Tender-Offer Statement — Third-Party Tender Offer — Schedule TO
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC TO-T Tender Offer Statement 6 41K
2: EX-99.A.1 U.S. Offer to Purchase 88 455K
11: EX-99.A.10 Press Release 2 14K
12: EX-99.A.17 Summary of the Mexican Offer to Purchase 1 8K
3: EX-99.A.2 Form of Gds Letter of Transmittal 13 68K
4: EX-99.A.3 Form of Broker Dealer Letter 3 21K
5: EX-99.A.4 Form of Client Letter 4 19K
6: EX-99.A.5 Notice of Guaranteed Delivery 3 19K
7: EX-99.A.6 W-9 Guidelines 4± 18K
8: EX-99.A.7 Summary Advertisement 6 36K
9: EX-99.A.8 Audited Consolidated Financial Statements 53 296K
10: EX-99.A.9 Gemex 6-K 12 36K
13: EX-99.B.1 Senior Credit Agreement 75 277K
14: EX-99.C.1 Salomon Smith Barney Inc. Fairness Opinion 3 16K
15: EX-99.C.2 Presentation to the Board of Directors HTML 34K
16: EX-99.D.1 Agreement to Tender 21 70K
17: EX-99.D.2 Agreement to Tender 35 111K
18: EX-99.D.3 Escrow Agreement 9 36K
Exhibit (b)(1)
CONFORMED COPY
U.S. $1,200,000,000
REVOLVING BRIDGE LOAN CREDIT AGREEMENT
Dated as of October 2, 2002
among
THE PEPSI BOTTLING GROUP, INC.,
BOTTLING GROUP, LLC,
THE LENDERS NAMED HEREIN,
DEUTSCHE BANK AG NEW YORK BRANCH,
as Agent,
CREDIT SUISSE FIRST BOSTON CORPORATION,
DEUTSCHE BANK SECURITIES INC. and
SALOMON SMITH BARNEY INC.,
as Joint Lead Arrangers and
Joint Book Managers,
and
CITIBANK, N.A.,
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH, and
DEUTSCHE BANK AG NEW YORK BRANCH,
as Joint Syndication Agents
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING
Section 1.01. Certain Defined Terms ....................................... 1
Section 1.02. Computation of Time Periods ................................. 14
Section 1.03. Accounting Terms ............................................ 14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The Revolving Credit Advances ............................... 14
Section 2.02. Making the Revolving Credit Advances ........................ 15
Section 2.03. The Competitive Bid Advances ................................ 16
Section 2.04. Fees ........................................................ 20
Section 2.05. Termination, Reduction or Increase of the Commitments ....... 20
Section 2.06. Repayment of Revolving Credit Advances; Evidence of
Indebtedness ................................................ 21
Section 2.07. Interest on Revolving Credit Advances ....................... 21
Section 2.08. Interest Rate Determination ................................. 22
Section 2.09. Optional Conversion of Revolving Credit Advances ............ 23
Section 2.10. Optional Prepayments of Revolving Credit Advances and
Mandatory Prepayments of all Advances ....................... 23
Section 2.11. Increased Costs ............................................. 24
Section 2.12. Illegality .................................................. 25
Section 2.13. Payments and Computations ................................... 25
Section 2.14. Taxes ....................................................... 26
Section 2.15. Sharing of Payments, Etc .................................... 29
Section 2.16. Use of Proceeds ............................................. 29
Section 2.17. [Intentionally Omitted] ..................................... 29
Section 2.18. Mitigation Obligations ...................................... 29
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND ARTICLE II
Section 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03 ........................................................ 30
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Section 3.02. Conditions Precedent to Each Revolving Credit Borrowing ..... 33
Section 3.03. Conditions Precedent to Each Competitive Bid Borrowing ...... 33
Section 3.04. Determinations Under Section 3.01 ........................... 34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES
Section 4.01. Representations and Warranties of the Loan Parties .......... 34
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants ....................................... 35
Section 5.02. Negative Covenants .......................................... 37
Section 5.03. Financial Covenants ......................................... 39
Section 5.04. Syndication ................................................. 39
Section 5.05. Take-Out Financing .......................................... 40
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default ........................................... 42
ARTICLE VII
THE AGENT
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc ............................................. 46
Section 8.02. Notices, Etc ................................................ 46
Section 8.03. No Waiver; Remedies ......................................... 47
Section 8.04. Costs and Expenses .......................................... 47
Section 8.05. Right of Set-off ............................................ 48
Section 8.06. Binding Effect .............................................. 49
Section 8.07. Assignments and Participations .............................. 49
Section 8.08. Confidentiality ............................................. 52
Section 8.09. Governing Law ............................................... 52
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Section 8.10. Execution in Counterparts ................................... 52
Section 8.11. Jurisdiction, Etc ........................................... 52
Section 8.12. WAIVER OF JURY TRIAL ........................................ 53
Section 8.13. Integration of Terms ........................................ 53
ARTICLE IX
[INTENTIONALLY OMITTED]
ARTICLE X
GUARANTOR GUARANTEE
Section 10.01. Guarantor Guarantee ......................................... 53
Section 10.02. Limitation of Guarantor's Liability ......................... 54
SCHEDULE 1 - LENDING OFFICES
SCHEDULE 2 - APPLICABLE MARGIN
EXHIBIT A-1 - FORM OF NOTICE OF REVOLVING CREDIT BORROWING
EXHIBIT A-2 - FORM OF NOTICE OF COMPETITIVE BID BORROWING
EXHIBIT B - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT C - FORM OF OPINION OF COUNSEL FOR THE COMPANY AND THE
GUARANTOR
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REVOLVING BRIDGE LOAN CREDIT AGREEMENT
Dated as of October 2, 2002
THE PEPSI BOTTLING GROUP, INC., a Delaware corporation, as borrower
(the "Company" or the "Borrower"), BOTTLING GROUP, LLC, a Delaware limited
liability company, as guarantor (the "Guarantor"), the banks, financial
institutions and other institutional lenders (the "Initial Lenders") listed on
the signature pages hereof, and Deutsche Bank AG New York Branch, as
administrative agent (in such capacity, the "Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition" means the acquisition of at least 90% (subject to
waiver by PBG-Spain; provided that such waiver does not result in Gemex failing
to be a Subsidiary of the Borrower under its Control immediately after such
acquisition) of the outstanding Gemex Shares pursuant to all cash tender offers
(the "Tender Offers") by means of simultaneous offers to purchase in the United
States and in Mexico to be made by PBG-Spain.
"Acquisition Documents" means the Schedule TO, as amended, to be
filed with the Commission by PBG-Spain in connection with the Acquisition and
the several exhibits thereto, including the U.S. Offer to Purchase and the GDS
Letter of Transmittal, each as amended, an application to the Comision Nacional
Bancaria y de Valores, dated as of August 16, 2002, as amended, and the exhibits
thereto, each as amended, the Folleto Informativo, as amended, and all other
agreements, instruments, certificates, filings, consents, approvals, Board of
Directors resolutions, opinions and other documents furnished pursuant to or in
connection with the Acquisition.
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 5% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Deutsche Bank with its office at 31 West 52nd Street, New York, New
York 10019.
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"Alternate Covenant Date" means any day on which the Index Debt of
Pepsi shall be rated less than A- by S&P or less than A3 by Moody's.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of the Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a Competitive Bid Advance, the office of such Lender notified by
such Lender to the Agent as its Applicable Lending Office with respect to such
Competitive Bid Advance.
"Applicable Margin" means with respect to any Eurodollar Rate
Advance or with respect to the facility fees payable hereunder, as the case may
be, for any day, the applicable rate per annum set forth in Schedule 2; provided
that, for purposes of calculating the Applicable Margin, (i) if either Moody's
or S&P shall not have in effect a rating for the Company, then the Applicable
Margin shall be determined based on the highest applicable facility fee or LIBOR
Margin in Schedule 2, (ii) if the ratings established or deemed to have been
established by Moody's and S&P for the Company shall fall within different
categories, the Applicable Margin shall be based on the higher of the two
ratings unless one of the two ratings is two or more categories lower than the
other, in which case the Applicable Margin shall be determined by reference to
the category next below that of the higher of the two ratings; and (iii) if the
ratings established or deemed to have been established by Moody's and S&P for
the Company shall be changed (other than as a result of a change in the rating
system of Moody's or S&P), such change shall be effective as of the date on
which it is first announced by the applicable rating agency, irrespective of
when notice of such change shall have been furnished by the Borrower to the
Agent and the Lenders. Each change in the Applicable Margin shall apply during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Arrangers" means Credit Suisse First Boston Corporation, Deutsche
Bank Securities Inc. and Salomon Smith Barney Inc.
"Asset Sale" means any direct or indirect sale, disposition,
conveyance, transfer, lease, assignment or other transfer, including a sale and
leaseback transaction, by any member of the Borrower Group of any Capital Stock
or any other property or assets (other than cash or Cash Equivalents), including
any series of related transactions and excluding:
(1) a disposition of inventory or obsolete, outmoded or worn-out
equipment in the ordinary course of business,
(2) disposition of property or assets owned immediately prior to the
closing date of the Acquisition with an aggregate fair market value not to
exceed $25,000,000 in the aggregate, and
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(3) a disposition of property or assets acquired as a result of, or
after the closing date of, the Acquisition with an aggregate fair market
value not to exceed $300,000,000 in the aggregate.
The amounts set forth in clauses (2) and (3) each shall be calculated on a
cumulative basis from and after the Effective Date for the Borrower Group, taken
as a whole.
"Asset Sales Proceeds" means, with respect to an Asset Sale, the
gross proceeds received by a member of the Borrower Group in the form of cash or
Cash Equivalents from such Asset Sale (including payments in such form received
in respect of deferred payment obligations from such Asset Sale), net of
reasonable and customary out-of-pocket expenses relating to such Asset Sale and
including, for the avoidance of doubt, any such proceeds received by a
Controlled Affiliate following transfer of any Capital Stock or property or
asset to a Controlled Affiliate by the Borrower or the Guarantor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit B hereto.
"Available Proceeds" has the meaning specified in Section
2.10(b)(i).
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by CSFB in New York, New
York, from time to time, as CSFB's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a).
"Borrower Group" has the meaning specified in Section 2.10(b)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Capital Markets Proceeds" means the proceeds received by any member
of the Borrower Group from the sale of any security issued or guaranteed by any
member of the Borrower Group on or after the date hereof (including, without
limitation, the Securities), or any right to subscribe to, purchase or acquire
any of the foregoing, net of associated underwriting, legal and other offering
expenses, but excluding (x) commercial paper, (y) the proceeds of drawings
hereunder or under bank loan agreements entered into prior to the date hereof,
or (z) Capital Stock and Indemnification Related Notes issued as consideration
for any acquisition (but,
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for the avoidance of doubt, excluding Capital Stock sold to one or more third
parties where the proceeds realized therefrom are used to finance any
acquisition).
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any and all
shares, interests, participations or other equivalents (however designated
and whether or not voting) of corporate stock, including each class of
common stock and preferred stock of such Person;
(2) with respect to any Person that is not a corporation, any and
all partnership, membership or other equity or ownership interests of such
Person; and
(3) any warrants, rights or options to purchase any of the
instruments or interests referred to in clause (1) or (2) above.
"Cash Equivalents" means:
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States government or issued by any agency
thereof and backed by the full faith and credit of the United States, in
each case maturing within 12 months from the date of acquisition thereof;
(2) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within 12 months from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's;
(3) commercial paper maturing no more than 270 days from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing within
12 months from the date of acquisition thereof issued by (i) any Lender or
(ii) any bank organized under the laws of the United States of America or
any state thereof or the District of Columbia or any U.S. branch of a
non-U.S. bank having at the date of acquisition thereof combined capital
and surplus of not less than $500 million;
(5) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (1) above
entered into with any bank meeting the qualifications specified in clause
(4) above; and
(6) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (1) through
(5) above.
"Change of Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities
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Exchange Act of 1934 and the rules of the Commission thereunder as in effect on
the date hereof) other than Pepsi, of shares representing more than 25% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; (b) occupation of a majority of the seats (other
than vacant seats) on the Board of Directors of the Company by Persons who were
neither (i) nominated by the Board of Directors of the Company nor (ii)
appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Company by any Person or group other than Pepsi.
"Commission" means the U.S. Securities and Exchange Commission.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Letter" means the commitment letter, dated August 26,
2002, by and among the Initial Lenders, the Arrangers, the Borrower and the
Guarantor.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the auction
bidding procedure described in Section 2.03 and refers to a Fixed Rate Advance
or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer to
make one or more Competitive Bid Advances as part of such borrowing has been
accepted under the auction bidding procedure described in Section 2.03.
"Competitive Bid Reduction" has the meaning specified in Section
2.01.
"Confidential Information" means information that the Company
furnishes to the Agent or any Lender in a writing designated as confidential,
but does not include any such information that is or becomes generally available
to the public or that is or becomes rightfully available to the Agent or such
Lender from a source other than the Company.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount with respect to Debt (including the Advances), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary expenses or
losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of
assets outside of the ordinary course of business), and (f) any other non-cash
charges, and minus, to the extent included in the statement of such Consolidated
Net Income for such period, the sum of (a) any extraordinary income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (b) any other non-cash
income, all as determined on a Consolidated basis; in each case exclusive of the
cumulative effect of foreign currency gains or losses. For the purposes of
calculating Consolidated EBITDA for any period pursuant to any determination of
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the Consolidated Leverage Ratio, if during such period the Company or any
Subsidiary, including the Guarantor, shall have made an acquisition or incurred
or assumed (without duplication of any Debt incurred to refinance such assumed
Debt) any Debt, Consolidated EBITDA for such period shall be calculated after
giving pro forma effect thereto as if such acquisition occurred and such Debt
had been incurred or assumed or refinanced on the first day of such period.
"Consolidated Leverage Ratio" means, as at the last day of any
Fiscal Quarter, the ratio of (a) Consolidated Total Debt on such day to (b)
Consolidated EBITDA for the four consecutive fiscal quarters then ended (taken
as one accounting period).
"Consolidated Net Income" means, for any period, the consolidated
net income (or loss) of the Company and its Restricted Subsidiaries, including
the Guarantor, determined on a consolidated basis in accordance with GAAP,
before deduction of any minority interests in the Guarantor and excluding the
cumulative effect of any foreign currency gains or losses.
"Consolidated Net Tangible Assets" means the total assets of the
Company and its Restricted Subsidiaries (less applicable depreciation,
amortization, and other valuation reserves), except to the extent resulting from
write-ups of capital assets (other than write-ups in connection with accounting
for acquisitions, in accordance with GAAP), less all current liabilities
(excluding intercompany liabilities) and all intangible assets of the Company
and its Restricted Subsidiaries, all as set forth on the most recent
Consolidated balance sheet of the Company and its Restricted Subsidiaries,
prepared in accordance with GAAP, but before deduction of any minority interests
in the Guarantor and exclusive of any foreign currency translation adjustments.
"Consolidated Net Worth" means, as of any date of determination, all
items which in conformity with GAAP would be included under shareholders' equity
on a Consolidated balance sheet of the Company and its Subsidiaries, including
the Guarantor, at such date plus amounts representing mandatorily redeemable
preferred securities issued by Subsidiaries of the Company, including the
Guarantor, but before deduction of any minority interests in the Guarantor and
exclusive of any foreign currency translation adjustments.
"Consolidated Total Debt" means, at any date (i) the aggregate
principal amount of all Debt of the Company and its Subsidiaries, including the
Guarantor minus (ii) the aggregate amount (not in excess of $500,000,000) of all
cash and cash equivalents of the Company and its Subsidiaries, in each case at
such date and determined on a Consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
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"CSFB" means Credit Suisse First Boston, acting through its Cayman Islands
Branch.
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade accounts
payable arising in the ordinary course of business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all obligations (other than trade accounts payable arising in the ordinary
course of business) of such Person created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases, (f) all
Debt of others referred to in clauses (a) through (c) above or clause (g) below
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through (i) an agreement (1) to
pay or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Debt or to assure the holder of such Debt
against loss, (3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of whether
such property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, or (ii) a standby letter of credit and (g) all
Debt referred to in clauses (a) through (f) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt.
"Debt to Capitalization Ratio" means at any time the ratio of (x)
Consolidated Total Debt to (y) the sum of (i) Consolidated Total Debt plus (ii)
Consolidated Net Worth.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Designation Letter" has the meaning specified in Section 2.17(a).
"Deutsche Bank" means Deutsche Bank AG New York Branch.
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule 1 hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $15,000,000,000 and a
combined capital and surplus of at least $1,000,000,000; (iv) a savings and loan
association or savings bank organized under the laws of
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the United States, or any State thereof, and having total assets in excess of
$15,000,000,000 and a combined capital and surplus of at least $1,000,000,000;
(v) a commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow or of the Cayman Islands, or
a political subdivision of any such country, and having total assets in excess
of $15,000,000,000 and a combined capital and surplus of at least $1,000,000,000
so long as such bank is acting through a branch or agency located in the United
States or in the country in which it is organized or another country that is
described in this clause (v); (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; provided,
however, that each Person described in clauses (ii) through (vi) shall have a
short term public debt rating of not less than A by S&P or Moody's or shall be
approved by the Company; and (vii) any other Person approved by the Company,
such approval not to be unreasonably withheld or delayed; provided, however,
that neither the Company nor an Affiliate of the Company shall qualify as an
Eligible Assignee.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial or
agency interpretation, policy or guidance relating to the environment, health,
safety or Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule 1 hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Company and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing, an interest rate
per annum appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar deposits
in the London interbank market) as of 11:00 A.M. (London time) on the date two
Business Days prior to the first day of such Interest Period as the rate for
Dollar deposits having a term comparable to such Interest Period, or in the
event such offered rate is not available from said Page 3750, the average
(rounded to the nearer whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period. If the
Eurodollar Rate does not appear on said Page 3750 (or any successor page), the
Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing shall be
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determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(b).
"Events of Default" has the meaning specified in Section 6.01.
"Execution Date" means the date on which the parties hereto shall have
executed and delivered to the other parties hereto counterparts of this
Agreement.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fee Letter" means the fee and syndication letter, dated August 26, 2002,
by and among the Initial Lenders, the Arrangers, the Borrower and the Guarantor.
"Fiscal Quarter" means a period of 13 (or 14) weeks treated by the Company
as a fiscal quarter.
"Fiscal Year" means the period of 52 (or 53) weeks ending on the last
Saturday of any calendar year and treated by the Company as its fiscal year.
"5-Year Facility" means the 5 Year Credit Agreement dated as of April 22,
1999 among the Company, the Guarantor, certain banks, financial institutions and
other institutional lenders, and JPMorgan Chase Bank, as agent.
"Fixed Rate Advances" has the meaning specified in Section 2.03(2).
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in by
the Borrower's independent public accountants) with the most recent audited
Consolidated financial statements of the Borrower and its Subsidiaries delivered
to the Lenders.
"Gemex" means Pepsi-Gemex, S.A. de C.V., a company organized under the
laws of Mexico.
"Gemex Shares" means Series B Common Shares, Ordinary Participation
Certificates and Global Depositary Shares of Gemex.
"Granting Lender" has the meaning specified in Section 8.07(e).
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"Hazardous Materials" means petroleum and petroleum products, byproducts
or breakdown products, radioactive materials, asbestos-containing materials,
radon gas and any other chemicals, materials or substances designated,
classified or regulated as being "hazardous" or "toxic," or words of similar
import, under any federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance.
"Indemnification Related Notes" means promissory notes in an original
principal amount not to exceed $20,000,000 in the aggregate issued by any member
of the Borrower Group pursuant to the terms of any acquisition agreement and
which are (i) issued in lieu of requiring the applicable seller to post a bond,
obtain a letter of credit or establish an escrow to secure such seller's
indemnification obligations and (ii) on terms customary for similar instruments.
"Index Debt" of any Person means senior, unsecured, long term indebtedness
for borrowed money of such Person that is not guaranteed by any other Person
(other than, in the case of the Company, the Guarantor) or subject to any other
credit enhancement.
"Initial Lender" means each of Citibank, N.A., Credit Suisse First Boston,
acting through its Cayman Islands Branch, and Deutsche Bank AG New York Branch.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Revolving Credit Borrowing, the period commencing on the date of
such Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Company pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Company
pursuant to the provisions below. The duration of each such Interest Period
shall be one, two, three, six or, to the extent available from all the Lenders,
nine months, as the Company may, upon notice received by the Agent not later
than 11:00 AM. (New York City time) on the third Business Day prior to the first
day of such Interest Period, select; provided, however, that:
(1) the Company may not select any Interest Period that ends after the
Termination Date;
(2) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Revolving Credit Borrowing shall be of
the same duration;
(3) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided, however,
that, if such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day; and
(4) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial calendar
month by the number of months equal to the
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number of months in such Interest Period, such Interest Period shall end on
the last Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means the Initial Lenders and each Person that shall become a
party hereto pursuant to Section 8.07.
"LIBO Rate Advances" has the meaning specified in Section 2.03(2).
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor.
"Loan Documents" means, collectively, this Agreement, each promissory note
issued hereunder and each Designation Letter.
"Loan Party" has the meaning specified in Section 4.01.
"Master Bottling Agreement" means the Master Bottling Agreement, dated
March 30, 1999, as amended, between the Company and Pepsi or any successor or
replacement agreement that confers substantially the same benefits on the
Company as the Master Bottling Agreement conferred on the date hereof.
"Material Adverse Change" means any material adverse change in the
financial condition, results of operations or business of the Company and its
Subsidiaries (including the Guarantor), taken as a whole, or the Guarantor and
its Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition, results of operations or business of the Company and its
Subsidiaries (including the Guarantor), taken as a whole, or the Guarantor and
its Subsidiaries, taken as a whole, (b) the rights and remedies of the Agent or
any Lender under this Agreement or any promissory note or (c) the ability of the
Company to perform its obligations under this Agreement or any promissory note.
"Material Subsidiary" means each Subsidiary of the Company which is a
"significant subsidiary" as that term is defined in Rule 1-02(w) of the
Regulation S-X under the Securities Act of 1933, as such rule is in effect as of
the date hereof.
"Mexico" means the United Mexican States.
"Moody's" means Moody's Investors Service, Inc. and any successor thereto.
"Notice of Competitive Bid Borrowing" has the meaning specified in Section
2.03(2).
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"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(1).
"Offering" has the meaning specified in Section 5.05(a).
"PBG Projections" has the meaning specified in Section 3.01(i).
"PBG-Spain" means PBG Grupo Embotellador Hispano-Mexicano, S.L., a newly
formed Spanish limited company and a Controlled Affiliate of the Company.
"Pepsi" means PepsiCo, Inc., a North Carolina corporation.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Principal Property" means any single manufacturing or processing plant,
office building, or warehouse owned or leased by the Company or a Restricted
Subsidiary other than a plant, warehouse, office building, or portion thereof
which, in the opinion of the Company's Board of Directors, is not of material
importance to the business conducted by the Company and its Restricted
Subsidiaries as an entirety.
"Rating" means the rating of the Company's Index Debt by S&P or Moody's,
as the case may be.
"Reference Banks" means the Initial Lenders (and any successors thereof).
"Register" has the meaning specified in Section 8.07(d).
"Regulation S" has the meaning specified in Section 5.05(a).
"Regulation U" has the meaning specified in Section 4.01(g).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means at any time Lenders owed more than 50% of the
then aggregate unpaid principal amount of the Revolving Credit Advances
(excluding Competitive Bid Advances) owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having more than 50% of the aggregate amount
of the Commitments.
"Restricted Subsidiary" means at any time any Subsidiary of the Company
except a Subsidiary which is at the time an Unrestricted Subsidiary.
"Revolving Credit Advance" means an advance by a Lender to the Borrower as
part of a Revolving Credit Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of Revolving Credit
Advance).
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"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by each of the Lenders pursuant
to Section 2.01.
"Rule 144A" has the meaning specified in Section 5.05(a).
"S&P" means Standard & Poor's Rating Services or any successor thereto.
"Securities" has the meaning specified in Section 5.05(a).
"Securities Act" has the meaning specified in Section 5.05(a).
"SPC" has the meaning specified in Section 8.07(e).
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership or
joint venture or (c) the beneficial interest in such trust or estate is at the
time directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Successful Syndication" means any Syndication in which the Commitment of
each Initial Lender shall have been reduced to an amount less than or equal to
10% of the aggregate amount of the Commitments of the Lenders.
"Syndication" has the meaning specified in Section 5.04(a).
"Take-Out Investment Banks" means one or more investment banks selected by
the Loan Parties, in their sole discretion, and reasonably satisfactory to the
Lenders that are to act as lead managers in the Offering.
"Tender Offers" has the meaning specified in the definition of
"Acquisition."
"Termination Date" means April 30, 2003 or, if earlier, the date of
termination in whole of the Commitments pursuant to Section 2.05(a) or 2.10(b)
or 6.01; provided in each case that if any such date is not a Business Day, the
relevant Termination Date of such Lender shall be the immediately preceding
Business Day.
"364-Day Credit Agreement" means the 364-Day Credit Agreement, dated as of
May 3, 2000, as amended from time to time, among The Pepsi Bottling Group, Inc.,
Bottling Group, LLC, the Lenders named therein and JPMorgan Chase Bank, as
Agent.
"Type" has the meaning specified in the definition of "Revolving Credit
Advance."
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"Unrestricted Subsidiary" means any Subsidiary of the Company (not at the
time designated a Restricted Subsidiary) other than the Guarantor (i) the major
part of whose business consists of finance, banking, credit, leasing, insurance,
financial services, or other similar operations, or any continuation thereof,
(ii) substantially all the assets of which consist of the capital stock of one
or more such Subsidiaries, or (iii) designated as such by the Company's Board of
Directors. Any Subsidiary designated as a Restricted Subsidiary may be
designated as an Unrestricted Subsidiary.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar actions) of such Person, even if the right so to vote
has been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with GAAP; provided that, if the
Company notifies the Agent that the Company wishes to amend any provisions
hereof to eliminate the effect of any change in GAAP (or if the Agent notifies
the Company that the Required Lenders wish to amend any provision hereof for
such purpose), then such provision shall be applied on the basis of GAAP in
effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such provision is amended in a manner
satisfactory to the Company and the Required Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Revolving Credit
Advances to the Company from time to time on any Business Day during the period
from the Effective Date until the Termination Date in an aggregate amount not to
exceed at any time outstanding the amount set forth opposite such Lender's name
on the signature pages hereof or, if such Lender has entered into any Assignment
and Acceptance, set forth for such Lender in the Register maintained by the
Agent pursuant to Section 8.07(c), as such amount may be reduced pursuant to
Section 2.05(a) or 2.10(b) (such Lender's "Commitment"), provided that the
aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof (or, if less, (i) an aggregate amount equal to
the amount by which the aggregate amount of a proposed Competitive Bid Borrowing
requested by the Company exceeds the aggregate amount of
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Competitive Bid Advances offered to be made by the Lenders and accepted by the
Company in respect of such Competitive Bid Borrowing, if such Competitive Bid
Borrowing is made on the same date as such Revolving Credit Borrowing or (ii)
the aggregate amount of the unused Commitments, after giving effect to any
Competitive Bid Reductions then in effect) and shall consist of Revolving Credit
Advances of the same Type made on the same day by the Lenders ratably according
to their respective Commitments. Within the limits of each Lender's Commitment,
the Borrower may borrow under this Section 2.01, prepay pursuant to Section
2.10(a) and reborrow under this Section 2.01. Amounts prepaid pursuant to
Section 2.10(b) may not be reborrowed.
SECTION 2.02. Making the Revolving Credit Advances.
(1) Each Revolving Credit Borrowing shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Revolving Credit Borrowing in the case
of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, or
the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by the Company
to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit Borrowing (a
"Notice of Revolving Credit Borrowing") shall be by telecopier or telex,
confirmed promptly in writing, in substantially the form of Exhibit A-1
hereto, specifying therein the requested (i) date of such Revolving Credit
Borrowing, (ii) Type of Advances comprising such Revolving Credit Borrowing,
(iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in the
case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances,
initial Interest Period for each such Revolving Credit Advance. Each Lender
shall, before 11:00 A.M. (New York City time), in the case of a Revolving
Credit Borrowing consisting of Eurodollar Rate Advances, or before 1:00 P.M.
(New York City time), in the case of a Revolving Credit Borrowing consisting
of Base Rate Advances, on the date of such Revolving Credit Borrowing, make
available for the account of its Applicable Lending Office to the Agent at
the Agent's Account, in same day funds, such Lender's ratable portion of such
Revolving Credit Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such same day funds available to the Borrower at the Borrower's
account at the Agent's address referred to in Section 8.02.
(2) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Company may not select Eurodollar Rate Advances for any Revolving Credit
Borrowing if the aggregate amount of such Revolving Credit Borrowing is less
than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more than six
separate Revolving Credit Borrowings.
(3) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Revolving Credit Borrowing that
the related Notice of Revolving Credit Borrowing specifies is to be comprised
of Eurodollar Rate Advances, the Company shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a result of any failure
to fulfill on or before the date specified
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in such Notice of Revolving Credit Borrowing for such Revolving Credit
Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such Lender as part
of such Revolving Credit Borrowing when such Revolving Credit Advance, as a
result of such failure, is not made on such date.
(4) Unless the Agent shall have received notice from a Lender prior to
the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Agent, such Lender and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount
is repaid to the Agent, at, (i) in the case of the Borrower, the interest
rate applicable at the time to Revolving Credit Advances comprising such
Revolving Credit Borrowing, and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Revolving Credit
Advance as part of such Revolving Credit Borrowing for purposes of this
Agreement and shall be made available in same day funds to the Borrower's
account at the Agent's address referred to in Section 8.02.
(5) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving
Credit Advance on the date of such Revolving Credit Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances.
(1) Each Lender severally agrees that the Borrower may make Competitive
Bid Borrowings under this Section 2.03 from time to time on any Business Day
during the period from the date hereof until the date occurring 7 days prior
to the Termination Date in the manner set forth below; provided that,
following the making of each Competitive Bid Borrowing, the aggregate amount
of the Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
(2) The Company may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier or telex, confirmed
promptly in writing, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit A-2 hereto,
specifying therein (v) the date of such
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proposed Competitive Bid Borrowing, (w) the aggregate amount of such proposed
Competitive Bid Borrowing, (x) the maturity date for repayment of each
Competitive Bid Advance to be made as part of such Competitive Bid Borrowing
(which maturity date may not be earlier than the date occurring 7 days after the
date of such Competitive Bid Borrowing or later than the Termination Date), (y)
the interest payment date or dates relating thereto, and (z) any other terms to
be applicable to such Competitive Bid Borrowing, not later than 10:00 A.M. (New
York City time) (A) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if the Company shall specify in the Notice of
Competitive Bid Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed Rate Advances") and
(B) at least four Business Days prior to the date of the proposed Competitive
Bid Borrowing, if the Company shall instead specify in the Notice of Competitive
Bid Borrowing another basis to be used by the Lenders in determining the rates
of interest to be offered by them (the Advances comprising such Competitive Bid
Borrowing being referred to herein as "LIBO Rate Advances"). The Agent shall in
turn promptly notify each Lender of each request for a Competitive Bid Borrowing
received by it from the Company by sending such Lender a copy of the related
Notice of Competitive Bid Borrowing.
(3) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the Borrower
as part of such proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by notifying the Agent
(which shall give prompt notice thereof to the Company), before 10:00 A.M. (New
York City time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances and three
Business Days before the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances, of the
minimum amount and maximum amount of each Competitive Bid Advance which such
Lender would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the proviso to the first sentence of
this Section 2.03(1), exceed such Lender's Commitment, if any), the rate or
rates of interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if the Agent in its
capacity as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify the Company of such offer before 9:00 A.M. (New York City
time) on the date on which notice of such election is to be given to the Agent
by the other Lenders. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Agent, before 10:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid Borrowing; provided that
the failure by any Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(4) The Company shall, in turn, before 11:00 A.M. (New York City time) on
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before 1:00 P.M.
(New York City
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time) three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent notice
to that effect, or
(y) accept one or more of the offers made by any Lender or Lenders
pursuant to paragraph (3) above, by giving notice to the Agent of the
amount of each Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the maximum
amount, notified to the Company by the Agent on behalf of such Lender for
such Competitive Bid Advance pursuant to paragraph (3) above) to be made
by each Lender as part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (3) above by giving
the Agent notice to that effect. If the Company accepts any offers made by
Lenders pursuant to paragraph (3) above, such offers shall be accepted in
the order of the lowest to highest interest rates or, if two or more
Lenders offer to make Competitive Bid Advances at the same interest rate,
such offers, if any, shall be accepted in proportion to the amount offered
by each such Lender at such interest rate notwithstanding any minimum
specified by such Lender in its notice given pursuant to Section 2.03(3).
The Company may not accept offers in excess of the amount specified in
accordance with paragraph (1) above.
(5) If the Company notifies the Agent that such Competitive Bid Borrowing
is cancelled pursuant to paragraph (4)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall not be
made.
(6) If the Company accepts one or more of the offers made by any Lender or
Lenders pursuant to paragraph (4)(y) above, the Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in paragraph (3)
above, of the date and aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Lender pursuant to paragraph (3)
above have been accepted by the Company, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of the amount
of each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that the Agent
has received forms of documents appearing to fulfill the applicable conditions
set forth in Article III. Each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing shall, before 12:00 noon (New York
City time) on the date of such Competitive Bid Borrowing specified in the notice
received from the Agent pursuant to clause (A) of the preceding sentence or any
later time when such Lender shall have received notice from the Agent pursuant
to clause (C) of the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's portion of such Competitive Bid Borrowing. Upon fulfillment
of the applicable conditions set forth in Article III and after receipt by the
Agent of such funds, the Agent will make such same day funds available to the
Borrower at the Borrower's account at the Agent's address
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referred to in Section 8.02. Promptly after each Competitive Bid Borrowing, the
Agent will notify each Lender of the amount of the Competitive Bid Borrowing,
the consequent Competitive Bid Reduction and the dates upon which such
Competitive Bid Reduction commenced and will terminate.
(a) Each Competitive Bid Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Company shall be in
compliance with the limitation set forth in the proviso to the first sentence of
paragraph (1) above.
(b) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (c) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(c) The Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance to the Borrower, on the maturity
date of such Competitive Bid Advance (such maturity date being that specified by
the Company for repayment of such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to paragraph (2) above and
provided in the promissory note, if any, evidencing such Competitive Bid
Advance), the then unpaid principal amount of such Competitive Bid Advance.
Except as required by Section 2.10(b), the Borrower shall not have any right to
prepay any principal amount of any Competitive Bid Advance unless (x) the
Borrower obtains the prior written consent of the Lender which made such
Competitive Bid Advance, or (y) such prepayment is made on the terms specified
by the Company for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to paragraph (2) above and set
forth in the promissory note, if any, evidencing such Competitive Bid Advance.
(d) The Borrower shall pay interest on the unpaid principal amount
of each Competitive Bid Advance to each Lender making such Competitive Bid
Advance from the date of such Competitive Bid Advance to the date the principal
amount of such Competitive Bid Advance is repaid in full, at the rate of
interest for such Competitive Bid Advance specified by the Lender making such
Competitive Bid Advance in its notice with respect thereto delivered pursuant to
paragraph (3) above, payable on the interest payment date or dates specified by
the Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to paragraph (2) above and as
provided in the promissory note, if any, evidencing such Competitive Bid
Advance.
(e) At its option, the Company may request a Competitive Bid
Borrowing directly from the Lenders; provided that it follows the procedures set
forth in this Section 2.03 and promptly delivers, by telecopier or telex, a copy
of the Notice of Competitive Bid Borrowing and notice in writing of the results
of such request to the Agent.
(f) The indebtedness of the Borrower resulting from each Competitive
Bid Advance made to the Borrower as part of a Competitive Bid Borrowing shall,
if requested by the
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applicable Lender, be evidenced by a separate promissory note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees.
(a) Facility Fee. The Company agrees to pay to the Agent for the
account of each Lender a facility fee on the aggregate amount of such Lender's
Commitment irrespective of usage accruing (i) in the case of each Initial Lender
from and after the 41st day after the Execution Date and (ii) in the case of any
other Lender from and after the later of (x) the 41st day after the Execution
Date and (y) the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender, in each case until the Termination Date
(on a daily basis) at the Applicable Margin, payable in arrears on the last day
of each March, June, September and December, commencing December 31, 2002, and
ending on the Termination Date; provided, however, that if (i) there has not
been an Advance during the 40-day period following the Execution Date and (ii)
the Borrower has terminated the Commitments in whole under Section 2.05(a)
effective on or prior to the 40th day following the Execution Date, no facility
fee shall be due and payable.
(b) Agent's Fees. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Company and the
Agent.
(c) Usage Fees. The Company shall pay to the Agent for the account
of each Lender, a usage fee of 10 basis points per annum on the amount of such
Lender's Commitment for each day on which the outstanding amount of the Advances
exceeds 33 1/3% of the aggregate Commitments from the Effective Date in the case
of each Initial Lender and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Termination Date (on a daily basis) payable in arrears on the
last day of each March, June, September and December commencing December 31,
2002 and ending on the Termination Date.
SECTION 2.05. Termination, Reduction or Increase of the Commitments.
(a) The Company shall have the right, upon at least three Business
Days' notice (or one Business Day's notice if there have been no Advances) to
the Agent, to terminate in whole or reduce ratably in part the unused portions
of the respective Commitments of the Lenders, provided that each partial
reduction shall be in the aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof and provided further that (x) the aggregate
amount of the Commitments of the Lenders shall not be reduced to an amount that
is less than the aggregate principal amount of the Competitive Bid Advances then
outstanding, and (y) once terminated, a portion of a Commitment shall not be
reinstated.
(b) If any Lender shall make a demand under Section 2.11 or 2.14 or
if the obligation of any Lender to make Eurodollar Rate Advances shall have been
suspended pursuant to Section 2.12, the Company shall have the right, upon at
least ten Business Days' notice, to terminate in full the Commitment of such
Lender or to demand that such Lender assign to one or more Persons all of its
rights and obligations under this Agreement in accordance with Section 8.07. If
the Company shall elect to terminate in full the Commitment of any Lender
pursuant to
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this Section 2.05(b), the Company shall pay to such Lender, on the effective
date of such Commitment termination, an amount equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, whereupon such Lender
shall cease to be a party hereto.
SECTION 2.06. Repayment of Revolving Credit Advances; Evidence of
Indebtedness.
(a) The Company shall repay to the Agent for the ratable account of
the Lenders on the Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder. The Agent shall maintain accounts in which it shall record (i) the
amount of each Advance made hereunder, the Type thereof and the Interest Period,
if any, applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Agent hereunder for the account
of the Lenders and each Lender's share thereof. The entries made in the accounts
maintained pursuant to this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Advances in accordance with the terms of this Agreement. Any Lender may
request that Advances made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by the
Agent. Thereafter, the Advances evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 8.07)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.07. Interest on Revolving Credit Advances. Each Borrower
shall pay interest on the unpaid principal amount of each Revolving Credit
Advance made to such Borrower owing to each Lender from the date of such
Revolving Credit Advance until such principal amount shall be paid in full, at
the following rates per annum:
(a) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears on the last day of each
March, June, September and December during such periods and on the date such
Base Rate Advance shall be Converted or paid in full.
(b) Eurodollar Rate Advances. During such periods as such Revolving
Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at all times
during each Interest
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Period for such Revolving Credit Advance to the sum of (x) the Eurodollar Rate
for such Interest Period for such Revolving Credit Advance plus (y) the
Applicable Margin, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
SECTION 2.08. Interest Rate Determination.
(a) If the Eurodollar Rate does not appear on Page 3750 of the
Telerate Service (or any successor page), each Reference Bank agrees to furnish
to the Agent timely information for the purpose of determining each Eurodollar
Rate. If the Eurodollar Rate does not appear on said Page 3750 (or any successor
page), and if any one or more of the Reference Banks shall not furnish such
timely information to the Agent for the purpose of determining any such interest
rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Agent shall give
prompt notice to the Company and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.07, and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.07(b).
(b) If, due to a major disruption in the interbank funding market
with respect to any Eurodollar Rate Advances, the Required Lenders notify the
Agent that the Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Interest Period,
the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i)
each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and (ii)
the obligation of the Lenders to make, or to Convert Revolving Credit Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Company and the Lenders that the circumstances causing such suspension no
longer exist.
(c) If the Company shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Company, and the Lenders and the Company will be deemed
to have selected an Interest Period of one month.
(d) If the aggregate unpaid principal amount of Eurodollar Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advances shall automatically Convert
into Base Rate Advances on the last day of the Interest Period applicable
thereto.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance,
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
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(f) If the Eurodollar Rate does not appear on Page 3750 of the
Telerate Service (or any successor page) and fewer than two Reference Banks
furnish timely information to the Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Company and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended until
the Agent shall notify the Company and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Company may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances of one Type comprising the same Borrowing
into Revolving Credit Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(2) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(2). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Revolving Credit Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Company.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances and
Mandatory Prepayments of all Advances.
(a) The Company may, upon notice not later than 11:00 A.M. (New York
City time) on the date of such payment, in the case of Base Rate Advances, and
two Business Days' notice, in the case of Eurodollar Rate Advances, to the Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding principal
amount of the Revolving Credit Advances comprising part of the same Revolving
Credit Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate Advance, the Company shall
be obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(d).
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(b)(i) Concurrently with the receipt by the Borrower, the Guarantor
or any of their respective Controlled Affiliates (collectively, the
"Borrower Group") of Capital Markets Proceeds or Asset Sales Proceeds
(either, the "Available Proceeds"), the Company shall deliver to the Agent
a calculation of the amount of such Available Proceeds (including an
itemization of any deductions from gross proceeds) and shall prepay the
outstanding principal amount of the Advances ratably in an amount equal to
such Available Proceeds and, to the extent the amount of such Available
Proceeds exceeds the outstanding principal amount of the Advances, the
unused portions of the respective Commitments of the Lenders shall be
reduced ratably; provided, however, that the Commitments of the Lenders
shall be reduced to zero immediately upon the consummation of the
Offering.
(ii) The Company shall use its reasonable efforts to notify the
Agent of any prepayment or reduction of Commitments pursuant to subsection
(b) of this Section 2.10 at least two Business Days prior to such
prepayment or reductions.
(iii) All prepayments pursuant to this Section 2.10(b) shall be
accompanied by interest accrued to the date of prepayment on the principal
amount so prepaid, which amount shall be applied to payment of interest
before application to principal. In the event any such prepayment is
applicable to a Eurodollar Rate Advance, the Borrower shall be obligated
to reimburse the Lenders in respect thereof pursuant to Section 8.04(d).
SECTION 2.11. Increased Costs.
(a) If, due to either (i) the introduction of or any change in any
law or regulation or in the interpretation or administration of any law or
regulation by any governmental authority charged with the interpretation or
administration thereof or (ii) the compliance with any guideline or request from
any central bank or other governmental authority that would be complied with
generally by similarly situated banks acting reasonably (whether or not having
the force of law), in each case on or after the date hereof, there shall be any
increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances or LIBO Rate Advances by an amount deemed
by such Lender to be material, then the Company shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Company and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error. Notwithstanding
the foregoing, no Lender shall be entitled to request compensation under this
paragraph with respect to any Competitive Bid Advance if the change giving rise
to such request was applicable to such Lender at the time of submission of such
Lender's offer to make such Competitive Bid Advance.
(b) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) compliance with any
guideline or request from any central bank or other governmental or regulatory
authority which becomes effective after the date hereof, there shall be any
increase in the amount of capital required or expected to be maintained by any
Lender or any corporation controlling such Lender and the amount of such capital
is increased by or based upon the existence of such Lender's Advances or
commitment to lend hereunder and
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other commitments of this type by an amount deemed by such Lender to be
material, then, upon demand by such Lender (with a copy of such demand to the
Agent), the Company shall pay to the Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances,
to the extent that such Lender reasonably determines such increase in capital to
be allocable to the existence of such Lender's Advances or commitment to lend
hereunder. A certificate as to such amounts submitted to the Company and the
Agent by such Lender shall be conclusive and binding for all purposes as to the
calculations therein, absent manifest error. Such certificate shall be in
reasonable detail and shall certify that the claim for additional amounts
referred to therein is generally consistent with such Lender's treatment of
similarly situated customers of such Lender whose transactions with such Lender
are similarly affected by the change in circumstances giving rise to such
payment, but such Lender shall not be required to disclose any confidential or
proprietary information therein.
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent (and provide to the Company
an opinion of counsel to the effect) that the introduction of or any change in
or in the interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
such Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or LIBO Rate Advances or to fund or
maintain Eurodollar Rate Advances or LIBO Rate Advances hereunder, (i) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be, of such Lender
will automatically, upon such demand, Convert into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.07(a), as the
case may be, and (ii) the obligation of such Lender to make, or to Convert
Revolving Credit Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Company and such Lender that the circumstances
causing such suspension no longer exist and such Lender shall make the Base Rate
Advances in the amount and on the dates that it would have been requested to
make Eurodollar Rate Advances had no such suspension been in effect.
SECTION 2.13. Payments and Computations.
(a) The Borrower shall make each payment hereunder not later than
11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Agent
at the Agent's Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees or usage fees ratably (other than amounts payable
pursuant to Section 2.03, 2.04(b), 2.05(b), 2.11, 2.14 or 8.04(d)) to the
Lenders for the account of their respective Applicable Lending Offices and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
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(b) All computations of interest based on the Base Rate and of
facility fees and of usage fees shall be made by the Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the Eurodollar Rate or the Federal Funds Rate shall be made by the
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or facility fees or usage fees are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or facility fee or usage fee, as the case may
be; provided, however, that, if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances or LIBO Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(d) Unless the Agent shall have received notice from the Company
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due to such Lender. If and to
the extent the Borrower shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes.
(a) Each Lender is exempt from any withholding imposed under the
laws of the United States in respect of any fees, interest or other payments to
which it is entitled pursuant to this Agreement or any promissory notes issued
hereunder (the "Income") because (i) the Lender is organized under the laws of
the United States; (ii) the Income is effectively connected with the conduct of
a trade or business within the United States within the meaning of Section 871
of the Internal Revenue Code; or (iii) the Income is eligible for an exemption
by reason of a tax treaty. The Agent is exempt from any withholding tax imposed
under the laws of the United States in respect of the Income because the Agent
is organized under the laws of the United States.
(b) Each Lender organized under the laws of a jurisdiction outside
the United States (each, a "Foreign Lender") shall, on or prior to the date of
its execution and delivery of this Agreement in the case of each Initial Lender
and on the date of the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Foreign Lender and from time to time thereafter
if requested in writing by the Borrower or the Agent, provide the Agent and the
Borrower with Internal Revenue Service Form W-8BEN or W-8ECI, as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that such Foreign Lender is exempt or entitled to a reduced rate of
United States withholding tax on any Income that is the subject of such forms.
If the form provided by a Foreign Lender at the time such Foreign Lender first
becomes a party to this Agreement
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indicates a United States interest withholding tax rate in excess of zero, or in
excess of the rate applicable to the Foreign Lender assignor on the date of the
Assignment and Acceptance pursuant to which it became a Foreign Lender, in the
case of each other Foreign Lender, withholding tax at such rate shall be
considered excluded from Taxes as defined in Section 2.14(c).
(c) Based on Section 2.14(a) and (b), any and all payments by the
Borrower hereunder or under any promissory notes issued hereunder shall be made
free and clear of and without deduction for any present United States federal
income withholding taxes imposed on a Foreign Lender under the Internal Revenue
Code (such withholding taxes being hereinafter referred to as "Taxes").
(d) If, as a result of the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any United States law or any
tax treaty (or in the application or official interpretation of any law or any
tax treaty) that occurs on or after the date a Foreign Lender first becomes a
party to this Agreement (a "Change in Law"), a Foreign Lender cannot comply with
Section 2.14(b) or, if despite such compliance, the Borrower shall be required
to deduct any Taxes from or in respect of any Income, then: (i) the sum payable
to such Foreign Lender shall be increased as may be necessary so that, after
making all required deductions for such Taxes (including deductions applicable
to additional sums payable under this Section 2.14), such Foreign Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. Notwithstanding
the foregoing, the Borrower shall be entitled to pay any Taxes in any lawful
manner so as to reduce any deductions and such Foreign Lender shall to the
extent it is reasonably able provide any documentation or file any forms as may
be required by the Internal Revenue Service or any other foreign governmental
agency. In addition, if any Foreign Lender or the Agent (in lieu of such Foreign
Lender), as the case may be, is required to pay directly any Taxes as a result
of a Change in Law because the Borrower cannot or does not legally or timely do
so, the Borrower shall indemnify such Foreign Lender or Agent for payment of
such Taxes, without duplication of, or increase in, the amount of Taxes
otherwise due to the Foreign Lender.
(e) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (excluding any income or franchise taxes, business taxes or
capital taxes of any nature) that arise from the execution, delivery or
registration of, or otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes"). If a Lender is required to pay directly Other
Taxes because the Borrower cannot or does not legally or timely do so, the
Borrower shall indemnify such Lender for such payment of Other Taxes.
(f) Within 30 days after the date of any payment of Taxes or foreign
withholding taxes, the Borrower shall furnish to the Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof. Prior to making any payment hereunder by or on
behalf of the Borrower through an account or branch outside the United States or
on behalf of the Borrower by a payor that is not a United States person (a
"Foreign Payment"), the Borrower shall determine that no foreign withholding
taxes are payable
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in respect thereof, and at its expense, shall furnish, or shall cause such payor
to furnish, to the Agent, at such address, a certificate from each appropriate
taxing authority, or an opinion of counsel acceptable to the Agent, in either
case stating that such Foreign Payment is exempt from or not subject to foreign
withholding taxes. Each Lender shall cooperate with the Borrower's efforts
described in this subsection by providing to the extent reasonably within its
means any forms requested by the Borrower substantiating an exemption from
foreign withholding taxes required by any governmental agency. For purposes of
this subsection (f), the terms "United States" and "United States person" shall
have the meaning specified in Section 7701 of the Internal Revenue Code. If, as
a result of the enactment, promulgation, execution or ratification of, or any
change in or amendment to, any applicable foreign law or any tax treaty (or in
the application or official interpretation of any law or any tax treaty) that
occurs on or after the date a tax opinion is rendered pursuant to the terms of
this subsection, and which renders such tax opinion incorrect as to the absence
of any foreign withholding tax (a "Foreign Change in Law"), the Borrower shall
be required to deduct any foreign withholding taxes from or in respect of any
Income, then: (i) the sum payable to the applicable Lender shall be increased as
may be necessary so that after making all required deductions for foreign
withholding taxes (including deductions applicable to additional sums payable
under this Section 2.14) such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
Notwithstanding the foregoing, the Borrower shall be entitled to pay any foreign
withholding taxes in any lawful manner so as to reduce any deductions and such
Lender shall to the extent it is reasonably able provide any documentation or
file any forms as may be required by the Internal Revenue Service or any other
foreign governmental agency. In addition, if any Lender is required to pay
directly any foreign withholding tax in respect of any Foreign Payments made
pursuant to this Agreement because the Borrower cannot or does not legally or
timely do so, the Borrower shall indemnify such Lender for payment of such tax.
(g) For any period with respect to which a Lender has failed to
comply with the requirements of subsection (b) or (f) relating to certain forms
intended to reduce withholding taxes (other than if such failure is due to a
Change in Law or a Foreign Change in Law), such Lender shall not be entitled to
indemnification under subsection (d) or (f).
(h) Upon a Change in Law or the imposition of any foreign
withholding tax in respect of Foreign Payments, a Lender shall, upon the written
request of and at the expense of the Borrower, use reasonable efforts to change
the jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such taxes that may
thereafter accrue and would not, in the reasonable judgment of such Lender,
cause the imposition on such Lender of any material legal or regulatory burdens.
(i) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.14 shall survive the payment in full of principal and interest
hereunder until the applicable statute of limitations relating to the payment of
any Taxes under Section 2.14(d) has expired.
(j) Any request by any Lender for payment of any amount under this
Section 2.14 shall be accompanied by a certification that such Lender's claim
for said amount is generally
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consistent with such Lender's treatment of similarly situated customers of such
Lender whose transactions with such Lender are similarly affected by the change
in circumstances giving rise to such payment, but such Lender shall not be
required to disclose any confidential or proprietary information therein.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.05(b), 2.11, 2.14 or 8.04(d)) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
used solely (and the Borrower agrees that such proceeds shall be used solely) to
finance the Acquisition, to refinance Debt incurred by the Borrower in
connection therewith, and to pay fees and expenses in connection therewith.
SECTION 2.17. [Intentionally Omitted]
SECTION 2.18. Mitigation Obligations. If any Lender requests
compensation under Section 2.11, or if the obligation of any Lender to make or
continue Advances as, or Convert Advances into, Eurodollar Rate Advances is
suspended pursuant to Section 2.12, then, upon the written request of the
Company, such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designations or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.11 or would
cause such Lender not to be subject to such suspension, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not, in the reasonable judgment of such Lender, cause
imposition on such Lender of any material legal or regulatory burdens or
otherwise be disadvantageous to such Lender. The Company hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND ARTICLE II
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied; provided that the Effective Date shall be no
later than December 31, 2002:
(a) As of the Effective Date, there shall have occurred no Material
Adverse Change since December 29, 2001;
(b) As of the Effective Date, there shall exist no action, suit,
investigation, litigation or proceeding affecting the Company, or any of its
Subsidiaries (including the Guarantor) pending or, to the knowledge of the
Company's or the Guarantor's executive officers, threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) could reasonably be likely to affect the
legality, validity or enforceability of this Agreement or the consummation of
the transactions contemplated hereby;
(c) [Intentionally Omitted]
(d) As of the Effective Date, all governmental and third party
consents and approvals required to be obtained by the Loan Parties and their
respective Affiliates necessary in connection with the Acquisition and the other
transactions contemplated hereby shall have been obtained (without the
imposition of any material conditions that are not reasonably acceptable to the
Lenders) and shall remain in effect, except that the filings made with the
Commission in respect of the Tender Offers shall be subject to the Commission's
review;
(e) As of the Effective Date, the Company shall have paid all
accrued fees and expenses of the Agent and the Lenders (including the accrued
fees and expenses of counsel to the Agent, to the extent invoiced at least one
Business Day prior to the Effective Date);
(f) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Company dated the Effective Date,
stating that:
(i) The representations and warranties contained in Section 4.01 are
correct in all material aspects on and as of the Effective Date;
(ii) All information with respect to the Borrower, the Guarantor and
their respective Subsidiaries (excluding information with respect to Gemex
and its Subsidiaries that has been made available to any of the Lenders or
the Arrangers by the Borrower or the Guarantor or any of the Borrower's or
Guarantor's respective representatives prior to the time Gemex and its
Subsidiaries become Subsidiaries of the Company), other than the PBG
Projections, that has been made available to any of the Lenders or the
Arrangers by the Borrower or the Guarantor or any of the Borrower's or
Guarantor's respective representatives is complete and correct in all
material respects and does not contain any
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untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not materially
misleading in light of the circumstances under which such statements were
made;
(iii) The PBG Projections that have been made available to any of
the Lenders or the Arrangers by the Borrower or the Guarantor or any of
the Borrower's or Guarantor's respective representatives were prepared in
good faith based upon assumptions that were reasonable at the time made,
at the time the related PBG Projections were made available to any of such
Lenders or Arrangers and at the time of the Effective Date; and
(iv) No event has occurred and is continuing that constitutes a
Default;
(g) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to the
Agent and (except for any notes requested by the Lenders) in sufficient copies
for each Lender:
(i) To the extent any Lender shall have requested, at least one
Business Day prior to the Effective Date that its Revolving Credit
Advances be evidenced by a promissory note, a note payable to the order of
such Lender,
(ii) Certified copies of the resolutions of the Board of Directors
of the Company and of the Guarantor approving this Agreement and the
Acquisition, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this Agreement
and the Acquisition,
(iii) A certificate of the Secretary or an Assistant Secretary of
the Company certifying the names and true signatures of the officers of
the Company authorized to sign this Agreement and the other documents to
be delivered hereunder,
(iv) A certificate of a Managing Director of the Guarantor
certifying the names and true signatures of the officers of the Guarantor
authorized to sign this Agreement and the other documents to be delivered
hereunder,
(v) Opinions of Steven M. Rapp, Senior Deputy General Counsel to
each of the Company and the Guarantor, substantially in the form of
Exhibit C hereto and as to such other matters as any Lender through the
Agent may reasonably request,
(vi) Opinions of Proskauer Rose LLP, special New York counsel to
each of the Company and the Guarantor, dated the Effective Date, in form
and substance reasonably satisfactory to the Lenders,
(vii) An opinion of Inigo Madariaga, Esq., special Spanish counsel
to PBG-Spain, dated the Effective Date, in form and substance reasonably
satisfactory to the Lenders,
(viii) An opinion of Creel, Garcia-Cuellar y Muggenburg, S.C.,
special Mexican counsel to PBG-Spain, in form and substance reasonably
satisfactory to the Lenders,
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(ix) A favorable opinion of Cleary, Gottlieb, Steen & Hamilton,
special New York counsel to the Agent, dated the Effective Date, in form
and substance reasonably satisfactory to the Lenders,
(x) Certified copies of the resolutions of the Board of Directors of
PBG-Spain approving the Acquisition, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with
respect to the Acquisition,
(xi) The Agent shall have received such other approvals, opinions or
documents (including the Acquisition Documents and copies of other
material definitive documentation satisfactory to the Agent in connection
with the Acquisition, all of the conditions to the effectiveness of which
shall have been satisfied or waived; provided that a waiver of any
material condition shall be reasonably acceptable to the Lenders) as any
Lender through the Agent may reasonably request;
(h) As of the Effective Date, in the reasonable judgment of the
Lenders and Arrangers, there are no competing issues of debt securities or
commercial bank or other credit facilities of the Company or its Subsidiaries or
of the Guarantor or its Subsidiaries being offered, placed or arranged (other
than the Securities and as otherwise provided herein);
(i) As of the Effective Date, each of the Lenders and the Arrangers
shall have received all information with respect to the Company, the Guarantor
and their respective Subsidiaries, including all financial information and
projections (the "PBG Projections"), as each of the Lenders and the Arrangers
may have reasonably requested;
(j) As of the Effective Date, the Company shall have provided to
each of the Lenders and the Arrangers all information with respect to Gemex and
its respective Subsidiaries, including all financial information and
projections, that the Company has possessed or could have reasonably formulated
or to which the Company has had reasonable access from Gemex or its
Subsidiaries, as each of the Lenders may have reasonably requested in connection
with the Syndication; provided that the provision by the Company of such
information would not have violated a prior confidentiality agreement with
Gemex;
(k) As of the Effective Date, each of the Lenders and the Arrangers
shall not have discovered or otherwise become aware of any information not
previously disclosed to them that such Lender or Arranger believes to be
inconsistent in a material and adverse manner with its understanding, based on
the information provided to it by the Company, of the business, assets,
operations or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole, or the Guarantor and its Subsidiaries, taken as
a whole;
(l) As of the Effective Date, each of the Lenders and the Arrangers
shall have become satisfied in all material respects with (i) the terms of the
Acquisition, including without limitation its corporate and legal structure,
(ii) the tax consequences to the Company, the Guarantor and their respective
Subsidiaries, and (iii) the accounting with respect to the Acquisition by the
Company, the Guarantor and their respective Subsidiaries; and
(m) On the Effective Date, the Agent shall have received for the
account of each Lender a certificate signed by the Treasurer of the Company,
dated the Effective Date,
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demonstrating to the reasonable satisfaction of the Lenders that, following
application of the proceeds of each Advance, not more than 25 percent of the
value of the assets (either of the Company and its relevant Subsidiaries or the
Guarantor and its relevant Subsidiaries, in each case on a Consolidated basis)
subject to the provisions of any of Section 2.10(b) or 5.02(a) or (b)(ii) or
subject to any restriction contained in any agreement or instrument between it
and any Lender or any Affiliate of any Lender relating to Debt and within the
scope of Section 6.01(d) will be "margin stock" as defined in Regulation U.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by the Company that on
the date of such Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection (e)
thereof and in subsection (f) thereof (other than clause (ii) thereof)) are
correct in all material respects on and as of the date of such Revolving Credit
Borrowing, before and after giving effect to such Revolving Credit Borrowing and
to the application of the proceeds therefrom, as though made on and as of such
date, and
(ii) No event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, and (ii)
on the date of such Competitive Bid Borrowing, the following statements shall be
true (and each of the giving of the applicable Notice of Competitive Bid
Borrowing and the acceptance by the Borrower of the proceeds of such Competitive
Bid Borrowing shall constitute a representation and warranty by the Company that
on the date of such Competitive Bid Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection (e)
thereof and in subsection (f) thereof (other than clause (ii) thereof)) are
correct in all material respects on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid Borrowing and
to the application of the proceeds therefrom, as though made on and as of such
date; and
(b) No event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
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SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the proposed Effective
Date, as notified by the Company to the Lenders, specifying its objection
thereto. The Agent shall promptly notify the Lenders of the occurrence of the
Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES
SECTION 4.01. Representations and Warranties of the Loan Parties.
Each of the Company and the Guarantor (each, a "Loan Party") represents and
warrants as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the Guarantor
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by each Loan Party of
this Agreement and the consummation of the transactions contemplated hereby are
within such Loan Party's powers, have been duly authorized by all necessary
corporate or other action and do not contravene (i) its charter, by-laws or
other organizational documents or (ii) any law or contractual restriction
binding on or materially affecting such Loan Party.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
either Loan Party of this Agreement or the consummation of the Acquisition.
(d) This Agreement has been duly executed and delivered by each Loan
Party. This Agreement is the legal, valid and binding obligation of each Loan
Party enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and equitable principles of general applicability.
(e) The combined balance sheet of the Company as at December 29,
2001, and the related combined statements of operations and cash flows of the
Company for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, fairly present the financial condition of the
Company as at such date and the results of the operations of the Company for the
period ended on such date, all in accordance with generally accepted accounting
principles consistently applied. Since December 29, 2001, there has been no
Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding affecting either Loan Party before any court,
governmental agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) would reasonably be
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likely to affect the legality, validity or enforceability of this Agreement or
any promissory note issued under this Agreement, if any, or the consummation of
the transactions contemplated hereby.
(g) It is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System ("Regulation
U")), and no proceeds of any Advance will be used to purchase or carry any
"margin stock," as defined in Regulation U, or to extend credit to others for
the purpose (whether immediate, individual or ultimate) of purchasing or
carrying any margin stock, in either case in a manner that would cause the
Advances or any Lender to be in violation of Regulation U.
(h) Following application of the proceeds of each Advance, not more
than 25 percent of the value of the assets (either of the Borrower only or of
the Company and its relevant Subsidiaries or the Guarantor and its relevant
Subsidiaries, in the latter two cases on a Consolidated basis) subject to the
provisions of any of Section 2.10(b) or 5.02(a) or (b)(ii) or subject to any
restriction contained in any agreement or instrument between it and any Lender
or any Affiliate of any Lender relating to Debt and within the scope of Section
6.01(d) will be margin stock.
(i) Neither Loan Party is an "investment company," a company
"controlled by," or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended. Neither the making of any Advances nor the application of the proceeds
or repayment thereof by the Borrower will violate any provision of such Act or
any rule, regulation or order of the Commission thereunder.
(j) The proceeds of the Advances shall be used solely (and the
Borrower agrees that such proceeds shall be used solely) to finance the
Acquisition, to refinance Debt incurred by the Borrower in connection therewith,
and to pay fees and expenses in connection therewith.
(k) As of the Effective Date, none of Alfred H. Drewes, Nicholas
D'Alessandro, Steven M. Rapp or Ken Smith is in possession of any facts that
would give rise to an Obligation to Inform (as such term is defined in the
Commitment Letter).
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, each Loan Party
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws, except where failure so to comply
would not, and would not be reasonably likely to, have a Material Adverse
Effect.
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(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither Loan Party nor
any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors and such Lien would be reasonably likely
to have a Material Adverse Effect.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Material Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that each Loan Party and its Material Subsidiaries may consummate (i)
the Acquisition or (ii) any merger or consolidation permitted under Section
5.02(b) and provided further that neither Loan Party nor any of its Material
Subsidiaries shall be required to preserve any right or franchise if the Board
of Directors of such Loan Party or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
such Loan Party or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to such Loan Party, such
Subsidiary or the Lenders.
(d) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Company, the Consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and Consolidated statements of
operations and cash flows of the Company and its Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Company as having been
prepared in accordance with GAAP, it being agreed that delivery of the
Company's Quarterly Report on Form 10-Q will satisfy this requirement;
(ii) as soon as available and in any event within 90 days after the
end of each Fiscal Year of the Company, a copy of the annual audit report
for such year for the Company and its Subsidiaries, containing the
Consolidated balance sheet of the Company and its Subsidiaries as of the
end of such Fiscal Year and Consolidated statements of operations and cash
flows of the Company and its Subsidiaries for such Fiscal Year, in each
case accompanied by an opinion by KPMG LLP or other independent public
accountants of nationally recognized standing, it being agreed that
delivery of the Company's Annual Report on Form 10-K will satisfy this
requirement;
(iii) as soon as possible and in any event within five days after
the occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer of the Company setting forth
details of such Default and the action that the Company has taken and
proposes to take with respect thereto;
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(iv) promptly after the sending or filing thereof, copies of all
annual reports and proxy solicitations that the Company sends to any of
its securityholders, and copies of all reports on Form 8-K that the
Company or any Subsidiary files with the Commission; and
(v) from time to time, such additional information regarding the
financial position or business of the Borrower, the Guarantor and their
respective Subsidiaries as any Lender may reasonably request.
(e) Inspection of Property; Books and Records; Discussions. Permit
representatives of any Lender at such Lender's expense to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records at any reasonable time, on reasonable notice, and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Borrower, the Guarantor and their
respective Subsidiaries with officers and employees of the Borrower, the
Guarantor and their respective Subsidiaries and with its independent certified
public accountants.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, neither Loan
Party will:
(a) Secured Debt. Create or suffer to exist, or permit any of its
Restricted Subsidiaries to create or suffer to exist, any Debt secured by a Lien
on any Principal Property or on any shares of stock of or Debt of any Restricted
Subsidiary unless such Loan Party or such Restricted Subsidiary secures or
causes such Restricted Subsidiary to secure the Advances and all other amounts
payable under this Agreement equally and ratably with such secured Debt, so long
as such secured Debt shall be so secured, unless after giving effect thereto the
aggregate amount of all such Debt so secured does not exceed 15% of Consolidated
Net Tangible Assets, provided that the foregoing restriction does not apply to
Debt secured by:
(i) Liens existing prior to the date hereof;
(ii) Liens on property of, or on shares of stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(iii) Liens in favor of a Loan Party or any Restricted Subsidiary;
(iv) Liens in favor of any governmental bodies to secure progress or
advance payments;
(v) Liens on property, shares of stock or Debt existing at the time
of acquisition thereof (including acquisition through merger or
consolidation) or liens securing Debt incurred to finance all or any part
of the purchase price or cost of construction of property (or additions,
substantial repairs, alterations or substantial improvements thereto),
provided that such Lien and the Debt secured thereby are incurred within
365 days of the later of acquisition or completion of construction (or
addition, repair, alteration or improvement) and full operation thereof;
or
(vi) any extension, renewal or refunding of Debt referred to in the
foregoing clauses (i) to (v), inclusive.
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(b) Mergers, Etc. (i) Merge or consolidate with or into any
corporation or (ii) sell, lease, transfer or otherwise dispose of all or
substantially all of the assets of the Company and its Subsidiaries, taken as a
whole, unless the Company or the Guarantor would be the acquiring or surviving
party in such transaction and no Event of Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom.
(c) Subsidiary Debt. Permit any Restricted Subsidiary to create,
incur, assume or permit to exist any Debt, except:
(i) Debt of the Guarantor or any other Subsidiary of the Borrower,
if any, created under the 364-Day Credit Agreement and under the 5-Year
Facility;
(ii) Debt existing on the Effective Date;
(iii) Debt of the Guarantor constituting guaranties of Debt of the
Company;
(iv) Debt of any Subsidiary to any Loan Party or any other
Subsidiary;
(v) Debt of any Person that becomes a Subsidiary after the date
hereof; provided that such Debt exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Subsidiary;
(vi) Debt created in the Offering;
(vii) Debt of the Guarantor created hereunder;
(viii) any refinancing, refunding or replacement of any Debt
permitted under clause (ii) through (vi) above; and
(ix) other Debt in an aggregate principal amount not exceeding 15%
of Consolidated Net Tangible Assets at any time outstanding.
(d) Restrictive Agreements. Neither Loan Party will enter into,
incur or permit to exist any agreement or other arrangement that prohibits or
restricts the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to, or otherwise transfer assets to the Company; provided that the
foregoing shall not apply to (i) restrictions and conditions imposed by law or
by this Agreement, the 364-Day Credit Agreement or the 5-Year Facility, (ii)
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided that such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iii) restrictions or conditions imposed by any agreement
relating to secured Debt permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Debt, (iv)
customary provisions in leases and other contracts restricting the assignment
thereof, (v) any agreement in effect on the Effective Date, as any such
agreement is in effect on such date, (vi) any agreement binding upon such
Subsidiary prior to the date on which such Subsidiary was acquired by the
Company and outstanding on such date, (vii) customary net worth and other
financial maintenance covenants in an agreement relating to Debt or other
obligations incurred in compliance with this Agreement, and (viii) any agreement
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refinancing, renewing or replacing any agreement or Debt referred to in (i)
through (vii) above, provided that the relevant provisions are no more
restrictive than those in the agreement or Debt being refinanced, renewed or
replaced.
(e) Ownership. In the case of the Company, cease to own, legally and
beneficially, 75% or more of the membership interests in the Guarantor.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) Debt to Capitalization Ratio. Permit the Debt to Capitalization
Ratio as at the last day of any Fiscal Quarter that is not an Alternate Covenant
Date to exceed 0.75 to 1.0.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any Fiscal Quarter that is an Alternate Covenant
Date to exceed 5.0 to 1.0.
SECTION 5.04. Syndication. Pursuant to the Commitment Letter, the
Company has agreed to, among other things, take any and every commercially
reasonable action necessary or desirable to syndicate the credit facilities
provided for herein (the "Syndication") on the earlier of (x) the 40th day
following the Execution Date or (y) November 1, 2002 (regardless of whether the
Execution Date has occurred). Without limiting the obligations of the Company
with respect to and under the Commitment Letter and this Agreement, in order to
ensure a Successful Syndication, the Company hereby agrees:
(a) to agree to change the pricing, fees, terms and structure of the
credit facilities provided for herein, if the Arrangers determine, after
consultation with the Company, that such changes are advisable in order to
ensure a Successful Syndication of the Facility, provided that the aggregate
amount of the Commitments of the Lenders in no event shall be reduced pursuant
to this Section 5.04(a);
(b) to perform or cause to be performed any and all acts and execute
or cause to be executed any and all documents (including any amendments,
supplements, waivers or consents to the Loan Documents) which, in the Arrangers'
good faith judgment, are necessary or advisable in order to ensure a Successful
Syndication (including those acts and the execution, or the causation of the
execution, of those documents in furtherance of the Company's agreement in
paragraph (a) of this Section 5.04, but subject to the proviso therein);
(c) to pay, pursuant to the Fee Letter, any and all administrative
agent, underwriting and arrangement, and participation fees in connection with
the Syndication;
(d) to use commercially reasonable efforts to ensure that efforts to
consummate the Syndication benefit materially from the Borrower's existing
lending relationships;
(e) to assist the Arrangers in connection with the marketing of the
Syndication (including, without limitation, reasonably promptly providing to the
Arrangers any information reasonably requested to effect the Syndication and
making available senior management, representatives and advisors of the Borrower
and the Guarantor for meetings with prospective Lenders, due diligence meetings
and rating agency presentations at mutually acceptable times);
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(f) to host, with and at the request of the Arrangers, meetings with
prospective Lenders;
(g) to cooperate with the Arrangers in the timely preparation by the
Arrangers of any confidential information memorandum relating to the Syndication
and other marketing materials to be used in connection with the Syndication;
(h) to provide or make available all information and other
assistance reasonably requested by the prospective Lenders and their counsel in
connection with their due diligence; and
(i) to provide such other cooperation, assistance and information as
is customarily provided by borrowers in connection with the syndication of
credit facilities.
SECTION 5.05. Take-Out Financing.
(a) The Guarantor shall take any and every commercially reasonable
action necessary or desirable (i) to prepare an offering memorandum for a
private placement through resale pursuant to Rule 144A ("Rule 144A") and
Regulation S ("Regulation S") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to an offering and sale (the "Offering") of
unsecured debt securities of the Guarantor (the "Securities") and (ii) to
consummate such Offering as soon as practicable thereafter. The aggregate
principal amount of the Securities to be offered and sold in the Offering shall
equal or exceed the greater of (1) $1,000,000,000 and (2) the aggregate amount
of the outstanding Advances at the time of the Offering. Such Offering shall be
on such terms and conditions (including, without limitation, covenants, events
of default, unsecured guarantees, interest rates, yield, redemption prices and
dates) and a maturity date as the Take-Out Investment Banks and the Loan Parties
may in their judgment determine to be appropriate in light of then prevailing
circumstances and market conditions and the financial condition and prospects of
the Guarantor and its Subsidiaries at the time of sale and containing such other
customary terms as determined by the Take-Out Investment Banks, subject to the
approval of the Loan Parties. The Securities shall be guaranteed by Pepsi if and
to the extent agreed among Pepsi, the Guarantor and the Take-Out Investment
Banks. If any Securities are issued in a transaction not registered under the
Securities Act, all such Securities shall be entitled to the benefit of a
registration rights agreement to be entered into by the Guarantor and any other
obligor in respect of indebtedness being refinanced in customary form reasonably
acceptable to the Take-Out Investment Banks (which shall include provisions for
a customary registered exchange offer with respect to any such Securities).
(b) In connection with the foregoing, the Guarantor shall:
(i) reasonably promptly after the Effective Date, have prepared and
delivered to the Take-Out Investment Banks an offering memorandum relating
to the issuance of the Securities, in form and substance reasonably
satisfactory to the Take-Out Investment Banks (which offering memorandum
shall contain or incorporate by reference audited and unaudited financial
statements as would be required of a registrant on Form S-3 and shall be
otherwise reasonably satisfactory to the Take-Out Investment Banks);
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(ii) assist the Take-Out Investment Banks in connection with the
marketing of the Offering (including promptly providing to the Take-Out
Investment Banks any information reasonably requested to effect the issue
and sale of the Offering and making available senior management,
representatives and advisors of the Guarantor for related due diligence
meetings, rating agency presentations, "road show" presentations and other
investor meetings at mutually acceptable times);
(iii) provide or make available all information and other assistance
reasonably requested by the Take-Out Investment Banks and their counsel in
connection with their due diligence;
(iv) take any and every commercially reasonable action necessary or
desirable to achieve ratings of the Securities from rating agencies
reasonably acceptable to the Take-Out Investment Banks in a time frame
reasonably acceptable to the Take-Out Investment Banks;
(v) make appropriate filings under the "blue sky" laws of such U.S.
jurisdictions as the Take-Out Investment Banks determine and pay the
reasonable fees and expenses of counsel to the Take-Out Investment Banks
in connection therewith; provided that the Guarantor shall not be required
to subject itself to taxation in any jurisdiction where it would not
otherwise be so subject or subject itself to general service of process in
such jurisdiction; and
(vi) provide such other cooperation, assistance and information as
is customarily provided by issuers in connection with the private
placement of securities.
(c) After a full marketing of the Securities, if and when requested
by the Take-Out Investment Banks after consultation with the Guarantor, the
Guarantor shall:
(i) execute a purchase agreement with the Take-Out Investment Banks
relating to the issuance and sale of the Securities, which shall contain
covenants, representations and warranties, indemnities, conditions
(including delivery of legal opinions, officers' certificates and
auditors' comfort letters) and other provisions customary for similar
financings for the Take-Out Investment Banks and be in form and substance
satisfactory to the Take-Out Investment Banks and the Guarantor;
(ii) if the Securities are offered in an Offering pursuant to Rule
144A or Regulation S, execute a registration rights agreement with the
Take-Out Investment Banks as contemplated by subsection (a) above, which
shall be in form and substance satisfactory to the Take-Out Investment
Banks and the Guarantor;
(iii) execute an indenture relating to the Take-Out Securities,
which shall contain provisions as the Take-Out Investment Banks may in
their reasonable judgment determine to be appropriate in light of
prevailing circumstances, market conditions and the Guarantor's financial
condition and prospects and be in form and substance satisfactory to the
Take-Out Investment Banks and the Guarantor; and
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(iv) issue and sell the Securities in the amount described in
subsection (a) of this Section 5.05 and on such terms, including interest
rate, yield, final maturity and redemption dates and prices, as the
Take-Out Investment Banks and the Loan Parties may in their judgment
determine to be appropriate in light of then prevailing circumstances,
market conditions and the Guarantor's financial condition and prospects.
The Take-Out Investment Banks shall be third-party beneficiaries of this Section
5.05(c).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of, or interest on,
any Advance or to make any other payment under this Agreement, in each case
within five days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party herein (or
any of its officers) in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c)(i) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) (except clause (v) thereof),
5.02, 5.03 or 5.04, (ii) any Loan Party shall fail to perform or observe any
other term, covenant or agreement contained in Section 5.05 on its part to be
performed or observed if such failure shall remain unremedied for five days
after written notice thereof shall have been given to either Loan Party by the
Agent or any Lender, or (iii) any Loan Party shall fail to perform or observe
any other term, covenant or agreement contained in this Agreement on its part to
be performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to either Loan Party by the
Agent or any Lender; or
(d) Any Loan Party or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $50,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of such Loan Party or such Subsidiary (as
the case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate the maturity of such Debt or permit (with or without
the giving of notice, the lapse of time or both) the holder or holders of such
Debt or any trustee or agent on its or their behalf to cause any such Debt to
become due prior to its scheduled maturity; or any such Debt shall be declared
to be due and payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay,
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redeem, purchase or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof; or
(e) Any Loan Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against such Loan
Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
such Loan Party of any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against any Loan Party or any of its Material
Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; provided,
however, that any such judgment or order shall not be an Event of Default under
this Section 6.01(f) if and for so long as (i) the amount of such judgment or
order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer, which
shall be rated at least "A" by A.M. Best Company, has been notified of, and has
not disputed the claim made for payment of, the amount of such judgment or
order; or
(g) Any event, action or condition with respect to an employee
benefit plan of the Company subject to Title IV of ERISA results in any penalty
or action pursuant to ERISA that has a material adverse effect on the business
or financial condition of either Loan Party and its Subsidiaries, taken as a
whole; or
(h) The Master Bottling Agreement ceases to be valid and binding and
in full force and effect; or Pepsi denies that it has any liability or
obligation under the Master Bottling Agreement and Pepsi ceases performance
thereunder; or
(i) A Change of Control shall occur;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be
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forthwith due and payable, whereupon the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Company; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Loan Party under the
Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Advances, all such interest and
all such amounts shall automatically become and be due and payable, without
presentment, protest or any notice of any kind, all of which are hereby
expressly waived by each Loan Party.
ARTICLE VII
THE AGENT
Each of the Lenders hereby irrevocably appoints the Agent as its
agent and authorizes the Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.
The Agent and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Loan Parties and Affiliates of the Loan Parties as
though the Agent were not the Agent hereunder, without notice to or consent of
the Lenders. The Lenders acknowledge that, pursuant to such activities, the
Agent and its Affiliates may receive information regarding the Loan Parties or
their Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrowers or such Affiliates) and acknowledge that
neither the Agent nor any of its Affiliates shall be under any obligation to
provide such information to them. With respect to its Advances, the Agent (and
any of its Affiliates which may become a Lender) shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent. The terms "Lender" and "Lenders" shall, unless the
context otherwise indicates, include the Agent in its individual capacity.
The Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) the Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 8.01), and (c) except
as expressly set forth herein, the Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to
the Loan Parties or any of their Subsidiaries that is communicated to or
obtained by the bank serving as Agent or any of its Affiliates in any capacity.
The Agent shall not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 8.01) or in the absence of its own gross negligence or
wilful misconduct. The Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to
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the Agent by a Loan Party or a Lender, and the Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article III or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (who may be counsel for any
Loan Party), independent accountants and other experts selected by it and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Agent may perform any and all of its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by the
Agent. The Agent and any such sub-agent may perform any and all of its duties
and exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Agent and any such sub-agent, and
shall apply to their respective activities in connection with the Syndication as
well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, the Agent may resign at any time by notifying the
Lenders and the Company. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor agent approved by the Company, which
approval will not be unreasonably withheld or delayed; provided that such
approval shall not be required if an Event of Default has occurred and is
continuing. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a commercial bank organized
under the laws of the United States or any State thereof, having a combined
capital and surplus of at least $50,000,000 with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointments
as Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After the Agent's resignation hereunder, the
provisions of this Article and Section 8.04 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Agent.
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Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) except
pursuant to Section 2.05(b), 2.15 or 2.17, increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (b) reduce the
principal of, or interest on, the Revolving Credit Advances or any fees or other
amounts payable hereunder, (c) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Advances or any fees or other
amounts payable hereunder, (d) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Revolving Credit Advances, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, (e) release the guarantee as set forth in Section 10.01,
or (f) amend this Section 8.01; and provided further that no amendment, waiver
or consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Company or the Guarantor, to the Company at its address at One Pepsi
Way, Somers, New York 10589, Attention: General Counsel, Telecopier No. (914)
767-1161, with a copy to Secretary, Telecopier No. (914) 767-1161; if to any
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule 1 hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at 31 West 52nd Street, New York, New York 10019; or, as to
the Borrower, the Guarantor or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Company and the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by telex answer back, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent.
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SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 8.04. Costs and Expenses.
(a) The Company agrees to pay on demand all costs and expenses as
set forth in the Fee Letter. The Company further agrees to pay on demand all
reasonable costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement and the other documents to be delivered hereunder, including,
without limitation, reasonable fees and expenses of counsel for the Agent and
each Lender in connection with the enforcement of rights under this Section
8.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with this Agreement, any promissory
note issued hereunder, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Advances, whether or not such
investigation, litigation or proceeding is brought by the Borrower, the
Guarantor, their directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct.
(c) Whether or not the transactions contemplated hereby are
consummated, each Lender shall indemnify upon demand the Agent and each of its
Affiliates (to the extent not reimbursed by or on behalf of the Loan Parties in
accordance with the terms hereof and without limiting the obligation of the Loan
Parties to do so), pro rata, from and against any and all claims, losses,
damages, liabilities and expenses which may at any time be imposed on, incurred
by or asserted against the Agent in its capacity as such (including by any
Lender) arising out of or by reason of any investigation in any way relating to
or arising out of this Agreement or any other Loan Document, or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or the enforcement of any of the terms hereof or
thereof or of any such other documents; provided, however, that no Lender shall
be liable for the payment to the Agent or any of its Affiliates of any portion
of such claims, losses, damages, liabilities and expenses resulting from such
Person's gross negligence, bad faith or willful misconduct. Without limitation
of the foregoing, each Lender shall reimburse the Agent upon demand for its
ratable share of any costs or out-of-pocket expenses (including all reasonable
fees, disbursements and charges of counsel) incurred by the Agent in connection
with the
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preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein
or therein, to the extent that the Agent is not reimbursed for such expenses by
or on behalf of the Loan Parties. The agreements set forth in this Section
8.04(c) shall survive the payment of all Advances and other obligations
hereunder and the resignation or replacement of the Agent and shall be in
addition to and not in lieu of any other indemnification agreements contained in
any other Loan Document.
(d) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO Rate Advance is made by the Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10
or 2.12, acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason, the Company shall, upon demand by such Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Company contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder.
(f) Except for action expressly required of the Agent hereunder and
under the other Loan Documents, the Agent shall in all cases be fully justified
in failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 8.04(c) against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Loan Party or the Borrower
against any and all of the obligations of such Loan Party or the Borrower now or
hereafter existing under this Agreement, whether or not such Lender shall have
made any demand under this Agreement and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Company after any such
set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.
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SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Loan Parties and the Agent and when the Agent
shall have been notified by each Initial Lender that such Initial Lender has
executed it and thereafter shall be binding upon and inure to the benefit of the
Loan Parties, the Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may, and, if demanded by the Company (following a
demand by such Lender pursuant to Section 2.11 or Section 2.14 or a suspension
of such Lender's obligation to make or continue Advances as, or convert Advances
into, Eurodollar Rate Advances pursuant to Section 2.12) upon at least ten days'
notice to such Lender and the Agent will, assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the Revolving Credit Advances
owing to it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement (other than any right to make Competitive Bid Advances or Competitive
Bid Advances owing to it), (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or an Affiliate of a
Lender or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv)
each such assignment made as a result of a demand by the Company pursuant to
this Section 8.07(a) shall be arranged by the Company after consultation with
the Agent and shall be either an assignment of all of the rights and obligations
of the assigning Lender under this Agreement or an assignment of a portion of
such rights and obligations made concurrently with another such assignment or
other such assignments that together cover all of the rights and obligations of
the assigning Lender under this Agreement, (v) no Lender shall be obligated to
make any such assignment as a result of a demand by the Company pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or more
payments from either the Company or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement and (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register (as defined in clause (d) below), an Assignment and Acceptance,
together with a processing and recordation fee of $3,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
-50-
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders
and, with respect to the Lenders, the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Loan Parties or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Agent and the Company, the option to provide to the Company all or any
part of any Advance that such Granting Lender would
-51-
otherwise be obligated to make to the Company pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to
make any Advance, (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Advance, the Granting Lender shall be
obligated to make such Advance pursuant to the terms hereof. The making of an
Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Advance were made by such Granting Lender.
Each party hereto agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section 8.07(e), any SPC may (i) with notice to, but without the prior
written consent of, the Company and the Agent and without paying any processing
fee therefor, assign all or a portion of its interests in any Advances to the
Granting Lender or to any financial institutions (consented to by the Company
and the Agent) providing liquidity and/or credit support to or for the account
of any SPC to support the funding or maintenance of Advances and (ii) disclose
on a confidential basis any non-public information relating to its Advances to
any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancement to such SPC.
(f) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment and the Advances owing to it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any promissory note
issued or assigned to it hereunder, (iv) the Borrower, the Guarantor, the Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement, or
any consent to any departure by the Borrower therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, in each case to the extent subject to such
participation. Any Lender selling a participation shall notify the Agent and the
Company promptly after such sale.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to any Loan Party or the Borrower furnished
to such Lender by or on behalf of any Loan Party or the Borrower; provided that,
prior to any such disclosure, the assignee or participant or proposed assignee
or participant
-52-
shall agree to preserve the confidentiality of any Confidential Information
relating to the Loan Parties or the Borrower received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement or any promissory note issued to such Lender
hereunder (including, without limitation, the Advances owing to it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any Person without the consent of
the Company, other than (a) to the Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective
assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process, (c) to any rating
agency when required by it, provided that, prior to any such disclosure, such
rating agency shall undertake to preserve the confidentiality of any
Confidential Information relating to the Loan Parties or the Borrower received
by it from such Lender and (d) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the law of the State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this
-53-
Agreement in any New York State or federal court sitting in New York City. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
SECTION 8.12. WAIVER OF JURY TRIAL. THE BORROWER, THE GUARANTOR, THE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE
AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
SECTION 8.13. Integration of Terms. This Agreement contains the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior or contemporaneous agreements or understandings,
whether written or oral, with respect thereto, provided, however, that the terms
of the Commitment Letter and the Fee Letter shall survive the execution and
delivery of this Agreement solely to the extent provided herein or therein or
incorporated herein.
ARTICLE IX
[INTENTIONALLY OMITTED]
ARTICLE X
GUARANTOR GUARANTEE
SECTION 10.01. Guarantor Guarantee. Subject to the provisions of
this Article X, the Guarantor unconditionally and irrevocably guarantees to each
Lender and the Agent and their respective successors and assigns, that: (i) the
principal of, premium, if any, and interest on the Advances and any promissory
note issued hereunder will be duly and punctually paid in full when due, whether
at maturity, by acceleration, by redemption or otherwise, and interest on
overdue principal, and premium, if any, and (to the extent permitted by law)
interest on any interest, if any, on the Advances, any promissory note issued
hereunder and all other obligations of the Company to the Lenders or the Agent
hereunder (including fees and expenses) will be promptly paid in full, all in
accordance with the terms hereof; and (ii) in case of any extension of time of
payment or renewal of any of the Advances or any of such other obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of the Company to the Lenders or the Agent,
for whatever reason, the Guarantor will be obligated to pay, or to perform or to
cause the performance of, the same immediately. An Event of Default under this
Agreement shall constitute an event of default under this Guarantee, and shall
entitle the Lenders to accelerate the obligations of the Guarantor under this
Guarantee in the same manner and to the same extent as the obligations of the
Company.
-54-
The Guarantor hereby agrees that its obligations under this
Guarantee shall be unconditional, irrespective of the validity, regularity or
enforceability of this Agreement, the absence of any action to enforce the same,
any waiver or consent by any Lender or the Agent of this Agreement with respect
to any thereof, the entry of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Guarantor. The Guarantor hereby
waives and relinquishes: (a) any right to require the Agent, the Lenders or the
Company (each, a "Benefitted Party") to proceed against the Company or any other
Person or to proceed against or exhaust any security held by a Benefitted Party
at any time or to pursue any other remedy in any secured party's power before
proceeding against the Guarantor; (b) any defense that may arise by reason of
the incapacity, lack of authority, death or disability of any other Person or
Persons or the failure of a Benefitted Party to file or enforce a claim against
the estate (in administration, bankruptcy or any other proceeding) of any other
Person or Persons; (c) demand, protest and notice of any kind (except as
expressly required by this Agreement), including but not limited to notice of
the existence, creation or incurring of any new or additional Debt or obligation
or of any action or non-action on the part of the Guarantor, the Company, any
Benefitted Party, any creditor of the Guarantor or the Company, or on the part
of any other Person whomsoever in connection with any obligations the
performance of which are guaranteed under this Guarantee; (d) any defense based
upon an election of remedies by a Benefitted Party, including but not limited to
an election to proceed against the Guarantor for reimbursement; (e) any defense
based upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (f) any defense arising because of a Benefitted
Party's election, in any proceeding instituted under the Bankruptcy Code, of the
application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense
based on any borrowing or grant of a security interest under Section 364 of the
Bankruptcy Code. The Guarantor hereby covenants that this Guarantee will not be
discharged except by payment in full of all principal, premium, if any, and
interest on the Advances and all other costs provided for under this Agreement.
This is a Guarantee of payment and not of collection.
If any Lender or the Agent is required by any court or otherwise to
return to either the Company or the Guarantor, or any trustee or similar
official acting in relation to either the Company or the Guarantor, any amount
paid by the Company or the Guarantor to the Agent or such Lender, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor agrees that it will not be entitled to any right
of subrogation in relation to the Lenders or the Agent in respect of any
obligations guaranteed under this Guarantee until payment in full of all
obligations guaranteed hereby. The Guarantor agrees that, as between it, on the
one hand, and the Lenders and the Agent, on the other hand, (x) the maturity of
the obligations guaranteed under this Guarantee may be accelerated as provided
in Article VI hereof for the purposes hereof, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article VI hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by such Guarantor for
the purpose of this Guarantee.
SECTION 10.02. Limitation of Guarantor's Liability. The Guarantor,
and by its acceptance hereof, each Lender, hereby confirms that it is the
intention of the parties hereto that this Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy
-55-
Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law. To effectuate the foregoing intention, the
Lenders and the Guarantor hereby irrevocably agree that the obligations of the
Guarantor under this Article X shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of the
Guarantor, result in the obligations of the Guarantor under the Guarantee not
constituting a fraudulent transfer or conveyance under federal or state law.
-56-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
date first above written,
THE PEPSI BOTTLING GROUP, INC.,
as Borrower
By: /s/ Nicholas J. D'Alessandro
-----------------------------------
Name: Nicholas J. D'Alessandro
Title: Vice President and Treasurer
BOTTLING GROUP, LLC,
as Guarantor
By: /s/ Nicholas J. D'Alessandro
-----------------------------------
Name: Nicholas J. D'Alessandro
Title: Managing Director-Delagatee
DEUTSCHE BANK AG
NEW YORK BRANCH,
as Agent
By: /s/ Thomas A. Foley
-----------------------------------
Name: Thomas A. Foley
Title: Vice President
By: /s/ William G. McGinty
-----------------------------------
Name: William G. McGinty
Title: Director
-57-
COMMITMENT INITIAL LENDERS
$400,000,000 CITIBANK, N.A.
By: /s/ Carolyn A. Kee
-----------------------------------
Name: Carolyn A. Kee
Title: Vice President
$400,000,000 CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS
CAYMAN ISLANDS BRANCH
By: /s/ Karl Studer
-----------------------------------
Name: Karl Studer
Title: Director
By: /s/ Jay Chall
-----------------------------------
Name: Jay Chall
Title: Director
$400,000,000 DEUTSCHE BANK AG
NEW YORK BRANCH
By: /s/ Thomas A. Foley
-----------------------------------
Name: Thomas A. Foley
Title: Vice President
By: /s/ William G. McGinty
-----------------------------------
Name: William G. McGinty
Title: Director
-58-
ARRANGERS
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Bill Fox
-----------------------------------
Name: Bill Fox
Title: Vice President
By: /s/ Gregg Fatzinger
-----------------------------------
Name: Gregg Fatzinger
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
By: /s/ Thomas A. Foley
-----------------------------------
Name: Thomas A. Foley
Title: Vice President
By: /s/ William G. McGinty
-----------------------------------
Name: William G. McGinty
Title: Director
SALOMON SMITH BARNEY INC.
By: /s/ Carolyn A. Kee
-----------------------------------
Name: Carolyn A. Kee
Title: Attorney-in-Fact
SCHEDULE 1
LENDING OFFICES
[Enlarge/Download Table]
Lender Domestic Lending Office Eurodollar Lending Office
CITIBANK, N.A. c/o Global Markets/Loans c/o Global Markets/Loans
Attention: Laura Braak Attention: Laura Braak
Two Penns Way Two Penns Way
Suite 200 Suite 200
New Castle, Delaware 19720 New Castle, Delaware 19720
Telephone: (302) 894-6058 Telephone: (302) 894-6058
and and
c/o Global Markets/Loans c/o Global Markets/Loans
Attention: Sue Ann Leighty Attention: Sue Ann Leighty
Two Penns Way Two Penns Way
Suite 200 Suite 200
New Castle, Delaware 19720 New Castle, Delaware 19720
Telephone: (302) 894-6030 Telephone: (302) 894-6030
with a copy to:
390 Greenwich Street
First Floor
New York, New York 10013
CREDIT SUISSE FIRST BOSTON, 11 Madison Avenue c/o 11 Madison Avenue
ACTING THROUGH ITS Attention: Karl Studer Attention: Karl Studer
CAYMAN ISLANDS BRANCH New York, New York, 10010 New York, New York 10010
Telephone: (212) 325-9163 Telephone: (212) 325-9163
DEUTSCHE BANK AG 31 West 52nd Street c/o 90 Hudson Street
NEW YORK BRANCH Attention: Thomas Foley Attention: Roy Castromonte
New York, New York 10019 Mail Stop JCY05-0511
Telephone: (212) 469-8205 Jersey City, New Jersey 07302
Facsimile: (212) 469-8212 Telephone: (201) 593-2196
Facsimile: (201) 593-2310
SCHEDULE 2
APPLICABLE MARGIN
[Download Table]
Rating Facility Fee LIBOR Margin Drawn Cost
A/A2 6.0 bps 29.0 bps 35.0 bps
A-/A3 7.0 bps 33.0 bps 40.0 bps
BBB+/Baa1 10.0 bps 40.0 bps 50.0 bps
BBB/Baa2 15.0 bps 47.5 bps 62.5 bps
< or = BBB-/Baa3 20.0 bps 55.0 bps 75.0 bps
EXHIBIT A-l
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
[Date]
Deutsche Bank AG New York Branch,
as Agent for the Lenders parties to the
Revolving Bridge Loan Credit Agreement
referred to below
90 Hudson Street
Fifth Floor
Jersey City, New Jersey 07302
Attention: Christopher DiBiase
Telephone: (201) 593-2175
Facsimile: (201) 593-2308
with a copy to:
Deutsche Bank AG New York Branch,
as Agent for the Lenders parties to the
Revolving Bridge Loan Credit Agreement
referred to below
31 West 52nd Street
New York, New York 10019
Attention: Thomas Foley
Telephone: (212) 469-8205
Facsimile: (212) 469-8212
Ladies and Gentlemen:
The undersigned, The Pepsi Bottling Group, Inc. (the "Borrower"),
refers to the Revolving Bridge Loan Credit Agreement, dated as of October 2,
2002 (as amended or modified from time to time, the "Credit Agreement," the
terms defined therein being used herein as therein defined), among the
undersigned, Bottling Group, LLC (the "Guarantor"), certain Lenders parties
thereto and Deutsche Bank AG New York Branch, as administrative agent for said
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of
the Credit Agreement that the undersigned hereby requests a Revolving Credit
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Revolving Credit Borrowing (the "Proposed
Revolving Credit Borrowing") as required by Section 2.02(1) of the Credit
Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________________, ________.
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(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing is
$______.
(iv) [The initial Interest Period for each Eurodollar Rate Advance made as
part of the Proposed Revolving Credit Borrowing is ____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof and will be true on the date of the Proposed
Revolving Credit Borrowing:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f) thereof
(other than clause (ii) thereof)) are correct in all material
respects, on and as of the date of the Proposed Revolving Credit
Borrowing, before and after giving effect to the Proposed Revolving
Credit Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
THE PEPSI BOTTLING GROUP, INC.
By:
-------------------------------
Name:
Title:
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID BORROWING
[Date]
Deutsche Bank AG New York Branch,
as Agent for the Lenders parties to the
Revolving Bridge Loan Credit Agreement
referred to below
90 Hudson Street
Fifth Floor
Jersey City, New Jersey 07302
Attention: Christopher DiBiase
Telephone: (201) 593-2175
Facsimile: (201) 593-2308
with a copy to:
Deutsche Bank AG New York Branch,
as Agent for the Lenders parties to the
Revolving Bridge Loan Credit Agreement
referred to below
31 West 52nd Street
New York, New York 10019
Attention: Thomas Foley
Telephone: (212) 469-8205
Facsimile: (212) 469-8212
Ladies and Gentlemen:
The undersigned, The Pepsi Bottling Group, Inc. (the "Borrower"),
refers to the Revolving Bridge Loan Credit Agreement, dated as of October 2,
2002 (as amended or modified from time to time, the "Credit Agreement," the
terms defined therein being used herein as therein defined), among the
undersigned, Bottling Group, LLC (the "Guarantor"), certain Lenders parties
thereto and Deutsche Bank AG New York Branch, as administrative agent for said
Lenders, and hereby gives you notice pursuant to Section 2.03 of the Credit
Agreement that the undersigned hereby requests a Competitive Bid Borrowing under
the Credit Agreement, and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is
requested to be made:
(A) Date of Proposed
Competitive Bid Borrowing ___________________________
-2-
(B) Aggregate Amount of
Proposed Competitive Bid
Borrowing ___________________________
(C) Maturity Date ___________________________
(D) Interest Rate Basis ___________________________
(E) Interest Payment Date(s) ___________________________
The undersigned hereby certifies that the following statements
are true on the date hereof and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the
last sentence of subsection (e) thereof and in subsection (f)
thereof (other than clause (ii) thereof)) are correct in all
material respects, on and as of the date of the Proposed
Competitive Bid Borrowing, before and after giving effect to the
Proposed Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result from the
Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(2) of
the Credit Agreement.
Very truly yours,
THE PEPSI BOTTLING GROUP, INC.
By:
-------------------------------
Name:
Title:
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Bridge Loan Credit Agreement
dated as of October 2, 2002 (as amended or modified from time to time, the
"Credit Agreement"), among THE PEPSI BOTTLING GROUP, INC., a Delaware
corporation (the "Company" or the "Borrower"), BOTTLING GROUP, LLC (the
"Guarantor"), the Lenders (as defined in the Credit Agreement) and Deutsche Bank
AG New York Branch, as administrative agent for the Lenders (the "Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
(1) The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of Competitive Bid Advances) equal to the
percentage interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement (other than in respect of Competitive Bid
Advances). After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Revolving Credit Advances owing to the Assignee
will be as set forth on Schedule 1 hereto.
(2) The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or the performance or observance by the
Company of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
(3) The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably
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incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service forms required under Section 2.14 of the Credit Agreement.
(4) Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
(5) Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder, and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
(6) Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and facility fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Effective Date directly between themselves.
(7) This Assignment and Acceptance shall be governed by, and
construed in accordance with, the law of the State of New York.
(8) This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
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Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: ___%
Assignee's Commitment: $___________
Aggregate outstanding principal amount of
Revolving Credit Advances assigned: $___________
Effective Date(1): _________________, _______
[NAME OF ASSIGNOR], as Assignor
By:
---------------------------------------
Name:
Title:
Dated: ,
[NAME OF ASSIGNEE], as Assignee
By:
---------------------------------------
Name:
Title:
Dated: ,
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
----------------------
(1) This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
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Accepted and Approved this
_____ day of __________, ____
DEUTSCHE BANK AG NEW YORK BRANCH,
as Agent
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
Approved this _____ day
of __________, ____
THE PEPSI BOTTLING GROUP, INC.
By:
----------------------------
Name:
Title:
EXHIBIT C
FORM OF OPINION OF COUNSEL FOR THE COMPANY AND THE GUARANTOR
[Effective Date]
To each of the Lenders parties
to the Revolving Bridge Loan Credit Agreement
dated as of October 2, 2002 among The Pepsi Bottling Group, Inc.,
said Lenders and Deutsche Bank AG New York Branch,
as Agent for said Lenders, and to Deutsche Bank AG
New York Branch, as Agent
The Pepsi Bottling Group, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(v)
of the Revolving Bridge Loan Credit Agreement, dated as of October 2, 2002 (the
"Credit Agreement "), among The Pepsi Bottling Group, Inc. (the "Company" or the
"Borrower"), Bottling Group, LLC, (the "Guarantor "), the Lenders parties
thereto and Deutsche Bank AG New York Branch, as Agent for said Lenders,
providing for extensions of credit to be made by said Lenders to the Company in
an aggregate principal amount at any one time outstanding of up to
$1,200,000,000. Terms defined in the Credit Agreement are used herein as therein
defined.
I am the Senior Deputy General Counsel of the Company and have
acted as counsel to the Company and the Guarantor in connection with the Credit
Agreement. In connection with this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Company and the Guarantor
pursuant to subsections 3.01(g)(i)-(iv) of the Credit Agreement.
(3) The Articles of Incorporation of the Company and all
amendments thereto (the "Charter").
(4) The by-laws of the Company and all amendments thereto (the
"By-laws").
(5) A certificate of the Secretary of State of Delaware, dated
_____________, 2002, attesting to the continued corporate existence and
good standing of the Company in that State.
(6) The Amended and Restated Limited Liability Company Agreement
of the Guarantor, dated as of March 30, 1999, and all amendments thereto
(the "LLC Agreement").
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(7) The Certificate of Formation of the Guarantor and all
amendments thereto (the "Certificate of Formation").
(8) A certificate of the Secretary of State of Delaware dated
_________, 2002, attesting to the continued existence and good standing
of the Guarantor in that State.
(9) Resolutions of the Board of Directors of the Company adopted
on ________, 2002.
(10) Resolutions of the Managing Directors of the Guarantor
adopted on _________, 2002.
In addition, I have examined the originals, or copies certified
or otherwise identified to my satisfaction, of such other corporate records of
the Company and the Guarantor, certificates of public officials and of officers
of the Company and the Guarantor, and agreements, instruments and other
documents, as I have deemed necessary as a basis for the opinions expressed
below. I have assumed the due execution and delivery, pursuant to due
authorization, of the Credit Agreement by the Initial Lenders and the Agent.
The opinions expressed below are limited to the law of the State
of New York, the Delaware corporate law, the Federal law of the United States
and, with respect to paragraphs 1 and 2 and clauses (i), (ii) and (iii)(a) of
paragraph 3 only, the Delaware General Corporation Law and the Delaware Limited
Liability Company Act.
Based upon the foregoing and upon such investigation as I have
deemed necessary and subject to the qualifications set forth herein, I am of the
following opinion:
(1) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware.
(2) The Guarantor is a limited liability company validly existing
and in good standing under the laws of the State of Delaware.
(3) The execution, delivery and performance by the Company and the
Guarantor of the Credit Agreement (i) are within the Company's corporate,
and the Guarantor's limited liability company, powers, (ii) have been
duly authorized by all necessary corporate, or limited liability company,
action, and (iii) do not contravene (a) the Charter or the By-laws of the
Company or the LLC Agreement or Certificate of Formation of the Guarantor
or (b) to the best of my knowledge (1) any United States Federal or New
York State law, rule or regulation applicable to the Company or the
Guarantor (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System) or (2) any contractual or legal
restriction contained in any material judgment, decree, mortgage,
agreement, indenture or other instrument to which the Company or the
Guarantor is a party. The Credit Agreement has been duly executed and
delivered on behalf of the Company and the Guarantor.
(4) No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body of the
State of New York or the
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Federal government of the United States is required for the due
execution, delivery and performance by the Company or the Guarantor of
the Credit Agreement.
(5) The Credit Agreement is a valid and binding obligation of the
Company and the Guarantor enforceable against the Company and the
Guarantor in accordance with its terms.
(6) To the best of my knowledge and except as disclosed in the
Company's consolidated financial statements, there are no pending or
overtly threatened actions or proceedings against the Company or any of
its Subsidiaries, before any court, governmental agency or arbitrator
that purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or that are likely to have a
materially adverse effect upon the financial condition, results of
operations or business of the Company or any of its Subsidiaries.
The opinions set forth above are subject to the following qualifications:
(1) My opinion in paragraph 5 above is subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally.
(2) My opinion in paragraph 5 above is subject to the effect of
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(3) I express no opinion as to the effect (if any) of the law of
any jurisdiction (other than the State of New York) wherein any Lender
may be located or wherein enforcement of the Credit Agreement may be
sought that limits the rates of interest that such Lender may charge or
collect.
(4) I express no opinion as to the effect of Section 548 of the
United States Bankruptcy Code or any similar provision of State law.
In all respects and for all purposes, this opinion is given
solely for the benefit of the Agent and the Lenders and may not be relied upon
by any other person or entity without my prior written consent.
Very truly yours,
Dates Referenced Herein and Documents Incorporated by Reference
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