (a) of Section 4.04 can be determined at the time
of making the deposit referred to in such subparagraph (a), the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Securities of such a series as provided in
this Section on and after the date the conditions set forth in Section 4.04 are satisfied, and the
provisions of this Indenture with respect to the Securities of such series shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of Securities of such
series, (ii) substitution of mutilated, destroyed, lost or stolen Securities of such series, (iii)
rights of Holders of Securities of such series to receive, solely from the trust fund described in
subparagraph (a) of Section 4.04, payments of principal thereof, premium, if any, and interest, if
any, thereon upon the original
29
stated due dates or upon the Redemption Dates therefor (but not upon acceleration), and
remaining rights of the Holders of Securities of such series to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, (v)
this Section 4.02, Section 4.07, Section 10.02 and Section 10.03 and (vi) the rights of the Holders
of Securities of such series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them) (hereinafter called
Defeasance
), and the Trustee at
the cost and expense of the Company, shall execute proper instruments acknowledging the same.
Section 4.03
. Covenant Defeasance.
The provisions of this Section and Section 4.04 (insofar as relating to this Section) shall
apply to the Securities of each series unless specifically otherwise provided in a Board Resolution
or indenture supplemental hereto provided pursuant to Section 3.01. In the case of any series of
Securities with respect to which the exact amount described in subparagraph (a) of Section 4.04 can
be determined at the time of making the deposit referred to in such subparagraph (a), (i) the
Company shall be released from its obligations under any covenants specified in or pursuant to
Section 3.01 as being subject to Covenant Defeasance with respect to such series (except as to (a)
rights of registration of transfer and exchange of Securities of such series and rights under
Section 4.07, Section 10.02 and Section 10.03, (b) substitution of mutilated, destroyed, lost or
stolen Securities of such series, (c) rights of Holders of Securities of such series to receive,
from the Company pursuant to Section 10.01, payments of principal thereof and interest, if any,
thereon upon the original stated due dates or upon the Redemption Dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series to receive
mandatory sinking fund payments, if any, (d) the rights, obligations, duties and immunities of the
Trustee hereunder and (e) the rights of the Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all or any of them),
and (ii) the occurrence of any event specified in Section 5.01(d) (with respect to any of the
covenants specified in or pursuant to Section 3.01 as being subject to Covenant Defeasance with
respect to such series) shall be deemed not to be or result in a default or an Event of Default, in
each case with respect to the Outstanding Securities of such series as provided in this Section on
and after the date the conditions set forth in Section 4.04 are satisfied (hereinafter called
Covenant Defeasance
), and the Trustee at the cost and expense of the Company, shall execute
proper instruments acknowledging the same. For this purpose, such Covenant Defeasance means that
the Company may omit to comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such covenant (to the extent so specified in the case of Section
5.01(d)), whether directly or indirectly by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document, but the
30
remainder of this Indenture and the Securities of such series shall be unaffected thereby.
Section 4.04.
Conditions To Defeasance Or Covenant Defeasance.
The following shall be the conditions to application of either Section 4.02 or Section 4.03 to
the Outstanding Securities:
(a) with reference to Section 4.02 or Section 4.03, the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of Securities of such series (i)
money in an amount, or (ii) U.S. Government Obligations or Equivalent Government Securities which
through the payment of interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment, money in an amount, or
(iii) a combination of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of
a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal (including
mandatory sinking fund payments) of, premium, if any, and interest on, the Outstanding Securities
of such series on the dates such installments of interest, premium or principal are due, including
upon redemption;
provided, however
, that if such U.S. Government Obligations and Equivalent
Government Securities are callable or redeemable at the option of the issuer thereof, the amount of
such money, U.S. Government Obligations, and/or Equivalent Government Securities deposited with the
Trustee must be sufficient to pay and discharge the entire indebtedness referred to above if the
issuer of any such U.S. Government Obligations or Equivalent Government Securities elects to
exercise such call or redemption provisions at any time prior to the Scheduled Maturity Date or
Redemption Date of such Securities, as the case may be. The Company, but not the Trustee, shall be
responsible for monitoring any such call or redemption provision.
(b) in the case of Defeasance under Section 4.02, the Company has delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a
change in the applicable United States federal income tax law, in either case to the effect that,
and such opinion shall confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and 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 deposit, Defeasance and
discharge had not occurred;
(c) in the case of Covenant Defeasance under Section 4.03, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that, and such opinion shall confirm that, the Holders
of the Securities of such series
31
will not recognize income, gain or loss for federal income tax purposes as a result of such
deposit and Covenant Defeasance and 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 deposit and Covenant
Defeasance had not occurred;
(d) no Event of Default or event which, with notice or lapse of time or both, would become an
Event of Default with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit, after giving effect to such deposit or, in the case of a
Defeasance under Section 4.02, no Event of Default specified in Section 5.01(e) or Section 5.01(f)
shall have occurred, at any time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period);
(e) such Defeasance or Covenant Defeasance will not cause the Trustee to have a conflicting
interest within the meaning of the TIA, assuming all Securities of a series were in default within
the meaning of the TIA;
(f) such Defeasance or Covenant Defeasance will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Company is a party or by
which it is bound;
(g) such Defeasance or Covenant Defeasance will not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act of
1940, as amended, unless the trust is registered under such Act or exempt from registration;
(h) If the Securities of such series are to be redeemed prior to their Stated Maturity Date
(other than from mandatory sinking fund payments or analogous payments), notice of such redemption
shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee shall have been made; and
(i) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for herein relating to such Defeasance
or Covenant Defeasance, as the case may be, have been complied with.
Section 4.05
. Application of Trust Money; Excess Funds.
All money and U.S. Government
Obligations or Equivalent Government Securities (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.01 or Section 4.04 hereof shall be held in trust and applied by it,
in accordance with the provisions of this Indenture and of the series of Securities in respect of
which it was deposited, to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent), as the Trustee may
32
determine, to the Persons entitled thereto, of the principal, premium, if any, and interest,
if any, 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.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or U.S. Government Obligations or Equivalent Government Securities
deposited pursuant to Section 4.01 or Section 4.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities.
Anything in this Article 4 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon Company Request any money or U.S. Governmental Obligations or
Equivalent Government Securities held by it as provided in Section 4.01 or Section 4.04 which, in
the opinion of a nationally recognized investment bank, appraisal firm or firm of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, (which may be the opinion delivered under Section 4.01 or Section 4.04,
as applicable), are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent satisfaction and discharge, Covenant Defeasance or Defeasance of the
applicable series.
Section 4.06
. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent of the Securities (other than the Trustee)
shall, upon demand of the Company, 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 4.07
. Return of Unclaimed Amounts.
Any amounts deposited with or paid to the Trustee
or any Paying Agent or then held by the Company, in trust for payment of the principal of, premium,
if any, or interest, if any, on the Securities and not applied but remaining unclaimed by the
Holders of such Securities for two years after the date upon which the principal of, premium, if
any, or interest, if any, on such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee on Company Request or (if then held by the
Company) shall be discharged from such trust; and the Holder of any of such Securities shall
thereafter look only to the Company for any payment which such Holder may be entitled to collect
(until such time as such unclaimed amounts shall escheat, if at all, to the State of New York) and
all liability of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company 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 Company 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
33
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 Company.
ARTICLE 5
Remedies
Section 5.01
. Events of Default.
Event of Default
, wherever used herein, means with
respect to any series of Securities any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body), unless such event is either inapplicable to a particular
series or it is specifically deleted or modified in the manner contemplated by Section 3.01:
(a) default in the payment of any interest on any Security of such series when it becomes due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal amount of (or premium, if any, on) any Security of
such series as and when the same shall become due, either at Maturity, upon redemption, by
declaration, or otherwise; or
(c) default in the payment of any sinking or purchase fund or analogous obligation when the
same becomes due by the terms of the Securities of such series and continuance of such default for
a period of 30 days; or
(d) default in the performance or breach of any covenant or warranty of the Company in this
Indenture in respect of the Securities of such series (other than a covenant or warranty in respect
of the Securities of such series a default in the performance of which or the breach of which is
elsewhere in this Section specifically dealt with), 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 Company by
the Trustee or to the Company and the Trustee by the Holders of at least 51% in the principal
amount of the Outstanding Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a Notice of Default
hereunder; or
(e) the entry of an order for relief against the Company under the Federal Bankruptcy Act by a
court having jurisdiction in the premises or a decree or order by a court having jurisdiction in
the premises adjudging the Company 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,
34
arrangement, adjustment or composition of or in respect of the Company under the Federal
Bankruptcy Code or any other applicable Federal or State law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 90 consecutive days; or
(f) the consent by the Company to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Code or any other applicable Federal or State law, or the consent by
it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(g) any other Event of Default provided for with respect to the Securities of such series in
accordance with Section 3.01.
A default under any indebtedness of the Company other than the Securities will not constitute
an Event of Default under this Indenture, and a default under one series of Securities will not
constitute a default under any other series of Securities.
Section 5.02
. Acceleration of Maturity; Rescission, and Annulment.
If any Event of Default
described in Section 5.01 above (other than Event of Default described in Section 5.01(e) and
Section 5.01(f)) shall have occurred and be continuing with respect to any series, then and in each
and every such case, unless the principal of all the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 51% in aggregate
principal amount of the Securities of such series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by Holders), may declare the principal amount (or, if
the Securities of such series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of such series and
any and all accrued interest thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable, any provision of this
Indenture or the Securities of such series to the contrary notwithstanding. If an Event of Default
specified in Section 5.01(e) or Section 5.01(f) occurs, the principal amount of the Securities of
such series and any and all accrued interest thereon shall immediately become and be due and
payable without any declaration or other act on the party of the Trustee or any Holder. No
declaration of acceleration by the Trustee with respect to any series of Securities shall
constitute a declaration of acceleration by the Trustee with respect to any other series of
Securities, and no declaration of acceleration by the Holders of at
35
least 51% in aggregate principal amount of the Outstanding Securities of any series shall
constitute a declaration of acceleration or other action by any of the Holders of any other series
of Securities, in each case whether or not the Event of Default on which such declaration is based
shall have occurred and be continuing with respect to more than one series of Securities, and
whether or not any Holders of the Securities of any such affected series shall also be Holders of
Securities of any other such affected series.
At any time after such a declaration of acceleration has been made with respect to the
Securities of any series 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 not less than 51%
in aggregate principal amount of the Outstanding Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its consequences if all
Events of Default with respect to such series of Securities, other than the nonpayment of the
principal of the Securities of such series which have become due solely by such acceleration, have
been cured or waived as provided in Section 5.13, if such cure or waiver does not conflict with any
judgment or decree set forth in Section 5.01(e) and Section 5.01(f) and if all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel have been paid.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if:
(a) default is made in the payment of any installment of interest on any Security of any
series when such interest becomes due and payable, or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof, or
(c) default is made in the payment of any sinking or purchase fund or analogous obligation
when the same becomes due by the terms of the Securities of any series, and
(d) any such default continues for any period of grace provided in relation to such default
pursuant to Section 5.01,
then, with respect to the Securities of such series, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holder of any such Security (or the Holders of any such series in
the case of clause (c) above), the whole amount then due and payable on any such Security (or on
the Securities of any such series in the case of clause (c) above) for principal (and premium, if
any) and interest, if any, with interest (to the extent that payment of such interest shall be
36
legally enforceable) upon the overdue principal (and premium, if any) and upon overdue installments
of interest, if any, at such rate or rates as may be prescribed therefor by the terms of any such
Security (or of Securities of any such series in the case of clause (c) above); 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 6.07.
If the Company 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 Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any series of Securities occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series 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 5.04
. 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 Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities 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
Company for the payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceedings or otherwise,
(a) to file and prove a claim for the whole amount of principal (or, with respect to Original
Discount Securities, such portion of the principal amount as may be specified in the terms of such
Securities), premium, if any, and interest, if any, owing and unpaid in respect of the Securities,
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 6.07) and of the Securityholders allowed in such judicial proceedings, and
37
(b) 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
Securityholder 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 Securityholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and its agent and counsel, and any other amounts due the Trustee under Section 6.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 5.05
. Trustee May Enforce Claims Without Possession of Securities.
All rights of
action and claims under this Indenture or the Securities of any series may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of such series 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 Securities, of the series in respect of which such judgment has been recovered.
Section 5.06
. Application of Money Collected.
Any money collected by the Trustee with
respect to a series of Securities 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 Securities of such
series 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 6.07 hereof.
Second: To the payment of the amounts then due and unpaid upon the Securities of that series
for principal, premium, if any, interest, if any, and additional amounts, if any, in respect of
which or for the benefit of which such money has been collected, ratably, without preference or
priority of any kind.
Section 5.07
. Limitation on Suits.
No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder, unless
38
(a) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to Securities of such series;
(b) the Holders of not less than 51% in principal amount of the Outstanding Securities of such
series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request, and offer of indemnity
has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of such series; it being understood and intended that no one or more Holders of Securities of such
series 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 Securities of
such series, 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 Securities of such series.
Section 5.08
. Unconditional Right of Securityholders to Receive Principal, Premium, and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall
have the right, which is absolute and unconditional, to receive payment of the principal, premium,
if any, and (subject to Section 3.07) interest, if any, (and additional amounts, if any) on such
Security on or after the respective payment dates expressed in such Security (or, in the case of
redemption or repayment, on the Redemption Date or Repayment Date, as the case may be) 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 5.09
. Restoration of Rights and Remedies.
If the Trustee or any Securityholder 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 Company, the
Trustee and the Securityholders 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 Securityholders shall continue as though no such proceeding had
been instituted.
39
Section 5.10
. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or
reserved to the Trustee or to the Securityholders 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 5.11
. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the Securityholders may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Securityholders, as the case may be.
Section 5.12
. Control by Securityholders.
The Holders of a majority in principal amount of
the Outstanding Securities of any series shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
provided
that
(a) the Trustee shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action so directed may not lawfully be taken or would
conflict with this Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal liability or be unjustly
prejudicial to the Holders not taking part in such direction, and
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 5.13
. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may, on behalf of the Holders of all the
Securities of such series, waive any past default hereunder with respect to such series and its
consequences, except a default not theretofore cured:
(a) in the payment of principal, premium, if any, or interest, if any, on any Security of such
series, or in the payment of any sinking or purchase fund or analogous obligation with respect to
the Securities of such series, or
(b) in respect of a covenant or provision in this Indenture which, under Article Nine hereof,
cannot be modified or amended without the consent of the Holder of each Outstanding Security of
such series.
40
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 5.14
. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Security 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 Securityholder or group of
Securityholders holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series to which the suit relates, or to any suit instituted by any Securityholder
for the enforcement of the payment of principal, premium, if any, or interest, if any, on any
Security on or after the respective payment dates expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date).
Section 5.15
. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
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 the Company (to the extent that it 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 6
The Trustee
Section 6.01
. Certain Duties and Responsibilities of Trustee.
(a) Except during the
continuance of an Event of Default with respect to any series of Securities,
(i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Securities of such series,
and no implied covenants or obligations shall be read into this Indenture against the
Trustee; and
41
(ii) in the absence of bad faith on its part, the Trustee may, with respect to
Securities of such series, conclusively rely upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series of Securities has occurred and is
continuing, the Trustee shall exercise, with respect to the Securities of such series, such of the
rights and powers vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that
(i) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;
(ii) 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;
(iii) 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 Securities of any series relating
to the time, method, and place of conducting any proceeding for any remedy available to
the Trustee with respect to the Securities of such series, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the Securities of
such series; and
(iv) 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.
42
Section 6.02.
Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to Securities of any series, the Trustee shall transmit by mail to all
Securityholders of such series, 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,
premium, if any, or interest, if any, on any Security of such series or in the payment of any
sinking or purchase fund installment or analogous obligation with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in the interests of the
Securityholders of such series and;
provided, further
, that, in the case of any default of the
character specified in Section 5.01(d) with respect to Securities of such series, no such notice to
Securityholders of such series shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term default, with respect to Securities of any series,
means any event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 6.03.
Certain Rights of Trustee.
Except as otherwise provided in Section 6.01
above:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction or order of the Company 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 Securityholders pursuant to this
Indenture, unless such Securityholders shall have
43
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 Company, 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 6.04.
Not Responsible for Recitals or Issuance of Securities.
The recitals
contained herein and in the Securities, except the certificates of authentication, shall be taken
as the statements of the Company, 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
Securities. The Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 6.05.
May Hold Securities.
The Trustee or any Paying Agent, Security Registrar, or
other agent of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13 hereof, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, or such other agent.
Section 6.06.
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
Company.
Section 6.07.
Compensation and Reimbursement
. The Company covenants and agrees
(a) 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);
44
(b) 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
(c) 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 5.01(e) and Section 5.01(f) 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.
The Trustee shall have a lien prior to the Securities upon all property and funds held or
collected by it as such for any amount owing to it or any predecessor Trustee pursuant to this
Section 6.07, except with respect to funds held in trust for the benefit of the Holders of
particular Securities.
The provisions of this Section shall survive the satisfaction and discharge of this Indenture.
Section 6.08.
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 with respect to one or more series of Securities, to the extent
and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with respect to Securities
of more than one series or by virtue of being a trustee under: (i) the Indenture dated as of
November 15, 2002, among Bottling Group, LLC, as issuer, the Company, as guarantor, and the Trustee
relating to certain debt securities, (ii) the Indenture dated as of February 8, 1999, among Pepsi
Bottling Holdings, Inc., as obligor, the Company, as guarantor, and the Trustee relating to certain
debt securities, (iii) the Indenture dated as of December 14, 1994, between the Company and the
Trustee relating to certain debt securities, (iv) the Indenture dated as of December 2, 1993,
between the Company and the Trustee relating to certain debt securities, (v) the Indenture dated as
of September 28, 1990, between the Company and the Trustee relating to certain debt securities,
(vi) the Indenture
45
dated as of February 25, 1990, between the Company and the Trustee relating to certain debt
securities, (vii) the Indenture dated as of October 15, 1986, between the Company and the Trustee
relating to certain debt securities, (viii) the Indenture dated as of October 1, 1986, between the
Company and the Trustee relating to the Companys Euro-Medium-Term Notes, (ix) the Trust Agreement
with Puerto Rico Industrial, Medical and Environmental Pollution Control Facilities Financing
Authority (the
Authority
) dated as of November 15, 1983, under which the Authority assigned
certain rights under a Loan Agreement dated November 15, 1983, between the Authority and the
Company, including the right to payment from the Company of amounts sufficient to enable the
Authority to pay principal and interest and redemption payments (including redemption premium, if
any) on the bonds issued under said Trust Agreement, (x) the Indenture dated as of March 2, 1982,
among PepsiCo Capital Corporation N.V., the Company, as guarantor, and the Trustee relating to the
PepsiCo Capital Corporation N.V. Zero Coupon Guaranteed Notes due 1994, and (xi) the Indenture
dated as of April 1, 1982, among PepsiCo Capital Resources, Inc., the Company, as guarantor, and
the Trustee relating to the PepsiCo Capital Resources, Inc. Zero Coupon Serial Guaranteed
Debentures Due 1988-2012.
Section 6.09.
Corporate Trustee Required; Eligibility.
There shall at all times be a
Trustee hereunder with respect to each series of Securities 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 and willing to act as Trustee on customary and usual terms. 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 with respect to any series of Securities 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 6.10.
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 6.11.
(b) The Trustee may resign with respect to any one or more series of Securities at any time by
giving at least 60 days written notice thereof to the Company. 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
46
resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of Securities at any time by Act of
the Holders of 66 2/3% in principal amount of the Outstanding Securities of that series, delivered
to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 above with respect to any
series of Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that series for at least 6
months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 above with respect to
any series of Securities and shall fail to resign after written request therefor by the
Company or by any such Securityholder, or
(iii) the Trustee shall become incapable of acting with respect to any series of
Securities, or
(iv) 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 (A) the Company may remove the
Trustee, with respect to the series or, in the case of clause (iv), with respect to all
series, or (B) subject to Section 5.14, any Securityholder who has been a bona fide Holder
of a Security of such series 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 with respect to the series or, in
the case of clause (iv), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of acting with respect to any
series of Securities, or if a vacancy shall occur in the office of Trustee with respect to any
series of Securities for any cause, the Company shall promptly appoint a successor Trustee for that
series of Securities. If, within one year after such resignation, removal or incapacity, or the
occurrence of such vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of 66 2/3% in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect
to such series and supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so appointed by the
Company or the Securityholders of such series and accepted
47
appointment in the manner hereinafter provided, any Securityholder who has been bona fide
Holder of a Security of that series 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 with respect to such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to any series and each appointment of a successor Trustee with respect to any series by
mailing written notice of such event by first-class mail, postage prepaid, to the Holders of
Securities of that series 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 6.11.
Acceptance of Appointment by Successor.
Every successor Trustee appointed
hereunder with respect to all series of Securities shall execute, acknowledge and deliver to the
Company 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 with respect to any such series; but, on
request of the Company or the successor Trustee, such predecessor Trustee shall, upon payment of
its reasonable charges, if any, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the predecessor Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such predecessor
Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which (1) shall contain such provisions as shall be deemed necessary or
desirable to transfer and to conform to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series
as to which the appointment of such successor Trustee relates and (2) if the predecessor Trustee is
not retiring with respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor Trustee is not
being succeeded shall continue to be vested in the predecessor Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal
48
of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; and, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.
Upon request of any such successor Trustee, the Company 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 referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee with respect to any series of Securities shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible with
respect to that series under this Article.
Section 6.12.
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 Securities 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 Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 6.13.
Preferential Collection of Claims Against Company.
If and when the Trustee
shall be or shall become a creditor, of the Company (or of any other obligor upon the Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or against any such other obligor, as the case may be).
Section 6.14.
Appointment of Authenticating Agent.
At any time when any of the Securities
remain Outstanding the Trustee, with the approval of the Company, may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities
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.
49
Wherever reference is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustees 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 Company 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 Company itself,
subject to supervision or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and, if other than the Company, to the Company. 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 Company, to the Company. 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 Company, may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will serve, 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 Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
50
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
The Bank of New York, as Trustee
By:
As Authenticating Agent
By:
Authorized Signatory
ARTICLE 7
Securityholders Lists and Reports by Trustee and Company
Section 7.01.
Company to Furnish Trustee Names and Addresses of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after January 1 and July 1 in each year, in such form
as the Trustee may reasonably require, a list of the names and addresses of the Holders of
Securities of each series 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 Company 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 Security Registrar for such series, such list shall not be required to be furnished.
Section 7.02.
Preservation of Information; Communications to Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses
of Holders of Securities contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of Securities received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series (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 Security of such series 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
51
Holders of Securities of such series or with the Holders of all Securities with respect to
their rights under this Indenture or under such Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at the time by the
Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders of Securities of
such series or all Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section 7.02(a), and
as to the approximate cost of mailing to such Securityholders 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 Security of
such series or to all Securityholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section 7.02(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, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Securities of such series or all
Securityholders, as the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all Securityholders of such series or all Securityholders, as
the case may be, with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company 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 Securities in
accordance with Section 7.02(b), regardless of the source from which such
52
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 7.02(b).
Section 7.03.
Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15
following the date of this Indenture, deliver to each Holder, as provided in Trust Indenture Act
Section 313(c), a brief report dated as of such May 15, which complies with the provisions of such
Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed, with the Commission and
with the Company as required by Trust Indenture Act Section 313(d). The Company will promptly
notify the Trustee when any Securities are listed on any stock exchange.
Section 7.04.
Reports by Company
. The Company will:
(a) file with the Trustee, within 15 days after the Company 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 Company may be required to file with the Commission
pursuant to Section 13 or
Section 15(d)
of the Securities Exchange Act of 1934; or, if the Company
is not required to file information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act
of 1934 in respect of a security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Securityholders, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant to paragraphs (a)
and (b) of this Section as may be required by rules and regulations prescribed from time to time by
the Commission.
53
ARTICLE 8
Consolidation, Merger, Conveyance or Transfer
Section 8.01.
Company May Consolidate, etc., Only on Certain Terms.
The Company shall not
consolidate with or merge into any other corporation or convey or transfer all or substantially all
of its properties and assets to any Person, unless;
(a) either the Company shall be the continuing corporation, or the corporation formed by such
consolidation or into which the Company is merged or the Person which acquires by conveyance or
transfer all or substantially all of the properties and assets of the Company shall be a
corporation organized and existing under the laws of the United States of America or any State or
the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal, premium, if any, and interest, if any, on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of Default, or event which,
after notice or lapse of time, or both, would become an Event of Default, shall have happened and
be continuing; and
(c) the Company has delivered to the Trustee an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, conveyance or transfer and any assumption permitted or required by
this Article complies with the provisions of this Article.
Section 8.02.
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 Company in
accordance with Section 8.01, the successor corporation formed by such consolidation or into which
the Company is merged or the Person to which such conveyance or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation had been named as the Company herein and the
Company shall thereupon be released from all obligations hereunder and under the Securities. Such
successor corporation thereupon may cause to be signed and may issue any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit
54
under this Indenture as the Securities theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes in phraseology and
form (but not in substance) may be made in the Securities thereafter to be issued as may be
appropriate.
ARTICLE 9
Supplemental Indentures
Section 9.01.
Supplemental Indentures Without Consent of Securityholders.
Without the
consent of the Holders of any Securities, the Company 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:
(a) to evidence the succession of another corporation to the Company, or successive
successions, and the assumption by any such successor of the covenants, agreements and obligations
of the Company pursuant to Article 8 hereof; or
(b) to add to the covenants of the Company such further covenants, restrictions or conditions
for the protection of the Holders of the Securities of any or all series as the Company and the
Trustee shall consider to be for the protection of the Holders of the Securities of any or all
series or to surrender any right or power herein conferred upon the Company (and if such covenants
or the surrender of such right or power are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified series); or
(c) to cure any 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 that do not adversely
affect the interests of the Holders of Securities of any series in any material respect; or
(d) to add to this Indenture such provisions as may be expressly permitted by the TIA,
excluding, however, the provisions referred to in Section 316(a)(2) of 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
(e) to add guarantors or co-obligors with respect to any series of Securities; or
55
(f) to secure any series of Securities; or
(g) to establish any form of Security, as provided in Article 2 hereof, and to provide for the
issuance of any series of Securities, as provided in Article 3 hereof, and to set forth the terms
thereof, and/or to add to the rights of the Holders of the Securities of any series; or
(h) to evidence and provide for the acceptance of appointment by another corporation as a
successor Trustee hereunder with respect to one or more series of Securities and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to Section 6.11
hereof; or
(i) to add any additional Events of Default in respect of the Securities of any or all series
(and if such additional Events of Default are to be in respect of less than all series of
Securities, stating that such Events of Default are expressly being included solely for the benefit
of one or more specified series); or
(j) to comply with the requirements of the Commission in connection with the qualification of
this Indenture under the TIA; or
(k) to make any change in any series of Securities that does not adversely affect in any
material respect the interests of the Holders of such Securities.
Section 9.02.
Supplemental Indentures With Consent of Securityholders.
With the consent of
the Holders of not less than a majority in principal amount of the Outstanding Securities of each
series affected by such supplemental indenture or indentures, by Act of said Holders delivered to
the Company and the Trustee, the Company 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 Securities of
each such series under this Indenture;
provided, however
, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected thereby:
(a) change the Scheduled Maturity Date or the stated payment date of any payment of premium or
interest payable on any Security, or reduce the principal amount thereof, or any amount of interest
or premium payable thereon, or
(b) change the method of computing the amount of principal of any Security or any interest
payable thereon on any date, or change any Place of Payment where, or the coin or currency in
which, any Security or any payment of premium or interest thereon is payable, or
56
(c) impair the right to institute suit for the enforcement of any payment described in clauses
(a) or (b) on or after the same shall become due and payable, whether at Maturity or, in the case
of redemption or repayment, on or after the Redemption Date or the Repayment Date, as the case may
be; or
(d) change or waive the redemption or repayment provisions of any series;
(e) reduce the percentage in principal amount of the Outstanding Securities of any series, 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
(f) modify any of the provisions of this Section, Section 5.13 or Section 10.07, 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 Security affected
thereby;
provided, however
, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to the Trustee and concomitant changes in this
Section and Section 10.07, or the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.01(h); or
(g) adversely affect the ranking or priority of any series;
(h) release any guarantor or co-obligor from any of its obligations under its guarantee of the
Securities or this Indenture, except in compliance with the terms of this Indenture; or
(i) waive any Event of Default pursuant to Section 5.01(a), Section 5.01(b) or Section 5.01(c)
hereof with respect to such Security.
A supplemental indenture that changes or eliminates any covenant or other provision of this
Indenture that has expressly been included solely for the benefit of one or more particular series
of Securities, or that modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under this Section 9.02 to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 9.03.
Execution of Supplemental Indentures.
Upon request of the Company and upon
filing with the Trustee of evidence of an Act of Securityholders as aforementioned, the Trustee
shall join with the Company in the execution of such supplemental indenture unless such
supplemental indenture
57
affects the Trustees 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. 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 6.01) 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.
Section 9.04.
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 Company, and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be determined, exercised and enforced
thereunder to the extent provided therein.
Section 9.05.
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.
Section 9.06.
Reference in Securities to Supplemental Indentures.
Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the Company, to any
modification of this Indenture contained in any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE 10
Covenants
Section 10.01.
Payment of Principal, Premium and Interest.
With respect to each series of
Securities, the Company will duly and punctually pay or cause to be paid the principal, premium, if
any, and interest, if any, on such Securities in accordance with their terms and this Indenture,
and will duly comply with all the other terms, agreements and conditions contained in the Indenture
for the benefit of the Securities of such series.
Section 10.02.
Maintenance of Office or Agency.
So long as any of the Securities remain
outstanding, the Company will maintain an office or agency in each Place of Payment where
Securities may be presented or surrendered for
58
payment, where Securities may be surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company 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 Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Section 10.03.
Money or Security Payments to Be Held in Trust.
If the Company shall at any
time act as its own Paying Agent for any series of Securities, it will, on or before each due date
of the principal, premium, if any, or interest, if any, on any of the Securities of such series,
segregate and hold in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal, premium, or interest so becoming due until such sums shall be
paid to such Holders of such Securities or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal, premium, if any, or interest, if any, on any
Securities of such series, 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 Securities entitled to the same and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any series of Securities
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
(a) hold all sums held by it for the payment of principal, premium, if any, or interest, if
any, on Securities of such series in trust for the benefit of the Holders of the Securities
entitled thereto until such sums shall be paid to such Holders of such Securities or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other obligor upon the
Securities of such series) in the making of any such payment of principal, premium, if any, or
interest, if any, on the Securities of such series; and
(c) 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.
59
The Company may, at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture with respect to any series of Securities 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 Company
or such Paying Agent in respect of each and every series of Securities as to which it seeks to
discharge this Indenture or, if for any other purpose, all sums so held in trust by the Company in
respect of all Securities, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company 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 10.04.
Certificate to Trustee.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company (beginning in 2007), an Officers
Certificate, one of whose signatories shall be the Companys principal executive, accounting or
financial officer, stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any default by the Company in the
performance of any of its covenants, conditions or agreements contained herein (without regard to
any period of grace or requirement of notice provided hereunder), 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 10.05.
Corporate Existence.
Subject to Article 8 the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 10.06.
Limitation on Secured Debt.
With respect to any series of Securities, other than Subordinated Securities:
Unless otherwise provided in such series of Securities, so long as any of such Securities
shall be Outstanding, neither the Company nor any Restricted Subsidiary will incur, suffer to exist
or guarantee any indebtedness for borrowed money (
Debt
), secured by a mortgage, pledge, or lien
(a
Mortgage
) on any Principal Property or on any shares of stock of (or other interests in) any
Restricted Subsidiary unless the Company or such Restricted Subsidiary secures or causes such
Restricted Subsidiary to secure the Securities of such series (other than Subordinated Securities)
and any other Debt of the Company or such Restricted Subsidiary, at the option of the Company or
such Restricted Subsidiary, not subordinate to the Securities, equally and ratably with (or prior
to) such secured Debt, so long as such secured Debt shall be so secured, unless after giving effect
thereto the aggregate amount of all such Debt so secured does not exceed 15% of Consolidated Net
Tangible Assets. This restriction will not, however, apply to Debt secured by:
(a) Mortgages existing prior to the original issuance of such Securities;
60
(b) Mortgages on property of, or on shares of stock of (or other interests in) or Debt of, any
corporation existing at the time such corporation becomes a Restricted Subsidiary;
(c) Mortgages in favor of the Company or any Restricted Subsidiary;
(d) Mortgages in favor of, or required by contracts with, any governmental bodies;
(e) Mortgages on property, shares of stock (or other interests) or Debt existing at the time
of acquisition thereof (including acquisition through merger or consolidation) or to secure the
payment of all or any part of the purchase price thereof or construction or improvement thereon or
to secure any Debt incurred prior to, at the time of, or within 365 days after the later of the
acquisition, the completion of construction, or the commencement of full operation of such property
or within 365 days after the acquisition of such shares or Debt for the purpose of financing all or
any part of the purchase price thereof or construction thereon; and
(f) any extension, renewal or refunding referred to in the foregoing clauses (a) to (e),
inclusive.
The transfer of a Principal Property to an Unrestricted Subsidiary or the change in
designation from Restricted Subsidiary to Unrestricted Subsidiary which owns a Principal Property
shall not be restricted.
Section 10.07.
Waiver of Certain Covenants.
The Company may omit in respect of any series
of Securities, in any particular instance, to comply with any covenant or condition set forth in
Section 10.06, if before or after the time for such compliance the Holders of at least a majority
in principal amount of the Securities at the time Outstanding of such series shall, by Act of such
Securityholders, either waive such compliance in such instance or generally waive compliance with
such covenant or condition,
provided
that no waiver by the Holders of the Securities of such series
shall extend to or affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE 11
Redemption of Securities
Section 11.01.
Applicability of Article.
The Company may reserve the right to redeem and
pay before the Scheduled Maturity Date all or any part of the Securities of any series, either by
optional redemption, sinking or purchase fund or analogous obligation or otherwise, by provision
therefor in the form of Security for such series established and approved pursuant to Section 2.02
and 2.03 or as
61
otherwise provided in Section 3.01, and on such terms as are specified in such form or in the
indenture supplemental hereto with respect to Securities of such series as provided in Section
3.01. Redemption of Securities of any series shall be made in accordance with the terms of such
Securities and, to the extent that this Article does not conflict with such terms, the succeeding
Sections of this Article.
Section 11.02.
Election to Redeem; Notice to Trustee.
In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee) notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant
to an election of the Company which is subject to a condition specified in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers
Certificate evidencing compliance with such restriction or condition.
Section 11.03.
Selection by Trustee of Securities to be Redeemed.
If fewer than all the
Securities of any series are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate, which may include provision for the selection for redemption of portions
of the principal of Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series. Unless otherwise provided in the terms of a particular
series of Securities, the portions of the principal of Securities so selected for partial
redemption shall be equal to the minimum authorized denomination of the Securities of such series,
or an integral multiple thereof, and the principal amount which remains outstanding shall not be
less than the minimum authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security 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 Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal of such Security which has been or is to
be redeemed.
Section 11.04.
Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not fewer than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed, at his or her address appearing in the Security
Register on the applicable Record Date.
62
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, or if not then ascertainable, the manner of calculation thereof;
(3) if fewer than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of the
Securities to be redeemed, from the Holder to whom the notice is given and that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or Securities of the
same series in the aggregate principal amount equal to the unredeemed portion thereof will be
issued in accordance with Section 11.07;
(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security, and that interest, if any, thereon shall cease to accrue from and after said date;
(5) the place where such Securities are to be surrendered for payment of the Redemption Price,
which shall be the office or agency maintained by the Company in the Place of Payment pursuant to
Section 10.02 hereof; and
(6) that the redemption is on account of a sinking or purchase fund, or other analogous
obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company.
Section 11.05.
Deposit of Redemption Price.
On or prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money
sufficient to pay the Redemption Price of all the Securities which are to be redeemed on that date.
Section 11.06.
Securities Payable on Redemption Date.
Notice of Redemption having been
given as aforesaid, the Securities 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 Company
shall default in the payment of the Redemption Price) such Securities shall cease to bear interest.
Upon surrender of such Securities for redemption in accordance with the notice, such Securities
shall be paid by the Company at the Redemption Price. Any installment of interest due and payable
on or prior to the Redemption Date shall be payable to the Holders of such Securities registered as
such on the relevant Record Date according to the terms and the provisions of Section 3.07 above;
unless, with respect to an Interest Payment Date that falls on a Redemption
63
Date, such Securities provide that interest due on such date is to be paid to the Person to
whom principal is payable.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate
borne by the Security, or as otherwise provided in such Security.
Section 11.07.
Securities Redeemed in Part.
Any Security that is to be redeemed only in
part shall be surrendered at the office or agency maintained by the Company in the Place of Payment
pursuant to Section 10.02 hereof with respect to that series (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge and at the expense of the Company, a new Security or
Securities of the same series, tenor, terms and Scheduled Maturity Date, of any authorized
denomination as requested by such Holders in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
Section 11.08.
Provisions with Respect to any Sinking Funds.
Unless the form or terms of
any series of Securities shall provide otherwise, in lieu of making all or any part of any
mandatory sinking fund payment with respect to such series of Securities in cash, the Company may
at its option (a) deliver to the Trustee for cancellation any Securities of such series theretofore
acquired by the Company, or (b) receive credit for any Securities of such series (not previously so
credited) acquired or redeemed by the Company (other than through operation of a mandatory sinking
fund) and theretofore delivered to the Trustee for cancellation, and if it does so then (i)
Securities so delivered or credited shall be credited at the applicable sinking fund Redemption
Price with respect to Securities of such series, and (ii) on or before the 60th day next preceding
each sinking fund Redemption Date with respect to such series of Securities, the Company will
deliver to the Trustee (A) an Officers Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by the delivery or credit of Securities of such
series acquired or redeemed by the Company, and (B) such Securities, to the extent not previously
surrendered. Such Officers Certificate shall also state the basis for any such credit and that the
Securities for which the Company elects to receive credit have not been previously so credited and
were not acquired by the Company through operation of the mandatory sinking fund, if any, provided
with respect to such Securities and shall also state that no Event of Default with respect to
Securities of such series has occurred and is continuing. All Securities so delivered to the
Trustee shall be canceled by the Trustee and no Securities shall be authenticated in lieu thereof.
64
If the sinking fund payment or payments (mandatory or optional) with respect to any series of
Securities made in cash plus any unused balance of any preceding sinking fund payments with respect
to Securities of such series made in cash shall exceed $50,000 (or a lesser sum if the Company
shall so request), unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect to Securities of
such series next following the date of such payment to the redemption of Securities of such series
at the applicable sinking fund Redemption Price with respect to Securities of such series, together
with accrued interest, if any, to the date fixed for redemption, with the effect provided in
Section 11.06. The Trustee shall select, in the manner provided in Section 11.03, for redemption on
such sinking fund Redemption Date a sufficient principal amount of Securities of such series to
utilize that cash and shall thereupon cause notice of redemption of the Securities of such series
for the sinking fund to be given in the manner provided in Section 11.04 (and with the effect
provided in Section 11.06) for the redemption of Securities in part at the option of the Company.
Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities
of such series shall be added to the next cash sinking fund payment with respect to Securities of
such series received by the Trustee and, together with such payment, shall be applied in accordance
with the provisions of this Section 11.08. Any and all sinking fund moneys with respect to
Securities of any series held by the Trustee at the Maturity of Securities of such series, and not
held for the payment or redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to
the payment of the principal of the Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with respect to Securities of any
series, the Company shall pay to the Trustee in cash a sum equal to all accrued interest, if any,
to the date fixed for redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 11.08.
The Trustee shall not redeem any Securities with sinking fund moneys or give any notice of
redemption of Securities by operation of the applicable sinking fund during the continuance of a
default in payment of interest on Securities of such series or of any Event of Default with respect
to such series, except that if the notice of redemption of any Securities shall theretofore have
been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance
with the terms of this Article 11. Except as aforesaid, any moneys in the sinking fund with respect
to Securities of any series at the time when any such default or Event of Default with respect to
such series shall occur, and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default with respect to such series, be held as security
for the payment of all Securities of such series;
provided, however
, that in case such default or
Event of Default with respect to such series
65
shall have been cured or waived as provided herein, such moneys shall thereafter be applied on
the next sinking fund payment date on which such moneys may be applied pursuant to the provisions
of this Section 11.08.
ARTICLE 12
Repayment at Option of Holders
Section 12.01.
Applicability of Article.
Repayment of Securities of any series before their
Scheduled Maturity Date at the option of Holders thereof shall be made in accordance with the terms
of such Securities and (except as otherwise specified as contemplated by Section 3.01 for
Securities of any series) in accordance with this Article.
Section 12.02.
Repayment of Securities.
Securities of any series subject to repayment in
whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof, together with
interest thereon accrued to the Repayment Date specified in the terms of such Securities. On or
before the Repayment Date, the Company will deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section
10.03) an amount of money sufficient to pay the Repayment Price of all the Securities which are to
be repaid on such date.
Section 12.03.
Exercise of Option.
Securities of any series subject to repayment at the
option of the Holders thereof will contain an
Option to Elect Repayment
form on the reverse of
such Securities. To be repaid at the option of the Holder, any Security so providing for such
repayment, with the
Option to Elect Repayment
form on the reverse of such Security duly completed
by the Holder, must be received by the Company at the Place of Payment therefor specified in the
terms of such Security (or at such other place or places of which the Company shall from time to
time notify the Holders of such Securities) not earlier than 30 days nor later than 15 days prior
to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such Security to be repaid, in
increments of $1,000 unless otherwise specified in the terms of such Security, and the denomination
or denominations of the Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid must be specified. The
principal amount of any Security providing for repayment at the option of the Holder thereof may
not be repaid in part, if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the repayment option by
the Holder shall be irrevocable unless waived by the Company.
66
Section 12.04.
When Securities Presented for Repayment Become Due and Payable.
If
Securities of any series providing for repayment at the option of the Holders thereof shall have
been surrendered as provided in this Article and as provided by the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on and after such
Repayment Date (unless the Company shall default in the payment of such Securities on such
Repayment Date) interest on such Securities or the portions thereof, as the case may be, shall
cease to accrue.
Section 12.05.
Securities Repaid in Part.
Upon surrender of any Security which is to be
repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge and at the expense of the Company, a new
Security or Securities of the same series, tenor, terms and Scheduled Maturity Date, of any
authorized denomination specified by the Holder, in an aggregate principal amount equal to and in
exchange for the portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE 13
Subordination Of Subordinated Securities
Section 13.01.
Agreement To Subordinate.
The Company covenants and agrees, and each
Holder of any Subordinated Security issued hereunder by his acceptance thereof, whether upon
original issue or upon transfer or assignment, likewise covenants and agrees, that the principal of
(and premium, if any) and interest on each and all of the Subordinated Securities issued hereunder
are hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right
of payment to the prior payment in full of all Senior Indebtedness.
Section 13.02.
Payment On Dissolution, Liquidation Or Reorganization; Default On Senior
Indebtedness.
Upon any payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities, upon any dissolution or winding up or total or
partial liquidation or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other similar proceedings, or upon any assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of the Company or
otherwise, all principal of (and premium, if any) and interest then due upon all Senior
Indebtedness shall first be paid in full, or payment thereof provided for in money or moneys
worth, before the Holders of the Subordinated Securities or the Trustee on their behalf shall be
entitled to receive any assets or securities (other than shares of stock of the Company as
reorganized or readjusted or securities of the Company or any other corporation provided for by a
plan of reorganization or
67
readjustment, junior to, or the payment of which is subordinated at least to the extent provided in
this Article to the payment of, all Senior Indebtedness which may at the time be outstanding or any
securities issued in respect thereof under any such plan of reorganization or readjustment) in
respect of the Subordinated Securities (for principal, premium or interest). Upon any such
dissolution or winding up or liquidation or reorganization, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property or securities
(other than as aforesaid), to which the Holders of the Subordinated Securities or the Trustee on
their behalf would be entitled, except for the provisions of this Article, shall be made by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, direct to the holders of Senior Indebtedness or their
representatives to the extent necessary to pay all Senior Indebtedness in full, in money or moneys
worth, after giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness. In the event that, notwithstanding the foregoing, the Trustee or the Holder of
any Subordinated Security shall, under the circumstances described in the two preceding sentences,
have received any payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities (other than as aforesaid) before all Senior
Indebtedness is paid in full or payment thereof provided for in money or moneys worth, and if such
fact shall then have been made known to the Trustee or, as the case may be, such Holder, then such
payment or distribution of assets or securities of the Company shall be paid over or delivered
forthwith to the receiver, trustee in bankruptcy, liquidating trustee, agent or other person making
payment or distribution of assets or securities of the Company for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, in money or moneys worth, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness.
Subject to the payment in full, in money or moneys worth, of all Senior Indebtedness, the
Holders of the Subordinated Securities (together with the holders of any indebtedness of the
Company which is subordinate in right of payment to the payment in full of all Senior Indebtedness
and which is not subordinate in right of payment to the Subordinated Securities) shall be
subrogated to the rights of the holders of Senior Indebtedness to receive payments or distribution
of assets or securities of the Company applicable to Senior Indebtedness until the principal of
(and premium, if any) and interest on the Senior Indebtedness shall be paid in full. No such
payments or distributions applicable to Senior Indebtedness shall, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the Subordinated
Securities, be deemed to be a payment by the Company to or on account of the Subordinated
Securities, it being understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Subordinated Securities, on the
one hand, and the holders of Senior Indebtedness, on the other hand. Nothing contained in this
68
Article or elsewhere in this Indenture or in the Subordinated Securities is intended to or shall
impair, as between the Company and the Holders of Subordinated Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the Subordinated Securities
the principal of (and premium, if any) and interest on the Subordinated Securities as and when the
same shall become due and payable in accordance with their terms, or to affect (except to the
extent specifically provided above in this paragraph) the relative rights of the Holders of the
Subordinated Securities and creditors of the Company other than the holders of Senior Indebtedness.
Nothing contained herein shall prevent the Trustee or the Holder of any Subordinated Security from
exercising all remedies otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article, of the holders of Senior Indebtedness in respect
of assets or securities of the Company of any kind or character, whether cash, property or
securities, received upon the exercise of any such remedy.
Upon any payment or distribution of assets or securities of the Company referred to in this
Article, the Trustee and the Holders of the Subordinated Securities shall be entitled to rely upon
any order or decree of a court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, and upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making any such payment or
distribution, delivered to the Trustee or to the Holders of the Subordinated Securities for the
purpose of ascertaining the persons entitled to participate in such distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article.
If:
(i) there
shall have occurred a default in the payment on account of the principal of (or premium, if any) or interest on or other monetary amounts due and payable on any
Senior Indebtedness, or
(ii) any other default shall have occurred concerning any Senior Indebtedness which permits
the holder or holders thereof to accelerate the maturity of such Senior Indebtedness following
notice, the lapse of time, or both, or
(iii) during any time Senior Indebtedness is outstanding, the principal of, and accrued
interest on, any series of Subordinated Securities shall have been declared due and payable upon an
Event of Default pursuant to Section 5.02 hereof (and such declaration shall not have been
rescinded or annulled pursuant to this Indenture);
69
then, unless and until such default shall have been cured or waived or shall have ceased to exist,
or such declaration shall have been waived, rescinded or annulled, no payment shall be made by the
Company on account of the principal (or premium, if any) or interest on the Subordinated
Securities.
The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a representative of such holder or a
trustee under any indenture under which any instruments evidencing any such Senior Indebtedness may
have been issued) to establish that such notice has been given by a holder of such Senior
Indebtedness or such representative or trustee on behalf of such holder. In the event that the
Trustee determines in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 13, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution and any other facts
pertinent to the right of such Person under this Article 13, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment or distribution.
Section 13.03.
Payment Prior To Dissolution Or Default.
Nothing contained in this Article
or elsewhere in this Indenture, or in any of the Subordinated Securities, shall prevent (a) the
Company, at any time except under the conditions described in Section 13.02 or during the pendency
of any dissolution or winding up or total or partial liquidation or reorganization proceedings
therein referred to, from making payments at any time of principal of (or premium, if any) or
interest on Subordinated Securities or from depositing with the Trustee or any Paying Agent moneys
for such payments, or (b) the application by the Trustee or any Paying Agent of any moneys
deposited with it under this Indenture to the payment of or on account of the principal of (or
premium, if any) or interest on Subordinated Securities to the Holders entitled thereto if such
payment would not have been prohibited by the provisions of Section 13.02 on the day such moneys
were so deposited.
Notwithstanding the provisions of Section 13.01 or any other provision of this Indenture, the
Trustee and any Paying Agent shall not be charged with knowledge of the existence of any Senior
Indebtedness, or of the occurrence of any default with respect to Senior Indebtedness of the
character described in Section 13.02, or of any other facts which would prohibit the making of any
payment of moneys to or by the Trustee or such Paying Agent, unless and until the Trustee shall
have received, no later than three Business Days prior to such payment, written notice thereof from
the Company or from a holder of such Senior Indebtedness and the Trustee shall not be affected by
any such notice which may be received by it on or after such third Business Day.
70
Section 13.04.
Securityholders Authorize Trustee To Effectuate Subordination of Securities.
Each Holder of Subordinated Securities by his or her acceptance thereof authorizes and expressly
directs the Trustee on his or her behalf to take such action in accordance with the terms of this
Indenture as may be necessary or appropriate to effectuate the subordination provisions contained
in this Article 13 and to protect the rights of the Holders of Subordinated Securities pursuant to
this Indenture, and appoints the Trustee his or her attorney-in-fact for such purpose.
Section 13.05.
Right Of Trustee To Hold Senior Indebtedness.
The Trustee shall be entitled
to all of the rights set forth in this Article 13 in respect of any Senior Indebtedness at any time
held by it to the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such holder.
Section 13.06.
Article 13 Not To Prevent Events Of Default.
The failure to make a payment
on account of principal of, premium, if any, or interest on the Subordinated Securities by reason
of any provision of this Article 13 shall not be construed as preventing the occurrence of an Event
of Default under Section 6.01 or an event which with the giving of notice or lapse of time, or
both, would become an Event of Default or in any way prevent the Holders of Subordinated Securities
from exercising any right hereunder other than the right to receive payment on the Subordinated
Securities.
Section 13.07.
No Fiduciary Duty Of Trustee To Holders Of Senior Indebtedness.
The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not
be liable to any such holders (other than for its willful misconduct, bad faith or negligence) if
it shall in good faith mistakenly pay over or distribute to the Holders of Subordinated Securities
or the Company or any other Person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article 13 or otherwise. Nothing in this Section
13.06 shall affect the obligation of any other such Person to hold such payment for the benefit of,
and to pay such payment over to, the holders of Senior Indebtedness or their representative.
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested; all as of the day and year first
above written.
|
|
|
|
|
|
|
|
|
PepsiCo, Inc.,
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ J. Darrell Thomas
|
|
|
|
|
|
|
Name: J. Darrell Thomas
|
|
|
|
|
|
|
Title: VP and Assistant Treasurer
|
|
|
|
|
|
|
|
Attest:
|
|
|
|
|
|
|
|
By:
|
|
/s/ Thomas H. Tamoney, Jr.
Name: Thomas H. Tamoney, Jr.
|
|
|
|
|
Title: VP, Deputy General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York, Trustee
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Francine Kincaid
Name: Francine Kincaid
|
|
|
|
|
|
|
Title: Vice President
|
|
|
|
|
|
|
|
Attest:
|
|
|
|
|
|
|
|
By:
|
|
/s/ James D. Heaney
Name: James D. Heaney
|
|
|
|
|
Title: Vice President
|
|
|
72
|
|
|
State of New York
|
|
|
|
|
ss.:
|
County of New York
|
|
|
On the 21st day of May 2007 before me personally came Francine Kincaid to me known, who,
being by me duly sworn, did depose and say that she resides at 101 Barclay St, NY, NY; that she is
a Vice President of The Bank of New York, one of the parties described in and which executed the
above instrument; that she 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 she signed her name thereto by like authority.
|
|
|
|
|
|
|
Name
|
|
|
|
|
|
|
|
|
|
/s/ Carlos R. Luciano
Notary Public, State of New York
|
|
|
|
|
No. 41-4705897
|
|
|
|
|
Qualified in Queens County
|
|
|
|
|
Commission Expires 4/30/2010
|
|
|
[Notarial Seal]
73
|
|
|
State of New York
|
|
|
|
|
ss.:
|
County of Westchester
|
|
|
On the 21st day of May 2007 before me personally came Darrell Thomas, to me known, who, being
by me duly sworn, did depose and say that he resides at 700 Anderson Hill Rd., Purchase, NY; that
he is the Vice President Assistant Treasurer of PepsiCo, Inc., one of the parties described in and
which executed the above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to that instrument is such corporate seal; that it was affixed by authority of the
board of directors of said corporation; and that he signed his name thereto by like authority.
|
|
|
|
|
|
|
Name
|
|
|
|
|
|
|
|
|
|
/s/ Marianne B. Dalton
|
|
|
|
|
Notary Public, State of New York
|
|
|
|
|
No. OIDA6024494
|
|
|
|
|
Qualified in Westchester County
|
|
|
|
|
My Commission Expires May 10, 2011
|
|
|
[Notarial Seal]
74
Exhibit 4.5
BOTTLING GROUP, LLC
(as Obligor)
and
PEPSICO, INC.
(as Guarantor)
and
THE BANK OF NEW YORK MELLON
(as Trustee)
Form of Indenture
Dated as of October , 2008
SENIOR NOTES
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE I
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
Section 1.01.
|
|
Definitions
|
|
|
1
|
|
Section 1.02.
|
|
Officers Certificates and Opinions
|
|
|
11
|
|
Section 1.03.
|
|
Form of Documents Delivered to Trustee
|
|
|
12
|
|
Section 1.04.
|
|
Acts of Holders
|
|
|
12
|
|
Section 1.05.
|
|
Notices, Etc., to Trustee, Obligor and Guarantor
|
|
|
13
|
|
Section 1.06.
|
|
Notice to Holders; Waiver
|
|
|
14
|
|
Section 1.07.
|
|
Conflict with Trust Indenture Act
|
|
|
14
|
|
Section 1.08.
|
|
Effect of Headings and Table of Contents
|
|
|
14
|
|
Section 1.09.
|
|
Successors and Assigns
|
|
|
14
|
|
Section 1.10.
|
|
Separability Clause
|
|
|
15
|
|
Section 1.11.
|
|
Benefits of Indenture
|
|
|
15
|
|
Section 1.12.
|
|
Governing Law
|
|
|
15
|
|
Section 1.13.
|
|
Counterparts
|
|
|
15
|
|
Section 1.14.
|
|
Legal Holidays
|
|
|
15
|
|
|
|
|
|
|
|
|
ARTICLE II
|
THE NOTES
|
|
|
|
|
|
|
|
Section 2.01.
|
|
Form and Dating
|
|
|
15
|
|
Section 2.02.
|
|
Execution and Authentication
|
|
|
19
|
|
Section 2.03.
|
|
Temporary Notes
|
|
|
20
|
|
Section 2.04.
|
|
Registration, Transfer and Exchange
|
|
|
20
|
|
Section 2.05.
|
|
Mutilated, Destroyed, Lost and Stolen Notes
|
|
|
23
|
|
Section 2.06.
|
|
Payment of Interest; Interest Rights Preserved
|
|
|
24
|
|
Section 2.07.
|
|
Persons Deemed Owners
|
|
|
25
|
|
Section 2.08.
|
|
Cancellation
|
|
|
25
|
|
Section 2.09.
|
|
Computation of Interest
|
|
|
26
|
|
Section 2.10.
|
|
CUSIP Numbers
|
|
|
26
|
|
|
|
|
|
|
|
|
ARTICLE III
|
DISCHARGE OF INDENTURE
|
|
|
|
|
|
|
|
Section 3.01.
|
|
Discharge of Indenture
|
|
|
26
|
|
Section 3.02.
|
|
Defeasance and Discharge of Covenants upon
Deposit of Moneys, U.S. Government Obligations
|
|
|
27
|
|
Section 3.03.
|
|
Application of Trust Money
|
|
|
29
|
|
Section 3.04.
|
|
Paying Agent to Repay Moneys Held
|
|
|
29
|
|
Section 3.05.
|
|
Return of Unclaimed Amounts
|
|
|
29
|
|
Section 3.06.
|
|
Reinstatement
|
|
|
30
|
|
|
|
|
|
|
|
|
ARTICLE IV
|
REMEDIES
|
Section 4.01.
|
|
Events of Default
|
|
|
30
|
|
i
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
|
|
|
|
Page
|
Section 4.02.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
32
|
|
Section 4.03.
|
|
Collection of Indebtedness and Suits for Enforcement
|
|
|
33
|
|
Section 4.04.
|
|
Trustee May File Proofs of Claim
|
|
|
34
|
|
Section 4.05.
|
|
Trustee May Enforce Claims Without Possession of Notes
|
|
|
34
|
|
Section 4.06.
|
|
Application of Money Collected
|
|
|
35
|
|
Section 4.07.
|
|
Limitation on Suits
|
|
|
35
|
|
Section 4.08.
|
|
Unconditional Right of Holders to Receive Payment
of Principal, Premium and Interest
|
|
|
36
|
|
Section 4.09.
|
|
Restoration of Rights and Remedies
|
|
|
36
|
|
Section 4.10.
|
|
Rights and Remedies Cumulative
|
|
|
36
|
|
Section 4.11.
|
|
Delay or Omission Not Waiver
|
|
|
36
|
|
Section 4.12.
|
|
Control by Holders
|
|
|
36
|
|
Section 4.13.
|
|
Waiver of Past Defaults
|
|
|
37
|
|
Section 4.14.
|
|
Undertaking for Costs
|
|
|
37
|
|
Section 4.15.
|
|
Waiver of Stay or Extension Laws
|
|
|
37
|
|
|
|
|
|
|
|
|
ARTICLE V
|
THE TRUSTEE
|
|
|
|
|
|
|
|
Section 5.01.
|
|
Certain Duties and Responsibilities of Trustee
|
|
|
38
|
|
Section 5.02.
|
|
Notice of Defaults
|
|
|
39
|
|
Section 5.03.
|
|
Certain Rights of Trustee
|
|
|
39
|
|
Section 5.04.
|
|
Not Responsible for Recitals or Issuance of Notes
|
|
|
40
|
|
Section 5.05.
|
|
May Hold Notes
|
|
|
40
|
|
Section 5.06.
|
|
Money Held in Trust
|
|
|
40
|
|
Section 5.07.
|
|
Compensation and Reimbursement
|
|
|
41
|
|
Section 5.08.
|
|
Disqualification; Conflicting Interests
|
|
|
41
|
|
Section 5.09.
|
|
Corporate Trustee Required; Eligibility
|
|
|
42
|
|
Section 5.10.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
42
|
|
Section 5.11.
|
|
Acceptance of Appointment by Successor
|
|
|
44
|
|
Section 5.12.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
45
|
|
Section 5.13.
|
|
Preferential Collection of Claims Against Obligor
|
|
|
45
|
|
Section 5.14.
|
|
Appointment of Authenticating Agent
|
|
|
45
|
|
|
|
|
|
|
|
|
ARTICLE VI
|
HOLDERS LISTS AND REPORTS BY TRUSTEE AND OBLIGOR
|
|
|
|
|
|
|
|
Section 6.01.
|
|
Obligor to Furnish Trustee Names and Addresses of Holders
|
|
|
47
|
|
Section 6.02.
|
|
Preservation of Information; Communications to Holders
|
|
|
47
|
|
Section 6.03.
|
|
Reports by Trustee
|
|
|
47
|
|
Section 6.04.
|
|
Reports by Obligor and Guarantor
|
|
|
48
|
|
|
|
|
|
|
|
|
ARTICLE VII
|
CONSOLIDATION, MERGER OR TRANSFER
|
|
|
|
|
|
|
|
Section 7.01.
|
|
Obligor May Consolidate, Etc., Only on Certain Terms
|
|
|
48
|
|
ii
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
|
|
|
|
Page
|
Section 7.02.
|
|
Guarantor May Consolidate, Etc., Only on Certain Terms
|
|
|
48
|
|
Section 7.03.
|
|
Successor Entity Substituted
|
|
|
49
|
|
|
|
|
|
|
|
|
ARTICLE VIII
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
Section 8.01.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
49
|
|
Section 8.02.
|
|
Supplemental Indentures with Consent of Holders
|
|
|
51
|
|
Section 8.03.
|
|
Execution of Supplemental Indentures
|
|
|
52
|
|
Section 8.04.
|
|
Effect of Supplemental Indentures
|
|
|
52
|
|
Section 8.05.
|
|
Conformity with Trust Indenture Act
|
|
|
52
|
|
Section 8.06.
|
|
Documents to Be Given to Trustee
|
|
|
52
|
|
Section 8.07.
|
|
Notation on Notes in Respect of Supplemental Indentures
|
|
|
52
|
|
|
|
|
|
|
|
|
ARTICLE IX
|
COVENANTS
|
|
|
|
|
|
|
|
Section 9.01.
|
|
Payment of Principal, Premium and Interest
|
|
|
53
|
|
Section 9.02.
|
|
Maintenance of Office or Agency
|
|
|
53
|
|
Section 9.03.
|
|
Money for Note Payments to be Held in Trust
|
|
|
53
|
|
Section 9.04.
|
|
Certificate to Trustee
|
|
|
54
|
|
Section 9.05.
|
|
Existence
|
|
|
55
|
|
Section 9.06.
|
|
Limitation on Liens
|
|
|
55
|
|
Section 9.07.
|
|
Limitation on Sale-Leaseback Transactions
|
|
|
57
|
|
|
|
|
|
|
|
|
ARTICLE X
|
REDEMPTION OF NOTES
|
|
|
|
|
|
|
|
Section 10.01.
|
|
Election to Redeem; Notice to Trustee
|
|
|
57
|
|
Section 10.02.
|
|
Selection by Trustee of the Notes to be Redeemed
|
|
|
58
|
|
Section 10.03.
|
|
Notice of Redemption
|
|
|
58
|
|
Section 10.04.
|
|
Deposit of Redemption Price
|
|
|
59
|
|
Section 10.05.
|
|
Notes Payable on Redemption Date
|
|
|
59
|
|
Section 10.06.
|
|
Notes Redeemed in Part
|
|
|
59
|
|
Section 10.07.
|
|
Optional Redemption
|
|
|
59
|
|
Section 10.08.
|
|
Mandatory Redemption
|
|
|
60
|
|
|
|
|
|
|
|
|
ARTICLE XI
|
GUARANTEE
|
|
|
|
|
|
|
|
Section 11.01.
|
|
Guarantee
|
|
|
60
|
|
Section 11.02.
|
|
Execution and Delivery of the Guarantee
|
|
|
64
|
|
Section 11.03.
|
|
Limitation of the Guarantors Liability
|
|
|
64
|
|
Section 11.04.
|
|
Subrogation
|
|
|
65
|
|
|
|
|
|
|
|
|
EXHIBIT A:
|
|
Guarantee
|
|
|
A-1
|
|
iii
THIS INDENTURE, among Bottling Group, LLC, a Delaware limited liability company (the
Obligor
), having its principal office at One Pepsi Way, Somers, New York 10589, PepsiCo,
Inc., a North Carolina corporation, as guarantor (the
Guarantor
), having its principal
office at 700 Anderson Hill Road, Purchase, NY 10577, and The Bank of New York Mellon, a national
banking association organized and existing under the laws of the United States of America, as
trustee (the
Trustee
), is made and entered into as of this [] day of October, 2008.
RECITALS OF THE OBLIGOR AND THE GUARANTOR
WHEREAS, the Obligor has duly authorized the issuance from time to time of its Senior Notes in
one or more series (the
Notes
) up to such principal amount or amounts as may from time to
time be authorized in accordance with the terms of this Indenture and to provide, among other
things, for the authentication, delivery and administration thereof, the Obligor has duly
authorized the execution and delivery of this Indenture;
WHEREAS, this Indenture provides for the issuance of a Guarantee of the Notes to be endorsed
on the Notes as provided herein;
WHEREAS, the Guarantor wishes to guarantee the Notes as provided herein;
WHEREAS, the Guarantee shall become effective on the Guarantee Commencement Date (as
hereinafter defined), except that under certain circumstances described below the Guarantee may not
become effective or may only be a partial guarantee of the principal of and interest and premium,
if any on the Notes; and
WHEREAS, all things necessary to make this Indenture a valid agreement of the Obligor and the
Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE:
In consideration of the premises and the purchases of the Notes by the Holders (as hereinafter
defined) thereof, the Obligor, the Guarantor and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective Holders from time to time of the Notes or any
series thereof as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01.
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;
1
(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 U.S. GAAP; 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, has the meaning specified in Section
1.04.
Affiliate
of any specified Person 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 weighted average interest rate borne by all Outstanding Notes 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.
Authenticating Agent
means any Person authorized by the Trustee to authenticate
Notes under Section 5.14.
Authentication Order
has the meaning specified in Section 2.02(1).
Bankruptcy Code
means title 11, U.S. Code, as amended, or any similar state or
federal law for the relief of debtors.
Benefitted Party
has the meaning specified in Section 11.01.
2
Board of Directors
means, with respect to the Guarantor, (a) the board of directors
of the Guarantor or (b) any duly authorized committee of that board.
Board Resolution
means, with respect to the Guarantor, a copy of a resolution of the
Board of Directors certified by the Secretary or an Assistant Secretary of the Guarantor 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 City or Luxembourg are authorized or
required by law, regulation or executive order to be closed.
Commission
means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, 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
or
Company Order
means (a) with respect to the Obligor, a
written request or order, respectively, signed in the name of the Obligor by any Officer thereof
and delivered to the Trustee and (b) with respect to the Guarantor, a written request or order,
respectively, signed in the name of the Guarantor by any Officer thereof and delivered to the
Trustee.
Comparable Treasury Issue
means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to
be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Notes.
Comparable Treasury Price
means, with respect to any Redemption Date for the Notes
of any series, (a) the average of four Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (b) if
the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all
such quotations.
Consolidated Net Tangible Assets
means, with respect to any Person, the total amount
of assets of such Person and its Subsidiaries minus (a) all applicable depreciation, amortization,
and other valuation reserves, (b) the amount of assets resulting from write-ups of capital assets
of such Person and its Subsidiaries (except write-ups in connection with accounting for
acquisitions in accordance with U.S. GAAP), (c) all current liabilities of such Person and its
Subsidiaries (excluding any intercompany liabilities) and (d) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set
forth on the latest quarterly or annual consolidated balance sheet of such Person 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 4 New York Plaza, New York, New York 10004,
3
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 4 New York Plaza,
15th Floor, New York, New York 10004.
Covenant Defeasance
has the meaning specified in Section 3.02.
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, (a) with respect to the Obligor, any indebtedness of the Obligor 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, and, (b) with respect to the Guarantor, any indebtedness of the Guarantor for borrowed
money.
Defaulted Interest
has the meaning specified in Section 2.06.
Definitive Note
means a certificated Note registered in the name of the Holder
thereof and issued in accordance with this Indenture.
Depositary
means with respect to the Notes of any series issuable or issued in whole
or in part in global form, the Person designated as Depositary for such series by the Obligor
pursuant to Section 2.01 or 2.04, unless and until a successor Depositary for such series shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter
Depositary with respect to the Notes of a series shall mean or include each Person who is then a
Depositary hereunder with respect to such series.
Discharged
has the meaning specified in Section 3.02.
DTC
has the meaning specified in Section 2.04(2).
Entity
means any corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust or unincorporated organization.
Event of Default
has the meaning specified in Section 4.01.
Exchange Act
means the U.S. Securities Exchange Act of 1934 (or any successor Act),
as amended, and the rules and regulations of the Commission promulgated thereunder.
Exempted Debt
means the sum, without duplication, of the following items outstanding
as of the date Exempted Debt is being determined: (a) Debt incurred after the date of this
Indenture and secured by Liens created or assumed or permitted to exist on any Principal Property
(as such term is defined with respect to the Obligor) or on any shares of stock of any Restricted
Subsidiary of the Obligor, other than Debt secured by Liens described in clauses (i)
4
through (vii) of Section 9.06(1) and (b) Attributable Debt of the Obligor and its Restricted
Subsidiaries in respect of all sale and lease-back transactions with regard to any Principal
Property (as such term is defined with respect to the Obligor) entered into pursuant to Section
9.07(2).
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 2.01, which is required to
be placed on all Global Notes issued pursuant to this Indenture.
Guarantee
means the guarantee of the Obligors obligations under this Indenture and
the Notes by the Guarantor pursuant to Article XI.
Guarantee Commencement Date
means, if the Guarantee becomes effective pursuant to
Article XI hereof, one Business Day prior to the 2009 Notes Payment Date.
Guarantor
means PepsiCo, Inc., a North Carolina corporation, unless and until a
successor Entity or assign shall have assumed the obligations of the Guarantor under this Indenture
and the Guarantee and thereafter
Guarantor
shall mean such successor Entity or assign.
Holder
and
Holder of Notes
means a Person in whose name a Note is
registered in the Security Register.
Indenture
or
this Indenture
means this Indenture, as amended or
supplemented from time to time, including the Exhibits hereto.
Independent Investment Banker
means one of the Reference Treasury Dealers appointed
by the Trustee after consultation with the Obligor.
Interest Payment Date
, when used with respect to any Note, means the date specified
in such Note on which an installment of interest on such Note is scheduled to be paid.
Issue Date
of any Note (or portion thereof) means the earlier of (a) the date of
such Note or (b) the date of any Note (or portion thereof) for which such Note was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
Legal Defeasance
has the meaning specified in Section 3.02.
Lien
has the meaning specified in Section 9.06(1).
Managing Director-Delegatee
means the Managing Director-Delegatee of the Obligor or
the Guarantor.
5
Managing Directors
means (a) the Managing Directors of the Obligor or the Guarantor
or (b) any duly authorized committee of the Managing Directors of the Obligor or the Guarantor.
Managing Directors Resolution
means, with respect to the Obligor or the Guarantor, a
copy of a resolution of the Managing Directors certified by a Managing Director or a Managing
Director-Delegatee of the Obligor or the Guarantor to have been duly adopted by the Managing
Directors and to be in full force and effect on the date of such certification, and delivered to
the Trustee.
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 or by declaration of acceleration, call for redemption, or otherwise.
Maturity Date
, when used with respect to any Note or any installment of principal
thereof means the date specified in such Note as the fixed date on which the principal of such Note
or such installment of principal becomes due and payable.
Notes
has the meaning specified in the Recitals of the Obligor on the first page of
this Indenture, including any replacement Notes issued therefor in accordance with this Indenture.
Obligor
means Bottling Group, LLC, a Delaware limited liability company, unless and
until a successor Entity or assign shall have assumed the obligations of the Obligor under this
Indenture and the Notes and thereafter Obligor shall mean such successor Entity or assign.
Officer
means, (a) with respect to the Obligor, a Managing Director, a Managing
Director-Delegatee, the principal financial officer or any other officer or officers of the Obligor
designated pursuant to an applicable Managing Directors Resolution or (b) with respect to the
Guarantor, the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the
Executive Vice President, any Vice President, the Treasurer, the Assistant Treasurer or any other
officer or officers of the Guarantor 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 or any series of Notes means, as of
the date of determination, all Notes or all Notes of such series, as the case may be, theretofore
authenticated and delivered under this Indenture, except:
6
(a) such Notes or such Notes of such series, as the case may be, theretofore cancelled
by the Trustee or delivered to the Trustee for cancellation;
(b) such Notes or such Notes of such series, as the case may be, 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 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 or such Notes of such series, as the case
may be, are to be redeemed prior to their Maturity Date, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(c) such Notes or such Notes of such series, as the case may be, in exchange for or in
lieu of which other Notes or other Notes of such series, as the case may be, have been
authenticated and delivered pursuant to this Indenture, or which shall have been paid, in
each case, pursuant to the terms of Section 2.05 (except with respect to any such Note or
any such Note of such series, as the case may be, as to which proof satisfactory to the
Trustee is presented that such Note or such Note of such series, as the case may be, is held
by a person in whose hands such Notes or such Notes of such series, as the case may be, is a
legal, valid, and binding obligation of the Obligor); and
(d) solely to the extent provided in Article III, Notes or Notes of such series, as the
case may be, which are subject to Legal Defeasance or Covenant Defeasance as provided in
Section 3.02. In determining whether the Holders of the requisite principal amount of such
Notes or Notes of such series, as the case may be, 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 or the
Holders of the Notes of such series, as the case may be, to the waiver of any past default
and its consequences, Notes or the Notes of such series, as the case may be, owned by the
Obligor, any other obligor upon the Notes or Notes of such series, as the case may be, 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
or Notes of such series, as the case may be, 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 the Notes of such series, as the case may be, or any Affiliate of
the Obligor or such other obligor shall be so disregarded. Notes or Notes of such series,
as the case may be, 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 pledgees
right to act as owner with respect to such Notes or Notes of such series, as the case may
be, and that the pledgee is not the Obligor or any other obligor upon the Notes or the Notes
of such series, as the case may be, or any Affiliate of the Obligor or such other obligor.
Partial Guarantee Percentage
means a fraction, (a) the numerator of which is (i) the
aggregate principal amount of the Notes Outstanding on the 2009 Notes Payment Date
7
minus
(ii) the principal of the 2009 Notes that the Guarantor has determined in good
faith that the Guarantor is likely to have to pay on the 2009 Notes on the 2009 Notes Payment Date
under the 2009 Notes Guarantee and that is specified in the Partial Payment Notice and (b) the
denominator of which is the aggregate principal amount of the Notes Outstanding on the 2009 Notes
Payment Date.
Partial Payment Notice
has the meaning specified in Section 11.01.
Paying Agent
means any Person appointed by the Obligor to distribute amounts payable
by the Obligor on the Notes. The Obligor may act as its own Paying Agent. As of the date of this
Indenture, the Obligor has appointed The Bank of New York Mellon 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 specified pursuant to Section 9.02.
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 2.05 in lieu of a lost, destroyed,
mutilated, or stolen Note shall be deemed to evidence the same debt as the lost, destroyed,
mutilated, or stolen Note.
Principal Property
means, (a) 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 of America, the
District of Columbia or Puerto Rico, other than a plant, warehouse, office building, or portion
thereof which, in the opinion of the Managing Directors evidenced by a Managing Directors
Resolution, is not of material importance to the business conducted by the Obligor and its
Subsidiaries taken as an entirety and, (b) with respect to the Guarantor, any single manufacturing
or processing plant, office building, or warehouse owned or leased by the Guarantor or a Restricted
Subsidiary of the Guarantor, in each case, located in the 50 states of the United States of
America, the District of Columbia or Puerto Rico, other than a plant, warehouse, office building,
or portion thereof which, in the opinion of the Guarantors Board of Directors evidenced by a Board
Resolution, is not of material importance to the business conducted by the Guarantor and its
Restricted Subsidiaries as an entirety.
Record Date
means any date as of which the Holder of a Note of any series will be
determined for any purpose described herein, such determination to be made as of the close of
business on such date by reference to the Security Register, and in relation to a determination of
a payment of an installment of interest on the Notes of any series, shall have the meaning
specified in such series of Notes.
8
Redemption Date
when used with respect to any Notes 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 Notes to be redeemed, means the price
specified in Section 10.07.
Reference Treasury Dealer
means four primary U.S. Government securities dealers in
New York City (each, a Primary Treasury Dealer), either named in the prospectus supplement
relating to a series of Notes or appointed by the Trustee in consultation with the Obligor;
provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the
Obligor shall substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
Registrar
means the Person who maintains the Security Register, which Person shall
be the Trustee unless and until a successor Registrar is appointed by the Obligor.
Responsible Officer
, when used with respect to the Trustee, means any officer of the
Trustee having direct responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
Restricted Subsidiary
means, (a) with respect to the Obligor or PBG, any current or
future Subsidiary of the Obligor or PBG, as the case may be, (i) substantially all of the property
of which is located, or substantially all of the business of which is carried on, within the 50
states of the United States of America, the District of Columbia or Puerto Rico and which is not a
foreign corporation, and (ii) which owns or leases any Principal Property or, (b) with respect to
the Guarantor, at any time, any Subsidiary of the Guarantor which is at the time not an
Unrestricted Subsidiary.
Scheduled Guarantee Commencement Date
means one Business Day prior to the 2009 Notes
Payment Date.
Securities Act
means the U.S. Securities Act of 1933 (or any successor Act), as
amended, and the rules and regulations of the Commission promulgated thereunder.
Security Register
has the meaning specified in Section 2.04.
Special Record Date
for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 2.06.
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.
9
Treasury Rate
means, with respect to any Redemption Date for the Notes: (i) the
yield, under the heading which represents the average for the immediately preceding week, appearing
in the most recently published statistical release designated
H.15(519) or any successor
publication which is published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after the remaining term
of the Notes to be redeemed, yields for the two published maturities most closely corresponding to
the Comparable Treasury Issue shall be calculated, and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis, rounding to the nearest month); or (ii) if
such statistical release (or any successor statistical release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
Trust Indenture Act
or
TIA
means the Trust Indenture Act of 1939, as
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 Person named as the
Trustee
in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter
Trustee
shall mean, or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such Person, Trustee
as used with respect to the Notes of any series shall mean the Trustee with respect to the Notes of
that series.
2009
Notes
means the Obligors outstanding $1,300,000,000 5
5
/
8
% Senior Notes due 2009
guaranteed by the Guarantor.
2009 Notes Guarantee
means the Guarantors unconditional and irrevocable guarantee
of the 2009 Notes.
2009 Notes Payment Date
means February 17, 2009 or, if earlier, the date scheduled
for payment of (a) the redemption price (in the event of a redemption in whole) or (b) the
principal of and interest and premium, if any (in the event of acceleration), in each case, on the
2009 Notes.
2009 Notes Payment Deposit Date
means two Business Days prior to the 2009 Notes
Payment Date.
2009 Notes Trustee
means JPMorgan Chase Bank, in its capacity as the trustee under
the indenture relating to the 2009 Notes, or its successor thereunder.
Unrestricted Subsidiary
means, with respect to the Guarantor, any Subsidiary of the
Guarantor (not at the time designated a Restricted Subsidiary of the Guarantor) (a) the major
10
part of whose business consists of finance, banking, credit, leasing, insurance, financial
services, or other similar operations, or any combination thereof, (b) substantially all the assets
of which consist of the capital stock of one or more Subsidiaries engaged in the operations
referenced in the preceding clause (a), (c) substantially all of the property of which is located,
or substantially all of the business of which is carried on, outside the 50 states of the United
States of America, the District of Columbia and Puerto Rico or (d) designated as such by the
Guarantors Board of Directors. Any Subsidiary of the Guarantor designated as a Restricted
Subsidiary may be designated as an Unrestricted Subsidiary.
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 (a) 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 (b) securities that are obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed by the full faith and credit of the
United States of America, and also includes depository receipts issued by a bank or trust company
as custodian with respect to any of the securities described in the preceding clauses (a) and (b),
and any payment of interest or principal payable under any of the securities described in the
preceding clauses (a) and (b) 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
means, with respect to any Person, any vice president of that Person,
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 or membership interests) of any class or classes (however designated), the
outstanding shares (or other interests) 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 (or other interests) having such power only by reason of the happening of
a contingency.
SECTION 1.02.
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;
11
(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 1.03.
Form of Documents Delivered to Trustee
.
(1) In any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to the other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
(2) 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.
(3) 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 1.04.
Acts of Holders
.
(1) 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
12
this Indenture and (subject to Section 5.01) conclusive in favor of the Trustee and the
Obligor, if made in the manner provided in this Section 1.04.
(2) 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.
(3) 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.
(4) 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
Managing Directors 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.
(5) 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 registration of 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 1.05.
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
13
(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:
Worldwide Securities 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 4.01(1)(iii), mailed to the Obligor, first-class
postage prepaid, at the following address: c/o The Pepsi Bottling Group, Inc., One Pepsi
Way, Somers, New York 10589, Attention: Treasurer, 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 4.01(2)(i), mailed to the Guarantor, first-class
postage prepaid at its principal office (as specified in the first paragraph of this
instrument), Attention: Treasurer, or at any other address hereafter furnished in writing
by the Guarantor to the Trustee.
SECTION 1.06.
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 1.07.
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, such required provision shall control.
SECTION 1.08.
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 1.09.
Successors and Assigns
. All covenants and agreements in this Indenture
by the Obligor and the Guarantor shall bind its successors and assigns, whether so expressed or
not.
14
SECTION 1.10.
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 1.11.
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 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 1.12.
Governing Law
. This Indenture shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to rules governing the
conflict of laws.
SECTION 1.13.
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 1.14.
Legal Holidays
. In any case where any Interest Payment Date or
Redemption Date or Maturity Date shall not be a Business Day, then (notwithstanding any other
provisions of this Indenture or of the Notes) payment of interest or principal (and premium, if
any) need not be made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, the Redemption Date or Maturity
Date, provided that no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Maturity Date, as the case may be.
ARTICLE II
THE NOTES
SECTION 2.01.
Form and Dating
.
(1)
General
.
(i) The Notes of each series shall be substantially in such form (not inconsistent with
this Indenture) as shall be established by or pursuant to a Managing Directors Resolution or
in one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be required to
comply with any law, stock exchange rule or DTC rule or usage or with any rules or
regulations pursuant thereto, all 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.
The Obligor shall furnish any such legends to the Trustee in writing. Except as otherwise
provided in Section 11.01(2) and in the immediately following proviso, each Note shall have
an executed Guarantee from the Guarantor
15
substantially in the form of Exhibit A hereto endorsed thereon;
provided
,
however
, that any Note issued under this Indenture on and after the date which the
Guarantor provides a notice to the Trustee pursuant to Section 11.01(3) that the Guarantee
shall not become effective and the Guarantee Commencement Date shall not occur shall not
have an executed Guarantee from the Guarantor endorsed thereon; and
provided
,
further
, that any such Note, when issued, authenticated and delivered in accordance
with this Indenture, shall be treated as a single class of securities with other Outstanding
Notes of the same series which have the Guarantee endorsed thereon.
(ii) 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.
(iii) The terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture and the Obligor, the Guarantor and the Trustee, by
their execution and delivery of this Indenture expressly agree to such terms and provisions
and to be bound thereby. Nothing in the preceding sentence shall, however, limit the effect
of the second paragraph of Section 2.02(1). 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. All Notes of any one series shall be
substantially identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Managing Directors or in any such indenture
supplemental hereto.
(iv) 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 herein 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.
(v) The aggregate principal amount of Notes which may be authenticated and delivered
under this Indenture is unlimited. The Notes may be issued in one or more series. There
shall be established in or pursuant to a resolution of the Managing Directors of the Obligor
and the Guarantor and set forth in an Officers Certificate of the Obligor and the
Guarantor, or established in one or more indentures supplemental hereto, prior to the
issuance of Notes of any series:
(a) the title of the Notes of the series (which shall distinguish the Notes of
the series from all other Notes);
(b) any limit upon the aggregate principal amount of the Notes of the series
that may be authenticated and delivered under this Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
16
for, or in lieu of, other Notes of the series pursuant to Section 2.03, 2.04,
2.05, 8.07 or 10.06);
(c) the date or dates on which the principal of the Notes of the series is
payable;
(d) the rate or rates at which the Notes of the series shall bear interest, if
any, or the method by which such rate shall be determined, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and the Record Dates, if any, for the determination of Holders to
whom interest is payable;
(e) the place or places where the principal of and any premium and interest on
the Notes of the series shall be payable;
(f) if other than the principal amount thereof, the portion of the principal
amount of Notes of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 4.02;
(g) the issue date;
(h) the issue price (expressed as a percentage of the aggregate principal amount
of the Notes) at which the Notes will be issued;
(i) if the Notes of the series are issuable in whole or in part in the form of
Definitive Notes or as one or more Global Notes, and if so, the identity of the
Depositary for such Global Notes if other than DTC;
(j) any other terms of the series (which terms shall not be inconsistent with
the provisions of this Indenture);
(k) any Events of Default with respect to the Notes of a particular series if
not set forth herein; and
(l) any covenants of the Obligor or the Guarantor with respect to the Notes of a
particular series if not set forth herein. Notwithstanding Section 2.01(1)(v)(b) and
unless otherwise expressly provided with respect to a series of Notes, the aggregate
principal amount of a series of Notes may be increased and additional Notes of such
series may be issued up to the maximum aggregate principal amount authorized with
respect to such series as increased;
provided
that, any such additional Notes
shall have identical terms as the outstanding Notes of such series, other than with
respect to the date of issuance, issue price, first Interest Payment Date, interest
accrual date and amount of interest payable on the first Interest Payment Date
applicable thereto;
provided
,
further
, that any such additional Notes
shall be treated as a single class with the outstanding Notes of such series for all
purposes under this Indenture.
(2)
Global Notes
.
17
(i) If the Obligor shall establish pursuant to Section 2.01(1) above that the Notes of
a series or a portion thereof are to be issued in the form of one or more Global Notes, then
the Obligor shall execute and the Trustee shall authenticate and make available for delivery
one or more Global Notes that (a) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Notes of such series issued in such
form and not yet cancelled, (b) shall be registered, in the name of the Depositary
designated for such Global Note pursuant to Section 2.04, or in the name of a nominee of
such Depositary, (c) shall be deposited with the Trustee, as Custodian for the Depositary,
and (d) shall bear a legend substantially as follows (
Global Note Legend
):
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, 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 TO 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
(ii) Each Depositary designated pursuant to Section 2.01 or 2.04 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, provided that the Depositary is required to be so registered in order to act as
depositary.
(iii) Any Global Note may be represented by more than one certificate. The aggregate
principal amount of each Global Note may from time to time be increased or decreased by
adjustments made on the records of the Registrar, as provided in this Indenture.
18
(3)
Trustees Certificate of Authentication
.
The Trustees Certificate of Authentication shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
|
|
|
|
|
|
The Bank of New York Mellon
as Trustee
|
|
|
By:
|
|
|
|
|
Authorized Officer
|
|
SECTION 2.02. Execution and Authentication.
(1) At any time and from time to time after the execution and delivery of this
Indenture, the Obligor may deliver Notes of any series executed on behalf of the Obligor by
any two Officers to the Trustee for authentication, and the Trustee, upon receipt of a
written order of the Obligor and the Guarantor signed by an Officer of the Obligor and the
Guarantor (the
Authentication Order
) shall thereupon in accordance with the
procedures acceptable to the Trustee set forth in the Authentication Order, and subject to
the provisions hereof, authenticate and deliver such Notes to or upon the written order of
the Obligor, without any further action by the Obligor or the Guarantor except as set forth
in this Section 2.02. The signature of any of the 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. In authenticating such Notes and accepting the additional
responsibilities under this Indenture in relation to such Notes, the Trustee shall receive,
and (subject to Section 5.01) shall be fully protected in relying upon:
(a) a copy of the Managing Directors Resolution of each of the Obligor and the
Guarantor relating to such series;
(b) an executed supplemental indenture, if any, and the documentation required to be
delivered pursuant to Section 8.06;
(c) an Officers Certificate of each of the Obligor and the Guarantor setting forth the
form or forms and terms of the Notes of such series pursuant to Section 2.01(1)(v), and
prepared in accordance with Section 1.02;
(d) an Opinion of Counsel of the Obligor and the Guarantor, prepared in accordance with
Section 1.02, to the effect that
(i) the form or forms and terms of such Notes have been established by or
pursuant to a Managing Directors Resolution of each of the Obligor and the
19
Guarantor or by a supplemental indenture as permitted by Section 2.01 in
conformity with the provisions of this Indenture; and
(ii) such Notes, when executed and issued by the Obligor, guaranteed by the
Guarantor and authenticated and delivered by the Trustee in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute legal, valid
and binding obligations of the Obligor and Guarantor enforceable against each of
them in accordance with their terms except as any rights thereunder may be limited
by bankruptcy, insolvency and other similar laws affecting the enforceability of
creditors rights generally and by general equity principles. The Trustee shall
have the right to decline to authenticate and deliver any Notes under this Section
2.02 if the Trustee, being advised by counsel, determines that such action may not
lawfully be taken by the Obligor or the Guarantor or if the Trustee in good faith by
its board of directors or board of trustees, executive committee, or a trust
committee of directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability. If the Obligor and the
Guarantor shall establish pursuant to Section 2.01(1) that the Notes of a series or
a portion thereof are to be issued in the form of one or more Global Notes, then the
Obligor and the Guarantor shall execute and the Trustee shall authenticate and make
available for delivery one or more Global Notes as provided in Section 2.01(2)(i).
(2) Notes bearing the manual or facsimile signatures of individuals who were at any
time on or after the date hereof the proper officers of the Obligor and the Guarantor shall
bind each of them, 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.
(3) The Notes shall be in fully registered form, without coupons, in minimum
denominations of $2,000 and integral multiples of $1,000 in excess thereof.
SECTION 2.03.
Temporary Notes
. Until certificates representing Notes of a series are
ready for delivery, the Obligor may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate and deliver temporary Notes of such series. 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
of a series in exchange for temporary Notes of such series. Holders of temporary Notes shall be
entitled to all of the benefits of this Indenture.
SECTION 2.04.
Registration, Transfer and Exchange
.
(1)
Securities Register
. The Trustee shall keep a register of the Notes (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
20
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 9.02.
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 9.02, 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, series and Maturity Date.
(2)
Transfer of Global Notes
. Any other provision of this Section 2.04
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 of a series 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 of each series.
(3)
Legends
.
Each Global Note shall bear the legend specified in clause (i) of Section 2.01(2) on
the face thereof.
(4)
Definitive Notes
.
(i) Notwithstanding any other provisions of this Indenture or the Notes, a Global Note
may be exchanged for Notes of the same series registered in the names of any Person
designated by the Depositary in the event that (a) 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, at a time
when the Depositary is required to be so registered in order to act as depositary, and the
Obligor has not appointed a successor Depositary within 90 days of receiving such notice or
of becoming aware of such cessation, (b) an Event of Default has occurred and is continuing
with respect to the applicable Notes, or (c) the Obligor, in its sole discretion, determines
that the applicable 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 (a) or (c) above shall be so exchanged in whole and not in
part and any Global Note exchanged pursuant to clause (b) 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 of the same series 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.
21
(ii) If at any time the Depositary for the Notes of any series notifies the Obligor
that it is unwilling or unable to continue as Depositary for such Notes or if the Depositary
has ceased to be a clearing agency registered under the Exchange Act at a time when the
Depositary is required to be so registered in order to act as depositary, the Obligor may
within 90 days of receiving such notice or of becoming aware of such cessation appoint a
successor Depositary with respect to such Notes.
(iii) If, in accordance with this Section 2.04(4), Notes of any series 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 of such series in an aggregate principal amount equal to the principal
amount of the Global Notes of such series, in exchange for such Global Notes.
(iv) If a Definitive Note is issued in exchange for any portion of a Global Note after
the close of business at the office or agency where such exchange occurs on any Record Date
for the payment of interest and before the opening of business at such office or agency on
the next succeeding Interest Payment Date, interest shall not be payable on such Interest
Payment Date in respect of such Definitive Notes, but shall be payable on such Interest
Payment Date only to the Person to whom interest in respect of such portion of such Global
Note is payable in accordance with the provisions of this Indenture.
(v) Definitive Notes issued in exchange for a Global Note pursuant to this Section
2.04(4) 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 Registrars request, and upon direction of
the Obligor. No service charge shall be made for any registration of transfer or exchange,
but the Obligor or the Trustee 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.
(vi) 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 of the same series,
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 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.
(vii) At such time as all interests in Global Notes of any series have either been
exchanged for Definitive Notes of such series or cancelled, such Global Notes shall be
cancelled by the Trustee in accordance with the standing procedures and instructions
existing between the Depositary and the Custodian. At any time prior to such
22
cancellation, if any interest in a Global Note of any series is exchanged for
Definitive Notes of such series or cancelled, the principal amount of such Global Note
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.
(5) Notwithstanding anything in this Indenture to the contrary, (i) 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, (ii) all transfers
and exchanges of the Notes may be made only in accordance with the procedures set forth in
this Indenture, and (iii) 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.
(6) 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 10.03 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 2.05.
Mutilated, Destroyed, Lost and Stolen Notes
.
(1) 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 protected 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, series, Maturity Date, and principal amount,
bearing a number not contemporaneously outstanding.
(2) 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.
(3) Upon the issuance of any new Note under this Section 2.05, the Obligor may require
the payment by the Holder thereof 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.
(4) Every new Note issued pursuant to this Section 2.05 in lieu of any mutilated,
destroyed, lost or stolen Note shall constitute an original contractual obligation of the
Obligor, whether or not the mutilated, destroyed, lost or stolen Note shall be at any
23
time enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
(5) The provisions of this Section 2.05 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 2.06.
Payment of Interest; Interest Rights Preserved
.
(1) Interest on any Note which is payable and is punctually paid or duly provided for
on any Interest Payment Date shall, if so provided in such Note, be paid to the Person in
whose name that Note (or one or more Predecessor Notes) is registered at the close of
business on the applicable Record Date, notwithstanding any transfer or exchange of such
Note subsequent to such Record Date and prior to such Interest Payment Date (unless, if so
provided in such Note, such Interest Payment Date is also the Maturity Date, in which case
such interest shall be payable to the Person to whom principal is payable).
(2) Any interest on any Note which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the registered Holder on the applicable Record Date by
virtue of his having been such Holder; and, except as hereinafter provided, such Defaulted
Interest may be paid by the Obligor, at its election in each case, as provided in clause (i)
or (ii) below:
(i) The Obligor may elect to make payment of any Defaulted Interest to the Persons in
whose names any such Notes (or their respective Predecessor Notes) are registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Obligor shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each such Note and the date of the
proposed payment, and at the same time the Obligor shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Obligor of such Special Record
Date and, in the name and at the expense of the Obligor, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of each such Note at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names
24
such Notes (or their respective Predecessor Notes) are registered on such Special
Record Date and shall no longer be payable pursuant to the following clause (ii).
(ii) The Obligor may make payment of any Defaulted Interest in any other lawful manner
if, after notice given by the Obligor to the Trustee of the proposed payment pursuant to
this clause (ii), such manner of payment shall be deemed practicable by the Trustee.
(3) If any installment of interest on any Note called for redemption pursuant to
Article X is due and payable on or prior to the Redemption Date and is not paid or duly
provided for on or prior to the Redemption Date in accordance with the foregoing provisions
of this Section 2.06, such interest shall be payable as part of the Redemption Price of such
Notes.
(4) Interest on Notes may be paid at the office or agency maintained by the Obligor in
New York City pursuant to Section 9.02 or, at the Obligors option, through DTC, Clearstream
Banking, S.A., Luxembourg, or Euroclear System to the Person entitled thereto or by such
other means as may be specified in the form of such Note.
(5) Subject to the foregoing provisions of this Section 2.06 and the provisions of
Section 2.04, 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 2.07.
Persons Deemed Owners.
(1) 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 Section 2.06) interest, and 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.
(2) 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 2.08.
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
25
whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee.
Acquisition of such Notes by the Obligor shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered to the Trustee for
cancellation. No Note shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section 2.08, except as expressly permitted by this Indenture. The Trustee shall
dispose of all cancelled Notes in accordance with its customary procedures and, upon written
request, deliver a certificate of such disposition to the Obligor.
SECTION 2.09.
Computation of Interest
. Interest on the Notes shall be calculated on
the basis of a 360-day year of twelve 30-day months.
SECTION 2.10.
CUSIP Numbers
. The Obligor in issuing the Notes may use CUSIP and
ISIN numbers (if then generally in use), and, if so, the Trustee shall use the CUSIP or ISIN
numbers, as the case may be, 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 or accuracy of the
CUSIP or ISIN number, as the case may be, 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. The Obligor will promptly notify the Trustee in writing of any change in the
CUSIP or ISIN number.
ARTICLE III
DISCHARGE OF INDENTURE
SECTION 3.01.
Discharge of Indenture
. This Indenture will be discharged with respect
to the Notes of a series and will cease to be of further effect as to all such Notes (except as to
any surviving rights of transfer or exchange of such Notes expressly provided for herein), and the
Trustee, on demand of and at the expense of the Obligor, shall execute proper instruments
acknowledging the discharge of this Indenture with respect to the Notes of such series, when
(1) either
(i) all Notes of such series theretofore authenticated and delivered (except (a)
mutilated, lost, stolen or destroyed Notes which have been replaced or paid, as provided in
Section 2.05, and (b) 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 3.05) have been delivered to the Trustee
cancelled or for cancellation; or
(ii) all such Notes of such series not theretofore delivered to the Trustee cancelled
or for cancellation
(a) have become due and payable, or
(b) will, in accordance with their Maturity Date, become due and payable within
one year, or
26
(c) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Obligor, and, in any of the cases described in
(a) or (b) above or in this clause (c), the Obligor has deposited or caused to be
deposited with the Trustee, as trust funds in trust for the benefit of the Holders of
such Notes for that purpose, U.S. dollars or non-callable U.S. Government Obligations
or a combination thereof in such amounts sufficient to pay and discharge the entire
indebtedness on the Notes of such series not theretofore delivered to the Trustee
cancelled or for cancellation, for principal of and interest and premium, if any, on
the Notes of such series to the date of such deposit (in the case of Notes of such
series that have become due and payable), or to the Maturity Date or the Redemption
Date, 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 of such series under this Indenture;
(3) in the event of a deposit and defeasence under Section 3.01(1)(ii), no Event of
Default or event which with notice or lapse of time would become an Event of Default has
occurred and is continuing with respect to the Notes of such series on the date of such
deposit; and
(4) the Obligor has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel each stating that all conditions precedent to the discharge of this Indenture with
respect to the Notes of such series have been complied with, and in the event of a deposit
and defeasance under Section 3.01(1)(ii), in the case of the Opinion of Counsel, stating:
(i) either that no requirement to register under the Investment Company Act of 1940, as
amended, will arise as a result of the Obligors exercise of its option under this Section
3.01 or that any such registration requirement has been complied with; and
(ii) such deposit and defeasance will not result in a material breach or violation of,
or constitute a default under, any material agreement or instrument to which the Obligor is
a party. Notwithstanding the discharge of this Indenture with respect to the Notes of such
series, the obligations of the Obligor under Section 3.01(1) and the obligations of the
Obligor to the Trustee under Section 5.07 and to any Authenticating Agent under Section 5.14
shall survive, and the obligations of the Trustee under Sections 3.03 and 3.05 shall
survive.
SECTION 3.02.
Defeasance and Discharge of Covenants upon Deposit of Moneys, U.S.
Government Obligations
. At the Obligors option, either (a) the Obligor shall be deemed to
have been Discharged (as defined below) from its obligations with respect to the Notes of any
series on the 123rd day after the applicable conditions set forth below have been satisfied
(
Legal Defeasance
) 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 7.01, 7.02, 9.06
and 9.07 with respect to the Notes of such series at any time after the applicable conditions set
forth below have been satisfied (
Covenant Defeasance
):
27
(1) The Obligor or the Guarantor shall have deposited or caused to be deposited
irrevocably with the Trustee, as trust funds, in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Notes of such series, an
amount of money, in cash in U.S. dollars sufficient, or in 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 the Notes of such series with
respect to principal, premium, if any, and accrued and unpaid interest to the date of such
deposit (in the case of Notes of any series 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 of such series, shall have occurred and be
continuing on the date of such deposit;
(3) The Obligor shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel each stating that all conditions precedent to the defeasance and
discharge contemplated by this Section 3.02 have been complied with, and, in the case of the
Opinion of Counsel stating that:
(i) the deposit and defeasance contemplated by this Section 3.02 will not cause the
Holders of the Notes of such series to recognize income, gain or loss for Federal income tax
purposes as a result of the Obligors exercise of its option under this Section 3.02 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 Legal Defeasance) 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; and
(ii) either no requirement to register under the Investment Company Act of 1940, as
amended, will arise as a result of the Obligors exercise of its option under this Section
3.02 or any such registration requirement has been complied with; and
(4) with respect to a Legal Defeasance, 123 days shall have passed during which no
Event of Default under clauses (iv) and (v) of Section 4.01(1) or under clauses (ii) or
(iii) of Section 4.01(2) has occurred.
If in connection with the exercise by the Obligor of any option under this Section
3.02, any series of Notes is 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 3.02(b) with
respect to Section 7.01, the obligation of any successor Entity to assume the obligations to
the Trustee under Section 5.07 shall not be discharged.
28
Discharged
means, as to any series of Notes, that the Obligor shall be deemed
to have paid and discharged the entire indebtedness represented by, and obligations under,
the Notes of such series and to have satisfied all the obligations under this Indenture
relating to such series of Notes (and the Trustee, at the expense of the Obligor, shall
execute proper instruments acknowledging the same), except (A) the rights of Holders of
Notes of such series 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 series of Notes when
such payments are due; (B) the Obligors obligations with respect to such Notes under
Sections 2.04, 2.05, 3.02(1), 3.03, and 9.02 and its obligations under Section 5.07; and (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder.
SECTION 3.03.
Application of Trust Money
. All money and U.S. Government Obligations
deposited with the Trustee pursuant to Section 3.01 or Section 3.02 and all proceeds of such U.S.
Government Obligations and the interest thereon 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 and U.S. Government Obligations have been deposited with the Trustee; but such money and
U.S. Government Obligations need not be segregated from other funds except to the extent required
by law.
SECTION 3.04.
Paying Agent to Repay Moneys Held
. Upon the discharge of this Indenture
or a Legal Defeasance, in each case, with respect to the Notes of a series, all moneys then held by
any Paying Agent under the provisions of this Indenture with respect to such 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 3.05.
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 any
series of Notes or then held by the Obligor, in trust for the payment of the principal of, premium,
if any, or interest on any series of Notes and not applied but remaining unclaimed by the Holders
of such series of Notes for two years after the date upon which the principal of, premium, if any,
or interest on such series of 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 Notes of such series shall thereafter, as an
unsecured general creditor, look only to the Obligor for any payment which such Holder may be
entitled to collect (until such time as such unclaimed amounts shall escheat, if at all, to any
applicable jurisdiction) and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Obligor as trustee thereof, shall thereupon cease.
Notwithstanding the foregoing, the Trustee or Paying Agent, before being required to make any such
repayment, may at the expense of the Obligor cause to be published once a week for two successive
weeks (in each case on any day of the week) in a newspaper printed in the English language and
customarily published at least once a day at least five days in each calendar week and of general
circulation in the Borough of Manhattan, in the City and State of New York, a notice that said
amounts have not been so applied and that after a date named
29
therein any unclaimed balance of said amounts then remaining will be promptly returned to the
Obligor.
SECTION 3.06.
Reinstatement
. If the Trustee or any Paying Agent is unable to apply
any money in accordance with Section 3.03 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Obligors obligations under this Indenture and the Holders
of Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 3.01
until such time as the Trustee or such Paying Agent is permitted to apply all such money in
accordance with Section 3.03.
ARTICLE IV
REMEDIES
SECTION 4.01.
Events of Default
. Event of Default, wherever used herein, means with
respect to Notes of any series, 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) on and after the date hereof:
(i) default in the payment of any principal of or premium, if any, on the Notes of such
series when due (whether at maturity, upon redemption or otherwise);
(ii) default in the payment of any interest on any Note of such series, when it becomes
due and payable, and continuance of such default for a period of 30 days;
(iii) default in the performance or breach of any covenant or warranty of the Obligor
under this Indenture in respect of the Notes of such series, 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 by the Trustee or to the Obligor and the Trustee by the Holders of at
least a majority in aggregate principal amount of the Outstanding Notes of such series, 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;
(iv) the entry of an order for relief against the Obligor, PBG or any Restricted
Subsidiary of PBG 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,
PBG or any Restricted Subsidiary of PBG as 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, PBG or any Restricted Subsidiary of PBG 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, PBG or any Restricted Subsidiary of
PBG or of any substantial part of their respective properties,
30
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;
(v) the consent by the Obligor, PBG or any Restricted Subsidiary of PBG to the
institution of bankruptcy or insolvency proceedings against any of them, or the filing by
the Obligor, PBG or any Restricted Subsidiary of PBG 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, PBG or any Restricted Subsidiary of PBG 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, PBG or any Restricted
Subsidiary of PBG or of any substantial part of their respective properties, or the making
by the Obligor, PBG or any Restricted Subsidiary of PBG of an assignment for the benefit of
creditors, or the admission by the Obligor, PBG or any Restricted Subsidiary of PBG in
writing of the Obligors, PBGs or any Restricted Subsidiary of PBGs inability to pay debts
generally as they become due, or the taking of corporate action by the Obligor, PBG or any
Restricted Subsidiary of PBG in furtherance of any such action; and
(vi) the maturity of any Debt of the Obligor, PBG or any Restricted Subsidiary of PBG
having a then outstanding principal amount in excess of $75 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, PBG or any
Restricted Subsidiary of PBG having a then outstanding principal amount in excess of $75
million; and
(2) on and after the Guarantee Commencement Date (in the event that the Guarantee
Commencement Date shall occur):
(a) default in the performance or breach of any covenant or warranty of 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 Guarantor by the Trustee
or to the Guarantor and the Trustee by the Holders of at least a majority in aggregate
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;
(b) the entry of an order for relief against the Guarantor under the Bankruptcy Code by
a court having jurisdiction in the premises or a decree or order by a court having
jurisdiction in the premises adjudging the Guarantor as 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 Guarantor under the Bankruptcy Code or any other applicable Federal or
state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Guarantor or of any substantial part of its property, or
31
ordering the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90 consecutive days;
(c) the consent by the Guarantor to the institution of bankruptcy or insolvency
proceedings against the Guarantor, or the filing by the Guarantor of a petition or answer or
consent seeking reorganization or relief under the Bankruptcy Code or any other applicable
Federal or state law, or the consent by the Guarantor to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Guarantor or of any substantial part of its property, or the making
by the Guarantor of an assignment for the benefit of creditors, or the admission by the
Guarantor in writing of the Guarantors inability to pay debts generally as they become due,
or the taking of corporate action by the Guarantor in furtherance of any such action; and
(d) the Guarantee ceases to be in full force and effect, or the Guarantor denies or
disaffirms its obligations under the Guarantee, in each case, in accordance with Article XI.
No Event of Default with respect to a single series of Notes issued hereunder (and
under or pursuant to any Supplemental Indenture or Managing Directors Resolution)
necessarily constitutes an Event of Default with respect to any other series of Notes.
SECTION 4.02.
Acceleration of Maturity; Rescission and Annulment
.
(1) If any Event of Default (other than an Event of Default specified in clause (iv) or
(v) of Section 4.01(1)) with respect to the Notes of any series occurs and is continuing,
then either the Trustee or the Holders of a majority in aggregate principal amount of the
Outstanding Notes of such series may declare the principal of all Outstanding Notes of such
series, 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 (iv) or (v) of Section 4.01(1) occurs, then the principal amount
of all the Notes then outstanding and interest accrued thereon, if any, will 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, to the full extent permitted by applicable law.
(2) At any time after such a declaration of acceleration has been made with respect to
the Notes of any series and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article IV provided, the Holders of a
majority in aggregate principal amount of the Outstanding Notes of such series by written
notice to the Obligor and the Trustee, may rescind and annul such declaration or waive past
defaults and its consequences, except with respect to a default in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected thereby, if:
(i) the Obligor or the Guarantor has paid or deposited with the Trustee a sum
sufficient to pay:
32
(a) all overdue installments of interest, if any, on such series of Notes,
(b) the principal of (and premium, if any, on) any such series of Notes which
have become due otherwise than by such declaration of acceleration, and interest
thereon at the rate prescribed therefor by the Notes of such series, to the extent
that payment of such interest is lawful,
(c) interest on overdue installments of interest at the rate prescribed therefor
by the Notes of such series 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 5.07; and
(ii) all Events of Default, other than the nonpayment of the principal of the Notes of
such series which have become due solely by such acceleration, have been cured or waived as
provided in Section 4.13.
(3) No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 4.03.
Collection of Indebtedness and Suits for Enforcement
.
(1) The Obligor covenants that if:
(i) default is made in the payment of any installment of interest on any Note of any
series when such interest becomes due and payable, or
(ii) default is made in the payment of (or premium, if any, on) the principal of any
Note of any series at the Maturity thereof, and
(iii) any such default continues for any period of grace provided in relation to such
default pursuant to Section 4.01,
then, with respect to such series of Notes, the Obligor will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of the Notes of such series, the whole amount then due and
payable on all Notes of such series for principal (and premium, if any) and interest, together with
interest (to the extent that payment of such interest shall be legally enforceable) upon the
overdue principal (and premium, if any) and upon overdue installments of interest at the rate of
interest prescribed therefor by the Notes of such series; 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 5.07.
(2) 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
33
proceeding to judgment or final decree, and may enforce the same against the Obligor or
any other obligor upon such 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.
(3) If an Event of Default occurs and is continuing with respect to any series of
Notes, the Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of such series 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 4.04.
Trustee May File Proofs of Claim
.
(1) 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
5.07) and of the Holders allowed in such judicial proceedings, and
(ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and its agent and counsel, and any other amounts due the Trustee
under Section 5.07.
(2) 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 4.05.
Trustee May Enforce Claims Without Possession of Notes
. All rights of
action and claims under this Indenture or the Notes of any series may be prosecuted
34
and enforced by the Trustee without the possession of any of the Notes of such series 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 of such series.
SECTION 4.06.
Application of Money Collected
.
(1) Any money collected by the Trustee from the Obligor pursuant to this Article IV
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 of any series 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 5.07.
Second: To the payment of the amounts then due and unpaid upon such series of 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.
(2) Any money collected by the Trustee from the Guarantor with respect to the Guarantee
pursuant to this Article IV shall only be applied to the payment of the amount then due and
unpaid upon the Notes of any series for principal, premium, if any, and interest, in respect
of which or for the payment of which such money has been collected, ratably, without
preference or priority of any kind, upon presentation of the Notes of such series and the
notation thereon of the payment, if only partially paid, and upon surrender thereof, if
fully paid, at the date or dates fixed by the Trustee.
SECTION 4.07.
Limitation on Suits
. No Holder of any Note of any series may institute
any action under this Indenture, unless and until:
(1) such Holder has given the Trustee written notice of a continuing Event of Default
with respect to the Notes of such series;
(2) the Holders of a majority in aggregate principal amount of the Outstanding Notes of
such series 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;
(4) the Trustee has failed to institute any such proceeding 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 a majority in aggregate principal amount of the Outstanding
35
Notes of such series; it being understood and intended that no one or more Holders of
Notes of any series shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes of such series, or to obtain or to seek to obtain priority or preference
over any other such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and proportionate benefit of all the Holders of all
Notes of such series.
SECTION 4.08.
Unconditional Right of Holders to Receive Payment of Principal, Premium and
Interest
. Notwithstanding any other provision in this Indenture, the Holder of any Note shall
have the right, which is absolute and unconditional, to receive payment of the principal, premium,
if any, and (subject to Section 2.06) interest on such Note on or after the Maturity Date (or, in
the case of redemption, on or after the Redemption Date) and to institute suit for the enforcement
of any such payment on or after such respective date, and such right shall not be impaired or
affected without the consent of such Holder.
SECTION 4.09.
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 4.10.
Rights and Remedies Cumulative
. Except as provided in Section 2.05(5),
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 4.11.
Delay or Omission Not Waiver
. No delay or omission of the Trustee or of
any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article IV 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 4.12.
Control by Holders
. The Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes of any series 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 of such series
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
36
lawfully be taken or would conflict with this Indenture or if the Trustee in good faith
shall, by a Responsible Officer, determine that the proceedings so directed would involve it
in personal liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 4.13.
Waiver of Past Defaults
. Subject to Section 4.02, the Holders of not
less than a majority in aggregate principal amount of the Outstanding Notes of any series may, on
behalf of the Holders of all Notes of such series, waive any past default hereunder with respect to
the Notes of such series, except a default not theretofore cured:
(1) in the payment of principal, premium, if any, or interest on any Notes of such
series, or
(2) in respect of a covenant or provision in this Indenture which, under Article VIII,
cannot be modified without the consent of the Holder of each Outstanding Note of such
series.
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 4.14.
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 4.14 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the Outstanding Notes of any
series to which the suit relates, or to any suit instituted by any Holder pursuant to Section 4.08.
SECTION 4.15.
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.
37
ARTICLE V
THE TRUSTEE
SECTION 5.01.
Certain Duties and Responsibilities of Trustee
.
(1) Except during the continuance of an Event of Default with respect to a series of
Notes:
(i) the Trustee undertakes to perform such duties and only such duties with respect to
such series of Notes as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series of Notes shall be read into this
Indenture against the Trustee; and
(ii) 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.
(2) In case an Event of Default with respect to a series of Notes has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture with respect to such series of Notes, 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.
(3) 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:
(i) this Subsection shall not be construed to limit the effect of Section 5.01(1);
(ii) 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;
(iii) 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 aggregate principal amount of the Outstanding Notes of any series relating to
the time, method, and place of conducting any proceeding for any remedy available to the
Trustee with respect to such series of Notes, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to such series of Notes; and
38
(iv) 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.
(4) 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 5.01.
SECTION 5.02.
Notice of Defaults
. Within 90 days after the occurrence of any default
hereunder with respect to any series of Notes, the Trustee shall transmit by mail to all Holders of
Notes of such series, 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 of or
interest or premium, if any, on any Note of such series, 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 of
such series and; provided, further, that, in the case of any default of the character specified in
clause (iii) of Section 4.01(1) or in clause (i) of Section 4.01(2), no such notice to Holders of
Notes of such series shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section 5.02, the term
default
means any event which is, or after notice
or lapse of time or both would become, an Event of Default.
SECTION 5.03.
Certain Rights of Trustee
. Except as otherwise provided in Section
5.01:
(1) 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;
(2) any request or direction of the Obligor described herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Managing Directors
may be sufficiently evidenced by a Managing Directors Resolution;
(3) any request or direction of the Guarantor described 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;
(4) 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;
39
(5) the Trustee may consult with counsel of its selection 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;
(6) 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;
(7) 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;
(8) 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; and
(9) the permissive rights of the Trustee enumerated herein shall not be construed as
duties.
SECTION 5.04.
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 the Notes
or the proceeds thereof. The Trustee shall not be charged with notice or knowledge of any Event of
Default under clause (vi) of Section 4.01(1) or clause (iv) of Section 4.01(2) or of the identity
of a Restricted Subsidiary of the Obligor, PBG or the Guarantor unless either (i) a Responsible
Officer of the Trustee assigned to and working in its Corporate Trust Office shall have actual
knowledge thereof or (ii) notice thereof shall have been given to the Trustee in accordance with
Section 1.05 from the Obligor, the Guarantor or any Holder.
SECTION 5.05.
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 5.08 and 5.12, 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 5.06.
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
40
Trustee shall be under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Obligor.
SECTION 5.07.
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.
The Trustee shall have a lien prior to the Notes upon all property and funds held by it
hereunder for any amount owing it or any retiring Trustee pursuant to this Section 5.07, except
with respect to funds held in trust for the benefit of the Holders of particular Notes.
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
clause (iv) or (v) of Section 4.01(1) and clause (ii) or (iii) of Section 4.01(2), 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.
The provisions of this Section shall survive the termination of this Indenture and the
resignation or removal of the Trustee.
SECTION 5.08.
Disqualification; Conflicting Interests
. If the Trustee has or shall
acquire any conflicting interest within the meaning of the Trust Indenture Act, it shall either
eliminate such interest or resign as Trustee, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted
by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Notes of more than one series or by virtue of being a
Trustee under:
(i) the Indenture, dated as of February 8, 1999, among Pepsi Bottling Holdings, Inc.,
the Guarantor, as guarantor, and the Trustee, as supplemented by the
41
Supplemental Indenture, dated as of February 9, 1999, among Pepsi Bottling Holdings,
Inc., the Guarantor, as guarantor, and the Obligor relating to the 2009 Notes,
(ii) the Indenture, dated as of March 8, 1999, among PBG, the Obligor, as guarantor,
and the Trustee relating to the Senior Notes due 2029 of PBG and the Series B Senior Notes
due 2029 of PBG,
(iii) the Indenture, dated as of November 15, 2002, among the Obligor, PepsiCo, Inc.,
as guarantor, and the Trustee relating to the Senior Notes due 2012 and the Series B Senior
Notes due 2012 of the Obligor,
(iv) the Indenture, dated as of June 10, 2003, between the Obligor and the Trustee
relating to the Senior Notes due 2015 of the Obligor and the Series B Senior Notes due 2015
of the Obligor,
(v) the Indenture, dated as of October 1, 2003, between the Obligor and the Trustee
relating to Senior Notes in one or more series of the Obligor, and
(vi) the Indenture, dated as of March 30, 2006, between the Obligor and the Trustee
relating to Senior Notes in one or more series of the Obligor.
SECTION 5.09.
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. 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 5.09, 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 5.09, it shall resign immediately in the manner and with the effect hereinafter specified
in this Article V.
SECTION 5.10.
Resignation and Removal; Appointment of Successor
.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article V shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 5.11.
(2) The Trustee may resign at any time with respect to the Notes of one or more series
by giving written notice thereof to the Obligor. If the instrument of acceptance by a
successor Trustee required by Section 5.11 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 with
respect to the Notes of such series.
42
(3) The Trustee may be removed at any time with respect to the Notes of any series by
Act of the Holders of 66 2/3% in aggregate principal amount of the Outstanding Notes of such
series, delivered to the Trustee and to the Obligor.
(4) If at any time:
(i) the Trustee shall fail to comply with Section 5.08 after written request therefor
by the Obligor or by any Holder who has been a bona fide Holder of a Note for at least six
months, or
(ii) the Trustee shall cease to be eligible under Section 5.09 and shall fail to resign
after written request therefor by the Obligor or by any such Holder, or
(iii) the Trustee shall become incapable of acting or 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, (A) the
Obligor by a Managing Directors Resolution may remove the Trustee with respect to all Notes,
or (B) subject to Section 4.14, any Holder who has been a bona fide Holder of a Note for at
least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to all Notes and
the appointment of a successor Trustee or Trustees.
(5) 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, with respect to the Notes of one
or more series, the Obligor, by a Managing Directors Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Notes of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Notes of one
or more or all of such series and that at any time there shall be only one Trustee with
respect to the Notes of any particular series) and shall comply with the applicable
requirements of Section 5.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with respect to the
Notes of any series shall be appointed by Act of the Holders of 66 2/3% in aggregate
principal amount of the Outstanding Notes of such series delivered to the Obligor and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of Section 5.11, become the
successor Trustee with respect to the Notes of such series and to that extent supersede the
successor Trustee appointed by the Obligor. If no successor Trustee with respect to the
Notes of any series shall have been so appointed by the Obligor or the Holders and accepted
appointment in the manner required by Section 5.11, any Holder who has been a bona fide
Holder of a Note of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Notes of such series.
(6) The Obligor shall give notice of each resignation and each removal of the Trustee
with respect to the Notes of any series and each appointment of a successor
43
Trustee with respect to the Notes of any series to all Holders of Notes of such series
in the manner provided in Section 1.06. Each notice shall include the name of the successor
Trustee with respect to the Notes of such series and the address of its Corporate Trust
Office.
SECTION 5.11.
Acceptance of Appointment by Successor
. In case of the appointment
hereunder of a successor Trustee with respect to all Notes, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Obligor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
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 retiring
Trustee; but, on the request of the Obligor or the successor Trustee, such retiring Trustee shall,
upon payment of its reasonable charges and subject to its lien, if any, provided by Section 5.07,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Notes of one
or more (but not all) series, the Obligor, the retiring Trustee and each successor Trustee with
respect to the Notes of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Notes of that or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Notes, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Notes of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to
or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Notes of that or those series to
which the appointment of such successor Trustee relates; but, on request of the Obligor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with respect to the Notes of
that or those series to which the appointment of such successor Trustee relates.
Upon 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 referred to in the first or second preceding paragraph, as the case may be.
44
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 V.
SECTION 5.12.
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 V, 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 5.13.
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 5.14.
Appointment of Authenticating Agent
.
(1) 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 with respect to one or more
series of Notes which shall be authorized to act on behalf of the Trustee to authenticate
Notes of such series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 2.05, 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 Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Obligor and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as an Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and, if other than the Obligor
itself, subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the purposes of this
Section 5.14, 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 5.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 5.14.
45
(2) 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 5.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
(3) 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 5.14, 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 of the series with respect to
which such Authenticating Agent will serve, 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
5.14.
(4) The Obligor agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 5.14.
(5) If an appointment is made pursuant to this Section 5.14, the Notes may have
endorsed thereon, in addition to the Trustees 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 Bank of New York Mellon
as Trustee
|
|
|
By:
|
|
|
|
|
As Authenticating Agent
|
|
|
|
|
|
By:
|
|
|
|
|
Authorized Officer
|
|
|
|
|
|
46
ARTICLE VI
HOLDERS LISTS AND REPORTS BY TRUSTEE AND OBLIGOR
SECTION 6.01.
Obligor to Furnish Trustee Names and Addresses of Holders
. The Obligor
will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after the Record Date for the payment of
interest in respect of each series of Notes, in such form as the Trustee may reasonably
require, a list of the names and addresses of the Holders of such Notes as of such date,
(2) 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, in the case of (1) and (2), if the Trustee shall be the Registrar, such list
shall not be required to be furnished.
SECTION 6.02.
Preservation of Information; Communications to Holders
.
(1) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Notes of each series contained in the most recent list
furnished to the Trustee as provided in Section 6.01 and the names and addresses of Holders
of Notes received by the Trustee. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(2) Holders of Notes may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders of Notes with respect to their rights under this Indenture
or under the Notes.
(3) Every Holder of Notes, by receiving and holding the same, agrees with the Obligor
that the Obligor shall not 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
6.02(2), regardless of the source from which such information was derived.
SECTION 6.03.
Reports by Trustee
.
(1) Within 60 days after May 15 of each year commencing with the first May 15 following
the date of the initial issuance of Notes under this Indenture, the Trustee shall transmit
by mail to the Holders of Notes as their names and addresses appear in the Security
Register, a brief report dated as of such May 15, to the extent required under Section
313(a) of the Trust Indenture Act.
(2) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture
Act.
47
(3) A copy of each such report shall, at the time for such transmission to Holders of
Notes, be filed by the Trustee with the Obligor, with each stock exchange upon which any
Notes are listed (if so listed) and also with the Commission. The Obligor agrees to
promptly notify the Trustee when any Notes become listed on any stock exchange and of any
delisting thereof.
SECTION 6.04.
Reports by Obligor and Guarantor
.
The Obligor and the Guarantor shall comply with the provisions of Section 314(a) and 314(c) of
the TIA.
ARTICLE VII
CONSOLIDATION, MERGER OR TRANSFER
SECTION 7.01.
Obligor May Consolidate, Etc., Only on Certain Terms
. The Obligor may
consolidate or merge with or into, or transfer or lease all or substantially all of its assets to,
any Entity that is organized and validly existing under the laws of any state of the United States
of America or the District of Columbia, and may permit any such Entity to consolidate with or merge
into the Obligor or transfer or lease all or substantially all of its assets to the Obligor,
provided that:
(1) the Obligor will be the surviving Entity or, if not, that the successor Entity will
expressly assume by a supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of and premium,
if any, and interest on all the Notes and the performance of every covenant of the Indenture
to be performed or observed by the Obligor;
(2) immediately after giving effect to such transaction, no Event of Default, and no
default or other event which, after notice or lapse of time, or both, would become an Event
of Default, will have happened and be continuing; and
(3) the Obligor shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, transfer or lease and any
such assumption involving the Obligor complies with the provisions of this Article VII.
SECTION 7.02.
Guarantor May Consolidate, Etc., Only on Certain Terms
. The Guarantor
may consolidate or merge with or into, or transfer or lease all or substantially all of its assets
to, any Entity,
provided
that:
(1) the Guarantor will be the surviving Entity or, if not, that the successor Entity
formed by such consolidation or into which the Guarantor is merged or the Entity which
acquires by transfer or lease all or substantially all of the properties and assets of the
Guarantor will be an Entity organized and existing under the laws of any state of the United
States of America or the District of Columbia, and will expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, in form satisfactory
48
to the Trustee, all of the obligations of the Guarantor under this Indenture and the
Guarantee;
(2) immediately after giving effect to such transaction, no Event of Default, and no
default or other event which, after notice or lapse of time, or both, would become an Event
of Default, will have happened and be continuing; and
(3) the Guarantor shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, transfer or lease and any
such assumption involving the Guarantor complies with the provisions of this Article VII.
In the event that the Guarantee shall not become effective and the Guarantee Commencement Date
shall not occur in accordance with the provisions of Section 11.01(3), the provisions of this
Section 7.02 shall not be applicable to the Guarantor.
SECTION 7.03.
Successor Entity Substituted
. Upon any consolidation or merger, or any
transfer or lease of all or substantially all of the properties and assets of the Obligor, in
accordance with Section 7.01 or Section 7.02, as the case may be, the successor Entity 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 the Guarantor, as the case
may be, and the Obligor or the Guarantor, as the case may be, shall thereupon, except in the case
of a lease, be released from all obligations hereunder and under the Notes and the Guarantee, as
applicable. Such successor to the Obligor may cause to be signed, and may issue either in its own
name or in the name of the Obligor prior to such succession any or all of the Notes issuable
hereunder which theretofore shall not have been signed by the Obligor and delivered to the Trustee;
and, upon the order of such successor Entity instead of the Obligor and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee, pursuant to the terms hereof,
shall authenticate and shall deliver any Notes which previously shall have been signed and
delivered by the Officers of the Obligor to the Trustee for authentication, and any Notes which
such successor to the Obligor thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All of the Notes so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been issued at the date of the execution
hereof.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.01.
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:
49
(1) to evidence the succession of another Entity 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 VII; 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 (and if such covenants are to be for the benefit of less than all series of Notes,
stating that such covenants are expressly being included solely for the benefit of such
series); or
(3) to evidence the surrender of any right or power of the Obligor or the Guarantor; or
(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; 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 comply with any requirements of the Commission in connection with qualifying, or
maintaining the qualification of, this Indenture under the TIA; or
(7) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 5.11; or
(8) to add to the rights of the Holders of the Notes; or
(9) to provide for the issuance of and establish the form or forms and terms and
conditions of Notes of any series as permitted by this Indenture; or
(10) to add any additional Events of Default for the benefit of the Holders of all or
any series of Notes (and if such additional Events of Default are to be for the benefit of
less than all series of Notes, stating that such additional Events of Default are expressly
being included solely for the benefit of such series); or
(11) to conform this Indenture to the section entitled Description of Debt Securities
in the prospectus dated October [
], 2008 or any prospectus supplement to such prospectus
relating to the Notes or any corresponding section of such prospectus or prospectus
supplement pursuant to which any additional series of Notes is issued under this Indenture,
except as restricted under the TIA.
50
No supplemental indenture for the purposes identified in clause (2), (3), (4), (8) or (10)
above may be entered into if to do so would adversely affect the interest of the Holders of Notes.
Any such supplemental indenture authorized by the provisions of this Section 8.01 may be
executed without the consent of the Holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 8.02.
SECTION 8.02.
Supplemental Indentures with Consent of Holders
. With the consent of
the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes of
all series affected by such supplemental indenture (voting as one class), the Obligor, when
authorized by a Managing Directors Resolution, the Guarantor, when authorized by a Board
Resolution, 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 of each such series 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 such 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 such Note or any payment of principal, premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after the same
shall become due and payable, whether at Maturity or, in the case of redemption, on or after
the Redemption Date; or
(2) reduce the percentage in principal amount of the Outstanding Notes of the relevant
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of certain defaults hereunder and their
consequences, provided for in this Indenture; or
(3) modify any of the provisions of this Section 8.02, Section 4.08 or Section 4.13,
except to increase any such percentage set forth in this Section 8.02 or Section 4.13 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, provided, however, that
this clause shall not be deemed to require the consent of any Holder with respect to changes
in the references to the Trustee and concomitant changes in this Section, or the deletion
of this proviso, in accordance with the requirements of Section 5.11 and 8.01(7).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Notes, or which modifies the rights of the Holders of Notes of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Notes of any other series.
51
It shall not be necessary for any Act of Holders under this Section 8.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 8.03.
Execution of Supplemental Indentures
. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article VIII or the
modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 5.01) shall be fully protected in relying upon, in addition to the
documents required by Section 1.02, 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 8.02, upon filing with the Trustee of evidence of an Act of Holders as
aforementioned, the Trustee and the Guarantor shall join with the Obligor in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustees 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 8.04.
Effect of Supplemental Indentures
. Upon the execution of any
supplemental indenture under this Article VIII, 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 8.05.
Conformity with Trust Indenture Act
. Every supplemental indenture
executed pursuant to this Article VIII shall conform to the requirements of the TIA as then in
effect.
SECTION 8.06.
Documents to Be Given to Trustee
. The Trustee, subject to the
provisions of Section 5.01, may receive an Officers Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this Article VIII complies
with the applicable provisions of this Indenture.
SECTION 8.07.
Notation on Notes in Respect of Supplemental Indentures
. Notes of any
series authenticated and delivered after the execution of any supplemental indenture pursuant to
the provisions of this Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture. If the Obligor or the Trustee shall
so determine, new Notes of any series so modified as to conform, in the opinion of the Trustee and
the Managing Directors, to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Obligor, authenticated by the Trustee and delivered in exchange
for the Notes of such series then Outstanding.
ARTICLE IX
COVENANTS
52
SECTION 9.01.
Payment of Principal, Premium and Interest
. The Obligor covenants and
agrees for the benefit of each series of Notes that it will duly and punctually pay or cause to be
paid the principal, premium, if any, and interest on such series of Notes on the dates and in the
manner provided in such series of Notes, and will duly comply with all the other terms, agreements
and conditions contained in this Indenture for the benefit of such series of 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 each series of 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 9.02.
Maintenance of Office or Agency
. So long as any of the Notes remain
outstanding, the Obligor will maintain an office or agency in the City of New York where Notes may
be presented or surrendered for payment, where Notes may be surrendered for transfer or exchange,
and where notices and demands to or upon the Obligor in respect of the Notes and this Indenture may
be served. The Obligor will give prompt written notice to the Trustee of the location, and of any
change in the location, of such office or agency. If at any time the Obligor shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the 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
one or more series of 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 9.03.
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 series of Notes, segregate and hold in trust for the benefit of
the Holders of such series of 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 of such series 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 series of 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 of such series entitled
53
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 9.03, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal, premium, if any, or
interest, on Notes of any series in trust for the benefit of the Holders of the Notes of
such series entitled thereto until such sums shall be paid to such Holders or otherwise
disposed of as herein provided;
(2) give the Trustee prompt notice of any default by the Obligor (or any other obligor
upon the Notes of such series) in the making of any such payment of principal, premium, if
any, or interest, on such Notes; and
(3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Obligor may, at any time, for the purpose of obtaining the 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 series of 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 9.04.
Certificate to Trustee
.
(1) The Obligor will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Obligor ending after the initial issuance of Notes under this Indenture,
an Officers Certificate that complies with TIA Section 314(a)(4) stating that in the course
of the performance by the signers of their duties as officers of the Obligor, 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.
(2) The Guarantor will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Guarantor ending after the initial issuance of Notes under this
Indenture, an Officers Certificate that complies with TIA Section 314(a)(4) stating that in
the course of the performance by the signers of their duties as officers of the Guarantor,
they would normally have knowledge of any default by the Guarantor 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.
54
SECTION 9.05.
Existence
. Subject to Article VII, (1) the Obligor will do or cause to
be done all things necessary to preserve and keep in full force and effect its limited liability
company existence and (2) the Guarantor will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
SECTION 9.06.
Limitation on Liens
.
(1)
Limitation on Liens with Respect to the Obligor
: 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 (as such term is defined with respect to the
Obligor) or on any shares of stock of (or other interests in) 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 (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), 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:
(i) Liens existing prior to the initial issuance of Notes hereunder;
(ii) Liens on property of or shares of stock of (or other interests in) any Entity
existing at the time such Entity becomes a Restricted Subsidiary of the Obligor;
(iii) Liens on property of or shares of stock of (or other interests in) any Entity
existing at the time of acquisition thereof (including acquisition through merger or
consolidation);
(iv) Liens securing indebtedness incurred to finance all or any part of the purchase
price of property or the cost of construction of such property (or additions, substantial
repairs, alterations or substantial improvements thereto), provided that such Lien and the
indebtedness secured thereby are incurred within 365 days after the later of (a) acquisition
of such property or the completion of construction (or addition, repair, alteration or
improvement) thereon and (b) the commencement of full operation thereof;
(v) Liens in favor of the Obligor or any of its Restricted Subsidiaries;
(vi) Liens in favor of, or required by contracts with, governmental entities; or
(vii) any extension, renewal, or refunding referred to in any of the preceding clauses
(i) through (vi), provided that in the case of a Lien permitted under clause (i), (ii),
(iii), (iv) or (v), 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 (as such term is
defined with respect to the Obligor) or on any shares of stock of (or other interests
55
in) 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 of the Obligor.
(2)
Limitation on Liens with Respect to the Guarantor
. On and after the
Guarantee Commencement Date (in the event that the Guarantee Commencement Date shall occur)
and so long as any of the Notes shall be Outstanding, neither the Guarantor nor any
Restricted Subsidiary of the Guarantor will incur, suffer to exist or guarantee any Debt,
secured by a Lien on any Principal Property (as such term is defined with respect to the
Guarantor) or on any shares of stock of (or other interests in) any Restricted Subsidiary of
the Guarantor unless the Guarantor or such first mentioned Restricted Subsidiary secures or
the Guarantor causes such Restricted Subsidiary to secure the Guarantee (and any other Debt
of the Guarantor or such Restricted Subsidiary, at the option of the Guarantor or such
Restricted Subsidiary, as the case may be, not subordinate to the Guarantee), 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:
(i) Liens existing prior to the Guarantee Commencement Date;
(ii) Liens on property of or shares of stock of (of other interests in) any Entity
existing at the time such Entity becomes a Restricted Subsidiary of the Guarantor;
(iii) Liens on property or shares of stock of (of other interests in) any Entity
existing at the time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or part of the purchase price thereof or
construction or improvements on such property or to secure any Debt incurred prior to, at
the time of, or within 365 days after the later of the acquisition, the completion of
construction, or the commencement of full operation of such property, or within 365 days
after the acquisition of such shares (or other interests) for the purpose of financing all
or any part of the purchase price of such shares (or other interests);
(iv) Liens in favor of the Guarantor or any of its Restricted Subsidiaries;
(v) Liens in favor of, or required by contracts with, governmental entities; and
(vi) any extension, renewal, or refunding referred to in any of the preceding clauses
(i) through (v).
Notwithstanding the foregoing, the Guarantor or any of its Restricted Subsidiaries may incur,
suffer to exist or guarantee any Debt secured by a Lien on any Principal Property (as such term is
defined with respect to the Guarantor) or on any shares of stock of (or other interests in) any
Restricted Subsidiary of the Guarantor if, after giving effect thereto, the aggregate amount of
such Debt does not exceed 15% of Consolidated Net Tangible Assets of the Guarantor.
The transfer of a Principal Property by the Guarantor to an Unrestricted Subsidiary of the
Guarantor or the change in designation by the Guarantor of a Subsidiary which
56
owns a Principal Property from Restricted Subsidiary to Unrestricted Subsidiary shall not be
restricted.
SECTION 9.07.
Limitation on Sale-Leaseback Transactions
.
(1) 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 such term is defined with respect to the Obligor)
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 (as such term is defined with respect
to the Obligor) and lease it back for a period longer than three years (i) if the Obligor or
such Restricted Subsidiary would be entitled, pursuant to Section 9.06(1), 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 Managing Directors Resolution) of such property and (C) the Obligor
causes an amount equal to the net proceeds of the sale to be applied either (x) 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 (y) 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.
(2) Notwithstanding Section 9.07(1), the Obligor or any Restricted Subsidiary of the
Obligor may enter into sale and lease-back transactions in addition to those permitted by
Section 9.07(1), 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 of the Obligor.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01.
Election to Redeem; Notice to Trustee
. If the Obligor elects to redeem
any series of Notes pursuant to the optional redemption provisions of Section 10.07 or any other
optional redemption provision provided for with respect to such series of Notes, it shall furnish
to the Trustee, at least 45 days but not more than 60 days before the Redemption Date, an Officers
Certificate setting forth (1) the Redemption Date, and (2) the CUSIP and/or ISIN numbers of the
series of Notes to be redeemed.
57
SECTION 10.02.
Selection by Trustee of the Notes to be Redeemed
. If fewer than all
the Notes of any series are to be redeemed, the particular Notes of such series to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding Notes of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate. The portions of the principal of Notes of such series so
selected for partial redemption shall be equal to $2,000, or an integral multiple of $1,000 in
excess thereof, and the principal amount which remains Outstanding shall not be less than $2,000.
The Trustee shall promptly notify the Obligor in writing of the Notes selected for redemption
and, in the case of any Notes 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 10.03.
Notice of Redemption
.
(1) Notice of redemption to the Holders of Notes to be redeemed as a whole or in part
at the option of the Obligor shall be given by first-class mail, postage prepaid, mailed not
fewer than 30 nor more than 60 days prior to the Redemption Date, to each such Holder at
such Holders last address appearing in the Security Register.
(2) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if not then ascertainable, the manner of calculating the
Redemption Price;
(iii) if fewer than all Outstanding Notes of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of
the Notes of such series to be redeemed from the Holder to whom the notice is given and that
on and after the Redemption Date, upon surrender of such Note, a new Note or Notes of such
series in the aggregate principal amount equal to the unredeemed portion thereof will be
issued in accordance with Section 10.06;
(iv) that on the Redemption Date the Redemption Price will become due and payable upon
each Note of such series called for redemption, and that interest, if any, thereon shall
cease to accrue from and after said date;
(v) the place where Notes of such series called for redemption are to be surrendered
for payment of the Redemption Price, which shall be the office or agency maintained by the
Obligor pursuant to Section 9.02;
(vi) the name and address of the Paying Agent;
58
(vii) that the Notes called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price; and
(viii) the CUSIP and/or ISIN number, and that no representation is made as to the
correctness or accuracy of the CUSIP and/or ISIN number, if any, listed in such notice or
printed on the series of Notes.
(3) Notice of redemption of Notes shall be given by the Obligor or, at the Obligors
request, by the Trustee in the name and at the expense of the Obligor.
SECTION 10.04.
Deposit of Redemption Price
. On or prior to 10 a.m., New York City
time, on any Redemption Date, the Obligor shall deposit with the Trustee or with a Paying Agent
(or, if the Obligor is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 9.03) an amount of money sufficient to pay the Redemption Price of all the Notes of such
series which are to be redeemed on that date.
SECTION 10.05.
Notes Payable on Redemption Date
.
(1) Notice of redemption having been given as aforesaid, the Notes so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Obligor shall default in the payment of
the Redemption Price) such Notes shall cease to bear interest. Upon surrender of such Notes
for redemption in accordance with the notice, such Notes shall be paid by the Obligor at the
Redemption Price. Any installment of interest due and payable on or prior to the Redemption
Date shall be payable to the Holders of such Notes registered as such on the relevant Record
Date according to the terms and the provisions of Section 2.06.
(2) If any Note called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor by the Note.
SECTION 10.06.
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 9.02
(with, if the Obligor or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Obligor and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing) and the Obligor shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge and at the expense of
the Obligor, a new Note or Notes of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of
the principal of such Note so surrendered.
SECTION 10.07.
Optional Redemption
. The Notes of any series will be redeemable at any
time in whole or from time to time in part at the option of the Obligor, regardless of whether the
Notes of any other series are to be redeemed, at the Redemption Price equal to the greater of:
(1) 100% of the principal amount of the Notes being redeemed, or
59
(2) as determined by an Independent Investment Banker, the sum of the present values of
the remaining scheduled payments of principal and interest on the Notes being redeemed (not
including any portion of such payments of interest on the Notes accrued to the Redemption
Date) from the Redemption Date to the Maturity Date discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount
rate equal to the Treasury Rate plus the number of basis points, if any, provided for with
respect to such series of Notes being redeemed; plus, for (1) or (2) above, whichever is
applicable, accrued and unpaid interest on the Notes to be redeemed to, but not including,
the Redemption Date. The Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date and notice thereof shall promptly be given by the Obligor to
the Trustee.
Any redemption pursuant to this Section 10.07 shall be made pursuant to the provisions of
Section 10.01 through 10.06.
Notwithstanding anything in this Section 10.07 to the contrary, the Obligor may provide
pursuant to Section 2.01(1)(v)(j) for optional redemption provisions with respect to a series of
Notes in addition to, or in substitution of, the provision contained in this Section 10.07 and may
provide with respect to a series of Notes for an optional redemption provision identical to the
provision contained in this Section but providing for different definitions of the terms
Comparable Treasury Issue, Comparable Treasury Price, Reference Treasury Dealer, Reference
Treasury Dealer Quotations and Treasury Rate.
SECTION 10.08.
Mandatory Redemption
. Unless otherwise provided pursuant to Section
2.01(1)(v)(j), the Obligor shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes of any series.
ARTICLE XI
GUARANTEE
SECTION 11.01.
Guarantee
.
(1)
Provisions Relating to a Full Guarantee
.
(a) Subject to the provisions of this Article XI, in the event that:
(A) the Obligor has deposited irrevocably with the 2009 Notes Trustee, prior to the
2009 Notes Payment Deposit Date, sufficient cash in immediately available funds to pay in
full the principal of and interest and premium, if any, that will become due and payable on
the 2009 Notes on the 2009 Notes Payment Date; or
(B) (x) the Obligor has not deposited irrevocably with the 2009 Notes Trustee, prior to
the 2009 Notes Payment Deposit Date, sufficient cash in immediately available funds to pay
in full the principal of and interest and premium, if any, that will become due and payable
on the 2009 Notes on the 2009 Notes Payment Date and (y) the Guarantor has not delivered to
the Obligor and the Trustee an Officers Certificate by 5:00 p.m., New York City time, on
the 2009 Notes Payment Deposit Date, stating that the
60
Guarantor has determined in good faith that the Guarantor is likely to have to pay some
or all of the principal amount of the 2009 Notes (and the interest and premium, if any, with
respect thereto) due and payable on the 2009 Notes Payment Date under the 2009 Notes
Guarantee; then,
beginning on the Guarantee Commencement Date, 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: (a) the principal of, premium, if any, and
interest on the Notes will be duly and punctually paid in full when due, whether at stated
maturity, by acceleration, redemption or otherwise, together with 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 monetary obligations of the Obligor to the
Holders hereunder or under the Notes will be promptly paid in full, all in accordance with
the terms hereof; and (b) in case of any extension of time of payment or renewal of any of
the Notes or any of such other monetary obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration, redemption or otherwise.
(b) In the event of the foregoing, on or promptly after the 2009 Notes Payment Deposit
Date, the Guarantor shall notify the Trustee of the Guarantee Commencement Date and of the
Guarantors full Guarantee.
(2)
Provisions Relating to a Partial Guarantee
.
(a) Subject to the provisions of this Article XI, in the event that:
(A) the Obligor has not deposited irrevocably with the 2009 Notes Trustee, prior to the
2009 Notes Payment Deposit Date, sufficient cash in immediately available funds to pay in
full the principal of and interest and premium, if any, that will become due and payable on
the 2009 Notes on the 2009 Notes Payment Date; and
(B) the Guarantor has delivered to the Obligor and the Trustee an Officers Certificate
by 5:00 p.m., New York City time, on the 2009 Notes Payment Deposit Date, stating that the
Guarantor has determined in good faith that the Guarantor is likely to have to pay some but
not all of the principal amount of the 2009 Notes (and the interest and premium, if any,
with respect thereto) due and payable on the 2009 Notes Payment Date under the 2009 Notes
Guarantee (the
Partial Payment Notice
); then,
beginning on the Guarantee Commencement Date, 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 (x) the Partial Guarantee Percentage of each of
the principal of, premium, if any, and interest on the Notes will be duly and punctually
paid in full when due, whether at stated maturity, by acceleration, redemption or otherwise,
together with interest on the Partial Guarantee Percentage of such overdue principal, and
premium, if any, and (to the extent permitted by law) interest, if any, on the Notes and the
Partial Guarantee Percentage of all other monetary
61
obligations of the Obligor to the Holders hereunder or under the Notes, all in accordance
with the terms hereof; and (y) in case of any extension of time of payment or renewal of any
of the Notes or any of such other monetary obligations, the amount set forth in clause (x)
above 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, redemption or
otherwise.
(b) In the event of the foregoing, on or promptly after the 2009 Notes Payment Deposit
Date, the Guarantor shall notify the Trustee as to the Guarantee Commencement Date, of the
Guarantors partial Guarantee and of the Partial Guarantee Percentage.
(c) In the event that (a) the Obligor defaults in the payment of principal of and
interest and premium, if any, on the Outstanding Notes upon the Maturity Date, the
Redemption Date or by acceleration or otherwise, in each case, on and after the Guarantee
Commencement Date (in the event that the Guarantee Commencement Date shall occur), and (b)
the Guarantor makes the payment of the Partial Guarantee Percentage of each of the principal
of and interest and premium, if any, on the Outstanding Notes under the Guarantors partial
Guarantee, a replacement Note in the principal amount equal to the principal of the Note
that was not paid or redeemed will be issued in the name of the Holder of the Note upon
cancellation of the original Note, and upon request of the Obligor, the Trustee shall
authenticate and deliver such replacement Note. Any such replacement Note shall not have an
executed Guarantee endorsed thereon and shall accrue interest from the most recent date to
which interest has been paid or duly provided for or, if no interest has been paid, from the
Issue Date. The issuance of such replacement Note shall be deemed to be a replacement of
the cancelled Note and not the incurrence of new or additional indebtedness under this
Indenture.
(3)
Provisions Relating to the Absence of a Guarantee
:
(a) In the event that:
(A) prior to the Scheduled Guarantee Commencement Date, there occurs an Event of
Default or any default or other event which, with the giving of notice or passage of time,
would constitute an Event of Default under this Indenture or the Notes; or
(B) (x) the Obligor has not deposited irrevocably with the 2009 Notes Trustee, prior to
the 2009 Notes Payment Deposit Date, sufficient cash in immediately available funds to pay
in full the principal of and interest and premium, if any, that will become due and payable
on the 2009 Notes on the 2009 Notes Payment Date and (y) the Guarantor has delivered to the
Obligor and the Trustee an Officers Certificate by 5:00 p.m., New York City time, on the
2009 Notes Payment Deposit Date, stating that the Guarantor has determined in good faith
that the Guarantor is likely to have to pay all of the principal amount of the 2009 Notes
(and the interest and premium, if any, with respect thereto) due and payable on the 2009
Notes Payment Date under the 2009 Notes Guarantee; then
62
the Guarantee shall not become effective, the Guarantee Commencement Date shall not occur,
and the Guarantor shall not have any obligations under the Guarantee or the Indenture.
(b) Promptly upon the occurrence of any event described in clause (a) or (b) of Section
11.03(1), the Guarantor shall notify the Trustee that the Guarantee shall not become
effective and that the Guarantee Commencement Date shall not occur.
(4) In accordance with the terms of this Article XI and the Guarantee, failing payment
when due of any amount so guaranteed, or failing performance of any other monetary
obligation of the Obligor to the Holders, for whatever reason, the Guarantor will be
obligated to pay, or to perform or to cause the performance of, such amount so guaranteed
immediately. An Event of Default under this Indenture or the Notes shall constitute an
event of default under the Guarantee, and shall entitle the Holders of the Notes to
accelerate the obligations of the Guarantor under the Guarantee in the same manner and to
the same extent as the obligations of the Obligor.
(5) In accordance with the terms of this Article XI and the Guarantee, the Guarantor
hereby agrees that its obligations under the 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: (i)
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 partys power before proceeding against the Guarantor; (ii) 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; (iii) demand, protest and notice of any kind (except as expressly required by this
Indenture), including but not limited to notice 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 the Guarantee; (iv) 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; (v) any defense based upon any statute or
rule of law which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; and (vi) any defense based
on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code.
The Guarantor hereby covenants that the Guarantee will not be discharged except (a) in the
event the Guarantee Commencement Date shall occur, (x) by payment in full of all principal,
premium, if any, and interest on the Notes and all other monetary obligations to the Holders
to the extent provided for under this Indenture by the Obligor or (y) by payment in full of
all of or the Partial Guarantee Percentage of (as the case may be) the principal, premium,
if any, and
63
interest on the Notes and all other monetary obligations to the Holders to the extent
provided for under this Indenture by the Guarantor, (b) before any Scheduled Guarantee
Commencement Date, by the payment in full of all of the principal, premium, if any, and
interest on the Notes and all other monetary obligations to the Holders to the extent
provided for under this Indenture, (c) upon the occurrence of any event described in clause
(i) of Section 11.01(3), (d) upon satisfaction and discharge of this Indenture in accordance
with Section 3.01 or (e) upon the occurrence of Legal Defeasance in accordance with Section
3.02(a). This is a Guarantee of payment and not of collectibility.
(6) 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, the Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. The Guarantor agrees that, as between it, on the one
hand, and the Holders of the Notes and the Trustee, on the other hand, (i) the maturity of
the obligations guaranteed under the Guarantee may be accelerated as provided in Article V
for the purposes hereof, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in
the event of any acceleration of such obligations as provided in Article V, such obligations
so guaranteed under the Guarantee (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purpose of the Guarantee.
SECTION 11.02.
Execution and Delivery of the Guarantee
.
(1) To evidence the Guarantee set forth in Section 11.01, the Guarantor agrees that a
notation of the Guarantee substantially in the form included in Exhibit A hereto shall be
endorsed on each Note authenticated and delivered by the Trustee (except as otherwise
provided in Sections 2.01(1) and 11.01(2)(iii)) and executed on behalf of the Guarantor by
one of the Officers of the Guarantor by manual or facsimile signature. The Guarantor agrees
that the Guarantee set forth in this Article XI 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 (except as otherwise provided in Section 11.01(2)(iii)).
(2) 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.
(3) 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 11.03.
Limitation of the Guarantors 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 conveyance for
purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
64
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 XI 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.
SECTION 11.04.
Subrogation
.
Upon making any payment with respect to any obligation of the Obligor under this Article, the
Indenture or the Notes, the Guarantor will be subrogated to the rights of the payee against the
Obligor with respect to such obligation,
provided
that the Guarantor may not enforce any right of
subrogation with respect to such payment so long as any amount payable by the Obligor hereunder or
under the Notes remains unpaid.
65
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
|
|
|
|
|
|
BOTTLING GROUP, LLC,
as Obligor
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
PEPSICO, INC.,
as Guarantor
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
THE BANK OF NEW YORK MELLON,
as Trustee
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
66
EXHIBIT A
GUARANTEE
PepsiCo, Inc., a North Carolina corporation (hereinafter referred to as the
Guarantor
), which term includes any successor or assign under the Indenture, dated as of
October [
], 2008, among Bottling Group, LLC, a Delaware limited liability company or any successor
thereto (the
Obligor
), the Guarantor and The Bank of New York Mellon, as trustee, (the
Indenture
), hereby irrevocably and unconditionally guarantees to the Holders of the Notes
and the Trustee that: (i) (A) in the event of a full guarantee as described in Section 11.01(1) of
the Indenture, the principal of, premium, if any, and interest on the Notes will be duly and
punctually paid in full when due, whether at stated maturity, by acceleration, redemption or
otherwise, together with 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 monetary obligations
of the Obligor to the Holders under the Indenture or the Notes will be promptly paid in full, all
in accordance with the terms hereof or (B) in the event of a partial guarantee as described in
Section 11.01(2) of the Indenture, the Partial Guarantee Percentage of the principal of, premium,
if any, and interest on the Notes will be duly and punctually paid in full when due, whether at
stated maturity, by acceleration, redemption or otherwise, together with interest on the Partial
Guarantee Percentage of such overdue principal, and premium, if any, and (to the extent permitted
by law) interest, if any, on the Notes and the Partial Guarantee Percentage of all other monetary
obligations of the Obligor to the Holders under the Indenture or the Notes, all in accordance with
the terms hereof; and (ii) in case of any extension of time of payment or renewal of any of the
Notes or any of such other monetary obligations, the amount set forth in clause (A) or (B) above,
whichever is applicable, 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, redemption or
otherwise.
The obligations of the Guarantor to the Holders and to the Trustee pursuant to this Guarantee
and the Indenture are expressly set forth in Article XI 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, her or its status as such
stockholder, officer, director or incorporator.
This is a continuing Guarantee and shall remain in full force and effect from and including
the Guarantee Commencement Date (in the event that the Guarantee Commencement Date shall occur) and
shall, in accordance with the terms of the Guarantee and the Indenture, be binding upon the
Guarantor and its successors and assigns until (a) full and final payment and performance of all
other monetary obligations of the Obligor to the Holders under the Indenture or the Notes or (b)
full and final payment by the Guarantor of the same to the extent specified in clause (i)(A) or
(i)(B) above, 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
A-1
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 endorsed shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized officers.
IF THE GUARANTEE COMMENCEMENT DATE SHALL NOT OCCUR, THIS GUARANTEE SHALL NOT BECOME EFFECTIVE,
AND THE GUARANTOR SHALL NOT HAVE ANY OBLIGATIONS UNDER THIS GUARANTEE OR THE INDENTURE.
THE TERMS OF ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
A-2
Capitalized terms used herein have the same meanings given in the Indenture unless otherwise
indicated.
Dated:
|
|
|
|
|
|
PEPSICO, INC.
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
A-3