Exhibit 4
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EXECUTION COPY
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BOTTLING GROUP, LLC
(as Obligor)
and
JPMORGAN CHASE BANK
(as Trustee)
4 1/8% Senior Notes due June 15, 2015
4 1/8% Series B Senior Notes due June 15, 2015
Indenture
Dated as of June 10, 2003
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 and Obligor.....................................................13
Section 1.06. Notice to Holders; Waiver.................................................................13
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.......................................................................14
Section 1.11. Benefits of Indenture.....................................................................14
Section 1.12. Governing Law.............................................................................14
Section 1.13. Counterparts..............................................................................14
Section 1.14. Legal Holidays............................................................................14
Article II
THE NOTES
Section 2.01. Form and Dating...........................................................................15
Section 2.02. Execution and Authentication; Aggregate Principal Amount..................................17
Section 2.03. Temporary Notes...........................................................................18
Section 2.04. Registration, Transfer and Exchange.......................................................18
Section 2.05. Mutilated, Destroyed, Lost and Stolen Notes...............................................24
Section 2.06. Payment of Interest; Interest Rights Preserved............................................24
Section 2.07. Persons Deemed Owners.....................................................................25
Section 2.08. Cancellation..............................................................................26
Section 2.09. Computation of Interest...................................................................26
Section 2.10. CUSIP Numbers.............................................................................26
Section 2.11. Additional Interest under Registration Rights Agreement...................................26
Section 2.12 Issuance of Additional Notes..............................................................26
Article III
SATISFACTION AND DISCHARGE
Section 3.01. Satisfaction and Discharge of Indenture...................................................27
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Section 3.02. Defeasance and Discharge of Covenants upon Deposit of Moneys, U.S. Government Obligations.29
Section 3.03. Application of Trust Money................................................................30
Section 3.04. Paying Agent to Repay Moneys Held.........................................................30
Section 3.05. Return of Unclaimed Amounts...............................................................30
Article IV
REMEDIES
Section 4.01. Events of Default.........................................................................31
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............................................................34
Section 4.07. Limitation on Suits.......................................................................35
Section 4.08. Unconditional Right of Holders to Receive Payment of Principal, Premium and Interest......35
Section 4.09. Restoration of Rights and Remedies........................................................35
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...................................................................36
Section 4.14. Undertaking for Costs.....................................................................36
Section 4.15. Waiver of Stay or Extension Laws..........................................................37
Article V
THE TRUSTEE
Section 5.01. Certain Duties and Responsibilities of Trustee............................................37
Section 5.02. Notice of Defaults........................................................................38
Section 5.03. Certain Rights of Trustee.................................................................38
Section 5.04. Not Responsible for Recitals or Issuance of Notes.........................................39
Section 5.05. May Hold Notes............................................................................39
Section 5.06. Money Held in Trust.......................................................................40
Section 5.07. Compensation and Reimbursement............................................................40
Section 5.08. Disqualification; Conflicting Interests...................................................40
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Section 5.09. Corporate Trustee Required; Eligibility...................................................41
Section 5.10. Resignation and Removal; Appointment of Successor.........................................41
Section 5.11. Acceptance of Appointment by Successor....................................................42
Section 5.12. Merger, Conversion, Consolidation or Succession to Business...............................42
Section 5.13. Preferential Collection of Claims Against Obligor.........................................43
Section 5.14. Appointment of Authenticating Agent.......................................................43
Article VI
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGOR
Section 6.01. Obligor to Furnish Trustee Names and Addresses of Holders.................................44
Section 6.02. Preservation of Information; Communications to Holders....................................45
Section 6.03. Reports by Trustee........................................................................45
Section 6.04. Reports by Obligor........................................................................47
Article VII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 7.01. Obligor May Consolidate, Etc., Only on Certain Terms......................................47
Section 7.02. Successor Entity Substituted..............................................................47
Article VIII
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Holders........................................48
Section 8.02. Supplemental Indentures with Consent of Holders...........................................48
Section 8.03. Execution of Supplemental Indentures......................................................49
Section 8.04. Effect of Supplemental Indentures.........................................................49
Section 8.05. Conformity with Trust Indenture Act.......................................................50
Article IX
COVENANTS
Section 9.01. Payment of Principal, Premium and Interest................................................50
Section 9.02. Maintenance of Office or Agency...........................................................50
Section 9.03. Money for Note Payments to be Held in Trust...............................................50
Section 9.04. Certificate to Trustee....................................................................51
Section 9.05. Existence.................................................................................51
Section 9.06. Limitation on Liens.......................................................................52
Section 9.07. Limitation on Sale-Leaseback Transactions.................................................52
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Article X
REDEMPTION OF NOTES
Section 10.01. Election to Redeem; Notice to Trustee.....................................................53
Section 10.02. Selection by Trustee of Notes to be Redeemed..............................................53
Section 10.03. Notice of Redemption......................................................................54
Section 10.04. Deposit of Redemption Price...............................................................54
Section 10.05. Notes Payable on Redemption Date..........................................................55
Section 10.06. Notes Redeemed in Part....................................................................55
Section 10.07. Optional Redemption.......................................................................55
Section 10.08. Mandatory Redemption......................................................................55
EXHIBIT A: Form of Initial Note...............................................................................A-1
EXHIBIT B: Form of Exchange Note..............................................................................B-1
EXHIBIT C: Certificate to be Delivered upon Exchange or Registration of
Transfer of Notes.............................................................................C-1
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THIS INDENTURE, between Bottling Group, LLC, a Delaware limited liability
company (the "Obligor"), having its principal office at One Pepsi Way, Somers,
NY 10589, and JPMorgan Chase Bank, a banking corporation incorporated and
existing under the laws of the State of New York, as trustee (the "Trustee"), is
made and entered into as of this 10th day of June, 2003.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes (as hereinafter defined) are to be
authenticated, issued, and delivered, and in consideration of the premises
thereof, and the purchase of the Notes by the Holders (as hereinafter defined)
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders from time to time of the Obligor's 4 1/8% Senior Notes
due June 15, 2015 issued on the date hereof (the "Initial Note"), any
Additional Notes (as hereinafter defined) and, if and when issued in exchange
for Initial Notes or Additional Unregistered Notes (as hereinafter defined), the
Obligor's 4 1/8% Series B Senior Notes due June 15, 2015 (the "Exchange Notes,"
and together with the Initial Notes and any Additional Notes, hereinafter
referred to as the "Notes"), as follows:
RECITALS OF THE OBLIGOR
WHEREAS, the Obligor has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Notes, to be issued in fully
registered form;
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Obligor, in accordance with its terms, have been done.
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;
(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.
"Additional Interest" means all additional interest owing pursuant to
Section 6 of the Registration Rights Agreement.
"Additional Notes" means, subject to the Obligor's compliance with Sections
2.02, 2.12 and 5.03, 4 1/8% Senior Notes due June 15, 2015 issued from time to
time after the Issue Date under the terms of this Indenture (other than pursuant
to Sections 2.03, 2.04, 2.05 or 10.06 of this Indenture).
"Additional Registered Notes" has the meaning specified in Section 2.12.
"Additional Unregistered Notes" has the meaning specified in Section 2.12.
"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 interest rate borne by the 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.
"Bankruptcy Code" means title 11, U.S. Code, as amended, or any similar
state or federal law for the relief of debtors.
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"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in New York are
authorized or required by law, regulation or executive order to be closed.
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme, or
the successor to its securities clearance and settlement operations.
"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.
"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, (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.
"Company Request" or "Company Order" means a written request or order,
respectively, signed in the name of the Obligor by any Officer thereof and
delivered to the Trustee.
"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, 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, New York, New York 10004.
"Covenant Defeasance" has the meaning specified in Section 3.02.
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"Custodian" means the Person appointed by the Obligor to act as custodian
for the Depositary, which Person shall be the Trustee unless and until a
successor Person is appointed by the Obligor.
"Debt" means any 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.
"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 substantially in the
form of Exhibit A or B hereto, as applicable, except that such Note shall not
bear the Global Note Legend (or the "Schedule of Exchanges of Interests in the
Global Note" attached thereto), but may bear the Private Placement Legend, if
required by this Indenture.
"Depositary" means with respect to the Notes issuable or issued in whole or
in part in global form, the Person designated as Depositary by the Obligor
pursuant to Section 2.04, unless and until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder.
"Discharged" has the meaning specified in Section 3.02.
"Distribution Compliance Period" means, with respect to any Initial Notes
offered and sold outside the United States in reliance on Regulation S, the 40
consecutive days beginning on and including the later of (a) the day on which
such Initial Notes are offered to Persons other than distributors (as defined in
Regulation S) and (b) the date of original issuance thereof.
"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.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System, or its successor in such capacity.
"Event of Default" has the meaning specified in Section 4.01.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Statement" has the meaning assigned to such
term in the Registration Rights Agreement.
"Exchange Notes" has the meaning set forth in the Agreements of the Parties
on the first page of this Indenture, including any replacement Notes issued
therefor in accordance with this Indenture.
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"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 (1)
through (7) of Section 9.06 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(1).
"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.
"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.
"Initial Notes" has the meaning specified in the Agreements of the Parties
on the first page of this Indenture, including any replacement Notes issued
therefor in accordance with this Indenture.
"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" means June 10, 2003.
"Legal Defeasance" has the meaning specified in Section 3.02.
"Lien" has the meaning specified in Section 9.06.
"Managing Directors" means (a) the Managing Directors of the Obligor or (b)
any duly authorized committee of the Managing Directors of the Obligor.
"Managing Directors Resolution" means, with respect to the Obligor, a copy
of a resolution of the Managing Directors certified by a Managing Director or a
Managing Director-
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Delegatee of the Obligor 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, by declaration of acceleration, call for
redemption, or otherwise.
"Maturity Date" means June 15, 2015.
"Non-U.S. Person" means a Person who is not a "U.S. person," as defined in
Regulation S.
"Note" has the meaning specified in the Agreements of the Parties on the
first page of 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 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.
"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 or the Trustee, a
written opinion of counsel to the Obligor or the Trustee, as the case may be,
which counsel may be an employee of the Obligor or the Trustee, as the case may
be.
"Outstanding," when used with respect to the Notes means, as of the date of
determination, all such Notes theretofore authenticated and delivered under this
Indenture, except:
(a) such Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) such Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited in trust with
the Trustee or with any Paying Agent other than the Obligor, or, if the
Obligor shall act as its own Paying Agent, has been set aside and
segregated in trust by the Obligor; provided, in any case, that if such
Notes are to be redeemed prior to their Maturity Date, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
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(c) such Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, or which shall
have been paid, in each case, pursuant to the terms of Section 2.05 (except
with respect to any such Note as to which proof satisfactory to the Trustee
is presented that such Note is held by a person in whose hands such Note is
a legal, valid, and binding obligation of the Obligor); and
(d) solely to the extent provided in Article III, Notes 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 Outstanding have given a direction concerning the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
concerning the exercise of any trust or power conferred upon the Trustee under
this Indenture, or concerning a consent on behalf of the Holders of the Notes to
the waiver of any past default and its consequences, Notes owned by the Obligor,
any other obligor upon the Notes, or any Affiliate of the Obligor or such other
obligor shall be disregarded and deemed not to be Outstanding. In determining
whether the Trustee shall be protected in relying upon any request, demand,
authorization, direction, notice, consent, or waiver hereunder, only Notes which
a Responsible Officer assigned to the corporate trust department of the Trustee
knows to be owned by the Obligor or any other obligor upon the Notes or any
Affiliate of the Obligor or such other obligor shall be so disregarded. Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to act as owner with respect to such Notes and that the pledgee is not the
Obligor or any other obligor upon the Notes or any Affiliate of the Obligor or
such other obligor.
"Paying Agent" means any Person appointed by the Obligor to distribute
amounts payable by the Obligor on the Notes. As of the date of this Indenture,
the Obligor has appointed JPMorgan Chase Bank as Paying Agent with respect to
all Notes issuable hereunder.
"PBG" means The Pepsi Bottling Group, Inc., a Delaware corporation.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, or government, or any agency or political subdivision thereof.
"Place of Payment" means the place 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 any single manufacturing or processing plant,
office building, or warehouse owned or leased by the Obligor or a Subsidiary of
the Obligor, in each case, located in the 50 states of the United States, the
District of Columbia or Puerto Rico, other than a plant, warehouse, office
building, or portion thereof which, in the opinion of the
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Managing Directors evidenced by a Managing Directors Resolution, is not of
material importance to the business conducted by the Obligor and its
Subsidiaries as an entirety.
"Private Exchange Notes" has the meaning assigned to such term in the
Registration Rights Agreement.
"Private Placement Legend" means the legend set forth in Section 2.04 to be
placed on all Initial Notes initially issued pursuant to this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act.
"Record Date" means any date as of which the Holder of a Note will be
determined for any purpose described herein, such determination to be made as of
the close of business on such date by reference to the Security Register, and in
relation to a determination of a payment of an installment of interest on the
Notes, shall have the meaning specified in the forms of Notes attached as
Exhibits A and B hereto.
"Redemption Date" when used with respect to any Note to be redeemed, means
the date fixed for such redemption in any notice of redemption issued pursuant
to this Indenture.
"Redemption Price" when used with respect to any Note to be redeemed, means
the price specified in Section 10.07.
"Reference Treasury Dealer" means J.P. Morgan Securities Inc., Lehman
Brothers Inc. and two other primary U.S. Government securities dealers in New
York City (each, a "Primary Treasury Dealer") appointed by the Trustee in
consultation with the Obligor; provided, however, that if any of the foregoing
shall cease to be a Primary Treasury Dealer, the Obligor shall substitute
therefor another Primary 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. on the
third Business Day preceding such Redemption Date.
"Registered Exchange Offer" means an exchange offer that may be made by the
Obligor registered under the Securities Act pursuant to the Registration Rights
Agreement to exchange the Initial Notes for Exchange Notes.
"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.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of June 10, 2003, among the Obligor and the several initial purchasers
named therein.
"Registration Statement" means an effective Exchange Offer Registration
Statement or Shelf Registration Statement.
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"Regulation S" means Regulation S promulgated under the Securities Act or
any successor regulation.
"Regulation S Global Note" shall have the meaning specified in Section
2.01.
"Resale Restriction Termination Date" means for any Restricted Note (or
beneficial interest therein), two years (or such other period specified in Rule
144(k)) from the Issue Date.
"Responsible Officer," when used with respect to the Trustee, means the
chairman of the board of directors, the chairman of the executive committee of
the board of directors, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer or trust officer, the controller and
any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Note" means any Initial Note (or beneficial interest therein)
until such time as:
(a) such Initial Note (or beneficial interest therein) has been
exchanged for a corresponding Exchange Note pursuant to an Exchange Offer
Registration Statement or transferred pursuant to a Shelf Registration
Statement;
(b) the Resale Restriction Termination Date therefor has passed;
(c) such Note is a Regulation S Global Note and the Distribution
Compliance Period therefor has terminated; or
(d) the Private Placement Legend thereon has otherwise been removed
pursuant to Section 2.04(3) or, in the case of a beneficial interest in a
Global Note, such beneficial interest has been exchanged for an interest in
a Global Note not bearing a Private Placement Legend.
"Restricted Subsidiary" means, 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 (ii) which owns or
leases any Principal Property.
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"Rule 144" means Rule 144 promulgated under the Securities Act (or any
successor rule).
"Rule 144A" means Rule 144A promulgated under the Securities Act (or any
successor rule).
"Rule 144A Global Note" has the meaning specified in Section 2.01.
"Securities Act" means the U.S. Securities Act of 1933, as amended (or any
successor Act), and the rules and regulations of the Commission promulgated
thereunder (or respective successor thereto).
"Security Register" has the meaning specified in Section 2.04.
"Shelf Registration Statement" has the meaning assigned to such term in the
Registration Rights Agreement.
"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.
"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 Maturity Date, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month) or
(ii) if such 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. The Treasury
Rate shall be calculated on the third Business Day preceding the 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.
10
"Trustee" means JPMorgan Chase Bank, unless and until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean and include each Person who is then a
Trustee hereunder.
"U.S. GAAP" means accounting principles as are generally accepted in the
United States of America at the date of any computation required or permitted
under this Indenture.
"U.S. Government Obligations" means (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;
(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
11
(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 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.
(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.
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(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 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 and Obligor . Any request, order,
authorization, direction, consent, waiver or other action to be taken by the
Trustee, the Obligor or the Holders hereunder (including any Authentication
Order), and any notice to be given to the Trustee or the Obligor with respect to
any action taken or to be taken by the Trustee, the Obligor or the Holders
hereunder, shall be sufficient if made in writing and
(1) if to be furnished or delivered to or filed with the Trustee by the
Obligor or any Holder, delivered to the Trustee at its Corporate Trust Office,
Attention: Institutional Trust 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(3), mailed to the
Obligor, first-class postage prepaid, at the following address: c/o The Pepsi
Bottling Group, Inc., One Pepsi Way, Somers, NY 10589, Attention: Treasurer, or
at any other address hereafter furnished in writing by the Obligor 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
13
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, if this
Indenture is hereafter qualified under 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 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 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 the Redemption Date or the Maturity Date shall not be a Business Day, then
(notwithstanding any other provisions of this Indenture or of the Notes) payment
of interest or principal (and premium, if any) 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
14
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 Initial Notes and the Trustee's certificate of authentication
thereon shall be substantially in the form of Exhibit A hereto. The
Exchange Notes and the Trustee's certificate of authentication thereon
shall be substantially in the form of Exhibit B hereto. Any Additional
Notes and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit A or Exhibit B hereto, as applicable.
The Notes may have notations, legends or endorsements placed thereon, as
may be required to comply with law, stock exchange rule or DTC rule or
usage, or as may, consistently herewith, be determined by the Officers
executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Note. Each Note
shall be dated the date of its authentication.
(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 and the Trustee, by their execution and delivery of this Indenture
expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern
and be controlling. Except as otherwise expressly permitted in this
Indenture, all Notes shall be identical in all respects. Notwithstanding
any differences among them, all Notes issued under this Indenture shall
vote and consent together on all matters as one class.
(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
therein executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
(v) All Notes issued under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof, without preference,
priority, or distinction.
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(2) Global Notes.
(i) Initial Notes, including any Additional Unregistered Notes,
offered and sold to QIBs in the United States of America in reliance on
Rule 144A shall be issued initially in the form of one or more permanent
Global Notes, substantially in the form of Exhibit A attached hereto
(including the Global Note Legend and the Private Placement Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, each, a "Rule 144A Global Note"). Initial Notes, including any
Additional Unregistered Notes, offered and sold outside the United States
of America in reliance on Regulation S shall be issued initially in the
form of one or more permanent Global Notes, substantially in the form set
forth in Exhibit A (including the Global Note Legend and the Private
Placement Legend thereon and the "Schedule of Exchanges of Interests in the
Global Note" attached thereto, each, a "Regulation S Global Note").
(ii) Upon consummation of the Registered Exchange Offer, the Exchange
Notes may be issued in the form of one or more Global Notes with the Global
Note Legend but not the Private Placement Legend. Following the
consummation of the Registered Exchange Offer, any Additional Registered
Notes may be issued in the form of one or more Global Notes with the Global
Note Legend but not the Private Placement Legend. All or part of any Rule
144A Global Note or Regulation S Global Note exchanged in the Registered
Exchange Offer will be exchanged for one or more Global Notes with the
Global Note Legend but not the Private Placement Legend. Each Global Note
shall represent such of the aggregate principal amount of the Outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of Outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of Outstanding Notes represented
thereby shall be made by the Trustee in accordance with instructions given
by the Holder thereof as required by Section 2.04.
(iii) Each Global Note (a) 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, (b) shall be deposited with the
Trustee, as Custodian for the Depositary, and (c) shall bear a legend
substantially as follows ("Global Note Legend"):
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY
16
OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE
OBLIGOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(iv) Each Depositary designated pursuant to Section 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.
(v) 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.
Section 2.02. Execution and Authentication; Aggregate Principal
Amount.
(1) The Notes shall be executed on behalf of the Obligor by any two
Officers of the Obligor. The signature of any of these officers on the Notes may
be manual or facsimile. Typographical and other minor errors or defects in any
such signature shall not affect the validity or enforceability of any Note that
has been duly authenticated and delivered by the Trustee.
(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
shall bind the Obligor, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
(3) The Trustee shall, upon receipt of a written order of the Obligor
signed by an Officer thereof (an "Authentication Order"), in accordance with
procedures acceptable to the Trustee set forth in the Authentication Order, and
subject to the provisions hereof, authenticate and deliver (1) on the Issue
Date, the Initial Notes in aggregate principal amount not to exceed
$250,000,000, (2) from time to time after the Issue Date, Additional Notes for
original issue in an aggregate principal amount specified in an Authentication
Order that shall also specify the date on which such Additional Notes are to be
authenticated, (3) Exchange Notes for issue only in a Registered Exchange Offer,
pursuant to the Registration Rights Agreement, in exchange for
17
Initial Notes (together, if applicable, with any Additional Unregistered Notes)
for a like principal amount and (4) Private Exchange Notes for issue pursuant to
the Registration Rights Agreement, in exchange for Initial Notes(together, if
applicable, with any Additional Unregistered Notes) for a like principal amount.
(4) The aggregate principal amount of Notes Outstanding at any time may not
exceed the sum of (i) $250,000,000 plus the aggregate principal amount of any
Additional Notes issued from time to time, and (ii) the principal amount of
lost, destroyed or stolen Notes for which replacement Notes are issued pursuant
to Section 2.05.
(5) The Notes shall be in fully registered form, without coupons, in
minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
(6) In accordance with Section 2.12, Additional Notes may be issued from
time to time under this Indenture after the date hereof, subject to the
provisions of this Indenture.
Section 2.03. Temporary Notes. Until certificates representing Notes are
ready for delivery, the Obligor may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate and deliver temporary Notes. Temporary
Notes shall be substantially in the form of certificated Notes but may have
variations that the Obligor considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the
Obligor shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
Section 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 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 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 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
18
Depositary or another nominee of such Depositary, or by such Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
The Obligor initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes. The Trustee is authorized to
enter into a letter of representations with DTC in the form provided to the
Trustee by the Obligor and to act in accordance with such letter.
(i) Transfer and Exchange of Beneficial Interest in Rule 144A Global
Note to Regulation S Global Note. If the holder of a beneficial interest in
a Rule 144A Global Note that is a Restricted Note wishes to transfer such
interest (or any portion thereof) to a Non-U.S. Person pursuant to
Regulation S and such Non-U.S. Person wishes to hold its interest in the
Notes through a beneficial interest in the Regulation S Global Note, then
(1) upon receipt by the Registrar of (i) instructions from the Holder of
the Rule 144A Global Note directing the Registrar to credit or cause to be
credited a beneficial interest in the Regulation S Global Note equal to the
principal amount of the beneficial interest in the Rule 144A Global Note to
be transferred, specifying the participant accounts with the Depository to
be credited and debited; and (ii) a certificate in the form of Exhibit C
from the transferor; and (2) in accordance with the rules and procedures of
the Depository, the Registrar shall (i) increase the Regulation S Global
Note and credit or caused to be credited the specified participant account
at the Depositary for such amount in accordance with the foregoing, and
(ii) decrease the Rule 144A Global Note for such amount and debit or cause
to be debited the specified participant account at the Depositary for such
amount in accordance with the foregoing.
(ii) Transfer and Exchange of Beneficial Interest in Regulation S
Global Note to Rule 144A Global Note. If the holder of a beneficial
interest in a Regulation S Global Note wishes to transfer such interest (or
any portion thereof) to a QIB pursuant to Rule 144A, then (1) upon receipt
by the Registrar of (i) instructions from the Holder of the Regulation S
Global Note directing the Registrar to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note equal to the principal
amount of the beneficial interest in the Regulation S Global Note to be
transferred, specifying the participant accounts at the Depositary to be
credited and debited, and (ii) a certificate in the form of Exhibit C duly
executed by the transferor; and (2) in accordance with the rules and
procedures of the Depository, the Registrar shall (i) increase the Rule
144A Global Note and credit or caused to be credited the specified
participant account at the Depositary for such amount in accordance with
the foregoing, and (ii) decrease the Regulation S Global Note amount and
debit or cause to be debited the specified participant account at the
Depositary for such amount in accordance with the foregoing.
During the Distribution Compliance Period, all beneficial interests in
the Regulation S Global Note shall be transferred only through Euroclear or
Clearstream, Luxembourg, either directly if the transferor and transferee
are participants in such systems, or indirectly through organizations that
are participants. The Obligor covenants to give the Trustee notice of the
date on which the Distribution Compliance Period terminates.
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(iii) Other Transfers. Any transfer of Restricted Notes not described
above (other than a transfer of a beneficial interest in a Global Note that
does not involve an exchange of such interest for a Definitive Note or a
beneficial interest in another Global Note, which must be effected in
accordance with applicable law and the rules and procedures of the
Depositary, but is not subject to any procedure required by this Indenture)
shall be made only upon receipt by the Registrar of such opinions of
counsel, certificates and/or other information reasonably required by and
satisfactory to the Obligor in order to ensure compliance with the
Securities Act or in accordance with this Section 2.04.
(3) Legends.
(i) Each Global Note shall bear the legend specified therefor in
clause (iii) of Section 2.01(2) on the face thereof.
(ii) Each Restricted Note, if any, (and all Notes issued in exchange
therefor or substitution thereof) shall bear a legend on the face thereof
in substantially the following form ("Private Placement Legend"):
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ADOPTED UNDER THE
SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT;
AND (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
THE OBLIGOR OR ANY AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A ADOPTED UNDER THE SECURITIES ACT, (C) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE EXEMPTION
UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS NOTE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE OBLIGOR SUCH
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CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED
PURSUANT TO THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT."
By its acceptance of any Note bearing the Private Placement Legend,
each Holder of such Note acknowledges the restrictions on transfer set
forth in this Indenture and in the Private Placement Legend and agrees that
it will transfer such Note only as provided in this Indenture and in the
Private Placement Legend.
(iii) Notwithstanding any other provision of this Indenture, upon any
request for sale or other transfer of a Restricted Note (including any
Restricted Global Notes) made subsequent to the Resale Restriction
Termination Date, (A) any such Restricted Global Notes shall not be subject
to any restriction on transfer set forth above and (B) in the case of any
Restricted Definitive Note, the Trustee shall permit the Holder thereof to
exchange such Restricted Definitive Note for Definitive Notes that do not
bear the Private Placement Legend and such request shall be effective to
rescind any restriction on the further transfer of such Note; and in each
such case, such Notes (whether in definitive or global form) shall no
longer constitute "Restricted Notes" for purposes of this Indenture. The
Trustee and the Obligor shall be entitled (but not obligated) to require
such additional certificates and information as it may reasonably deem
necessary to demonstrate that any sale or other transfer of a Restricted
Note is made in compliance with the applicable restrictions set forth above
and with applicable securities laws.
(iv) Notwithstanding any other provision of this Indenture, after a
transfer of any Initial Notes during the period of the effectiveness of a
Shelf Registration Statement with respect to the Initial Notes and pursuant
thereto, all requirements for a Private Placement Legend on such Initial
Notes will cease to apply, and Initial Notes in the form of one or more
Global Notes without a Private Placement Legend will be available to the
Holder of such Initial Notes. Upon the consummation of a Registered
Exchange Offer with respect to the Initial Notes pursuant to which Holders
of Initial Notes are offered Exchange Notes in exchange for their Initial
Notes, Initial Notes in the form of one or more Global Notes with the
Private Placement Legend will be available to Holders of such Initial Notes
that do not exchange their Initial Notes, and Exchange Notes in the form of
one or more Global Notes without the Private Placement Legend will be
available to Holders that exchange such Initial Notes in such Registered
Exchange Offer.
(4) Definitive Notes.
(i) Notwithstanding any other provisions of this Indenture or the
Notes, a Global Note may be exchanged for Notes 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
60 days of receiving such
21
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 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 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.
(ii) If at any time the Depositary for the Notes notifies the Obligor
that it is unwilling or unable to continue as Depositary for the Notes or
if the Depositary has ceased to be a "clearing agency" registered under the
Exchange Act at a time when the Depositary is required to be so registered
in order to act as depositary, the Obligor may within 60 days of receiving
such notice or of becoming aware of such cessation appoint a successor
Depositary with respect to the Notes.
(iii) If, in accordance with this Section 2.04(4), Notes in global
form will no longer be represented by Global Notes, the Obligor will
execute, and the Trustee, upon receipt of an Authentication Order, will
authenticate and make available for delivery, Definitive Notes in an
aggregate principal amount equal to the principal amount of the Global
Notes, in exchange for such Global Notes.
(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 shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. Upon
execution and authentication, the Trustee shall deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. To permit
registrations of transfers and exchanges, the Obligor shall execute and the
Trustee (or an Authenticating Agent appointed pursuant to this Indenture)
shall authenticate and make available for delivery Definitive Notes at the
Registrar's request, and upon direction of the Obligor. No service charge
shall be made for any registration of transfer or exchange, but the Obligor
may require payment of a sum sufficient to cover any transfer tax or other
governmental charge payable in connection with any registration of transfer
or exchange.
(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
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equal principal amount of Definitive Notes of other authorized
denominations, the Trustee shall register the transfer or make the exchange
as requested if its requirements for such transaction are met; provided,
however, that the Definitive Notes surrendered for transfer or exchange (a)
shall be duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Obligor and the Trustee, duly
executed by the Holder thereof or his attorney, duly authorized in writing
and (b) in the case of Restricted Definitive Notes only, shall be
accompanied by the following additional information and documents, as
applicable:
(a) if such Restricted Definitive Note is being exchanged, without
transfer, a certification from such Holder to that effect (in substantially
the form of Exhibit C hereto);
(b) if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A or pursuant to an exemption from registration
in accordance with Rule 144(k) under the Securities Act or Regulation S, a
certification from the transferor to that effect (in substantially the form
of Exhibit C hereto);
(c) if such Restricted Definitive Note is being transferred to the
Obligor or any of its Affiliates, a certification from the transferor to
that effect (in substantially the form of Exhibit C hereto).
(vii) At such time as all interests in Global Notes have either been
exchanged for Definitive Notes 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 cancellation, if any interest in a Global Note is exchanged
for Definitive Notes or cancelled, the principal amount of Global Notes
shall, in accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be reduced and an endorsement
shall be made on such Global Note, by the Trustee or the Custodian, at the
direction of the Trustee, to reflect such reduction.
(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 (including the restrictions on transfer); 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.
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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 bona fide purchaser, the Obligor may in its
discretion execute and, upon request of the Obligor, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a new Note of like tenor, Maturity Date, and
principal amount, bearing a number not contemporaneously outstanding.
(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, 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 in lieu of any
destroyed, lost or stolen Note shall constitute an original contractual
obligation of the Obligor, whether or not the destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes 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 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:
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(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 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 by mailing a check to the address of the
Person entitled thereto at such address as shall appear in the Security Register
or by such other means as may be specified in the form of such Note.
(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 Trustee, and any agent of the Obligor or the Trustee may treat the
Person in whose name any
25
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 Trustee, nor any agent of the
Obligor or the Trustee shall be affected by notice to the contrary.
(2) None of the Obligor, 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 whatsoever, and all
Notes so delivered shall be promptly cancelled by the Trustee. Acquisition of
such Notes by the Obligor shall not operate as a redemption or satisfaction of
the indebtedness represented by such Notes unless and until the same are
delivered to the Trustee for cancellation. No Note shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section,
except as expressly permitted by this Indenture. The Trustee shall dispose of
all cancelled Notes in accordance with its customary procedures and deliver a
certificate of such disposition to the Obligor.
Section 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 of any change in the CUSIP or ISIN number of any type.
Section 2.11. Additional Interest under Registration Rights Agreement.
Under certain circumstances, the Obligor may be obligated to pay Additional
Interest to Holders, all as and to the extent set forth in the Registration
Rights Agreement. The terms thereof, insofar as they relate to the payment of
Additional Interest, are hereby incorporated herein by reference and such
Additional Interest, if required to be paid, is deemed to be interest for all
purposes of this Indenture.
Section 2.12. Issuance of Additional Notes. The Obligor shall be entitled
to issue Additional Notes under this Indenture. Any such Additional Notes issued
without registration under the Securities Act, including any such Additional
Notes issued prior to the
26
effective date of a Registration Statement ("Additional Unregistered Notes"),
shall have identical terms as the Initial Notes issued on the Issue Date, 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, however, that any Additional
Unregistered Notes issued following the effective date of a Registration
Statement shall not enjoy the benefits of the Registration Rights Agreement. Any
Additional Notes issued following the effective date of a Registration Statement
for the Registered Exchange Offer in an offering registered under the Securities
Act ("Additional Registered Notes") shall have identical terms as the Exchange
Notes, 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. Any Additional Notes shall
be treated as a single class with the Initial Notes or the Exchange Notes, as
the case may be, for all purposes under this Indenture.
With respect to any Additional Notes, the Obligor shall set forth in a
resolution of the Managing Directors of the Obligor and a Company Order, a copy
of each of which shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture; and
(2) the issue price, the issue date, the CUSIP and/or ISIN numbers of such
Additional Notes, the first Interest Payment Date, the interest accrual date and
the amount of interest payable on the first Interest Payment Date applicable
thereto.
Prior to the authentication and delivery of any Additional Notes pursuant
to this Section 2.12, the Obligor shall deliver to the Trustee an Opinion of
Counsel and an Officers' Certificate complying with Section 1.02 and stating
that all conditions precedent provided for in this Indenture to the
authentication and delivery of such Notes have been complied with. Such Opinion
of Counsel shall also cover such other matters as the Trustee shall reasonably
request.
ARTICLE III
SATISFACTION AND DISCHARGE
Section 3.01. Satisfaction and Discharge of Indenture. This Indenture will
be discharged with respect to the Notes and will cease to be of further effect
as to all Notes (except as to any surviving rights of transfer or exchange of
Notes expressly provided for herein), and the Trustee, on demand of and at the
expense of the Obligor, shall execute proper instruments acknowledging the
satisfaction and discharge of this Indenture, when
(1) either
(i) all Notes theretofore authenticated and delivered (except (a)
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
27
(ii) all such Notes 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
(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), (b) or (c), above, the Obligor has
deposited or caused to be deposited with the Trustee, as trust funds in trust
for the purpose, an amount of money in U.S. dollars sufficient, non-callable
U.S. Government Obligations, the principal of and interest on which when due,
will be sufficient, or a combination thereof, sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore delivered to the Trustee
cancelled or for cancellation, for principal of and interest and premium, if
any, on such Notes to the date of such deposit (in the case of Notes 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 under this Indenture;
(3) 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 such
Notes 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 satisfaction
and discharge of this Indenture with respect to the Notes have been complied
with, and, in the case of the Opinion of Counsel, stating:
(i) such deposit and defeasance will not cause the holders of such
Notes to recognize income, gain or loss for Federal income tax purposes and
such holders will be subject to Federal income tax on the same amount and
in the same manner and at the same time as would have been the case if such
option had not been exercised;
(ii) either that no requirement to register under the Investment
Company Act of 1940, as amended, will arise as a result of the Obligor's
exercise of its option under this Section 3.01 or that any such
registration requirement has been complied with; and
(iii) 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.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Obligor under Section 3.01(1) and the obligations of the
Obligor to the Trustee under Section 5.07 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 Obligor's option, either (a) the Obligor
shall be deemed to have been Discharged (as defined below) from its obligations
with respect to the Notes on the 123rd day after the applicable conditions set
forth below have been satisfied ("Legal Defeasance") and/or (b) the Obligor
shall cease to be under any obligation to comply with any term, provision or
condition set forth in Section 7.01, 9.06 or 9.07 with respect to the Notes at
any time after the applicable conditions set forth below have been satisfied
("Covenant Defeasance"):
(1) The Obligor shall have deposited or caused to be deposited irrevocably
with the Trustee, as trust funds, in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Notes, an amount
of money, in cash in U.S. dollars sufficient, non-callable U.S. Government
Obligations, the principal of and interest on which when due, will be
sufficient, or a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on the Notes with respect to principal, premium, if any, and
accrued and unpaid interest to the date of such deposit (in the case of Notes
that have become due and payable), or to the Maturity Date or Redemption Date,
as the case may be;
(2) No Event of Default, or event which with notice or lapse of time would
become an Event of Default, 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 will not
cause the Holders of the Notes to recognize income, gain or loss for
Federal income tax purposes as a result of the Obligor's exercise of its
option under this Section 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 Obligor's 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 (4) and (5) of Section 4.01 has
occurred.
29
If in connection with the exercise by the Obligor of any option under this
Section 3.02, the Notes are to be redeemed, either notice of such redemption
shall have been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee shall have been made.
Notwithstanding the exercise by the Obligor of its option under Section
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.
"Discharged" means that the Obligor shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Notes and to have satisfied all the obligations under this Indenture relating to
such Notes (and the Trustee, at the expense of the Obligor, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of Notes
to receive, from the trust fund described in clause (1) above, payment of the
principal of, premium, if any, and the interest, if any, on such Notes when such
payments are due; (B) the Obligor's obligations with respect to such Notes under
Sections 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 deposited with the
Trustee pursuant to Section 3.01 or Section 3.02 shall be held in trust and
applied by it, in accordance with the provisions of this Indenture, to the
payment, either directly or through any Paying Agent (including the Obligor
acting as its own Paying Agent), as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any, and interest, for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
Section 3.04. Paying Agent to Repay Moneys Held. Upon the satisfaction and
discharge of this Indenture, all moneys then held by any Paying Agent of the
Notes (other than the Trustee) shall, upon demand of the Obligor, be repaid to
it or paid to the Trustee, and thereupon such Paying Agent shall be released
from all further liability with respect to such moneys.
Section 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 the Notes or then held by the Obligor, in trust
for the payment of the principal of, premium, if any, or interest on the Notes
and not applied but remaining unclaimed by the Holders of such Notes for two
years after the date upon which the principal of, premium, if any, or interest
on such Notes, as the case may be, shall have become due and payable, shall be
repaid to the Obligor by the Trustee on demand or (if then held by the Obligor)
shall be discharged from such Trust; and the Holder of any of such Notes shall
thereafter, as an unsecured general creditor, look only to the Obligor for any
payment which such Holder may be entitled to collect (until such time as such
unclaimed amounts shall escheat, if at all, to any applicable jurisdiction) and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Obligor as trustee thereof, shall thereupon
cease. Notwithstanding the foregoing, the Trustee or Paying Agent, before being
required to make any such repayment, may at the expense of the Obligor cause to
be published once a week for two successive weeks (in each case on any day of
the week) in a newspaper printed in the English language and customarily
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published at least once a day at least five days in each calendar week and of
general circulation in the Borough of Manhattan, in the City and State of New
York, a notice that said amounts have not been so applied and that after a date
named therein any unclaimed balance of said amounts then remaining will be
promptly returned to the Obligor.
ARTICLE IV
REMEDIES
Section 4.01. Events of Default. "Event of Default," wherever used herein,
means any of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) default in the payment of any principal of or premium, if any, on the
Notes when due (whether at maturity, upon redemption or otherwise);
(2) default in the payment of any interest (including Additional Interest,
if any) on any Note, when it becomes due and payable, and continuance of such
default for a period of 30 days;
(3) default in the performance or breach of any covenant or warranty of the
Obligor under this Indenture, and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail,
to the Obligor 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, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(4) the entry of an order for relief against the Obligor, 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, or ordering the winding up or liquidation of their
respective affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 90 consecutive days;
(5) the consent by the Obligor, 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
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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 Obligor's, PBG's or any
Restricted Subsidiary of PBG's 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
(6) 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.
Section 4.02. Acceleration of Maturity; Rescission and Annulment.
(1) If any Event of Default (other than an Event of Default specified in
clause (4) or (5) of Section 4.01) occurs and is continuing, then either the
Trustee or the Holders of a majority in aggregate principal amount of the
Outstanding Notes may declare the principal of all Outstanding Notes, and the
interest, if any, accrued thereon, to be immediately due and payable by notice
in writing to the Obligor (and to the Trustee if given by Holders). If an Event
of Default described in clause (4) or (5) of Section 4.01 occurs, the principal
amount and accrued interest, if any, on all the Notes as of the date of such
Event of Default 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.
(2) At any time after such a declaration of acceleration has been made with
respect to the Notes and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article IV provided,
the Holders of a majority in aggregate principal amount of the Outstanding
Notes, by written notice to the Obligor and the Trustee, may rescind and annul
such declaration or waive past defaults and its consequences if:
(i) the Obligor has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue installments of interest, if any, on such Notes,
(b) the principal of (and premium, if any, on) any such Notes which
have become due otherwise than by such declaration of acceleration, and
interest thereon at the rate borne by the Notes, to the extent that payment
of such interest is lawful,
(c) interest on overdue installments of interest at the rate borne by
the Notes to the extent that payment of such interest is lawful, and
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(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 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
(including Additional Interest, if any) on any Note 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 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 Notes, the Obligor will, upon demand of the Trustee,
pay to it, for the benefit of the Holder of any such Note, the whole amount then
due and payable on any such Note for principal (and premium, if any) and
interest, 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 borne by the
Notes; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due the Trustee under Section 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 proceeding to judgment or final decree, and may enforce the same
against the Obligor or any other obligor upon the Notes and collect the money
adjudged or decreed to be payable in the manner provided by law out of the
property of the Obligor or any other obligor upon such Notes, wherever situated.
(3) If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Notes by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
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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 may be prosecuted
and enforced by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee and its agents and counsel, be for the ratable benefit of the
Holders of the Notes.
Section 4.06. Application of Money Collected. 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 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.
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Second: To the payment of the amounts then due and unpaid upon the Notes
for principal, premium, if any, and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind.
Section 4.07. Limitation on Suits. No Holder of any Note may institute any
action under this Indenture, unless and until:
(1) such Holder has given the Trustee written notice of a continuing Event
of Default;
(2) the Holders of a majority in aggregate principal amount of the
Outstanding Notes have requested the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders has or have offered the Trustee such reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request as the Trustee may require;
(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 Notes;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes, or to obtain or to seek to obtain priority or preference over
any other such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and proportionate benefit of all
the Holders of all Notes.
Section 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.
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Section 4.10. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right or remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 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 a majority in aggregate
principal amount of the Outstanding Notes shall have the right, to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Notes provided that:
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken or would conflict with this Indenture or
if the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed would involve it in personal liability or be unjustly
prejudicial to the Holders not taking part is in such direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 4.13. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes may, on behalf
of the Holders of all Notes, waive any past default hereunder with respect to
the Notes, except a default not theretofore cured:
(1) in the payment of principal, premium, if any, or interest on any Notes,
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.
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
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filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Notes to which the suit relates, or to any suit instituted by any
Holder for the enforcement of the payment of principal, premium, if any, or
interest on any Note on or after the respective payment dates expressed in such
Note (or, in the case of redemption, on or after the Redemption Date).
Section 4.15. Waiver of Stay or Extension Laws. The Obligor 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 Obligor (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 V
THE TRUSTEE
Section 5.01. Certain Duties and Responsibilities of Trustee.
(1) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(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 has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(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:
37
(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 relating to the time, method, and place of conducting
any proceeding for any remedy available to the Trustee with respect to such
Notes, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to such Notes; and
(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.
Section 5.02. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to Notes, the Trustee shall transmit by mail
to all Holders of such Notes, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of or interest or premium,
if any, on any Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors, and/or Responsible Officers of the Trustee determine in
good faith that the withholding of such notice is in the interests of the
Holders of the Outstanding Notes and; provided, further, that, in the case of
any default of the character specified in clause (3) of Section 4.01, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
Section 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;
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(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) 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;
(4) 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;
(5) 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;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Obligor, personally or by agent or attorney; and
(7) 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 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 Notes or the proceeds thereof. The Trustee shall not be charged with
notice or knowledge of any Event of Default under clause (6) of Section 4.01 or
of the identity of a Restricted Subsidiary of the Obligor or of any event giving
rise to the obligation to pay Additional Interest 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
or any Holder.
Section 5.05. May Hold Notes. The Trustee or any Paying Agent, Registrar,
or other agent of the Obligor, 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
39
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 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.
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 (4) or (5) of Section
4.01, such expenses (including the reasonable charges and expenses of its
counsel) and compensation for such services are intended to constitute expenses
of administration under any applicable Federal or State bankruptcy, insolvency,
reorganization, or other similar law.
Section 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:
(i) the Indenture, dated as of February 8, 1999, among Pepsi Bottling
Holdings, Inc., PepsiCo, Inc., as guarantor, and the Trustee, as supplemented by
the Supplemental Indenture dated as of February 9, 1999, among Pepsi Bottling
Holdings, Inc., PepsiCo, Inc., as guarantor, and the Obligor relating to the
Obligor's Senior Notes due 2004 and the Obligor's Senior Notes due 2009, (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
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Series B Senior Notes due 2029 of PBG, and (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.
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 and having its principal office and place of business in the City of
New York, if there be such a corporation having its principal office and place
of business in said City. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article 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 under Section 5.11.
(2) The Trustee may resign at any time by giving 60 days' written notice
thereof to the Obligor. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(3) The Trustee may be removed at any time by Act of the Holders of 66 2/3%
in aggregate principal amount of the Outstanding Notes, 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 with respect to the
Notes; 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 Obligor may remove the
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Trustee, 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 and the appointment of a successor Trustee.
(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, the Obligor
shall promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of 66 2/3% in
aggregate principal amount of the Outstanding Notes delivered to the Obligor and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee and supersede
the successor Trustee appointed by the Obligor. If no successor Trustee shall
have been so appointed by the Obligor or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been bona fide Holder of a
Note for at least 6 months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Obligor shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Notes as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address of its principal
Corporate Trust Office.
Section 5.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Obligor and to the predecessor Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee; but, on request of the Obligor or the successor
Trustee, such predecessor Trustee shall, upon payment of its reasonable charges,
if any, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the predecessor Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such predecessor Trustee hereunder. Upon reasonable request of any such
successor Trustee, the Obligor shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article 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
42
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 which
shall be authorized to act on behalf of the Trustee to authenticate Notes issued
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 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
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Obligor and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state thereof
or the District of Columbia, authorized under such laws to act as an
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and, if other than the Obligor itself, subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 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.
(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, 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, the Trustee,
43
with the approval of the Obligor, may appoint a successor Authenticating Agent
which shall be acceptable to the Obligor and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Notes, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
(4) The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 5.07.
(5) If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee;'s certificate of authentication,
an alternate certificate of authentication in the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
JPMorgan Chase Bank,
as Trustee
By:_______________________________
As Authenticating Agent
By:_______________________________
Authorized Officer
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 the Notes, in such form as the Trustee may
reasonably require, a list of the names and addresses of the Holders of such
Notes as of such date, and
(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
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more than 15 days prior to the time such list is furnished, provided that if the
Trustee shall be the Registrar, such list shall not be required to be furnished.
Section 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 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 in its capacity as
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 6.01 upon receipt of a new list so furnished.
(2) If three or more Holders of Notes (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Notes
with respect to their rights under this Indenture or under the Notes and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 6.02(1), or
(ii) inform such applicants as to the approximate number of Holders of
Notes, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 6.02(2), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Note, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(1), 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.
(3) Every Holder of Notes, by receiving and holding the same, agrees with
the Obligor and the Trustee that neither the Obligor nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Notes in accordance with Section 6.02(2),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 6.02(2).
Section 6.03. Reports by Trustee.
(1) The term "reporting date" as used in this Section, means May 15. Within
60 days after the reporting date in each year, beginning in 2004, the Trustee
shall transmit by mail
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to all Holders, as their names and addresses appear in
the Security Register, a brief report dated as of such reporting date with
respect to (but if no such event has occurred within such period no report need
be transmitted):
(i) any change to its eligibility under Section 5.09 and its
qualifications under Section 5.08;
(ii) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of Notes, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Notes Outstanding on the
date of such report;
(iii) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Obligor (or by any other obligor on the
Notes) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 311(b)(2), (3), (4)
or (6) of the TIA;
(iv) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report; and
(v) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Notes, except action in respect of a default, notice
of which has been or is to be withheld by the Trustee in accordance with
Section 5.02.
(2) The Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Section 6.03(1) (or if
no such report has yet been transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Notes, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Notes Outstanding at such time, such
report to be transmitted within 90 days after such time.
(3) The Trustee shall also transmit by mail the foregoing reports as
required by Section 313(c) of the TIA.
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Section 6.04. Reports by Obligor.
(1) The Obligor shall comply with the provisions of Section 314(a) and
314(c) of the TIA (provided that unless this Indenture is hereafter qualified
under the TIA, the Obligor shall not be required to file with the Commission any
information, documents or other reports that are otherwise filed with the
Trustee or transmitted to Holders pursuant to this Section 6.04(1)).
(2) For so long as the Obligor is not subject to Section 13 or Section
15(d) of the Exchange Act, upon the request of a Holder of the Notes, the
Obligor will promptly furnish or cause the Trustee to furnish to such Holder or
to a prospective purchaser of a Note designated by such Holder, as the case may
be, the information required to be delivered by it pursuant to Rule 144A(d)(4)
under the Securities Act to permit compliance with Rule 144A in connection with
resales of the Notes.
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 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 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 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. 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, the successor Entity
will succeed to and be substituted for the Obligor as Obligor on the Notes with
the same effect as if it had been named in this Indenture as the Obligor, and
the Obligor shall thereupon, except in the case of a lease, be released from all
obligations hereunder and under the Notes.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Holders. Without
the consent of the Holders of any Notes, the Obligor and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the TIA as in force at the date
of execution thereof), in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Entity to the Obligor or
successive successions, and the assumption by any such successor of the
covenants, agreements and obligations of the Obligor pursuant to Article VII; or
(2) to add to the covenants of the Obligor such further covenants,
restrictions or conditions for the protection of the Holders of the Notes as the
Obligor and the Trustee shall consider to be for the protection of the Holders
of the Notes or to surrender any right or power herein conferred upon the
Obligor; or
(3) to evidence the surrender of any right or power of the Obligor;
(4) to cure any defect or ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provisions with respect to matters
or questions arising under this Indenture; 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 evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder;
(7) to add to the rights of the Holders of the Notes;
(8) to add any additional Events of Default in respect of the Notes; or
(9) to provide for the issuance of the Private Exchange Notes, which will
have terms substantially identical to the Initial Notes except for the
requirement of a Private Placement Legend and related transfer restrictions
under the Securities Act and this Indenture and as to the applicability of
additional interest payable as provided in Section 2.11, and which will be
treated, together with any other Outstanding Notes, as a single class of
securities.
No supplemental indenture for the purposes identified in clause (2), (3),
(4) (7) or (8) above may be entered into if to do so would adversely affect the
interest of the Holders of Notes.
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
48
Outstanding Notes affected thereby, by Act of said Holders delivered to the
Obligor and the Trustee, the Obligor and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Note affected thereby:
(1) change the Maturity Date or the stated payment date of any payment of
premium or interest payable on any Note, or reduce the principal amount thereof,
or any amount of interest payable thereon, or change the method of computing the
amount of interest payable thereon on any date, or change any Place of Payment
where, or the coin or currency in which, any Note or any payment of principal,
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the same shall become due
and payable, whether at Maturity or, in the case of redemption on or after the
Redemption Date; or
(2) reduce the percentage in principal amount of the Outstanding Notes, the
consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences, provided for in this Indenture; or
(3) modify any of the provisions of this Section 8.02 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.
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, 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 shall join with the Obligor in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
powers, trusts, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Section 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,
49
powers, trusts and immunities under this Indenture of the Trustee, the Obligor
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.
ARTICLE IX
COVENANTS
Section 9.01. Payment of Principal, Premium and Interest. The Obligor will
duly and punctually pay or cause to be paid the principal, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes, and
will duly comply with all the other terms, agreements and conditions contained
in this Indenture for the benefit of the Notes.
The Obligor shall pay interest (including post-petition interest in any
proceeding under any Federal or state bankruptcy, insolvency, reorganization, or
other similar law) on overdue principal and premium, if any, from time to time
on demand at the applicable rate of interest determined from time to time in the
manner provided for in the Notes; it shall pay interest (including post-petition
interest in any proceeding under any Federal or State bankruptcy, insolvency,
reorganization, or other similar law) on overdue installments of interest and
(without regard to any applicable grace periods) from time to time on demand at
the same rates to the extent lawful.
Section 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 principal Corporate Trust Office of the
Trustee, and the Obligor hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
The Obligor may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Obligor
of its obligation to maintain an office or agency in the City of New York for
such purposes. The Obligor shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
Section 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,
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premium, if any, or interest on any of the Notes, segregate and hold in trust
for the benefit of the Holders of the Notes a sum sufficient to pay such
principal, premium or interest so becoming due until such sums shall be paid to
such Holders of the Notes or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Obligor shall have one or more Paying Agents, it will, on or
prior to each due date of the principal, premium, if any, or interest, on any
Notes, deposit with a Paying Agent a sum sufficient to pay such principal,
premium, or interest so becoming due, such sum to be held in trust for the
benefit of the Holders of the Notes entitled to the same and (unless such Paying
Agent is the Trustee) the Obligor will promptly notify the Trustee of its action
or failure so to act.
The Obligor will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of principal, premium, if any,
or interest, on Notes in trust for the benefit of the Holders of the Notes
entitled thereto until such sums shall be paid to such Holders of the Notes or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Obligor (or any other
obligor upon the Notes) in the making of any such payment of principal, premium,
if any, or interest, on the Notes; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Obligor may, at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Obligor or such Paying Agent or, if for any other purpose, all sums so held
in trust by the Obligor in respect of all Notes, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Obligor or 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. The Obligor will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Obligor
(beginning in 2004), an Officers' Certificate that complies with TIA 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.
Section 9.05. Existence. Subject to Article VII, 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.
51
Section 9.06. Limitation on Liens. So long as any of the Notes shall be
Outstanding, neither the Obligor nor any Restricted Subsidiary of the Obligor
will incur, suffer to exist or guarantee any Debt, secured by a mortgage, pledge
or lien (a "Lien") on any Principal Property (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:
(1) Liens existing prior to the issuance of the Notes;
(2) 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;
(3) Liens on property or shares of stock of (or other interests in) any
Entity existing at the time of acquisition thereof (including acquisition
through merger or consolidation);
(4) any Lien 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 acquisition of such property or the
completion of construction (or addition, repair, alteration or improvement)
thereon and the commencement of full operation thereof;
(5) Liens in favor of the Obligor or any of its Restricted Subsidiaries;
(6) Liens in favor of, or required by contracts with, governmental
entities; or
(7) any extension, renewal, or refunding referred to in any of the
preceding clauses (1) through (6), provided that in the case of a Lien permitted
under clause (1), (2), (3), (4) or (5), the Debt secured is not increased nor
the Lien extended to any additional assets.
Notwithstanding the foregoing, the Obligor or any of its Restricted
Subsidiaries may incur, suffer to exist or guarantee any Debt secured by a Lien
on any Principal Property (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 if, after giving effect thereto, the aggregate amount of Exempted
Debt does not exceed 15% of Consolidated Net Tangible Assets of the Obligor.
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
52
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 longer period (i) if the
Obligor or such Restricted Subsidiary would be entitled, pursuant to Section
9.06, 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 Notes pursuant to the optional redemption provisions of Section 10.07,
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 or ISIN numbers of the Notes to be redeemed.
Section 10.02. Selection by Trustee of Notes to be Redeemed. If fewer than
all the Notes are to be redeemed, the particular Notes to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee from
the Outstanding Notes not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate. The portions of the principal of
Notes so selected for partial redemption shall be equal to $1,000, or an
integral multiple of $1,000 in excess thereof, and the principal amount which
remains Outstanding shall not be less than $1,000.
The Trustee shall promptly notify the Obligor in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate, in the case of
any Note redeemed or to
53
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 shall be given by first-class mail, postage
prepaid, mailed not fewer than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at his or her address appearing in
the Security Register.
(2) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the manner of calculating the Redemption Price;
(iii) if fewer than all Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the Notes to be redeemed, from the Holder to whom the
notice is given and that on and after the date fixed for redemption, upon
surrender of such Note, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued in accordance
with Section 10.06;
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each Note called for redemption, and that interest, if
any, thereon shall cease to accrue from and after said date;
(v) the place where Notes 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;
(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 Notes.
(3) Notice of redemption of Notes shall be given by the Obligor or, at the
Obligor's request, by the Trustee in the name and at the expense of the Obligor.
Section 10.04. Deposit of Redemption Price. On or prior to 10 a.m. 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 which are to be redeemed on that date.
54
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 borne 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 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 the Note so
surrendered.
Section 10.07. Optional Redemption. The Notes will be redeemable in whole
or in part at any time at the option of the Obligor, at the Redemption Price
equal to the greater of:
(1) 100% of the principal amount of the Notes being redeemed, or
(2) as determined by an Independent Investment Banker, the sum of the
present values of the remaining scheduled payments of principal and interest on
the Notes being redeemed from the Redemption Date to the Maturity Date
discounted to the date of redemption on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at a discount rate equal to the
Treasury Rate plus 15 basis points;
plus, for (1) or (2) above, whichever is applicable, accrued and unpaid interest
on the Notes to 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.
Section 10.08. Mandatory Redemption. The Obligor shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes.
55
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
By: /s/ Steven M. Rapp
------------------
Name: Steven M. Rapp
Title: Managing Director-Delegatee
JPMORGAN CHASE BANK
By: /s/ Nicholas Sberlati
---------------------
Name: Nicholas Sberlati
Title: Trust Officer
EXHIBIT A
FORM OF INITIAL NOTE
[FORM OF FACE OF INITIAL NOTE]
[Insert Global Note Legend, if applicable, pursuant to the provisions of the
Indenture]
[Insert Private Placement Legend, if applicable, pursuant to the provisions of
the Indenture]
CUSIP No.____________
[Include if the Note is a Regulation S Global Note:][ISIN No. ____________]
BOTTLING GROUP, LLC
4 1/8 % Senior Note due June 15, 2015
No. R-_____ $________________
[If the Note is a Global Note, include the following:]
as revised by the Schedule of Exchanges of Interests in the
Global Note attached hereto
BOTTLING GROUP, LLC, a Delaware limited liability company (herein called
the "Obligor"), for value received, hereby promises to pay to [insert if a
Global Note: Cede & Co. as nominee for The Depository Trust Company] [insert if
a Definitive Note: _________] (the "Holder") or to its registered assigns, the
principal sum of U.S.$___________ [Insert if a Global Note: or such other
principal amount as shall be set forth on the Schedule of Exchanges of Interests
in the Global Note attached hereto] on June 15, 2015 (the "Maturity Date"), and
to pay interest on said principal sum semi-annually on December 15 and June 15
of each year (each, an "Interest Payment Date"), commencing December 15, 2003 at
the rate of 4 1/8 % per annum of the principal amount then outstanding from the
original issuance date of the Notes, until payment of the principal sum has been
made or duly provided for, and Additional Interest, if any, payable pursuant to
Section 6 of the Registration Rights Agreement.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Record Date for such Interest Payment Date, which shall
be the 15th day (whether or not a Business Day) next preceding such Interest
Payment Date, provided that interest payable on an Interest Payment Date that is
a Redemption Date or the Maturity Date shall be payable to the Person to whom
principal is payable. Any such interest that is payable but is not so punctually
paid or duly provided for shall forthwith cease to be payable to the registered
Holder on such Record Date and may be paid to the Person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes not earlier than
10 days prior to such Special Record Date.
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Payment of the principal and interest on this Note will be made at the
Place of Payment in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Reference is made to the further provisions of this Note and to certain
definitions set forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place. Unless the certificate of authentication
hereon has been executed by or on behalf of the Trustee by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Obligor has caused this instrument to be duly
executed by manual or facsimile signature.
Dated:
BOTTLING GROUP, LLC
By:_____________________________
Authorized Officer
By:_____________________________
Authorized Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK, as Trustee
By:_____________________________
Authorized Officer
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[FORM OF REVERSE OF INITIAL NOTE]
BOTTLING GROUP, LLC
4 1/8 % Senior Note due June 15, 2015
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Bottling Group, LLC, a Delaware limited liability company (the
"Obligor"), promises to pay interest on the principal amount of this Note at the
rate of 4 1/8 % per annum from June 10, 2003 until payment of the principal
amount hereof has been made or duly provided for. The Obligor shall pay interest
on each Interest Payment Date (or if such day is not a Business Day, on the next
succeeding Business Day and no interest on the amount payable on such Interest
Payment Date shall accrue for the intervening period). Interest on the Notes
shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid, from the Issue Date; provided
that if there is no existing default or Event of Default relating to the payment
of interest, and if this Note is authenticated between a Record Date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be December 15, 2003. The Obligor shall
pay interest (including post-petition interest in any proceeding under any
Federal or State bankruptcy, insolvency, reorganization, or other similar law)
on overdue principal and premium, if any, from time to time on demand at the
rate borne by this Note. 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 installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
2. ADDITIONAL INTEREST. The Holder of this Note is entitled to the benefits
of the Registration Rights Agreement relating to the Notes, dated as of June 10,
2003, among the Obligor and the several initial purchasers named therein (the
"Registration Rights Agreement"), including the right to receive, in the
circumstances described therein, additional interest ("Additional Interest").
All accrued Additional Interest shall be paid by the Obligor to the Holders
entitled thereto in the same manner as interest payments on the Notes on the
regular interest payment dates with respect to the Notes.
3. METHOD OF PAYMENT. The Obligor shall pay interest on the Notes (except
Defaulted Interest) to the Persons who are registered Holders of Notes on the
Record Date therefor, even if such Notes are cancelled after such Record Date
and on or before such Interest Payment Date, except as provided in Section 2.06
of the Indenture, provided that interest payable on an Interest Payment Date
that is a Redemption Date or the Maturity Date shall be payable to the Person to
whom principal is payable. The Notes shall be payable as to principal, premium,
if any, and interest at the office or agency of the Obligor maintained for such
purpose as set forth in Section 9.02 of the Indenture, or, at the option of the
Obligor, payment of interest
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may be made by check mailed to the Holders at their addresses set forth in the
Security Register, and provided that payment by wire transfer of immediately
available funds shall be required with respect to principal of, premium, if any,
and interest on Global Notes and a Holder of $10,000,000 or more in aggregate
principal amount of Notes will be entitled to receive payments of interest,
other than interest due at maturity or any date of redemption, by wire transfer
of immediately available funds if appropriate wire transfer instructions have
been received by the Trustee in writing not less than 15 calendar days prior to
the applicable Interest Payment Date. Payment of principal of, premium, if any,
and interest on the Notes shall be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts.
4. PAYING AGENT AND REGISTRAR. Initially, JPMorgan Chase Bank, the Trustee
under the Indenture, shall act as Paying Agent and Registrar. The Obligor may
appoint and change any Paying Agent or Registrar without notice to any Holder.
The Obligor or any of its Subsidiaries may act in any such capacity.
5. INDENTURE. The Obligor issued the Notes under an Indenture dated as of
June 10, 2003 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture") between the Obligor and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act. The Notes
are subject to all such terms, and Holders are referred to the Indenture and the
Trust Indenture Act for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
6. OPTIONAL REDEMPTION. The Notes will be redeemable, in whole or in part,
upon not less than 30 nor more than 60 days' notice, at any time at the option
of the Obligor, at the Redemption Price equal to the greater of: (1) 100% of the
principal amount of the Notes being redeemed or (2) as determined by an
Independent Investment Banker, the sum of the present value of the remaining
scheduled payments of principal and interest on the Notes being redeemed from
the Redemption Date to the 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 15 basis points; plus, for
(1) or (2) above, whichever is applicable, accrued and unpaid interest on such
Notes to the Redemption Date.
7. MANDATORY REDEMPTION. The Obligor shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in minimum denominations of $1,000 and integral multiples of
$1,000 in excess thereof. The transfer of Notes may be registered and Notes may
be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other
A-4
things, to furnish appropriate endorsements and transfer documents and the
Obligor may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Obligor need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Obligor
need not exchange or register the transfer of any Notes for a period of 15 days
before the mailing of a notice of redemption.
10. PERSONS DEEMED OWNERS. Except as provided in the Indenture, the
registered Holder of a Note on the Registrar's books may be treated as its owner
for all purposes under the Indenture.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Obligor and the rights of the Holders of the
Notes under the Indenture at any time by the Obligor and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Notes affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding, on behalf of the Holders of all Notes, to waive certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
12. DEFAULTS AND REMEDIES. The Indenture provides that each of the
following events constitutes an Event of Default: (i) failure to make any
payment of principal when due (whether at maturity, upon redemption or
otherwise) on the Notes; (ii) failure to make any payment of interest when due
on the Notes, which failure is not cured within 30 days; (iii) failure of the
Obligor to observe or perform any of its other covenants or warranties under the
Indenture for the benefit of the holders of the Notes, which failure is not
cured within 90 days after notice is given as specified in the Indenture; (iv)
certain events of bankruptcy, insolvency, or reorganization of the Obligor, PBG
or any Restricted Subsidiary of PBG; and (v) 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.
If an Event of Default shall occur and be continuing, the principal amount
hereof may be declared due and payable in the manner and with the effect
provided in the Indenture.
13. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the
A-5
entirety), JT TEN (= joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
15. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Obligor has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
16. GOVERNING LAW. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
rules governing the conflict of laws.
[Include if this Note is a Regulation S Global Note]
17. ISIN NUMBERS. The Obligor has caused ISIN numbers to be printed on the
Notes. No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
A-6
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Note on the books of the Obligor. The agent may substitute
another to act for him.
_______________________________________________________________________________
Date:______________ Your Signature:________________________________
(Sign exactly as your name appears on the face of this
Note)
Tax Identification No:_____________________________________
SIGNATURE GUARANTEE:
___________________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar,
which requirements include membership or participation in
the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE 1
The following exchanges of a part of this Global Note for a Global Note or
a Definitive Note, or exchanges of a Definitive Note for an interest in this
Global Note, have been made:
Principal Amount
Amount of Amount of of this Signature of
decrease in increase in Global Note authorized
Principal Principal following such officer of
Date of Amount of this Amount of this decrease Trustee or
Exchange Global Note Global Note (or increase) Custodian
___________ _______________ _______________ _____________ _______________
___________ _______________ _______________ _____________ _______________
___________ _______________ _______________ _____________ _______________
______________________________
1 THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
A-8
EXHIBIT B
FORM OF EXCHANGE NOTE
[FORM OF FACE OF EXCHANGE NOTE]
[Insert Global Note Legend, if applicable, pursuant to the provisions of the
Indenture]
CUSIP No. _____
BOTTLING GROUP, LLC
4 1/8 % Series B Senior Note due June 15, 2015
No. R-_____ $________________
[If the Note is a Global Note, include the following:]
as revised by the Schedule of Exchanges of Interests
in the Global Note attached hereto
BOTTLING GROUP, LLC, a Delaware limited liability company (herein called
the "Obligor"), for value received, hereby promises to pay to [insert if a
Global Note: Cede & Co. as nominee for The Depository Trust Company] [insert if
a Definitive Note: _________] (the "Holder") or to its registered assigns, the
principal sum of U.S.$___________ [Insert if a Global Note: or such other
principal amount as shall be set forth on the Schedule of Exchanges of Interests
in the Global Note attached hereto] on June 15, 2015 (the "Maturity Date"), and
to pay interest on said principal sum semi-annually on December 15 and June 15
of each year (each, an "Interest Payment Date"), commencing December 15, 2003 at
the rate of 4 1/8 % per annum of the principal amount then outstanding from the
original issuance date of the Notes, until payment of the principal sum has been
made or duly provided for.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Record Date for such Interest Payment Date, which shall
be the 15th day (whether or not a Business Day) next preceding such Interest
Payment Date, provided that interest payable on an Interest Payment Date that is
a Redemption Date or the Maturity Date shall be payable to the Person to whom
principal is payable. Any such interest that is payable but is not so punctually
paid or duly provided for shall forthwith cease to be payable to the registered
Holder on such Record Date and may be paid to the Person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes not earlier than
10 days prior to such Special Record Date.
Payment of the principal and interest on this Note will be made at the
Place of Payment in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
B-1
Reference is made to the further provisions of this Note and to certain
definitions set forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place. Unless the certificate of authentication
hereon has been executed by or on behalf of the Trustee by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Obligor has caused this instrument to be duly
executed by manual or facsimile signature.
Dated:
BOTTLING GROUP, LLC
By: ______________________________
Authorized Officer
By:_______________________________
Authorized Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK, as Trustee
By:_______________________________
Authorized Officer
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[FORM OF REVERSE OF EXCHANGE NOTE]
BOTTLING GROUP, LLC
4 1/8% Series B Senior Note due June 15, 2015
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Bottling Group, LLC, a Delaware limited liability company (the
"Obligor"), promises to pay interest on the principal amount of this Note at the
rate of 4 1/8% per annum from June 10, 2003 until payment of the principal
amount hereof has been made or duly provided for. The Obligor shall pay interest
on each Interest Payment Date (or if such day is not a Business Day, on the next
succeeding Business Day and no interest on the amount payable on such Interest
Payment Date shall accrue for the intervening period). Interest on the Notes
shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid, from the Issue Date; provided
that if there is no existing default or Event of Default relating to the payment
of interest, and if this Note is authenticated between a Record Date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be December 15, 2003. The Obligor shall
pay interest (including post-petition interest in any proceeding under any
Federal or State bankruptcy, insolvency, reorganization, or other similar law)
on overdue principal and premium, if any, from time to time on demand at the
rate borne by this Note. 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 installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Obligor shall pay interest on the Notes (except
Defaulted Interest) to the Persons who are registered Holders of Notes on the
Record Date therefor, even if such Notes are cancelled after such Record Date
and on or before such Interest Payment Date, except as provided in Section 2.06
of the Indenture, provided that interest payable on an Interest Payment Date
that is a Redemption Date or the Maturity Date shall be payable to the Person to
whom principal is payable. The Notes shall be payable as to principal, premium,
if any, and interest at the office or agency of the Obligor maintained for such
purpose as set forth in Section 9.02 of the Indenture, or, at the option of the
Obligor, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the Security Register, and provided that payment by wire
transfer of immediately available funds shall be required with respect to
principal of, premium, if any, and interest on Global Notes and a Holder of
$10,000,000 or more in aggregate principal amount of Notes will be entitled to
receive payments of interest, other than interest due at maturity or any date of
redemption, by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received by the Trustee in writing not less than
15 calendar days prior to the applicable Interest Payment Date. Payment of
principal of, premium, if any, and interest on the Notes shall be in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
B-3
3. PAYING AGENT AND REGISTRAR. Initially, JPMorgan Chase Bank, the Trustee
under the Indenture, shall act as Paying Agent and Registrar. The Obligor may
appoint and change any Paying Agent or Registrar without notice to any Holder.
The Obligor or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Obligor issued the Notes under an Indenture dated as of
June 10, 2003 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture") between the Obligor and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act. The Notes
are subject to all such terms, and Holders are referred to the Indenture and the
Trust Indenture Act for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION. The Notes will be redeemable, in whole or in part,
upon not less than 30 nor more than 60 days' notice, at any time at the option
of the Obligor, at the Redemption Price equal to the greater of: (1) 100% of the
principal amount of the Notes being redeemed or (2) as determined by an
Independent Investment Banker, the sum of the present value of the remaining
scheduled payments of principal and interest on the Notes being redeemed from
the Redemption Date to the 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 15 basis points; plus, for
(1) or (2) above, whichever is applicable, accrued and unpaid interest on such
Notes to the Redemption Date.
6. MANDATORY REDEMPTION. The Obligor shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in minimum denominations of $1,000 and integral multiples of
$1,000 in excess thereof. The transfer of Notes may be registered and Notes may
be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Obligor may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Obligor need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Obligor need not exchange or register the transfer of any Notes
for a period of 15 days before the mailing of a notice of redemption.
9. PERSONS DEEMED OWNERS. Except as provided in the Indenture, the
registered Holder of a Note on the Registrar's books may be treated as its owner
for all purposes under the Indenture.
B-4
10. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Obligor and the rights of the Holders of the
Notes under the Indenture at any time by the Obligor and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Notes affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding, on behalf of the Holders of all Notes, to waive certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
11. DEFAULTS AND REMEDIES. The Indenture provides that each of the
following events constitutes an Event of Default: (i) failure to make any
payment of principal when due (whether at maturity, upon redemption or
otherwise) on the Notes; (ii) failure to make any payment of interest when due
on the Notes, which failure is not cured within 30 days; (iii) failure of the
Obligor to observe or perform any of its other covenants or warranties under the
Indenture for the benefit of the holders of the Notes, which failure is not
cured within 90 days after notice is given as specified in the Indenture; (iv)
certain events of bankruptcy, insolvency, or reorganization of the Obligor, PBG
or any Restricted Subsidiary of PBG; and (v) 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.
If an Event of Default shall occur and be continuing, the principal amount
hereof may be declared due and payable in the manner and with the effect
provided in the Indenture.
12. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
13. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
14. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Obligor has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
B-5
15. GOVERNING LAW. This Note 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.
B-6
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignees social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Obligor. The agent may substitute
another to act for him.
Date:_______________________ Your Signature:___________________________________
(Sign exactly as your name appears on the face
of this Note)
Tax Identification No:____________________________
SIGNATURE GUARANTEE:
_________________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act
of 1934, as amended.
B-7
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE 2
The following exchanges of a part of this Global Note for a Global Note or
a Definitive Note, or exchanges of a Definitive Note for an interest in this
Global Note, have been made:
Principal Amount
Amount of Amount of of this Signature of
decrease in increase in Global Note authorized
Principal Principal following such officer of
Date of Amount of this Amount of this decrease Trustee or
Exchange Global Note Global Note (or increase) Custodian
___________ _______________ _______________ _____________ _______________
___________ _______________ _______________ _____________ _______________
___________ _______________ _______________ _____________ _______________
______________________________
2 THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
B-8
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: 4 1/8% Senior Notes due June 15, 2015
of Bottling Group, LLC
Reference is hereby made to the Indenture, dated as of June 10, 2003 (as
amended and supplemented from time to time, the "Indenture"), between Bottling
Group, LLC and JPMorgan Chase Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given them in the Indenture.
This Certificate relates to $_______________ principal amount of Notes [in
the case of an interest in a Rule 144A Global Note or a Regulation S Global
Note: which represents an interest in a [Rule 144A Global Note] [Regulation S
Global Note] beneficially owned by] [in the case of a Definitive Note: which are
held in the name of] the undersigned (the "Transferor").
The Transferor has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify to the Obligor and the Trustee as follows:*
( )Such Note is owned by the Transferor and is being exchanged without
transfer; or
( )Such Note is being transferred to a qualified institutional buyer (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")), in a transaction meeting the requirements of Rule 144A under
the Securities Act; or
( )Such Note is being transferred in accordance with Rule 144(k) under the
Securities Act; or
( )Such Note is being transferred to a person located outside the United
States and is not a "U.S. person" as defined in Regulation S under the
Securities Act in a transaction meeting the requirements of Rule 903 or 904
under the Securities Act; or
( )Such Note is being transferred to the Obligor or one of its Affiliates.
________________________________
* Check the applicable box.
C-1
[INSERT NAME OF TRANSFEROR]
By:______________________________________
Date:____________________
C-2