AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 6, 1995
REGISTRATION NO. 33-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------------
PEPSICO, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
NORTH CAROLINA 5812 13-1584302
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD (I.R.S. EMPLOYER
OF INCORPORATION OR CLASSIFICATION CODE IDENTIFICATION NO.)
ORGANIZATION) NUMBER)
</TABLE>
PURCHASE, NEW YORK 10577-1444
(914) 253-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DOUGLAS M. CRAM, Esq.
VICE PRESIDENT AND ASSISTANT GENERAL COUNSEL
PEPSICO, INC.
PURCHASE, NEW YORK 10577-1444
(914) 253-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
WILLIAM M. HARTNETT, ESQ.
CAHILL GORDON & REINDEL
80 Pine Street
NEW YORK, NEW YORK 10005
(212) 701-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE
SECURITIES TO THE PUBLIC:
From time to time after the effective date of this
Registration Statement as determined in light of market
conditions.
If the only securities being registered on this form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box.
If any of the securities being registered on this form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933 (the "Act"), other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount to be maximum maximum Amount of
securities registered aggregate aggregate registration
to be registered offering offering fee
price per price (1)
unit (1)
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<S> <C> <C> <C> <C>
Debt Securities,
Debt Warrants $2,500,000,000(2)(3) 100% $2,500,000,000(2) $862,068.97
and Shelf Warrants
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</TABLE>
(1) Estimated solely for the purpose of determining the
amount of the registration fee.
(2) In U.S. dollars or the equivalent thereof in the case
of foreign currencies or currency equivalents.
(3) The principal amount at maturity will be greater if any
Debt Securities, Debt Warrants or Shelf Warrants are sold with
original issue discount.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT
ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
Pursuant to Rule 429 of the Rules and Regulations of the
Securities and Exchange Commission under the Securities Act of
1933, as amended, the prospectus included in this registration
statement also relates to $822,000,000 of Debt Securities
previously registered under the registrant's registration
statement on Form S-3 (File No. 33-51389)
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION DATED
JANUARY , 1995
PROSPECTUS
U.S. $2,500,000,000
(PEPSICO LOGO)
DEBT SECURITIES AND WARRANTS
DUE NOT LESS THAN NINE MONTHS FROM DATE OF ISSUE
PepsiCo, Inc., a North Carolina corporation (the "Company"), may
from time to time offer one or more of the following securities
under the Registration Statement (hereinafter defined) of which
this Prospectus forms a part: debt securities, consisting of
notes, debentures, and other evidences of unsecured indebtedness
(the "Debt Securities"), warrants to purchase Debt Securities
(the "Debt Warrants"), and other warrants, options, and unsecured
contractual obligations of the Company (the "Shelf Warrants")
(Debt Warrants and Shelf Warrants sometimes referred to
collectively as the "Warrants"), up to an aggregate initial
offering price of $2,500,000,000 or the equivalent thereof in one
or more foreign or composite currencies (any such foreign or
composite currency a "Specified Currency"). See "Important
Currency Exchange Information". Debt Securities and Warrants
(collectively, the "Securities" and each, individually, a
"Security") may be offered separately or together, in amounts, at
prices, and on terms to be determined at the time of sale.
The particular terms of any series of Debt Securities will be set
forth in a separate supplement to this Prospectus (each
a "Pricing Supplement"). Each Debt Security will bear interest
at either a fixed rate established by the Company at the date of
issue (a "Fixed Rate Debt Security") (which in the case of a Debt
Security issued at a discount from its principal amount (a
"Discount Debt Security") may be zero) or a floating rate (a
"Floating Rate Debt Security"). A Fixed Rate Debt Security may
pay a variable amount of principal and a Floating Rate Debt
Security may pay a variable amount of interest and/or principal,
in each case as determined by reference to the relative value of
one or more Specified Currencies, commodities, or instruments,
the level of one or more financial or non-financial indices, or
any other designated factor or factors (each such security an
"Indexed Debt Security"). The minimum denominations in which
Debt Securities of a particular series may be purchased will be
set forth in the applicable Pricing Supplement. Unless otherwise
specified in the applicable Pricing Supplement, Debt Securities
will be issued in integral multiples of $1,000, will not be
redeemable or repayable prior to maturity, and will not be
subject to any sinking fund. Each Debt Security will be issued
in registered form and will be represented by a single global
certificate (a "Global Debt Security") or, at the option of the
Company, by a certificate registered in definitive form. Each
Global Debt Security will be deposited with The Depository Trust
Company, as depositary ("DTC"), or with any other depositary
appointed by the Company (DTC or such other depositary the
"Depositary"), and will be registered in the name of the
Depositary or a nominee thereof. Beneficial interests in a
Global Debt Security will be shown on, and transfers thereof will
be effected only through, records maintained by the Depositary
and its Participants (hereinafter defined). Except under the
circumstances described herein or in the applicable Pricing
Supplement, beneficial interests in a Global Debt Security will
not be issuable in definitive form. SEE "DESCRIPTION OF DEBT
SECURITIES--CURRENCY AND INDEX-RELATED RISK FACTORS" FOR A
DISCUSSION OF GENERAL RISKS ASSOCIATED WITH INVESTMENTS IN
INDEXED DEBT SECURITIES AND IN DEBT SECURITIES DENOMINATED OR
PAYABLE IN A SPECIFIED CURRENCY.
The particular terms of any series of Warrants, including the
designation, offering price, detachability, expiration date,
procedures and conditions relating to exercise, and information
regarding the underlying instrument, commodity, or index will be
set forth in one or more supplements to this Prospectus (each a
"Prospectus Supplement"). The applicable Prospectus Supplement
will also identify any material United States tax considerations
and any general risks associated with an investment in Warrants
of a given series. See "Description of Warrants".
In the event of a variance in the terms set forth in this
Prospectus and in the Pricing Supplement or Prospectus Supplement
applicable to a particular series of Securities (each such
supplement an "applicable Supplement"), the terms of the
applicable Supplement will govern.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS OR ANY APPLICABLE SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Securities may from time to time be offered and sold by the
Company directly to investors, through one or more agents, or to
underwriters for resale to investors. There is no agreement at
this time between the Company and any agent or underwriter with
respect to the Securities. However, it is anticipated that any
agreement between the Company and any agent or underwriter will
be in substantially the form of Distribution Agreement filed as
Exhibit 1 to the Registration Statement (hereinafter defined).
The name of any agent or underwriter involved in the offering of
any particular series of Securities (other than an agent acting
as purchaser for its own account) will be set forth in the
applicable Supplement (any such named agent or underwriter,
respectively, an "Agent" or "Underwriter"). It is not currently
anticipated that any series of Securities will be listed on any
securities exchange and there can be no assurance either that the
Securities will be sold or, if sold, that there will be a
secondary market for them. The Company or any Agent or
Underwriter may reject any offer to purchase Securities, in whole
or in part, whether or not solicited. The Company will have the
sole right to accept any offer to purchase Securities and
reserves the right to withdraw, cancel, or modify, without
notice, the offer to sell Securities contained in this Prospectus
and in any applicable Supplement. See "Plan of Distribution".
<TABLE>
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PRICE TO MAXIMUM AGGREGATE MINIMUM PROCEEDS
PUBLIC (1) COMMISSION & TO THE
DISCOUNTS(2)(3) COMPANY(2)(3)(4)
Per Debt Security 100%(5) 0.75% 99.25%
Security
Per Warrant (6) 0.75% 99.25%
Total $2,500,000,000 $18,750,000(7) $2,481,250,000(7)
- -------------------------------------------------------------------------------
</ TABLE>
(1) The aggregate initial public offering price of all Debt
Securities and Warrants sold hereunder will not exceed
$2,500,000,000, or the equivalent thereof in one or more
Specified Currencies, as the case may be.
(2) The Company may pay commissions to Agents and offer
discounts to Underwriters, which commissions and discounts will
not, in the aggregate, exceed 0.75% of the aggregate initial
offering price of all Debt Securities and Warrants sold through
Agents and Underwriters. Any such commission or discount will be
identified in the applicable Supplement.
(3) An Agent or Underwriter may realize additional consideration
from its participation as broker or counterparty in one or more
swap transactions related to the issuance of Debt Securities or
Warrants. Each Agent and Underwriter will be indemnified by the
Company against certain civil liabilities, including liabilities
under the Securities Act of 1933, as amended.
(4) Before deduction of expenses payable by the Company
estimated at $1,302,000.00.
(5) Unless otherwise specified in the applicable Pricing
Supplement, Debt Securities will be issued at 100% of their
principal amount.
(6) The initial public offering price of any Warrants sold
hereunder will be set forth in the applicable Prospectus
Supplement.
(7) In U.S. dollars or the equivalent thereof in one or more
Specified Currencies, as the case may be.
This Prospectus may be used by Agents, Underwriters, and other
dealers in connection with offers and sales of Securities in
market-making transactions at negotiated prices relating to
prevailing market prices at the time of sale or otherwise. This
Prospectus may not be used to consummate the sale of any
Securities unless accompanied by the applicable Supplement.
THE DATE OF THIS PROSPECTUS IS JANUARY , 1995
-1-
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and, in accordance therewith, files reports, proxy
statements, and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy
statements, and other information can be inspected and copied at
the public reference facilities maintained by the Commission at
450 Fifth Street, Room 1024, N.W., Washington, D.C. 20549, at
the Commission's New York Regional Office, 7 World Trade Center,
Room 1400, New York, New York 10048, and at its Chicago Regional
Office, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, Room
1024, N.W., Washington, D.C. 20549, at prescribed rates. Such
reports, proxy statements, and other information may also be
inspected and copied at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005, and at
the offices of the Chicago Stock Exchange, Inc., 440 South
LaSalle Street, Chicago, Illinois 60605.
This Prospectus does not contain all of the information set
forth in the registration statement filed by the Company with the
Commission under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the offer contained herein.
Reference should be made to such registration statement (the
"Registration Statement"), the exhibits thereto, and the
documents incorporated by reference therein for further
information regarding the Company and the Securities.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with
the Commission, relating to the Company and its consolidated
subsidiaries, are incorporated by reference in this Prospectus:
(a) the Company's Annual Report on Form 10-K for the fiscal
year ended December 25, 1993;
(b) the Company's Quarterly Report on Form 10-Q for the
twelve-week period ended March 19, 1994;
(c) the Company's Quarterly Report on Form 10-Q for the
twelve and twenty-four week periods ended June 11, 1994;
(d) the Company's Quarterly Report on Form 10-Q for the
twelve and thirty-six week periods ended September 3, 1994; and
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of the offering of
the Securities will be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in any
document incorporated or deemed to be incorporated by reference
herein will be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained in
any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company will furnish, without charge, to each person to
whom a copy of this Prospectus has been delivered, upon the oral
or written request of any such person, a copy of any or all of
the documents incorporated by reference herein, except the
exhibits to such documents (unless such exhibits are expressly
incorporated by reference therein). Requests should be directed
to the Manager of Shareholder Relations, PepsiCo, Inc., 700
Anderson Hill Road, Purchase, N.Y. 10577, telephone number (914)
253-3055.
-2-
IMPORTANT CURRENCY EXCHANGE INFORMATION
Unless otherwise provided in the applicable Pricing
Supplement, purchasers will be required to pay for each
non-U.S. dollar denominated Debt Security in the Specified
Currency, and payments of principal, premium, if any, and
interest, if any, on such Debt Security will be made in such
Specified Currency. Currently, there are limited facilities in
the United States for the conversion of U.S. dollars into foreign
currencies and vice versa. In addition, most banks do not
currently offer non-U.S. dollar denominated checking account
facilities in the United States and there may be significant
restrictions on other non-U.S. dollar denominated accounts
offered by banks in the United States. Accordingly, unless
alternative arrangements are made, payments of principal,
premium, if any, and interest, if any, on Debt Securities payable
in a Specified Currency will be made to an account at a bank
outside the United States. See "Description of Debt Securities--
Currency and Index-Related Risk Factors".
If the applicable Pricing Supplement provides for payments
of principal, premium, if any, and interest, if any, on a
non-U.S. dollar denominated Debt Security to be made in
U.S. dollars, the conversion of the Specified Currency into
U.S. dollars will be handled by the exchange rate agent
identified in the applicable Pricing Supplement. The costs of
such conversion will be borne by the Holder (see Glossary) of
such Debt Security through deductions from such payments.
References herein to "U.S. dollars", "U.S. $", and "$" are
to the lawful currency of the United States.
THE COMPANY
The Company was incorporated in Delaware in 1919 and was
reincorporated in North Carolina in 1986. Unless the context
indicates otherwise, the term "PepsiCo" as used in this
Prospectus means the Company and its various divisions and
subsidiaries. PepsiCo is engaged in the following domestic and
international business activities: beverages, snack foods, and
restaurants.
PepsiCo's beverage business consists of Pepsi-Cola North
America ("PCNA") and Pepsi-Cola International ("PCI").
PCNA manufactures and sells beverages, primarily soft drinks
and soft drink concentrates in the United States and Canada. PCNA
sells its concentrates to licensed independent and company-owned
bottlers and to joint ventures in which PepsiCo participates.
Under appointments from PepsiCo, bottlers manufacture, sell, and
distribute, within defined territories, carbonated soft drinks
and syrups bearing trademarks owned by PepsiCo, including
PEPSI-COLA, DIET PEPSI, MOUNTAIN DEW, SLICE, CRYSTAL, MUG, and,
within Canada, 7UP and DIET 7UP. In addition, PCNA has
entered into a joint venture with Thomas J. Lipton Co. that
develops, markets, and distributes ready-to-drink tea products
under the LIPTON trademark throughout the United States.
PCNA has also entered into a joint venture with Ocean Spray
Cranberries, Inc. to develop new juice products and, pursuant to
a separate distribution agreement, to distribute single-serve
sizes of OCEAN SPRAY juice products throughout the United States.
PCI principally sells soft drink concentrates to independent
bottlers that manufacture, sell, and distribute carbonated soft
drinks outside the United States and Canada under the PEPSI-COLA,
DIET PEPSI, MIRINDA, 7UP, PEPSI MAX, DIET 7UP, and other trademarks.
PepsiCo's snack food business consists of Frito-Lay, Inc.
("Frito-Lay") and PepsiCo Foods International ("PFI"). Frito-Lay
manufactures and sells a varied line of snack foods throughout
the United States and Canada, including such well-known products
as FRITOS brand corn chips, LAY'S in the United States and RUFFLES
brands potato chips, DORITOS and TOSTITOS brands tortilla chips, CHEE.TOS
brand cheese flavored snacks, ROLD GOLD brand pretzels, SMARTFOOD brand
cheese flavored popcorn, and SUNCHIPS brand multigrain snacks. PFI
manufactures and markets snack foods and other food products outside
the United States and Canada, primarily through company-owned facilities
and joint ventures. Many of PFI's snack products, such as SABRITAS brand
potato chips in Mexico, are similar in taste to Frito-Lay snack
foods sold in the United States and Canada. PFI also sells a variety of
snack food products that appeal to local tastes, including SMITHS Crisps
and WALKERS Crisps, which are sold in the
-3-
United Kingdom, and cookies and confectioneries, which are sold, for example
in Mexico by PFI's Gamesa and Sonric's units. In addition, RUFFLES, CHEE.TOS,
DORITOS, FRITOS and SUNCHIPS brands snack foods have been introduced to
international markets. During 1992, PFI formed a joint venture with General
Mills, Inc., called Snack Ventures Europe, combining PFI's
businesses in Spain, Portugal, and Greece with General Mills'
snack food businesses in France, Belgium, and the Netherlands.
PepsiCo's restaurant business principally consists of
Kentucky Fried Chicken Corporation ("KFC"), Pizza Hut, Inc.
("Pizza Hut"), and Taco Bell Corp. ("Taco Bell"). KFC is engaged
principally in the operation, development, and franchising of
take-out and eat-in restaurants featuring chicken and operating
under the names KENTUCKY FRIED CHICKEN and/or KFC. Pizza Hut is
engaged principally in the operation, development, and
franchising of a system of casual full-service family
restaurants, delivery/carry-out units, and kiosks operating under the
name Pizza Hut. The full service restaurants serve several
varieties of pizza as well as pasta, salads, and sandwiches.
Taco Bell is engaged principally in the operation, development, and
franchising of a chain of fast-service restaurants serving moderately priced
take-out and eat-in Mexican-style food, including tacos,
burritos, taco salads, and nachos, and operating under the name
TACO BELL. PFS, a division of PepsiCo, is engaged in the
operation of Pizza Hut, Taco Bell, and KFC supply systems in the
United States, Australia, Canada, Mexico and Puerto Rico.
The Company's executive offices are located at 700 Anderson
Hill Road, Purchase, New York 10577 (telephone number (914)
253-2000).
USE OF PROCEEDS
Except as otherwise provided in any applicable Supplement,
the net proceeds from the sale of Securities will be utilized by
the Company or its subsidiaries for general corporate purposes,
including the funding of acquisitions and share repurchases and
the refunding of commercial paper and other indebtedness.
Depending upon market conditions, the financial needs of the
Company, and other factors, the Company may, from time to time,
undertake additional financings. The amount and timing of such
financings, if any, cannot be determined at this time.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of the Company and
its consolidated subsidiaries for the fiscal years 1989 through
1993, inclusive, and for the 36-week period ended September 3, 1994,
are set forth below. "Fixed charges" consist of
interest expense, capitalized interest, amortization of debt
discount, and a portion of net rental expense deemed to be
representative of the interest factor. The ratio of earnings to
fixed charges is calculated as income from continuing operations,
before provision for income taxes and cumulative effect of
accounting changes, where applicable, plus fixed charges
(excluding capitalized interest), plus amortization of
capitalized interest, with the sum divided by fixed charges.
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEARS
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36-Week
Period
Ended
1989 1990 1991 1992 1993 September 3, 1994
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<S> <C> <C> <C> <C> <C>
2.97 3.11 3.27 3.66 4.39 4.61
</TABLE>
-4-
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture,
dated as of December 14, 1994 (the "Indenture"), between the
Company and The Chase Manhattan Bank (National Association), as
trustee (the "Trustee"), a copy of which is incorporated by
reference as an exhibit to the Registration Statement of which
this Prospectus is a part. The statements herein concerning the
Indenture do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all of the
provisions of the Indenture, including the definitions of certain
terms. All capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Indenture. All capitalized terms used in an applicable Pricing
Supplement and not otherwise defined therein have the meanings
ascribed to such terms in this Prospectus.
THE TERMS AND CONDITIONS SET FORTH IN THIS PROSPECTUS WITH
RESPECT TO DEBT SECURITIES WILL APPLY TO EACH DEBT SECURITY
UNLESS OTHERWISE SPECIFIED HEREIN OR IN THE APPLICABLE PRICING
SUPPLEMENT.
General
The Debt Securities may be issued from time to time in an
aggregate principal amount that, together with the aggregate
initial offering price of Warrants that may be issued from time
to time hereunder, will not exceed $2,500,000,000 or the
equivalent thereof in one or more Specified Currencies. The
aggregate principal amount may be increased from time to time as
authorized by the Board of Directors of the Company. For the
purpose of this paragraph: (i) the principal amount of any
Discount Debt Security or of any Debt Security issued at a
premium over its face amount means the Issue Price (hereinafter
defined) of such Debt Security, and (ii) the principal amount of
any Debt Security denominated in a Specified Currency means the
U.S. dollar equivalent of the Issue Price of such Debt Security
as of its issue date. The Indenture does not limit the aggregate
principal amount of debt securities that the Company may issue
and does not limit the amount of additional indebtedness the
Company may incur. The Debt Securities will be unsecured and
unsubordinated obligations of the Company and will rank in parity
with all other unsecured and unsubordinated indebtedness of the
Company.
Debt Securities denominated in U.S. dollars will be issued
in integral multiples of $1,000 and in such denominations as will
be set forth in the applicable Pricing Supplement. The
authorized denominations of Debt Securities denominated in a
Specified Currency will be as set forth in the applicable Pricing
Supplement. The U.S. dollar equivalent of the principal amount
of a Debt Security denominated in a Specified Currency will be
determined on the basis of the noon buying rate in the City of
New York for cable transfers of such Specified Currency published
by the Federal Reserve Bank of New York (such rate the "Market
Exchange Rate") on the New York Business Day (hereinafter
defined) prior to the date the Company accepted the offer to
purchase such Debt Security. Determination of the Market
Exchange Rate will be made by the Exchange Rate Agent
(hereinafter defined).
Each Debt Security will be issued in fully registered form,
as a Global Debt Security, or, if provided in the applicable
Pricing Supplement, as a Debt Security in definitive form. Debt
Securities may be registered for transfer or exchange at the
Corporate Trust Office of the Trustee, at 4 Chase MetroTech
Center, Brooklyn, New York 11245. No service charge will be made
for any transfer or exchange of Debt Securities, but the Company
may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Except as
set forth below, beneficial interests in Global Debt Securities
will not be exchangeable for Debt Securities in definitive form.
See "Description of Debt Securities--Global Debt Securities".
Each Debt Security will mature on a date not less than nine
months from its issue date, as set forth in the applicable
Pricing Supplement. Debt Securities will not be redeemable at
the option of the Company
-5-
or repayable at the option of the Holder prior to maturity and will not be
subject to any sinking fund. The foregoing notwithstanding, the Company
may purchase Debt Securities at any time, at any price, in the open market or
otherwise, and may thereafter hold or resell such Debt
Securities, or surrender such Debt Securities to the Trustee for
cancellation, at the sole discretion of the Company.
The applicable Pricing Supplement will describe the
particular terms of each Debt Security to be sold pursuant
thereto, including (1) the principal amount and, if the principal
amount will be amortized over the life of the Debt Security, the
method of determining when and to what extent payments of
principal will be made prior to maturity or, if the principal
amount is variable, the face amount and any index, formula, or
other factor to which payment of principal is linked; (2) the
initial offering price (the "Issue Price"), if other than 100% of
the principal amount; (3) the date on which the Issue Price must
be paid (the "Settlement Date") and the manner in which such
payment must be made, if other than by wire transfer of
immediately available funds; (4) the interest rate or, if the
interest rate is variable, any index, formula, or other factor to
which payment of interest is linked; (5) the date from which
interest, if any, will accrue (the "Interest Accrual Date"), if
other than the date of issue; (6) the scheduled date or dates on
which interest, if any, will be payable (each an "Interest
Payment Date"); (7) the scheduled date or dates on which
principal and premium, if any, will be payable (each a "Principal
Payment Date"); (8) the date on which the Debt Security is
scheduled to mature (the "Scheduled Maturity Date"); (9) whether
principal, premium, if any, or interest, if any, may, at the
option of the Company or the Holder, be payable in a currency
other than the denominated currency of the Debt Security, and the
terms and conditions upon which such option may be exercised;
(10) whether and under what circumstances the Company will pay
additional amounts on the Debt Security in respect of any taxes,
assessments, or other governmental charges withheld or deducted
and, if so, whether the Company will instead have the option to
redeem the Debt Security; (11) any other terms or conditions upon
which the Debt Security may be redeemed or repaid by the Company
prior to its Scheduled Maturity Date; (12) any mandatory or
optional sinking fund provisions; (13) any Event of Default (as
defined in the Indenture) with respect to the Debt Security, if
not set forth in the Indenture; and (14) any additional terms or
provisions of the Debt Security, which will not in any event be
inconsistent with the terms and conditions of the Indenture.
Exchange Rate and Other Calculations
Any currency exchange rates and currency exchange
calculations to be made with respect to a given Debt Security
will be made by the exchange rate agent, which may be either the
Company or its appointed agent, as identified in the applicable
Pricing Supplement (the Company or any agent so identified in the
applicable Pricing Supplement the "Exchange Rate Agent"). Any
other calculations to be made with respect to a given Debt
Security will be made by the calculation agent, which may be
either the Company or its appointed agent, as identified in the
applicable Supplement (the Company or any agent so identified in
the applicable Pricing Supplement the "Calculation Agent"). All
determinations and calculations made by the Exchange Rate Agent
or the Calculation Agent, as the case may be, will be at the sole
discretion of the Exchange Rate Agent or the Calculation Agent,
as the case may be, and in the absence of manifest error will be
conclusive for all purposes and binding on the Holders of the
subject Debt Securities.
All currency amounts resulting from calculations with
respect to any Debt Security will be rounded, if necessary, to
the nearest one-hundredth of a unit, with five one-thousandths of
a unit being rounded upward -- e.g., 1.765 being rounded to 1.77
- -- except that in the case of the Japanese yen and the Italian
lire, such currency amounts will be rounded to the nearest whole
unit -- e.g., 99.5 yen being rounded to 100 yen. All percentages
resulting from any calculation with respect to any Debt Security
will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five
one-millionths of a percentage point rounded upward -- e.g.,
.09876545 (or 9.876545%) being rounded to .0987655 (or 9.87655%).
-6-
Payment Currency
If the applicable Pricing Supplement provides for payments
of principal, premium, if any, and interest, if any, on a
non-U.S. dollar denominated Debt Security to be made in
U.S. dollars at the option of the Holders thereof, the exchange
rate applicable to the conversion of the Specified Currency into
U.S. dollars will be based on the highest bid quotation (assuming
European-style quotation -- i.e., Specified Currency per
U.S. dollar) received by the Exchange Rate Agent on the second
New York Business Day prior to the applicable payment date from
three recognized foreign exchange dealers in the City of New York
(one of which may be the Exchange Rate Agent) for the purchase of
the aggregate amount of the Specified Currency payable on such
payment date, for settlement on such payment date, and at which
the applicable dealer timely commits to execute a contract. If
no such bid quotations are available, payments will be made in
the Specified Currency. All currency exchange costs will be
borne by the Holder of the Debt Security by deductions from such
payments.
If payments of principal, premium, if any, or interest, if
any, with respect to a Debt Security are required to be made in a
Specified Currency and such Specified Currency is not available
to the Company for any such payment due to the imposition of
exchange controls or other circumstances beyond the control of
the Company, or if such Specified Currency is no longer used by
the government of the country issuing such currency or is no
longer used or is no longer generally available for use for the
settlement of transactions by public institutions within the
international banking community, then the Company will be
entitled to satisfy its payment obligations with respect to such
Debt Security by making such payments in U.S. dollars. The
amount of each such payment in U.S. dollars will be computed on
the basis of the Market Exchange Rate in effect with respect to
such Specified Currency on the second New York Business Day prior
to the applicable payment date or, if the Market Exchange Rate in
effect on such date cannot be readily determined, then on the
basis of the highest bid quotation (assuming European-style
quotation -- i.e., Specified Currency per U.S. dollar) received
by the Exchange Rate Agent on the second New York Business Day
prior to the applicable payment date from three recognized
foreign exchange dealers in the City of New York (one of which
may be the Exchange Rate Agent) for the purchase of the aggregate
amount of the Specified Currency payable on such payment date,
for settlement on such payment date, and at which the applicable
dealer timely commits to execute a contract. No payment in
U.S. dollars made under such circumstances will constitute an
Event of Default.
If payments of principal, premium, if any, or interest, if
any, with respect to a Debt Security are required to be made in a
composite currency and the composition of such composite currency
is at any time altered (whether by the addition, elimination,
combination, or subdivision of one or more components, by
adjustment of the ratio of any component to the composite unit,
or by any combination of such events), then the Company will be
entitled to satisfy its payment obligations with respect to such
Debt Security by making such payments in such composite currency
as altered. See "Currency and Index-Related Risk Factors".
Interest and Principal Payments
The Holder in whose name a Debt Security is registered with
the Trustee at the close of business on any given Record Date
(see Glossary) will be entitled to the payment of principal,
premium, if any, and/or interest, if any, payable on the
applicable payment date (such Holder the "Holder of Record").
The Record Date with respect to a payment of principal (other
than a payment of principal payable on a Maturity Date) will be
the fifteenth day prior to the applicable Principal Payment Date.
The Record Date with respect to a payment of interest (other than
a payment of interest payable on a Maturity Date) will be the
fifteenth day prior to the applicable Interest Payment Date. The
initial interest payment on a Debt Security will be made on the
first Interest Payment Date occurring at least 15 calendar days
after the date of issue to the Holder of Record as of the
applicable Record Date. Any payment of principal, premium,
and/or interest payable on a Maturity Date will be payable to the
Holder in whose name the Debt Security is registered as of such
date.
-7-
Any U.S. dollar payment of principal, premium, if any, and
interest, if any, on a Debt Security, other than principal,
premium, if any, or interest, if any, payable on the Maturity
Date, will be made by check mailed to the registered address of
the Holder of Record as of the applicable Record Date.
U.S. dollar payments of principal, premium, if any, and interest,
if any, payable on the Maturity Date will be made in immediately
available funds upon presentation and surrender of the Debt
Security at the office of the Paying Agent located at 4 MetroTech
Center, Brooklyn, New York 11245. The foregoing notwithstanding,
(a) the Depositary, as Holder of Record of Global Debt
Securities, will be entitled to receive U.S. dollar payments of
principal, premium, if any, and interest, if any, by wire
transfer of immediately available funds, and (b) any Holder of
Record of $10,000,000 or more in aggregate principal amount of
Debt Securities of the same series issued in definitive form will
be entitled to receive U.S. dollar payments of principal,
premium, if any, and/or interest, if any, by wire transfer of
immediately available funds, provided, that the Paying Agent
receives from such Holder of Record a written request with
appropriate wire transfer instructions no later than 15 calendar
days prior to such date. Non-U.S. dollar payments of principal,
premium, if any, and interest, if any, on a Debt Security will be
made by wire transfer of funds in the Specified Currency to an
account maintained by the Holder of Record with a bank located
outside the United States, in accordance with appropriate written
wire transfer instructions to be provided by the Holder of Record
to the Paying Agent no later than 15 calendar days prior to the
applicable payment date. If such wire transfer instructions are
not so provided, such non-U.S. dollar payments on such Debt
Security will be made by check payable in the Specified Currency
mailed to the registered address of the Holder of Record.
Certain Debt Securities, including Discount Debt Securities,
may be considered to be issued with original issue discount. The
beneficial owners of such Debt Securities must include such
discount in income for United States federal income tax purposes
at a constant rate. See "United States Tax Considerations--OID
Debt Securities". If the principal of any Discount Debt Security
is declared to be immediately due and payable as described below
under "Description of Certain Indenture Provisions--Events of
Default", the amount of principal due and payable with respect to
such Discount Debt Security will be limited to the aggregate
principal amount of such Discount Debt Security multiplied by the
sum of its Issue Price (expressed as a percentage of the
aggregate principal amount) plus the original issue discount
amortized from the date of issue to the date of declaration (also
expressed as a percentage of the aggregate principal amount),
which amortization will be calculated using the "interest method"
(computed in accordance with generally accepted accounting
principles in effect on the date of declaration). Special
considerations applicable to any such Debt Securities will be set
forth in the applicable Pricing Supplement.
Fixed Rate Debt Securities
Each Fixed Rate Debt Security will bear interest at the rate
stated on the face thereof and in the applicable Pricing
Supplement until the principal thereof is paid or duly made
available for payment. Such interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Interest payments on each Fixed Rate Debt Security will
include interest accrued from (and including) the Interest
Accrual Date or the last date in respect of which interest has
been paid, as the case may be, to (but excluding) the next
succeeding Interest Payment Date or the Maturity Date, as the
case may be. The interest rates that the Company will agree to
pay on newly-issued Fixed Rate Debt Securities are subject to
change without notice from time to time, but no such change will
affect any Fixed Rate Debt Security previously issued.
If any Interest Payment Date or Principal Payment Date
(including the Maturity Date) for any Fixed Rate Debt Security
would fall on a day that is not a New York Business Day, the
payment of interest and/or principal (and premium, if any) that
would otherwise be payable on such date will be postponed to the
next succeeding New York Business Day, and no additional interest
on such payment will accrue as a result of such postponement.
-8-
Floating Rate Debt Securities
Each Floating Rate Debt Security will bear interest until
the principal thereof is paid or duly made available for payment
at a rate to be determined by reference to the base rate
specified in the applicable Pricing Supplement (the "Base Rate"),
plus or minus the "Spread", if any, and/or (i) multiplied by the
"Spread Multiplier", if any, or (ii) divided by the "Spread
Divisor", if any. The "Spread" is the number of basis points
(each basis point being equal to one one-hundredth of a
percentage point) to be added to or subtracted from the Base
Rate. The "Spread Multiplier", if any, and the "Spread Divisor",
if any, are the amounts by which the Base Rate, or the Base Rate
as adjusted by the Spread, will be multiplied or divided. The
Spread, if any, the Spread Multiplier, if any, the Spread
Divisor, if any, and the period of maturity of the instrument or
obligation with respect to which the Base Rate is calculated (the
"Index Maturity") will be specified in the applicable Pricing
Supplement.
If specified in the applicable Pricing Supplement, a
Floating Rate Debt Security may also have either or both of the
following: (i) a maximum limitation, or ceiling, on the rate of
interest that may accrue during any interest period (a "Maximum
Interest Rate"), and (ii) a minimum limitation, or floor, on the
rate of interest that may accrue during any interest period (a
"Minimum Interest Rate"). In addition to any Maximum Interest
Rate that may be applicable to a Floating Rate Debt Security, the
interest rate on a Floating Rate Debt Security will be limited to
the maximum rate permitted by New York law, as the same may be
modified by United States law of general application.
The rate of interest on each Floating Rate Debt Security
will be reset daily, weekly, monthly, quarterly, semiannually,
annually, or otherwise, as specified in the applicable Pricing
Supplement (each such period an "Interest Period" and the first
day of any Interest Period an "Interest Reset Date"). The
foregoing notwithstanding (i) the interest rate in effect from
the Interest Accrual Date to the first Interest Reset Date will
be the initial interest rate specified in the applicable Pricing
Supplement (the "Initial Interest Rate"), (ii) the interest rate
in effect for the 15 calendar days prior to any Maturity Date
other than the Scheduled Maturity Date will be the interest rate
in effect on the fifteenth day preceding such Maturity Date, and
(iii) with respect to any Floating Rate Debt Security for which
interest is reset daily or weekly, the interest rate in effect
for the two-day period immediately preceding any Interest Payment
Date will be the interest rate that was in effect on the first
day of such two-day period. If any Interest Reset Date for a
Floating Rate Debt Security would otherwise be a day that is not
a New York Business Day, such Interest Reset Date will be the
next succeeding New York Business Day, provided, however, that in
the case of a Floating Rate Debt Security whose interest rate is
determined by reference to LIBOR (as defined in the applicable
Pricing Supplement), if the next succeeding New York Business Day
falls in the next succeeding calendar month, such Interest Reset
Date will be the immediately preceding New York Business Day.
Interest payments on a Floating Rate Debt Security will be
equal to the amount of interest accrued from (and including) the
Interest Accrual Date or from (and including) the last date to
which interest has been paid, as the case may be, to (but
excluding) the applicable Interest Payment Date, except that
interest payable on the Maturity Date will include interest
accrued to (but excluding) the Maturity Date. If any Interest
Payment Date (other than the Maturity Date) for any Floating Rate
Debt Security would otherwise be a day that is not a New York
Business Day, the payment of interest that would otherwise be
payable on such date will be postponed to the next succeeding New
York Business Day, provided, however, that in the case of a
Floating Rate Debt Security whose interest rate is determined by
reference to LIBOR (as defined in the applicable Pricing
Supplement), if the next succeeding New York Business Day falls
in the next succeeding calendar month, such Interest Payment Date
will be the immediately preceding New York Business Day. If the
Maturity Date for any Floating Rate Debt Security falls on a day
that is not a New York Business Day, the payment of principal,
premium, if any, and interest, if any, otherwise payable on such
date will be postponed to the next succeeding New York Business
Day, and no interest on such payment will accrue as a result of
such postponement.
Accrued interest on a Floating Rate Debt Security will be
calculated by multiplying the principal amount of such Floating
Rate Debt Security (or, in the case of a Floating Rate Debt
Security whose
-9-
principal amount is determined by reference to a
specified index, the face amount of such Floating Rate Debt
Security) by an accrued interest factor. The accrued interest
factor will be computed as the sum of the interest factors
calculated for each day in the period for which interest is being
paid. The interest factor for any day in such period will be
computed by dividing the interest rate in effect on such day by
360, or as otherwise specified in the applicable Supplement.
Upon the request of the Holder of any Floating Rate Debt
Security, the Calculation Agent will provide the interest rate
then in effect and, if determined, the interest rate that will
become effective on the next Interest Reset Date.
Indexed Debt Securities
The Company may, from time to time, issue Indexed Debt
Securities with respect to which the principal amount payable on
any Principal Payment Date and/or the amount of interest payable
on any Interest Payment Date will be determined by reference to
the relative value of one or more Specified Currencies or
commodities, the level of one or more financial or non-financial
indices, and/or any other factor or factors identified in the
applicable Pricing Supplement (such identified currencies,
commodities, indices, and/or other factors applicable to the
determination of principal or interest payable with respect to a
given Debt Security the "applicable Index"). A Fixed Rate Debt
Security that is also an Indexed Debt Security may pay an
aggregate principal amount that is greater or less than the face
amount thereof, depending on the relative value or level of the
applicable Index. A Floating Rate Debt Security that is also an
Indexed Debt Security may pay interest and/or an aggregate
principal amount that is greater or less than the face amount
thereof, in each case depending on the relative value or level of
the applicable Index. Specific information regarding a
particular Indexed Debt Security, including the face amount
thereof, the method for determining the principal amount payable
on any Principal Payment Date (if applicable), and the method for
determining the amount of interest payable on any Interest
Payment Date (if applicable) will be set forth in the applicable
Pricing Supplement.
Global Debt Securities
All Debt Securities of a given series will be represented by
a single Global Debt Security issued in a denomination equal to
the aggregate principal amount of the Debt Securities represented
thereby. Upon issuance of a Global Debt Security, the respective
principal amounts of the Debt Securities represented thereby will
be credited by the Depositary, on its book-entry registration and
transfer system, to the account of one or more institutions that
have established an account with the Depositary (each such
institution a "Participant"). The particular accounts to be
credited will be designated by the underwriters or agents through
which the subject Debt Securities were sold, or by the Company if
the subject Debt Securities were offered and sold directly by the
Company. Ownership of beneficial interests in a Global Debt
Security will be limited to Participants and to those persons who
hold interests in a Global Debt Security through Participants.
Ownership of beneficial interests in a Global Debt Security will
be shown on, and transfers of such ownership will be effected
only through, records maintained by the Depositary (with respect
to beneficial interests of Participants) or by Participants (with
respect to beneficial interests of persons other than
Participants). As long as the Depositary or its nominee (as the
case may be) is the registered Holder of any Global Debt
Security, the Depositary or such nominee (as the case may be)
will be considered the sole owner and holder of the Debt
Securities represented thereby for all purposes under the
Indenture. Except under the circumstances described below,
owners of beneficial interests in a Global Debt Security will not
be entitled to have the underlying Debt Securities registered in
their names and will not receive or be entitled to receive
physical delivery of the underlying Debt Securities in definitive
form.
Payments of principal, premium, if any, and interest, if
any, with respect to Debt Securities represented by a Global Debt
Security will be made to the Depositary or its nominee, as the
case may be, as the registered owner thereof. None of the
Company, the Trustee, or any Paying Agent for the underlying Debt
Securities will have any responsibility or liability for any
aspect of the records relating to, or for payments made on
account of, beneficial ownership interests in a Global Debt
Security, or for maintaining,
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supervising, or reviewing any records relating to such beneficial ownership
interests.
The Company expects that, immediately upon receipt of any
payment of principal, premium, or interest with respect to the
Debt Securities represented by a Global Debt Security, the
Depositary will credit each Participant's account with the amount
of such payment that is proportionate to its respective ownership
interest in the principal amount of such Global Debt Security (as
shown on the records of the Depositary). Payments by
Participants to persons who hold beneficial interests in such
Global Debt Security through such Participants will be the
responsibility of such Participants; the Company expects that
such payments will be governed by standing instructions and
customary practices, as is now the case with respect to
securities registered in "street name" and held by financial
institutions for the accounts of customers.
Owners of beneficial interests in a Global Debt Security
will not receive or be entitled to receive physical delivery of
the underlying Debt Securities in definitive form, provided,
however, that (i) if the Depositary for any Debt Securities
represented by a Global Debt Security is at any time unwilling or
unable to continue as depositary, and a successor depositary is
not appointed by the Company within 90 days, the Company will
issue such Debt Securities in definitive form in exchange for
such Global Debt Security, (ii) the Company may, at any time and
in its sole discretion, determine not to have any Debt Securities
of a series represented by one or more Global Debt Securities, in
which event the Company will issue Debt Securities of such series
in definitive form in exchange for the related Global Debt
Security, and (iii) if the Company so provides with respect to a
series of Debt Securities represented by a Global Debt Security,
the Depositary may, on terms acceptable to the Company and the
Depositary, direct that one or more owners of a beneficial
interest in a Global Debt Security receive Debt Securities of
such series in definitive form and in a principal amount equal to
such beneficial interest in the Global Debt Security.
Unless and until it is exchanged in whole or in part for
Debt Securities in definitive form, a Global Debt Security may
not be transferred except as a whole by the Depositary to a
nominee of the Depositary, or by a nominee of the Depositary to
either the Depositary or another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary and, in any such case, with
the written consent of the Company.
Certain Indenture Provisions
Restrictive Covenant: The Indenture contains a covenant
that neither the Company nor any Restricted Subsidiary (see
Glossary) will incur, guarantee, or suffer to exist any indebtedness for
borrowed money ("Debt"), secured by an mortgage, pledge or lien on
any Restricted Property (see Glossary) or on any shares of stock
of any Restricted Subsidiary unless the Debt Securities (and, at the
option of the Company or a Restricted Subsidiary, as the case may be, any
other debt not subordinate to the Debt Securities) are secured at least
equally and ratably with such Debt for as long as such Debt remains so
secured, subject to certain exceptions specified in the Indenture.
Such exceptions include: (i) liens existing prior to the issuance of
the Debt Securities; (ii) liens on property or shares of stock of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary; (iii) liens on property or shares of stock existing when
acquired (including acquisition through merger or consolidation) or
securing the payment of all or any part of the purchase price,
construction, or improvement thereof or securing the payment of all
or any part of the purchase price, construction, or improvement thereof or
securing any Debt incurred prior to, at the time of, or within 120
days after the later of the acquisition, the completion of
construction, or the commencement of full operation of such property or
within 120 days after the acquisition of such shares for the purpose
of financing all or any portion of the purchase price thereof or
construction thereon; (iv) liens in favor of the Company or a Restricted
Subsidiary; (v) certain liens in favor of, or required by contracts with,
governmental entities; (vi) any extension, renewal, or replacement of any
lien referred to in any of the preceding clauses (i) through (vi); and
(vii) liens otherwise prohibited by such covenant, securing Debt
which, together with the aggregate amount of outstanding
indebtedness secured by liens otherwise prohibited by such
covenant, does not exceed 10% of the Company's Consolidated Net
Tangible Assets (see Glossary). The Indenture does not restrict
the transfer of a Restricted Property to an Unrestricted
Subsidiary (see Glossary) or the change in designation of a
subsidiary owning a Restricted Property from a Restricted
Subsidiary to an Unrestricted Subsidiary.
-11-
There are no other restrictive covenants contained in the
Indenture. The Indenture does not contain any provision that
will restrict the Company from entering into one or more
additional indentures providing for the issuance of debt
securities or warrants, or from incurring, assuming, or becoming
liable with respect to any indebtedness or other obligation,
whether secured or unsecured, or from paying dividends or making
other distributions on its capital stock, or from purchasing or
redeeming its capital stock. The Indenture does not contain any
financial ratios or specified levels of net worth or liquidity to
which the Company must adhere. In addition, the Indenture does
not contain any provision that would require that the Company
repurchase, redeem, or otherwise modify the terms of any of the
Debt Securities upon a change in control or other event involving
the Company that may adversely affect the creditworthiness of the
Company or the value of the Debt Securities.
Consolidation, Merger, and Sale of Assets: The Indenture
provides that the Company may, without the consent of the Holders
of any of the Debt Securities then outstanding, consolidate or
merge with or into, or transfer or lease all or substantially all of its
assets to, any corporation that is organized and validly existing
under the laws of any domestic jurisdiction, and may permit any
such corporation to consolidate with or merge into the Company or
convey, transfer, or lease all or substantially all of its assets to the
Company, provided, (i) that either the Company will be the
surviving corporation or, if not, that the successor corporation
will expressly assume by a supplemental indenture the due and
punctual payment of the principal, premium, if any, and interest,
if any, on the Debt Securities and the performance of every
covenant of the Indenture to be performed or observed by the
Company, and (ii) the Company or such successor corporation will
not, immediately after such merger, consolidation, sale, or
conveyance, be in default in the performance of any such
obligations. In the event of any such consolidation, merger,
conveyance, or transfer, any such successor corporation will
succeed to and be substituted for the Company as obligor on the
Debt Securities with the same effect as if it had been named in
the Indenture as the "Company".
Modification of the Indenture: With certain exceptions, the
Holders of a majority in aggregate principal amount of
outstanding Debt Securities of a given series may, on behalf of
the Holders of all then outstanding Debt Securities of such
series, consent to a modification of the Indenture affecting all
such Holders' rights thereunder and/or under such Debt
Securities, provided, however, that the consent of the Holders of
at least 75% in aggregate principal amount of outstanding Debt
Securities of a given series must consent to extend the time for
payment of any installment of interest payable with respect to
such Debt Securities, and provided, further, that except to the
extent described in the immediately preceding proviso, the right
of any Holder of any outstanding Debt Security to receive payment
when due of any payment of principal, premium, or interest
payable with respect to such Debt Security, or to institute suit
for the enforcement of any such payment, will not be impaired or
affected without the consent of such Holder.
The Indenture may be modified by the Company and the Trustee
without the consent of any of the Holders of the Debt Securities
to (i) evidence the succession of another corporation to the
Company, (ii) add to the covenants of the Company,
(iii) surrender any right or power of the Company, (iv) cure any
ambiguity, (v) add any provisions expressly permitted by the
Trust Indenture Act of 1939, as amended, (vi) establish any form
of Debt Security, provide for the issuance of any series of Debt
Securities, set forth the terms of any series of Debt Securities,
or add to the rights of Holders of Debt Securities of any series,
(vii) evidence and provide for the acceptance of a successor
trustee, (viii) establish additional events of default, and
(ix) provide for the issuance of Debt Securities in bearer form
provided that no modification may be made with respect to the
matters described in clauses (ii), (iii), (iv), (vi), or
(viii) if it is reasonably determined that to do so would
adversely affect the interests of the Holders of any outstanding
Debt Securities of any series.
Events of Default, Notice, and Waiver: The Indenture
provides that each of the following events constitutes an Event
of Default with respect to a given series of Debt Securities
(other than any such series that has been issued under or
modified by a supplemental indenture or Board Resolution (as
defined in the Indenture) in which such event is specifically
deleted): (i) failure to make any payment of principal or
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premium, if any, when due (whether at maturity, upon redemption,
at declaration, or otherwise) on the Debt Securities of such
series, (ii) failure to make any payment of interest when due on
the Debt Securities of such series, which failure is not cured
within 30 days, provided, however, that the Holders of not less
than 75% of the then outstanding Debt Securities of such series
shall not have consented to a postponement of such payment,
(iii) failure to make payment when due of any sinking fund or
purchase fund installment or analogous obligation, if any, on the
Debt Securities of such series, which failure is not cured within
30 days, (iv) failure of the Company to observe or perform any of
its other covenants or warranties under the Indenture for the
benefit of the Holders of such series, which failure is not cured
within 90 days after notice is given as specified in the
Indenture, and (v) certain events of bankruptcy, insolvency, or
reorganization of the Company. A default under other
indebtedness of the Company will not constitute a default under
the Indenture, and a default under one series of Debt Securities
will not constitute a default under any other series of Debt
Securities.
If any Event of Default described in clause (i), (ii), or
(iii) of the immediately preceding paragraph shall have occurred,
then either the Trustee or the Holders of no less than 51% in
aggregate principal amount of the outstanding Debt Securities of
the applicable series may declare the principal (or, in the case
of Discount Debt Securities, the portion thereof specified by the
terms thereof) of all outstanding Debt Securities of such series,
and the interest, if any, accrued thereon, to be immediately due
and payable. If any Event of Default described in clause (iv) or
(v) of the immediately preceding paragraph shall have occurred
and shall affect more than one series of Debt Securities, then
either the Trustee or the Holders of no less than 51% in
aggregate principal amount of the outstanding Debt Securities of
each affected series may declare the principal (or, in the case
of Discount Debt Securities, the portion thereof specified by the
terms thereof) of all outstanding Debt Securities of such series
and the interest, if any, accrued thereon, to be immediately due
and payable. However, declarations of default may be rescinded
and past defaults (other than any Event of Default described in
clause (ii) of the immediately preceding paragraph) may be waived
by the Holders of a majority in principal amount of the
outstanding Debt Securities of the applicable series.
The Indenture requires the Trustee to give to the Holders of
each series of Debt Securities notice of all uncured defaults
known to the Trustee with respect to such series within 90 days
after such default occurs (the term "default" used here to
include the Events of Default summarized above, exclusive of any
grace period or requirement that notice of default be given),
provided, however, that except in the case of a default in the
payment of principal, premium, if any, or interest, if any, on
the outstanding Debt Securities of such series, or a default in
the payment of any sinking fund or purchase fund installment or
analogous obligation with respect to such series of Debt
Securities, the Trustee will be protected in withholding such
notice if it in good faith determines that the withholding of
such notice is in the interests of the Holders of the outstanding
Debt Securities of such series.
No Holder of any Debt Securities of any series may institute
any action under the Indenture unless and until (i) such Holder
has given the Trustee written notice of an Event of Default,
(ii) the Holders of not less than 51% in aggregate principal
amount of the outstanding Debt Securities of such series have
requested the Trustee to institute proceedings in respect of such
Event of Default, (iii) such Holder or Holders has or have
offered the Trustee such reasonable indemnity as the Trustee may
require, (iv) the Trustee has failed to institute an action for
60 days thereafter, and (v) no inconsistent direction has been
given to the Trustee during such 60-day period by the Holders of
not less than 51% in aggregate principal amount of the
outstanding Debt Securities of such series.
The Holders of a majority in aggregate principal amount of
the outstanding Debt Securities of any series will have the
right, subject to certain limitations, to direct the time,
method, and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power
conferred on the Trustee with respect to such series of Debt
Securities. The Indenture provides that if an Event of Default
shall have occurred and be continuing, the Trustee, in exercising
its rights and powers under the Indenture, will be required to
use the degree of care of a prudent person in the conduct of his
or her own affairs. The Indenture further provides that the
Trustee will not be required to expend or risk its own funds, or
otherwise
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incur any financial liability in the performance of any
of its duties under the Indenture, unless it has reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is reasonably assured.
The Company is required to deliver to the Trustee, within
120 days after the end of each fiscal year, a certificate signed
by certain officers of the Company stating whether such officers
have obtained knowledge of any default by the Company in the
performance of certain covenants and, if so, specifying such
default.
Principal Amount of Debt Securities Denominated in a
Specified Currency: For the purposes of determining whether the
Holders of the requisite principal amount of Debt Securities
denominated in a Specified Currency have taken any action as
provided under the Indenture, the principal amount of such Debt
Securities will be deemed to be that amount of U.S. dollars that
could be obtained for such principal amount on the basis of the
spot rate of exchange into U.S. dollars for the Specified
Currency in which such Debt Securities are denominated (as
evidenced to the Trustee by a certificate provided by a financial
institution, selected by the Company, that maintains an active
trade in such Specified Currency, acting as conversion agent) as
of the date of the taking of such action.
Defeasance and Discharge of Covenants: The Indenture
provides that the Company, at its option, (i) will be discharged
from any and all obligations with respect to the Debt Securities
of any series (except for certain obligations to register the
transfer or exchange of such Debt Securities, to replace any such
Debt Securities that have been stolen, lost, or mutilated, and to
maintain paying agencies and hold moneys for payment in trust in
respect of such Debt Securities), or (ii) need not comply with
certain covenants of the Indenture with respect to the Debt
Securities of any series (including those described in the
preceding paragraphs captioned "Restrictive Covenant" and
"Consolidation, Merger, and Sale of Assets"), in each case:
(a) if the Company irrevocably deposits with the Trustee, in
trust, money, U.S. Government Obligations, and/or Equivalent
Government Securities (each as defined in the Indenture) which,
through the payment of interest thereon and principal thereof in
accordance with their respective terms, will provide money in an
amount sufficient to pay all the principal of (including any
mandatory sinking fund payments) and interest, if any, on, such
Debt Securities, (b) such Debt Securities will not thereby be
delisted from any stock exchange on which they may be listed,
(c) no Event of Default shall have occurred and be continuing
with respect to such Debt Securities, and (d) the Company
delivers to the Trustee an opinion of counsel to the effect that
such deposit and defeasance will not cause the Holders of such
Debt Securities to recognize income, gain, or loss for Federal
income tax purposes.
The Trustee: The Chase Manhattan Bank (National
Association), the Trustee under the Indenture, is also trustee
under other indentures under which unsecured debt of the Company
and its subsidiaries is outstanding, is a depositary of the
Company, has from time to time made loans to the Company and its
subsidiaries, and has performed other services for the Company
and its subsidiaries in the normal course of its business,
including the establishment and management of investment
accounts.
CURRENCY AND INDEX-RELATED RISK FACTORS
Currency Exchange Rates
Investments in Debt Securities denominated or payable in a
Specified Currency, and in Debt Securities the principal of
and/or interest on which will be determined by the relative value
of a Specified Currency, entail significant risks (over which the
Company has no control) that are not associated with similar
investments in Debt Securities denominated and payable in
U.S. dollars and bearing a fixed rate of interest. Such risks
include, without limitation, the possibility of significant
changes in the rate of exchange between the U.S. dollar and any
such Specified Currency and the possibility of the imposition or
modification of exchange controls by either the United States or
any foreign government with respect to such Specified Currency
(or component thereof, as the case may be), which risks generally
depend on
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domestic and international economic and political
events. In recent years, rates of exchange between the
U.S. dollar and certain foreign currencies have been highly
volatile and such volatility may occur in the future. The
exchange rate between the U.S. dollar and any Specified Currency
(or component thereof, as the case may be) is at any moment a
result of the supply and demand for such currencies and changes
in such exchange rate result over time from the interaction of
many factors, including rates of inflation, interest rate levels,
balances of payments, and the extent of governmental surpluses or
deficits in the countries that have issued such currencies.
These factors are in turn sensitive to the monetary, fiscal, and
trade policies pursued by such countries' governments and those
of other countries important to international trade and finance.
Fluctuations in any particular exchange rate that have occurred
in the past are not necessarily indicative, however, of
fluctuations in the rate that may occur during the term of any
Debt Security. Depreciation against the U.S. dollar of the
currency in which a Debt Security is payable would result in a
decrease in the effective yield of such Debt Security below its
coupon rate and, in certain circumstances, could result in the
loss to the investor on a U.S. dollar basis. In addition,
depending on the specific terms of a currency-linked Debt
Security, changes in exchange rates relating to any of the
currencies involved may result in a decrease in the effective
yield of such Debt Security and, in some circumstances, could
result in a loss to the investor of all or a substantial portion
of the principal thereof. See also "Indexed Payments" below.
Currency Exchange Controls
An investment in a Debt Security payable in a Specified
Currency is subject to the additional risk that such Specified
Currency may not be available at the time a payment of principal,
premium, if any, or interest, if any, on such Debt Security
becomes due. Governments have from time to time imposed exchange
controls affecting the general availability of certain Specified
Currencies and the imposition or modification of exchange
controls by either the United States or any foreign government
could affect the availability of one or more Specified Currencies
in the future. Even in the absence of such exchange controls,
the interaction of various economic and political factors could
result in the unavailability of one or more Specified Currencies
at any given time. If the Specified Currency in which any
payment under a Debt Security would otherwise be required is for
any reason not available at the time such payment becomes due,
the Company will make such payment in U.S. dollars on the basis
of the Market Exchange Rate on the date of such payment, or if
such rate of exchange is not then available, then on the basis of
the highest bid quotation (assuming European-style quotation --
i.e., Specified Currency per U.S. dollar) received by the
Exchange Rate Agent on the second New York Business Day prior to
the applicable payment date from three recognized foreign
exchange dealers in the City of New York (one of which may be the
Exchange Rate Agent) for the purchase of the aggregate amount of
the Specified Currency payable on such payment date, for
settlement on such payment date, and at which the applicable
dealer timely commits to execute a contract. No payment in
U.S. dollars made under such circumstances will constitute an
Event of Default. See "Description of Debt Securities--Payment
Currency".
Indexed Payments
Investments in Indexed Debt Securities the principal of
and/or interest on which will be determined by the relative value
or level of a designated Index entail significant risks (over
which the Company has no control) that are not associated with
similar investments in conventional fixed rate debt securities
paying a fixed amount of principal. The value or level of any
applicable Index (and, accordingly, the amount of principal
and/or interest, as the case may be, payable on an Indexed Debt
Security) may at any time be affected by the interaction of
various factors, including domestic and international economic
and political events. These factors may in turn be affected by
the monetary, fiscal, and trade policies pursued by the United
States and by other countries important to international trade
and finance. In addition, if the formula used to determine the
amount of principal and/or interest (as the case may be) payable
with respect to an Indexed Debt Security contains a multiple or
leverage factor, the effect of any fluctuation in such Index will
be increased. A decline in the relative value or level of such
Index would result in a decrease in the effective yield of the
applicable Indexed Debt Security and, in certain circumstances,
could result in a loss
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to the investor of all or a substantial portion of the principal thereof.
Fluctuations in any particular Index that have occurred in the past are not
necessarily indicative of fluctuations in such Index that may occur during
the term of the applicable Indexed Debt Security.
Governing Law and Foreign Currency Judgments
The Indenture and the Debt Securities will be governed by
and construed in accordance with the laws of the State of New
York. United States courts have not customarily rendered
judgments for money damages denominated in any currency other
than the U.S. dollar. However, New York State law provides that
an action based upon an obligation (such as a Debt Security)
denominated in a currency other than U.S. dollars will be
rendered in the foreign currency of the underlying obligation and
converted into U.S. dollars at the rate of exchange prevailing on
the date of the entry of the judgment or decree.
THIS PROSPECTUS (AS SUPPLEMENTED BY ANY APPLICABLE PRICING
SUPPLEMENT) DOES NOT DESCRIBE ALL THE RISKS OF AN INVESTMENT IN
INDEXED DEBT SECURITIES OR IN DEBT SECURITIES DENOMINATED OR
PAYABLE IN A SPECIFIED CURRENCY. THE COMPANY DISCLAIMS ANY
RESPONSIBILITY TO ADVISE PROSPECTIVE PURCHASERS OF SUCH RISKS AS
THEY EXIST AT THE DATE OF THIS PROSPECTUS OR ANY APPLICABLE
PRICING SUPPLEMENT OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME.
PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN LEGAL, TAX, AND
FINANCIAL ADVISORS AS TO THE RISKS ENTAILED IN AN INVESTMENT IN
INDEXED DEBT SECURITIES OR IN DEBT SECURITIES DENOMINATED OR
PAYABLE IN A SPECIFIED CURRENCY. SUCH DEBT SECURITIES ARE NOT AN
APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH
RESPECT TO INVESTMENTS IN DERIVATIVE SECURITIES AND (WITH RESPECT
TO AN INVESTMENT IN DEBT SECURITIES DENOMINATED OR PAYABLE IN A
SPECIFIED CURRENCY OR IN DEBT SECURITIES WHOSE PRINCIPAL AND/OR
INTEREST WILL BE DETERMINED BY THE RELATIVE VALUE OF A SPECIFIED
CURRENCY) ARE UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY
TRANSACTIONS.
The information set forth in this Prospectus and/or any
applicable Pricing Supplement is directed to prospective
purchasers who are residents of the United States. The Company
disclaims any responsibility to advise prospective purchasers as
to issues regarding the purchase or ownership of or receipt of
payments under any Debt Security by residents of countries other
than the United States except with respect to certain federal tax
issues. See "United States Tax Considerations- Non-United States
Holders". Persons who are not residents of the United States are
advised to consult their own legal, tax, and financial advisors
with regard to such matters.
UNITED STATES TAX CONSIDERATIONS
The following summary is a general discussion of certain
United States federal income tax consequences resulting from the
ownership and disposition of Debt Securities and does not address
the tax consequences of the ownership or disposition of Warrants.
A discussion of the material United States federal income tax
consequences, if any, resulting from the ownership and
disposition of Warrants of any particular series will be provided
in the applicable Prospectus Supplement.
This discussion deals only with Debt Securities held as
capital assets within the meaning of Section 1221 of the Internal
Revenue Code of 1986, as amended to the date hereof (the "Code"),
and does not address special classes of holders, such as life
insurance companies, dealers in securities or foreign currencies,
tax exempt organizations, persons holding Debt Securities as a
hedge or hedged against currency risks, persons holding Debt
Securities as part of a straddle within the meaning of Section
1092 of the Code or as part of a conversion transaction within
the meaning of Section 1258(c) of the Code, or persons whose
functional currency (as defined in Section 985 of the Code) is
not the U.S. dollar. It does
-16-
not deal with holders other than the original purchaser and does not discuss
the "market discount rules" or the "acquisition premium rules". This
discussion does not include any description of the tax laws of any state or
local government or of any foreign government that may be applicable to
Debt Securities. The United States federal income tax
consequences of the ownership and disposition of a particular
Debt Security will depend, in part, on the particular terms of
the Debt Security as set forth in the applicable Pricing
Supplement.
This summary is based on the Code, and United States
Department of Treasury regulations, Internal Revenue Service
("IRS") rulings, and judicial decisions as of the date hereof,
all of which are subject to change at any time. Such changes may
be applied retroactively in a manner that could adversely affect
the holder of a Debt Security. These authorities are subject to
various interpretations and it is therefore possible that the
United States federal income tax treatment of any series of Debt
Securities may differ from the treatment described below.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH BELOW IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE
DEPENDING UPON A HOLDER'S PARTICULAR SITUATION. PERSONS
CONSIDERING THE PURCHASE OF DEBT SECURITIES SHOULD CONSULT THEIR
OWN TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES OF THE
PURCHASE, OWNERSHIP, AND DISPOSITION OF DEBT SECURITIES,
INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND
OTHER TAX LAWS, AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR
OTHER TAX LAWS.
United States Holders
For purposes of this discussion, the term "United States
Holder" means a beneficial owner of a Debt Security that, for
United States federal income tax purposes, is (i) a citizen or
resident of the United States, (ii) a corporation, partnership,
or other entity created or organized in or under the laws of the
United States or of any political subdivision thereof, or
(iii) an estate or trust subject to United States federal income
taxation without regard to the source of its income.
Payment of Interest. Interest paid on a Debt Security other
than interest on an "OID Debt Security" that is not "qualified
stated interest" (as such terms are defined below), generally
will be taxable to a United States Holder as ordinary interest
income at the time it is accrued or received, in accordance with
the United States Holder's method of accounting for federal
income tax purposes.
Original Issue Discount. The following discussion is a
summary of the principal United States federal income tax
consequences of the ownership and disposition of OID Debt
Securities, which for purposes of this discussion means any Debt
Security that is treated as having been issued with original
issue discount ("OID"), as described below. The rules governing
the tax treatment of OID Debt Securities may vary depending on
the specific terms of such Debt Security, as set forth in the
applicable Pricing Supplement. The following summary is based in
part upon the OID provisions of the Code and regulations issued
thereunder on January 27, 1994 (the "OID Regulations"). The OID
Regulations are to be effective generally for Debt Securities
issued on or after April 4, 1994.
A Debt Security will be treated as having been issued with
OID if its "stated redemption price at maturity" exceeds its
"issue price" by more than a de minimis amount. In general, the
excess of stated redemption price at maturity over issue price is
treated as de minimis if the amount of OID on the instrument is
less than 1/4 of 1 percent of the Debt Security's stated
redemption price at maturity multiplied by the number of complete
years from issuance to maturity. Under the OID Regulations,
special de minimis OID rules apply to certain types of debt
instruments, including installment obligations (defined by the
OID Regulations as debt instruments that provide for the payment
of any amount other than "qualified stated interest" prior to
maturity) and Variable Rate Debt Securities (defined below).
-17-
In general, the issue price of each Debt Security in a
particular offering will be the initial price at which a
substantial amount of that particular offering is sold. Under
the OID Regulations, if Debt Securities and Warrants are issued
together as an investment unit, the issue price for the unit is
determined by treating the investment unit as a debt instrument.
The issue price as so determined must be allocated between the
Debt Securities and the Warrants in the investment unit based on
their relative fair market values. Under the OID Regulations,
the Company's determination of the allocation will be binding
upon a holder unless the holder files a disclosure statement with
the holder's timely filed federal income tax return for the year
including the acquisition date of the investment unit. Notice
will be given in the applicable Pricing Supplement of the
Company's determination of the allocation of the issue price
where Debt Securities and Warrants are issued together as part of
an investment unit.
The stated redemption price at maturity of a Debt Security
is the total of all payments provided by the Debt Security other
than "qualified stated interest". Qualified stated interest
generally is stated interest that is unconditionally payable at
least annually in cash or in property (other than debt
instruments of the Company) at a single fixed rate applied to the
outstanding principal amount of the Debt Security. Interest is
payable at a single fixed rate only if the rate appropriately
takes into account the length of the interval between stated
interest payments.
United States Holders of OID Debt Securities (other than
certain "short-term OID Debt Securities", as defined below) will
be required to include OID in income for United States federal
income tax purposes in increasingly greater amounts in successive
"accrual periods" (as defined below), generally prior to the
receipt of corresponding cash payments, regardless of the
holder's method of accounting.
The amount of OID includible in the income of an initial
United States Holder for any taxable year is the sum of the daily
portions of OID with respect to the OID Debt Security for each
day during the taxable year or portion thereof in which such
United States Holder held the OID Debt Security ("accrued OID").
The daily portion of OID with respect to an OID Debt Security is
determined by allocating to each day in any "accrual period" a
ratable portion of the OID allocable to such accrual period. The
accrual periods may be of any length and may vary in length over
the term of the Debt Security provided that each accrual period
is no longer than one year and each scheduled payment of
principal or interest occurs on the first day or the final day of
an accrual period. In general, the amount of OID allocable to
any accrual period is an amount equal to the excess of (i) the
product of the adjusted issue price of the OID Debt Security at
the beginning of such accrual period and its yield to maturity
(determined on the basis of compounding at the close of each
accrual period and adjusted for the length of the accrual period)
over (ii) the amount of qualified stated interest, if any,
allocable to the accrual period. The "adjusted issue price" of
the OID Debt Security at the beginning of any accrual period is
equal to the original issue price of the OID Debt Security plus
the sum of the daily portions of OID with respect to the OID Debt
Security for each prior accrual period (determined without regard
to the amortization of any premium, as described below), minus
any prior payments and any payments made on the first day of the
accrual period on the OID Debt Security that were not qualified
stated interest. The term "yield to maturity" generally means
the discount rate that, when used to compute the present value of
all principal and interest payments to be made under the Debt
Security, will produce an amount equal to the issue price of the
Debt Security. In determining OID allocable to an accrual
period, if an interval between payments of qualified stated
interest contains more than one accrual period the amount of
qualified stated interest payable at the end of the interval,
(including any qualified stated interest that is payable on the
first day of the accrual period immediately following the
interval), is allocated on a pro rata basis to each accrual
period in the interval and the adjusted issue price at the
beginning of each accrual period in the interval must be
increased by the amount of any qualified stated interest that has
accrued prior to the first day of the accrual period but is not
payable until the end of the interval. OID allocable to a final
accrual period is the difference between the amount payable at
maturity (other than a payment of qualified stated interest) and
the adjusted issue price at the beginning of the final accrual
period. If all accrual periods are of equal length, except for
either an initial shorter accrual period or an initial and a
final shorter accrual period, the amount of OID allocable to the
initial accrual period may
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be computed under any reasonable method.
The OID Regulations provide special rules for "Variable Rate
Debt Securities," generally defined as a Debt Security (i) with
an issue price that does not exceed the sum of the noncontingent
principal payments to be made on the Debt Security by more than a
specified amount and (ii) that provides for stated interest that
is compounded or paid at least annually, at the current value(s)
(as defined in the OID Regulations), of (A) one or more qualified
floating rates; (B) a single fixed rate and one or more qualified
floating rates; (C) a single objective rate; or (D) a single
fixed rate and a qualified inverse floating rate. In certain
circumstances, a Debt Security bearing an initial fixed rate for
a period of less than one year, followed by a qualified floating
rate or an objective rate, may be treated as a Variable Rate Debt
Security. A rate is a qualified floating rate if variations in
the rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in
which the Debt Security is denominated. In addition, certain
multiples of a qualified floating rate will be treated as a
qualified floating rate. Restrictions on the maximum or minimum
stated interest rate, restrictions on the amount of increase or
decrease in the stated interest rate, or other similar
restrictions generally do not result in a rate failing to be
treated as a qualified floating rate provided that such
restrictions are fixed throughout the term of the Debt Security
or do not significantly alter the yield of the Debt Security. In
general, an objective rate is a rate (other than a qualified
floating rate) that is determined using a single formula that is
fixed throughout the term of the Debt Security and that is based
on either (i) the yield or changes in the price of one or more
items of actively traded personal property (other than stock or
debt of the Company or certain related parties); (ii) one or more
qualified floating rates; (iii) one or more rates where each
would be a qualified floating rate for a debt instrument
denominated in a currency other than the currency in which the
Debt Security is denominated; (iv) a combination of rates
described immediately above; or (v) any other variable rate
designated by the IRS. A rate is not an objective rate, however,
if it is reasonably expected that the rate will result in
significant front-loading or back-loading of interest. A
qualified inverse floating rate is an objective rate that is
equal to a fixed rate minus a qualified floating rate, provided
that the variations in the rate can reasonably be expected to
inversely reflect contemporaneous variations in the cost of newly
borrowed funds.
For purposes of determining the OID accruals and the amount
of qualified stated interest, a Variable Rate Debt Security is
"converted" to an equivalent fixed rate debt instrument by
substituting an appropriate fixed rate (as specified by the OID
Regulations) for the variable rate or rates. The rules
applicable to fixed rate debt instruments, described above, are
then applied to determine OID accruals and the qualified stated
interest payments. In certain circumstances, if the interest
actually accrued or paid during an accrual period is greater or
less than the interest assumed to be accrued or paid under the
equivalent fixed rate debt instrument, appropriate adjustments
must be made to the qualified stated interest or OID allocable to
the accrual period. Notice will be given in the applicable
Pricing Supplement when the Company determines that a particular
Debt Security will be a Variable Rate Debt Security.
Alternative Payment Schedules. The OID Regulations provide
special rules for purposes of determining the yield and maturity
of a Debt Security that provides for one or more alternative
payment schedules applicable upon the occurrence of certain
contingencies, where the timing and amounts of the payments under
each alternative payment schedule are fixed as of the original
issue date. Except as provided in the next paragraph, the yield
and maturity of such a Debt Security are generally determined by
assuming that the payments will be made according to the stated
payment schedule. However, if based on all the facts and
circumstance as of the issue date, it is more likely than not
that the stated payment schedule will not occur, then yield and
maturity are computed based on the payment schedule most likely
to occur. Notice will be given in the applicable Pricing
Supplement when the Company determines that a particular Debt
Security will be deemed to have a payment schedule for federal
income tax purposes that is different than its stated payment
schedule. The payment schedule determined by the Company will be
binding on all holders of the Debt Security unless the holder
explicitly discloses, on a statement attached to the holder's
timely filed federal income tax return for the taxable year that
includes the acquisition date of the Debt Security, that such
holder's determination of yield and maturity is different from
the Company's determination.
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For purposes of determining yield and maturity of a Debt
Security, one or more unconditional options of either the holder
or the Company to require payments to be made on the Debt
Security under one or more alternative payment schedules (e.g.,
an option to extend or an option to call a Debt Security at a
fixed premium) will be deemed exercised if exercise of such
option or options would change the yield on the Debt Security in
a manner which would benefit the party that holds such option or
options.
Under the OID Regulations, a Debt Security that provides for
one or more alternative payment schedules provides for qualified
stated interest to the extent of the lowest fixed rate at which
qualified stated interest would be payable under any of the
payment schedules.
If a contingency described above (including the exercise of
an option described in the preceding paragraph) actually occurs
or does not occur contrary to the assumptions made with respect
thereto, then for purposes of determining the accrual of OID, the
yield and maturity of the Debt Security are redetermined by
treating the Debt Security as reissued on the date of the change
in circumstances for an amount equal to its adjusted issue price
on such date.
Contingent Debt Securities. The OID Regulations do not
address the federal income tax treatment of Debt Securities which
provide for contingent principal or of Floating Rate Debt
Securities and Index Debt Securities that do not qualify as
Variable Rate Debt Securities ("Contingent Debt Securities").
The federal income tax consequences of the ownership and
disposition of a particular Debt Security, and whether it
constitutes a Contingent Debt Security, may depend, in part, on
the particular terms of the Debt Security as set forth in the
applicable Pricing Supplement. UNITED STATES HOLDERS SHOULD
CONSULT WITH THEIR OWN TAX ADVISORS REGARDING THE TAX TREATMENT
OF CONTINGENT DEBT SECURITIES.
Election by United States Holder. Under the OID
Regulations, a United States Holder may elect to treat all
interest on a Debt Security as OID. For purposes of this
election, interest includes stated interest, OID, de minimis OID,
and unstated interest, as adjusted for any amortizable bond
premium. The election is to be made for the taxable year in
which the United States Holder acquired the Debt Security and may
not be revoked without the consent of the IRS. UNITED STATES
HOLDERS SHOULD CONSULT WITH THEIR OWN TAX ADVISORS REGARDING THIS
ELECTION.
Short-term OID Debt Securities. In the case of an OID Debt
Security that matures one year or less from the date of its
issuance (a "short-term OID Debt Security") all payments
(including all stated interest) are included in the stated
redemption price at maturity. Thus, United States Holders who
report income for United States federal income tax purposes on
the accrual method and certain other holders are required to
include OID in income currently (in lieu of stated interest).
The total OID will be equal to the excess of the stated
redemption price at maturity over the issue price of the short-
term OID Debt Security, unless the United States Holder elects to
compute the OID using tax basis instead of issue price. United
States Holders who report income for United States federal income
tax purposes on the accrual method and certain other holders are
required to accrue such OID on a short-term OID Debt Security on
a straight-line basis, unless an election is made to accrue the
OID under the constant yield method (based on daily compounding).
Generally, an individual and certain other cash method United
States Holders of short-term OID Debt Securities are not
required, but may elect, to include OID in their income
currently. In the case of a United Stated Holder who is not
required and does not elect to include OID in income currently,
any gain realized on the sale, exchange or retirement of a
short-term OID Debt Security will be ordinary income to the
extent of the OID accrued on a straight-line basis (or, if
elected, according to a constant yield method) through the date
of sale, exchange or retirement, reduced by any payments of
stated interest or other interest received. In addition, such
non-electing United States Holders who are not subject to the
current inclusion requirement described above will be required to
defer deductions of all or a portion of any interest paid on
indebtedness allocable to such short-term OID Debt Securities in
an amount not exceeding the deferred income.
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Debt Securities Issued at a Premium. A United States Holder
that purchases a Debt Security at original issue for an amount in
excess of the sum of all amounts payable on the Debt Security
after the purchase date (other than qualified stated interest)
will be treated as having purchased the Debt Security at a
premium and will not be required to include OID, if any, in
income. Generally, a United States Holder may elect to amortize
such premium over the term of the Debt Security on a constant
yield method. If such election is made, the amount required to
be included in the United States Holder's income each year with
respect to interest on the Debt Security will be reduced by the
amount of premium amortized in such year. The premium on a Debt
Security held by a United States Holder that does not make such
an election will decrease the gain or increase the loss otherwise
recognized on the disposition of the Debt Security. Any election
to amortize premium applies to all bonds (other than bonds the
interest on which is excludable from gross income) held by the
United States Holder at the beginning of the first taxable year
to which the election applies or thereafter acquired by the
United States Holder, and is irrevocable without the consent of
the IRS. If the Debt Security is redeemable at a premium,
special rules may apply which could result in a deferral of the
amortization of some of the premium.
Reporting. The Company is required to report to the IRS the
amount of OID accrued on OID Debt Securities held of record by
certain United States Holders. The amount required to be
reported by the Company may not be equal to the amount of OID
required to be reported as taxable income by a holder of such OID
Debt Security.
Sale, Exchange, or Retirement of Debt Securities. A United
States Holder's adjusted tax basis in a Debt Security (other than
an OID Debt Security) generally will equal the cost of the Debt
Security to such holder, reduced by any amortized premium and by
payments on the Debt Security received by the holder, other than
qualified stated interest. A holder's tax basis in an OID Debt
Security will generally be the cost of the Debt Security to such
holder, increased by any OID previously included in the holder's
income and decreased by the amount of any payment to the holder
under the OID Debt Security, other than a payment of qualified
stated interest, and by any amortized premium. Upon the sale,
exchange, or retirement of a Debt Security, a United States
Holder will recognize taxable gain or loss equal to the
difference between the amount realized on the sale, exchange or
retirement (other than amounts attributable to accrued OID or
interest not previously included in the income of the holder) and
such holder's adjusted tax basis in the Debt Security. Any gain
attributable to de minimis OID that is recognized on the sale or
exchange of a Debt Security is treated as capital gain if the
Debt Security is a capital asset in the hands of the holder.
Except as described above with respect to certain short-term OID
Debt Securities or as described below with respect to certain
Foreign Currency Debt Securities, such gain or loss will be
capital gain or loss and will be long-term capital gain or loss
if, at the time of sale or retirement, the Debt Security has been
held for more than one year. Net capital gains of individuals
are, under certain circumstances, taxed at lower rates than items
of ordinary income. The deductibility of capital losses,
however, may be limited.
Foreign Currency Debt Securities. The following discussion
summarizes the principal United States federal income tax
consequences to a United States Holder of the ownership and
disposition of Debt Securities that are denominated in a
Specified Currency or on which interest or principal are payable
in one or more Specified Currencies (a "Foreign Currency Debt
Security"). The following summary is based upon certain Treasury
Regulations issued pursuant to Section 988 of the Code.
Interest on a Debt Security paid in a Specified Currency,
other than interest on an OID Debt Security that is not qualified
stated interest, will be taxable to a United States Holder as
ordinary interest income at the time it is accrued or received,
in accordance with the United States Holder's method of
accounting for federal income tax purposes. The amount
recognized by a cash basis United States Holder is the
U.S. dollar value of the interest payment (determined on the
basis of the "spot rate" on the date such payment is received)
regardless of whether the payment is in fact converted to
U.S. dollars at that time. No exchange gain or loss is
recognized at the time of receipt of such payment by a cash basis
United States Holder.
Unless the election described below is made, the amount
recognized by an accrual basis United
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States Holder is the U.S. dollar value of the interest that has accrued for
the interest accrual period (determined on the basis of the average exchange
rate for the interest accrual period). The average exchange rate
for the accrual period (or partial periods) is the simple average
of the exchange rates for each business day in such period (or
other method if such method is reasonably derived and
consistently applied). An accrual basis United States Holder
may elect to translate accrued interest income using the rate of
exchange on the last day of the accrual period or, with respect
to an accrual period that spans two taxable years, using the rate
of exchange on the last day of the taxable year. If the last day
of an accrual period is within five business days of the date of
receipt of the accrued interest, a United States Holder may
translate such interest using the rate of exchange on the date of
receipt. The above election will apply to all debt obligations
held by the United States Holder and may not be changed without
the consent of the IRS. Upon receipt of an interest payment in
the Specified Currency, an accrual basis United States Holder
will recognize foreign currency gain or loss to the extent of the
difference, if any, between the U.S. dollar value of such payment
(determined by translating the Specified Currency received at the
spot rate on the date of receipt) and the U.S. dollar value of
the interest income that such holder has previously included in
income with respect to such payment, which gain or loss will be
treated as ordinary income or loss.
In the case of a Foreign Currency Debt Security, the
U.S. dollar amount, if any, includible in income as OID for each
accrual period by a United States Holder is determined by
(i) calculating the amount of OID allocable to each accrual
period in the applicable Specified Currency using the constant
yield method described above, and (ii) translating the amount so
derived in the same manner as interest income accrued by a holder
on the accrual basis, as described above. In general, upon the
receipt of payment in the Specified Currency attributable to OID,
a United States Holder will recognize foreign currency gain or
loss equal to the difference, if any, between the U.S. dollar
value of the accrued OID (determined in the same manner as
interest income accrued by an accrual basis holder) and the U.S.
dollar value of such payment (determined by translating the
Specified Currency at the spot rate on the date of receipt),
which gain or loss will be treated as ordinary income or loss.
A United States Holder's tax basis in foreign currency
generally will be the U.S. dollar value thereof at the spot rate
on the date such foreign currency is acquired. The amount of
gain or loss recognized by a holder on a sale, exchange or other
disposition of foreign currency will be equal to the difference
between (i) the amount of U.S. dollars, the U.S. dollar value at
the spot rate of the foreign currency, or the fair market value
in U.S. dollars of the property, received by the holder upon such
sale, exchange or other disposition, and (ii) the holder's tax
basis in the foreign currency. Accordingly, a holder that
purchases a Foreign Currency Debt Security with previously owned
foreign currency will recognize gain or loss in an amount equal
to the difference, if any, between such holder's tax basis in the
foreign currency and the U.S. dollar value of the foreign
currency at the spot rate on the date of purchase of the Foreign
Currency Debt Security. Generally, any such gain or loss will be
ordinary income or loss.
A United States Holder's tax basis in a Foreign Currency
Debt Security will be the U.S. dollar value of the currency paid
for such Debt Security at the time of such purchase. Gain or
loss realized upon the sale, exchange or retirement of a Foreign
Currency Debt Security will be ordinary income or loss to the
extent it is attributable to fluctuations in exchange rates.
Such foreign currency gain or loss may not exceed the total gain
or loss on the sale or retirement of the Debt Security.
Generally, any gain or loss recognized upon the sale, exchange or
retirement of a Foreign Currency Debt Security, other than the
amount treated as foreign currency gain or loss, will be capital
gain or loss and will be long-term capital gain or loss if, at
the time of the disposition, the Debt Security was held for more
than one year.
Any foreign currency gain or loss that is treated as
ordinary income or loss, as described above, generally will not
be treated as interest income or expense except to the extent
provided in Treasury Regulations or administrative pronouncements
of the IRS.
In the case of a Foreign Currency Debt Security, bond
premium which a holder elects to amortize will be computed in the
relevant Specified Currency and will reduce interest income or
OID determined in such Specified Currency. At the time
amortizable bond premium offsets interest income, a United States
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Holder may realize exchange gain or loss (taxable as ordinary
income or loss, but generally not as interest income or expense),
measured by the difference between exchange rates at that time
and at the time of the acquisition of the Debt Security.
Dual Currency Debt Securities. If so specified in an
applicable Pricing Supplement relating to a Foreign Currency Debt
Security, the Company may have the option to make all payments of
principal and interest scheduled after the exercise of such
option in a currency (the "Optional Payment Currency") other than
the Specified Currency. In general, payments under such Foreign
Currency Debt Securities (referred to herein as "Dual Currency
Debt Securities") will be taxed pursuant to the rules regarding
interest, OID, premium and foreign currency transactions
discussed above. However, a United States Holder of a Dual
Currency Debt Security with respect to which the Company's option
has been exercised may be considered to have exchanged a Debt
Security denominated in the Specified Currency for a Debt
Security denominated in the Optional Payment Currency. Whether
such a deemed exchange will require a United States Holder to
recognize gain or loss will depend on whether the exchange is
part of a recapitalization of the Company. If the Company
exercises its option to make future payments in the Optional
Payment Currency as part of a recapitalization that qualifies for
nonrecognition treatment, a United States Holder of a Dual
Currency Debt Security will not recognize gain or loss upon the
deemed exchange and the Holder's basis in the Debt Security will
be unchanged. If, however, the Company's exercise of this option
is not part of a recapitalization, a United States Holder may
recognize gain or loss, if any, equal to the difference between
the holder's basis in the Debt Security denominated in the
Specified Currency and the value of the Debt Security denominated
in the Optional Payment Currency.
Non-United States Holders
The payment of interest, premium and principal (including
any OID) on a Debt Security to any non-United States Holder will
not be subject to United States federal withholding tax (except
as discussed below with respect to backup withholding), provided
that in the case of a payment of interest, premium, or OID
(i) the beneficial owner of the Debt Security is subject to
United States federal income tax with respect to the Debt
Security on a net basis because the payments received with
respect to the Debt Security by such beneficial owner are
effectively connected with a U.S. trade or business of such
beneficial owner (in which case such beneficial owner may also be
subject to the "branch-profits tax" under Section 884 of the
Code) and such beneficial owner provides the Company with a
properly executed IRS Form 4224, (ii) such beneficial owner
provides the Company with a properly executed IRS Form 1001 (or
successor form) claiming an exemption from withholding under the
benefit of a tax treaty or (iii) (A) such beneficial owner does
not actually or constructively own ten percent or more of the
total combined voting power of all classes of stock of the
Company entitled to vote, (B) such beneficial owner is not a bank
whose receipt of interest on a Debt Security is described in
section 881(c)(3)(A) of the Code, (C) such beneficial owner is
not a controlled foreign corporation that is related to the
Company actually or constructively through stock ownership, and
(D) either (1) such beneficial owner certifies to the Company or
its agent, under penalties of perjury, that it is not a United
States Holder and provides its name and address on United States
Treasury Form W-8 (or suitable substitute form) or (2) a
securities clearing organization, bank or other financial
institution that holds customer's securities in the ordinary
course of its trade or business (a "financial institution") and
holds the Debt Security on behalf of the beneficial owner
certifies under penalties of perjury that such a Form W-8 (or
suitable substitute form) has been received from the beneficial
owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof.
Notwithstanding the foregoing, pursuant to the Revenue
Reconciliation Act of 1993 (the "1993 Act"), certain contingent
interest may be subject to United States federal withholding tax.
For purposes of this provision of the 1993 Act, contingent
interest includes interest that is determined by reference to
receipts, sales or other cash flow, income or profits, or a
change in value of any property of the issuer or a related
person. It also includes interest determined by reference to any
dividend, partnership distribution or similar payment made by the
issuer or a related person.
A non-United States Holder generally will not be subject to
United Stated federal income tax (and no tax generally will be
withheld) with respect to gain recognized on a sale, exchange or
redemption of a
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Debt Security, unless (i) the gain is effectively
connected with a trade or business of the non-United States
Holder in the United States, or (ii) in the case of a non-United
States Holder who is a nonresident alien individual and holds the
Debt Security as a capital asset, such Holder is present in the
United States for 183 or more days in the taxable year of the
sale or other disposition and certain other conditions are met.
A Debt Security held by an individual who at the time of
death is not a citizen or resident of the United States will not
be subject to United States federal estate tax as a result of
such individual's death if, at the time of such death, the
individual does not actually or constructively own 10% or more of
the total combined voting power of all classes of stock of the
Company entitled to vote and the income on the Debt Security
would not have been effectively connected with the conduct of a
trade or business by the individual in the United States.
Notwithstanding the foregoing, if interest on a Debt Security is
treated as contingent interest for purposes of the 1993 Act, as
described above, all or a portion of the value of such Debt
Security may be subject to United States federal estate tax as a
result of such individual's death.
Backup Withholding
The 31% "backup" withholding and information reporting
requirements generally apply to certain payments of principal
(including OID, if any) and to any payments of premium or
interest made within the United States. Information reporting
and backup withholding do not apply to payments of principal
(including OID, if any) or to any payments of premium or interest
made outside the United States by the Company provided the payor
does not have actual knowledge that the payee is a United States
Holder, and if the certification on United States Treasury Form
W-8, described under the section "non-United States Holders" is
received.
Payment of the proceeds from the sale of a Debt Security to
or through a foreign office of a broker will not be subject to
information reporting or backup withholding, except that if the
broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person
50% or more of whose gross income is effectively connected with
the conduct of a trade or business within the United States for a
specified three-year period, information reporting will apply to
such payments unless such broker has documentary evidence in its
files of the owner's foreign status and has no actual knowledge
to the contrary, or the owner otherwise establishes an exemption.
Payment of the proceeds from a sale of a Debt Security to or
through the United States office of a broker is subject to
information reporting and backup withholding unless the holder or
beneficial owner certifies as to its non-United States status or
otherwise establishes an exemption from information reporting and
backup withholding.
Backup withholding will generally not apply to United States
Holders other than certain non-corporate Holders who fail to
supply an accurate taxpayer identification number or who fail to
report all interest income required to be shown on their federal
income tax return. Any amounts withheld from a payment to a
United States Holder under the backup withholding rules will be
allowed as a refund or a credit against such holder's United
States federal income tax provided that the required information
is furnished to the Service.
DESCRIPTION OF WARRANTS
Each series of Debt Warrants will be issued under a Debt
Warrant Agreement to be entered into between the Company and The
Chase Manhattan Bank (National Association), in its capacity as
warrant agent (the "Debt Warrant Agent"), in substantially the
form that has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part (such agreement the
"Debt Warrant Agreement"), together with the applicable form of
warrant certificate (any such certificate a "Debt Warrant
Certificate"). Each series of Shelf Warrants will be issued
under a separate warrant agreement (each such agreement a "Shelf
Warrant Agreement") to be entered into between the Company and
The Chase Manhattan Bank (National Association), in its capacity
as warrant agent, or such other bank or trust company as may be
identified in the applicable Prospectus Supplement (in either
case, the "Shelf Warrant Agent"), and to be
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filed as an amendment to the Registration Statement together with an
appropriate form of shelf warrant certificate (any such certificate a "Shelf
Warrant Certificate" and any Debt Warrant Certificate or Shelf
Warrant Certificate sometimes referred to as a "Warrant
Certificate"). The statements herein concerning the Debt Warrant
Agreement or any Shelf Warrant Agreement (the Debt Warrant
Agreement and any Shelf Warrant Agreement sometimes referred to
as a "Warrant Agreement") do not purport to be complete and are
subject to, and are qualified in their entirety by reference to,
all the provisions of the applicable Warrant Agreement and the
applicable Warrant Certificates, including the definitions of
certain terms.
THE TERMS AND CONDITIONS SET FORTH IN THIS PROSPECTUS WITH
RESPECT TO WARRANTS WILL APPLY TO EACH WARRANT UNLESS OTHERWISE
SPECIFIED HEREIN OR IN THE APPLICABLE PROSPECTUS SUPPLEMENT.
General
Warrants may be offered from time to time, independent of or
together with any series of Debt Securities. Prior to the
exercise of a Warrant, the holder thereof will not have any of
the rights of holders of any security or other instrument
underlying such Warrant. Unless otherwise provided in the
applicable Prospectus Supplement, a Warrant of any series may be
exercised at any time up to the close of business on the
expiration date set forth therein, after which time all
unexercised Warrants will become void. Registered Warrants of a
series will be exchangeable into registered Warrants of the same
series representing, in the aggregate, the number of Warrants
surrendered for exchange. Warrant Certificates may be presented
for transfer and, to the extent exchangeable, may be presented
for exchange, at the corporate trust office of the Debt Warrant
Agent or the Shelf Warrant Agent, as the case may be (any such
agent sometimes referred to as a "Warrant Agent").
The Warrant Agent with respect to any series of Warrants
will act solely as an agent of the Company in connection with the
applicable Warrant Certificates and will not assume any
obligation or relationship of agency or trust for or with any
registered holders or beneficial owners of the applicable Warrant
Certificates.
Debt Warrants
Each Debt Warrant will entitle the holder to purchase such
principal amount of Debt Securities at such exercise price as
will in each case be set forth in, or calculable from, the
applicable Prospectus Supplement. In addition, the applicable
Prospectus Supplement will set forth (i) the designation,
aggregate principal amount, and terms of the underlying Debt
Securities, (ii) if applicable, the designation and terms of any
Debt Securities with which such Debt Warrants are issued and the
number of such Debt Warrants issued with each such Debt Security,
(iii) the date, if any, on and after which such Debt Warrant and
the related Debt Securities will be separately transferable,
(iv) the date on which the right to exercise such Debt Warrant
will commence and the procedures and conditions relating to
exercise, (v) the date on which the right to exercise such Debt
Warrant will expire, (vi) a discussion of any material United
States tax considerations, (vii) a discussion of any material
risk factors, (viii) whether such Debt Warrant will be issued in
registered or bearer form and, if registered, where it may be
transferred and registered, and (ix) any other terms of such Debt
Warrant, which terms will in no event conflict with the terms or
provisions of the Debt Warrant Agreement.
Subject to any restrictions and additional requirements that
may be set forth in the applicable Prospectus Supplement, a Debt
Warrant may be exercised by delivery to the Debt Warrant Agent of
the subject Debt Warrant Certificate, properly completed and duly
executed, and of payment of the amount required to purchase the
related Debt Securities. The exercise price will be the price
applicable on the date of payment in full, as set forth in the
applicable Prospectus Supplement. As soon as practicable after
receipt by the Debt Warrant Agent at its corporate trust office
of such payment and of the Debt Warrant Certificate properly
completed and duly executed, the Company will issue and deliver
the Debt Securities that have been purchased upon such exercise.
If fewer than all the Debt Warrants represented by any Debt
Warrant
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Certificate are exercised, a new Debt Warrant Certificate
will be issued for the remaining amount of Debt Warrants.
Shelf Warrants
The Prospectus Supplement applicable to any particular Shelf
Warrant will describe (i) the designation and offering price of
such Shelf Warrant, (ii) whether such Shelf Warrant is for the
sale or purchase of any Specified Currency, commodity, or
security, (iii) whether the settlement value of such Shelf
Warrant at the time of exercise will be determined by the
relative value or level of any Index, (iv) if such Shelf Warrant
has been issued together with one or more Debt Securities, the
date on and after which such Shelf Warrant and any such Debt
Securities will be separately transferable, (v) the date on which
the right to exercise such Shelf Warrant will commence and the
procedures and conditions relating to exercise, (vi) the date on
which the right to exercise such Shelf Warrant will expire,
(vii) a discussion of any material United States tax
considerations, (viii) a discussion of any material risk factors,
(ix) whether such Shelf Warrant will be issued in registered or
bearer form and, if registered, where it may be transferred and
registered, and (x) any other terms of such Shelf Warrant, which
terms will in no event conflict with the terms and provisions of
the applicable Shelf Warrant Agreement.
Subject to any restrictions and additional requirements that
may be set forth in the applicable Prospectus Supplement, a Shelf
Warrant may be exercised by delivery to the Shelf Warrant Agent
of the subject Shelf Warrant Certificate, properly completed and
duly executed, and (except with respect to a Shelf Warrant
providing for cash settlement value) of payment of the amount
required to purchase the underlying currency, commodity, or
instrument. The exercise price will be the price applicable on
the date of payment in full, as set forth in the applicable
Prospectus Supplement. As soon as practicable after receipt by
the Shelf Warrant Agent at its corporate trust office of such
payment and of the Shelf Warrant Certificate properly completed
and duly executed, the Shelf Warrant Agent will buy or sell the
related currency, commodity, or instrument, or pay the settlement
value therefore, as the case may be. If fewer than all the Shelf
Warrants represented by any Shelf Warrant Certificate are
exercised, a new Shelf Warrant Certificate will be issued for the
remaining amount of Shelf Warrants.
PLAN OF DISTRIBUTION
The Company may appoint Agents to solicit offers to purchase
the Securities, each of whom will agree to use best efforts to
solicit such offers. The name of any such Agent, and the terms
of its agreement with the Company (including the amount of any
commission payable by the Company in connection with the sale of
Securities through an Agent) will be set forth in the applicable
Supplement. Each Agent will have the right, in its reasonable
discretion, to reject (in whole or in part) any offer to purchase
Securities solicited by such Agent. The Company may also, on its
own behalf, directly solicit offers to purchase Securities, at
any time, in any manner, upon any terms, and to any person. The
Company will have the sole right to accept offers to purchase
Securities and may reject (in whole or in part) any offer to
purchase Securities, whether solicited by the Company or an
Agent. Unless the Company otherwise agrees, payment of the
purchase price of Securities sold by the Company, whether
directly or through an Agent, will be required to be made in
immediately available funds.
The Company may also sell Securities to Underwriters at
discounts to be agreed upon at the time of sale. Such Securities
may be resold to investors and other purchasers at a fixed
offering price, at prevailing market prices, or at prices related
thereto at the time of such resale or otherwise, as determined by
the Underwriter and specified in the applicable Supplement.
After the initial public offering of Securities that are to be
resold by an Underwriter to investors and other purchasers at a
fixed public offering price, the public offering price,
concession, and discount may be changed. An Underwriter may also
sell Securities to other dealers, and may allow to one or more
such dealers a discount from the public offering price of such
Securities, but the aggregate of all such discounts allowed by
the Underwriter to other dealers with respect to such Securities
will not be in excess of the discount received by the Underwriter
from the Company with respect to such Securities. It is
anticipated that any underwriting agreement pertaining to
-26-
any Securities will provide that the Underwriter is obligated to
purchase all Securities taken by such Underwriter if any are
taken.
Underwriters and Agents participating in the distribution of
Securities may be deemed to be "underwriters" under the
Securities Act, and any discounts and commissions received by
them and any profit realized by them on resale of the Securities
may be deemed to be underwriting discounts and commissions within
the meaning of the Securities Act. Any such compensation
received by any such Underwriter or Agent from the Company will
be described in the applicable Supplement. It is anticipated
that the Company will enter into an agreement with each
Underwriter and Agent named in an applicable Supplement, in
substantially the form of Distribution Agreement filed as
Exhibit 1 to the Registration Statement, which agreement will
entitle such Underwriter or Agent to indemnification against
certain civil liabilities, including liabilities under the
Securities Act, or to contribution for payments it may be
required to make in respect thereof.
If so indicated in the applicable Supplement, the Company
will authorize Underwriters or other persons acting as the
Company's agents to solicit offers by certain institutions to
purchase Securities from the Company at the public offering price
set forth in such Supplement pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates
stated in such Supplement. Institutions with which such
contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other
institutions, but will in all cases be subject to the approval of
the Company. The obligations of any purchaser under any such
delayed delivery contract will not be subject to any conditions
except that (i) the purchase of the Securities will not at the
time of delivery be prohibited under the laws of any jurisdiction
to which such purchaser is subject, and (ii) if the Securities
are also being sold to Underwriters, the Company will have sold
to such Underwriters the Securities not sold for delayed
delivery. The Underwriters and such other persons will not have
any responsibility in respect of the validity or performance of
such contracts.
None of the Securities will have an established trading
market when issued. It is not currently anticipated that the
Securities will be listed on any securities exchange. Agents,
Underwriters, and other dealers may make a market in the
Securities but will not be obligated to do so and may discontinue
any market-making at any time without notice. There can be no
assurance that the Securities offered hereby will be sold or, if
sold, that there will be a secondary market for them.
LEGAL OPINIONS
Unless otherwise indicated in any applicable Supplement, the
legality of the Securities offered hereby will be passed upon
(i) for the Company by Douglas Cram, Esq., Vice President and
Assistant General Counsel of the Company and, with respect to the
matters described herein under the caption "Federal Tax
Considerations", by Matthew M. McKenna, Esq., Vice President,
Taxes, of the Company, and (ii) for any Agents and Underwriters
by Cahill Gordon & Reindel (a partnership including a
professional corporation), New York, New York. Mr. Cram and
Mr. McKenna each own certain securities of the Company. Cahill
Gordon & Reindel renders legal services to the Company from time
to time.
EXPERTS
The consolidated financial statements and schedules of the
Company as of December 25, 1993 and December 26, 1992, and for
each of the fiscal years in the three-year period ended
December 25, 1993 included in the Company's Annual Report on Form
10-K for the fiscal year ended December 25, 1993, have been
audited by KPMG Peat Marwick LLP, independent auditors, as set forth
in their report thereon included in such Annual Report and
incorporated herein by reference. The report of KPMG Peat Marwick
LLP covering the December 25, 1993 financial statements refers to
the Company's adoption of the Financial Accounting Standards Board's
Statements of Financial Accounting Standards No. 106, "Employers'
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Accounting For Postretirement Benefits Other Than Pensions" and
No. 109, "Accounting For Income Taxes" in 1992. Such consolidated
financial statements and schedules are incorporated herein by reference
in reliance upon such report given upon the authority of such firm
as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim
financial information of the Company and its subsidiaries for the
twelve-week period ended March 19, 1994, the twelve and
twenty-four week periods ended June 11, 1994, and the twelve and
thirty-six week periods ended September 3, 1994, incorporated by
reference herein, KPMG Peat Marwick LLP have reported that they have
applied limited procedures in accordance with professional
standards for a review of such information. However, their
separate reports included in the Company's quarterly reports on
Form 10-Q for the twelve-week period ended March 19, 1994, the
twelve and twenty-four week periods ended June 11, 1994, and the
twelve and thirty-six week periods ended September 3, 1994,
incorporated by reference herein, state that they did not audit
and they do not express an opinion on that condensed consolidated
interim financial information. Accordingly, the degree of
reliance on their reports on such information should be
restricted in light of the limited nature of the review
procedures applied. KPMG Peat Marwick LLP are not subject to the
liability provisions of Section 11 of the Securities Act for
their reports on the unaudited condensed consolidated interim
financial information because those reports are not "reports" or
a "part" of the Registration Statement prepared or certified by
accountants within the meaning of Sections 7 and 11 of the
Securities Act.
The financial statements incorporated herein by reference to
all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to
the filing of a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all
securities then remaining unsold, are or will be so incorporated
in reliance upon the reports of KPMG Peat Marwick LLP and any other
independent public accountants relating to such financial
information and upon the authority of such independent public
accountants as experts in accounting and auditing in giving such
reports to the extent that the particular firm has audited such
financial statements and consented to the use of their reports
thereon.
-28-
GLOSSARY
As used in the Prospectus or in any applicable Supplement
(unless otherwise defined therein), the terms set forth below are
defined as follows:
"Actual/Actual" means the actual number of days in the
applicable Interest Period in respect of which payment is being
made divided by 365 (or, if any portion of the applicable
Interest Period falls in a leap year, the sum of (A) the actual
number of days in that portion of the applicable Interest Period
falling in a leap year divided by 366 and (B) the actual number
of days in that portion of the applicable Interest Period falling
in a non-leap year divided by 365). See also "Actual/360",
"Actual/365 (Fixed)", "Bond Basis", and "Eurobond Basis".
"Actual/360" means the actual number of days in the
applicable Interest Period in respect of which payment is being
made divided by 360. See also "Actual/Actual", "Actual/365
(Fixed)", "Bond Basis", and "Eurobond Basis".
"Actual/365"--see "Actual/Actual".
"Actual/365 (Fixed)" means the actual number of days in the
applicable Interest Period in respect of which payment is being
made divided by 365. See also "Actual/Actual", "Actual/360",
"Actual/365 (Fixed)", "Bond Basis", and "Eurobond Basis".
"Agent"--see page 1 of the Prospectus.
"Base Rate"--see page 9 of the Prospectus.
"Bond Basis" means the number of days in the applicable
Interest Period in respect of which payment is being made divided
by 360 (the number of days to be calculated on the basis of a
year of 360 days with twelve 30-day months (unless (i) the last
day of the applicable Interest Period is the 31st day of a month
but the first day of the applicable Interest Period is a day
other than the 30th or 31st day of a month, in which case the
months that include that last day shall not be considered to be
shortened to a 30-day month, or (ii) the last day of the
applicable Interest Period is the last day of the month of
February, in which case the month of February shall not be
considered to be lengthened to a 30-day month).
"Business Day" when used in conjunction with a designated
city means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions
are authorized or required by law or regulation to be closed in
(i) London, England (with respect to a Debt Security the
principal of or interest on which will be determined by reference
to LIBOR), (ii) Brussels, Belgium (with respect to a Debt
Security denominated in ECUs or whose principal or interest will
be determined by reference to the relative value of the ECU), or
(iii) the financial center of the country issuing the Specified
Currency (with respect to a Debt Security denominated in a
Specified Currency other than the ECU or whose principal or
interest will be determined by reference to the relative value of
any Specified Currency other than the ECU). See also "New York
Business Day".
"Business Day Convention" means the convention for adjusting
any relevant date if it would otherwise fall on a day that is not
a Business Day. The following terms, when used in conjunction
with the term "Business Day Convention" and a date, shall mean
that an adjustment will be made if that date would otherwise fall
on a day that is not a Business Day so that:
(i) if "Following" is specified, that date will be the
first following day that is a Business Day;
(ii) if "Modified Following" or "Modified" is
specified, that date will be the first
A-1
following day that is a Business Day unless that day falls in the next
calendar month, in which case that date will be the first preceding day that
is a Business Day; and
(iii) if "Preceding" is specified, that date will be
the first preceding day that is a Business Day.
"CD Rate" with respect to any Interest Determination Date
means the rate set forth in H.15(519) for the period for the
specified Index Maturity under the caption "CDs (Secondary
Market)". If such rate does not appear in H.15(519) by
9:00 a.m., New York City time, on the Calculation Date relating
to such Interest Determination Date, the rate for such Interest
Determination Date will be the rate set forth in Composite 3:30
P.M. Quotations for U.S. Government Securities for such Interest
Determination Date for the Index Maturity under the caption
"Certificates of Deposit". If such rate does not appear in
either H.15(519) or Composite 3:30 P.M. Quotations for
U.S. Government Securities by 3:00 p.m., New York City time, on
the Calculation Date relating to such Interest Determination
Date, the rate for such Interest Determination Date will be the
arithmetic mean of the secondary market offered rates of three
leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in New York City as of 10:00 a.m., New York City time,
for such Interest Determination Date for negotiable U.S. Dollar
certificates of deposit of major United States money market banks
with a remaining maturity closest to the Index Maturity and in an
amount that is representative for a single transaction in the
relevant market at the relevant time.
"Calculation Agent"--see page 6 of the Prospectus.
"Calculation Date" when used with respect to any Interest
Determination Date means the date by which the applicable
interest rate must be determined, which date will be the earlier
of (i) the tenth calendar day following such Interest
Determination Date or, if such date is not a New York Business
Day, the first New York Business Day occurring after such 10-day
period or (ii) the New York Business Day immediately preceding
the applicable Interest Payment Date or Maturity Date, as the
case may be.
"Commercial Paper Rate" with respect to any Interest
Determination Date means the Money Market Yield (see below) of
the rate set forth in H.15(519) for that day opposite the Index
Maturity under the caption "Commercial Paper". If such rate does
not appear in H.15(519) by 9:00 a.m., New York City time, on the
Calculation Date relating to such Interest Determination Date,
the rate for such Interest Determination Date will be the Money
Market Yield of the rate set forth in Composite 3:30 P.M.
Quotations for U.S. Government Securities for such Interest
Determination Date in respect of the Index Maturity under the
caption "Commercial Paper" (with an Index Maturity of one month
or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate does
not appear in either H.15(519) or Composite 3:30 P.M. Quotations
for U.S. Government Securities by 3:00 p.m., New York City time,
on the Calculation Date relating to such Interest Determination
Date, the rate for such Interest Determination Date will be the
Money Market Yield of the arithmetic mean of the offered rates of
three leading dealers of U.S. commercial paper in New York City
as of 11:00 a.m., New York City time, for such Interest
Determination Date for U.S. dollar commercial paper of the Index
Maturity placed for industrial issuers whose bond rating is "AA"
or the equivalent from a nationally recognized rating agency.
"Composite 3:30 P.M. Quotations for U.S. Government
Securities" means the daily statistical release designated as
such, or any successor publication, published by the Federal
Reserve Bank of New York.
"Commission"--see page 2 of the Prospectus.
"Company"--see page 1 of the Prospectus.
"Consolidated Net Tangible Assets" is defined as the total
assets of the Company and its Restricted Subsidiaries (less
applicable depreciation, amortization, and other valuation
reserves), except to the extent
A-2
resulting from write-ups of capital assets (other than write-ups in connection
with accounting for acquisitions, in accordance with generally
accepted accounting principles), 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 generally
accepted accounting principles.
"DTC"--see page 1 of the Prospectus.
"Debt Securities"--see page 1 of the Prospectus.
"Debt Warrant"--see page 1 of the Prospectus.
"Debt Warrant Agent"--see page 24 of the Prospectus.
"Debt Warrant Agreement"--see page 24 of the
Prospectus.
"Debt Warrant Certificate"--see page 24 of the
Prospectus.
"Depositary"--see page 1 of the Prospectus.
"Discount Debt Security"--see page 1 of the
Prospectus.
"ECU" means the European Currency Unit and refers to a
single unit of the composite currency known as the "European
Currency".
"Eurobond Basis" means the number of days in the applicable
Interest Period in respect of which payment is being made divided
by 360 (the number of days to be calculated on the basis of a
year of 360 days with twelve 30-day months, without regard to the
date of the first day or last day of the applicable Interest
Period unless, in the case of the final applicable Interest
Period, the Scheduled Maturity Date is the last day of the month
of February, in which case the Month of February shall not be
considered to be lengthened to a 30-day month).
"Event of Default" is defined in the Indenture. See page
12 of the Prospectus for a discussion of Events of Default.
"Exchange Act"--see page 2 of the Prospectus.
"Exchange Rate Agent"--see page 6 of the Prospectus.
"Federal Funds Rate" with respect to any Interest
Determination Date means the rate set forth in H.15(519) for that
day opposite the caption "Federal Funds (Effective)". If such
rate does not appear in H.15(519) by 9:00 a.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the rate set forth in Composite 3:30 P.M. Quotations for
U.S. Government Securities for such Interest Determination Date
under the caption "Federal Funds/Effective Rate". If such rate
does not appear in either H.15(519) or Composite 3:30 P.M.
Quotations for U.S. Government Securities by 3:00 p.m., New York
City time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Money Market Yield of the arithmetic mean for the
last transaction in overnight U.S. dollar Federal Funds by three
leading brokers of U.S. dollar Federal Funds transactions in New
York City as of 11:00 a.m., New York City time, for such Interest
Determination Date.
"Fixed Rate Debt Security"--see page 1 of the
Prospectus.
"Floating Rate Debt Security"--see page 1 of the
Prospectus.
A-3
"Global Debt Security"--see page 1 of the Prospectus.
"Holder" means (i) with respect to a Debt Security issued in
definitive form, the beneficial owner of the Debt Security, and
(ii) with respect to a Debt Security of any series that is issued
in global form, the Depositary or a nominee thereof, in either
case as reflected on the Security Register (as defined in the
Indenture) maintained by the Trustee in its capacity as Paying
Agent.
"H.15(519)" means the weekly statistical release designated
as such, or any successor publication, published by the Board of
Governors of the Federal Reserve System.
"Holder of Record"--see page 7 of the Prospectus.
"Index Maturity"--see page 9 of the Prospectus.
"Index" or "applicable Index"--see page 10 of the
Prospectus.
"Indexed Debt Security"--see page 1 of the Prospectus.
"Indenture"--see page 5 of the Prospectus.
"Initial Interest Rate"--see page 9 of the Prospectus.
"Interest Accrual Date"--see page 6 of the Prospectus.
"Interest Determination Date" with respect to any Interest
Reset Date means the date two Business Days prior to such
Interest Reset Date.
"Interest Payment Date"--see page 6 of the Prospectus.
"Interest Period"--see page 9 of the Prospectus.
"Interest Reset Date"--see page 9 of the Prospectus.
"Issue Price"--see page 6 of the Prospectus.
"LIBOR" with respect to any Interest Determination Date will
be the rate for deposits in U.S. dollars or the Specified
Currency (as the case may be) for a period of the Index Maturity
that appears on the Telerate Page: (a) 3740 (for Australian
Dollars); (b) 3740 (for Canadian Dollars); (c) 3750 (for Swiss
Francs); (d) 3750 (for Deutsche Marks); (e) 3740 (for French
Francs); (f) 3750 (for Pound Sterling); (g) 3740 (for Italian
Lire); (h) 3750 (for Japanese Yen); (i) 3740 (for Spanish
Pesetas); (j) 3750 (for U.S. dollars), and (k) 3750 (for European
Currency Units) as of 11:00 a.m., London Time, on such Interest
Determination Date. If such rate does not appear on the
specified Telerate Page by 9:00 a.m., New York City time, on such
Interest Determination Date, the rate for such Interest
Determination Date will be determined on the basis of the rates
at which deposits in U.S. dollars or in the Specified Currency
(as the case may be) are offered by four major banks in the
London interbank market as of approximately 11:00 a.m., London
time, on such Interest Determination Date to prime banks in the
London interbank market for a period of the Index Maturity
commencing on the applicable Interest Reset Date and in an amount
that is representative for a single transaction in the relevant
market at the relevant time. The Calculation Agent will request
the principal London office of each such bank to provide a
quotation of its rate. If at least two quotations are provided,
the rate for such Interest Determination Date will be the
arithmetic mean of the quotations. If fewer than two quotations
are provided as requested, the rate for such Interest Reset Date
will be the arithmetic mean of the rates quoted by major banks in
New York City or in the relevant financial center of the country
issuing the Specified Currency (as the case may be) as of
A-4
11:00 a.m., local time in New York City or in such financial
center, on such Interest Determination Date for loans in
U.S. dollars or in the Specified Currency (as the case may be) to
leading European banks for a period of the Index Maturity
commencing on such Interest Reset Date and in an amount that is
representative for a single transaction in the relevant market at
the relevant time.
"Market Exchange Rate"--see page 5 of the Prospectus.
"Maturity Date" means the date on which the entire principal
amount outstanding under a Debt Security becomes due and payable,
whether on the Scheduled Maturity Date or by declaration of
acceleration, call for redemption, or otherwise.
"Maximum Interest Rate"--see page 9 of the Prospectus.
"Minimum Interest Rate"--see page 9 of the Prospectus.
"Money Market Yield" means, in respect of any security with
a maturity of nine months or less, the rate for which is quoted
on a bank discount basis, a yield (expressed as a percentage)
calculated in accordance with the following formula:
<TABLE>
<S> <C> <C>
Money Market Yield = D X 360
--------------- X 100
360 - (D X M)
</TABLE>
where "D" refers to the per annum rate for a security, quoted on
a bank discount basis and expressed as a decimal, and "M" refers
to the actual number of days in the applicable Interest Period.
"New York Business Day" means any day other than a Saturday
or Sunday that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law,
regulation, or executive order, to be closed in the City of New
York and: (i) with respect to any Debt Security denominated or
payable in ECUs, that is also a Brussels Business Day, (ii) with
respect to any Debt Security denominated or payable in any other
Specified Currency, that is also a Business Day in the financial
center of the country issuing such Specified Currency, and
(iii) with respect to any Debt Security the principal of or
interest on which will be determined by reference to LIBOR, that
is also a London Business Day. See also "Business Day".
"Participant"--see page 10 of the Prospectus.
"Paying Agent" means the agent appointed by the Company to
distribute amounts payable by the Company on the Debt Securities.
The Company has designated the Trustee as Paying Agent.
"PepsiCo" -- see page 3 of the Prospectus.
"Pricing Supplement" -- see page 1 of the Prospectus.
"Prime Rate" with respect to any Interest Determination Date
means the rate set forth in H.15(519) for that day opposite the
caption "Bank Prime Loan". If such rate does not appear in
H.15(519) by 9:00 a.m., New York City time, on the Calculation
Date relating to such Interest Determination Date, the rate for
such Interest Determination Date will be the arithmetic mean of
the rates of interest publicly announced by each bank that
appears on the Reuters Screen NYMF Page as such bank's prime rate
or base lending rate as in effect for that Interest Determination
Date as quoted on the Reuters Screen NYMF Page for such Interest
Determination Date or, if fewer than four rates appear on the
Reuters Screen NYMF Page for such Interest Determination Date,
the rate will be the arithmetic mean of the rates of interest
publicly announced by three major banks in New York City as its
U.S. dollar prime rate or base lending rate as in effect for such
Interest Determination Date. Each change in the prime rate or
base lending rate of any bank so announced by such
A-5
bank will be effective as of the effective date of the announcement or,
if no effective date is specified, as of the date of the announcement.
"Principal Payment Date" -- see page 6 of the
Prospectus.
"Prospectus Supplement" -- see page 1 of the
Prospectus.
"Record Date" means any date as of which the Holder of a
Debt Security will be determined by the Trustee for any purpose
described herein or in the Indenture, such determination to be
made as of the close of business on such date by reference to the
Security Register (as defined in the Indenture) maintained by the
Trustee in its capacity as Paying Agent.
"Registration Statement" -- see page 2 of the
Prospectus.
"Restricted Property" is defined in the Indenture as any
single manufacturing or processing plant, office, building, or
warehouse owned or leased by the Company or a Restricted
Subsidiary, other than any such facility or portion thereof that,
in the opinion of the Board of Directors of the Company, is not
of material importance to the business conducted by the Company
and its Restricted Subsidiaries taken as a whole, provided, that
no such facility (or portion thereof) will be deemed of material
importance if its gross book value (before deducting accumulated
depreciation) is less than 2% of the Company's Consolidated Net
Tangible Assets.
"Restricted Subsidiary" is defined in the Indenture as any
subsidiary of the Company other than an Unrestricted Subsidiary.
"Scheduled Maturity Date" -- see page 6 of the
Prospectus.
"Securities" -- see page 1 of the Prospectus.
"Securities Act" -- see page 2 of the Prospectus.
"Settlement Date" -- see page 6 of the Prospectus.
"Shelf Warrant" -- see page 1 of the Prospectus.
"Shelf Warrant Agent" -- see page 24 of the Prospectus.
"Shelf Warrant Agreement" -- see page 24 of the
Prospectus.
"Shelf Warrant Certificate" -- see page 25 of the
Prospectus.
"Specified Currency" -- see page 1 of the Prospectus.
"Spread" -- see page 9 of the Prospectus.
"Spread Divisor" -- see page 9 of the Prospectus.
"Spread Multiplier" -- see page 9 of the Prospectus.
"Supplement" means any Pricing Supplement or Prospectus
Supplement.
"30/360" -- see "Bond Basis".
"30E/360" -- see "Eurobond Basis".
A-6
"360/360" -- see "Bond Basis".
"Trustee" -- see page 5 of the Prospectus.
"US Treasury Bill Rate" with respect to any Interest
Determination Date means the rate at which United States Treasury
bills are auctioned, as set forth in H.15(519) for that day
opposite the Index Maturity under the caption "U.S. Government
Security/Treasury Bills/Auction Average (Investment)". If such
rate does not appear in H.15(519) by 9:00 a.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Bond Equivalent Yield (as defined below) of the
auction average rate for those Treasury bills as announced by the
United States Department of the Treasury. If United States
Treasury bills of the Index Maturity are not auctioned during any
period of seven consecutive calendar days ending on and including
any Friday, and a U.S. Treasury Bill Rate would have been
available on the applicable Interest Determination Date if such
Treasury bills had been auctioned during that seven day period,
an Interest Determination Date will be deemed to have occurred on
the day during that seven-day period on which such Treasury bills
would have been auctioned in accordance with the usual practices
of the United States Department of the Treasury, and the rate for
that Interest Determination Date will be the Bond Equivalent
Yield of the rate set forth in H.15(519) for that day opposite
the Index Maturity under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market". If such interest
rate does not appear in H.15(519) by 3:00 p.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Bond Equivalent Yield of the arithmetic mean of the
secondary market bid rates of three primary United States
Government dealers in New York City as of approximately 3:30
p.m., New York City time, for such Interest Determination Date
for the issue of United States Treasury bills with a remaining
maturity closest to the Index Maturity.
For the purposes of this definition, the term "Bond
Equivalent Yield" is to be calculated in accordance with the
following formula:
<TABLE>
<S> <C> <C>
Bond Equivalent Yield = D X N
-------------------- X 100
360 - (D X M)
</TABLE>
where "D" refers to the per annum rate for the security, quoted
on a bank discount basis and expressed as a decimal, "N" refers
to 365 or 366, as the case may be, and "M" refers to the actual
number of days in the applicable Interest Period.
"Underwriter" -- see page 1 of the Prospectus.
"Unrestricted Subsidiary" means A&M Food Services, Inc.,
Kentucky Fried Chicken of California, Inc., Pizza Hut, Inc.,
Pizza Management, Inc., QSR, Inc., Taco Bell Corp., any
Subsidiaries thereof and any other Subsidiary of the Company (not
at the time designated a Restricted Subsidiary) (i) the major
part of whose business consists of finance, banking, credit,
leasing, insurance, financial services, or other similar
operations, or any combination thereof, (ii) substantially all
the assets of which consist of the capital stock of one or more
such Subsidiaries, or (iii) designated as such by the Company's
Board of Directors; provided that such designation will not
constitute a violation of the terms of the Securities.
"Warrant Agent" -- see page 25 of the Prospectus.
"Warrant Agreement" --see page 25 of the Prospectus.
"Warrant Certificate" -- see page 25 of the Prospectus.
A-7
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OUR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY APPLICABLE SUPPLEMENT IN CONNECTION
WITH THE OFFER CONTAINED HEREIN OR THEREIN AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR BY ANY AGENT. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR ANY APPLICABLE SUPPLEMENT NOR ANY SALE MADE HEREUNDER
OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF, OR THAT THE INFORMATION CONTAINED OR INCORPORATED
BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE. NEITHER THIS PROSPECTUS NOR ANY APPLICABLE SUPPLEMENT
CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY
DEBT SECURITIES OR WARRANTS IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO.
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
---------
<S> <C>
Available Information........................... 2
Incorporation of Certain Documents by
Reference...................................... 2
Important Currency Exchange Information........ 3
The Company.................................... 3
Use of Proceeds................................ 4
Ratio of Earnings to Fixed Charges............. 4
Description of Debt Securities................. 5
General................................ 5
Exchange Rate and Other
Calculations....................... 6
Payment Currency....................... 7
Interest and Principal Payments........ 7
Fixed Rate Debt Securities............. 8
Floating Rate Debt Securities.......... 9
Indexed Debt Securities................ 10
Global Debt Securities................. 10
Certain Indenture Provisions........... 11
Currency and Index-Related Risk
Factors.............................. 14
United States Tax Considerations....... 16
Description of Warrants........................ 24
General................................ 25
Debt Warrants.......................... 25
A-8
Shelf Warrants......................... 26
Plan of Distribution........................... 26
Legal Opinions................................. 27
Experts........................................ 27
Glossary....................................... A-1
</TABLE>
U.S. $2,500,000,000
(PEPSICO LOGO)
DEBT SECURITIES AND WARRANTS
DUE NOT LESS THAN NINE MONTHS FROM DATE OF ISSUE
------------------------
PROSPECTUS
------------------------
JANUARY , 1995
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance and
distribution of the securities being registered, other than
underwriting compensation, are:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee $ 862,068.97
Accounting Fees and Expenses* $ 165,000.00
Trustee's Fees and Expenses(including counsel fees)* $ 30,000.00
Blue Sky Fees and Expenses (including counsel fees)* $ 30,000.00
Printing and Engraving Fees* $ 10,000.00
Rating Agency Fees* $ 200,000.00
Miscellaneous* $ 4,931.03
___________
Total $1,302,000.00
</TABLE>
------------------
* Estimated
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(i) Sections 55-8-50 through 55-8-58 of the North Carolina
Business Corporation Act provide as follows:
Section 55-8-50. Policy statement and definitions.
(a) It is the public policy of this State to enable
corporations organized under this Chapter to attract and maintain
responsible, qualified directors, officers, employees and agents,
and, to that end, to permit corporations organized under this
Chapter to allocate the risk of personal liability of directors,
officers, employees and agents through indemnification and
insurance as authorized in this Part.
(b) Definition in this Part:
(1) "Corporation" includes any domestic or foreign
corporation absorbed in a merger which, if its separate existence
had continued, would have had the obligation or power to
indemnify its directors, officers, employees, or agents, so that
a person who would have been entitled to receive or request
indemnification from such corporation if its separate existence
had continued shall stand in the same position under this Part
with respect to the surviving corporation.
(2) "Director" means an individual who is or was a
director of a corporation or an individual who, while a director
of a corporation, is or was serving at the corporation's request
as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. A
Director is considered to be serving any employee benefit plan at
the corporation's request if his duties to the corporation also
impose duties on, or otherwise involve services by, him to the
plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the
estate or personal representative of a director.
(3) "Expenses" means expenses of every kind in
defending a proceeding, including counsel fees.
(4) "Liability" means the obligation to pay a
judgment, settlement, penalty, fine (including an excise tax
assessed with respect to an employee benefit plan), or reasonable
expenses incurred with respect to a proceeding.
(4a) "Officer", "employee", or "agent" includes,
unless the context requires otherwise, the estate or personal
representative of a person who acted in that capacity.
(5) "Official capacity" means: (i) when used with
respect to a director, the office of director in a corporation;
and (ii) when used with respect to an individual other than a
director, as contemplated in G.S. 55-8-56, the office in a
corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the
corporation. "Official capacity" does not include service for
any other foreign or domestic corporation or any partnership,
joint venture, trust, employee benefit plan, or other enterprise.
(6) "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
(7) "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
Section 55-8-51. Authority to indemnify.
(a) Except as provided in subsection (d), a
corporation may indemnify an individual made a party to a
proceeding because he is or was a director against liability
incurred in the proceeding if:
(1) He conducted himself in good faith; and
(2) He reasonably believed (i) in the case of
conduct in his official capacity with the corporation, that his
conduct was in its best interests; and (ii) in all other cases,
that his conduct was at least not opposed to its best interest;
and
(3) In the case of any criminal proceeding, he
had no reasonable cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee
benefit plan for a purpose he reasonably believed to be in the
interests of the participants in and beneficiaries of the plan is
conduct that satisfied the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment,
order, settlement, conviction, or upon a plea of no contest or
its equivalent is not, of itself, determinative that the director
did not meet the standard of conduct described in this section.
(d) A corporation may not indemnify a director under
this section:
(1) In connection with a proceeding by or in the
right of the corporation in which the director was adjudged
liable to the corporation; or
(2) In connection with any other proceeding
charging improper personal benefit to him, whether or not
involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly
received by him.
(e) Indemnification permitted under this section in
connection with a proceeding by or in the right of the
corporation that is concluded without a final adjudication on the
issue of liability is limited to reasonable expenses incurred in
connection with the proceeding.
(f) The authorization, approval or favorable
recommendation by the board of directors of a corporation of
indemnification, as permitted by this section, shall not be
deemed an act or corporate transaction in which a director has a
conflict of interest, and no such indemnification shall be void
or voidable on such ground.
Section 55-8-52. Mandatory indemnification.
Unless limited by its articles of incorporation, a
corporation shall indemnify a director who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to
which he was a party because he is or was a director of the
corporation against reasonable expenses incurred by him in
connection with the proceeding.
Section 55-8-53. Advance for expenses.
Expenses incurred by a director in defending a proceeding
may be paid by the corporation in advance of the final
disposition of such proceeding as authorized by the board of
directors in the specific case or as authorized or required under
any provision in the articles of incorporation or bylaws or by
any applicable resolution or contract upon receipt of an
undertaking by or on behalf of the director to repay such amount
unless it shall ultimately be determined that he is entitled to
be indemnified by the corporation against such expenses.
Section 55-8-54. Court-ordered indemnification.
Unless a corporation's articles of incorporation provide
otherwise, a director of the corporation who is a party to a
proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court after giving any notice the
court considers necessary may order indemnification if it
determines:
(1) The director is entitled to mandatory
indemnification under G.S. 55-8-52, in which case the court
shall also order the corporation to pay the director's reasonable
expenses incurred to obtain court-ordered indemnification;
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not he met the standard of conduct set forth in G.S.
55-8-51 or was adjudged liable as described in G.S. 55-8-51(d),
but if he was adjudged so liable his indemnification is limited
to reasonable expenses incurred.
Section 55-8-55. Determination and authorization of
indemnification.
(a) A corporation may not indemnify a director under
G.S. 55-8-51 unless authorized in the specific case after a
determination has been made that indemnification of the director
is permissible in the circumstances because he has met the
standard of conduct set forth in G.S. 55-8-51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of
a quorum consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under
subdivision (1), by majority vote of a committee duly designated
by the board of directors (in which designation directors who are
parties may participate), consisting solely of two or more
directors not at the time parties to the proceeding;
(3) By special legal counsel (i) selected by the
board of directors or its committee in the manner prescribed in
subdivision (1) or (2); or (ii) if a quorum of the board of
directors cannot be obtained under subdivision (1) and a
committee cannot be designated under subdivision (2), selected by
majority vote of the full board of directors (in which selected
directors who are parties may participate); or
(4) By the shareholders, but shares owned by or
voted under the control of directors who are at the time parties
to the proceeding may not be voted on the determination.
(c) Authorization of indemnification and evaluation as
to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
subsection (b)(3) to select counsel.
Section 55-8-56. Indemnification of officers, employees, and
agents.
Unless a corporation's articles of incorporation provide
otherwise:
(1) An officer of the corporation is entitled to
mandatory indemnification under G.S. 55-8-52, and is entitled to
apply for court-ordered indemnification under G.S. 55-8-54, in
each case to the same extent as a director;
(2) The corporation may indemnify and advance expenses
under this Part to an officer, employee, or agent of the
corporation to the same extent as to a director; and
(3) A corporation may also indemnify and advance
expenses to an officer, employee, or agent who is not a director
to the extent, consistent with public policy, that may be
provided by its articles of incorporation, bylaws, general or
specific action of its board of directors, or contract.
Section 55-8-57. Additional indemnification and insurance.
(a) In addition to and separate and apart from the
indemnification provided for in G.S. 55-8-51, 55-8-52, 55-8-54,
55-8-55 and 55-8-56, a corporation may in its articles of
incorporation or bylaws or by contract or resolution indemnify or
agree to indemnify any one or more of its directors, officers,
employees, or agents against liability and expenses in any
proceeding (including without limitation a proceeding brought by
or on behalf of the corporation itself) arising out of their
status as such or their activities in any of the foregoing
capacities; provided, however, that a corporation may not
indemnify or agree to indemnify a person against liability or
expenses he may incur on account of his activities which were at
the time taken known or believed by him to be clearly in conflict
with the best interests of the corporation. A corporation may
likewise and to the same extent indemnify or agree to indemnify
any person who, at the request of the corporation, is or was
serving as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise or as a trustee or
administrator under an employee benefit plan. Any provision in
any articles of incorporation, bylaw, contract, or resolution
permitted under this section may include provisions for recovery
from the corporation of reasonable costs, expenses, and
attorney's fees in connection with the enforcement of rights to
indemnification granted therein and may further include
provisions establishing reasonable procedures for determining and
enforcing the rights granted therein.
(b) The authorization, adoption, approval, or favorable
recommendation by the board of directors of a public corporation
of any provision in any articles of incorporation, bylaw,
contract or resolution, as permitted in this section, shall not
be deemed an act or corporate transaction in which a director has
a conflict of interest, and no such articles of incorporation or
bylaw provision or contract or resolution shall be void or
voidable on such grounds. The authorization, adoption, approval,
or favorable recommendation by the board of directors of a
nonpublic corporation of any provision in any articles of
incorporation, bylaw, contract or resolution, as permitted in
this section, which occurred prior to July 1, 1990, shall not be
deemed an act or corporate transaction in which a director has a
conflict of interest, and no such articles of incorporation,
bylaw provision, contract or resolution shall be void or voidable
on such grounds. Except as permitted in G.S. 55-8-31, no such
bylaw, contract, or resolution not adopted, authorized, approved
or ratified by shareholders shall be effective as to claims made
or liabilities asserted against any director prior to its
adoption, authorization, or approval by the board of directors.
(c) A corporation may purchase and maintain insurance on
behalf of an individual who is or was a director, officer,
employee, or agent of the corporation or who, while a director,
officer, employee, or agent of the corporation, is or was serving
at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted
against or incurred by him in that capacity or arising from his
status as a director, officer, employee, or agent, whether or not
the corporation would have power to indemnify him against the
same liability under any provision of this act.
Section 55-8-58. Application of Part.
(a) If articles of incorporation limit indemnification or
advance for expenses, indemnification and advance for expenses
are valid only to the extent consistent with the articles.
(b) This Part does not limit a corporation's power to pay
or reimburse expenses incurred by a director in connection with
his appearance as a witness in a proceeding at a time when he has
not been made a named defendant or respondent to the proceeding.
(c) This Part shall not affect rights or liabilities
arising out of acts or omissions occurring before the effective
date of this act.
(ii) Section 3.07 of Article III of the By-Laws of the
Company provides as follows:
Unless the Board of Directors shall determine
otherwise, the Corporation shall indemnify, to the full extent
permitted by law, any person who was or is, or who is threatened
to be made, a party to an action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of
the fact that he, his testator or intestate, is or was a
director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation, as a director, officer
or employee of another enterprise, against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding. Such indemnification may, in the
discretion of the Board, include advances of a director's,
officer's or employee's expenses prior to final disposition of
such action, suit or proceeding. The right of indemnification
provided for in this Section 3.07 shall not exclude any rights to
which such persons may otherwise be entitled to contract or as a
matter of law.
(iii) Officers and directors of the Company are presently
covered by insurance which (with certain exceptions and within
certain limitations) indemnifies them against any losses arising
from any alleged wrongful act including any alleged error or
misstatement or misleading statement or wrongful act or omission
or neglect of duty.
Item 16. EXHIBITS
<TABLE>
<S> <C>
1 Form of Distribution Agreement.
3 Restated Articles of Incorporation
4 (a) Indenture, dated as of December 14, 1994,
between PepsiCo, Inc. and The Chase Manhattan Bank (National
Association) as Trustee.
(b) Forms of Debt Securities (included as Exhibits A
and B to the Indenture filed herewith as Exhibit 4(a)).
(c) Form of Fixed Rate Note.
(d) Form of Floating Rate Note.
(e) Form of Debt Warrant Agreement.
(f) Form of Debt Warrant Certificate (included as
Annex A to the form of Debt Warrant Agreement filed herewith as
Exhibit 4(e)).
5 Opinion and consent of Douglas Cram, Esq., Vice
President and Assistant General Counsel of the Company.
8 Opinion and consent of Matthew M. McKenna, Esq.,
Vice President, Taxes of the Company.
12 PepsiCo, Inc. and its Consolidated
Subsidiaries Statement of Computation of Ratio of Earnings to
Fixed Charges (Unaudited).
15 Letter from KPMG Peat Marwick LLP regarding unaudited financial
information incorporated herein by reference to Exhibit 15 to
the Company's Quarterly Reports on Form 10-Q for the twelve-
week period ended March 19, 1994, the twelve and twenty-four
week periods ended June 11, 1994, and the twelve and thirty-
six week periods ended September 3, 1994.
23(a) Consent and Acknowledgment of KPMG Peat Marwick LLP.
(b) The consent of Douglas Cram, Esq. is contained in
his opinion filed as Exhibit 5 to this Registration Statement.
(c) The consent of Matthew M. McKenna, Esq. is
contained in his opinion filed as Exhibit 8 to this Registration
Statement.
24 Power of Attorney of PepsiCo, Inc. and
certain of its officers and directors, incorporated herein by
reference to Exhibit 24 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 25, 1993.
25 Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of 1939 of
The Chase Manhattan Bank (National Association).
</TABLE>
Item 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made of the securities registered hereby, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement.
provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in such Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, PEPSICO, INC.
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN PURCHASE, NEW YORK ON THE 6th DAY OF
JANUARY, 1995.
PEPSICO, INC.
BY: /s/ LAWRENCE F. DICKIE
--------------------------------
Lawrence F. Dickie
(ATTORNEY-IN-FACT)
VICE PRESIDENT, ASSOCIATE GENERAL COUNSEL
AND ASSISTANT SECRETARY
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED:
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------- ------------------- ------------
<S> <C> <C>
D. WAYNE CALLOWAY* Chairman of the January 6, 1995
(D. Wayne Calloway) Board,
Chief Executive
Officer and
Director
ROBERT G. DETTMER* Executive Vice January 6, 1995
President and
(Robert G. Dettmer) Chief Financial
Officer
ROBERT L. CARLETON* Senior Vice January 6, 1995
(Robert L. Carleton) President and
Controller
(Chief
Accounting
Officer)
JOHN F. AKERS*
(John F. Akers) Director January 6, 1995
ROBERT E. ALLEN*
(Robert E. Allen) Director January 6, 1995
ROGER A. ENRICO*
(Roger A. Enrico) Director January 6, 1995
JOHN J. MURPHY*
(John J. Murphy.) Director January 6, 1995
ANDRALL E. PEARSON*
(Andrall E. Pearson) Director January 6, 1995
SHARON PERCY
ROCKEFELLER*
(Sharon Percy Director January 6, 1995
Rockefeller)
ROGER B. SMITH*
(Roger B. Smith) Director January 6, 1995
ROBERT H. STEWART,
III*
(Robert H. Stewart, Director January 6, 1995
III)
P.ROY VAGELOS*
(P. Roy Vagelos) Director January 6, 1995
ARNOLD R. WEBER*
(Arnold R. Weber) Director January 6, 1995
</TABLE>
*By: /s/ LAWRENCE F. DICKIE
------------------------------
(Lawrence F. Dickie)
Attorney-in-Fact
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
DESCRIPTION EXHIBIT NO.
<S> <C>
Form of Distribution Agreement 1
Restated Articles of Incorporation 3
Indenture, dated as of December 14, 1994 4(a)
between PepsiCo, Inc. and The Chase Manhattan
Bank (National Association) as Trustee
*Forms of Debt Securities (included as (b)
Exhibits A and B to the Indenture filed as
Exhibit 4(a) to this Registration Statement)
Form of Fixed Rate Note (c)
Form of Floating Rate Note (d)
Form of Debt Warrant Agreement (e)
*Form of Debt Warrant Certificate (included (f)
as Exhibit A to the form of Debt Warrant
Agreement filed as Exhibit 4(e) to this
Registration Statement)
Opinion and Consent of Douglas Cram, Esq., 5
Vice President and Assistant General Counsel
of the Company
Opinion and Consent of Matthew M. McKenna, 8
Esq., Vice President, Taxes of the Company
PepsiCo, Inc. and its Consolidated 12
Subsidiaries Statement of Computation of
Ratio of Earnings to Fixed Charges
(Unaudited)
*Letter from KPMG Peat Marwick regarding 15
unaudited financial information, incorporated
herein by reference to Exhibit 15 to the
Company's Quarterly Reports on Form 10-Q for
the twelve-week period ended March 19, 1994,
the twelve and twenty-four week periods ended
June 11, 1994, and the twelve and thirty and
thirty-six week periods ended September 3,
1994
Consent and Acknowledgment of
KPMG Peat Marwick LLP 23(a)
*The consent of Douglas Cram, Esq. is
contained in his opinion filed as Exhibit 5
to this Registration Statement (b)
*The consent of Matthew M. McKenna, Esq. is
contained in his opinion filed as Exhibit 8
to this Registration Statement (c)
*Power of Attorney of PepsiCo and certain of 24
its officers and directors, incorporated
herein by reference to Exhibit 25 to
PepsiCo's Annual Report on Form 10-K for the
fiscal year ended December 25, 1993
Form T-1 Statement of Eligibility and 25
Qualification under the Trust Indenture Act
of 1939 of The Chase Manhattan Bank (National
Association)
</TABLE>
_______________________
* Incorporated by reference
Exhibit 1
PEPSICO, INC.
$2,500,000,000
Debt Securities and Warrants
U.S. DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT, dated as of ___________, 199_,
between PepsiCo, Inc., a corporation organized under the laws of
the State of North Carolina (the "Company"), and ____________, a
___________ organized under the laws of the State of
_______________ (the "Bank").
W I T N E S S E T H:
WHEREAS, the Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3, File No. 33-___________ (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating
to $2,500,000,000 in aggregate offering price of the Company's
Debt Securities and Warrants (as such terms are defined in the
Prospectus); and
WHEREAS, the Bank has agreed to participate in the offer and
sale of Debt Securities and Warrants (sometimes referred to
collectively as the "Securities") to investors on the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings
ascribed to such terms by the Prospectus; provided, however, that
in the event of a conflict between the Prospectus and any
applicable Supplement regarding the definition of any capitalized
term used herein, the definition set forth in the applicable
Supplement will govern; and provided, further, that the terms
"Registration Statement", "Prospectus", "Pricing Supplement", and
"Prospectus Supplement", as used herein, (a) include, in each
case, the documents (if any) incorporated by reference therein,
and (b) refer, in each case, to such document as supplemented or
otherwise amended from time to time.
SECTION 2. Appointment of Bank as Agent. From the date
hereof and until the expiration or earlier termination of this
Agreement, the Bank will be the agent of the Company
with respect to the distribution and sale of the Securities, and
will use reasonable efforts, consistent with standard industry
practice, to solicit offers for the purchase of the Securities
upon the terms and conditions set forth in the Prospectus and,
with respect to Securities of a given series, in the applicable
Pricing Supplement or Prospectus Supplement (each such supplement
a "Supplement" or an "applicable Supplement"), provided, however,
that the Bank will not be required to solicit offers to purchase
Securities issued pursuant to a Supplement that does not name the
Bank as an agent. All sales of Securities resulting from a
solicitation made or an offer to purchase received by the Bank in
its capacity as agent during the term of this Agreement will be
subject to the provisions of this Section 2 and to all other
provisions of this Agreement not specifically limited to sales of
Securities made to the Bank as underwriter and/or as purchaser
for its own account.
(a) Non-Exclusive Agency. The Bank acknowledges and agrees
that its agency hereunder is non-exclusive and that its
obligations as agent hereunder will continue notwithstanding the
offer or sale of Securities by the Company directly to investors
(including the Bank as purchaser for its own account), to
underwriters (including the Bank as underwriter, as contemplated
by Section 3 below), and/or through other agents, as the Company
may, in its sole discretion, elect. The obligations of the Bank
in its capacity as agent hereunder, and the obligations of each
other person that has been authorized by the Company to act as
its agent in soliciting offers to purchase Securities, shall be
several and not joint.
(b) Solicitation of Offers by Bank as Agent; Rights of
Acceptance and Rejection of Offers. The Bank may reject, and
will not be required to communicate to the Company, any offer to
purchase Securities that it reasonably deems unacceptable. The
Company will have the sole right to accept any offer to purchase
Securities and may reject any such offer in whole or in part.
The Company will in no event approve any solicitation of offers
or accept any offers to purchase Securities the aggregate public
offering price of which, together with the aggregate public
offering price of all Securities previously sold by the Company
(whether through or to any agents or underwriters or otherwise),
would exceed the sum of $2,500,000,000, or, with respect to
Securities of a given series, would exceed the maximum aggregate
public offering price stated in the applicable Supplement.
(c) Commissions. As consideration for the sale of
Securities of a given series that occurs as a result of a
solicitation made or an offer to purchase received by the Bank in
its capacity as agent, the Company will pay the Bank the
commission identified in the applicable Supplement, which
commission will be expressed as a percentage of the aggregate
public offering price of such Securities. Payment of the
commission will be made on the Settlement Date (as defined in
Section 11(c) hereof), in U.S. dollars or such other currency as
the Company and the Bank may agree in writing, by discount from
the proceeds of the sale of such Securities or by such other
means as may be agreed to in writing by the Company and the Bank
and set forth in the applicable Terms Agreement (hereinafter
defined). Any provision of this Agreement to the contrary
notwithstanding, the Bank will not be entitled to payment of any
commission with
respect to the sale of a given Security unless (i) the sale of
such Security shall have occurred as a result of a solicitation
made or an offer to purchase received by the Bank in its capacity
as agent hereunder, on the terms and conditions set forth herein
and in the applicable Terms Agreement, (ii) the Bank shall have
been named as an agent in the applicable Supplement, and (iii)
such Security shall have been sold by the Company directly to a
third-party investor without the Bank acquiring legal title
thereto.
(d) Termination or Suspension of Solicitations by Bank as
Agent. The Company may at any time require the Bank to terminate
or temporarily suspend the solicitation of offers to purchase
Securities. Upon receipt of written notice from the Company to
the Bank directing the Bank to terminate or suspend solicitations
of offers to purchase Securities, until (in the case of a
temporary suspension) such time as may be indicated in such
notice or in any subsequent notice from the Company to the Bank,
the Bank will forthwith terminate or suspend such solicitations
(as the case may be). The provisions of this paragraph
notwithstanding, the termination or suspension by the Company of
the Bank's solicitation of offers to purchase Securities will not
(except under the circumstances contemplated in Section 6 or
Section 9(b) hereof) relieve or otherwise affect the Bank's
obligation to purchase any Securities the Bank shall have agreed
to purchase in its capacity as underwriter, or the Company's
obligation to sell any Securities it shall have agreed to sell to
a third-party investor through the Bank in its capacity as agent,
in either case as set forth in an applicable Terms Agreement that
shall have been executed and delivered by both the Company and
the Bank.
(e) Scope of Agency. In soliciting offers to purchase
Securities, the Bank will be acting solely as an agent for the
Company. The Bank will use its best efforts consistent with
standard industry practice to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities
has been solicited by the Bank and accepted by the Company, but
the Bank will not have any liability to the Company in the event
that any such purchase is not consummated for any reason. If the
Company shall default in its obligations to deliver Securities to
a purchaser whose offer it has accepted, the Company will hold
the Bank harmless against any loss, claim, damage, or liability
arising from or as a result of such default and will pay to the
Bank the commission the Bank would have received had such sale
been consummated.
SECTION 3. Purchase and Sale of Securities by Bank as
Underwriter. The Company and the Bank may agree upon one or more
sales of Securities to the Bank as underwriter, for resale to
investors on the terms set forth in the Prospectus and in any
applicable Supplement. All sales of Securities made to the Bank
in its capacity as underwriter during the term of this Agreement
will be subject to the provisions of this Section 3 and to all
other provisions of this Agreement not specifically limited to
sales of Securities through the Bank as agent and/or to the Bank
as purchaser for its own account.
(a) Bank's Obligation to Purchase Securities; Multiple
Underwriters. In the event that the Bank is the sole underwriter
with respect to a particular series of Securities, the
Bank will be obligated to purchase all of the Securities of such
series. In the event that the Bank is one of two or more
underwriters with respect to a particular series of Securities,
the applicable Terms Agreement will specify the aggregate public
offering price of the Securities that each of the Bank and such
other underwriter or underwriters will be obligated to purchase,
such obligations to be several and not joint.
(b) Discounts. All Securities of any series to be sold to
the Bank in its capacity as underwriter will be sold at a
discount from the price at which such Securities are to be sold
to the public. Such discount will be identified in the
applicable Terms Agreement, expressed as a percentage of the
aggregate public offering price of such Securities. Any
provision of this Agreement to the contrary notwithstanding, the
Bank will not be entitled to any discount with respect to the
purchase of a given Security unless (i) the Bank shall have
purchased such Security with a view, at the time of such
purchase, to the immediate resale thereof to a third-party
investor, unless the Company shall have otherwise agreed in the
applicable Terms Agreement, and (ii) the Bank shall have been
named as an underwriter in the applicable Supplement. It is
expressly acknowledged and agreed that the Bank may, in its
capacity as underwriter with respect to any given series of
Securities, sell such Securities to one or more dealers that are
not parties to this Agreement or the applicable Terms Agreement,
and may allow to such dealers a discount from the public offering
price of such Securities, provided that the aggregate of all such
discounts allowed by the Bank to such dealers with respect to
such Securities will not exceed the discount received by the Bank
from the Company with respect to such Securities.
SECTION 4. Terms Agreement; Administrative Procedures. No
agreement for the purchase of Securities by the Bank in its
capacity as underwriter or through the Bank in its capacity as
agent will be deemed to exist until the terms of such agreement
shall have been put in writing, substantially in the form of the
attached Exhibit I, and such writing shall have been signed by
both the Company and the Bank (any such signed writing a "Terms
Agreement"). In the event of a conflict between any provision of
a Terms Agreement with respect to Securities of a given series
and any term of the applicable Supplement, the terms of the
applicable Supplement will govern.
Each of the Company and the Bank agrees that it will perform
its respective administrative obligations with respect to the
offer and sale of Securities as set forth in the Administrative
Procedures attached to this Agreement as Exhibit II. Each Terms
Agreement will incorporate all applicable terms and provisions of
this Agreement and the Administrative Procedures as fully as
though such terms and provisions were expressly stated therein.
SECTION 5. Delivery of Certain Documents, Certificates, and
Opinions. Prior to or contemporaneously with the execution and
delivery of this Agreement by the Bank (or, in respect of
paragraph (g) below, at such later date or dates as indicated in
such paragraph), the Bank has received or will receive the
following documents:
(a) the opinion of Douglas Cram, Esq., Vice President and
Assistant General Counsel of the Company, or such other counsel
as may be selected by the Company and agreed to by the Bank (Mr.
Cram or such other counsel each, successively, the "Company's
Counsel"), dated as of the effective date of the Registration
Statement (the "Effective Date"), substantially in the form of
Annex A hereto,
(b) the opinion of Cahill Gordon & Reindel, special counsel
to the Bank, or such other counsel as may be selected by the Bank
and agreed to by the Company (Cahill Gordon & Reindel or such
other counsel each, successively, the "Bank's Counsel"), dated as
of the Effective Date, substantially in the form of Annex B
hereto,
(c) the opinion of Matthew M. McKenna, Esq., Vice
President, Taxes, of the Company, or such other tax counsel as
may be selected by the Company and agreed to by the Bank (Mr.
McKenna or such other counsel each, successively, the "Tax
Counsel"), dated as of the Effective Date, substantially in the
form of Annex C hereto,
(d) a certificate of the Secretary or the Assistant
Secretary of the Company, dated as of the Effective Date,
substantially in the form of Annex D hereto,
(e) a certificate of the Executive Vice President and Chief
Financial Officer and the Senior Vice President and Treasurer of
the Company, dated as of the Effective Date, substantially in the
form of Annex E hereto, and
(f) an Auditors' Letter (as hereinafter defined) with
respect to the preceding fiscal quarter of the Company, dated as
of a date no later than 14 business days following the date on
which the Company shall have filed its Quarterly Report on Form
10-Q with respect to such fiscal quarter (or its Annual Report on
Form 10-K for the year in which such fiscal quarter occurred, as
the case may be).
(g) At such time as any form of Shelf Warrant Agreement is
filed by the Company as an amendment and/or exhibit to the
Registration Statement, and at such time as any Prospectus
Supplement relating to one or more series of Shelf Warrants is
filed by the Company as a supplement to the Prospectus, the Bank
will receive an opinion of the Company's Counsel, an opinion of
the Bank's Counsel, and an opinion of the Tax Counsel, each dated
as of the date such exhibit is filed or the effective date of
such amendment or supplement, as the case may be, substantially
in the forms attached hereto as Annex A, Annex B, and Annex C,
respectively, modified as appropriate to address such series of
Shelf Warrants and the related Warrant Agreement and Prospectus
Supplement, provided, however, that such opinion of the Company's
Counsel will be limited to the opinions described in paragraphs
(5) and (8) of Annex A hereto, modified as appropriate to address
such Warrant Agreement, and to the opinions described in
paragraphs (6), (7), and (11) of Annex A hereto, modified as
appropriate to address such series of Shelf Warrants and the
applicable Prospectus Supplement. The Bank will also receive a
certificate of the Secretary or an Assistant Secretary of the
Company, dated as of the date such exhibit is filed or the
effective date of such amendment or supplement, as the case may
be, certifying that such series of Shelf Warrants, and the
related Warrant Agreement, Prospectus Supplement, and form of
Warrant Certificate, have been approved by the Board of Directors
of the Company. The receipt by the Bank of such opinions and
certificate will be a condition precedent to the Bank's
obligation to solicit offers for the purchase of such series of
Shelf Warrants, but will not be a condition precedent to the
Bank's continued obligation to solicit offers for the purchase of
any other Securities in its capacity as agent hereunder.
SECTION 6. Certain Conditions Precedent to Bank's
Obligations. The Bank's obligation to solicit offers to purchase
Securities in its capacity as agent, and its obligation to
purchase any Securities in its capacity as underwriter, will in
all cases be subject to the accuracy of the representations and
warranties of the Company set forth in Section 7 hereof or in the
applicable Terms Agreement (as the case may be), to receipt of
the opinions and certificates to be delivered to the Bank
pursuant to the terms of Sections 5 and 9 hereof or the
provisions of the applicable Terms Agreement (as the case may
be), to the accuracy of the statements of the Company's officers
made in each certificate to be furnished as provided herein or in
the applicable Terms Agreement (as the case may be), to the
performance and observance by the Company of all covenants and
agreements contained herein or in the applicable Terms Agreement
(as the case may be) on its part to be performed and observed, in
each case at the time of solicitation by the Bank of offers to
purchase Securities, at the time the Company accepts any offer to
purchase Securities through the Bank in its capacity as agent or
by the Bank in its capacity as underwriter, as the case may be,
and at the time of purchase, and (in each case) to the following
additional conditions precedent, when and as specified:
(a) As of the Settlement Date for any Securities to be
purchased through the Bank in its capacity as agent or by the
Bank in its capacity as underwriter (for purposes of this
paragraph (a), the "Applicable Settlement Date"), and with
respect to the period from the date of the applicable Terms
Agreement to and including the Applicable Settlement Date:
(i) there shall not have occurred (A) any material
adverse change specified in the most recent Auditors' Letter
delivered to the Bank in accordance with the provisions of
paragraph (b) below, or any material adverse change (or
development involving a prospective material adverse change) in
the business, properties, earnings, or financial condition of the
Company and its subsidiaries on a consolidated basis, (B) any
suspension or material limitation of trading in the Company's
capital stock by the Commission or the New York Stock Exchange,
Inc. (the "NYSE"), or (C) any decrease by Moody's Investors
Services, Inc. or Standard & Poor's Corporation with respect to
the ratings of any of the debt securities issued or guaranteed by
the Company (the events described in the foregoing clauses A
through C the "Company-Specific Events"), the effect of any of
which Company-Specific Events shall have made it impracticable,
in the
reasonable judgment of the Bank, to market such Securities,
such judgment to be based on relevant market conditions;
(ii) there shall not have occurred (A) any suspension
or material limitation of trading in securities generally on the
NYSE or the establishment of minimum prices on the NYSE, (B) a
declaration of a general moratorium on commercial banking
activities in New York by either Federal or New York State
authorities, or (C) any outbreak or material escalation of
hostilities or other national or international calamity or crisis
(the events described in the foregoing clauses A through C the
"Market Events"), the effect of any of which Market Events shall
have made it impracticable, in the reasonable judgment of the
Bank, to market such Securities, such judgment to be based on
relevant market conditions, including, without limitation, the
impact of such Market Event on debt securities having
substantially similar characteristics; and
(iii) there shall not have been issued any stop
order suspending the effectiveness of the Registration Statement
nor shall any proceedings for that purpose have been instituted
or threatened.
(b) The Bank will receive, upon execution and delivery of
this Agreement and any applicable Terms Agreement and thereafter
on a quarterly basis throughout the term of this Agreement, a
letter from KPMG Peat Marwick ("KPMG"), or such other independent
certified public accountants as may be selected by the Company
(KPMG or such other independent certified public accountants
each, successively, the "Company's Auditors"), setting forth
certain information with respect to the preceding fiscal quarter
of the Company, provided, that on or prior to the Settlement Date
for the first sale of Securities resulting from a solicitation
made or an offer to purchase received by the Bank in its capacity
as agent, or on or prior to the Settlement Date for the first
sale of Securities made to the Bank in its capacity as
underwriter, (1) the Bank shall have delivered to the Company's
Auditors a letter setting forth certain representations in
substantially the form of Annex F hereto, or (2) the Bank's
Counsel shall have delivered to the Company's Auditors an opinion
in substantially the form of Annex G hereto. Each letter from
the Company's Auditors to the Bank will be dated as of a date no
later than 14 business days following the date on which the
Company shall have filed its Quarterly Report on Form 10-Q with
respect to such fiscal quarter (or its Annual Report on Form 10-K
for the year in which such fiscal quarter occurred, as the case
may be) and will state substantially as follows (each such letter
an "Auditors' Letter"):
(i) they are independent certified public accountants
within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the respective applicable rules
and regulations of the Commission thereunder;
(ii) in their opinion the most recent audited
financial statements of the Company and the financial statement
schedules of the Company audited by them and included or
incorporated in the Registration Statement and/or the Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder;
(iii) on the basis of: a reading of the financial
statements of the Company and its subsidiaries on a consolidated
basis (which may be unaudited) included or incorporated by
reference in the Registration Statement and/or the Prospectus; a
reading of the minutes of the meetings of the Board of Directors
of the Company held subsequent to the date of the most recent
audited financial statements of the Company included or
incorporated by reference in the Registration Statement and/or
the Prospectus to a specified date not more than five New York
Business Days prior to the date of the applicable Auditors'
Letter; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent financial statements of
the Company included or incorporated by reference in the
Registration Statement and/or the Prospectus to a specified date
not more than five New York Business Days prior to the date of
such Auditors' Letter (which procedures and inquiries do not
constitute an audit made in accordance with generally accepted
auditing standards), nothing came to their attention which caused
them to believe that:
1. the unaudited financial statements, if any,
included or incorporated by reference in the Registration
Statement and/or the Prospectus do not comply as to form in all
material respects with applicable accounting requirements of the
Securities Act and the Exchange Act and the respective applicable
published rules and regulations thereunder, or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
consolidated financial statements included or incorporated by
reference in the Registration Statement and/or the Prospectus;
2. during the period from the first day
following the date of the last financial statements (which may be
unaudited) of the Company included or incorporated by reference
in the Registration Statement and/or the Prospectus, to a
specified date not more than five New York Business Days from the
date of the applicable Auditors' Letter, there has been any (i)
decrease in the outstanding capital stock of the Company or in
the consolidated shareholders' equity of the Company other than a
decrease
resulting from a normal dividend distribution or change
in the foreign currency translation adjustment account or (ii)
increase in the consolidated long-term debt of the Company
resulting from the issuance of long-term debt, in any case
greater than 3% as compared with amounts shown in the unaudited
condensed consolidated balance sheet at the end of the Company's
immediately preceding fiscal quarter, except in each case for
decreases or increases, as the case may be, that the Registration
Statement and/or the Prospectus disclose have occurred or may
occur or that are described in such letter; or during such period
there were any decreases in consolidated net sales or in
consolidated total or per share amounts of income from continuing
operations or of net income, as compared with the corresponding
period in the preceding year, except, in each case, for decreases
that the Registration Statement and/or the Prospectus disclose
have occurred or may occur or that are described in such letter;
or
3. the amounts included in any unaudited
"capsule" financial information derived from the general
accounting records of the Company and included or incorporated by
reference in the Registration Statement and/or the Prospectus and
the amounts used to compute the ratios set forth in the table of
"Ratio of Earnings to Fixed Charges", if any, included in the
Registration Statement and/or the Prospectus do not agree with
the corresponding amounts in the audited or unaudited financial
statements or schedules prepared by the Company, as the case may
be, from which such amounts were derived or that the computation
of the ratios set forth in the aforementioned table is not
arithmetically correct;
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and/or the Prospectus and in Exhibit 12 to the
Registration Statement, including certain information included or
incorporated in Items 1, 6, 7 and 11 of the Company's most recent
Annual Report on Form 10-K, incorporated by reference in the
Registration Statement and/or the Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated by reference in the Company's most recent Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement
and/or the Prospectus, agrees with the general accounting records
of the Company and its subsidiaries or schedules prepared by the
Company, excluding any questions of legal interpretation; and
(v) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and/or the
Prospectus, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain procedures specified
by the Bank, inquiries of certain officials of the Company who
have responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the
unaudited pro forma adjustments to the historical amounts in the
unaudited pro forma financial statements, nothing came to their
attention which caused them to believe that the unaudited pro
forma financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the unaudited pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
(c) On each Settlement Date, the Bank shall have received
from the Company such appropriate further information,
certificates, and documents as the Company and the Bank shall
have agreed, as reflected in the applicable Terms Agreement.
SECTION 7. Representations and Warranties of the
Company. The Company represents and warrants to the Bank that,
as of the date hereof, asof each date on which the Company and
the Bank execute and deliver a Terms Agreement, as of each date
the Company issues and sells Securities through theBank in its
capacity as agent or to the Bank in its capacity as
underwriter,and as of each date the Registration Statement or the
Prospectus is amended or supplemented, the following statements
are and shall be true:
(a) (i) The Registration Statement has become effective and
no stop order suspending the effectiveness of the Registration
Statement is in effect nor, to the Company's knowledge, are any
proceedings for such purpose pending before or threatened by the
Commission, (ii) as of the Effective Date, the Company met the
applicable requirements for use of Form S-3 under the Securities
Act with respect to the registration under the Securities Act of
$2,500,000,000 in aggregate public offering price of Debt
Securities and Warrants, and (iii) as of the Effective Date, the
Registration Statement met the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and complied in all
material respects with said Rule.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated or to be
incorporated by reference in the Prospectus complies or will
comply, in all material respects, with the applicable provisions
of the Exchange Act and the rules and regulations of the
Commission thereunder, (ii) the Registration Statement does not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the
Registration Statement and the Prospectus comply, in all material
respects, with the Securities Act and the rules and regulations
of the Commission thereunder, and (iv) the Prospectus does not
contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in
light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations and
warranties (1) as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company
by the Bank expressly for use in the Registration Statement or
the Prospectus or any amendment or supplement thereto, or (2) as
to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification of the Trustee (the
"Form T-1") under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
(c) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
North Carolina, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus, and is duly qualified to transact business as a
foreign corporation and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(d) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed, and
delivered by the Company and (assuming due authorization, valid
execution, and delivery thereof by the Trustee) is a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as such enforceability may
be limited by the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws relating to
creditors' rights generally, by any other federal or state laws,
by rights of acceleration, by general principles of equity, or by
the discretion of any court before which any proceeding therefor
may be brought.
(e) This Agreement has been duly authorized, executed, and
delivered by the Company and (assuming due authorization, valid
execution, and delivery by the Bank) is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability of any
term or provision hereof (including, without limitation, the
Company's indemnity obligations under Section 12 hereof) may be
limited by the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws relating to
creditors' rights generally, by rights of acceleration, by any
other federal or state law. by general principles of equity, or
by the discretion of any court before which any proceeding
therefor may be brought.
(f) The respective forms of Terms Agreement and Debt
Warrant Agreement filed by the Company as exhibits to the
Registration Statement, and the form of any Shelf Warrant
Agreement to be filed by the Company as an exhibit to the
Registration Statement, have been or will be duly authorized by
the Company and, assuming valid execution and delivery by the
Company and due authorization, valid execution, and delivery by
each of the other parties thereto, each such agreement will be a
valid and binding agreement of the Company, enforceable against
the Company in accordance with its respective terms, except as
such enforceability may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws relating to creditors' rights generally, by any
other federal or state laws, by general principles of equity, or
by the discretion of any court before which any proceeding
therefor may be brought.
(g) The Securities have been duly authorized and, when
issued, executed, and authenticated in accordance with the
provisions of the Indenture, or when countersigned by the Warrant
Agent in accordance with the provisions of the applicable Warrant
Agreement, as the case may be, and delivered to and duly paid for
in accordance with the applicable provisions of the Prospectus,
any applicable Supplement, and Section 11(c) hereof, will be
entitled to the benefits of the Indenture or the applicable
Warrant Agreement, as the case may be, and will be valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as such
enforceability may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws relating to creditors' rights generally, by any
other federal or state laws, by rights of acceleration, if
applicable, by general principles of equity, or by the discretion
of any court before which any proceeding therefor may be brought.
(h) The execution and delivery of and performance by the
Company of its obligations under this Agreement, the Securities,
the Indenture, any Warrant Agreement, and any Terms Agreement, as
the case may be, will not contravene any provision of any
applicable law or of the Restated Charter or By-Laws of the
Company, or of any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries taken as a whole, or of any
judgment, order, or decree of any governmental body, agency, or
court having jurisdiction over the Company or any of its
subsidiaries, and no consent, approval, authorization, or order
of or qualification with any governmental body or agency is, to
the Company's knowledge, required for the performance by the
Company of its obligations under this Agreement, the Securities,
the Indenture, or any Warrant Agreement or Terms Agreement,
except such as may be required by Blue Sky laws or other
securities laws of the various states in which the Securities are
offered and sold.
(i) There has not been any material adverse change (or
development involving a prospective material adverse change) in
the business, properties, earnings, or financial condition of the
Company and its subsidiaries on a consolidated basis from that
set forth in the Company's last periodic report filed with the
Commission under the Exchange Act and the rules and regulations
promulgated thereunder.
(j) There are no legal or governmental proceedings pending
or, to the Company's knowledge, threatened, to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject
that is required to be described in the Registration Statement or
the Prospectus and is not so described, or any
applicable statute, regulation, contract, or other document that
is required to be described in the Registration Statement or the
Prospectus that is not so described.
SECTION 8. Authority, Compliance with Laws. As of the
date hereof, as of each date on which the Company and the Bank
execute and deliver a Terms Agreement, as of each date the
Company issues and sells Securities through the Bank in its
capacity as agent or to the Bank in its capacity as underwriter,
and as of each date the Registration Statement or the Prospectus
is amended or supplemented, the following statements are and
shall be true:
(a) Each of this Agreement and any Terms Agreement has been
duly authorized, executed, and delivered by the Bank and
(assuming due authorization, valid execution, and delivery
thereof by the Company) is a valid and binding agreement of the
Bank, enforceable against the Bank in accordance with its
respective terms, except as the enforceability of any such terms
or provisions (including, without limitation, the Bank's agency
obligations under Section 2 hereof and the Bank's indemnification
obligations under Section 12 hereof) may be limited by the laws
of bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, or similar laws relating to creditors' rights
generally, by any other federal or state laws, by general
principles of equity, or by the discretion of any court before
which any proceeding therefor may be brought.
(b) Neither the execution and delivery of this Agreement or
any Terms Agreement by the Bank nor the performance by the Bank
of its obligations hereunder or thereunder is precluded by any
provision of any applicable federal or state law (including,
without limitation, the Blue Sky laws of any jurisdiction, to the
extent that such laws apply to the Bank), or of any term or
provision of the Charter or By-Laws of the Bank, any agreement
or other instrument binding upon the Bank, or any judgment,
order, or decree of any governmental body, agency, or court
having jurisdiction over the Bank, and all consents, approvals,
authorizations, and orders of and qualifications with all
governmental bodies and agencies that are, to the Bank's
knowledge, required for the performance by the Bank of its
obligations under this Agreement or any Terms Agreement have been
obtained, except such as may be required by Blue Sky laws or
other securities laws of the various states in which the
Securities are offered and sold.
(c) The Bank has delivered and will deliver a copy of the
Prospectus (as the same may be amended as of the date of such
delivery, together with all applicable Supplements), to each
person who has agreed to purchase Securities as to which the Bank
is named as an agent or underwriter, in each case in accordance
with all applicable federal and state laws. The Bank has not
made and will not make any representation, warranty, or other
statement to any third party in connection with the solicitation,
offer, sale, or distribution of any of the Securities that is or,
at the time it is made, will be in violation of any applicable
federal or state law.
SECTION 9. Agreements. The Company and the Bank agree
as follows:
(a) Prior to the filing by the Company of any amendment to
the Registration Statement or of any Supplement that shall name
the Bank as agent or underwriter, the Company will afford the
Bank or the Bank's Counsel a reasonable opportunity to review and
comment on the same, provided, however, that the foregoing
requirement will not apply to any of the Company's filings with
the Commission required to be filed pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act. Subject to the
foregoing sentence, the Company will promptly cause each
applicable Supplement to be filed with or transmitted for filing
with the Commission in accordance with Rule 424(b) or 424(c)
under the Securities Act or pursuant to such other rule or
regulation of the Commission as then deemed appropriate by the
Company. The Company will promptly advise the Bank of (i) the
filing and effectiveness of any amendment to the Registration
Statement other than by virtue of the Company's filing any report
required to be filed under the Exchange Act and the filing of any
supplement to the Prospectus other than a Pricing Supplement,
(ii) any request by the Commission for any amendment to the
Registration Statement, for any amendment or supplement to the
Prospectus, or for any information from the Company, (iii) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (iv) the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use reasonable efforts to
prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as
reasonably possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to any
series of Securities is required to be delivered under the
Securities Act, any event occurs or condition exists as a result
of which the Prospectus would include an untrue statement of a
material fact, or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to
amend or supplement the Prospectus in order to comply with the
Securities Act, the Exchange Act, the respective rules and
regulations of the Commission thereunder, or any other applicable
law, the Company will promptly notify the Bank, by telephone or
by facsimile (in either case with written confirmation from the
Company by mail), to cease use and distribution of the Prospectus
(and all then existing supplements thereto) and to suspend all
efforts to solicit offers to purchase Securities in its capacity
as agent or to suspend all efforts to resell the Securities in
its capacity as underwriter or dealer, as the case may be, and
the Bank will promptly comply with the terms of such notice. If
the Company thereafter decides to amend or supplement the
Registration Statement or the Prospectus to correct such
statement or omission or to effect such compliance, it will
promptly advise the Bank of such decision, either by telephone or
telecopier (in either case with confirmation from the Company by
mail) and, at the Company's expense, will promptly prepare and
cause to be filed with the Commission an appropriate amendment or
supplement to the Registration Statement or the Prospectus, as
the case may, and will supply the Bank with one signed copy of
any such amended Registration Statement and as many copies of any
such amended or supplemented Prospectus as the Bank may reasonably
request. If such amendment or supplement is satisfactory in the
reasonable judgment of the Bank to correct such statement or
omission or to effect such compliance, then upon the effective
date of such amendment to the Registration Statement or the
filing with the Commission of such amendment or supplement to the
Prospectus, as the case may be, the Bank may resume solicitation
of offers to purchase such Securities or the resale of such
Securities as the case may be, in accordance with the terms
hereof. Any other provision of this Agreement to the contrary
notwithstanding, if any event or condition contemplated in the
first sentence of this paragraph (b) shall occur before the
Settlement Date for any sale of Securities to be made through the
Bank in its capacity as agent, or before the Bank has completed
distribution of any Securities it may have purchased in its
capacity as underwriter, the Company will forthwith prepare and
cause to be filed with the Commission an amendment or supplement
to the Registration Statement or the Prospectus, as the case may
be, satisfactory in the reasonable judgment of the Bank to
correct such statement or omission or to effect such compliance,
and the Company will supply the Bank with one signed copy of such
amended Registration Statement and as many copies of such amended
or supplemented Prospectus as the Bank may reasonably request,
provided, however, that the expense of preparing, filing, and
supplying copies to the Bank of any such amendment or supplement
will be borne by the Company only for the nine-month period
immediately following the purchase of such Securities by the Bank
and thereafter will be borne by the Bank.
(c) The Company will furnish to the Bank, without charge,
one signed copy of the Registration Statement (including
exhibits) and all amendments thereto that shall become effective,
and as many copies of the Prospectus, any documents incorporated
by reference therein, and any supplements and amendments thereto
as the Bank may reasonably request, in each case within a
reasonable period of time following the date on which this
Agreement is executed and delivered by the Company and the Bank,
or the date on which such document becomes effective, or the date
on which such document is requested by the Bank, as applicable.
(d) The Company will, with such assistance from the Bank as
the Company may reasonably request, endeavor to qualify the
Securities for offer and sale under the Blue Sky laws or other
securities laws of such jurisdictions as the Bank shall
reasonably request and will maintain such qualifications for as
long as required with respect to the offer, sale, and
distribution of the Securities.
(e) From the date of any Terms Agreement providing for the
purchase of Securities by the Bank in its capacity as an
underwriter hereunder to and including the corresponding
Settlement Date, the Company will not, without the Bank's prior
consent (which consent may not be unreasonably withheld), offer,
sell, or contract to sell to, or announce any offering of any
Securities to be distributed by, any underwriter other than the
Bank pursuant to any underwriting agreement or other similar
agreement (including a distribution agreement) between the
Company and one or more third parties. It is expressly
understood and agreed that the foregoing will not prohibit or
restrict any sale of Securities outside the United States or any
sale of Securities by the Company directly to one or more
investors, through the Bank as agent hereunder, or through any
other agent of the Company.
(f) The Company will make generally available to its
security holders earnings statements that satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder.
(g) Each time the Registration Statement or Prospectus is
amended or supplemented by the Company's periodic filings
pursuant to the Exchange Act, or by any means or for any purpose
other than by the filing of a Pricing Supplement or for a change
the Company reasonably deems to be immaterial, the Company will
make available to the Bank, promptly upon request, (i) an
officers' certificate, dated the date of such amendment or
supplement to the Registration Statement or the Prospectus, as
the case may be, in substantially the form of Annex E hereto, and
(ii) a written opinion of the Company's Counsel, dated the date
of such amendment or supplement to the Registration Statement or
the Prospectus, as the case may be, as to the matters addressed
in paragraphs (1), (8), (9), (10) and (11) of Annex A hereto,
provided, however, that in lieu of such opinion, counsel last
furnishing such an opinion to the Bank (including the opinion to
be delivered pursuant to paragraph (a) of Section 5 hereof) may
furnish to the Bank a letter stating that the Bank may rely on
such last opinion to the same extent as though it were dated the
date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement or the
Prospectus as amended and supplemented as of the date of such
letter).
(h) Each time the Registration Statement or the Prospectus
is amended or supplemented to set forth amended or supplemental
financial information, or amended or supplemental financial
information is incorporated by reference in the Registration
Statement or the Prospectus, the Company will cause the Company's
Auditors to forthwith furnish the Bank with a letter
substantially in the form of an Auditors' Letter, dated the
effective date of such amendment or supplement, as the case may
be, as to such amended or supplemental financial information;
provided, however, that the foregoing requirement will not apply
to any of the Company's filings with the Commission required to
be filed pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act, and provided, further, that the delivery of such
letter by the Company's Auditors to the Bank will be in addition
to, and not in lieu of, any Auditors' Letter to be delivered to
the Bank pursuant to paragraph 6(b) of this Agreement.
(i) As of the date hereof, as of each date on which the
Company and the Bank execute and deliver a Terms Agreement, as of
each date the Company issues and sells Securities through the
Bank in its capacity as agent or to the Bank in its capacity as
underwriter, and as of each date the Registration Statement or
the Prospectus is amended or supplemented, the Bank has disclosed
and will disclose to the Company the purchase of any Security
made by the Bank as principal, for its own account, and not with
a view to the immediate sale or resale of such Security to a bona
fide third-party investor.
SECTION 10. Fees and Expenses. The Company will pay
all costs, fees, and expenses arising in connection with the
sale of any Securities through the Bank in its capacity as agent
or to the Bank in its capacity as underwriter and in connection
with the performance by the Bank of its related obligations
hereunder and under any Terms Agreement, including the following:
(i) expenses incident to the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) expenses incident to the issuance and
delivery of such Securities, (iii) the fees and disbursements of
the Company's Counsel, the Tax Counsel, the Company's Auditors,
the Trustee, and the Trustee's counsel, (iv) expenses incident to
the qualification of such Securities under Blue Sky laws and
other applicable state securities laws in accordance with the
provisions of Section 9(d) hereof, including related filing fees
and the reasonable fees and disbursements of the Bank's Counsel
in connection therewith and in connection with the preparation of
any survey of Blue Sky laws (a "Blue Sky Survey"), (v) expenses
incident to the printing and delivery to the Bank, in the
quantities hereinabove stated, of copies of the Registration
Statement and all amendments thereto and of the Prospectus and
all amendments and supplements thereto, (vi) expenses incident to
the printing and delivery to the Bank, in such quantities as the
Bank shall reasonably request, of copies of the Indenture, any
Warrant Agreement, and any Blue Sky Survey, (vii) any fees
charged by rating agencies for the rating of such Securities,
(viii) the fees and expenses, if any, incurred with respect to
any applicable filing with the National Association of Securities
Dealers, and (ix) the reasonable fees and disbursements of the
Bank's Counsel incurred in connection with the offering and sale
of such Securities, including reasonable fees for the issuance of
any opinion to be delivered by the Bank's Counsel hereunder;
provided, however, that the Bank will pay all costs, fees, and
expenses incurred by the Bank in connection with the purchase of
Securities by the Bank for its own account or with respect to the
resale of Securities purchased by the Bank in its capacity as
underwriter hereunder, including all transfer taxes, advertising
expenses, and fees and expenses of the Bank's Counsel incident to
the resale of any such Securities. The immediately preceding
proviso notwithstanding, the Company will, upon demand, reimburse
the Bank for all reasonable out-of-pocket expenses incurred by
the Bank in connection with a purchase by the Bank as underwriter
that is not consummated as a result of a material failure by the
Company to perform its obligations hereunder, including, without
limitation, a default by the Company with respect to any of the
representations or warranties set forth in Section 7 hereof.
SECTION 11. Inspection; Place of Delivery; Payment.
(a) Inspection. The Company agrees to have available for
inspection, checking, and packaging by the Bank or its appointed
agent, at the office of the Trustee in Brooklyn, New York, the
Securities to be sold through or to the Bank as agent or
underwriter hereunder, not later than 1:00 P.M. on the New York
Business Day prior to the applicable Settlement Date.
(b) Place of Delivery of Documents, Certificates and
Opinions. The documents, certificates and opinions required to
be delivered to the Bank pursuant to Sections 5 and 6 of this
Agreement will be delivered at the offices of the Bank's Counsel,
or at such other location as may be agreed upon by the Company
and the Bank, not later than 12:00 p.m., New York time, in each
case on the date or dates indicated in the applicable Section, or
at such other time as the Bank and the Company may agree upon in
writing.
(c) Payment. Delivery of Securities sold by or through the
Bank as underwriter or agent will be made to the Bank on the date
that the Company receives payment in full of the aggregate
purchase price therefor, discounted as provided in the applicable
Supplement with respect to Securities purchased by the Bank as
underwriter or (unless otherwise set forth in the applicable
Terms Agreement) discounted as provided in paragraph 2(c) hereof
regarding payment of the commission set forth in the applicable
Supplement with respect to Securities sold through the Bank as
agent (each such date a "Settlement Date"), in the currency
specified in such Securities and in the applicable Supplement, by
wire transfer of immediately available funds to an account
designated in writing by the Company or by such other means as
may be agreed upon by the Company and the Bank and set forth in
the applicable Terms Agreement.
SECTION 12. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold the Bank and
each person, if any, who controls the Bank within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Exchange Act, harmless from and against any and all losses,
claims, damages, or liabilities to which the Bank come subject
under the Securities Act, the Exchange Act, or any other federal
or state law or regulation, at common law or otherwise, insofar
as such losses, claims, damages, or liabilities (and actions in
respect thereof) arise out of, are based upon, or are caused by
any untrue statement or allegedly untrue statement of a material
fact contained in the Registration Statement or the Prospectus or
in any amendment or supplement thereto, or arise out of, are
based upon or are caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Company agrees to reimburse each such indemnified party for any
reasonable legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the Company
will not be liable to the extent that such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out
of, are based upon, or are caused by any such untrue statement or
omission or allegedly untrue statement or omission included in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished to the
Company by the Bank in writing expressly for use in the
Registration Statement or the Prospectus or any amendment or
supplement thereto, and provided, further, that any amount
payable by the Company to the Bank pursuant to the provisions of
this paragraph shall be offset by the amount of any losses,
claims, damages, and liabilities sustained or incurred by the
Company arising out of or in connection with a violation by the
Bank of the provisions of paragraph (c) of Section 8 hereof
(except to the extent that such violation occurs as a direct
result of a violation by the Company of its obligations under
paragraphs (b) or (c) of Section 9 hereof), as such amounts are
finally determined by a court of competent jurisdiction.
(b) The Bank agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration
Statement, and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Bank, but only with
respect to such losses, claims, damages, and liabilities (and
actions in respect thereof) that arise out of, are based upon, or
are caused by any untrue statement or omission or allegedly
untrue statement or omission included in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished to the Company by the Bank
in writing expressly for use in the Registration Statement or the
Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) of this Section 12, such person (the
"indemnified party") will promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the
indemnified party, will retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and will pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified
party will have the right to retain its own counsel, but the fees
and expenses of such counsel will be borne by the indemnified
party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party will not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that all
such reasonable fees and expenses will be reimbursed as they are
incurred. Such firm will be designated in writing by the Bank
(in the case of parties indemnified pursuant to the second
preceding paragraph) or by the Company (in the case of parties
indemnified pursuant to the first preceding paragraph), as the
case may be. The indemnifying party will not be liable for any
settlement of any proceeding effected without its written
consent, but if settled with such consent, or if there shall be a
final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. The
immediately preceding sentence notwithstanding, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses
of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it will be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party
will, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding. Any provision of this paragraph (c) to the contrary
notwithstanding, no failure by an indemnified party to notify the
indemnifying party as required hereunder will relieve the
indemnifying party from any liability it may have had to an
indemnified party otherwise than under this Section 12.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 12 is unavailable to an indemnified party or
is insufficient in respect of any losses, claims, damages, or
liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying the indemnified
party thereunder, will contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages, or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the
one hand, and the Bank, on the other, from the offering of
Securities as to which the Bank was a named agent or underwriter,
or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one
hand, and the Bank, on the other, in connection with the
statements or omissions that resulted in such losses, claims,
damages, or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company,
on the one hand, and the Bank, on the other, in connection with
the offering of Securities as to which the Bank was a named agent
or underwriter will be deemed to be in the same proportion as the
total net proceeds received by the Company from the offering of
such Securities bears to the total discounts and commissions
received by the Bank from the Company in respect thereof. The
relative fault of the Company, on the one hand, and of the Bank,
on the other, will be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied or to be supplied
by the Company or by the Bank and the parties' relative intent,
knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Bank agree that it would not be
just or equitable if contribution pursuant to paragraph (d) above
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to therein. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, and liabilities referred to in paragraph (d) above will
be deemed to include, subject to the limitations set forth above,
any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Any other provisions of this Section 12
to the contrary notwithstanding, (i) the Bank will not be
required to contribute to the Company any amount in excess of the
amount by which the aggregate public offering price of all
Securities as to which the Bank was a named agent or underwriter
exceeds the amount of losses, claims, damages, and liabilities
sustained or incurred by the Bank arising out of, based upon, or
caused by any untrue statement or omission or allegedly untrue
statement or omission included in or omitted from the
Registration Statement or the Prospectus (other than in reliance
upon and in conformity with information furnished to the Company
by the Bank in writing expressly for use in the Registration
Statement or the Prospectus or any amendment or supplement
thereto), (ii) any amount payable by the Company or the Bank, as
the case may be (the "Contributing Party"), pursuant to the
provisions of this paragraph or paragraph (d) of this Section 12
shall be offset by the amount of any losses, claims, damages, and
liabilities sustained or incurred by the other party arising out
of or in connection with a violation (x) by the Bank of the
provisions of paragraph (c) of Section 8 hereof (if the Company
is the Contributing Party) or (y) by the Company of its
obligations under paragraphs (b) or (c) of Section 9 hereof (if
the Bank is the Contributing Party), in each case as such amounts
are finally determined by a court of competent jurisdiction, and
(iii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) The remedies provided for in this Section 12 are not
exclusive and will not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in
equity.
SECTION 13. Termination. This Agreement will
automatically terminate upon the expiration of the offering to
which the Prospectus relates and may be earlier terminated by the
Company or the Bank upon the giving of written notice of such
termination to the other party hereto in accordance with the
provisions of Section 15 hereof, provided, however, that if the
Company and the Bank shall have executed a Terms Agreement for
the purchase of Securities by the Bank in its capacity as
underwriter, this Agreement may not be terminated by the Bank
prior to delivery of and payment for such Securities except upon
the failure of any of the conditions precedent described in
Section 6(a) hereof, and provided, further, that if the Company
and the Bank shall have executed a Terms Agreement for the
purchase of Securities through the Bank as agent, this Agreement
may not be terminated by the Bank prior to delivery of and
payment for such Securities unless and until the Bank shall have
exercised best efforts consistent with standard industry practice
to assist the Company in obtaining performance by each purchaser
whose offer to purchase such Securities is reflected in such
Terms Agreement.
SECTION 14. Representations and Indemnities to
Survive. Therespective agreements of the Company and the Bank
set forth in Sections 2(e),4, 9(b), 9(f), 10, 12, and 18 hereof,
the representations and warranties of the Company set forth in
Section 7 hereof, the representations and warranties of the Bank
set forth in Section 8 hereof, and the statements and opinions of
theCompany and its officers set forth in the documents to be
delivered by the Company to the Bank as provided in paragraphs
5(a), 5(c), 5(d), 5(e), and 6(c) hereof, will
survive delivery of and payment for any Securities as
contemplated hereunder and will survive termination of this
Agreement in accordance with the provisions of Section 13 above.
SECTION 15. Notices. Except as otherwise specifically
provided herein, all communications hereunder will be in writing
and will be effective one business day after having been
delivered by hand, mailed via Express Mail, deposited with
Federal Express or any nationally recognized commercial courier
service for "next day" delivery, or telecopied and confirmed in
writing (by telecopied facsimile or otherwise) to the respective
addresses or telecopier numbers set forth on the signature page
hereto, or to such other address or telecopier number as either
party may hereafter designate to the other in writing. The
foregoing notwithstanding, copies of any Terms Agreement and of
any certificate or opinion to be delivered by the Company to the
Bank under paragraphs 5(a), 5(c), 5(d), 5(e), 5(f), or 9(g)
hereof will be deemed delivered if executed by all required
signatories and telecopied to the Company and/or the Bank, as the
case may be, with receipt confirmed in writing (by telecopied
facsimile or otherwise). In the event that any Terms Agreement
or any such certificate or opinion is delivered via telecopier as
contemplated in the preceding sentence, the parties will use best
efforts to ensure that "original" copies of such documents will
be distributed promptly thereafter.
SECTION 16. Successors; Non-Transferability. This
Agreement will inure to the benefit of and be binding upon the
parties hereto, their respective successors, and the officers,
directors, and controlling persons referred to in Section 12
hereof. No other person will have any right orobligation
hereunder. Neither party to this Agreement may assign its rights
hereunder without the written consent of the other party.
SECTION 17. Counterparts. This Agreement may be
signed in any number of counterparts, each of which will be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 18. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of
law.
SECTION 19. Headings. The headings of the sections of
this Agreement have been inserted for convenience of reference
only and will not affect the construction of any of the terms or
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed
this Distribution Agreement as of the ____ day of _________,
199_.
PEPSICO, INC.
By:
Name:
Title:
Notice Information:
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York 10577
Telephone No.:
Facsimile No.:
Attention:
[NAME OF BANK]
By:
Name:
Title:
Notice Information:
[Name of Bank]
[Address]
Telephone No.:
Facsimile No.:
Attention:
ANNEX A
[PEPSICO LETTERHEAD]
_______________, 199_
[Name and Address of Bank]
Dear Sirs:
I am Vice President and Assistant General Counsel of
PepsiCo, Inc., a corporation organized under the laws of the
State of North Carolina (the "Company"). I have acted as counsel
for the Company in connection with the registration of
$2,500,000,000 in aggregate offering price of the Company's Debt
Securities and Warrants (collectively, the "Securities") that
may, from time to time, be issued by the Company (i) with respect
to Debt Securities, under the Indenture, dated as of
December 14, 1994, between the Company and The Chase
Manhattan Bank (National Association), as Trustee (the
"Indenture"), (ii) with respect to Debt Warrants, under the Debt
Warrant Agreement (hereinafter defined) to be entered into by the
Company and The Chase Manhattan Bank (National Association), as
Warrant Agent, and (iii) with respect to Shelf Warrants, under
one or more warrant agreements to be entered into by the Company
and one or more warrant agents.
You have requested my opinion pursuant to Section 5(a)
of the Distribution Agreement to be executed and delivered by you
and the Company in substantially the form attached hereto as
Exhibit A (the "Distribution Agreement"). In connection with
such opinion, I have examined the Registration Statement on Form
S-3, File No. 33-________ (the "Registration Statement"), filed by
the Company with the Securities and Exchange Commission (the
"Commission") with respect to the Securities, and have examined
such records, certificates, and other documents, certified or
otherwise authenticated to my satisfaction, have made such
inquiries of officers and employees of the Company, and have made
such other examinations as, in each case, I have deemed necessary
or appropriate. I have assumed the genuineness of all signatures
on all documents examined by me and the conformity to originals
of all copies submitted to me.
Capitalized terms used herein and not otherwise defined
have the meanings ascribed to those terms by the Prospectus filed
as part of the Registration Statement (the "Prospectus").
On the basis of the foregoing and having regard for
such legal considerations as I have deemed relevant, it is my
opinion that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of North Carolina, has the corporate power and
authority to own its properties and to conduct its business as
described in the Prospectus, and is duly qualified to do business
as a foreign corporation in each jurisdiction where the conduct
of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be
so qualified would not have a material adverse effect on the
financial condition of the Company and its subsidiaries taken as
a whole.
2. The Distribution Agreement has been duly
authorized and, when executed and delivered by the Company,
assuming due authorization and execution by you, will be a valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as limited by (i)
the laws of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar laws affecting creditors'
rights generally, (ii) any other applicable federal or state law,
including any law limiting rights of indemnity or contribution,
(iii) equitable principles of general applicability, and (iv) the
discretion of any court in which a proceeding for enforceability
may be brought.
3. The Indenture has been duly authorized, executed,
and delivered by the Company and, assuming due authorization and
execution by the Trustee, is qualified under the Trust Indenture
Act of 1939, as amended, and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms, except as limited by (i) the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws affecting creditors' rights generally, (ii) any
other applicable federal or state law, (iii) rights of
acceleration in accordance with the terms of the Indenture, (iv)
equitable principles of general applicability, and (v) the
discretion of any court in which a proceeding for enforceability
may be brought.
4. The forms of Debt Securities included as Exhibits
4(b) and 4(c) to the Registration Statement were established in
accordance with the provisions of Section 202(iii) of the
Indenture.
5. The form of Debt Warrant Agreement included as
Exhibit 4(e) to the Registration Statement (the "Debt Warrant
Agreement") has been duly authorized and, assuming valid
execution and delivery by the Company and due authorization,
valid execution, and delivery by the Warrant Agent, will be a
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as limited by
(i) the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws affecting
creditors' rights generally, (ii) any other applicable federal or
state law, (iii) equitable principles of general
applicability, and (iv) the discretion of any court in which a
proceeding for enforceability may be brought.
6. The form of Debt Warrant Certificate included as
Exhibit 4(f) to the Registration Statement complies with the
provisions of Section 1.02 of the Debt Warrant Agreement.
7. The Debt Securities and Debt Warrants have been
duly authorized and, when issued by the Company and (i)
authenticated by the Trustee in accordance with the applicable
provisions of the Indenture (with respect to Debt Securities) or
(ii) countersigned by the Warrant Agent in accordance with the
applicable provisions of the Debt Warrant Agreement and (iii)
delivered to and duly paid for by the purchasers thereof in
accordance with the applicable provisions of the Prospectus, any
applicable Supplement, and the Distribution Agreement, will be
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except as
limited by (a) the laws of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, or similar
laws affecting creditors' rights generally, (b) any other
applicable federal or state law, (c) rights of acceleration in
accordance with the terms of the Indenture (with respect to Debt
Securities), (d) equitable principles of general applicability,
and (e) the discretion of any court in which a proceeding for
enforceability may be brought.
8. The execution and delivery of and performance by
the Company of its obligations under the Distribution Agreement,
the Indenture, the Debt Warrant Agreement, the Debt Securities,
and the Debt Warrants will not contravene any provision of the
Restated Charter or By-Laws of the Company, or of any agreement
or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries
taken as a whole, or, to my knowledge after due inquiry, of any
judgment, order, or decree of any governmental body, agency, or
court having jurisdiction over the Company or any of its
subsidiaries. No consent, approval, authorization, or order of
or qualification with any governmental body or agency is required
for the performance by the Company of its obligations under the
Distribution Agreement, the Indenture, the Debt Warrant
Agreement, the Debt Securities, or the Debt Warrants, except as
may be required by the Blue Sky laws or other securities laws of
the various states in which the Debt Securities and Warrants may
be offered and sold.
9. To the extent that each of the statements
described below constitutes a summary of the legal matters,
documents, or proceedings referred to therein, such statements
fairly present the information called for with respect thereto
and fairly summarize the matters referred to therein:
(i) statements in the Prospectus under the
captions "Description of Debt Securities", "Description of
Warrants--Debt Warrants", and "Plan of Distribution";
(ii) statements in the Registration Statement
under the caption "Item 15--Indemnification of Directors and
Officers";
(iii) statements in the Company's annual report
on Form 10-K for the fiscal year ended December 25, 1993 under
the caption "Item 3--Legal Proceedings"; and
(iv) statements in Part II of the Company's
quarterly reports on Form 10-Q for the twelve-week period ended
March 19, 1994, the twelve and twenty-four week periods ended
June 11, 1994, and the twelve and thirty-six week periods ended
September 3, 1994, respectively, under the caption "Item 1--Legal
Proceedings".
10. To my knowledge after due inquiry, there is no
legal or governmental proceeding pending or threatened, no
statute or regulation, and no agreement, instrument, or other
document to which, in any case, the Company or any of its
subsidiaries is a party, or by which, in any case, any of the
properties of the Company or its subsidiaries is bound, that is
required to be described in the Registration Statement, the
Prospectus, or any applicable Pricing Supplement or Prospectus
Supplement, or that is required to be filed as an exhibit to the
Registration Statement, that is not so described or filed.
11. Based solely upon my participation in the
preparation of the Registration Statement and the documents
included or incorporated by reference therein, and without
independent check or verification I am (i) of the opinion that
each document incorporated by reference in the Prospectus (except
for financial statements and schedules, as to which I express no
opinion), at the time it was filed with the Commission, complied
as to form and in all material respects with the Securities
Exchange Act of 1934, as amended, and with the rules and
regulations of the Commission thereunder, (ii) of the opinion
that the Registration Statement (except for the financial
statements and schedules included or incorporated by reference
therein and except for that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification
of the Trustee (the "Form T-1"), as to which I express no
opinion), at the time it became effective, complied as to form
and in all material respects with the Securities Act of 1933, as
amended, and with the rules and regulations of the Commission
thereunder, and (ii) of the belief that each part of the
Registration Statement (except for financial statements and
schedules included or incorporated by reference therein and
except for that part of the Registration Statement that
constitutes the Form T-1, as to which I express no belief),
did not, at the time the Registration Statement became effective,
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
The opinions and belief expressed in paragraph 7 above
(except as to due authorization of the Debt Securities and Debt
Warrants), in paragraph 9 above as to the statements in the
Prospectus under the captions "Description of Debt Securities",
"Description of Warrants--Debt Warrants", and "Plan of
Distribution", and in paragraph 11 above do not, in any case,
address any provision of the Commodity Exchange Act, as amended,
or the rules, regulations, or interpretations of the Commodity
Futures Trading Commission, as may be applicable to any Debt
Securities whose principal and/or interest payments will be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices, or other variable factors, or
as may be applicable to any Debt Warrants relating to any such
Debt Securities. None of the opinions and beliefs expressed
herein address, or should in any way be deemed to apply to, Shelf
Warrants or any warrant agreement relating to any one or more
series of Shelf Warrants.
The opinions expressed above do not address, and should
in no way be deemed to address, compliance with any laws other
than the laws of the State of New York, the corporation laws of
the State of North Carolina, and the federal laws of the United
States of America.
This opinion is being furnished to you in accordance
with the provisions of Section 5(a) of the Distribution Agreement
and is solely for the benefit of, and may be relied upon solely
by, you and your counsel. This opinion is not intended for, and
may not be relied upon by, any other person or entity without my
prior written consent.
Very truly yours,
ANNEX B
[FORM OF OPINION OF CAHILL GORDON & REINDEL]
, 199_
(212) 701-3000
To the Bank Named in the
Attached Distribution Agreement
Gentlemen:
This opinion is being furnished to you (the "Bank") pursuant
to Section 5(b) of the Distribution Agreement dated as of
___________________, 199_ (the "Distribution Agreement";
capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to such terms in the Distribution
Agreement) between the Bank and PepsiCo, Inc. (the "Company")
relating to the proposed issuance and sale from time to time by
the Company of up to $2,500,000,000 aggregate principal amount of
the Company's debt securities (the "Debt Securities") and
warrants to purchase debt securities (the "Debt Warrants" and,
together with the Debt Securities, the "Securities"), to be
issued under the Indenture dated as of December 14, 1994
(the "Indenture"), between the Company and The Chase Manhattan
Bank (National Association), as Trustee (the "Trustee") or the
Debt Warrant Agreement to be entered into by the Company and one
or more agents (each a "Warrant Agent") in substantially the form
filed as an exhibit to the Registration Statement (the "Debt
Warrant Agreement"). A registration statement on Form S-3 (File
No. 33-___________) (such registration statement, including all
documents filed as part thereof or incorporated by reference
therein, is herein called the "Registration Statement"),
including a prospectus (such prospectus, including the documents
incorporated therein by reference, is herein called the
"Prospectus"), relating to the Securities was filed by the
Company with the Securities and Exchange Commission (the
"Commission") on ___________. The Registration Statement was
declared effective by the Commission on ______________, 1995.
We advise you that in our opinion:
1. each of the Distribution Agreement and the Debt Warrant
Agreement, when duly authorized, executed and delivered by the
Company (assuming the due authorization, valid execution and
delivery thereof by the other parties thereto) will be a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms except as the
enforceability thereof may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally, by
any other federal or state laws or by general principles of
equity or the discretion of the court before which any proceeding
therefor may be brought;
2. the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized,
executed and delivered by the Company and (assuming due
authorization, valid execution and delivery thereof by the
Trustee) is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now ore hereafter in effect relating to
creditors' rights generally, by any other federal or state laws,
rights of acceleration, or by general principles of equity or the
discretion of the court before which any proceeding therefor may
be brought;
3. the Securities have been duly authorized and when
issued and delivered by the Company and authenticated by the
Trustee or the Warrant Agent, as the case may be, in accordance
with the provisions of the Indenture or the Debt Warrant
Agreement, as the case may, and duly paid for by the purchasers
thereof, will be entitled to the benefits of the Indenture or the
Debt Warrant Agreement, as the case may be, and will be valid and
binding obligations of the Company, enforceable in accordance
with their respective terms except as the enforceability thereof
may be limited by the laws of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, by any other federal or state laws, rights of
acceleration, or by general principles of equity or the
discretion of the court before which any proceeding may be
brought;
4. The statements in the Prospectus under the captions
"Description of Debt Securities", "Description of Warrants --
Debt Warrants" and "Plan of Distribution" in each case insofar as
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
5. the Registration Statement has become effective under
the Securities Act of 1933, as amended (the "Act") and no
proceedings for a stop order are pending or, to the best of our
knowledge, threatened;
6. except for financial statements, schedules and other
financial or statistical data and the Statement of Eligibility
and Qualification on Form T-1 of the Trustee, as to which we have
not been requested to, and do not express any opinion, the
Registration Statement and Prospectus comply as to form in all
material respects with the requirements of the Act and all
applicable rules and regulations thereunder.
We have participated in conferences with officers and other
representatives of the Company, counsel for the Company,
representatives of the Company's Accountant and the Bank's
representatives at which the contents of the Registration
Statement and the
Prospectus and related matters were discussed and, although
we are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of any of the statements
contained in the Registration Statement and the Prospectus
(except to the extent stated in paragraph 4 above), on the basis
of the foregoing, relying as to materiality to a large extent
upon the opinions of officers and other representatives of the
Company, no facts have come to our attention which lead us to
believe that (A) the Registration Statement at the time such
Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (B) the Prospectus, as of its date,
contained an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (it being understood that we have not been requested
to and do not express any comment on (i) financial statements,
related schedules and other financial and statistical data, or
(ii) the Statement to Eligibility and Qualification on Form T-1
of the Trustee).
The opinion in paragraph (3) above (except as to due
authorization of the Securities), the opinions in paragraph (4)
above as to the statements in the Prospectus under the captions
"Description of Debt Securities" and "Description of Debt
Warrants" and the opinion and belief in paragraph (6) and clause
(B) above do not address any application of the Commodity
Exchange Act, as amended (or amending legislation now pending
before Congress), or the rules, regulations orders or
interpretations of the Commodity Futures Trading Commission to
Securities the payments of principal or interest on which will be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. In addition,
for the purpose of the opinions in paragraphs (3) and (4) above,
we have assumed that (a) the Securities will conform both in form
and with the requirements set forth in the Indenture or the Debt
Warrant Agreement, as the case may be, and (b) none of the terms
of the Securities not contained in the forms examined by us will
violate any applicable law or be unenforceable. The opinions in
paragraph (4) above are based solely on our participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (but not including documents
incorporated therein by reference) and are without independent
check or verification except as specified. In connection with
our opinion in paragraph (3) above, we note that, as of the date
of this opinion, a judgment for money in any action based upon an
obligation denominated in a currency other than currency of the
United States, a federal or state court in New York shall render
or enter a judgment or decree in the foreign currency of the
underlying obligation. Such judgment or decree shall be
converted into currency of the United States at the rate of
exchange prevailing on the date of entry of the judgment or
decree.
Very truly yours,
ANNEX C
_________________, 199
[To the Bank Named on the Attached Schedule A]
Dear Sirs:
I am Vice President, Taxes of PepsiCo, Inc., a corporation
organized under the laws of the State of North Carolina (the
"Company"). I have acted as tax counsel for the Company in
connection with the registration of $2,500,000,000 in aggregate
offering price of the Company's Debt Securities and Warrants
(collectively, the "Securities") that may, from time to time, be
issued by the Company.
You have requested my opinion pursuant to Section 5(c) of the
Distribution Agreement to be executed and delivered by you and
the Company in substantially the form attached hereto as Exhibit
A (the "Distribution Agreement"). In connection with such
opinion, I have examined the Registration Statement on Form S-3,
File No. 33-___________ (the "Registration Statement"), filed by
the Company with the Securities and Exchange Commission (the
"Commission") with respect to the Securities, including the form
of prospectus contained therein (the "Prospectus"). All
capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms by the Prospectus.
On the basis of my review of the Registration Statement, it is my
opinion that if the offering of the Securities is conducted in
the manner described in the Prospectus, and if the terms of any
series of Securities are as contemplated by the Prospectus, then
the statements contained in the section of the Prospectus
entitled "United States Tax Considerations" accurately describe
certain United States federal income tax consequences of
ownership and disposition of the Securities, except with respect
to Debt Warrants and Shelf Warrants, which consequences will be
discussed in the applicable Prospectus Supplement to be filed
hereafter.
I do not purport to be expert in, or to express any opinion
concerning, the laws of any jurisdiction other than the federal
laws of the United States of America.
This opinion is being furnished to you in accordance with the
provisions of Section 5(c) of the Distribution Agreement and is
solely for the benefit of, and may be relied upon solely by, you
and your counsel. This opinion is not intended for, and may not
be relied upon by, any other person or entity without my prior
written consent.
Very truly yours,
ANNEX D
SECRETARY'S CERTIFICATE
I, Edward V. Lahey, Jr., the duly qualified, elected, and
acting Secretary of PepsiCo, Inc., a company organized under the
laws of the State of North Carolina (the "Company"), hereby
certify as follows:
1. Attached hereto as Exhibit A is a true and complete copy
of the Restated Articles of Incorporation of the Company,
certified as of ____________, 19__ by the Secretary of State of
the State of North Carolina. No further amendments or supplements
to the Restated Charter have been proposed to or approved by the
Board of Directors or shareholders of the Company.
2. Attached hereto as Exhibit B is a true, correct, and
complete copy of the By-Laws of the Company. Such By-Laws have
been in effect at all times since January 22, 1987.
3. Attached hereto as Exhibits C-1 and C-2 are copies of
resolutions adopted by the Board of Directors of the Company on
_____________, 199_, relating to the issuance of short-term and
long-term debt securities, which resolutions are in effect as of
the date hereof.
4. The documents described below have been duly authorized,
executed (except as otherwise indicated below), and filed by the
Company with the Securities and Exchange Commission:
(a) the Registration Statement on Form S-3, File No.
33-___________, filed by the Company on January 6, 1995 (the
"Registration Statement"), relating to $2,500,000,000 in
aggregate offering price of the Company's Debt Securities and
Warrants (as such terms are defined in the Registration
Statement), a copy of which is attached hereto as Exhibit D;
(b) the Indenture, dated as of December 14, 1994, between
the Company and The Chase Manhattan Bank (National Association),
as trustee, a copy of which is attached hereto as Exhibit 4(a) to
the Registration Statement;
(c) the form of Debt Warrant Agreement that may be entered
into by the Company and The Chase Manhattan Bank (National
Association), as warrant agent, a copy of which is attached
hereto as Exhibit 4(e) to the Registration Statement; and
(d) the form of Distribution Agreement that may be entered
into by the Company and one or more agents and underwriters in
connection with the offer and sale of the Debt Securities and
Warrants, a copy of which is attached hereto as Exhibit 1 to the
Registration Statement.
5. The Debt Securities may be issued from time to time, in
substantially the forms attached hereto as Exhibit E (with
respect to Fixed Rate Debt Securities) and Exhibit F (with
respect to Floating Rate Debt Securities), on such terms as shall
be determined by any two of the following officers of the
Company: (i) the Chairman of the Board and Chief Executive
Officer (the "Chairman"), (ii) the Executive Vice President and
Chief Financial Officer (the "Executive Vice President"), (iii)
the Senior Vice President and Treasurer (the "Treasurer"), and
(iv) such other officer of the Company as may be designated by
the Chairman, the Executive Vice President, or the Treasurer
pursuant to the Delegation of Authority attached hereto as
Exhibit G (any two of the Chairman, the Executive Vice President,
the Treasurer, and such other officer hereinafter referred to as
the "Authorized Persons"), provided, that such terms will in no
event violate or conflict with the terms and provisions set forth
in the Indenture or the Prospectus or (to the extent that the
terms of an applicable Pricing Supplement supersede the terms and
provisions of the Prospectus) the applicable Pricing Supplement.
6. The Debt Warrants may be issued from time to time, alone
or together with one or more series of Debt Securities, in
substantially the form attached hereto as Exhibit H, on such
terms as shall be determined by any two Authorized Persons,
provide- that such terms will in no event violate or conflict
with the terms and provisions of the Debt Warrant Agreement or
the Prospectus or (to the extent that the terms of an applicable
Prospectus Supplement supersede the terms and provisions of the
Prospectus) the applicable Prospectus Supplement.
7. The persons named below are duly qualified, elected, and
acting officers of the Company, have been duly elected or
appointed to the offices set forth opposite their respective
names, have held such offices at all times relevant to the
preparation of the Registration Statement, and hold such offices
as of the date hereof. The signatures set forth below opposite
the names of such persons are the genuine signatures of such
persons.
Randall C. Barnes Senior Vice
President and __________________
Treasurer
D. Wayne Calloway Chairman of the
Board and Chief
Executive Officer __________________
Douglas Cram Vice President and
Assistant General
Counsel __________________
Robert G. Dettmer Executive Vice
President and Chief
Financial Officer __________________
Lawrence F. Dickie Vice President and
Associate General __________________
Counsel
Karen L. Halby Vice President and
Tax Counsel __________________
Matthew M. McKenna Vice President,
Taxes __________________
Sandra Wijnberg Vice President,
Corporate Finance
and Assistant __________________
Treasurer
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the seal of the Company as of the day of ______________,
199 .
________________________
Edward V. Lahey, Jr.
Secretary
I, Douglas Cram, a Vice President of the Company, hereby
certify that Edward V. Lahey, Jr. is the duly qualified, elected,
and acting Senior Vice President, General Counsel, and Secretary
of the Company, has been duly elected or appointed to such
offices, has held such offices at all times relevant to the
preparation of the Registration Statement, holds such offices as
of the date hereof, and that the signature set forth below is his
genuine signature.
Edward V. Lahey, Jr. Senior Vice
President, General
Counsel and __________________
Secretary
IN WITNESS WHEREOF, I have hereunto set my hand as of the
___ day of ______________, 199 .
________________________
Douglas Cram
Vice President
ANNEX E
OFFICERS' CERTIFICATE
Robert G. Dettmer, Executive Vice President and Chief
Financial Officer, and Randall C. Barnes, Senior Vice President
and Treasurer, of PepsiCo, Inc., a corporation organized under
the laws of the State of North Carolina (the "Company"), each
hereby certifies as follows:
1. I have examined the Company's Registration Statement on
Form S-3, File No. 33-______________ (the "Registration
Statement"), as filed by the Company with the Securities and
Exchange Commission (the "Commission") on January 6, 1995,
including all of the documents filed as exhibits thereto.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms by the prospectus filed as part
of the Registration Statement (such prospectus hereinafter the
"Prospectus").
2. To the best of my knowledge, no proceedings for the
merger, consolidation, liquidation, or dissolution of the Company
or the sale of all or substantially all of its assets are pending
or contemplated.
3. To the best of my knowledge, there has not been any
material adverse change in the financial condition, earnings,
business, or operations of the Company and its subsidiaries,
taken as a whole, from that described in the Registration
Statement.
4. To my knowledge, after due inquiry, I am of the belief
that the Registration Statement (i) contains no untrue statement
of a material fact regarding the Company or any of its
consolidated subsidiaries and (ii) does not omit to state any
material fact necessary to make any such statement, in light of
the circumstances under which it was made, not misleading.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
___ of ______________, 199 .
______________________
Robert G. Dettmer
Executive Vice President
and Chief Financial Officer
______________________
Randall C. Barnes
Senior Vice President
and Treaurer
ANNEX F
[Letterhead of Bank]
Gentlemen:
In connection with the placement of any debt securities or
warrants to purchase debt securities (the "Securities") to be
issued by PepsiCo, Inc., [Name of financial intermediary(ies)],
as principal or agent, will be reviewing certain information
relating to PepsiCo, Inc. that will be included (or incorporated
by reference) in the Registration Statement on Form S-3 (File No.
33-____________) of PepsiCo, Inc. pursuant to which the
Securities have been registered (the "Registration Statement"),
which may be delivered to investors and utilized by them as a
basis for their investment decision. This review process,
applied to the information relating to PepsiCo, Inc., is
substantially consistent with the due diligence review process
that an underwriter would perform in connection with this
placement of securities. We are knowledgeable with respect to
the due diligence review process that an underwriter would
perform in connection with a placement of securities registered
pursuant to the Securities Act of 1933. We hereby request that
you deliver to us a "comfort" letter in substantially the same
form as the "draft" comfort letter delivered to PepsiCo, Inc. for
the immediately preceding fiscal quarter of PepsiCo, Inc.
concerning the financial statements of PepsiCo, Inc. and certain
statistical and other data included in the Registration
Statement.
Very truly yours,
[Name of financial
intermediary]
ANNEX G
[Letterhead of Cahill Gordon & Reindel]
Gentlemen:
In connection with the placement of any debt securities or
warrants to purchase debt securities (the "Securities") to be
issued by PepsiCo, Inc., [Name of financial intermediary(ies)],
as principal or agent, will be reviewing certain information
relating to PepsiCo, Inc. that will be included (or incorporated
by reference) in the Registration Statement on Form S-3 (File No.
33-____________) of PepsiCo, Inc. pursuant to which the
Securities have been registered (the "Registration Statement"),
which may be delivered to investors and utilized by them as a
basis for their investment decision. In our opinion, [Name of
financial intermediary(ies)] has a statutory due diligence
defense under Section 11 of the Securities Act of 1933 (the
"Act"). We are knowledgeable with respect to the due diligence
review process that an underwriter would perform in connection
with a placement of securities registered pursuant to the Act.
We hereby request that you deliver to [Name of financial
intermediary(ies)] a "comfort" letter in substantially the same
form as the "draft" comfort letter delivered to PepsiCo, Inc. for
the immediately preceding fiscal quarter of PepsiCo, Inc.
concerning the financial statements of PepsiCo, Inc. and certain
statistical and other data included in the Registration
Statement.
Very truly yours,
Cahill Gordon & Reindel
EXHIBIT I
PEPSICO, INC.
$2,500,000,000
Debt Securities and Warrants
TERMS AGREEMENT
Under
the Distribution Agreement, dated ___________, 19__,
Between PepsiCo, Inc. and [Name of Bank]
(The "Distribution Agreement")
_____________, 19__
PepsiCo, Inc.
Purchase, N.Y. 10577
Attention:
In accordance with the provisions of the above-referenced
Distribution Agreement, the undersigned (the "Bank"), in its
capacity as [Agent][Underwriter] under the Distribution
Agreement, hereby [delivers on behalf of one or more third-party
investors an offer][agrees] to purchase $___________ in aggregate
initial offering price of the Securities identified below on the
terms hereinafter set forth.
All capitalized terms used in this Terms Agreement and not
otherwise defined herein have the meanings ascribed to such terms
by the Prospectus (as such term is defined in the Distribution
Agreement), provided, however, that in the event of a conflict
between the Prospectus and the Pricing Supplement or Prospectus
Supplement applicable to the Securities to which this Terms
Agreement relates, the definition set forth in the applicable
Supplement will govern.
Designation or Title of Securities:
Issue Price [i.e., Price to Public]:
[Agent's Commission][Underwriter's Discount]:
Currency:
Interest Rate [or, if a Floating Rate Debt Security, Initial
Interest Rate]:
Date of Issue:
Interest Accrual Date [if other than Date of Issue]:
Interest Payment Dates:
Principal Payment Dates [if other than at maturity]:
Scheduled Maturity Date:
Calculation Agent:
[Total amount of OID:]
[Optional redemption dates:]
[Option to elect repayment:]
[Sinking fund:]
[Acceleration provisions:]
[Exchange Rate Agent:]
[Other terms, if any:]
Settlement Date [and scheduled time and place]:
Possible additional terms for Floating Rate Debt Securities
[Base Rate:]
[Index Maturity:]
[Spread:]
[Spread Multiplier:]
[Spread Divisor:]
[Interest Period:]
[Interest Reset Dates:]
[Maximum Interest Rate:]
[Minimum Interest Rate:]
The provisions of Sections [2 (if the Bank is acting as
agent)][3 (if the Bank is acting as underwriter)], 4, and 6
through 15 of the Distribution Agreement are incorporated by
reference herein with the same force and effect as if set forth
in full herein.
[In the event that two or more banks are signing this Terms
Agreement: The Company represents that the respective
Distribution Agreements executed and delivered by the Company and
each of the Banks prior to or together with the execution and
delivery of this Terms Agreement are identical in all material
respects.]
This Terms Agreement will be (i) governed by and construed
in accordance with the internal laws of the State of New York
without regard to principles of conflicts of law, (ii) inure to
the benefit of and be binding upon the parties hereto, their
respective successors, and the officers, directors, and
controlling persons refered to in Section 12 of the Distribution
Agreement, and no other person will have any right or obligation
hereunder. Neither party to this Terms Agreement may assign its
rights hereunder without the written consent of the other party.
This Terms Agreement may be signed in any number of counterparts,
each of which will be an original, with the same effect as if the
signatures thereto and hereto were upon one and the same
instrument.
[NAME OF BANK]
By: _________________
Name:
Title:
Accepted this __ day of
__________, 19__.
PEPSICO, INC.
By: _________________
Name:
Title:
EXHIBIT II
-1-
PEPSICO, INC.
ADMINISTRATIVE PROCEDURES
__________________________
Explained below are the administrative procedures
applicable to the offering of up to $2,500,000,000 in aggregate
principal amount of the notes, debentures, and other evidences of
unsecured indebtedness (the "securities") of PepsiCo, Inc. (the
"Company"), that have been registered by the Company with the
Securities and Exchange Commission (the "Commission") under the
Company's registration statement on Form S-3, File No.
33-____________such securities hereinafter the "Debt Securities"
and such registration statement hereinafter the "Registration
Statement"). The Debt Securities will be offered pursuant to one
or more agreements in substantially the form of Distribution
Agreement filed as an exhibit to the Registration Statement (the
"Distribution Agreement").
The Debt Securities will be issued pursuant to the
provisions of the Indenture, dated as of December 14, 1994 (as
it may be supplemented or amended from time to time, the
"Indenture"), between the Company and The Chase Manhattan Bank
(National Association) ("Chase"), as trustee. Chase will be the
Registrar, Authentication Agent, and Paying Agent for the Debt
Securities and will perform the duties specified below. The Debt
Securities may bear interest at a fixed rate (the "Fixed Rate
Debt Securities") or a floating rate (the "Floating Rate Debt
Securities"). Each Debt Security will be issued either (a) in
book-entry form, as a beneficial interest in a single global Debt
Security (a "Global Debt Security") to be delivered to Chase, as
agent for The Depository Trust Company ("DTC"), and registered in
the name of Cede & Co. or such other nominee of DTC as may be
designated by DTC, or (b) in certificated form (a "Certificated
Debt Security") to be delivered to the holder thereof or to a
person designated by such holder. Except in limited
circumstances, Book-Entry Debt Securities will not be
exchangeable for Certificated Debt Securities.
Book-Entry Debt Securities will be issued in accordance
with the administrative procedures set forth in Part I hereof, as
such procedures may from time to time be amended as a result of
changes in DTC's operating procedures. Certificated Debt
Securities will be issued in accordance with the administrative
procedures set forth in Part II hereof.
All capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms by the
Prospectus filed as part of the Registration Statement (the
"Prospectus"). In the event of a conflict between the terms
hereof and the terms of the Prospectus or any amendment or
supplement thereto, the terms of the Prospectus, as so amended or
supplemented, shall govern.
-2-
PART I
ADMINISTRATIVE PROCEDURES RE: BOOK-ENTRY DEBT SECURITIES
In connection with the qualification of the Book-Entry
Debt Securities for eligibility in the book-entry system
maintained by DTC, Chase will perform certain custodial, document
control, and administrative functions as described below and in
accordance with its obligations (a) under the Letter of
Representations from the Company and Chase to DTC, dated as of
the date hereof (the "Letter of Representations"), and (b) as a
participant in DTC's book-entry system, including DTC's Same-Day
Funds Settlement System ("SDFS").
Issuance:
On any Settlement Date (as defined in the
Distribution Agreement) for one or more Book-Entry Debt
Securities of the same series, the Company will issue one or more
Global Debt Securities, in fully registered form, without
coupons, representing up to $150,000,000 in aggregate principal
amount of all such Debt Securities. Each Global Debt Security
will be dated and issued as of the date of its authentication by
Chase. The Interest Accrual Date for any Global Debt Security
will be as follows: (i) with respect to an original Global Debt
Security (or any portion thereof), its date of issue, and (ii)
with respect to any Global Debt Security (or any portion thereof)
issued upon exchange of a Global Debt Security or in lieu of a
destroyed, lost, or stolen Global Debt Security, the most recent
preceding Interest Payment Date under the predecessor Global Debt
Security or Securities (or, if no interest has been paid or
provided for as of the date of issuance of such succeeding Global
Debt Security, the date of issuance of the predecessor Global
Debt Security), regardless of the date of authentication of such
subsequently issued Global Debt Security. No Global Debt
Security will represent any Certificated Debt Security.
Identification
Numbers:
The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service Bureau") for
the reservation of a series of CUSIP numbers (including tranche
-3-
numbers) for the Debt Securities, which series consists of
approximately 900 CUSIP numbers and relates to Global Debt
Securities representing Book-Entry Debt Securities. The Company
has obtained from the CUSIP Service Bureau a written list of such
series of reserved CUSIP numbers and has delivered to Chase and
DTC the written list of 900 CUSIP numbers of such series. Chase
will assign CUSIP numbers to Global Debt Securities as described
below under Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that Chase has
assigned to Global Debt Securities. At any time when fewer than
100 of the reserved CUSIP numbers of such series remain
unassigned to Global Debt Securities, Chase shall so advise the
Company and, if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global Debt Securities
representing Book-Entry Debt Securities. Upon obtaining such
additional CUSIP numbers, the Company shall deliver a list of
such additional CUSIP numbers to Chase and DTC.
Registration:
Each Global Debt Security will be registered in
the name of Cede & Co., as nominee for DTC, on the Security
register maintained under the Indenture. The beneficial owner of
a Book-Entry Debt Security (or one or more indirect participants
in DTC, as designated by such owner) will designate one or more
participants in DTC (with respect to such Debt Security, the
"Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to
such beneficial owner in such Debt Security in the account of
such Participants. The ownership interest of such beneficial
owner in such Debt Security will be recorded through the records
of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
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Transfers:
Transfers of a Book-Entry Debt Security will be
accompanied by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial transferors
and transferees of such Debt Security.
Exchanges:
Chase may, upon notice to the Company, deliver to
DTC and the CUSIP Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached to the Global
Debt Security resulting from such consolidation) specifying: (i)
the CUSIP numbers of two or more outstanding Global Debt
Securities that represent Book- Entry Debt Securities of the same
series and for which interest has been paid to the same date,
(ii) a date, occurring at least 30 days after such written notice
is delivered and at least 30 days before the next Interest
Payment Date for such Book-Entry Debt Securities, on which such
Global Debt Securities shall be exchanged for a single
replacement Global Debt Security, and (iii) a new CUSIP number to
be assigned by the Company to such replacement Global Debt
Security. Upon receipt of such a notice, DTC will send to its
Participants (including Chase) a written reorganization notice to
the effect that such exchange will occur on such date. Prior to
the specified exchange date, Chase will deliver to the CUSIP
Service Bureau a written notice setting forth such exchange date
and the new CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Global Debt Securities to be
exchanged will no longer be valid. On the specified exchange
date, Chase will exchange such Global Debt Securities for a
single Global Debt Security bearing the new CUSIP number and a
new Interest Accrual Date, and the CUSIP numbers of the exchanged
Global Debt Securities will, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Debt Securities to
be exchanged exceed $150,000,000 in aggregate
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principal amount, one Global Debt Security will be authenticated and
issued to represent each $150,000,000 principal amount of the exchanged
Global Debt Security and an additional Global Debt Security will be
authenticated and issued to represent any remaining principal amount of
such Global Debt Securities (see "Denominations" below).
Maturities:
Each Book-Entry Debt Security will mature on a
date not less than nine months after the Settlement Date for such
Debt Security.
Notice of
Redemption Dates:
Chase will give notice to DTC prior to each
Redemption Date (as specified in the Debt Security), if any, at
the time and in the manner set forth in the Letter of
Representations.
Denominations:
Unless otherwise set forth in the form of the
applicable Global Debt Security, Book-Entry Debt Securities will
be issued in principal amounts of $100,000,000 or any amount in
excess thereof that is an integral multiple of $1,000. Global
Debt Securities will be denominated in principal amounts not in
excess of $150,000,000. If one or more Book-Entry Debt
Securities having an aggregate principal amount in excess of
$150,000,000 would, but for the preceding sentence, be
represented by a single Global Debt Security, then one Global
Debt Security will be issued to represent each $150,000,000
principal amount of such Book- Entry Debt Security or Securities
and an additional Global Debt Security will be issued to
represent any remaining principal amount of such Book-Entry Debt
Security or Securities. In such a case, each of the Global Debt
Securities representing such Book-Entry Debt Security or
Securities shall be assigned the same CUSIP number. (References
in this paragraph to U.S. dollars shall refer instead to any
Specified Currency, as may be applicable.)
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Interest:
General. Interest on each Book-Entry Debt Security
will accrue from the Interest Accrual Date of the Global Debt
Security representing such Book- Entry Debt Security. Each
payment of interest on a Book-Entry Debt Security will include
interest from and including the Interest Accrual Date or the most
recent date for which interest has been paid, as the case may be,
to but excluding the next succeeding Interest Payment Date or the
Maturity Date, as the case may be. Interest payable on any
Interest Payment Date will be paid to the Holder of Record as of
the applicable Record Date (see below), provided that interest,
if any, payable at the maturity or upon redemption of a
Book-Entry Debt Security will be payable to the person to whom
the principal of such Debt Security is payable. Standard & Poor's
Corporation will use the information received in the pending
deposit message described under Settlement Procedure "C" below in
order to include the amount of any interest payable and certain
other information regarding the related Global Debt Security in
the appropriate weekly bond report published by Standard & Poor's
Corporation.
Record Dates. The Record Date with respect to any Interest
Payment Date shall be the date fifteen calendar days immediately
preceding such Interest Payment Date.
Fixed Rate Book-Entry Debt Securities. Interest Payment
Dates for Fixed Rate Book-Entry Debt Securities will be as set
forth in the applicable form of Fixed Rate Global Debt Security.
Floating Rate Book-Entry Debt Securities. Interest Payment
Dates for Floating Rate Book-Entry Debt Securities will be as set
forth in the applicable form of Floating Rate Global Debt
Security. Unless otherwise set forth in the applicable form of
Global Debt Security, interest on Floating Rate Book-Entry Debt
Securities will be payable monthly, quarterly, semi-annually, or
annually and (a) in the case of Floating Rate
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Book-Entry Debt Securities with a daily, weekly, or monthly Interest Reset
Date, on the third Wednesday of each month or on the third Wednesday of each
March, June, September, and December during the term of such Security,
as specified pursuant to Settlement Procedure "A" below; (b) in
the case of Floating Rate Debt Securities with a quarterly Interest
Reset Date, on the third Wednesday of each March, June, September,
and December during the term of such Security; (c) in the case of Floating
Rate Debt Securities with a semi-annual Interest Reset Date, on
the third Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and (d) in the case of Floating
Rate Debt Securities with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to Settlement
Procedure "A" below; provided, however, that if an Interest
Payment Date for any Floating Rate Book-Entry Debt Security would
otherwise be a day that is not a New York Business Day, such
Interest Payment Date will be the next succeeding New York
Business Day, except that in the case of a LIBOR- indexed Debt
Security, if such New York Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding New York Business Day.
Notice of Interest Payment and Record Dates. On the first
New York Business Day of each January, April, July, and October
during the period that the Registration Statement is in effect,
Chase will deliver to the Company and DTC a written list of
Record Dates and Interest Payment Dates that will occur with
respect to then outstanding Book-Entry Debt Securities during the
six-month period beginning on such first New York Business Day.
Calculation of
Interest:
Fixed Rate Book-Entry Debt Securities. Unless otherwise
set forth in the applicable form of Fixed Rate Global Debt
Security and in the applicable Pricing Supplement, interest on
Fixed Rate Book-
-8-
Entry Debt Securities (including interest for partial
periods) will be calculated on the basis of a year of twelve
30-day months.
Floating Rate Book-Entry Debt Securities. Unless otherwise
set forth in the applicable form of Floating Rate Global Debt
Security and in the applicable Pricing Supplement, interest on
Floating Rate Book-Entry Debt Securities will be calculated on
the basis of actual days elapsed and a year of 360 days.
Payments of
Principal and
Interest:
Payments of Interest. Promptly after each Record Date,
Chase will deliver to the Company and DTC a written notice
specifying by CUSIP number the amount of interest to be paid on
each Global Debt Security (other than an amortizing Debt
Security) on the following Interest Payment Date (other than an
Interest Payment Date coinciding with maturity) and the total of
such amounts. DTC will confirm the amount payable on each such
Global Debt Security on such Interest Payment Date by reference
to the daily bond reports published by Standard & Poor's
Corporation. In the case of amortizing Debt Securities, Chase
will provide separate written notice to DTC prior to each
Interest Payment Date at the times and in the manner set forth in
the Letter of Representations. The Company will pay to Chase, as
paying agent, the total amount of interest due on such Interest
Payment Date (and, in the case of an amortizing Debt Security,
principal and interest) (other than at maturity), and Chase will
pay such amount to DTC at the times and in the manner set forth
below under "Manner of Payment." If any Interest Payment Date
for a Fixed Rate Book-Entry Debt Securityis not a New York
Business Day, the payment due on such day shall be made on the
next succeeding New York Business Day and no interest shall
accrue on such payment for the period from and after such
Interest Payment Date.
-9-
Payments at Maturity or Upon Redemption. On or about the
first New York Business Day of each month during the period that
the Registration Statement is in effect, Chase will deliver to
the Company and DTC a written list of principal and interest to
be paid on each then outstanding Global Debt Security (other than
an amortizing Debt Security) maturing either at maturity or on a
redemption date in the following month. The Company and DTC will
confirm the amounts of such principal and interest payments with
respect to each such Global Debt Security on or about the fifth
New York Business day preceding the Maturity Date or redemption
date of such Global Debt Security. In the case of amortizing
Debt Securities, Chase will provide separate written notice to
DTC prior to each Interest Payment Date at the times and in the
manner set forth in the Letter of Representations. The Company
will pay to Chase, as the paying agent, the principal amount of
such Global Debt Security, together with interest due at such
Maturity Date or redemption date. Chase will pay such amounts to
DTC at the times and in the manner set forth below under "Manner
of Payment." If any Maturity Date or redemption date of a Global
Debt Security representing Book-Entry Debt Securities is not a
New York Business Day, the payment due on such day shall be made
on the next succeeding New York Business Day and, in the case of
Fixed Rate Debt Securities, no interest shall accrue on such
payment for the period from and after such Maturity Date or
redemption date. Promptly after payment to DTC of the principal
and interest due on the Maturity Date or redemption date of such
Global Debt Security, Chase will cancel such Global Debt Security
in accordance with the terms of the Indenture and deliver it to
the Company with a certificate of cancellation.
Manner of Payment. The total amount of any principal and
interest due on Global Debt Securities on any Interest Payment
Date or at
-10-
maturity or upon redemption shall be paid by the Company to
Chase in funds available for immediate use by Chase as of 9:30
A.M. (New York City time) on such date. The Company will make
such payment on such Global Securities by instructing Chase to
withdraw funds from an account maintained by the Company at
Chase. The Company will confirm such instructions in writing to
Chase. Prior to 10 A.M. (New York City time) on each Maturity
Date or redemption date or as soon as possible thereafter, Chase
will pay by separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC) to an account
at the Federal Reserve Bank of New York previously specified by
DTC, in funds available for immediate use by DTC, each payment of
interest or principal (together with interest thereon) due on
Global Debt Securities on any Maturity Date or redemption date.
On each Interest Payment Date, interest payments (and, in the
case of amortizing Debt Securities, interest and principal
payments) shall be made to DTC in same day funds in accordance
with existing arrangements between Chase and DTC. Thereafter on
each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds
available for immediate use to the respective Participants in
whose names the Book- Entry Debt Securities represented by such
Global Debt Securities are recorded in the book-entry system
maintained by DTC. NEITHER THE COMPANY NOR CHASE SHALL HAVE ANY
RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY DTC TO SUCH
PARTICIPANTS OF THE PRINCIPAL OF AND INTEREST ON THE BOOK-ENTRY
DEBT SECURITIES.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Debt Security will be determined and withheld by the
Participant, indirect participant in DTC, or other person
responsible for forwarding payments
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directly to the beneficial owner of such Debt Security.
Preparation of
Pricing Supplement:
If any order to purchase one or more Book-Entry Debt Securities is accepted
by or on behalf of the Company, the Company will prepare an applicable
Pricing Supplement to the Prospectus, reflecting the terms of such Debt
Security. The Company will arrange to file such Pricing
Supplement with the Commission in accordance with the provisions
of paragraph (b) or (c) of Rule 424 promulgated under the
Securities Act and will deliver the number of copies of such
Pricing Supplement to the Bank as the Bank shall have reasonably
requested by the close of business on the preceding New York
Business Day. The Bank will cause such Pricing Supplement to be
delivered to each purchaser of such Book-Entry Debt Securities in
accordance with the applicable provisions of the Securities Act.
In each instance that a Pricing Supplement is prepared, the Bank
will affix the Pricing Supplement to the Prospectus (as amended
or supplemented) prior to use of either such Pricing Supplement
or the Prospectus (as amended or supplemented). Outdated Pricing
Supplements, and the copies of the Prospectus to which they are
attached (other than those retained files), will be destroyed.
Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Debt Security and the authentication and issuance of the Global
Debt Security representing such Debt Security shall constitute "settlement"
with respect to such Debt Security. All orders accepted by the
Company will be settled on the fifth New York Business Day next
succeeding the date of acceptance pursuant to the timetable for
settlement set forth below, unless the Company and the purchaser
agree to settlement on another day (which day shall be no earlier
than the next succeeding New York Business Day).
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Settlement Procedures with regard to each Book-Entry Debt
Security sold by the Company to or through the Bank shall be as
follows:
A. The Bank will advise the Company by telephone that such
Debt Security is a Book-Entry Debt Security and of the following
settlement information:
Order number
Principal amount.
Maturity Date.
CUSIP number.
In the case of a Fixed Rate Book-Entry Debt Security, the
interest rate and whether such Debt Security is an amortizing
Debt Security, or in the case of a Floating Rate Book-Entry Debt
Security, the Initial Interest Rate (if known at such time), Base
Rate, Index Maturity, Interest Reset Periods, Interest Periods,
Spread or Spread Multiplier (if any), Maximum and Minimum
Interest Rates (if any), alternate rate event spread (if any),
and the applicability of the Business Day Convention.
Interst Payment Dates.
Record dates.
Redemption and/or repayment provisions, if any.
Trade date.
Settlement Date.
Issue Price.
Bank's commission or discount, if any, determined as
provided in the applicable Terms Agreement.
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Whether the Debt Security is an OID Debt Security and, if it
is, the total amount of OID, the yield to maturity, the initial
accrual period OID, and the applicability of Modified Payment
upon Acceleration.
Net proceeds to Company.
Bank's Name and whether the Bank is acting as agent,
underwriter, or principal for its own account.
Any other applicable terms.
B. The Company will advise Chase by elephone or electronic
transmission (confirmed in writing at any time on the same date)
of the information set forth in Settlement Procedure "A" above.
The Company and Chase will mutually then assign a CUSIP number to
the Global Debt Security representing such Book-Entry Debt
Security and will notify the Bank of such CUSIP number by
telephone as soon as practicable.
C. Chase will enter a pending deposit message through
DTC's Participant Terminal System, providing the following
settlement information to DTC, the Agent and Standard & Poor's
Corporation:
The information set forth in Settlement Procedure "A".
The Initial Interest Payment Date for such Debt Security,
the number of days by which such date succeeds the related DTC
Record Date (which in the case of Floating Rate Debt Securities
that reset daily or weekly shall be the date 5 calendar days
immediately preceding the applicable Interest Payment Date and,
in the case of all other Book-Entry Debt Securities,
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shall be the Record Date as defined in the Debt Security)
ant the amount of interest payable on such Initial Interest
Payment Date.
The CUSIP number of the Global Debt Security representing
such Book-Entry Debt Security.
Whether such Global Debt Security will represent any other
Book-Entry Debt Security (to the extent known at such time).
Whether such Debt Security is an amortizing Debt Security
(by appropriate notation in the comments field of DTC's
Participant Terminal System).
D. Chase will complete and authenticate the Global Debt
Security representing such Debt Security.
E. DTC will credit such Debt Security to Chase's
participant account at DTC.
F. Chase will enter a Same Day Funds Settlement ("SDFS")
delivery order through DTC's Participant Terminal System
instructing DTC to (i) debit such Debt Security to Chase's
participant account and credit such Debt Security to the Bank's
participant account, and (ii) debit the Bank's settlement account
and credit Chase's settlement account for an amount equal to the
price of such Debt Security less the Bank's commission or
discount, if any. The entry of such a delivery order shall
constitute a representation and warranty by Chase to DTC that (a)
the Global Debt Security representing such Book-Entry Debt
Security has been issued and authenticated and (b) Chase is
holding such Global Debt Security pursuant to the [Certificate]
Agreement between Chase and DTC.
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G. Unless the Bank purchased such debt Security as
principal for its own account, the Bank will enter an SDFS
delivery order through DTC's Participant Terminal System
instructing DTC (i) to debit such Debt Security to the Bank's
participant account and credit such Debt Security to the
participant accounts of the Participants with respect to such
Debt Security, and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of the Bank for an
amount equal to the price of such Debt Security.
H. Transfers of funds in accordance with SDFS delivery
orders described in Settlement Procedures "F" and "G" will be
settled in accordance with SDFS operating procedures in effect on
the Settlement Date.
I. Chase will credit to the account of the Company
maintained at Chase, New York, New York, in funds available for
immediate use, in the amount transferred to Chase in accordance
with Settlement Procedure "F".
J. Unless the Bank purchased such Debt Security as
underwriter or as principal for its own account, the Bank will
confirm the purchase of such Debt Security to the purchaser
either by transmitting to the Participants with respect to such
Debt Security a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
K. Monthly, Chase will send to the Company a statement
setting forth the principal amount of Debt Securities outstanding
under the Indenture as of such date and setting forth a brief
description of any sales of which the
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Company has advised Chase but which have not yet been
settled.
For sales by the Company of Book-Entry Securities to or
through the Bank for settlement on the first New York Business
Day after the sale date, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as possible but not
later than the respective times (New York City time) set forth
below:
Procedure A: 11:00 a.m. on Sale Date
Procedure B: 12:00 p.m. on Sale Date
Procedure C: 2:00 p.m. on Sale Date
Procedure D: 9:00 a.m. on Settlement Date
Procedure E: 10:00 a.m. on Settlement Date
Procedure F: 2:00 p.m. on Settlement Date
Procedure G: 2:00 p.m. on Settlement Date
Procedure H: 4:45 p.m. on Settlement Date
Procedure I: 5:00 p.m. on Settlement Date
Procedure J: 5:00 p.m. on Settlement Date
If a sale is to be settled more than one New York Business
Day after the sale date, Settlement Procedures "A", "B", and "C"
shall be completed as soon as practicable but not later than
11:00 A.M., 12:00 P.M., and 2:00 P.M., respectively, on the first
New York Business Day after the sale date. If the initial
interest rate for a Floating Rate Book-Entry Debt Security has
not been determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be completed
as soon as such rate has been determined but no later than 12:00
P.M. and 2:00 P.M., respectively, on the second New York Business
Day before the Settlement Date. Settlement Procedure "H" is
subject to extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date. If
settlement of a Book-Entry Debt Security is rescheduled or
canceled, Chase, after receiving notice from the company or the
Bank, will
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deliver to DTC, through DTC's Participant Terminal System,
a cancellation message to such effect by no later than 2:00 P.M. on
the New York Business Day immediately preceding the scheduled
Settlement Date.
Failure to Settle:
If Chase fails to enter an SDFS delivery order with respect to a Book-Entry
Debt Security pursuant to Settlement Procedure "F", Chase may deliver to
DTC, through DTC's Participant Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such Debt Security to Chase's
participant account, provided that Chase's participant account
contains a principal amount of the Global Debt Security
representing such Debt Security that is at least equal to the
principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Debt Securities
represented by a Global Debt Security, Chase will mark such
Global Debt Security "canceled," make appropriate entries in
Chase's records and send such canceled Global Debt Security to
the Company. The CUSIP number assigned to such Global Debt
Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but
not all, of the Book-Entry Debt Securities represented by a
Global Debt Security, Chase will exchange such Global Debt
Security for two Global Debt Securities, one of which shall
represent such Book-Entry Debt Security or Securities and shall
be canceled immediately after issuance, and the other of which
shall represent the remaining Book-Entry Debt Securities
previously represented by the surrendered Global Debt Security
and shall bear the CUSIP number of the surrendered Global Debt
Security. If the purchase price for any Book-Entry Debt Security
is not timely paid to the Participants with respect to such Debt
Security by the beneficial purchaser thereof (or a person,
including an indirect participant in
-18-
DTC, acting on behalf of such purchaser), such Participants and, in turn,
the Bank may enter SDFS deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to Settlement Procedures "F" and
"G", respectively. Thereafter, Chase will deliver the withdrawal message and
take the related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Debt Security, DTC may take any actions
in accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or more,
but not all, of the Book-Entry Debt Securities to have been
represented by a Global Debt Security, Chase will provide, in
accordance with Settlement Procedures "D" and "F", for the
authentication and issuance of a Global Debt Security
representing the Book-Entry Debt Securities to be represented by
such Global Debt Security and will make appropriate entries in
its records.
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PART II
ADMINISTRATIVE PROCEDURES RE:
CERTIFICATED DEBT SECURITIES
Chase will serve as registrar in connection
with the Debt Securities.
Issuance:
Each Certificated Debt Security will be dated and
issued as of the date of its authentication by Chase. The
Interest Accrual Date for any Certificated Debt Security will be
as follows: (i) with respect to an original Certificated Debt
Security (or any portion thereof), its original issuance date and
(ii) with respect to any Certificated Debt Security (or portion
thereof) issued subsequently upon transfer or exchange of a
Certificated Debt Security or in lieu of a destroyed, lost, or
stolen Certificated Debt Security, the original issuance date of
the predecessor Certificated Debt Security, regardless of the
date of authentication of such subsequently issued Certificated
Debt Security.
Registration:
Certificated Debt Securities will be issued only
in fully registered form without coupons.
Transfers and
Exchanges:
A Certificated Debt Security may be presented for
transfer or exchange at the corporate trust office of Chase or as
set forth in the form of Certificated Debt Security. Certificated
Debt Securities will be exchangeable for other Certificated Debt
Securities having identical terms but different denominations
without service charge. Certificated Debt Securities will not be
exchangeable for Book-Entry Debt Securities.
Maturities:
Each Certificated Debt Security will mature on a
date not less than nine months from the Settlement Date for such
Debt Security.
Currency:
The currency denomination with respect to any
Certificated Debt Security and the payment of
-20-
interest and the repayment of principal with respect thereto
shall be as set forth therein and in the applicable Pricing
Supplement.
Except as otherwise specified in the form of Certificated
Debt Security, the minimum denomination of any Certificated Debt
Security will be U.S. $100,000,000 or any amount in excess
thereof that is an integral multiple of U.S. $1,000. (References
in this paragraph to U.S. dollars shall refer instead to any
Specified Currency, as may be applicable.)
Interest:
General: Interest on each Certificated Debt Security
shall accrue from the Interest Accrual Date. Each payment of
interest on a Certificated Debt Security will include interest
from and including the Interest Accrual Date or the most recent
date for which interest has been paid, as the case may be, to but
excluding the next succeeding Interest Payment Date or the
Maturity Date, as the case may be. Interest payable on any
Interest Payment Date will be paid to the Holder of Record as of
the applicable Record Date, provided that interest, if any,
payable at the maturity or upon redemption of such Debt Security
will be payable to the person to whom the principal of such Debt
Security is payable.
Fixed Rate Certificate Debt Securities. Interest Payment
Dates for Fixed Rate Debt Securities will be as set forth in the
applicable form of Certificated Debt Security.
Floating Rate
Certificated Debt Securities:
Interest Payment Dates for Floating Rate Certificated Debt Securities will
be as set forth in the form of Certificated Debt Security and in the
applicable Pricing Supplement. Unless otherwise set forth in such form of
Certificated Debt Security and in the applicable Pricing
Supplement, interest on Floating Rate Certificated Debt
Securities will be payable monthly, quarterly, semi-annually, or
annually
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and (a) in the case of Floating Rate Certificated Debt
Securities with a daily, weekly or monthly Interest Reset Date,
on the third Wednesday of each month or on the third Wednesday of
each March, June, September, and December during the term of such
Debt Security, as specified pursuant to Settlement Procedure "A"
below; (b) in the case of Floating Rate Certificated Debt
Securities with a quarterly interest Payment Reset Date, on the
third Wednesday of each March, June, September, and December
during the term of such Debt Security; (c) in the case of Debt
Securities with a semi-annual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to Settlement
Procedure "A" below; and (d) in the case of Floating Rate
Certificated Debt Securities with an annual Interest Reset Date,
on the third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided, however, that if an
Interest Payment Date for Floating Rate Certificated Debt
Securities would otherwise be a day that is not a New York
Business Day, such Interest Payment Date will be the next
succeeding New York Business Day, except that in the case of a
LIBOR-indexed Debt Security if such succeeding New York Business
Day is in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding New York Business
Day.
Calculation of
Interest:
Fixed Rate Certificated Debt Securities. Unless
otherwise set forth in the applicable form of Certificated Debt
Security and in the applicable Pricing Supplement, interest on
Fixed Rate Certificated Debt Securities (including interest for
partial periods) will be calculated on the basis of a year of
twelve 30-day months.
Floating Rate Certificated Debt Securities. Interest rates
on Floating Rate Certificated Debt Securities will be determined
as set forth in the form of such Debt Securities and in the
-22-
applicable Pricing Supplement. Unless otherwise set forth
in the applicable form of Debt Security and in the applicable
Pricing Supplement, interest on Floating Rate Certificated Debt
Securities will be calculated on the basis of actual days elapsed
and a year of 360 days.
Payments of
Principal and
Interest:
Chase will pay the principal amount of each
Certificated Debt Security at maturity or upon redemption upon
presentation and surrender of such Debt Security to Chase. Such
payment, together with payment of interest due at maturity or
upon redemption of such Debt Security, will be made in funds
available for immediate use by Chase and in turn by the holder of
such Debt Security. Certificated Debt Securities presented to
Chase at maturity or upon redemption for payment will be canceled
by Chase and delivered to the Company with a certificate of
cancellation. All interest payments on a Certified U.S. dollar
Certificated Debt Security (other than interest due at maturity
or upon redemption) will be made by U.S. dollar check drawn on
Chase (or another person appointed by Chase) and mailed by Chase
to the person entitled thereto as provided in such Debt Security
and the Indenture; provided, however, that the holder of
$10,000,000 or more of Certificated Debt Securities having the
same Interest Payment Date will be entitled to receive payment by
wire transfer of immediately available funds. Following each
Record Date during the period that the Registration Statement is
in effect, Chase will furnish the Company with a list of interest
payments to be made on the following Interest Payment Date for
each then outstanding Certificated Debt Security and in total for
all such Certificated Debt Securities. Interest at maturity or
upon redemption will be payable to the person to whom the payment
of principal is payable. Chase will provide monthly to the
Company
-23-
lists of principal and interest, to the extent
ascertainable, to be paid on Certificated Debt Securities
maturing or to be redeemed in the next month. Chase will be
responsible for withholding taxes on interest paid on
Certificated Debt Securities as required by applicable law.
If any Interest Payment Date or the Maturity Date or
redemption date of a Fixed-Rate Certificated Debt Security is not
a New York Business Day, the payment due on such day shall be
made on the next succeeding New York Business Day and no interest
shall accrue on such payment for the period from and after such
Interest Payment Date, Maturity Date or redemption date, as the
case may be. If any Interest Payment Date or the Maturity Date
or redemption date for any Certificated Floating Rate Debt
Security would fall on a day that is not a New York Business Day,
such Interest Payment Date, Maturity Date or redemption date will
be the following day that is a New York Business Day, except
that, in the case of a Certificated LIBOR-indexed Debt Security,
if such succeeding New York Business Day is in the next
succeeding calendar month, such Interest Payment Date shall be
the immediately preceding day that is a New York Business Day.
Preparation of
Pricing Supplement:
If any order to purchase a Certificated Debt
Security is accepted by or on behalf of the Company, the Company
will prepare an applicable Pricing Supplement to the Prospectus
(as amended or supplemented), reflecting the terms of such Debt
Security. The Company will file such Pricing Supplement with the
Commission in accordance with the provisions of paragraph (b) or
(c) of Rule 424 promulgated under the Securities Act and will
deliver the number of copies of such Pricing Supplement to the
Bank as the Bank shall have requested by the close of business on
the preceding New
-24-
York Business Day. The Bank will cause such Pricing
Supplement to be delivered to the purchaser of the Certificated
Debt Security in accordance with the applicable provisions of the
Securities Act. In each instance that a Pricing Supplement is
prepared, the Bank will affix the Pricing Supplement to the
Prospectus (as amended or supplemented) prior to use of either
such Pricing Supplement or the Prospectus (as amended or
supplemented). Outdated Pricing Supplements, and the copies of
the Prospectus to which they are attached (other than those
retained for files), will be destroyed.
Settlement:
The receipt by the Company of immediately
available funds in exchange for an authenticated Certificated
Debt Security delivered to the Bank and the Bank's delivery of
such Debt Security against receipt of immediately available funds
shall constitute "settlement" with respect thereto. All orders
accepted by the Company will be settled on or before the fifth
New York Business Day next succeeding the date of acceptance
pursuant to the timetable for settlement set forth below, unless
the Company and the purchaser agree to settlement on another
date.
Settlement
Procedures:
Settlement Procedures with regard to each Certificated Debt Security sold
by the Company to or through the Bank shall be as follows:
A. The Bank will advise the Company by telephone that such
Debt Security is a Certificated Debt Security and of the
following settlement information:
Order number.
Principal amount.
Maturity Date.
-25-
Name in which Certificated Debt Security is to be registered
(the "Registered Owner").
Address of the Registered Owner and address for payment of
principal and interest.
Taxpayer identification number of the Registered Owner (if
available).
In the case of a Fixed Rate Certificated Debt Security, the
interest rate and whether such Debt Security is an amortizing
Debt Security, or in the case of a Floating Rate Certificated
Debt Security, the Initial Interest Rate (if known at such time),
Base Rate, Index Maturity, Interest Reset Periods, Interest
Periods, Spread or Spread Multiplier (if any), Maximum and
Minimum Interest Rates (if any), alternate rate event spread (if
any), and the applicability of the Business Day Convention.
Interest Payment Dates.
Record dates.
Redemption and/or repayment provisions, if any.
Trade date.
Settlement Date.
Issue Price.
Bank's commission or discount, if any, determined as
provided in the applicable Terms Agreement.
Whether the Certificated Debt Security is an OID Debt
Security and, if it is, the total amount of OID, the yield to
maturity, the initial accrual period OID, and the applicability
of Modified Payment upon Acceleration.
-26-
Net proceeds to Company.
Bank's Name and whether the Bank is acting as agent,
underwriter, or as principal for its own account.
Any other applicable terms.
B. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at any time on the
same date) of the information set forth in Settlement Procedure
"A" above.
C. The Company will have delivered to Chase a pre- printed
4-ply packet for such Certificated Debt Security, which packet
will contain the following documents in forms that have been
approved by the Company, the Bank, and the Trustee: (a)
Certificate with customer confirmation, (b) Stub One (for Chase),
(c) Stub Two (for the Bank), and (d) Stub Three (for the
Company).
The information set forth in Settlement Procedure "A".
D. Chase will complete and authenticate such Certificated
Debt Security and deliver it (with the confirmation) and Stubs
One and Two to the Bank, and the Bank will acknowledge receipt of
such Debt Security by stamping or otherwise marking Stub One and
returning it to Chase. Such delivery will be made only against
such acknowledgment of receipt and evidence that instructions
have been given by the Bank for payment to the account of the
Company at the Chase Manhattan Bank (National Association), New
York, New York, in funds available for immediate use, of an
amount equal to the price of such Debt Security less the
-27-
Bank's commission or discount, if any. In the event that the
instructions given by the Bank for payment to the account of the
Company are revoked, the Company will as promptly as possible
wire transfer to the account of the Bank an amount of immediately
available funds equal to the amount of such payment made.
E. Unless the Bank purchased such Debt Security as
principal for its own account, the Bank will deliver such Debt
Security (with the confirmation) to the customer against payment
in immediately available funds. The Bank will obtain the
acknowledgment of receipt of such Debt Security by retaining Stub
Two.
F. Chase will send Stub Three to the Company by
first-class mail. Periodically during the period that the
Registration Statement is in effect, Chase will also send to the
Company a statement setting forth the principal amount of the
Certificated Debt Securities then outstanding under the Indenture
and setting forth a brief description of any sales of which the
Company has advised Chase but which have not yet been settled.
Timetable: For sales by the Company of Certificated Debt
Securities to or through the Bank, Settlement Procedures "A"
through "F" set forth above shall be completed as soon as
possible but not later than the respective times (New York City
Time) set forth below:
Procedure A: 2:00 p.m. on day before
Settlement Date
Procedure B: 3:00 p.m. on day before
Settlement Date
Procedure C: 2:15 p.m. on day before
Settlement Date
-28-
Procedure D: 2:15 p.m. on day before
Settlement Date
Procedure E: 3:00 p.m. on Settlement Date
Procedure F: 5:00 p.m. on Settlement Date
Failure to Settle:
If a purchaser (other than the Bank acting as
underwriter or as principal for its own account) fails to accept
delivery of and make payment for any Certificated Debt Security,
the Bank will notify the Company and Chase by telephone and will
return such Debt Security to Chase. Upon receipt of such notice,
the Company will immediately wire transfer to the account of the
Bank an amount equal to the amount previously credited thereto in
respect of such Debt Security. Such wire transfer will be made
on the Settlement Date, if possible, and in any event not later
than the New York Business Day following such Settlement Date.
If the failure shall have occurred for any reason other than a
default by the Bank of its obligations hereunder or under the
Distribution Agreement or the applicable Terms Agreement, then
the Company will reimburse the Bank or Chase, as appropriate, on
an equitable basis, for its loss of the use of the funds during
the period when they were credited to the account of the Company.
Immediately upon receipt of the Certificated Debt Security in
respect of which such failure occurred, Chase will mark such Debt
Security "canceled", make appropriate entries in its records, and
send such Debt Security to the Company.
Restated Articles of Incorporation
of
PepsiCo, Inc.
FIRST: The name of the corporation is PepsiCo, Inc.,
hereinafter referred to as the "Corporation".
SECOND: The Corporation is to have perpetual
existence.
THIRD: The address of the Corporation's registered
office in this State shall be 213 Broad Street, New Bern,
Craven County, North Carolina, 28560, and the name of its
registered agent at such address shall be F. Blackwell
Stith.
FOURTH: The purpose or purposes for which the
Corporation is organized and the objects proposed to be
transacted, promoted or carried on by it are as follows:
(1) To engage in the manufacture, purchase, sale,
bottling and distribution, either at wholesale, retail or
otherwise, of beverages, syrups, flavors and extracts,
carbonated and aerated water, soda water, mineral waters,
soft drinks and non-alcoholic beverages of every kind, and
any and all other commodities, substances and products of
every kind, nature and description;
(2) To purchase, lease, construct or otherwise
acquire, and to hold, own, use, maintain, manage and
operate, plants, factories, warehouses, stores, shops and
other establishments, facilities and equipment, of every
kind, nature and description, used or useful in the conduct
of the business of the Corporation;
(3) To manufacture, purchase, sell and generally to
trade and deal in and with goods, wares, products and
merchandise of every kind, nature and description, and to
engage or participate in any mercantile, manufacturing or
trading business of any kind or character whatsoever;
(4) To build, erect, construct, purchase, hold or
otherwise acquire, own, provide, maintain, establish, lease
and operate, buy, sell, exchange or otherwise dispose of
mills, factories, warehouses, agencies, buildings,
structures, offices, works, plants and work shops, with
suitable plant, engines, boilers, machinery and equipment,
and all things of whatsoever kind and nature suitable,
necessary, useful or advisable in connection with any or all
of the objects herein set forth;
(5) To acquire by purchase, lease or otherwise, upon
such terms and conditions and in such manner as the board of
directors of the Corporation shall determine or agree to,
and to the extent to which the same may be allowed by law,
all or any part of the property, real and personal, tangible
or intangible, of any nature whatsoever, including the good
will, business and rights of all kinds, of any other
corporation or of any person, firm or association, which may
be useful or convenient in the business of the Corporation
and to pay for the same in cash, stocks, bonds or in other
securities of the Corporation, or partly in cash and partly
in such stocks, bonds or other securities, or in such other
manner as may be agreed, and to hold, possess and improve
such properties, and to assume in connection with the
acquisition of any such property any liabilities of any such
corporation, person, firm or association, and to conduct in
any legal manner the whole or any part of any business so
acquired, and to pledge, mortgage, sell or otherwise dispose
of the same. To carry on the business of warehousing and
all business incidental thereto, including the issue of
warehouse receipts, negotiable or otherwise, and the making
of advances or loans upon the security of goods warehoused;
to maintain and conduct stores for the general sale of
merchandise, both at wholesale and retail;
(6) To borrow money, and, from time to time, to make,
accept, endorse, execute and issue bonds, debentures,
promissory notes, bills of exchange and other obligations of
the Corporation for moneys borrowed or in payment of
property acquired or for any of the other objects or
purposes of the Corporation or its business, and to secure
the payment of any such obligations by mortgage, pledge,
deed, indenture, agreement or other instrument of trust, or
by other lien upon, assignment of, or agreement in regard to
all or any part of the property, rights, privileges or
franchises of the Corporation wheresoever situated, whether
now owned or hereafter to be acquired;
(7) To apply for, obtain, register, purchase, lease,
or otherwise acquire, and to hold, use, own, operate and
introduce, and to sell, assign or otherwise dispose of, any
trade marks, trade names, patents, inventions, improvements
and processes used in connection with or acquired under
letters patent of the United States or elsewhere, and to
use, exercise, develop, grant licenses in respect of, or
otherwise turn to account any such trade marks, patents,
licenses, processes and the like;
(8) To guarantee and to acquire, by purchase,
subscription or otherwise, and to hold and own and to sell,
assign, transfer, pledge or otherwise dispose of the stock,
or certificates of interest in shares of stock, bonds,
debentures and other securities and obligations of any other
corporation, domestic or foreign, and to issue in exchange
therefor the stock, bonds, or other obligations of the
Corporation, and while the owner of any such stock,
certificates of interest in shares of stock, bonds,
debentures, obligations and other evidences of indebtedness,
to possess and exercise in respect thereof all of the
rights, powers and privileges of ownership, including the
right to vote thereon, and also in the manner, and to the
extent now or hereafter authorized or permitted by the laws
of the State of North Carolina, to purchase, acquire, own
and hold and to dispose of the stock, bonds or other
evidence of indebtedness of the Corporation;
(9) To guarantee the payment of dividends upon any
shares of the capital stock of, or the performance of any
contract by any other corporation or association in which
the Corporation shall have an interest, and to endorse or
otherwise guarantee the payment of the principal and
interest, or either, of any bonds, debentures, notes,
securities, or other evidences of indebtedness created or
issued by any such other corporation or association or by
individuals or partnerships, to aid in any manner any other
corporation or association, any bonds or other securities or
evidences of indebtedness of which, or shares of stock in
which (or voting trust certificates therefor) are held by or
for the Corporation, or in which, or in the welfare of
which, the Corporation shall have any interest, and to do
any acts or things designed to protect, preserve, improve or
enhance the value of any such bonds or other securities or
property of the Corporation, but nothing contained herein
shall be construed to authorize the Corporation to engage in
the business of a guaranty or trust company;
(10) In general, to do any or all of the things
hereinbefore set forth, and such other things as are
incidental or conducive to the attainment of the objects and
purposes of the Corporation, as principal, factor, agent,
contractor or otherwise, either alone or in conjunction with
any person, firm, association or corporation, and in
carrying on its business, and for the purpose of attaining
or furthering any of its objects, to make and perform
contracts, and to do all such acts and things, and to
exercise any and all such powers, to the same extent as a
natural person might or could lawfully do to the extent
allowed by law;
(11) To have one or more offices and to carry on its
operations and transact its business within and without the
State of North Carolina and in other states of the United
States of America, and in the districts, territories or
dependencies of the United States and in any and all foreign
countries and, without restriction or limit as to the
amount, to purchase or otherwise acquire, hold, own,
mortgage, sell, convey or otherwise dispose of real and
personal property of every class and description in any of
the states, districts, territories or dependencies of the
United States, and in any and all foreign countries, subject
always to the laws of such state, district, territory,
dependency or foreign country.
(12) To do any or all of the things herein set forth,
and such other things as are incidental or conducive to the
attainment of the above objects, to the same extent a
natural person might or could do, and in any part of the
world, in so far as the same are not inconsistent with the
laws of the State of North Carolina.
The purposes and powers specified in any clause
contained in this Fourth Article shall, except where
otherwise expressed in said articles, be in nowise limited
or restricted by reference to or inferences from the terms
of any other clause of this or any other article of these
Articles of Incorporation, but the purposes and powers
specified in each of the clauses of this article shall be
regarded as independent purposes and powers.
In general, the Corporation shall have the authority to
carry on any other business in connection with the
foregoing, whether manufacturing or otherwise, and to have
and to exercise all the powers conferred by the laws of the
State of North Carolina upon corporations formed under the
North Carolina Business Corporation Act.
FIFTH: The total number of shares of Capital Stock
which the Corporation shall have authority to issue is
1,800,000,000, of the par value of one and two-thirds cents
(1-2/3 cents) per share.
SIXTH: The private property of the stockholders
shall not be subject to the payment of corporate debts to
any extent whatever.
SEVENTH: No holder of the Corporation's Capital
Stock shall be entitled, as of right, to subscribe for,
purchase or receive any part of any new or additional issue
of its capital stock, of any class, whether now or hereafter
authorized (including treasury stock), or of any bonds,
debentures or other securities convertible into stock, or
warrants or options to purchase stock of any class, but all
such additional shares of stock or bonds, debentures or
other securities convertible into stock, including all stock
now or hereafter authorized, may be issued and disposed of
by the board of directors from time to time to such person
or persons and upon such terms and for such consideration
(so far as may be permitted by law) as the board of
directors in their absolute discretion may from time to time
fix and determine.
EIGHTH: The following provisions are intended for
the regulation of the business and for the conduct of the
internal affairs of the Corporation, and it is expressly
provided that the same are intended to be in furtherance and
not in limitation of the powers conferred by statute:
(1) The number of directors of the Corporation shall
be fixed and may be altered from time to time, as may be
provided in the by-laws, but at no time is the number of
directors to be less than three. The directors need not be
stockholders. In case of any increase in the number of
directors, the additional directors may be elected by the
directors or by the stockholders entitled to vote therefor
at an annual or special meeting, as shall be provided in the
by-laws;
(2) The board of directors may, by resolution passed
by a majority of the whole board, designate three or more of
their number to constitute an executive committee, to the
extent provided in said resolution or in the by-laws, shall
have and exercise the powers of the board of directors in
the management of the business and affairs of the
Corporation, and may have power to authorize the seal of the
Corporation to be affixed to all papers which may require
it. From time to time the by-laws, or the board of
directors by resolution, may provide methods for the
permanent or temporary filling of any vacancy in the
executive committee or in any other committee appointed by
the board;
(3) The board of directors shall have power to sell,
assign, transfer, convey, exchange, or otherwise dispose of
the property, effects, assets, franchises and good will of
the Corporation as an entirety, for cash, for the securities
of any other corporation, or for any other consideration,
pursuant to the vote at the special meeting called for the
purpose, of the holders of at least two-thirds of the issued
and outstanding Capital Stock of the Corporation.
(4) The board of directors may make by-laws from time
to time, and may alter, amend or repeal any by-laws, but any
by-laws made by the board of directors may be altered,
amended or repealed by the stockholders entitled to vote;
(5) In case of any vacancy in the board of directors,
through death, resignation, disqualification or other cause,
the remaining directors by an affirmative vote of a majority
thereof, may elect a successor to hold office for the
unexpired portion of the term of the directors whose place
shall be vacant, and until the election of a successor;
(6) The directors shall have power, from time to time,
to determine whether and to what extent, and at what times
and places and under what conditions and regulations, the
accounts and books of the Corporation, or any of them, shall
be open to the inspection of stockholders; and no
stockholder shall have any right to inspect any books or
account or document of the Corporation except as conferred
by the statutes of the State of North Carolina, or
authorized by the directors;
(7) The board of directors shall have power to appoint
such standing committees as they may determine, with such
powers as shall be conferred by them or as may be authorized
by the by-laws;
(8) The board of directors shall elect a president and
vice president and appoint a secretary and treasurer. Any
two of such offices may be held by the same person, except
that the president shall hold no other of such offices. The
board of directors may also appoint one or more additional
vice presidents, one or more assistant secretaries, and one
or more assistant treasurers, and to the extent provided by
the by-laws or by the board of directors by resolution from
time to time, the persons so appointed shall have and
exercise the powers of the president, secretary and
treasurer, respectively. The board of directors may appoint
other and additional officers, with such powers as the
directors may deem advisable;
(9) Both stockholders and directors shall have power,
if the by-laws so provide, to hold their meetings and have
one or more offices without the State of North Carolina, and
to keep the books of the Corporation (subject to the
provisions of the statutes) outside of the State of north
Carolina, at such places as may be from time to time
designated;
(10) The Corporation may in its by-laws confer powers
additional to the foregoing upon the directors, in addition
to the powers and authorities expressly conferred upon them
by the statutes;
(11) No contract or other transaction between the
Corporation and any other corporation shall be affected or
invalidated by the fact that any one or more of the
directors of the Corporation is or are interested in, or is
a director or officer, or are directors or officers of, such
other corporation, and any director or directors,
individually or jointly, may be a party or parties to, or
may be interested in, any contract or transaction of the
Corporation or in which the Corporation is interested; and
no contract, act or transaction of the Corporation with any
person or persons, firm or corporation, shall be affected or
invalidated by the fact that any director or directors of
the Corporation is a party, or are parties, to or interested
in such contract, act or transaction, or in any way
connected with such person or person, firm or corporation,
and each and every such person or persons, firm or
corporation, and each and every person who may become a
director of the Corporation is hereby relieved from any
liability that might otherwise exist from contracting with
the Corporation for the benefit of himself or any firm,
association or corporation in which he may be in any wise
interested;
(12) The Corporation reserves the right to amend,
alter, change, or repeal any provision herein contained, in
the manner now or hereafter prescribed by law, and all the
rights conferred on stockholders hereunder are granted and
are to be held and enjoyed subject to such rights of
amendment, alteration, change or repeal.
NINTH: The number of directors constituting the
initial Board of Directors shall be twelve; and the names
and addresses of the persons who are to serve as directors
until the first meeting of stockholders, or until their
successors are elected and qualified, are:
Name Address
D. Wayne Calloway 700 Anderson Hill Road
Purchase, New York 10577
Frank T. Cary 700 Anderson Hill Road
Purchase, New York 10577
William T. Coleman, Jr. 700 Anderson Hill Road
Purchase, New York 10577
Clifton C. Garvin, Jr. 700 Anderson Hill Road
Purchase, New York 10577
Michael H. Jordan 700 Anderson Hill Road
Purchase, New York 10577
Donald M. Kendall 700 Anderson Hill Road
Purchase, New York 10577
John J. Murphy 700 Anderson Hill Road
Purchase, New York 10577
Andrall E. Pearson 700 Anderson Hill Road
Purchase, New York 10577
Sharon Percy Rockefeller 700 Anderson Hill Road
Purchase, New York 10577
Robert H. Stewart, III 700 Anderson Hill Road
Purchase, New York 10577
Robert S. Strauss 700 Anderson Hill Road
Purchase, New York 10577
Arnold R. Weber 700 Anderson Hill Road
Purchase, New York 10577
TENTH: Stockholders do not have the right to
cumulate their vote for the election of directors.
ELEVENTH: The name and address of the incorporator
are:
Arch E. Lynch, Jr. 3600 Glenwood Avenue
Raleigh, North Carolina 27605
Exhibit 4(a)
PEPSICO, INC.
and
THE CHASE MANHATTAN BANK
(National Association), Trustee
Indenture
Dated as of December 14, 1994
Providing for Issuance of Debt Securities
CROSS-REFERENCE TABLE
(Certain Indenture Provisions and
Provisions of Trust Indenture Act of 1939)
<TABLE>
<CAPTION>
TIA Section Indenture Section
- --------------- ------------------
<S> <C>
303 (1) 101(2)
(4) 608(d)(1)
(5) 608(d)(2)
(6) 608(d)(6)
(10) 101
(12) 608(d)(5)
613(c)(5)
(13) 101
(16) 608(d)(4)
608(d)(1)
310 (a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
(c) Not Applicable
311 (a) 613(a)
(b) 613(b)
(b)(2) 613(b)
703(a)(2)
703(b)
312 (a) 701
702(a)
(b) 702(b)
(c) 702(c)
313 (a) 703(a)
(b) 703(b)
(c) 703(a)
702(b)
(d) 702(c)
314 (a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
315 (a) 601(a)
602(c)
(b) 602
703(a)(6)
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)
(d)(2) 601(c)(2)
(d)(3) 601(c)(3)
(e) 514
316 (a) 512,513
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
317 (a)(1) 503
(a)(2) 504
(b) 1003
318 (a) 107
</TABLE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Recitals of the 1
Company
Agreements of the 1
Parties
</TABLE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 101 Definitions...................................1
Act....................................... 1
Affiliate................................. 2
Authenticating Agent...................... 2
Authentication Order...................... 2
Board of Directors........................ 2
Board Resolution.......................... 2
Chairman.................................. 2
Commission................................ 2
Company................................... 2
Company Request, Company Order, and
Company Consent......................... 2
Consolidated Net Tangible Assets.......... 2
Corporate Trust Office.................... 2
Debt...................................... 3
Defaulted Interest........................ 3
Depositary................................ 3
Discharged................................ 3
Equivalent Government Securities.......... 3
Event of Default.......................... 3
Executive Vice President.................. 3
Holder, Securityholder, and Holder of
Securities.............................. 3
Indenture, this Indenture................. 3
Interest Payment Date..................... 3
Maturity.................................. 3
Mortgage.................................. 3
New York Business Day..................... 3
Officers' Certificate..................... 3
Opinion of Counsel........................ 4
Original Issue Discount Security.......... 4
Outstanding............................... 4
Paying Agent.............................. 4
Person.................................... 5
Place of Payment.......................... 5
Predecessor Securities.................... 5
Principal Property........................ 5
(i)
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
Record Date............................... 5
Redemption Date........................... 5
Redemption Price.......................... 5
Repayment Date............................ 5
Repayment Price........................... 5
Responsible Officer....................... 5
Restricted Subsidiary..................... 5
Scheduled Maturity Date................... 6
Security or Securities.................... 6
Security Register......................... 6
Security Registrar........................ 6
Special Record Date....................... 6
Specified Currency........................ 6
Subsidiary................................ 6
Trust Indenture Act or TIA................ 6
Trustee................................... 6
Unrestricted Subsidiary................... 6
U.S. Government Obligations............... 6
Vice President............................ 7
Voting Stock.............................. 7
Section 102 Officers' Certificate and Opinions....... 7
Section 103 Form of Documents
Delivered to Trustee.................... 7
Section 104 Acts of Securityholders................... 7
Section 105 Notices, etc. to Trustee and Company...... 8
Section 106 Notices to Securityholders; Waiver........ 9
Section 107 Conflict with Trust Indenture Act......... 9
Section 108 Effect of Headings and Table of Contents.. 9
Section 109 Successors and Assigns.................... 9
Section 110 Separability Clause....................... 9
Section 111 Benefits of Indenture..................... 9
Section 112 Governing Law............................. 9
Section 113 Counterparts.............................. 10
Section 114 Judgment Currency......................... 10
ARTICLE TWO
SECURITY FORMS
Section 201 Forms Generally.......................... 10
Section 202 Forms of Securities...................... 10
Section 203 Securities in Global Form................ 11
Section 204 Form of Trustee's Certificate of
Authentication......................... 11
(ii)
</TABLE>
<TABLE>
<CAPTION>
ARTICLE THREE
THE SECURITIES
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Section 301 General Title; General Limitations;
Issuable in Series; Terms of
Particular Series........................... 11
Section 302 Denominations and Currency.................... 14
Section 303 Execution, Authentication and Delivery,
and Dating.................................. 14
Section 304 Temporary Securities.......................... 16
Section 305 Registration, Transfer, and Exchange.......... 16
Section 306 Mutilated, Destroyed, Lost, and Stolen
Securities.................................. 18
Section 307 Payment of Interest; Interest Rights
Preserved.................................... 19
Section 308 Persons Deemed Owners......................... 20
Section 309 Cancellation.................................. 20
Section 310 Computation of Interest....................... 20
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of
Indenture................................... 21
Section 402 Defeasance and Discharge of Covenants
Upon Deposit of Moneys, U.S. Government
Obligations, or Equivalent Government
Securities.................................. 22
Section 403 Application of Trust Money.................... 23
Section 404 Paying Agent to Repay Money Held.............. 23
Section 405 Return of Unclaimed Amounts................... 23
ARTICLE FIVE
REMEDIES
Section 501 Events of Default............................. 23
Section 502 Acceleration of Maturity; Rescission,
and Annulment............................... 24
Section 503 Collection of Indebtedness and Suits for
Enforcement................................. 25
Section 504 Trustee May File Proofs of Claim.............. 26
Section 505 Trustee May Enforce Claims Without Possession
of Securities............................... 27
Section 506 Application of Money Collected................ 27
Section 507 Limitation on Suits........................... 27
Section 508 Unconditional Right of Securityholders
to Receive Payment of Principal, Premium,
and Interest................................ 28
(iii)
</TABLE>
<TABLE>
<CAPTION>
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Section 509 Restoration Rights and Remedies................. 28
Section 510 Rights and Remedies Cumulative.................. 28
Section 511 Delay or Omission Not Waiver.................... 28
Section 512 Control by Securityholders...................... 28
Section 513 Waiver of Past Defaults......................... 29
Section 514 Undertaking for Costs........................... 29
Section 515 Waiver of Stay or Extension Laws................ 29
ARTICLE SIX
THE TRUSTEE
Section 601 Certain Duties and Responsibilities
of Trustee.................................... 29
Section 602 Notice of Defaults.............................. 30
Section 603 Certain Rights of Trustee....................... 31
Section 604 Not Responsible for Recitals or Issuance
of Securities................................. 31
Section 605 May Hold Securities............................. 31
Section 606 Money Held in Trust............................. 32
Section 607 Compensation and Reimbursement.................. 32
Section 608 Disqualification; Conflicting Interests......... 32
Section 609 Corporate Trustee Required; Eligibility......... 33
Section 610 Resignation and Removal; Appointment of
Successor..................................... 33
Section 611 Acceptance of Appointment by Successor.......... 34
Section 612 Merger, Conversion, Consolidation, or
Succession to Business........................ 35
Section 613 Preferential Collection of Claims Against
Company....................................... 35
Section 614 Appointment of Authenticating Agent............. 35
ARTICLE SEVEN
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee with Names
and Addresses of Securityholders............. 37
Section 702 Preservation of Information; Communications
to Securityholders........................... 37
Section 703 Reports by Trustee............................. 38
Section 704 Reports by Company............................. 38
Section 705 Notice of Maturity............................. 39
(iv)
</TABLE>
<TABLE>
CAPTION
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
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Section 801 Company May Consolidate, etc.,
Only on Certain Terms............................. 40
Section 802 Successor Corporation Substituted................. 40
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of
Securityholders................................. 40
Section 902 Supplemental Indentures with Consent of
Securityholders................................. 41
Section 903 Execution of Supplemental Indentures.............. 42
Section 904 Effect of Supplemental Indentures................. 42
Section 905 Conformity with Trust Indenture Act............... 42
Section 906 Reference in Securities to Supplemental
Indentures...................................... 43
ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium,
and Interest...................................... 43
Section 1002 Maintenance of Office or Agency................... 43
Section 1003 Money or Security Payments to Be Held in Trust.... 43
Section 1004 Certificate to Trustee............................ 44
Section 1005 Corporate Existence............................... 44
Section 1006 Limitation on Secured Debt........................ 44
Section 1007 Waiver of Certain Covenants....................... 45
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article.......................... 45
Section 1102 Election To Redeem; Notice to Trustee............. 45
Section 1103 Selection by Trustee of Securities To Be
Redeemed........................................ 45
Section 1104 Notice of Redemption.............................. 46
Section 1105 Deposit of Redemption Price....................... 46
Section 1106 Securities Payable on Redemption Date............. 46
Section 1107 Securities Redeemed in Part....................... 47
Section 1108 Provisions with Respect to Any Sinking Funds...... 47
(v)
</TABLE>
<TABLE>
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ARTICLE TWELVE
REPAYMENT AT OPTION OF HOLDERS
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Section 1201 Applicability of Articles................. 48
Section 1202 Repayment of Securities................... 48
Section 1203 Exercise of Option........................ 48
Section 1204 When Securities Presented for Repayment
Become Due and Payable.................. 49
Section 1205 Securities Repaid in Part................. 49
Signatures and Seals 49
Acknowledgments 49
(vi)
</TABLE>
THIS INDENTURE, between PepsiCo, Inc., a North Carolina
corporation (hereinafter called the "Company") having its
principal office at 700 Anderson Hill Road, Purchase, N.Y. 10577,
and The Chase Manhattan Bank (National Association), a national
banking association incorporated and existing under the laws of
the United States of America, trustee (hereinafter called the
"Trustee"), is made and entered into as of this 14th day of
December, 1994.
Recitals of the Company
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of its
debentures, notes, bonds, and other evidences of indebtedness, to
be issued in one or more fully registered series.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
Agreements of the Parties
To set forth or to provide for the establishment of the
terms and conditions upon which the Securities (as hereinafter
defined) are and are to be authenticated, issued, and delivered,
and in consideration of the premises thereof, and the purchase of
Securities by the Holders (as hereinafter defined) thereof, it is
mutually covenanted and agreed as follows, for the equal and
proportionate benefit of all Holders from time to time of the
Securities or of any series thereof, as the case may be:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this
Indenture and of any indenture supplemental hereto, except as
otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act (as hereinafter defined), either directly or
by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such
computation; and
(4) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
instrument as originally executed. The words "herein", "hereof",
and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section,
or other subdivision.
"Act", when used with respect to any Securityholder (as
hereinafter defined), has the meaning specified in Section 104.
-1-
"Affiliate" of any specified Person (as hereinafter
defined) means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract, or otherwise; and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by
the Trustee to authenticate Securities of one or more series
under Section 614.
"Authentication Order" has the meaning specified in
Section 303.
"Board of Directors" means (i) the board of directors
of the Company, (ii) any duly authorized committee of that board,
or (iii) any officer, director, or authorized representative of
the Company, in each case duly authorized by such Board to act
hereunder.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Chairman" means the Company's Chairman of the Board
and Chief Executive Officer.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means PepsiCo, Inc., unless and until a
successor corporation shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company"
shall mean such successor corporation.
"Company Request", "Company Order", and "Company
Consent" mean, respectively, a written request, order, or consent
signed in the name of the Company by its Chairman, Executive Vice
President (as hereinafter defined), or any Vice President (as
hereinafter defined), or by any other officer or officers of the
Company pursuant to an applicable Board Resolution, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means the total
amount of assets (less applicable depreciation, amortization, and
other valuation reserves), except to the extent resulting from
write-ups of capital assets (except write-ups in connection with
accounting for acquisitions in accordance with generally accepted
accounting principles in the United States), of the Company and
its Restricted Subsidiaries, after deducting therefrom (i) all
current liabilities of the Company and its Restricted
Subsidiaries (excluding any such liabilities that are
intercompany items) and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and
other like intangibles, all as set forth on the latest
consolidated balance sheet of the Company and its Restricted
Subsidiaries prepared in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the principal office of
the Trustee in the City of New York at which at any particular
time its corporate trust business shall be principally
administered, which office at the date hereof is located at 4
Chase MetroTech Center, Brooklyn, N.Y. 11245, except that with
respect to the presentation of Securities for payment or
registration of transfer or exchange and with respect to the
location of the Security Register, such term shall mean the
office or the agency of the Trustee in said city at which at any
particular time its corporate agency business shall be conducted,
which office at the date hereof is located at 4 Chase MetroTech
Center, Brooklyn, N.Y. 11245.
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"Debt" has the meaning specified in Section 1006.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means with respect to the Securities of
any series issuable or issued in whole or in part in global form,
the Person designated as Depositary by the Company pursuant to
Section 301, unless and until a successor Depositary shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each
Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with
respect to the Securities of any such series shall mean the
"Depositary" with respect to the Securities of that series.
"Discharged" has the meaning specified in Section 402.
"Equivalent Government Securities" means, in relation
to Securities denominated in a currency other than U.S. dollars
and other than a Specified Currency, securities of the government
that issued the currency in which such Securities are denominated
or securities of government agencies backed by the full faith and
credit of such government.
"Event of Default" has the meaning specified in Article
Five.
"Executive Vice President" means the Company's
Executive Vice President and Chief Financial Officer.
"Holder", "Securityholder" and "Holder of Securities"
means a Person in whose name a Security is registered in the
Security Register (as hereinafter defined).
"Indenture" or "this Indenture" means this instrument
as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of any particular series of
Securities established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any
series of Securities, means any date on which an installment of
interest on those Securities is scheduled to be paid.
"Maturity", when used with respect to any Security,
means the date on which the entire principal amount outstanding
under such Security becomes due and payable, as therein or herein
provided, whether on a Principal Payment Date, on the Scheduled
Maturity Date (as hereinafter defined), by declaration of
acceleration, call for redemption, or otherwise.
"Mortgage" is defined in Section 1006.
"New York Business Day" means (except, with respect to
any particular series of Securities, as may be otherwise provided
in the form of such Securities) any day other than a Saturday or
Sunday that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation, or
executive order to be closed.
"Officers' Certificate" means a certificate signed by
any two of the Chairman, the Executive Vice President, the
Treasurer, and the Assistant Treasurer of the Company, or by any
other officer or officers of the Company pursuant to an
applicable Board Resolution, and delivered to the Trustee.
-3-
"Opinion of Counsel" means a written opinion of counsel
to the Company, which counsel may be an employee of the Company.
"Original Issue Discount Security" means any Security
which is initially sold at a discount from the principal amount
thereof and the terms of which provide that upon redemption or
acceleration of the Maturity thereof, an amount less than the
principal amount thereof would become due and payable.
"Outstanding", when used with respect to any particular
Securities or to the Securities of any particular series means,
as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered by the Company to the Trustee for cancellation;
(ii) such Securities, or portions thereof, for whose
payment or redemption money in the necessary amount has been
theretofore deposited in trust with the Trustee or with any
Paying Agent (as hereinafter defined) other than the Company, or,
if the Company shall act as its own Paying Agent, has been set
aside and segregated in trust by the Company; provided, in any
case, that if such Securities are to be redeemed prior to their
Scheduled Maturity Date, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant
to this Indenture, or which shall have been paid, in each case,
pursuant to the terms of Section 306 (except with respect to any
such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands
such Security is a legal, valid, and binding obligation of the
Company).
In determining whether the Holders of the requisite principal
amount of such Securities Outstanding have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of any Original Issue Discount
Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of
acceleration of the Maturity thereof. In determining whether the
Holders of the requisite principal amount of such Securities
Outstanding have given a direction concerning the time, method,
and place of conducting any proceeding for any remedy available
to the Trustee, or concerning the exercise of any trust or power
conferred upon the Trustee under this Indenture, or concerning a
consent on behalf of the Holders of any series of Securities to
the waiver of any past default and its consequences, Securities
owned by the Company, any other obligor upon the Securities, or
any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding. In determining
whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, or
waiver, only Securities which a Responsible Officer assigned to
the corporate trust department of the Trustee knows to be owned
by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right to act as
owner with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means, with respect to any Securities,
any Person appointed by the Company to distribute amounts payable
by the Company on such Securities. If at any time there shall be
more than one such Person, "Paying Agent" as used with respect
to the Securities of any particular series shall mean the Paying
Agent with respect to Securities of that series. As of the date
of this Indenture, the
-4-
Company has appointed The Chase Manhattan Bank (National Association)
as Paying Agent with respect to all Securities issuable hereunder.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or government, or any agency
or political subdivision thereof.
"Place of Payment" means with respect to any series of
Securities issued hereunder the city or political subdivision so
designated with respect to the series of Securities in question
in accordance with the provisions of Section 301.
"Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of the
same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and
delivered under Section 306 in lieu of a lost, destroyed,
mutilated, or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed, mutilated, or stolen Security.
"Principal Property" means any single manufacturing or
processing plant, office building, or warehouse owned or leased
by the Company or a Restricted Subsidiary other than a plant,
warehouse, office building, or portion thereof which, in the
opinion of the Company's Board of Directors, is not of material
importance to the business conducted by the Company and its
Restricted Subsidiaries as an entirety.
"Record Date" means any date as of which the Holder of
a Security will be determined for any purpose described herein,
such determination to be made as of the close of business on such
date by reference to the Security Register.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price specified in the
Security at which it is to be redeemed pursuant to this
Indenture.
"Repayment Date", when used with respect to any
Security to be repaid, means the date fixed for such repayment
pursuant to such Security.
"Repayment Price", when used with respect to any
Security to be repaid, means the price at which it is to be
repaid pursuant to such Security.
"Responsible Officer", when used with respect to the
Trustee, means the chairman of the board of directors, the
chairman of the executive committee of the board of directors,
the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any senior trust officer or trust officer,
the controller and any assistant controller or any other officer
of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means at any time any
Subsidiary of the Company except a Subsidiary which is at the
time an Unrestricted Subsidiary.
-5-
"Scheduled Maturity Date", when used with respect to
any Security, means the date specified in such Security as the
date on which all outstanding principal and interest will be due
and payable.
"Security" or "Securities" means any note or notes,
bond or bonds, debenture or debentures, or any other evidences of
indebtedness, as the case may be, of any series authenticated and
delivered from time to time under this Indenture.
"Security Register" shall have the meaning specified in
Section 305.
"Security Registrar" means the Person who maintains the
Security Register, which Person shall be the Trustee unless and
until a successor Security Registrar is appointed by the Company.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Specified Currency" has the meaning specified in
Section 301(16).
"Subsidiary" of any specified corporation means any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by the
specified corporation or by one or more of its Subsidiaries, or
both.
"Trust Indenture Act" or "TIA" means the Trust
Indenture Act of 1939, as in force as of the date hereof, except
as provided in Section 905.
"Trustee" means The Chase Manhattan Bank (National
Association), unless and until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean and include each
Person who is then a Trustee hereunder. If at any time there is
more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Unrestricted Subsidiary" means A&M Food Services,
Inc., Kentucky Fried Chicken of California, Inc., Pizza Hut,
Inc., Pizza Management, Inc., QSR, Inc., Taco Bell Corp., any
Subsidiaries thereof and any other Subsidiary of the Company (not
at the time designated a Restricted Subsidiary) (i) the major
part of whose business consists of finance, banking, credit,
leasing, insurance, financial services, or other similar
operations, or any combination thereof, (ii) substantially all
the assets of which consist of the capital stock of one or more
such Subsidiaries, or (iii) designated as such by the Company's
Board of Directors; provided that such designation will not
constitute a violation of the terms of the Securities. Any
Subsidiary designated as a Restricted Subsidiary may be
designated as an Unrestricted Subsidiary unless such designation
will constitute a violation of the terms of the Securities.
"U.S. Government Obligations" means (i) securities that
are direct obligations of the United States of America, the
payment of which is unconditionally guaranteed by the full faith
and credit of the United States of America and (ii) securities
that are obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed by
the full faith and credit of the United States of America, and
also includes depository receipts issued by a bank or trust
company as custodian with respect to any of the securities
described in the preceding clauses (i) and (ii), and any payment
of interest or principal payable under any of the securities
described in the preceding clauses (i) and (ii) that is held by
such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable
to the holder of such depository receipt, or from any amount
received by the custodian in respect of such securities, or from
-6-
any specific payment of interest or principal payable under the
securities evidenced by such depository receipt.
"Vice President", when used with respect to the Company
or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after
the title "vice president".
"Voting Stock", as applied to the stock of any
corporation, means stock of any class or classes (however
designated), the outstanding shares of which have, by the terms
thereof, ordinary voting power to elect a majority of the members
of the board of directors (or other governing body) of such
corporation, other than stock having such power only by reason of
the happening of a contingency.
Section 102. Officers' Certificates and Opinions.
Every Officers' Certificate, Opinion of Counsel, and other
certificate or opinion to be delivered to the Trustee under this
Indenture with respect to any action to be taken by the Trustee
shall include the following:
(1) a statement that each individual signing such
certificate or opinion has read all covenants and conditions of
this Indenture relating to such proposed action, including the
definitions of all applicable capitalized terms;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to the other matters, and any
such Person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, legal counsel,
unless such officer knows that any such certificate, opinion, or
representation is erroneous. Any opinion of counsel for the
Company may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an
officer or officers of the Company, unless such counsel knows
that any such certificate, opinion, or representation is
erroneous.
Where any Person is required to make, give, or execute
two or more applications, requests, consents, certificates,
statements, opinions, or other instruments under this Indenture,
such instruments may, but need not, be consolidated and form a
single instrument.
Section 104. Acts of Securityholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver, or
other action provided by this Indenture to be given or taken by
Securityholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Securityholders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered
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to the Trustee and (if expressly required by the applicable terms of
this Indenture) to the Company. If any Securities are denominated
in coin or currency other than that of the United States, then for
the purposes of determining whether the Holders of the requisite
principal amount of Securities have taken any action as herein described,
the principal amount of such Securities shall be deemed to be that amount
of United States dollars that could be obtained for such principal amount
on the basis of the spot rate of exchange into United States
dollars for the currency in which such Securities are denominated
(as evidenced to the Trustee by a certificate provided by a
financial institution, selected by the Company, that maintains an
active trade in the currency in question, acting as conversion
agent) as of the date the taking of such action by the Holders of
such requisite principal amount is evidenced to the Trustee as
provided in the immediately preceding sentence. Such instrument
or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness to such execution or by the certificate of any
notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation
or a member of a partnership, on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The ownership of Securities shall for all purposes
be determined by reference to the Security Register, as such
register shall exist as of the applicable Record Date.
(d) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, by Board
Resolution, fix in advance a Record Date for the determination of
Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such Record Date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after such
Record Date, but only the Holders of record at the close of
business on such Record Date shall be deemed to be Holders for
the purpose of determining whether Holders of the requisite
proportion of Securities Outstanding have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Securities Outstanding shall be computed as of such Record Date;
provided that no such authorization, agreement or consent by the
Holders on such Record Date shall be deemed effective unless it
shall become effective pursuant to the provisions of this
Indenture not later than six months after such Record Date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any
Security shall bind each subsequent Holder of such Security, and
each Holder of any Security issued upon the transfer thereof or
in exchange therefor or in lieu thereof, with respect to anything
done or suffered to be done by the Trustee or the Company in
reliance upon such action, whether or not notation of such action
is made upon such Security.
Section 105. Notices, etc., to Trustee and Company.
Any request, order, authorization, direction, consent, waiver, or
other action to be taken by the Trustee, the Company, or the
Securityholders hereunder (including any Authentication Order),
and any notice to be given to the Trustee or the Company with
respect to any action taken or to be taken by the Trustee, the
Company, or the Securityholders hereunder, shall be sufficient if
made in writing and
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(1) (if to be furnished or delivered to or filed with the
Trustee by the Company or any Securityholder) delivered to the
Trustee at its Corporate Trust Office, or
(2) (if to be furnished or delivered to the Company by the
Trustee or any Securityholder, and except as otherwise provided
in Section 501(4) and, in the case of a request for repayment,
except as specified in the Security carrying the right to
repayment) mailed to the Company, first-class postage prepaid, at
its principal office (as specified in the first paragraph of this
instrument) or at any other address hereafter furnished in
writing by the Company to the Trustee.
Section 106. Notice to Securityholders; Waiver. Where
this Indenture or any Security provides for notice to
Securityholders of any event, such notice shall be sufficiently
given (unless otherwise expressly provided herein or in such
Security) if in writing and mailed, first-class postage prepaid,
to each Securityholder affected by such event, at his or her
address as it appears in the Security Register as of the
applicable Record Date, not later than the latest date or earlier
than the earliest date prescribed by this Indenture or such
Security for the giving of such notice. In any case where notice
to Securityholders is given by mail, neither the failure to mail
such notice nor any defect in any notice so mailed to any
particular Securityholder shall affect the sufficiency of such
notice with respect to other Securityholders. Where this
Indenture or any Security provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Securityholders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or otherwise, it
shall be impractical to mail notice of any event to any
Securityholder when such notice is required to be given pursuant
to any provision of this Indenture or the applicable Security,
then any method of notification as shall be satisfactory to the
Trustee and the Company shall be deemed to be sufficient for the
giving of such notice.
Section 107. Conflict with Trust Indenture Act. If
any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this
Indenture by any of the provisions of the TIA, such required
provision shall control.
Section 108. Effect of Headings and Table of
Contents. The Article and Section headings herein and the Table
of Contents hereof are for convenience only and shall not affect
the construction of any provision of this Indenture.
Section 109. Successors and Assigns. All covenants
and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 110. Separability Clause. In case any
provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this
Indenture or in any Securities, express or implied, shall give to
any Person, other than the parties hereto, their successors
hereunder, the Authenticating Agent, the Security Registrar, any
Paying Agent, and the Holders of Securities (or such of them as
may be affected thereby), any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law. This Indenture shall be
governed by and construed in accordance with the laws of the
State of New York.
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Section 113. Counterparts. This instrument may be
executed in any number of counterparts, each of which when so
executed shall be deemed to be an original, but all of which
shall together constitute but one and the same instrument.
Section 114. Judgment Currency. The Company agrees,
to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment
in any court with respect to the Securities of any series it is
necessary to convert the sum due in respect of the principal,
premium, if any, or interest, if any, payable with respect to
such Securities into a currency in which a judgment can be
rendered (the "Judgment Currency"), the rate of exchange from the
currency in which payments under such Securities is payable (the
"Required Currency") into the Judgment Currency shall be the
highest bid quotation (assuming European-style quotation -- i.e.,
Required Currency per Judgment Currency) received by the Company
from three recognized foreign exchange dealers in the City of New
York for the purchase of the aggregate amount of the judgment (as
denominated in the Judgment Currency) on the New York Business
Day preceding the date on which a final unappealable judgment is
rendered, for settlement on such payment date, and at which the
applicable dealer timely commits to execute a contract, and (b)
the Company's obligations under this Indenture to make payments
in the Required Currency (i) shall not be discharged or satisfied
by any tender, or by any recovery pursuant to any judgment
(whether or not entered in accordance with the preceding clause
(a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the
actual receipt by the judgment creditor of the full amount of the
Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required
Currency so expressed to be payable, and (iii) shall not be
affected by judgment being obtained for any other sum due under
this Indenture.
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities of each
series shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture and may have such letters, numbers or other
marks of identification and such legends or endorsements placed
thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the
Security.
The definitive Securities, if any, shall be printed,
lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange, all as
determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. Forms of Securities. Each Security
shall be (i) substantially in the form of Exhibit A hereto if no
sinking fund provision is authorized with respect to such
Security by or pursuant to the Board Resolution required for the
creation of such Security under Section 301 hereof, (ii)
substantially in the form of Exhibit B hereto if a sinking fund
provision is authorized with respect to such Security by or
pursuant to the Board Resolution required for the creation of
such Security under Section 301 hereof, or (iii) in one of the
forms approved from time to time by or pursuant to any Board
Resolution, or established in one or more indentures supplemental
hereto. Prior to the delivery to the Trustee for authentication
of any Security in any form approved by or pursuant to a Board
Resolution, the Company shall deliver to the Trustee a copy of
such Board Resolution, together with a true and correct copy of
the form of Security which has been approved thereby, or, if a
Board Resolution authorizes a specific officer or officers to
approve a form of Security, together with a certificate of such
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officer or officers approving the form of Security attached
thereto, provided, however, that with respect to all Securities
issued pursuant to the same Board Resolution, the required copy
of such Board Resolution, together with the appropriate
attachment, need be delivered only once. Any form of Security
approved by or pursuant to a Board Resolution must be acceptable
as to form to the Trustee, such acceptance to be evidenced by the
Trustee's authentication of Securities in that form or by a
certificate signed by a Responsible Officer of the Trustee and
delivered to the Company.
Section 203. Securities in Global Form. If
Securities of a series are issuable in whole or in part in global
form, the global security representing such Securities may
provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect
exchanges or increased to reflect the issuance of additional
Securities. Any endorsement of a Security in global form to
reflect the amount (or any increase or decrease in the amount) of
Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified
therein or in the Authentication Order delivered to the Trustee
pursuant to Section 303 hereof.
Section 204. Form of Trustee's Certificate of
Authentication. The form of Trustee's Certificate of
Authentication for any Security issued pursuant to this Indenture
shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
(National Association), as Trustee,
By:
Authorized Officer
ARTICLE THREE
The Securities
Section 301. General Title; General Limitations;
Issuable in Series; Terms of Particular Series. The aggregate
principal amount of Securities that may be authenticated,
delivered, and Outstanding at any time under this Indenture is
not limited.
The Securities may be issued in one or more series in
such aggregate principal amount as may from time to time be
authorized by the Board of Directors. All Securities issued
under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof, without preference, priority, or
distinction on account of the actual time of the authentication
and delivery or Scheduled Maturity Date thereof.
Each series of Securities shall be created either by or
pursuant to one or more Board Resolutions or by one or more
indentures supplemental hereto. Any such Board Resolution or
supplemental indenture (or, in the case of a series of Securities
created pursuant to a Board Resolution, any officer or officers
authorized by such Board Resolution) shall establish the terms of
any such series of Securities, including the following (as and to
such extent as may be applicable):
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(1) the title of such series;
(2) the limit, if any, upon the aggregate principal amount
or issue price of the Securities of such series;
(3) the issue date or issue dates of the Securities of such
series;
(4) the Scheduled Maturity Date of the Securities of such
series;
(5) the place or places where the principal, premium, if
any, interest, if any, and additional amounts, if any, payable
with respect to the Securities of such series shall be payable
(if other than as provided in Section 1002);
(6) whether the Securities of such series will be issued at
par or at a premium over or a discount from their face amount;
(7) the rate or rates (which may be fixed or variable) at
which the Securities of such series shall bear interest, if any,
and, if applicable, the method by which such rate or rates may be
determined;
(8) the date or dates (or the method by which such date or
dates may be determined) from which interest, if any, shall
accrue, and the Interest Payment Dates on which such interest
shall be payable;
(9) the period or periods within which, the Redemption
Price(s) or Repayment Price(s) at which, and any other terms and
conditions upon which the Securities of such series may be
redeemed or repaid, in whole or in part, by the Company;
(10) the obligation, if any, of the Company to redeem,
repay, or purchase any of the Securities of such series pursuant
to any sinking fund, mandatory redemption, purchase obligation,
or analogous provision at the option of a Holder thereof, and the
period or periods within which, the Redemption Price(s) or
Repayment Price(s) or other price or prices at which, and any
other terms and conditions upon which the Securities shall be
redeemed, repaid, or purchased, in whole or in part, pursuant to
such obligation;
(11) the issuance of the Securities of such series in whole
or in part in global form and, if so, the identity of the
Depositary for such global security and the terms and conditions,
if any, upon which interests in the Securities represented by
such global security may be exchanged, in whole or in part, for
the individual Securities represented thereby;
(12) the denominations in which the Securities of such
series will be issued;
(13) whether and under what circumstances additional amounts
on the Securities of such series shall be payable in respect of
any taxes, assessments, or other governmental charges withheld or
deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay such additional amounts;
(14) the basis upon which interest shall be calculated;
(15) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of
a temporary Security for a definitive Security of such series)
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only upon receipt of certain certificates or other documents or
upon satisfaction of other conditions, then the form and terms of
such certificates, documents, and/or conditions;
(16) the exchange or conversion of the Securities of that
series, at the option of the Holders thereof, for or into new
Securities of a different series or for or into any other
securities except shares of Capital Stock of the Company or any
subsidiary of the Company or securities directly or indirectly
convertible into or exchangeable for any such shares;
(17) if other than U.S. dollars, the foreign or composite
currency or currencies (each such currency a "Specified
Currency") in which the Securities of such series shall be
denominated and in which payments of principal, premium, if any,
interest, if any, or additional amounts, if any, payable with
respect to such Securities shall or may be payable;
(18) if the principal, premium, if any, interest, if any,
or additional amounts, if any, payable with respect to the
Securities of such series are to be payable in any currency other
than that in which the Securities are stated to be payable,
whether at the election of the Company or of a Holder thereof,
the period or periods within which, and the terms and conditions
upon which, such election may be made;
(19) if the amount of any payment of principal, premium, if
any, interest, if any, or other sum payable with respect to the
Securities of such series may be determined by reference to the
relative value of one or more Specified Currencies, commodities,
or instruments, the level of one or more financial or non-
financial indices, or any other designated factors or formulas,
the manner in which such amounts shall be determined;
(20) the exchange of Securities of such series, at the
option of the Holders thereof, for other Securities of the same
series of the same aggregate principal amount of a different
authorized kind or different authorized denomination or
denominations, or both;
(21) the appointment by the Trustee of an Authenticating
Agent in one or more places other than the Corporate Trust Office
of the Trustee, with power to act on behalf of the Trustee, and
subject to its direction, in the authentication and delivery of
the Securities of such series;
(22) any trustees, depositaries, paying agents, transfer
agents, registrars, or other agents with respect to the
Securities of such series;
(23) the portion of the principal amount of Securities of
such series, if other than the principal amount thereof, that
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or provable in bankruptcy
pursuant to Section 504;
(24) any Event of Default with respect to the Securities of
such series, if not set forth herein;
(25) any covenant solely for the benefit of the Securities
of such series;
(26) the applicability of Sections 401, 402, and 403 of this
Indenture to the Securities of such series; and
(27) any other terms not inconsistent with the provisions
of this Indenture.
If all of the Securities issuable by or pursuant to any
Board Resolution are not to be issued at one time, it shall not
be necessary to deliver the Officers'
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Certificate and Opinion of Counsel required by Section 303 hereof at
the time of issuance of each such Security, but such Officers' Certificate
and Opinion of Counsel shall be delivered at or before the time of issuance of
the first such Security.
If any series of Securities shall be established by
action taken pursuant to any Board Resolution, the execution by
the officer or officers authorized by such Board Resolution of an
Authentication Order (as defined in Section 303 below) with
respect to the first Security of such series to be issued, and
the delivery of such Authentication Order to the Trustee at or
before the time of issuance of the first Security of such series,
shall constitute a sufficient record of such action. If all of
the Securities of any such series are not to be issued at one
time, it shall be necessary to deliver an Authentication Order
with respect to each subsequent issuance of Securities of such
series, but such Authentication Orders may be executed by any
authorized officer or officers of the Company, whether or not
such officer or officers would have been authorized to establish
such series pursuant to the aforementioned Board Resolution.
Unless otherwise provided by or pursuant to the Board
Resolution or supplemental indenture creating such series (i) a
series may be reopened for issuances of additional Securities of
such series, and (ii) all Securities of the same series shall be
substantially identical.
The form of the Securities of each series shall be
established pursuant to the provisions of this Indenture or by or
pursuant to the Board Resolution or supplemental indenture
creating such series. The Securities of each series shall be
distinguished from the Securities of each other series in such
manner as the Board of Directors or its authorized representative
or representatives may determine.
Unless otherwise provided with respect to Securities of
a particular series, the Securities of any series may only be
issuable in registered form, without coupons.
Section 302. Denominations and Currency. The
Securities of each series shall be issuable in such denominations
and currency as shall be provided in the provisions of this
Indenture or by or pursuant to the Board Resolution or
supplemental indenture creating such series. In the absence of
any such provisions with respect to the Securities of any series,
the Securities of that series shall be issuable only in fully
registered form in denominations of U.S. $1,000 and any integral
multiple thereof.
Section 303. Execution, Authentication and Delivery,
and Dating. The Securities shall be executed on behalf of the
Company by any two of the Chairman, the Executive Vice President,
and any Vice President of the Company under its corporate seal
reproduced thereon and attested by its Secretary or any one of
its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. The seal
of the Company may be in the form of a facsimile thereof and may
be impressed, affixed, imprinted, or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has
been duly authenticated and delivered by the Trustee.
Unless otherwise provided in the form of Security for
any series, all Securities shall be dated the date of their
authentication.
Securities bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities to the Trustee for authentication, together with a
Company Order for authentication and delivery (such Order an
"Authentication Order") with respect to such Securities, and the
Trustee shall, upon receipt of such Authentication Order, in
accordance with procedures acceptable to
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the Trustee set forth in the Authentication Order, and subject to
the provisions hereof, authenticate and deliver such Securities to such
recipients as may be specified from time to time pursuant to such
Authentication Order. The material terms of such Securities
shall be determinable by reference to such Authentication Order
and procedures. If provided for in such procedures, such
Authentication Order may authorize authentication and delivery of
such Securities pursuant to oral instructions from the Company or
its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to
receive, and (subject to the provisions of Section 601 hereof)
shall be fully protected in relying upon:
(1) an executed supplemental indenture, if any;
(2) an Officers' Certificate, certifying as to the
authorized forms and terms of such Securities; and
(3) an Opinion of Counsel, stating that:
(a) the form or forms and terms of such Securities have
been established by and in conformity with the provisions of this
Indenture; and
(b) such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, moratorium, reorganization, and other
laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general principles of
equity;
provided, however, that if all Securities issuable by or pursuant
to a Board Resolution or supplemental indenture are not to be
originally issued at one time, it shall not be necessary to
deliver the Officers' Certificate or Opinion of Counsel otherwise
required pursuant to this paragraph at or prior to the time of
authentication of each such Security if such documents are
delivered at or prior to the time of authentication upon original
issuance of the first such Security to be issued. After the
original issuance of the first such Security to be issued, any
separate request by the Company that the Trustee authenticate
such Securities for original issuance will be deemed to be a
certification by the Company that it is in compliance with all
conditions precedent provided for in this Indenture relating to
the authentication and delivery of such Securities.
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the
Trustee's own rights, duties, or immunities under the Securities
and this Indenture.
If the Company shall establish pursuant to Section 301
that Securities of a series may be issued in whole or in part in
global form, then the Company shall execute, and the Trustee
shall (in accordance with this Section 303 and the Authentication
Order with respect to such series) authenticate and deliver, one
or more Securities in global form that (i) shall represent and
shall be denominated in an aggregate amount equal to the
aggregate principal amount of the Outstanding Securities of such
series to be represented by such one or more Securities in global
form, (ii) shall be registered, in the name of the Depositary for
such Security or Securities in global form, or in the name of a
nominee of such Depositary, (iii) shall be delivered to such
Depositary or pursuant to such Depositary's instruction, and (iv)
shall bear a legend substantially as follows: "Unless and until
it is exchanged in whole or in part for Debt Securities in
certificated form, this Debt Security may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary, or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such
successor Depositary." Each Depositary designated pursuant to
Section 301 for a
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Security in global form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder.
Section 304. Temporary Securities. Pending the
preparation of definitive Securities of any series, the Company
may execute, and, upon receipt of the documents required by
Section 303 hereof, together with an Authentication Order, the
Trustee shall authenticate and deliver, temporary Securities of
such series that are printed, lithographed, typewritten,
mimeographed, or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued in registered form,
without coupons, and with such appropriate insertions, omissions,
substitutions, and other variations as the officers executing
such Securities may determine, as evidenced by their execution of
such Securities. In the case of Securities of any series for
which a temporary Security may be issued in global form, such
temporary global security shall represent all of the Outstanding
Securities of such series and tenor.
Except in the case of temporary Securities in global
form, which shall be exchanged in accordance with the provisions
thereof, if temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities of such series
shall be exchangeable, at the Corporate Trust Office of the
Trustee, or at such other office or agency as may be maintained
by the Company in a Place of Payment pursuant to Section 1002
hereof, for definitive Securities of such series having identical
terms and provisions, upon surrender of the temporary Securities
of such series, at the Company's own expense and without charge
to the Holder; and upon surrender for cancellation of any one or
more temporary Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive
Securities of such series in authorized denominations containing
identical terms and provisions. Unless otherwise specified as
contemplated by Section 301 with respect to a temporary Security
in global form, until so exchanged, the temporary Securities of
such series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such
series.
Section 305. Registration, Transfer and Exchange.
With respect to the Securities of each series, the Trustee shall
keep a register (herein sometimes referred to as the "Security
Register") which shall provide for the registration of Securities
of each series, and for transfers of Securities of such series,
in accordance with information to be provided to the Trustee by
the Company, subject to such reasonable regulations as the
Trustee may prescribe. Such register shall be in written form or
in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the
information contained in such register or registers shall be
available for inspection at the Corporate Trust Office of the
Trustee or at such other office or agency to be maintained by the
Company pursuant to Section 1002 hereof.
Upon due presentation for registration of transfer of
any Security of any series at the Corporate Trust Office of the
Trustee or at any other office or agency maintained by the
Company with respect to that series pursuant to Section 1002
hereof, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of such
series of any authorized denominations, of a like aggregate
principal amount and Scheduled Maturity Date.
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Any other provision of this Section 305
notwithstanding, unless and until it is exchanged in whole or in
part for the individual Securities represented thereby, in
definitive form, a Security in global form representing all or a
portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee
of such Depositary, or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary, or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
At the option of the Holder, Securities of any series
may be exchanged for other Securities of such series of any
authorized denominations, of a like aggregate principal amount
and Scheduled Maturity Date, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which
the Securityholder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a
series represented by one or more Securities in global form
notifies the Company that it is unwilling or unable to continue
as Depositary for the Securities of such series, or if at any
time the Depositary for the Securities of such series shall no
longer be eligible under Section 303 hereof, the Company, by
Company Order, shall appoint a successor Depositary with respect
to the Securities of such series. If a successor Depositary for
the Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to
Section 301 that such Securities be represented by one or more
Securities in global form shall no longer be effective with
respect to the Securities of such series and the Company will
execute, and the Trustee, upon receipt of an Authentication Order
for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such
series in definitive form, in authorized denominations, in an
aggregate principal amount, and of like terms and tenor, equal to
the principal amount of the Security or Securities in global form
representing such series, in exchange for such Security or
Securities in global form.
The Company may at any time and in its sole discretion
determine that individual Securities of any series issued in
global form shall no longer be represented by such Security or
Securities in global form. In such event the Company will
execute, and the Trustee, upon receipt of an Authentication Order
for the authentication and delivery of definitive Securities of
such series and of the same terms and tenor, will authenticate
and deliver Securities of such series in definitive form, in
authorized denominations, and in aggregate principal amount equal
to the principal amount of the Security or Securities in global
form representing such series in exchange for such Security or
Securities in global form.
If specified by the Company pursuant to Section 301
with respect to a series of Securities issued in global form, the
Depositary for such series of Securities may surrender a Security
in global form for such series of Securities in exchange in whole
or in part for Securities of such series in definitive form and
of like terms and tenor on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee upon receipt of an Authentication Order
for the authentication and delivery of definitive Securities of
such series, shall authenticate and deliver, without service
charge:
(a) to each Person specified by such Depositary, a new
definitive Security or Securities of the same series and of the
same tenor, in authorized denominations, in aggregate principal
amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(b) to such Depositary, a new Security in global form in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and
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the aggregate principal amount of the definitive Securities
delivered to Holders pursuant to clause (a) above.
Upon the exchange of a Security in global form for
Securities in definitive form, such Security in global form shall
be canceled by the Trustee or an agent of the Company or the
Trustee. Securities issued in definitive form in exchange for a
Security in global form pursuant to this Section 305 shall be
registered in such names and in such authorized denominations as
the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee in writing. The Trustee or such agent shall
deliver such Securities to or as directed by the Persons in whose
names such Securities are so registered or to the Depositary.
Whenever any securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Every Security presented or surrendered for
registration of transfer, exchange, redemption or payment shall
(if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise provided in the Security to be
transferred or exchanged, no service charge shall be imposed for
any registration of transfer or exchange of Securities, but the
Company may (unless otherwise provided in such Security) require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 906, or 1107 hereof not involving any transfer.
The Company shall not be required to (i) issue,
register the transfer of, or exchange any Security of any series
during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption under Section
1103 and ending at the close of business on the date of such
mailing, or (ii) register the transfer of or exchange any
Security so selected for redemption in whole or in part, except
in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities. If (i) any mutilated Security is surrendered to the
Trustee, or the Company or the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Security,
and (ii) there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide
purchaser, the Company may in its discretion execute and upon
request of the Company the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of like tenor,
series, Scheduled Maturity Date, and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
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Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any
and all other Securities of the same series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights
Preserved. Interest on any Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date
shall, if so provided in such Security, be paid to the Person in
whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the applicable Record
Date, notwithstanding any transfer or exchange of such Security
subsequent to such Record Date and prior to such Interest Payment
Date. (unless such Interest Payment Date is also the date of
Maturity of such Security).
Any interest on any Security which is payable, but is
not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered Holder on the applicable Record
Date by virtue of his having been such Holder; and, except as
hereinafter provided, such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1)
or clause (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names any such
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each such Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to the Holder of each
such Security at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
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Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
If any installment of interest on any Security called
for redemption pursuant to Article Eleven is due and payable on
or prior to the Redemption Date and is not paid or duly provided
for on or prior to the Redemption Date in accordance with the
foregoing provisions of this Section 307, such interest shall be
payable as part of the Redemption Price of such Securities.
Interest on Securities of any series that bear interest
may be paid by mailing a check to the address of the Person
entitled thereto at such address as shall appear in the
Securities Register for such series or by such other means as may
be specified in the form of such Security.
Subject to the foregoing provisions of this Section 307
and the provisions of Section 305 hereof, each Security delivered
under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 308. Persons Deemed Owners. Prior to due
presentment of a Security for registration of transfer, the
Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name any Security is registered on
the applicable Record Date(s) as the owner of such Security for
the purpose of receiving payment of principal, premium, if any,
interest, if any (subject to Sections 305 and 307 hereof), and
any additional amounts payable with respect to such Security, and
for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee, nor any agent
of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Authenticating
Agent, any Paying Agent, the Security Registrar, or any
Co-Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Security in global
form or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests and each of them
may act or refrain from acting without liability on any
information relating to such records provided by the Depositary.
Section 309. Cancellation. All Securities surrendered
for payment, redemption, registration of transfer, exchange, or
credit against a sinking or analogous fund shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee
and, if not already canceled, shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. Acquisition of such Securities
by the Company shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation. No
Security shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. The Trustee shall destroy
all canceled Securities and deliver a certificate of such
destruction to the Company.
Section 310. Computation of Interest. Unless
otherwise provided as contemplated in Section 301, interest on
the Securities shall be calculated on the basis of a 360-day year
of twelve 30-day months.
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect with respect
to any series of Securities (except as to any surviving rights of
conversion or transfer or exchange of Securities of such series
expressly provided for herein or in the form of Security for such
series), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of that series theretofore authenticated
and delivered (other than (i) Securities of such series which
have been destroyed, lost, or stolen and which have been replaced
or paid as provided in Section 306, and (ii) Securities of such
series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee
canceled or for cancellation; or
(B) all such Securities of that series not theretofore
delivered to the Trustee canceled or for cancellation
(i) have become due and payable, or
(ii) will, in accordance with their Scheduled Maturity Date,
become due and payable within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and, in any of the cases described in subparagraphs (i), (ii), or
(iii) above, the Company has deposited or caused to be deposited
with the Trustee, as trust funds in trust for the purpose, an
amount in money, in U.S. Government Obligations, or in Equivalent
Government Securities sufficient to pay and discharge the entire
indebtedness on such Securities with respect to principal,
premium, if any, and interest, if any, to the date of such
deposit (in the case of Securities which have become due and
payable), or to the Scheduled Maturity Date or Redemption Date,
as the case may be; provided, however, that if such U.S.
Government Obligations or Equivalent Government Securities are
callable or redeemable at the option of the issuer thereof, the
amount of such money, U.S. Government Obligations, and Equivalent
Government Securities deposited with the Trustee must be
sufficient to pay and discharge the entire indebtedness referred
to above if such issuer elects to exercise such call or
redemption provisions at any time prior to the Scheduled Maturity
Date or Redemption Date, as the case may be. The Company, but
not the Trustee, shall be responsible for monitoring any such
call or redemption provision; and
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the
Securities of such series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with and, in the
case of the Opinion of Counsel, stating either that no
requirement to register
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under the Investment Company Act of 1940, as amended, will arise as a
result of the Company's exercise of its option under this Section 401 or
that any such registration requirement has been complied with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the
Company under paragraph (1) of this Section 401 and its
obligations to the Trustee with respect to that series under
Section 607 shall survive, and the obligations of the Trustee
under Sections 403 and 1003 shall survive.
Section 402. Defeasance and Discharge of Covenants
upon Deposit of Moneys, U.S. Government Obligations, or
Equivalent Government Securities. At the Company's option,
either (a) the Company shall be deemed to have been Discharged
(as defined below) from its obligations with respect to any
series of Securities on the 91st day after the applicable
conditions set forth below have been satisfied and/or (b) the
Company shall cease to be under any obligation to comply with any
term, provision or condition set forth in Sections 801 or 1006
hereof with respect to any series of Securities at any time after
the applicable conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of such series (i)
money in an amount, or (ii) U.S. Government Obligations or
Equivalent Government Securities which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination
of (i) and (ii), sufficient, in the opinion (with respect to (ii)
and (iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment
of principal (including mandatory sinking fund payments) of, and
interest on, the Outstanding Securities of such series on the
dates such installments of interest or principal are due;
provided, however, that if such U.S. Government Obligations and
Equivalent Government Securities are callable or redeemable at
the option of the issuer thereof, the amount of such money, U.S.
Government Obligations, and/or Equivalent Government Securities
deposited with the Trustee must be sufficient to pay and
discharge the entire indebtedness referred to above if the issuer
of any such U.S. Government Obligations or Equivalent Government
Securities elects to exercise such call or redemption provisions
at any time prior to the Scheduled Maturity Date of such
Securities. The Company, but not the Trustee, shall be
responsible for monitoring any such call or redemption provision.
(2) If the Securities of such series are then listed on any
stock exchange, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Company's exercise
of its option under this paragraph would not cause such
Securities to be delisted.
(3) No Event of Default or event which with notice or lapse
of time would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing
on the date of such deposit.
(4) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (a) Holders of the
Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of the Company's
exercise of its option under this Section 402 and (b) either no
requirement to register under the Investment Company Act of 1940,
as amended, will arise as a result of the Company's exercise of
its option under this Section 402 or any such registration
requirement has been complied with.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and
obligations under, the Securities of such series and to have
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satisfied all the obligations under this Indenture relating to
the Securities of such series (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such
series to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest, if any, on
such Securities when such payments are due; (B) the Company's
obligations with respect to such Securities under Sections 305,
306, 402(1), 403, and 1002 hereof; and (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
Section 403. Application of Trust Money. All money
deposited with the Trustee pursuant to Section 401 or Section 402
hereof shall be held in trust and applied by it, in accordance
with the provisions of this Indenture and of the series of
Securities in respect of which it was deposited, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal,
premium, if any, and interest, if any, for whose payment such
money has been deposited with the Trustee; but such money need
not be segregated from other funds except to the extent required
by law.
Section 404. Paying Agent to Repay Moneys Held. Upon
the satisfaction and discharge of this Indenture, all moneys then
held by any Paying Agent of the Securities (other than the
Trustee) shall, upon demand of the Company, be repaid to it or
paid to the Trustee, and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 405. Return of Unclaimed Amounts. Any
amounts deposited with or paid to the Trustee or any Paying Agent
for payment of the principal of, premium, if any, or interest, if
any, on the Securities and not applied but remaining unclaimed by
the Holders of such Securities for two years after the date upon
which the principal of, premium, if any, or interest, if any, on
such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee on demand;
and the Holder of any of such Securities shall thereafter look
only to the Company for any payment which such Holder may be
entitled to collect (until such time as such unclaimed amounts
shall escheat, if at all, to the State of New York).
Notwithstanding the foregoing, the Trustee or Paying Agent,
before being required to make any such repayment, may at the
expense of the Company cause to be published once a week for two
successive weeks (in each case on any day of the week) in a
newspaper printed in the English language and customarily
published at least once a day at least five days in each calendar
week and of general circulation in the Borough of Manhattan, in
the City and State of New York, a notice that said amounts have
not been so applied and that after a date named therein any
unclaimed balance of said amounts then remaining will be promptly
returned to the Company.
ARTICLE FIVE
Remedies
Section 501. Events of Default. "Event of Default",
wherever used herein, means with respect to any series of
Securities any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless
such event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture
creating such series of Securities or in the form of Security for
such series:
(1) default in the payment of any interest on any Security
of such series when it becomes due and payable, and continuance
of such default for a period of 30 days, provided, that the
Holders of not less than 75% of the then Outstanding Securities
of such series shall not have consented to a postponement of such
payment; or
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(2) default in the payment of the principal amount of (or
premium, if any, on) any Security of such series as and when the
same shall become due, either at Maturity, upon redemption, by
declaration, or otherwise; or
(3) default in the payment of any sinking or purchase fund
or analogous obligation when the same becomes due by the terms of
the Securities of such series and continuance of such default for
a period of 30 days; or
(4) default in the performance or breach of any covenant or
warrant of the Company in this Indenture in respect of the
Securities of such series (other than a covenant or warranty in
respect of the Securities of such series a default in the
performance of which or the breach of which is elsewhere in this
Section specifically dealt with), and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 51% in the
principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry of an order for relief against the Company
under the Federal Bankruptcy Act by a court having jurisdiction
in the premises or a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent under any other applicable Federal or State law, or the
entry of a decree or order approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under the Federal Bankruptcy Code or
any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 90 consecutive days; or
(6) the consent by the Company to the institution of
bankruptcy or insolvency proceedings against it, or the filing by
it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
Federal or State law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in
the form of Security for such series.
A default under any indebtedness of the Company other than the
Securities will not constitute an Event of Default under this
Indenture, and a default under one series of Debt Securities will
not constitute a default under any other series of Securities.
Section 502. Acceleration of Maturity; Rescission, and
Annulment. If any Event of Default described in Section 501
above shall have occurred and be continuing with respect to any
series, then and in each and every such case, unless the
principal of all the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not
less than 51% in aggregate principal amount of the Securities of
such series then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Holders), may declare
the principal amount (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all
the Securities of such series and any and all accrued interest
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thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due
and payable, any provision of this Indenture or the Securities of
such series to the contrary notwithstanding. No declaration of
acceleration by the Trustee with respect to any series of
Securities shall constitute a declaration of acceleration by the
Trustee with respect to any other series of Securities, and no
declaration of acceleration by the Holders of at least 51% in
aggregate principal amount of the Outstanding Securities of any
series shall constitute a declaration of acceleration or other
action by any of the Holders of any other series of Securities,
in each case whether or not the Event of Default on which such
declaration is based shall have occurred and be continuing with
respect to more than one series of Securities, and whether or not
any Holders of the Securities of any such affected series shall
also be Holders of Securities of any other such affected series.
At any time after such a declaration of acceleration
has been made with respect to the Securities of any series and
before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue installments of interest, if any, on the
Securities of such series,
(B) the principal of (and premium, if any, on) any
Securities of such series which have become due otherwise than by
such declaration of acceleration, and interest thereon at the
rate or rates prescribed therefor by the terms of the Securities
of such series, to the extent that payment of such interest is
lawful,
(C) interest on overdue installments of interest at the
rate or rates prescribed therefor by the terms of the Securities
of such series to the extent that payment of such interest is
lawful, and
(D) the reasonable compensation, expenses, disbursements
and advances of the Trustee and its agents and counsel, and all
other amounts due the Trustee under Section 607;
and
(2) all Events of Default with respect to such series of
Securities, other than the nonpayment of the principal of the
Securities of such series which have become due solely by such
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes
due and payable, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or
purchase fund or analogous obligation when the same becomes due
by the terms of the Securities of any series, and
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(4) any such default continues for any period of grace
provided in relation to such default pursuant to Section 501,
then, with respect to the Securities of such series, the Company
will, upon demand of the Trustee, pay to it, for the benefit of
the Holder of any such Security (or the Holders of any such
series in the case of clause (3) above), the whole amount then
due and payable on any such Security (or on the Securities of any
such series in the case of clause (3) above) for principal (and
premium, if any) and interest, if any, with interest (to the
extent that payment of such interest shall be legally
enforceable) upon the overdue principal (and premium, if any) and
upon overdue installments of interest, if any, at such rate or
rates as may be prescribed therefor by the terms of any such
Security (or of Securities of any such series in the case of
clause (3) above); and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel
and all other amounts due the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of
such series and collect the money adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim. In
case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition, or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of
principal (or, with respect to Original Discount Securities, such
portion of the principal amount as may be specified in the terms
of such Securities), premium, if any, and interest, if any, owing
and unpaid in respect of the Securities, and to file such other
papers or documents as may be necessary and advisable in order to
have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents and counsel, and all other amounts due
the Trustee under Section 607) and of the Securityholders allowed
in such judicial proceedings, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same; and any receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Securityholder to make
such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any
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amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee and its agent and counsel, and any other amounts
due the Trustee under Section 607 hereof.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 505. Trustee May Enforce Claims Without
Possession of Securities. All rights of action and claims under
this Indenture of the Securities of any series may be prosecuted
and enforced by the Trustee without the possession of any of the
Securities of such series or the production thereof in any
proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee and its
agents and counsel, be for the ratable benefit of the Holders of
the Securities, of the series in respect of which such judgment
has been recovered.
Section 506. Application of Money Collected. Any
money collected by the Trustee with respect to a series of
Securities pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of
principal, premium, if any, or interest, if any, upon
presentation of the Securities of such series and the notation
thereon of the payment, if only partially paid, and upon
surrender thereof, if fully paid:
First: To the payment of all amounts due the Trustee
under Section 607 hereof.
Second: To the payment of the amounts then due and unpaid
upon the Securities of that series for principal, premium, if
any, interest, if any, and additional amounts, if any, in respect
of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind.
Section 507. Limitation on Suits. No Holder of any
Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to
Securities of such series;
(2) the Holders of not less than 51% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request, and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of such series;
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it being understood and intended that no one or more Holders of
Securities of such series shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of such series, or to obtain or to seek to
obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal and proportionate benefit of
all the Holders of all Securities of such series.
Section 508. Unconditional Right of Securityholders
To Receive Principal, Premium, and Interest. Notwithstanding any
other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to
receive payment of the principal, premium, if any, and (subject
to Section 307) interest, if any, (and additional amounts, if
any) on such Security on or after the respective payment dates
expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case
may be) and to institute suit for the enforcement of any such
payment on or after such respective date, and such right shall
not be impaired or affected without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If
the Trustee or any Securityholder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason,
then and in every such case the Company, the Trustee and the
Securityholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their
former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Securityholders shall continue as
though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. No
right or remedy herein conferred upon or reserved to the Trustee
or to the Securityholders is intended to be exclusive of any
other right or remedy, and every right or remedy shall, to the
extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver. No delay
or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Securityholders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Securityholders, as the case may be.
Section 512. Control by Securityholders. The Holders
of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series, provided
that
(1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken
or would conflict with this Indenture or if the Trustee in good
faith shall, by a Responsible Officer, determine that the
proceedings so directed would involve it in personal liability or
be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
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Section 513. Waiver of Past Defaults. The Holders of
not less than a majority in principal amount of the Outstanding
Securities of any series may, on behalf of the Holders of all the
Securities of such series, waive any past default hereunder with
respect to such series and its consequences, except a default not
theretofore cured:
(1) in the payment of principal, premium, if any, or
interest, if any, on any Security of such series, or in the
payment of any sinking or purchase fund or analogous obligation
with respect to the Securities of such series, or
(2) in respect of a covenant or provision in this Indenture
which, under Article Nine hereof, cannot be modified or amended
without the consent of the Holder of each Outstanding Security of
such series.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 514. Undertaking for Costs. All parties to
this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder or group of Securityholders
holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series to which the suit relates,
or to any suit instituted by any Securityholder for the
enforcement of the payment of principal, premium, if any, or
interest, if any, on any Security on or after the respective
payment dates expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or
Repayment Date).
Section 515. Waiver of Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law (other than any bankruptcy law) wherever enacted,
now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities of
Trustee. (a) Except during the continuance of an Event of
Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to the Securities of such series, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively rely
upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case
of any such
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certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to any series
of Securities has occurred and is continuing, the Trustee shall
exercise, with respect to the Securities of such series, such of
the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in principal amount of the Outstanding Securities of any
series relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee with respect
to the Securities of such series, or exercising any trust or
power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults. Within 90 days
after the occurrence of any default hereunder with respect to
Securities of any series, the Trustee shall transmit by mail to
all Securityholders of such series, as their names and addresses
appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a
default in the payment of the principal, premium, if any, or
interest, if any, on any Security of such series or in the
payment of any sinking or purchase fund installment or analogous
obligation with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in
the interests of the Securityholders of such series and;
provided, further, that, in the case of any default of the
character specified in Section 501(4) with respect to Securities
of such series, no such notice to Securityholders of such series
shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default",
with respect to Securities of any
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series, means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of
such series.
Section 603. Certain Rights of Trustee. Except as
otherwise provided in Section 601 above:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Securityholders pursuant to
this Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other
paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance
of Securities. The recitals contained herein and in the
Securities, except the certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 605. May Hold Securities. The Trustee or any
Paying Agent, Security Registrar, or other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613
hereof, may otherwise deal with
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the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar, or such other agent.
Section 606. Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement. The
Company covenants and agrees
(1) to pay the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5)
and 501(6) above, such expenses (including the reasonable charges
and expenses of its counsel) and compensation for such services
are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency,
reorganization, or other similar law.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either
eliminate such interest or resign as Trustee, to the extent and
in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. To the extent permitted
by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series or
by virtue of being a trustee under:
(i) the Indenture dated as of September 28, 1990, between
the Company and the Trustee relating to certain debt securities,
(ii) the Indenture dated as of October 15, 1986, between the
Company and the Trustee relating to certain debt securities,
(iii) the Indenture dated as of October 1, 1986, between the
Company and the Trustee relating to the Company's
Euro-Medium-Term Notes, (iv) the Trust Agreement with Puerto Rico
Industrial, Medical and Environmental Pollution Control
Facilities Financing Authority (the "Authority") dated as of
November 15, 1983, under which the Authority assigned certain
rights under a Loan Agreement dated November 15, 1983, between
the Authority and the Company, including the right to payment
from the Company of amounts sufficient to enable the Authority to
pay principal and interest and redemption payments (including
redemption premium, if any) on the bonds issued under said Trust
Agreement, (v) the Indenture dated as of March 2, 1982, among
PepsiCo Capital Corporation N.V., the Company, as guarantor, and
the Trustee relating to
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the PepsiCo Capital Corporation N.V. Zero Coupon Guaranteed Notes due
1994, and (vi) the Indenture dated as of April 1, 1982, among PepsiCo
Capital Resources, Inc., the Company, as guarantor, and the Trustee
relating to the PepsiCo Capital Resources, Inc. Zero Coupon Serial
Guaranteed Debentures Due 1988-2012.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to
each series of Securities that shall be a corporation organized
and doing business under the laws of the United States of America
or of any State or Territory thereof or of the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by Federal
or State authority and having its principal office and place of
business in the City of New York, if there be such a corporation
having its principal office and place of business in said City.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at
any time the Trustee with respect to any series of Securities
shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 611.
(b) The Trustee may resign with respect to any series of
Securities at any time by giving 60 days' written notice thereof
to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series
of Securities at any time by Act of the Holders of 66 2/3% in
principal amount of the Outstanding Securities of that series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 above
with respect to any series of Securities after written request
therefor by the Company or by any Securityholder who has been a
bona fide Holder of a Security of that series for at least 6
months, or
(2) the Trustee shall cease to be eligible under
Section 609 above with respect to any series of Securities and
shall fail to resign after written request therefor by the
Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with
respect to any series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
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then, in any such case (i) the Company may remove the Trustee,
with respect to the series or, in the case of clause (4), with
respect to all series, or (ii) subject to Section 514, any
Securityholder who has been a bona fide Holder of a Security of
such series for at least 6 months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee with respect to the series or, in the case
of clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or
if a vacancy shall occur in the office of Trustee with respect to
any series of Securities for any cause, the Company shall
promptly appoint a successor Trustee for that series of
Securities. If, within one year after such resignation, removal
or incapacity, or the occurrence of such vacancy, a successor
Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of 66 2/3% in principal amount of
the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to such
series and supersede the successor Trustee appointed by the
Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the
Company or the Securityholders of such series and accepted
appointment in the manner hereinafter provided, any
Securityholder who has been bona fide Holder of a Security of
that series for at least 6 months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to any series and each
appointment of a successor Trustee with respect to any series by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of that series as their
names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address
of its principal Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the predecessor
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the predecessor Trustee shall
become effective with respect to any series as to which it is
resigning or being removed as Trustee, and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the predecessor Trustee with respect to any such series; but, on
request of the Company or the successor Trustee, such predecessor
Trustee shall, upon payment of its reasonable charges, if any,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the predecessor
Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such predecessor
Trustee hereunder with respect to all or any such series. Upon
reasonable request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the predecessor Trustee and each
successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture
supplemental hereto which (1) shall contain such provisions as
shall be deemed necessary or desirable to transfer and to conform
to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series
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as to which the appointment of such successor Trustee relates and (2)
if the predecessor Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of any series
as to which the predecessor Trustee is not being succeeded shall
continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
No successor Trustee with respect to any series of
Securities shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and
eligible with respect to that series under this Article.
Section 612. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in
office, any successor Trustee by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613. Preferential Collection of Claims
Against Company. If and when the Trustee shall be or shall
become a creditor, of the Company (or of any other obligor upon
the Securities), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims
against the Company (or against any such other obligor, as the
case may be).
Section 614. Appointment of Authenticating Agent. At
any time when any of the Securities remain Outstanding the
Trustee, with the approval of the Company, may appoint an
Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia,
authorized under such laws to act as an Authenticating Agent,
having a combined capital and surplus of not less than
$50,000,000 and, if other than the Company itself, subject to
supervision or examination by Federal or State authority. If
such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an
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Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and, if other than
the Company, to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee, with
the approval of the Company, may appoint a successor
Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class
mail, postage prepaid, to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
(National Association),
As Trustee
By --------------------
As Authenticating Agent
By --------------------
Authorized Officer
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ARTICLE SEVEN
Securityholders' Lists and Reports by
Trustee and Company
Section 701. Company To Furnish Trustee Names and
Addresses of Securityholders. The Company will furnish or cause
to be furnished to the Trustee:
(a) semiannually, not more than 15 days after January 1 and
July 1 in each year, in such form as the Trustee may reasonably
require, a list of the names and addresses of the Holders of
Securities of each series as of such date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
provided that if the Trustee shall be the Security Registrar for
such series, such list shall not be required to be furnished.
Section 702. Preservation of Information;
Communications to Securityholders. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Securities
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security of such series for a period
of at least six months preceding the date of such application,
and such application states that the applicants desire to
communicate with other Holders of Securities of such series or
with the Holders of all Securities with respect to their rights
under this Indenture or under such Securities and is accompanied
by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within
five Business Days after the receipt of such application, at its
election, either:
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with
Section 702(a), and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each Holder of a
Security of such series or to all Securityholders, as the case
may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with
Section 702(a), a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests
of the
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Holders of Securities of such series or all Securityholders, as the
case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice
and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all Securityholders of such
series or all Securityholders, as the case may be, with
reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee shall be held accountable by reason
of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with
Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a
request made under Section 702(b).
Section 703. Reports by Trustee. (a) The term
"reporting date" as used in this Section, means May 15. Within
60 days after the reporting date in each year, beginning in 1994,
the Trustee shall transmit by mail to all Securityholders, as
their names and addresses appear in the Security Register, a
brief report dated as of such reporting date with respect to:
(1) its eligibility under Section 609 and its
qualifications under Section 608, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and
qualified under said Sections, a written statement to such
effect;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of Securities
of any series, on any property or funds held or collected by it
as Trustee, except that the Trustee shall not be required (but
may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities of such series Outstanding on the date of such
report;
(3) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner
described in Section 613(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee has
not previously reported; and
(6) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is to
be withheld by the Trustee in accordance with Section 602.
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(b) The Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear in the
Security Register, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by
the Trustee (as such) since the date of the last report
transmitted pursuant to Subsection (a) of this Section (or if no
such report has yet been transmitted, since the date of execution
of this instrument) for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the Securities of
any series, on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to
this Subsection, except that the Trustee shall not be required
(but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding of such series at
such time, such report to be transmitted within 90 days after
such time.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with
each stock exchange upon which the Securities are listed, and
also with the Commission. The Company will notify the Trustee
when the Securities are listed on any stock exchange. The
Trustee shall also transmit by mail all reports as required by
Section 313(c) of the TIA.
Section 704. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it will file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(3) transmit by mail to all Securityholders, as their names
and addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
Section 705. Notice of Maturity. Notice of maturity
of each series of Securities (other than book-entry securities)
shall be given by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Maturity of such
Securities, to each Holder of such Securities, at the address of
such Holder appearing in the Security Register on the applicable
Record Date. Notice of Maturity shall be given by the Company
or, at the Company's request, by the Trustee, in the name and at
the expense of the Company.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., Only on
Certain Terms. The Company shall not consolidate with or merge
into any other corporation or convey or transfer all or
substantially all of its assets to any Person, unless;
(1) either the Company shall be the continuing corporation,
or the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer all or substantially all of the properties and assets of
the Company shall be a corporation organized and existing under
the laws of the United States of America or any State or the
District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of
the principal, premium, if any, and interest, if any, on all the
Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an Opinion of
Counsel as conclusive evidence that any such consolidation,
merger, conveyance or transfer and any assumption permitted or
required by this Article complies with the provisions of this
Article.
Section 802. Successor Corporation Substituted. Upon
any consolidation or merger, or any conveyance or transfer of all
or substantially all of the properties and assets of the Company
in accordance with Section 801, the successor corporation formed
by such consolidation or into which the Company is merged or to
which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein and
the Company shall thereupon be released from all obligations
hereunder and under the Securities. Such successor corporation
thereupon may cause to be signed and may issue any or all of the
Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities
so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale or
conveyance such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued
as may be appropriate.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent
of Securityholders. Without the consent of the Holders of any
Securities, the Company and the Trustee, at any time and from
time to
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time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the TIA as in
force at the date of execution thereof), in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by any
such successor of the covenants, agreements and obligations of
the Company pursuant to Article Eight hereof; or
(2) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
Holders of the Securities of any or all series as the Company and
the Trustee shall consider to be for the protection of the
Holders of the Securities of any or all series or to surrender
any right or power herein conferred upon the Company (and if such
covenants or the surrender of such right or power are to be for
the benefit of less than all series of Securities, stating that
such covenants are expressly being included or such surrenders
are expressly being made solely for the benefit of one or more
specified series); or
(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein or in any supplemental indenture, or to make any
other provisions with respect to matters or questions arising
under this Indenture; or
(4) to add to this Indenture such provisions as may be
expressly permitted by the TIA, excluding, however, the
provisions referred to in Section 316(a)(2) of the TIA as in
effect at the date as of which this instrument is executed or any
corresponding provision in any similar federal statute hereafter
enacted; or
(5) to establish any form of Security, as provided in
Article Two hereof, and to provide for the issuance of any series
of Securities, as provided in Article Three hereof, and to set
forth the terms thereof, and/or to add to the rights of the
Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of
appointment by another corporation as a successor Trustee
hereunder with respect to one or more series of Securities and to
add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
Section 611 hereof; or
(7) to add any additional Events of Default in respect of
the Securities of any or all series (and if such additional
Events of Default are to be in respect of less than all series of
Securities, stating that such Events of Default are expressly
being included solely for the benefit of one or more specified
series); or
(8) to provide for the issuance of Securities in bearer as
well as fully registered form.
No supplemental indenture for the purposes identified
in clauses (2), (3), (5) or (7) above may be entered into if to
do so would adversely affect the interest of the Holders of
Securities of any series.
Section 902. Supplemental Indentures with Consent of
Securityholders. With the consent of the Holders of not less
than a majority in principal amount of the Outstanding Securities
of each series affected by such supplemental indenture or
indentures, by Act of said Holders delivered to the Company and
the Trustee, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Holders of the Securities of each
such series
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under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby:
(1) change the Scheduled Maturity Date or the stated
payment date of any payment of premium or interest payable on any
Security, or reduce the principal amount thereof, or any amount
of interest or premium payable thereon, or change the method of
computing the amount of principal thereof or any interest payable
thereon on any date, or change any Place of Payment where, or the
coin or currency in which, any Security or any payment of premium
or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the same
shall become due and payable, whether at Maturity or, in the case
of redemption or repayment, on or after the Redemption Date or
the Repayment Date, as the case may be; or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences, provided for in this Indenture;
or
(3) modify any of the provisions of this Section,
Section 513 or Section 1007, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular
series of Securities, or that modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of
Securityholders under this Section 902 to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
Upon request of the Company and upon filing with the Trustee of
evidence of an Act of Securityholders as aforementioned, the
Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee's own rights, powers, trusts, duties or immunities
under this Indenture or otherwise, in which case the Trustee may
in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
Section 904. Effect of Supplemental Indentures. Upon
the execution of any supplemental indenture under this Article,
this Indenture shall be and be deemed to be modified and amended
in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and the
respective rights, limitation of rights, duties, powers, trusts
and immunities under this Indenture of the Trustee, the Company,
and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be determined,
exercised and enforced thereunder to the extent provided therein.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the TIA as then in effect.
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Section 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities so modified as to conform, in
the opinion of the Trustee and the Company, to any modification
of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest. With respect to each series of Securities, the Company
will duly and punctually pay or cause to be paid the principal,
premium, if any, and interest, if any, on such Securities in
accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions
contained in the Indenture for the benefit of the Securities of
such series.
Section 1002. Maintenance of Office or Agency. So
long as any of the Securities remain outstanding, the Company
will maintain an office or agency in each Place of Payment where
Securities may be presented or surrendered for payment, where
Securities may be surrendered for transfer or exchange, and where
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any
time the Company shall fail to maintain such office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the principal Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee its agent to receive
all such presentations, surrenders, notices and demands.
Section 1003. Money for Security Payments To Be Held
in Trust. If the Company shall at any time act as its own Paying
Agent for any series of Securities, it will, on or before each
due date of the principal, premium, if any, or interest, if any,
on any of the Securities of such series, segregate and hold in
trust for the benefit of the Holders of the Securities a sum
sufficient to pay such principal, premium, or interest so
becoming due until such sums shall be paid to such Holders of the
Securities or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, on or prior to each
due date of the principal, premium, if any, or interest, if any,
on any Securities of such series, deposit with a Paying Agent a
sum sufficient to pay such principal, premium, or interest so
becoming due, such sum to be held in trust for the benefit of the
Holders of the Securities entitled to the same and (unless such
Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee for any series of Securities to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of principal,
premium, if any, or interest, if any, on Securities of such
series in trust for the benefit of the Holders of the Securities
entitled thereto until such sums shall be paid to such Holders of
the Securities or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the
making of any such payment of principal, premium, if any, or
interest, if any, on the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may, at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture with
respect to any series of Securities or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying
Agent in respect of each and every series of Securities as to
which it seeks to discharge this Indenture or, if for any other
purpose, all sums so held in trust by the Company in respect of
all Securities, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Section 1004. Certificate to Trustee. The Company
will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company (beginning in 1994), an Officers'
Certificate stating that in the course of the performance by the
signers of their duties as officers of the Company they would
normally have knowledge of any default by the Company in the
performance of any of its covenants or agreements contained
herein, stating whether or not they have knowledge of any such
default and, if so, specifying each such default of which the
signers have knowledge and the nature thereof.
Section 1005. Corporate Existence. Subject to Article
Eight the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
Section 1006. Limitation on Secured Debt. So long as
any of the Securities of any series shall be outstanding, neither
the Company nor any Restricted Subsidiary will incur, suffer to
exist or guarantee any indebtedness for borrowed money ("Debt"),
secured by a mortgage, pledge, or lien (a "Mortgage") on any
Principal Property or on any shares of stock of any
Restricted Subsidiary unless the Company or such Restricted
Subsidiary secures or causes such Restricted Subsidiary to secure
the Securities of such series (and any other Debt of the Company
or such Restricted Subsidiary, at the option of the Company or
such Restricted Subsidiary, not subordinate to the Securities)
equally and ratably with (or prior to) such secured Debt, so long
as such secured Debt shall be so secured, unless after giving
effect thereto the aggregate amount of all such Debt so secured
does not exceed 10% of Consolidated Net Tangible Assets. This
restriction will not, however, apply to Debt secured by:
(1) Mortgages existing prior to the issuance of such
Securities;
(2) Mortgages on property of, or on shares of stock
of or Debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(3) Mortgages in favor of the Company or any Restricted
Subsidiary;
(4) Mortgages in favor of any governmental bodies to
secure progress or advance payments;
(5) Mortgages on property, shares of stock or Debt
existing at the time of acquisition thereof (including
acquisition through merger or consolidation) or to secure the
payment of all or any part of the purchase price thereof or
construction thereon or to secure any Debt incurred prior to, at
the time of, or within 120 days after the later of the
acquisition, the completion of construction, or the commencement
of full operation of such property or within 120 days after
-44-
the acquisition of such shares or Debt for the purpose of financing
all or any part of the purchase price thereof or construction
thereon; and
(6) any extension, renewal or refunding referred to in the
foregoing clauses (1) to (5), inclusive.
The transfer of a Principal Property to an Unrestricted
Subsidiary or the change in designation from Restricted
Subsidiary to Unrestricted Subsidiary which owns a Principal
Property shall not be restricted.
Section 1007. Waiver of Certain Covenants. The
Company may omit in respect of any series of Securities, in any
particular instance, to comply with any covenant or condition set
forth in Section 1006, if before or after the time for such
compliance the Holders of at least a majority in principal amount
of the Securities at the time Outstanding of such series shall,
by Act of such Securityholders, either waive such compliance in
such instance or generally waive compliance with such covenant or
condition, provided, however, that the Holders of at least 75% in
principal amount of the Securities at the time Outstanding of
such series shall be required to extend the time for payment of
any scheduled payment of interest on the Securities of such
series before such payment has become due (which extension shall
in no event be for a period longer than three years from the date
such payment of interest would otherwise be due), and provided,
further, that no waiver by the Holders of the Securities of such
series shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. The Company
may reserve the right to redeem and pay before the Scheduled
Maturity Date all or any part of the Securities of any series,
either by optional redemption, sinking or purchase fund or
analogous obligation or otherwise, by provision therefor in the
form of Security for such series established and approved
pursuant to Section 202 or 203, and on such terms as are
specified in such form or in the indenture supplemental hereto
with respect to Securities of such series as provided in
Section 301. Redemption of Securities of any series shall be made
in accordance with the terms of such Securities and, to the
extent that this Article does not conflict with such terms, the
succeeding Sections of this Article.
Section 1102. Election To Redeem; Notice to Trustee.
In case of any redemption at the election of the Company of fewer
than all of the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed.
Section 1103. Selection by Trustee of Securities To Be
Redeemed. If fewer than all the Securities of any series are to
be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate, which may include provision for
the selection for redemption of portions of the principal of
Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series.
Unless otherwise provided in the terms of a particular series of
Securities, the portions of the principal of Securities so
selected for partial redemption shall be equal to the minimum
authorized denomination of the Securities of such series, or an
integral multiple thereof, and the principal amount which remains
outstanding shall not be less than the minimum authorized
denomination for Securities of such series.
-45-
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal of
such Security which has been or is to be redeemed.
Section 1104. Notice of Redemption. Notice of
redemption shall be given by first-class mail, postage prepaid,
mailed not fewer than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at
his or her address appearing in the Security Register on the
applicable Record Date.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the
Securities to be redeemed, from the Holder to whom the notice is
given and that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of the
same series in the aggregate principal amount equal to the
unredeemed portion thereof will be issued in accordance with
Section 1107;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, and that
interest, if any, thereon shall cease to accrue from and after
said date;
(5) the place where such Securities are to be surrendered
for payment of the Redemption Price, which shall be the office or
agency maintained by the Company in the Place of Payment pursuant
to Section 1002 hereof; and
(6) that the redemption is on account of a sinking or
purchase fund, or other analogous obligation, if that be the
case.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 1105. Deposit of Redemption Price. On or
prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption
Price of all the Securities which are to be redeemed on that
date.
Section 1106. Securities Payable on Redemption Date.
Notice of Redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
and from and after such date (unless the Company shall default in
the payment of the Redemption Price) such Securities shall cease
to bear interest. Upon surrender of such Securities for
redemption in accordance with the notice, such Securities shall
be paid
-46-
by the Company at the Redemption Price. Any installment of interest due
and payable on or prior to the Redemption Date shall be payable to the
Holders of such Securities registered as such on the relevant Record Date
according to the terms and the provisions of Section 307 above.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid, bear interest from the Redemption Date at the rate
borne by the Security, or as otherwise provided in such Security.
Section 1107. Securities Redeemed in Part. Any
Security that is to be redeemed only in part shall be surrendered
at the office or agency maintained by the Company in the Place of
Payment pursuant to Section 1002 hereof with respect to that
series (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge and
at the expense of the Company, a new Security or Securities of
the same series and Scheduled Maturity Date, of any authorized
denomination as requested by such Holders in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
Section 1108. Provisions with Respect to Any Sinking
Funds. Unless the form or terms of any series of Securities
shall provide otherwise, in lieu of making all or any part of any
mandatory sinking fund payment with respect to such series of
Securities in cash, the Company may at its option (1) deliver to
the Trustee for cancellation any Securities of such series
theretofore acquired by the Company, or (2) receive credit for
any Securities of such series (not previously so credited)
acquired or redeemed by the Company (other than through operation
of a mandatory sinking fund) and theretofore delivered to the
Trustee for cancellation, and if it does so then (i) Securities
so delivered or credited shall be credited at the applicable
sinking fund Redemption Price with respect to Securities of such
series, and (ii) on or before the 60th day next preceding each
sinking fund Redemption Date with respect to such series of
Securities, the Company will deliver to the Trustee (A) an
Officers' Certificate specifying the portions of such sinking
fund payment to be satisfied by payment of cash and by the
delivery or credit of Securities of such series acquired or
redeemed by the Company, and (B) such Securities, to the extent
not previously surrendered. Such Officers' Certificate shall also
state that the Securities for which the Company elects to receive
credit have not been previously so credited and were not acquired
by the Company through operation of the mandatory sinking fund,
if any, provided with respect to such Securities and are not
required to be delivered to the Trustee pursuant to Section 309
and shall also state that no Event of Default with respect to
Securities of such series has occurred and is continuing. All
Securities so delivered to the Trustee shall be canceled by the
Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or
optional) with respect to any series of Securities made in cash
plus any unused balance of any preceding sinking fund payments
with respect to Securities of such series made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of
Securities, that cash shall be applied by the Trustee on the
sinking fund Redemption Date with respect to Securities of such
series next following the date of such payment to the redemption
of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series,
together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The
Trustee shall select, in the manner provided in Section 1103, for
redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that
cash and shall thereupon cause notice of redemption of the
Securities of such series for the sinking fund to be given in the
manner provided in Section 1104 (and with the effect provided in
Section 1106) for the redemption of Securities in part at the
option of the Company. Any sinking fund moneys not so applied or
allocated by the Trustee to the redemption of Securities of such
series shall be added to the next cash sinking fund
-47-
payment with respect to Securities of such series received by the Trustee
and, together with such payment, shall be applied in accordance with
the provisions of this Section 1108. Any and all sinking fund
moneys with respect to Securities of any series held by the
Trustee at the Maturity of Securities of such series, and not
held for the payment or redemption of particular Securities of
such series, shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose,
to the payment of the principal of the Securities of such series
at Maturity.
On or before each sinking fund Redemption Date provided
with respect to Securities of any series, the Company shall pay
to the Trustee in cash a sum equal to all accrued interest, if
any, to the date fixed for redemption on Securities to be
redeemed on such sinking fund Redemption Date pursuant to this
Section 1108.
The Trustee shall not redeem any Securities with
sinking fund moneys or give any notice of redemption of
Securities by operation of the applicable sinking fund during the
continuance of a default in payment of interest on Securities of
such series or of any Event of Default with respect to such
series, except that if the notice of redemption of any Securities
shall theretofore have been mailed in accordance with the
provisions hereof, the Trustee shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this
Article Eleven. Except as aforesaid, any moneys in the sinking
fund with respect to Securities of any series at the time when
any such default or Event of Default with respect to such series
shall occur, and any moneys thereafter paid into such sinking
fund shall, during the continuance of such default or Event of
Default with respect to such series, be held as security for the
payment of all Securities of such series; provided, however, that
in case such default or Event of Default with respect to such
series shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next sinking fund
payment date on which such moneys may be applied pursuant to the
provisions of this Section 1108.
ARTICLE TWELVE
Repayment at Option of Holders
Section 1201. Applicability of Article. Repayment of
Securities of any series before their Scheduled Maturity Date at
the option of Holders thereof shall be made in accordance with
the terms of such Securities and (except as otherwise specified
as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Section 1202. Repayment of Securities. Securities of
any series subject to repayment in whole or in part at the option
of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the
principal amount thereof, together with interest thereon accrued
to the Repayment Date specified in the terms of such Securities.
On or before the Repayment Date, the Company will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money sufficient to pay the
Repayment Price of all the Securities which are to be repaid
-48-
on such date.
Section 1203. Exercise of Option. Securities of any
series subject to repayment at the option of the Holders thereof
will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder,
any Security so providing for such repayment, with the "Option to
Elect Repayment" form on the reverse of such Security duly
completed by the Holder, must be received by the Company at the
Place of Payment therefor specified in the terms of such Security
(or at such other place or places of which the Company shall from
time to time notify the Holders of such Securities) not earlier
than 30 days nor later than 15 days prior to the Repayment Date.
If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of
$1,000 unless otherwise specified in the terms of such Security,
and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be
repaid must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may
not be repaid in part, if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at
the option of the Holder thereof, exercise of the repayment
option by the Holder shall be irrevocable unless waived by the
Company.
Section 1204. When Securities Presented for Repayment
Become Due and Payable. If Securities of any series providing
for repayment at the option of the Holders thereof shall have
been surrendered as provided in this Article and as provided by
the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless
the Company shall default in the payment of such Securities on
such Repayment Date) interest on such Securities or the portions
thereof, as the case may be, shall cease to accrue.
Section 1205. Securities Repaid in Part. Upon
surrender of any Security which is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge
and at the expense of the Company, a new Security or Securities
of the same series and Scheduled Maturity Date, of any authorized
denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal
of such Security so surrendered which is not to be repaid.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested; all as of the day and
year first above written.
PepsiCo, Inc.,
By:/s/ Randall C. Barnes
-----------------------
RANDALL C. BARNES
Senior Vice President
and Treasurer
Attest:
/s/ Edward V. Lahey, Jr.
-------------------------
EDWARD V. LAHEY, JR.
Senior Vice President, General
Counsel and Secretary
The Chase Manhattan Bank
(National Association),
By: R.J. Halleran
------------------------
R.J. HALLERAN
Second Vice President
Attest:
/s/ Mary Lewicki
- ----------------------
MARY LEWICKI
Corporate Trust Officer
-49-
State of New York,
County of New York, ss.:
On the 14th day of December before me personally came
R.J. Halleran, to me known, who, being by me duly sworn, did depose and
say that he resides at Brooklyn, New York; that he is Second Vice President
of The Chase Manhattan Bank (National Association), one of the parties
described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal
affixed to that instrument is such corporate seal; that it was
affixed by authority of the board of directors of said
corporation; and that he signed his name thereto by like
authority.
Name
Delia K.Benjamin
Notary Public, State of New York
No. 24-4659667
Qualified in Kings County
Commisssion Expires April 30, 1995
[Notarial Seal]
-50-
State of New York,
County of Westchester, ss.:
On the 14th day of December, 1994 before me personally came
Randall C. Barnes, to me known, who, being by me duly sworn, did depose and
say that he resides at 700 Anderson Hill Rd., Purchase, NY;
that he is the Senior Vice President and Treasurer of PepsiCo, Inc.,
one of the parties described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal
affixed to that instrument is such corporate seal; that it was
affixed by authority of the board of directors of said
corporation; and that he signed his name thereto by like
authority.
Name
Cathleen Gold
Notary Public, State of New York
No. 5005541
Qualified in Westchester County
My Commission Expires Dec. 14, 1996
[Notarial Seal]
-51-
[FORM OF FACE OF NOTE]
No.
PEPSICO, INC.
[NON-SINKING FUND] NOTE DUE
PEPSICO, INC., a corporation duly organized and existing
under the laws of the State of North Carolina (herein called the
"Company", which term includes any successor corporation under
the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to ____ or to [his] [her] [its]
registered assigns, the principal sum of ___ on ____, 19__, and
to pay interest on said principal sum semi-annually on ___ and
___ of each year, commencing, ________ 19 __, at the rate of __%
per annum from ____, 19__, or from the most recent date in
respect of which interest has been paid or duly provided for,
until payment of the principal sum has been made or duly provided
for. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in
the Indenture, be paid to the person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of
business on the Record Date for such Interest Payment Date, which
shall be the fifteenth day (whether or not a New York Business
Day) next preceding such Interest Payment Date. Any such
interest that is payable but is not so punctually paid or duly
provided for shall forthwith cease to be payable to the
registered Holder on such Record Date and may either be paid to
the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of
Notes not earlier than 10 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Notes may be listed and upon such notice as may be
required by such exchange, if such manner of payment shall be
deemed practical by the Trustee, all as more fully provided in
the Indenture.
Payment of the principal of and interest on this Note will
be made at the Place of Payment in such coin or currency of
_________ as at the time of payment is legal tender for payment
of public and private debts; provided, however, that payments of
interest may be made at the option of the Company by checks
mailed to the addresses of the persons entitled thereto as such
addresses shall appear in the Security Register.
-52-
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place.
Unless one of the certificates of authentication hereon has
been executed by or on behalf of the Trustee by manual signature,
this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed by manual or facsimile signature under its
corporate seal or a facsimile thereof.
Dated:
PEPSICO, INC.
By: ----------------------
Authorized Officer
By: ----------------------
Authorized Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
By: --------------------
Authorized Officer
-53-
[FORM OF ALTERNATIVE CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
By: _______________________
Authorized Officer
By: _______________________
Authorized Officer
-54-
[FORM OF REVERSE OF NOTE]
PEPSICO, INC.
NOTE DUE
This Note is one of a duly authorized issue of debentures,
notes, or other evidences of indebtedness of the Company (herein
called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of December 14, 1994 (herein
called the "Indenture"), between the Company and The Chase
Manhattan Bank (National Association), as Trustee (herein called
the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights thereunder of the Company, the Trustee, and
the Holders of the Securities, the terms upon which the
Securities are, and are to be, authenticated and delivered, and
the definitions of capitalized terms used herein and not
otherwise defined herein. The Securities may be issued in one or
more series, which different series may be issued in various
aggregate principal amounts, may be denominated in different
currencies, may mature at different times, may bear interest (if
any) at different rates (which rates may be fixed or variable),
may be subject to different redemption provisions (if any), may
be subject to different sinking, purchase, or analogous funds (if
any), may be subject to different covenants and Events of
Default, and may otherwise vary as provided in the Indenture.
This Note is one of a series of Notes of the Company designated
as set forth on the face hereof (herein called the "Notes"),
limited in aggregate principal amount to ___________.
[The Notes may not be redeemed by the Company prior to
maturity.]
[The Notes are subject to redemption upon not less than 30
nor more than 60 days' notice by mail (1) on ________ in any year
commencing with the year ________ and ending with the year
_______ through operation of the sinking fund for the series at a
Redemption Price equal to 100% of the principal amount thereof,
and (2) at any time, in whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as
percentages of the principal amount):
If redeemed during the 12-month period beginning each of the
years indicated:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Redemption
Years Price Years Price
____________________________________________________
</TABLE>
and thereafter at a Redemption Price equal to __% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest
installments whose Scheduled Maturity Date is on or prior to such
Redemption Date will be payable to the Holders of record of such
Notes or one or more Predecessor Securities at the close of
business on the applicable Record Dates referred on the face
hereof.]
-55-
[Notwithstanding the foregoing, the Company may not, prior
to __, 19__, redeem any Notes as contemplated by clause (2) of
the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly,
of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted accounting
practices,) of less than __% per annum.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series under the Indenture at
any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected
by such amendment or modification. The Indenture also contains
provisions permitting the Holders of a majority in aggregate
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
The Indenture contains provisions setting forth certain
conditions to the institution of proceedings by Holders of
Securities with respect to the Indenture or for any remedy under
the Indenture.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal amount hereof may be declared
due and payable in the manner and with the effect provided in the
Indenture.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registerable in the Security Register, upon surrender of this
Note for registration of transfer at the office or agency of the
Company in any Place of Payment duly endorsed, or accompanied by
a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without
coupons in denominations of and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations
as requested by the Holder surrendering the same.
-56-
No service charge shall be made for any such registration or
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or
not this Note is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
-57-
[FORM OF REVERSE OF NOTE]
PEPSICO, INC.
SINKING FUND NOTE DUE
This Note is one of a duly authorized issue of debentures,
notes, or other evidences of indebtedness of the Company (herein
called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of
December 14, 1994 (herein called the "Indenture"), between the
Company and The Chase Manhattan Bank (National Association), as
Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a statement of the respective rights thereunder of the Company,
the Trustee, and the Holders of the Securities, the terms upon
which the Securities are, and are to be, authenticated and
delivered, and the definition of capitalized terms used herein
and not otherwise defined herein. The Securities may be issued
in one or more series, which different series may be issued in
various aggregate principal amounts, may be denominated in
different currencies, may mature at different times, may bear
interest (if any) at different rates (which rates may be fixed or
variable), may be subject to different redemption provisions (if
any), may be subject to different sinking, purchase, or analogous
funds (if any), may be subject to different covenants and Events
of Default, and may otherwise vary as provided in the Indenture.
This Note is one of a series of Notes of the Company designated
as set forth on the face hereof (herein called the "Notes"),
limited in aggregate principal amount to ______.
[The Notes may not be redeemed by the Company prior to
maturity except pursuant to the sinking fund.]
[The Notes are subject to redemption upon not less than 30
nor more than 60 days' notice by mail (1) on ______ in any year
commencing with the year 19__ and ending with the year 19__
through operation of the sinking fund for the series at a
Redemption Price equal to 100% of the principal amount thereof,
and (2) at any time, in whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as
percentages of the principal amount):
-58-
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
by________________________
Authorized Officer
[FORM OF ALTERNATIVE CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
by_________________________
Authenticating Agent
by_________________________
Authorized Officer
-59-
If redeemed during the 12-month period beginning each of the
years indicated:
<TABLE>
<S> <C> <C> <C>
Redemption
Years Price Years Price
_______________________________________________________________
</TABLE>
and thereafter at a Redemption Price equal to __ % of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest
installments whose Scheduled Maturity Date is on or prior to such
Redemption Date will be payable to the Holders of record of such
Notes or one or more Predecessor Securities at the close of
business on the applicable Record Dates referred to on the face
hereof.]
[Notwithstanding the foregoing, the Company may not redeem
any Notes as contemplated by clause (2) of the preceding
paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in
accordance with generally accepted accounting practice) of less
than __ % per annum.]
The sinking fund provides for the redemption on ____ in each
year beginning with the year ____ and ending with the year ____
of not less than ____ in principal amount of Notes ("mandatory
sinking fund"). At its option, the Company may make an
additional sinking fund payment on or before the due date of any
mandatory sinking fund payment to redeem up to an additional
principal amount of Notes on any such date. The option to make
such sinking fund payments in addition to the mandatory sinking
fund is not cumulative and to the extent not availed of in any
year will terminate.
At its option, the Company may credit against any mandatory
sinking fund payment the principal amount of Notes acquired or
redeemed by it (other than with mandatory sinking fund payments)
and not previously credited.
In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon cancelation hereof.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series under the
-60-
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series
to be affected by such amendment or modification. The Indenture
also contains provisions permitting the Holders of a majority in
aggregate principal amount of the all Securities of each series
at the time Outstanding, on behalf of the Holders of Securities
of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note
issued upon registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
The Indenture contains provisions setting forth certain
conditions to the institution of proceedings by Holders of
Securities with respect to the Indenture or for any remedy under
the Indenture.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal amount hereof may be declared
due and payable in the manner and with the effect provided in the
Indenture.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registerable in the Security Register, upon surrender of this
Note for registration of transfer at the office or agency of the
Company in any Place of Payment duly endorsed, or accompanied by
a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without
coupons in denominations of ____ and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a
like aggregate principal amount of Notes of different authorized
denominations as requested by the Holder surrendering the same.
No service charge shall be made for any such registration or
transfer or
exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in
connection therewith.
The Company, the Trustee, and any agent of the Company or
the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or
not this Note is overdue, and neither the Company, the Trustee,
nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
-61-
Exhibit 4(c)
Fixed Rate Note
REGISTERED REGISTERED
No. $
CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer or exchange or for payment, then this certificate
shall be registered in the name of Cede & Co. (or such other name
as may be requested by an authorized representative of The
Depository Trust Company), and ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL.
Unless and until this certificate is exchanged in whole or
in part for Notes in certificated form, this certificate may not
be transferred except as a whole by The Depository Trust Company
to a nominee thereof or by a nominee thereof to The Depository
Trust Company or another nominee of The Depository Trust Company
or by The Depository Trust Company or any nominee to a successor
depository or nominee of such successor depository.
PEPSICO, INC.
FIXED RATE NOTE
ISSUE PRICE:
INTEREST RATE: MATURITY DATE:
INTEREST ACCRUES FROM: INTEREST PAYMENT DATES:
REDEEMABLE: SPECIFIED CURRENCY:
Yes ( ) No ( )
INITIAL REDEMPTION DATE: APPLICABILITY OF MODIFIED
PAYMENT UPON ACCELERATION:
INITIAL REDEMPTION
PERCENTAGE: If yes, state Issue Price:
ANNUAL REDEMPTION
PERCENTAGE REDUCTION: SINKING FUND:
OPTION TO ELECT REPAYMENT: APPLICABILITY OF ANNUAL
INTEREST
Yes ( ) No ( ) PAYMENTS:
OPTIONAL REPAYMENT
DATE(S):
OPTIONAL REPAYMENT
PRICE(S):
PepsiCo, Inc., a North Carolina corporation (together with
its successors and assigns, the "Issuer"), for value received,
hereby promises to pay to Cede & Co., or the registered assignees
thereof, the principal sum of ______________ dollars on the
Scheduled Maturity Date specified above (except to the extent
redeemed or repaid prior to such Scheduled Maturity Date) and to
pay interest thereon at the Interest Rate per annum specified
above from the Interest Accrual Date specified above until the
principal hereof is paid or duly made available for payment
(except as provided below) on the Scheduled Maturity Date, such
interest payments to commence on the Interest Payment Date next
succeeding the Interest Accrual Date specified above, and on the
Scheduled Maturity Date (or any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding
Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date
to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date; and provided,
further, that if this Note is subject to "Annual Interest
Payments", interest payments shall be made annually in arrears.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided
for, from the Interest Accrual Date, until the principal hereof
has been paid or duly made available for payment (except as
provided below). The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will, subject to
certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days
prior to an Interest Payment Date (whether or not a New York
Business Day) (each such date a "Record Date"); provided,
however, that interest payable on the Maturity Date (or any
redemption or repayment date) will be payable to the person in
whose name this Note is registered on such date.
Payment of the principal and any premium and interest due on
this Note at the Scheduled Maturity Date (or any redemption or
repayment date) will be made in immediately available funds upon
surrender of this Note at the office or agency of the Trustee, as
defined on the reverse hereof, maintained for that purpose in The
City of New York, or at such other paying agency as the Issuer
may determine. Payment of the principal of and premium, if any,
and interest on this Note will be made in the currency indicated
above; provided, however, that U.S. dollar payments of interest,
other than interest due at maturity or any date of redemption or
repayment, will be made by U.S. dollar check mailed to the
address of the person entitled thereto as such address shall
appear in the Security Register on the applicable Record Date. A
Holder of U.S. $10,000,000 or more in aggregate principal amount
of Notes having the same Interest Payment Date will be entitled
to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer
of immediately available funds if appropriate wire transfer
instructions have been received by the Trustee in writing not
less than 15 calendar days prior to the applicable Interest
Payment Date. If this Note is denominated in a Specified
currency, payments of interest hereon will be made by wire
transfer of immediately available funds to an account maintained
by the Holder hereof with a bank located outside the United
States, if appropriate wire transfer instructions have been
received by the Trustee in writing not less than 15 calendar days
prior to the applicable Interest Payment Date. If such wire
transfer instructions are not so received, such interest payments
will be made by check payable in such Specified Currency mailed
to the address of the person entitled thereto as such address
shall appear in the Security Register on the applicable Record
Date.
Reference is hereby made to the further provisions of this
Note set forth after the caption reading "Further Provisions of
Note", which further provisions shall for all purposes have the
same effect as if set forth at this place. In the event of an
inconsistency between any provision set forth above and any
provision set forth in "Further Provisions of Note", the
description above shall govern.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit
under the Indenture, as defined in Further Provisions of Note, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be
duly executed
under its corporate seal.
DATED: PEPSICO, INC.
By:--------------------
Authorized Officer
By:----------------------
Authorized Officer
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Trustee
By:_________________________
Authorized Officer
[FURTHER PROVISIONS OF NOTE]
This Note is one of a duly authorized issue of Notes having
maturities not less than nine months from the date of issue (the
"Notes"). The Notes are issuable under an Indenture, dated as of
December 14, 1994 (herein called the "Indenture"), between the
Issuer and The Chase Manhattan Bank (National Association), as
Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights,
duties, and immunities of the Issuer, the Trustee, and Holders of
the Notes, the terms upon which the Notes are, and are to be,
authenticated and delivered, and the definitions of capitalized
terms used herein and not otherwise defined herein. The terms of
individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Indenture. To the extent not
inconsistent herewith, the terms of the Indenture are hereby
incorporated by reference herein.
The Notes will not be subject to any sinking fund and,
unless otherwise provided on the face hereof in accordance with
the provisions of the following two paragraphs, will not be
redeemable or subject to repayment at the option of the holder
prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Scheduled Maturity Date.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or
after the Initial Redemption Date specified on the face hereof on
the terms set forth on the face hereof, together with interest
accrued and unpaid hereon to the date of redemption (except as
provided below). If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary
of the Initial Redemption Date by the Annual Redemption
Percentage Reduction specified on the face hereof until the
redemption price of this Note is 100% of the principal amount
hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). Notice of
redemption shall be mailed to the registered Holders of the Notes
designated for redemption at their addresses as the same shall
appear on the Security Register not less than 30 nor more than 60
days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the
name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the
holder prior to the Maturity Date. If so indicated on the face of
this Note, this Note will be subject to repayment at the option
of the holder on the Optional Repayment Date or Dates specified
on the face hereof on the terms set forth herein. On any
Optional Repayment Date, this Note will be repayable in whole or
in part in increments of ________ or, if this Note is denominated
in ____________, in increments of ___ units of such Specified
Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination
hereof) at the option of the holder hereof at a price equal to
100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as
provided below). For this Note to be repaid at the option of the
holder hereof, the Trustee must receive at its Corporate Trust
Office in the Borough of Manhattan, The City of New York, at
least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the
United States setting forth the name of the Holder of this Note,
the principal amount hereof, the certificate number of this Note
or a description of this Note's tenor and terms, the principal
amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby, and a guarantee that this
Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Trustee not later than
the fifth New York Business Day after the date of such telegram,
telex, facsimile transmission, or letter; provided, that such
telegram, telex, facsimile transmission, or letter shall only be
effective if this Note and form duly completed are received by
the Trustee by such fifth New York Business Day. Exercise of such
repayment option by the holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a new Note or
Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date
(or any earlier redemption or repayment date), as the case may
be. Interest payments for this Note will be computed and paid on
the basis of a 360-day year of twelve 30-day months. If any
Interest Payment Date or Principal Payment Date (including the
Maturity Date) on this Note would fall on a day that is not a New
York Business Day, the payment of interest and/or principal (and
premium, if any) that would otherwise be payable on such date
will be postponed to the next succeeding New York Business Day,
and no additional interest on such payment will accrue as a
result of such postponement.
In the case where the Interest Payment Date or the Scheduled
Maturity Date (or any redemption or repayment date) does not fall
on a New York Business Day, payment of interest, premium, if any,
or principal otherwise payable on such date need not be made on
such date, but may be made on the next succeeding New York
Business Day with the same force and effect as if made on such
Interest Payment Date or on the Scheduled Maturity Date (or any
redemption or repayment date), and no interest shall accrue for
the period from and after such Interest Payment Date or the
Scheduled Maturity Date (or any redemption or repayment date) to
such next succeeding New York Business Day.
This Note and all the obligations of the Issuer hereunder
are direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all
other existing and future unsecured and unsubordinated
indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form,
without coupons, and, if denominated in U.S. dollars, is issuable
only in denominations of U.S. $ ______ and any integral multiple
of U.S. $1,000 in excess thereof. If this Note is denominated in
a Specified Currency, then, unless a higher minimum denomination
is required by applicable law, it is issuable only in
denominations of the equivalent of U.S. $ ________ (rounded down
to an integral multiple of 1,000 units of such Specified
Currency), or any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency, as determined
by reference to the noon dollar buying rate in New York City for
cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on
the New York Business Day immediately preceding the date of
issuance.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency
and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such
currency or for the settlement of transactions by public
institutions within the international banking community, then the
Issuer will be entitled to satisfy its obligations to the Holder
of this Note by making such payments in U.S. dollars on the basis
of the noon buying rate in the City of New York for cable
transfers of such Specified Currency published by the Federal
Reserve Bank of New York (the "Market Exchange Rate") on the
second New York Business Day prior to the applicable payment date
or, if the Market Exchange Rate in effect on such date cannot by
readily determined, then on the basis of the highest bid
quotation (assuming European-style quotation -- i.e., Specified
Currency per U.S. dollar) on the second New York Business Day
prior to the applicable payment date from three recognized
foreign exchange dealers in the City of New York (one of which
may be the Company) for the purchase of the aggregate amount of
the Specified Currency payable on such payment date, for
settlement on such payment date, and at which the applicable
dealer timely commits to execute a contract. Any payment made
under such circumstances in U.S. dollars where the required
payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
If payments of principal, premium, if any, or interest, if
any, with respect to this Note are required to be made in a
composite currency and the composition of such composite currency
is at any time altered (whether by the addition, elimination,
combination, or subdivision of one or more components, by
adjustment of the ratio of any component to the composite unit,
or by any combination of such events), then the company will be
entitled to satisfy its payment obligations hereunder by making
such payments in such composite currency as altered.
All determinations referred to above made by the Issuer or
its agent shall be at its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted
by law for all purposes and binding on the Holder of this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Issuer and the rights of the
Holders of the Notes of each series under the Indenture at any
time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding of each series to be affected by such
amendment or modification. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal
amount of the Notes of each series at the time Outstanding, on
behalf of the Holders of all Notes of such series, to waive
compliance by the Issuer with certain provisions of the Indenture
and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Note.
The Indenture contains provisions setting forth certain
conditions to the institution of proceedings by Holders of Notes
with respect to the Indenture or for any remedy under the
Indenture.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal amount hereof may be declared
due and payable in the manner and with the effect provided in the
Indenture.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration," then (i) if the principal
hereof is declared to be due and payable as referred to in the
preceding paragraph, the amount of principal due and payable with
respect to this Note shall be limited to the aggregate principal
amount hereof multiplied by the sum of the Issue Price specified
on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from
the Original Issue Date to the date of declaration, which
amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting
principles in effect on the date of declaration), (ii) for the
purpose of any vote of Securityholders taken pursuant to the
Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due
and payable hereon, calculated as set forth in clause (i) above,
if this Note were declared to be due and payable on the date of
any such vote and (iii) for the purpose of any vote of
Securityholders taken pursuant to the Indenture following the
acceleration of payment of this Note, the principal amount hereof
shall equal the amount of principal due and payable with respect
to this Note, calculated as set forth in clause (i) above.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and interest on this Note at the times,
place, and rate, and in the coin or currency, herein prescribed.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the
principal of and premium, if any, and interest on this Note as
herein provided in the City of New York, and an office or agency
in said City of New York for the registration of transfer or
exchange of the Notes. The Issuer may designate other agencies
for the payment of said principal, premium, if any, and interest
at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note
for registration of transfer at the Corporate Trust Office or any
other applicable Place of Payment, duly endorsed, or accompanied
by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed, by the Holder
hereof or his or her attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any such registration or
transfer or exchange, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
The Issuer, the Trustee, and any agent of the Issuer or the
Trustee may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving
payments as herein provided and for all other purposes, whether
or not this Note is overdue, and neither the Issuer, the Trustee,
nor any such agent shall be affected by notice to the contrary.
This Note shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT
.................Custodian.......................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................................
(State)
Additional abbreviations may also be used though not in the above
list.
_________________
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
:
:
- -----------------------------------------------------------------
- -
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such
note on the books of the Issuer, with full power of substitution
in the premises.
Dated:
NOTE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Issuer to repay the within Note (or portion thereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest to the Optional Repayment
Date, to the undersigned at
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note
is to be repaid, specify the portion thereof which the holder
elects to have repaid: ___________________; and specify the
denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in
the absence of any such specification, one such Note will be
issued for the portion not being repaid):
____________________________.
Dated: ____________________
_______________________________________
The signature on this Option to Elect Repayment must correspond
with the name as written upon the face of the within instrument in
every particular without alteration or enlargement.
Exhibit 4(d)
Floating Rate Note
REGISTERED REGISTERED
No. $
CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer or exchange or for payment, then this certificate
shall be registered in the name of Cede & Co. (or such other name
as may be requested by an authorized representative of The
Depository Trust Company), and ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest
herein.
Unless and until this certificate is exchanged in whole or
in part for Notes in certificated form, this certificate may not
be transferred except as a whole by The Depository Trust Company
to a nominee thereof or by a nominee thereof to The Depository
Trust Company or another nominee of The Depository Trust Company
or by The Depository Trust Company or any nominee to a successor
depository or nominee of such successor depository.
PEPSICO, INC.
FLOATING RATE NOTE
ISSUE PRICE: ORIGINAL ISSUE DATE: MATURITY DATE:
BASE RATE: SPREAD (PLUS OR SPREAD
MINUS) MULTIPLIER:
INTEREST ACCRUES INTEREST PAYMENT INTEREST RESET
FROM: PERIOD: PERIOD:
INDEX MATURITY: INITIAL INTEREST INITIAL INTEREST
RESET DATE: RATE:
INTEREST PAYMENT INTEREST DETERMIN- INTEREST RESET DATES:
DATES: ATION DATES:
MINIMUM INTEREST MAXIMUM INTEREST SPECIFIED CURRENCY:
RATE: RATE:
REDEEMABLE: OPTION TO ELECT CALCULATION AGENT:
YES ____ NO____ REPAYMENT:
YES____ NO____
INITIAL REDEMP- OPTIONAL REPAYMENT ALTERNATIVE RATE
TION DATE: DATE(S): EVENT SPREAD:
INITIAL REDEMP- OPTIONAL REPAY-
TION PERCENTAGE: MENT PRICE(S):
ANNUAL REDEMP- SINKING FUND: ORIGINAL YIELD TO
TION PERCENTAGE MATURITY:
REDUCTION:
PepsiCo, Inc., a North Carolina corporation (together with
its successors and assigns, the "Issuer"), for value received,
hereby promises to pay to Cede & Co., or the registered assignees
thereof, the principal sum of _______________dollars on the
Scheduled Maturity Date specified above (except to the extent
redeemed or repaid prior to such Scheduled Maturity Date) and to
pay interest thereon, from the Interest Accrual Date specified
above, at a rate per annum equal to the Initial Interest Rate
specified above until the Initial Interest Reset Date specified
above, and thereafter at a rate per annum determined in
accordance with the Formula Rate set forth above, or to the
extent not specified above, as determined in accordance with the
provisions set forth under the Further Provisions of Note hereof
until the principal hereof is paid or duly made available for
payment. The Issuer will pay interest in arrears monthly,
quarterly, semiannually, or annually as specified above on each
Interest Payment Date (as specified above), such interest
payments to commence on the first Interest Payment Date next
succeeding the Interest Accrual Date specified above, and on the
Scheduled Maturity Date (or any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding
Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date
to the registered Holder of this Note on the Record Date with
respect to such second Interest Payment Date; and provided,
further, that if an Interest Payment Date or the Maturity Date or
redemption or repayment date would fall on a day that is not a
Business Day, as defined under the Further Provisions of Note
hereof, such Interest Payment Date, Scheduled Maturity Date or
redemption or repayment date shall be the following day that is a
New York Business Day.
Interest on this Note will accrue from the most recent date
to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from the Interest
Accrual Date, until the principal hereof has been paid or duly
made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor
Notes) is registered at the close of business on the date 15
calendar days prior to an Interest Payment Date (whether or not a
New York Business Day) (each such date a "Record Date");
provided, however, that interest payable on the Scheduled
Maturity Date (or any redemption or repayment date) will be
payable to the person in whose name this Note is registered on
such date.
Payment of the principal and any premium and interest due on
this Note at the Scheduled Maturity Date (or any redemption or
repayment date) will be made in immediately available funds upon
surrender of this Note at the Corporate Trust Office of the
Trustee, as defined on the reverse hereof, maintained for that
purpose in The City of New York, or at such other paying agency
as the Issuer may determine. Payment of the principal of and
premium, if any, and interest on this Note will be made in the
currency indicated above; provided, however, that U.S. dollar
payments of interest, other than interest due at maturity or any
date of redemption or repayment, will be made by U.S. dollar
check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register on the
applicable Record Date. A Holder of U.S. $10,000,000 or more in
aggregate principal amount of Notes having the same Interest
Payment Date will be entitled to receive payments of interest,
other than interest due at maturity or any date of redemption or
repayment, by wire transfer of immediately available funds if
wire transfer instructions have been received by the Trustee in
writing not less than 15 calendar days prior to the applicable
Interest Payment Date. If this Note is denominated in a currency
other than U.S. dollars, payments of Interest hereon will be made
by wire transfer of immediately available funds to an account
maintained by the Holder hereof with a bank located outside the
United States, if appropriate wire transfer instructions have
been received by the Trustee in writing not less than 15 calendar
days prior to the applicable Interest Payment Date. If such wire
transfer instructions are not so received, such interest payments
will be made by check payable in such Specified Currency marked
to the address of the person entitled thereto as such address
shall appear in the Security Register on the applicable Record
Date.
Reference is hereby made to the further provisions of this
Note set forth after the caption reading "Further Provisions of
Note", which further provisions shall for all purposes have the
same effect as if set forth at this place. In the event of an
inconsistency between any provision set forth above and any
provision set forth in "Further Provisions of Note", the
description above shall govern.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to under the Further Provisions
of Note hereof by manual signature, this Note shall not be
entitled to any benefit under the Indenture, as defined under the
Further Provisions of Note hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be
duly executed under its corporate seal.
DATED: PEPSICO, INC.
By:------------------
Authorized Officer
By:-------------------
Authorized Officer
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as Trustee
By:
_________________________________
Authorized Officer
[FURTHER PROVISIONS OF NOTE]
This Note is one of a duly authorized issue of Notes having
maturities not less than nine months from the date of issue (the
"Notes"). The Notes are issuable under an Indenture, dated as of
December 14, 1994 (herein called the "Indenture"), between the
Issuer and The Chase Manhattan Bank (National Association), as
Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and the Holders
of the Notes, the terms upon which the Notes are, and are to be,
authenticated and delivered, and the definitions of capitalized
terms used herein and not otherwise defined herein. The terms of
individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Indenture. To the extent not
inconsistent herewith, the terms of the Indenture are hereby
incorporated by reference herein.
The Notes will not be subject to any sinking fund and,
unless otherwise provided on the face hereof in accordance with
the provisions of the following two paragraphs, will not be
redeemable or subject to repayment at the option of the holder
prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Scheduled Maturity Date.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or
after the Initial Redemption Date specified on the face hereof on
the terms set forth on the face hereof, together with interest
accrued and unpaid hereon to the date of redemption. If this Note
is subject to "Annual Redemption Percentage Reduction," the
Initial Redemption Percentage indicated on the face hereof will
be reduced on each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction specified on the face
hereof until the redemption price of this Note is 100% of the
principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption. Notice of redemption
shall be mailed to the registered Holders of the Notes designated
for redemption at their addresses as the same shall appear on the
Security Register not less than 30 nor more than 60 days prior to
the date fixed for redemption, subject to all the conditions and
provisions of the Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the
Holder prior to the scheduled Maturity Date. If so indicated on
the face of this Note, this Note will be subject to repayment at
the option of the Holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole
or in part in increments of $_____ or, if this Note is
denominated in _________________ in increments of _____ units of
such Specified Currency (provided that any remaining principal
amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the holder hereof at a
price equal to 100% of the principal amount to be repaid,
together with interest accrued and unpaid hereon to the date of
repayment. For this Note to be repaid at the option of the Holder
hereof, the Trustee must receive at its Corporate Trust Office in
the Borough of Manhattan, the City of New York, at least 15 but
not more than 30 days prior to the date of repayment, (i) this
Note with the form entitled "Option to Elect Repayment" below
duly completed or (ii) a telegram, telex, facsimile transmission,
or a letter from a member of a national securities exchange or
the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States setting
forth the name of the Holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of
this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note, together with
the form entitled "Option to Elect Repayment" duly completed,
will be received by the Trustee not later than the fifth New York
Business Day after the date of such telegram, telex, facsimile
transmission, or letter; provided, that such telegram, telex,
facsimile transmission, or letter shall only be effective if this
Note and form duly completed are received by the Trustee by such
fifth New York Business Day. Exercise of such repayment option
by the Holder hereof shall be irrevocable. In the event of
repayment of this Note in part only, a new Note or Notes for the
amount of the unpaid portion hereof shall be issued in the name
of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to
the Base Rate shown on the face hereof based on the Index
Maturity, if any, shown on the face hereof (i) plus or minus the
Spread, if any, or (ii) multiplied by the Spread Multiplier, if
any, specified on the face hereof. Commencing with the Initial
Interest Reset Date specified on the face hereof, the rate at
which interest on this Note is payable shall be reset as of each
Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The
Interest Reset Dates will be the Interest Reset Dates specified
on the face hereof; provided, however, that (i) the interest rate
in effect for the period from the Interest Accrual Date to the
Initial Interest Reset Date will be the Initial Interest Rate and
(ii) the interest rate in effect hereon for the 15 days
immediately prior to the Schedule Maturity Date hereof (or, with
respect to any principal amount to be redeemed or repaid, any
redemption or repayment date) shall be that in effect on the
fifteenth calendar day preceding the Schedule Maturity Date
hereof or such date of redemption or repayment, as the case may
be. If any Interest Reset Date would otherwise be a day that is
not a New York Business Day, such Interest Reset Date shall be
postponed to the next succeeding day that is a New York Business
Day, except that if the Base Rate specified on the face hereof is
LIBOR and such New York Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the next
preceding New York Business Day.
"Business Day" when used in conjunction with a designated
city means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions
are authorized or required by law or regulation to be closed in
(i) London, England (with respect to a Debt Security the
principal of or interest on which will be determined by reference
to LIBOR), (ii) Brussels, Belgium (with respect to a Debt
Security dominated in ECUs or whose principal or interest will be
determined by reference to the relative value of the ECU), or
(iii) the financial center of the country issuing the Specified
Currency (with respect to a Debt Security denominated in a
Specified Currency other than the ECU or whose principal or
interest will be determined by reference to the relative value of
any Specified Currency other than the ECU). See also "New York
Business Day".
"Business Day Convention" means the convention for adjusting
any relevant date if it would otherwise fall on a day that is not
a Business Day. The following terms, when used in conjunction
with the term "Business Day Convention" and a date, shall mean
that an adjustment will be made if that date would otherwise fall
on a day that is not a Business Day so that:
(i) if "Following" is specified, that date will be the
first following day that is a Business Day;
(ii) if "Modified Following" or "Modified" is
specified, that date will be the first following day that is a
Business Day unless that day falls in the next calendar month, in
which case that date will be the first preceding day that is a
Business Day; and
(iii) if "Preceding" is specified, that date will be
the first preceding day that is a Business Day.
"CD Rate" with respect to any Interest Determination Date
means the rate set forth in H.15(519) for the period for the
specified Index Maturity under the caption "CDs (Secondary
Market)". If such rate does not appear in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date relating to such
Interest Determination Date, the rate for such Interest
Determination Date will be the rate set forth in Composite 3:30
P.M. Quotations for U.S. Government Securities for such Interest
Determination Date for the Index Maturity under the caption
"Certificates of Deposit". If such rate does not appear in either
H.15(519) or Composite 3:30 P.M. Quotations for U.S. Government
Securities by 3:00 p.m., New York City time, on the Calculation
Date relating to such Interest Determination Date, the rate for
such Interest Determination Date will be the arithmetic mean of
the secondary market offered rates of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in New
York City as of 10:00 a.m., New York City time, for such Interest
Determination Date for negotiable U.S. Dollar certificates of
deposit of major United States money market banks with a
remaining maturity closest to the Index Maturity and in an amount
that is representative for a single transaction in the relevant
market at the relevant time.
"Calculation Date" when used with respect to any Interest
Determination Date means the date by which the applicable
interest rate must be determined, which date will be the earlier
of (i) the tenth calendar day following such Interest
Determination Date or, if such date is not a New York Business
Day, the first New York Business Day occurring after such 10-day
period, or (ii) the New York Business Day immediately preceding
the applicable Interest Payment Date or Scheduled Maturity Date,
as the case may be.
"Commercial Paper Rate" with respect to any Interest
Determination Date means the Money Market Yield (see below) of
the rate set forth in H.15(519) for that day opposite the Index
Maturity under the caption "Commercial Paper". If such rate does
not appear in H.15(519) by 9:00 a.m., New York City time, on the
Calculation Date relating to such Interest Determination Date,
the rate for such Interest Determination Date will be the Money
Market Yield of the rate set forth in Composite 3:30 P.M.
Quotations for U.S. Government Securities for such Interest
Determination Date in respect of the Index Maturity under the
caption "Commercial Paper" (with an Index Maturity of one month
or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate does
not appear in either H.15(519) or Composite 3:30 P.M. Quotations
for U.S. Government Securities by 3:00 p.m., New York City time,
on the Calculation Date relating to such Interest Determination
Date, the rate for such Interest Determination Date will be the
Money Market Yield of the arithmetic mean of the offered rates of
three leading dealers of U.S. commercial paper in New York City
as of 11:00 a.m., New York City time, for such Interest
Determination Date for U.S. dollar commercial paper of the Index
Maturity placed for industrial issuers whose bond rating is "AA"
or the equivalent from a nationally recognized rating agency.
"Composite 3:30 P.M. Quotations for U.S. Government
Securities" means the daily statistical release designated as
such, or any successor publication, published by the Federal
Reserve Bank of New York.
"Federal Funds Rate" with respect to any Interest
Determination Date means the rate set forth in H.15(519) for that
day opposite the caption "Federal Funds (Effective)". If such
rate does not appear in H.15(519) by 9:00 a.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the rate set forth in Composite 3:30 P.M. Quotations for
U.S. Government Securities for such Interest Determination Date
under the caption "Federal Funds/Effective Rate". If such rate
does not appear in either H.15(519) or Composite 3:30 P.M.
Quotations for U.S. Government Securities by 3:00 p.m., New York
City time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Money Market Yield of the arithmetic mean for the
last transaction in overnight U.S. dollar Federal Funds by three
leading brokers of U.S. dollar Federal Funds transactions in New
York City as of 11:00 a.m., New York City time, for such Interest
Determination Date.
"H.15(519)" means the weekly statistical release designated
as such, or any successor publication, published by the Board of
Governors of the Federal Reserve System.
"Index Maturity" means the period of maturity of the
applicable instrument or obligation.
"Interest Determination Date" with respect to any Interest
Reset Date means the date two Business Days prior to such
Interest Reset Date.
"Libor" with respect to any Interest Determination Date will
be the rate for deposits in U.S. dollars or the Specified
Currency (as the case may be) for a period of the Index Maturity
that which appears on the Telerate Page: (a) 3740 (for
Australian Dollars); (b) 3740 (for Canadian Dollars); (c) 3750
(for Swiss Francs); (d) 3750 (for Deutsche Marks); (e) 3740 (for
French Francs); (f) 3750 (for Pound Sterling); (g) 3740 (for
Italian Lire); (h) 3750 (for Japanese Yen); (i) 3740 (for Spanish
Pesetas); (j) 3750 (for U.S. dollars), and (k) 3750 (for European
Currency Units) as of 11:00 a.m., London Time, on such Interest
Determination Date. If such rate does not appear on the specified
Telerate Page by 9:00 a.m., New York City time, on such Interest
Determination Date, the rate for such Interest Determination Date
will be determined on the basis of the rates at which deposits in
U.S. dollars or the Specified Currency (as the case may be) are
offered by four major banks in the London interbank market as of
approximately 11:00 a.m., London time, on such Interest
Determination Date to prime banks in the London interbank market
for a period of the Index Maturity commencing on the applicable
Interest Reset Date and in an amount that is representative for a
single transaction in the relevant market at the relevant time.
The Calculation Agent will request the principal London office of
each such bank to provide a quotation of its rate. If at least
two quotations are provided, the rate for such Interest
Determination Date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the rate
for such Interest Reset Date will be the arithmetic mean of the
rates quoted by major banks in New York City or in the relevant
financial center of the country issuing the Specified Currency
(as the case may be) as of 11:00 a.m., local time in New York
City or in such financial center (as the case may be), on such
Interest Determination Date for loans in U.S. dollars or in the
Specified Currency (as the case may be) to leading European banks
for a period of the Index Maturity commencing on such Interest
Reset Date and in an amount that is representative for a single
transaction in the relevant market at the relevant time.
"Maturity Date" means the date on which the entire principal
amount outstanding under a Debt Security becomes due and payable,
whether on the Scheduled Maturity Date or by declaration of
acceleration, call for redemption, or otherwise.
"Money Market Yield" means, in respect of any security with
a maturity of nine months or less, the rate for which is quoted
on a bank discount basis, a yield (expressed as a percentage)
calculated in accordance with the following formula:
<TABLE>
<S> <C> <C> <C>
Money Market Yield = D X 360 X 100
_________________
360 - (D X M)
</TABLE>
where "D" refers to the per annum rate for a security, quoted on
a bank discount basis and expressed as a decimal, and "M" refers
to the actual number of days in the applicable Interest Period.
"New York Business Day" means any day other than a Saturday
or Sunday that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law,
regulation, or executive order, to be closed in the City of New
York and: (i) with respect to any Debt Security denominated or
payable in ECUs, that is also a Brussels Business Day, (ii) with
respect to any Debt Security denominated or payable in any other
Specified Currency, that is also a Business Day in the financial
center of the country issuing such Specified Currency, and (iii)
with respect to any Debt Security the principal of or interest on
which will be determined by reference to LIBOR, that is also a
London Business Day. See also "Business Day".
"Prime Rate" with respect to any Interest Determination Date
means the rate set forth in H.15(519) for that day opposite the
caption "Bank Prime Loan". If such rate does not appear in
H.15(519) by 9:00 a.m., New York City time, on the Calculation
Date relating to such Interest Determination Date, the rate for
such Interest Determination Date will be the arithmetic mean of
the rates of interest publicly announced by each bank that
appears on the Reuters Screen NYMF Page as such bank's prime rate
or base lending rate as in effect for that Interest Determination
Date as quoted on the Reuters Screen NYMF Page for such Interest
Determination Date or, if fewer than four rates appear on the
Reuters Screen NYMF Page for such Interest Determination Date,
the rate will be the arithmetic mean of the rates of interest
publicly announced by three major banks in New York City as its
U.S. dollar prime rate or base lending rate as in effect for such
Interest Determination Date. Each change in the prime rate or
base lending rate of any bank so announced by such bank will be
effective as of the effective date of the announcement or, if no
effective date is specified, as of the date of the announcement.
"US Treasury Bill Rate" with respect to any Interest
Determination Date means the rate at which United States Treasury
bills are auctioned, as set forth in H.15(519) for that day
opposite the Index Maturity under the caption "U.S. Government
Security/Treasury Bills/Auction Average (Investment)". If such
rate does not appear in H.15(519) by 9:00 a.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Bond Equivalent Yield (as defined below) of the
auction average rate for those Treasury bills as announced by the
United States Department of the Treasury. If United States
Treasury bills of the Index Maturity are not auctioned during any
period of seven consecutive calendar days ending on and including
any Friday, and a U.S. Treasury Bill Rate would have been
available on the applicable Interest Determination Date if such
Treasury bills had been auctioned during that seven day period,
an Interest Determination Date will be deemed to have occurred on
the day during that seven-day period on which such Treasury bills
would have been auctioned in accordance with the usual practices
of the United States Department of the Treasury, and the rate for
that Interest Determination Date will be the Bond Equivalent
Yield of the rate set forth in H.15(519) for that day opposite
the Index Maturity under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market". If such interest
rate does not appear in H.15(519) by 3:00 p.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Bond Equivalent Yield of the arithmetic mean of the
secondary market bid rates of three primary United States
Government dealers in New York City as of approximately 3:30
p.m., New York City time, for such Interest Determination Date
for the issue of United States Treasury bills with a remaining
maturity closest to the Index Maturity.
For the purposes of this definition, the term "Bond
Equivalent Yield" is to be calculated in accordance with the
following formula:
<TABLE>
<S> <C> <C> <C>
Bond Equivalent Yield = D X N
______________ X 100
360 - (D X M)
</TABLE>
where "D" refers to the per annum rate for the security, quoted
on a bank discount basis and expressed as a decimal, "N" refers
to 365 or 366, as the case may be, and "M" refers to the actual
number of days in the applicable Interest Period.
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any, specified on the
face hereof. The Calculation Agent shall calculate the interest
rate hereon in accordance with the foregoing on or before each
Calculation Date. The Trustee shall have no responsibility for
determinations made by the Calculation Agent of the interest
rates hereon. The interest rate on this Note will in no event be
higher than the maximum rate permitted by New York law, as the
same may be modified by United States Federal law of general
application.
At the request of the Holder hereof, the Calculation Agent
will provide to the Holder hereof the interest rate hereon then
in effect and, if determined, the interest rate that will become
effective as of the next Interest Reset Date.
Interest payments on this Note will be equal to the amount
of interest accrued from (and including) the Interest Accural
Date or from (and including) the last date to which interest has
been paid, as the case may be, to (but excluding) the applicable
Interest Payment Date, except that interest payable on the
Maturity Date will include interest accrued to (but excluding)
the Maturity Date. If any Interest Payment Date (other than the
Maturity Date) for any Floating Rate Debt Security would
otherwise be a day that is not a New York Business Day, the
payment of interest that would otherwise be payable on such date
will be postponed to the next succeeding New York Business Day
provided, however, that if the interest rate is determined by
reference to LIBOR and such next succeeding New York Business Day
falls in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding New York Business
Day. If the Maturity Date falls on this Note on a day that is
not a New York Business Day, the payment of principal, premium,
if any, and interest, if any, otherwise payable on such date will
be postponed to the next succeeding New York Business Day, and no
interest on such payment will accrue as a result of such
postponement.
Accrued interest on this Note will be calculated by
multiplying the principal amount hereof by an accrued interest
factor. The accrued interest factor will be computed as the sum
of the interest factors calculated for each day in the period for
which interest is being paid. The interest factor for any day in
such period will be computed by dividing the interest rate in
effect on such day by ________.
This Note and all the obligations of the Issuer hereunder
are direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all
other existing and future unsecured and unsubordinated
indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form,
without coupons, and, if denominated in U.S. dollars, is issuable
only in denominations of U.S. $_______ and any integral multiple
of U.S. $1,000 in excess thereof. If this Note is denominated in
a Specified Currency, then, unless a higher minimum denomination
is required by applicable law, it is issuable only in
denominations of the equivalent of U.S. $_______ (rounded down to
an integral multiple of 1,000 units of such Specified Currency),
or any amount in excess thereof which is an integral multiple of
1,000 units of such Specified Currency, as determined by
reference to the noon dollar buying rate in New York City for
cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on
the New York Business Day immediately preceding the date of
issuance.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency
and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such
currency or for the settlement of transactions by public
institutions within the international banking community, then the
Issuer will be entitled to satisfy its obligations to the Holder
of this Note by making such payments in U.S. dollars on the basis
of the highest bid quotation (assuming European-style quotation
- -- i.e., Specified Currency per U.S. dollar) on the second New
York Business Day prior to the applicable payment date from the
recognized foreign exchange dealers in the City of New York (one
of which may be the Company) for the purchase of the aggregate
amount of the Specified Currency payable on such payment date,
for settlement on such payment date, and at which the applicable
dealer timely commits to execute a contract. If no such bid
quotations are available, payments will be made in the Specified
Currency. Any payment made under such circumstances in U.S.
dollars where the required payment is in a Specified Currency
other than U.S. dollars will not constitute an Event of Default.
If payments of principal, premium, if any, or interest, if
any, with respect to this Note are required to be made in a
composite currency and the composition of such composite currency
is at any time altered (whether by the addition, elimination,
combination, or subdivision of one or more components, by
adjustment of the ratio of any component to the composite unit,
or by any combination of such events), then the Company will be
entitled to satisfy its payment obligations hereunder by making
such payments in such composite currency as altered.
All determinations referred to above made by the Issuer or
its agent shall be at its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted
by law for all purposes and binding on the Holder of this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Issuer and the rights of the
Holders of the Notes of each series under the Indenture at any
time by the Issuer and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding of each series to be affected by such
amendment or modification. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal
amount of the Notes of each series at the time Outstanding, on
behalf of the Holders of all Notes of such series, to waive
compliance by the Issuer with certain provisions of the Indenture
and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Note.
The Indenture contains provisions setting forth certain
conditions to the institution of proceedings by Holders of Notes
with respect to the Indenture or for any remedy under the
Indenture.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal amount hereof may be declared
due and payable in the manner and with the effect provided in the
Indenture.
No reference herein to the Indenture and no provisions of
this Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and interest on this Note at the times,
place, and rate, and in the coin or currency, herein prescribed.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the
principal of and premium, if any, and interest on this Note as
herein provided in the City of New York, and an office or agency
in said City of New York for the registration, transfer, or
exchange of the Notes. The Issuer may designate other agencies
for the payment of said principal, premium, if any, and interest
at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registerable in the Security Register, upon surrender of this
Note for registration of transfer at the Corporate Trust Office
of the Trustee or any other applicable Place of Payment, duly
endorsed, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly
executed, by the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration or
transfer or exchange, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
The Issuer, the Trustee, and any agent of the Issuer or the
Trustee may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or
not this Note is overdue, and neither the Issuer, the Trustee,
nor any such agent shall be affected by notice to the contrary.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -
...................Custodian............................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
....................................
(State)
Additional abbreviations may also be used though not in the
above list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- -----------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such
note on the books of the Issuer, with full power of substitution
in the premises.
Dated: _
NOTE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
Exhibit 4(e)
PEPSICO, INC.
and
THE CHASE MANHATTAN BANK
(National Association),
Debt Warrant Agent
_____________________
DEBT WARRANT AGREEMENT
Dated as of _________________
DEBT WARRANT AGREEMENT, dated as of ______________, between
PEPSICO, INC., a North Carolina corporation (hereinafter the
"Company"), and THE CHASE MANHATTAN BANK (National
Association), as Debt Warrant Agent (hereinafter the "Debt
Warrant Agent").
WHEREAS, the Company has filed with the Securities and
Exchange Commission a Registration Statement on Form S-3 (the
"Registration Statement") providing for the issuance of up to
$2,500,000,000 in aggregate public offering price of its debt
securities, consisting of note, bonds, and other evidences of
unsecured indebtedness (the "Debt Securities"), warrants to
purchase Debt Securities (the "Debt Warrants"), and other
warrants, options, and unsecured contractual obligations of the
Company (the "Shelf Warrants");
WHEREAS, any Debt Warrants will be represented by one or
more warrant certificates in global or definitive form (each
such certificate a "Debt Warrant Certificate"); and
WHEREAS, the Company desires the Debt Warrant Agent to act
on behalf of the Company in connection with the issuance,
exchange, exercise, and replacement of the Debt Warrant
Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Debt Warrant
Certificates and the terms and conditions on which they may be
issued, exchanged, exercised, and replaced;
NOW, THEREFORE, in consideration of the premises and of
the mutual agreements herein contained, the parties hereto
agree as follows (all capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in
the Prospectus filed as part of the Registration Statement):
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
SECTION 1.01. Issuance of Debt Warrants. The designation
and particular terms of any Debt Warrant shall be as set forth
in the applicable Prospectus Supplement and in the Debt Warrant
Certificate relating thereto. Debt Warrants may be issued
separately or together with one or more Debt Securities of any
series and, if issued together with any such Debt Securities,
may be separately transferable after the date indicated in the
applicable Prospectus Supplement and in the Debt Warrant
Certificate relating thereto (such date the "Detachability
Date"). A Debt Warrant Certificate may evidence one or more
Debt Warrants. Each Debt Warrant evidenced by a a Debt Warrant
Certificate shall represent the right, subject to the
provisions contained herein and therein, to purchase one or
more Debt Securities of a designated series in such principal
amount as shall be designated therein.
SECTION 1.02. Execution and Delivery of Debt Warrant
Certificates. Debt Warrant Certificates may be issued in
global or definitive form, payable to the order of the bearer
or the registered holder thereof, in substantially the form set
forth in Annex A hereto. Each Debt Warrant Certificate will be
dated the date of its authentication by the Debt Warrant Agent
and may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements
printed, lithographed, or engraved thereon as may be approved
by the officers of the Company executing the same (such
execution to be conclusive evidence of such approval) and as
are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law, rule, or regulation
applicable thereto, including any rule or regulation of any
stock exchange on which the Debt Warrants may be listed. The
Debt Warrant Certificates shall be signed on behalf of the
Company by any two of its Chairman of the Board and Chief
Executive Officer (the "Chairman"), its Executive Vice
President and Chief Financial Officer (the "Executive Vice
President"), or any of its Vice Presidents, under its corporate
seal, and attested by its Secretary or Assistant Secretary.
Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise
reproduced on the Debt Warrant Certificates. The seal of the
Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted, or otherwise reproduced on the
Debt Warrant Certificates.
No Debt Warrant Certificate shall be valid for any
purpose, and no Debt Warrant evidenced thereby shall be
exercisable, until such Debt Warrant Certificate has been
countersigned by the manual signature of the Debt Warrant
Agent. Such signature by the Debt Warrant Agent upon any Debt
Warrant Certificate executed by the Company shall be conclusive
evidence that the Debt Warrant Certificate so countersigned has
been duly issued hereunder.
In case any officer of the Company who shall have signed
any of the Debt Warrant Certificates shall cease to be such
officer before the Debt Warrant Certificates so signed shall
have been countersigned and delivered by the Debt Warrant
Agent, such Debt Warrant Certificates may be countersigned and
delivered notwithstanding that the person who signed such Debt
Warrant Certificates ceased to be such officer of the Company;
and any Debt Warrant Certificate may be signed on behalf of the
Company by such persons as, at the actual date of the execution
of such Debt Warrant Certificate, shall be the proper officers
of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The terms "holder" or "holder of a Debt Warrant
Certificate" as used herein shall mean:
1. with respect to any Debt Warrant Certificate in
bearer form: (a) if the Debt Warrants represented thereby were
issued together with Debt Securities that are not immediately
detachable, the registered owner of the Debt Securities to
which such Debt Warrant Certificate was initially attached, and
(b) after the Detachability Date, the bearer of such Debt
Warrant Certificate;
2. with respect to any Debt Warrant Certificate in
registered form: (a) if the Debt Warrants represented thereby
were issued together with Debt Securities that are not
immediately detachable, the registered owner of the Debt
Securities to which such Debt Warrant Certificate was initially
attached, and (b) after the Detachability Date, the person in
whose name the Debt Warrant Certificate shall be registered
upon the books to be maintained by the Debt Warrant Agent for
that purpose.
The Company will or will cause the registrar of the Debt
Securities to at all times make available to the Debt Warrant
Agent such information regarding the holders of the any Debt
Securities to which any Debt Warrants are attached as may be
necessary to keep the records of the Debt Warrant Agent up to
date.
SECTION 1.03. Issuance of Debt Warrant Certificates.
Debt Warrant Certificates evidencing the right to purchase up
to[$2,500,000,000] in aggregate public offering price of Debt
Securities (except as provided in Section 2.03(c), 3.02, or
3.04 hereof) may be executed by the Company and delivered to
the Debt Warrant Agent upon the execution of this Agreement or
from time to time thereafter. The Debt Warrant Agent shall,
upon receipt of Debt Warrant Certificates duly executed on
behalf of the Company in accordance with the terms hereof,
countersign such Debt Warrant Certificates and deliver the same
to the holders thereof upon and in accordance with the order of
the Company. Subsequent to such original issuance of the Debt
Warrant Certificates, the Debt Warrant Agent shall countersign
a Debt Warrant Certificate only if such Debt Warrant
Certificate is issued in exchange or substitution for one or
more previously countersigned Debt Warrant Certificates or,
with respect to Debt Warrant Certificates in registered form,
in connection with the transfer thereof, as provided in Section
2.03(c) below.
ARTICLE II
EXERCISE PRICE, DURATION, AND EXERCISE
OF DEBT WARRANTS
SECTION 2.01. Exercise Price. During the period from and
including ___________, 19__, to and including,_______ 19 __, the exercise
price of each Debt Warrant will be [
% of the principal amount of the Debt Securities] [$
] [plus [accrued amortization of the original issue discount]
[accrued interest] from the most recently preceding].
[During the period from __________________, 19__,
to and including______________________________, 19__,
the exercise price of each Debt Warrant will be [ % of the
principal amount of the Debt Securities] [$_____________] [plus
[accrued amortization of the original issue discount] [accrued
interest] from the most recently preceding _____________________].]
[In each case the original issue discount will be
amortized at a _____% annual rate, computed on [an annual] [a
semi-annual] basis using a 360-day year consisting of twelve 30-
day months.] Such purchase price of Debt Securities is
referred to in this Agreement as the "Exercise Price". [The
original issue discount for each $_____________________ in
aggregate principal amount of Debt Securities is $________.]
SECTION 2.02. Duration of Debt Warrants. Each Debt
Warrant may be exercised in whole [at any time, as specified
herein, on or after [the date hereof] [_____________________,
19__] and at or before 5:00 PM New York time on____________,
19__ (each day during such period may hereinafter be
referred to as an "Exercise Date")] [on the following specific
dates: [list of dates] (each an "Exercise Date")], or such
later date as may be selected by the Company, in a written
statement to the Debt Warrant Agent and with notice to the
holders of the Debt Warrants (such date of expiration is herein
referred to as the "Expiration Date"). Each Debt Warrant not
exercised at or before 5:00 PM New York time on the Expiration
Date shall become void, and all rights of the holder of the
Debt Warrant Certificate evidencing such Debt Warrant under
this Agreement shall cease.
SECTION 2.03. Exercise of Debt Warrants.
(a) On any Exercise Date specified in Section 2.02, any
whole number of Debt Warrants may be exercised by delivery to
the Debt Warrant Agent of the applicable Debt Warrant
Certificate, together with the form of election to purchase
Debt Securities set forth on the reverse side of the Debt
Warrant Certificate properly completed and duly executed, and
by paying in full, in U.S. dollars or in the Specified
Currency, as the case may be, [by certified check or official
bank check or by bank wire transfer] [by bank wire transfer]
[in immediately available funds] to the Debt Warrant Agent the
Exercise Price for each Debt Warrant, such delivery and payment
to be made at [the corporate trust office of the Debt Warrant
Agent] or such other place as the Company and the Debt Warrant
Agent shall hereafter agree in writing. The date on which the
duly completed and executed Debt Warrant Certificate and
payment in full of the Exercise Price are received by the Debt
Warrant Agent shall be deemed to be the date on which the
applicable Debt Warrant is exercised. The Debt Warrant Agent
shall deposit all funds received by it in payment of the
Exercise Price in an account of the Company maintained with it
and shall advise the Company by telephone or by facsimile
transmission or other form of electronic communication
available to both parties at the end of each day on which a
[payment] [wire transfer] for the exercise of such Debt
Warrants is received of the amount so deposited to its account.
The Debt Warrant Agent shall promptly confirm such telephone
advice to the Company in writing.
(b) The Debt Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the Trustee of
(i) the number of Debt Warrants exercised, (ii) the
instructions of the holders of the Debt Warrant Certificates
evidencing such Debt Warrants with respect to delivery of the
Debt Securities, (iii) delivery of Debt Warrant Certificates
evidencing the balance, if any, of the Debt Warrants remaining
after such exercise, and (iv) such other information as the
Company or the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Debt
Warrant, the Company shall issue, pursuant to the Indenture, in
authorized denominations, to or upon the order of the holder of
the Debt Warrant Certificate evidencing such Debt Warrant, the
Debt Securities to which such holder is entitled, registered in
[such name or names as may be directed by such holder] [the
name of the registered holder of such Debt Securities]. If
fewer than all of the Debt Warrants evidenced by such Debt
Warrant Certificate are exercised, the Company shall execute,
and an authorized officer shall manually countersign and
deliver, a new Debt Warrant Certificate evidencing the number
of such Debt Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in
connection with any transfer involved in the issuance of Debt
Securities and the Company shall not be required to issue or
deliver any Debt Security unless or until the person requesting
the issuance thereof shall have paid to the Company the amount
of such tax or governmental charge or shall have established to
the satisfaction of the Company that such tax or other
governmental charge has been paid or that no such tax or other
governmental charge is payable.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANT CERTIFICATES
SECTION 3.01. No Rights as a Holder of Debt Securities
Conferred by Debt Warrants or Debt Warrant Certificates. No
Debt Warrant Certificate or Debt Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a
holder of Debt Securities, including, without limitation, the
right to receive payments of principal, premium, if any, or
interest, if any, on the Debt Securities to which such Debt
Warrant or Debt Warrant Certificate relates, or to enforce any
of the covenants in the Indenture with respect to such Debt
Securities.
SECTION 3.02. Lost, Stolen, Mutilated, or Destroyed Debt
Warrant Certificates. Upon receipt by the Debt Warrant Agent
of evidence reasonably satisfactory to it of the ownership and
loss, theft, destruction, or mutilation of any Debt Warrant
Certificate and of indemnity reasonably satisfactory to the
Debt Warrant Agent and, in the case of mutilation, upon
surrender of such Debt Warrant Certificate to the Debt Warrant
Agent for cancellation, in the absence of notice to the Company
and the Debt Warrant Agent that such Debt Warrant Certificate
has been transferred or acquired, and subject to the provisions
of Section 3.03 below, such Debt Warrant Certificate shall be
replaced by a new Debt Warrant Certificate reflecting the
identical terms of such lost, stolen, destroyed, or mutilated
Debt Warrant Certificate.
SECTION 3.03. Transfer, Exchange or Replacement of Debt
Warrants and Debt Warrant Certificates. Any Debt Warrant
Certificate attached to one or more Debt Securities will be
transferred, exchanged, or replaced only together with the Debt
Security or Debt Securities to which such Debt Warrant
Certificate is attached, and only for the purpose of affecting,
or in conjunction with, a transfer, exchange, or replacement of
such Debt Security or Debt Securities. Prior to the
Detachability Date, each transfer, exchange, or replacement of
an attached Debt Security by the Trustee shall operate also to
transfer the related Debt Warrants. After the Detachability
Date, each transfer of an attached Debt Security shall be made
only upon surrender, at the corporate trust office of the Debt
Warrant Agent, of the Debt Warrant Certificates evidencing the
related Debt Warrants and of such appropriate instruments of
registration or transfer and of such written transfer
instructions as shall be in form and substance satisfactory to
the Company and the Debt Warrant Agent. Debt Warrant
Certificates may be transferred or exchanged, after the
Detachability Date, for Debt Warrant Certificates in other
denominations evidencing the related Debt Warrants, provided
that such other Debt Warrant Certificates evidence the same
number of Debt Warrants as the Debt Warrant Certificates so
surrendered. The Debt Warrant Agent shall keep, at its
corporate trust office, books in which it shall register Debt
Warrant Certificates and all exchanges and transfers of
outstanding Debt Warrant Certificates. No service charge shall
be made for any exchange [or registration of transfer] of Debt
Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any
such exchange [or registration of transfer]. Whenever any Debt
Warrant Certificates are so surrendered for exchange [or
registration of transfer], an authorized officer of the Debt
Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Debt Warrant Certificate
or Debt Warrant Certificates duly authorized and executed by
the Company, as so requested. The Debt Warrant Agent shall not
be required to effect any exchange [or registration of
transfer] which will result in the issuance of a Debt Warrant
Certificate evidencing a fraction of a Debt Warrant. All Debt
Warrant Certificates issued upon any exchange [or registration
of transfer] of Debt Warrant Certificates shall be valid
obligations of the Company, evidencing the same obligations and
entitled to the same benefits under this Agreement as the Debt
Warrant Certificates surrendered for such exchange [or
registration of transfer].
SECTION 3.04. Treatment of Holders of Debt Warrant
Certificates. Debt Warrants issued in bearer form shall be
transferable by delivery and shall be deemed negotiable by the
bearer of the related Debt Warrant Certificate, which bearer
may be treated by the Company, the Debt Warrant Agent, and all
other persons dealing with such bearer as the absolute owner
thereof for all purposes and as the person entitled to exercise
the rights represented by the Debt Warrants evidenced thereby,
any notice to the contrary notwithstanding. Debt Warrants
issued in registered form shall be transferable only on the
books of the Debt Warrant Agent and in accordance with the
applicable terms and conditions hereof, and every holder of
such a Debt Warrant Certificate, by accepting the same,
consents and agrees with the Company, the Debt Warrant Agent,
and with every subsequent holder of such Debt Warrant
Certificate that until the transfer of the Debt Warrant
Certificate is registered on the books of the Debt Warrant
Agent (or, prior to the Detachability Date, on the register
maintained by the registrar of the related Debt Securities),
the Company and the Debt Warrant Agent (or the registrar of the
related Debt Securities, as the case may be), may treat such
registered holder as the absolute owner thereof for all
purposes and as the person entitled to exercise the rights
represented by the Debt Warrants evidenced thereby, any notice
to the contrary notwithstanding.
SECTION 3.05. Cancellation of Debt Warrant Certificates.
Any Debt Warrant Certificate surrendered for exchange or
registration of transfer, or for exercise of the Debt Warrants
evidenced thereby, shall be delivered to the Debt Warrant
Agent, and all Debt Warrant Certificates so surrendered or
delivered to the Debt Warrant Agent shall be promptly canceled
by the Debt Warrant Agent and shall not be reissued and, except
as expressly provided otherwise by this Agreement, no Debt
Warrant Certificate shall be issued in exchange or in lieu
thereof. The Debt Warrant Agent shall destroy all canceled
Debt Warrant Certificates and deliver a certificate of such
destruction to the Company.
ARTICLE IV
CONCERNING THE DEBT WARRANT AGENT
SECTION 4.01. Debt Warrant Agent. The Company hereby
appoints The Chase Manhattan Bank (National Association) as
Debt Warrant Agent of the Company in respect of the Debt
Warrants and the related Debt Warrant Certificates upon the
terms and subject to the conditions herein set forth, and The
Chase Manhattan Bank (National Association) hereby accepts such
appointment. The Debt Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Debt Warrant
Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter
grant to or confer upon it by a signed, written instrument.
All of the terms and provisions with respect to such powers and
authority contained in the Debt Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 4.02. Conditions of Debt Warrant Agent's
Obligations. The Debt Warrant Agent accepts its obligations
herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and
to all of which the rights of the holders the Debt Warrant
Certificates shall at all times be subject.
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Debt Warrant Agent the compensation to be
agreed upon with the Company for all services rendered by the
Debt Warrant Agent and to reimburse the Debt Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
incurred by the Debt Warrant Agent in connection with the
services rendered by it hereunder. The Company also agrees to
indemnify the Debt Warrant Agent for, and to hold it harmless
against, any loss, liability, or expense incurred without
negligence or bad faith on the part of the Debt Warrant Agent,
arising out of or in connection with its acting as Debt Warrant
Agent hereunder, as well as the costs and expenses of defending
against any claim of such liability.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Debt Warrants and Debt
Warrant Certificates, the Debt Warrant Agent is acting solely
as agent of the Company and does not assume any fiduciary
obligation or relationship of agency or trust for or with any
of the holders of Debt Warrants or Debt Warrant Certificates or
the beneficial owners thereof.
(c) Counsel. The Debt Warrant Agent may consult with
counsel satisfactory to it, and the advice of such counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered, or omitted by it
hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents. The Debt Warrant Agent shall be protected
and shall incur no liability for or in respect of any action
taken or thing suffered by it in reliance upon any provision of
any Debt Warrant or Debt Warrant Certificate or any notice,
direction, consent, certificate, affidavit, statement, or other
paper or document delivered to it in accordance with the
provisions hereof reasonably believed by it to be genuine and
to have been presented or signed by the proper parties.
(e) Certain Transactions. The Debt Warrant Agent and its
officers, directors, and employees may own or acquire any
interest in Debt Warrants with the same rights that it or they
would have if it were not the Debt Warrant Agent hereunder,
and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction
with the Company and may act on, or as depository, trustee, or
agent for, any committee or body of holders of Debt Securities
or any other obligations of the Company as freely as if it were
not the Debt Warrant Agent hereunder. Nothing in this Debt
Warrant Agreement shall be deemed to prevent the Debt Warrant
Agent from acting as Trustee under the Indenture.
(f) No Liability for Invalidity. The Debt Warrant Agent
shall have no liability with respect to any invalidity of this
Agreement or any of the Debt Warrants or Debt Warrant
Certificates.
(g) No Liability for Interest. The Debt Warrant Agent
shall have no liability for interest on any monies at any time
received by it pursuant to any of the provisions of this
Agreement or of the Debt Warrants or Debt Warrant Certificates.
(h) No Responsibility for Representations. The Debt
Warrant Agent shall not be responsible for any of the Company's
recitals or representations herein or in the Debt Warrant
Certificates.
(i) No Implied Obligations. The Debt Warrant Agent shall
be obligated to perform only such duties as are specifically
set forth herein and in the Debt Warrant Certificates and no
implied duties or obligations shall be read into this Agreement
or the Debt Warrant Certificates against the Debt Warrant
Agent. The Debt Warrant Agent shall not be under any
obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion,
assured to it. The Debt Warrant Agent shall not be accountable
or under any duty or responsibility for the use by the Company
of any of the Debt Warrant Certificates authenticated by the
Debt Warrant Agent and delivered by it to the Company pursuant
to this Agreement, or for the application by the Company of the
proceeds of the Debt Warrants. The Debt Warrant Agent shall
have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements
contained herein or in the Debt Warrant Certificates or in the
case of the receipt of any written demand from a holder of any
Debt Warrant with respect to such default, including, without
limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in
Section 5.02 hereof, to make any demand upon the Company.
SECTION 4.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders of
the Debt Warrants, that there shall at all times be a Debt
Warrant Agent hereunder until all the Debt Warrants issued
hereunder have expired or are otherwise no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention
on its part, specifying the date on which its desired
resignation shall become effective; provided that such date
shall not be less than three months after the date on which
such notice is given unless the Company otherwise agrees in
writing. The Debt Warrant Agent hereunder may be removed at
any time by the filing with it an instrument in writing signed
by or on behalf of the Company and specifying such removal and
the date upon which such removal shall become effective. Such
resignation or removal shall take effect upon the appointment
by the Company, as hereinafter provided, of a successor Debt
Warrant Agent (which shall be a bank or trust company
authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Debt Warrant
Agent. The obligation of the Company under Section 4.02(a)
shall continue to the extent set forth therein notwithstanding
the resignation or removal of the Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall
resign, be removed, or shall for any reason be incapable of
acting hereunder, or shall be adjudged a bankrupt or insolvent,
or shall file a petition seeking relief under the Federal
Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable Federal or State bankruptcy law or
similar law, or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts
as they mature, or if a receiver or custodian of it or of all
or any substantial part of its property shall be appointed, or
if an order of any court shall be entered for relief against it
under the provisions of the Federal Bankruptcy Code, as now
constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy or similar law, or if any public
officer shall have taken charge or control of the Debt Warrant
Agent or of its property or affairs for the purpose of
rehabilitation, conservation, or liquidation, a successor Debt
Warrant Agent, qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with such
successor Debt Warrant Agent. Upon the appointment as
aforesaid of a successor Debt Warrant Agent and acceptance by
such successor Debt Warrant Agent of such appointment, the Debt
Warrant Agent shall cease to be Debt Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed hereunder
shall execute, acknowledge, and deliver to its predecessor and
to the Company a signed instrument accepting such appointment
hereunder, and thereupon such successor Debt Warrant Agent,
without any further act, deed, or conveyance, shall become
vested with all the authority, rights, powers, trusts,
immunities, duties, and obligations of such predecessor with
like effect as if originally named as Debt Warrant Agent
hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated
to transfer, deliver, and pay over, and such successor Debt
Warrant Agent shall be entitled to receive, all monies,
securities, and other property on deposit with or held by such
predecessor in its capacity as Debt Warrant Agent hereunder.
(e) Any corporation into which the Debt Warrant Agent may
be merged or converted or any corporation with which the Debt
Warrant Agent may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Debt
Warrant Agent shall be a party, or any corporation to which the
Debt Warrant Agent shall sell or otherwise transfer all or
substantially all of its assets and business, shall be the
successor Debt Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that such corporation is
qualified as aforesaid.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendment. This Agreement may be amended
by the parties hereto, without the consent of the holders of
any Debt Warrants issued hereunder, for the purpose of curing
any ambiguity, or of curing, correcting, or supplementing any
defective provision contained herein, or for the purpose of
making any other provisions with respect to matters or
questions arising under this Agreement as the Company and the
Debt Warrant Agent may deem necessary or desirable; provided
that such action shall not adversely affect the interests of
such holders.
SECTION 5.02. Notices and Demands to the Company and Debt
Warrant Agent. If the Debt Warrant Agent shall receive any
notice or demand addressed to the Company by the holder of a
Debt Warrant pursuant to the provisions hereof or of the
related form of Debt Warrant Certificate, the Debt Warrant
Agent shall promptly forward such notice or demand to the
Company.
SECTION 5.03. Addresses. Any communication from the Debt
Warrant Agent to the Company with respect to this agreement
shall be addressed to PepsiCo, Inc., 700 Anderson Hill Road,
Purchase, New York 10577, Attention: __________, and any
communication from the Company to the Debt Warrant Agent with
respect to this Agreement shall be addressed to the principal
corporate trust office of the Debt Warrant Agent, Attention:
Corporate Trust Department (or such other address as shall be
hereafter specified in writing by the Debt Warrant Agent or the
Company, as the case may be).
SECTION 5.04. Notices to Holders of Debt Warrants. Any
notice to holders of Debt Warrants that are required or
permitted by the provisions of this Agreement to be given shall
be given (a) with respect to Debt Warrants issued in registered
form, by first class mail postage prepaid to such holder's
address as appears on the books of the Debt Warrant Agent (or,
prior to the Detachability Date, on the books of the registrar
of the Debt Securities), or (b) with respect to Debt Warrants
issued in bearer form, by publication at least once in a daily
morning newspapers in New York City and in London.
SECTION 5.05. Applicable Law. The validity,
interpretation, and performance of the terms and provisions of
this Agreement and of each Debt Warrant and Debt Warrant
Certificate issued hereunder shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 5.06. Delivery of Prospectus. The Company will
furnish to the Debt Warrant Agent sufficient copies of the
Prospectus and of each applicable Prospectus Supplement and
Pricing Supplement relating to the Debt Warrants and the
related Debt Securities, and the Debt Warrant Agent agrees that
upon the exercise of any Debt Warrant the Debt Warrant Agent
will deliver to the holder of such Debt Warrant, prior to or
concurrently with the delivery of the Debt Securities issued
upon such exercise, copies of the Prospectus (as amended or
supplemented as of such date), together with all such
applicable Supplements.
SECTION 5.07. Obtaining of Governmental Approvals. The
Company will obtain, file, and keep effective any and all
permits, consents, and approvals of governmental agencies and
authorities and all securities acts filings under United States
Federal and state laws as shall be necessary for the valid
issuance, sale, and transfer of the Debt Warrants and the
related Debt Securities.
SECTION 5.08. Persons Having Rights under this Agreement.
Nothing in this Agreement shall give to any person other than
the Company, the Debt Warrant Agent, and the holders of the
Debt Warrants any right, remedy, or claim under or by reason of
this Agreement.
SECTION 5.09. Headings. The captions and headings used
herein are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions
hereof.
SECTION 5.10. Counterparts. This Agreement may be
executed in any number of counterparts, each of which as so
executed shall be deemed to be an original, but shall together
constitute but one and the same instrument.
SECTION 5.11. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the
principal corporate trust office of the Debt Warrant Agent for
inspection by the holder of any Debt Warrant.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by one of their respective authorized
officers as of the day and year first above written.
PEPSICO, INC.
By____________________________________
Title:
THE CHASE MANHATTAN BANK
(National Association)
By____________________________________
Title:
ANNEX A
FORM OF DEBT WARRANT CERTIFICATE
[Face of Debt Warrant Certificate]
[Form of Legend if Debt Warrants are not immediately detachable
from Debt Securities: This Debt Warrant cannot be transferred
or exchanged prior to__________, 19__, unless attached to the
[designate Debt Securities] to which this Debt Warrant
relates.]
THIS DEBT WARRANT SHALL BE EXERCISABLE ONLY
IF COUNTERSIGNED BY THE DEBT WARRANT
AGENT AS PROVIDED BELOW
PEPSICO, INC.
WARRANT TO PURCHASE
$______ in aggregate principal amount of ____________Debt
Securities due _______________, 19__
VOID AFTER 5:00 P.M., NEW YORK TIME, ON_____________, 19__
No. [CUSIP No. ]
This certifies that [the bearer] [_______________or its
registered assigns] is the [owner] [registered owner] of the
Warrant[s] identified above (the "Debt Warrant[s]"), [each]
such Debt Warrant entitling such [bearer] [registered owner] to
purchase, at any time after 5:00 p.m., New York time,
on___________, 19__, and on or before 5:00 p.m., New York time,
on___________, 19__, (or such later date as may be designated
by the Company by written notice to the holder as provided in
the Debt Warrant Agreement, dated as of ___________, 19__ (the
"Debt Warrant Agreement") between PepsiCo, Inc. (the "Company")
and The Chase Manhattan Bank (National Association) as debt
warrant agent (the "Debt Warrant Agent")), $________ in
aggregate principal amount of the Debt Securities, [designate
series] (the "Debt Securities") to be issued by the Company
under the Indenture, dated as of December 14, 1994 (the
"Indenture"), between the Company and The Chase Manhattan Bank
(National Association) as trustee (the "Trustee").
The Debt Warrant[s] represented hereby shall be
exercisable only in accordance with the terms and provisions
set forth herein, in the Debt Warrant Agreement, and in the
Indenture. Copies of the Debt Warrant Agreement and the
Indenture may be obtained at the corporate trust office of the
Debt Warrant Agent located at ___________________. All
capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms by the Debt Warrant
Agreement.
[Reverse of Debt Warrant Certificate]
The exercise price of [each] [such] Debt Warrant shall be
calculated as follows: (a) during the period from and including
_______________ 19__, to and including _______________, 19__,
the exercise price of [each] [such] Debt Warrant will be [___%
of the principal amount of the underlying Debt Securities]
[$___________] [plus [accrued amortization of the original
issue discount] [accrued interest] from the most recently
preceding __________], (b) during the period from
_____________, 19__, to and including _______________, 19__,
the exercise of [each] [such] Debt Warrant will be [___% of the
principal amount of the related Debt Securities] [$___________]
[plus [accrued amortization of the original issue discount]
[accrued interest] from the most recently preceding _________],
and (c) in each case (as applicable), [the original issue
discount will be amortized at an annual rate of ___%, computed
on [an annual] [a semi-annual] basis, using a [360-day year
consisting of twelve 30-day months] [the original issue
discount for each $__________ in aggregate principal amount of
Debt Securities will be _________] (such exercise price the
"Exercise Price").
The [holder] [registered holder] may exercise the Debt
Warrant[s] evidenced hereby by delivery to the Debt Warrant
Agent of this Debt Warrant Certificate, together with the form
of election to purchase set forth below properly completed and
duly executed, and by paying in full, in lawful money of [the
United States] [________________], [$]_____________, by
[certified check or official bank check or by] bank wire
transfer, in each case, in immediately available funds, the
Exercise Price for [such Debt Warrant] [each Debt Warrant to be
exercised], payable to the [order of] [an account designated in
writing by] the Company, such delivery and payment to be made
at the corporate trust office of Debt Warrant Agent at the
address specified below, or to such successor debt warrant
agent at such other address as the Company may hereafter notify
the [holder] [registered holder] in writing.
Any whole number of Debt Warrants evidenced by this Debt
Warrant Certificate may be exercised to purchase Debt
Securities in registered form upon such terms and conditions as
are set forth in the Prospectus and [the] [any] applicable
Supplement[s]. [Upon exercise of fewer than all of the Debt
Warrants evidenced hereby, there shall be issued to the
[holder] [registered holder] a new Debt Warrant Certificate
evidencing the number of Debt Warrants remaining unexercised.]
[If the Debt Warrant[s] represented hereby is not
immediately detachable from the underlying Debt Securities,
[each] such Debt Warrant may be exchanged or transferred prior
to __________, 19__,only together with the underlying Debt
Securities and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Debt
Securities. After such date, [each] such Debt Warrant and all
rights hereunder, may be transferred by delivery as hereinabove
provided and the Company and the Debt Warrant Agent may treat
the bearer hereof as the owner for all purposes.]
[If the Debt Warrant[s] represented hereby are immediately
detachable from the underlying Debt Securities, [each] such
Debt Warrant may be registered for transfer or exchange upon
delivery of this Debt Warrant Certificate as hereinabove
provided.]
This Debt Warrant Certificate shall not entitle the
[holder] [registered holder] hereof to any of the rights of a
holder of the underlying Debt Securities, including, without
limitation, the right to receive payments of principal,
premium, if any, or interest, if any, on such Debt Securities
or to enforce any of the covenants of the Indenture.
Neither this Debt Warrant Certificate nor the Debt
Warrant[s] represented hereby shall be valid or obligatory for
any purpose until countersigned by the Debt Warrant Agent.
Dated as of ___________, 19__
PEPSICO, INC.
By_____________________
Title:
[ ], as Debt Warrant Agent,
By______________________________________
Authorized Officer
Further Instructions for Exercise of Debt Warrant[s]
To exercise the Debt Warrants evidenced hereby, the holder
must complete the information required below and present this
Debt Warrant Certificate in person or by [registered] mail to
the Debt Warrant Agent at the address set forth below. This
Debt Warrant Certificate, completed and duly executed, must be
received by the Debt Warrant Agent together with payment in
full of the Exercise Price in accordance with the terms hereof.
The undersigned hereby irrevocably elects to exercise
[the] [___ of the] Debt Warrant[s] evidenced hereby and to
purchase [$]________ in aggregate principal amount of the
underlying Debt Securities to which such Debt Warrant[s]
relate[s]. By executing this instrument as indicated below,
the undersigned represents that [he/she/it] has tendered
payment for such Debt Securities in accordance with the
provisions set forth herein. The undersigned requests that
said principal amount of Debt Securities be in the authorized
denominations, registered in such names, and delivered as
specified below.
Dated:
_____________________________
Name _________________________________
[ ]
_____________________________
Address
_______________________________
(Insert Social Security or Other
Identifying Number of Holder)
_______________________________
Signature ______________________________
The Debt Warrants evidenced hereby may be exercised at the
following address:
Attention:
[Instructions as to form and delivery of Debt Securities
and Debt Warrant Certificates evidencing unexercised Debt
Warrants to be provided as appropriate.]
[If Registered Debt Warrant]
Assignment
(Form of Assignment To Be Executed Upon
Transfer of Debt Warrants Evidenced Hereby)
FOR VALUE RECEIVED, _____________________________ hereby sells,
assigns and transfers unto
Please insert social security or other
identifying number
____________________________________
(Please print name and address
including zip code)
_______________________________________________________________
[__________ of] the Debt Warrant[s] represented by the within
Debt Warrant Certificate and does hereby irrevocably constitute
and appoint _________________________________ as Attorney to
transfer said Debt Warrant[s] on the books of the Debt Warrant
Agent with full power of substitution in the premises.
Dated:
_____________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the face
of this Debt Warrant Certificate and must bear
a signature guaranteed by a bank, trust
company, or member broker of the New York,
Midwest, or Pacific Stock Exchange.)
Signature Guaranteed:
_______________________________
January 6, 1995
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York 10577
Dear Sir or Madam:
I am Vice President and Assistant General Counsel of
PepsiCo, Inc. (the "Company"), and have acted as its counsel
in connection with the registration under the Securities Act
of 1933, as amended (the "Act") of $2,500,000,000 of (i) the
Company's debt securities, consisting of notes, debentures,
and other evidences of unsecured indebtedness (the "Debt
Securities"), proposed to be issued under an Indenture,
dated as of December 14, 1994, between the Company and
the Chase Manhattan Bank (National Association), as Trustee
(the "Indenture"), included as an exhibit to the
Registration Statement (as defined below), (ii) warrants to
purchase Debt Securities (the "Debt Warrants"), proposed to
be issued under a debt warrant agreement to be entered into
between the Company and The Chase Manhattan Bank, (National
Association), as Debt Warrant Agent (the "Debt Warrant
Agreement"), in substantially the form included as an
exhibit to the Registration Statement, and (iii) other
warrants, options, and unsecured contractual obligations of
the Company (the "Shelf Warrants"), proposed to be issued
under one or more shelf warrant agreements to be entered
into between the Company and The Chase Manhattan Bank
(National Association), or such other bank or trust company
as may be identified in any supplement to the Prospectus
filed as part of the Registration Statement (any such
agreement a "Shelf Warrant Agreement"), in substantially the
form to be filed as an exhibit to the Registration Statement
at or prior to the issuance of any Shelf Warrants subject
thereto.
You have requested my opinion in connection with the
Registration Statement on Form S-3 relating to the Debt
Securities, Debt Warrants and Shelf Warrants (collectively,
the "Securities"), which Registration Statement is being
filed by the Company with the Securities and Exchange on
this date (the "Registration Statement").
It is my opinion that the Securities have been duly
authorized and will be duly, validly and legally issued and
will be binding obligations of the Company when (i) with
respect to the Debt Warrants, the Debt Warrant Agreement
shall have been duly authorized , executed, and delivered,
(ii) with respect to any Shelf Warrant, the applicable Shelf
Warrant Agreement shall have been duly authorized, executed,
and delivered, (iii) the applicable provisions of the Act,
of any other federal securities laws, and of the laws
of such other jurisdictions as may be applicable to the
Securities, shall have been complied with, and (iv) the
Securities shall have been duly executed, authenticated, and
delivered against payment therefore in the manner described
in the aforementioned Registration Statement after it has
become effective under the Act.
The opinion expressed above should not be deemed to
encompass compliance with any laws other than those of the
State of New York, the corporation laws of the State of
North Carolina, and the federal laws of the United States of
America.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of my
name in the Registration Statement under the caption "Legal
Matters". In giving this consent, I do not admit that I am
in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ DOUGLAS CRAM
January 6, 1995
Dear Sirs:
I am Vice President, Taxes of PepsiCo, Inc., a corporation
organized under the laws of the State of North Carolina (the
"Company"). I have acted as tax counsel for the Company in
connection with the registration of $2,500,000,000 in aggregate
offering price of the (i) the Company's debt securities,
consisting of notes, debentures, and other evidences of
unsecured indebtedness (the "Debt Securities"), proposed to be
issued under an Indenture, dated as of December 14, 1994,
between the Company and the Chase Manhattan Bank (National
Association), as Trustee (the "Indenture"), included as an
exhibit to the Registration Statement (as defined below), (ii)
warrants to purchase Debt Securities (the "Debt Warrants"),
proposed to be issued under a debt warrant agreement to be
entered into between the Company and The Chase Manhattan Bank,
(National Association), as Debt Warrant Agent (the "Debt Warrant
Agreement"), in substantially the form included as an exhibit to
the Registration Statement, and (iii) other warrants, options,
and unsecured contractual obligations of the Company (the "Shelf
Warrants"), proposed to be issued under one or more shelf warrant
agreements to be entered into between the Company and The Chase
Manhattan Bank (National Association), or such other bank or
trust company as may be identified in any supplement to the
Prospectus filed as part of the Registration Statement (any such
agreement a "Shelf Warrant Agreement"), in substantially the form
to be filed as an exhibit to the Registration Statement at or
prior to the issuance of any Shelf Warrants subject thereto.
You have requested my opinion in connection with the
Registration Statement on Form S-3 relating to the Debt
Securities, Debt Warrants and Shelf Warrants (collectively, the
"Securities"), which Registration Statement is being filed by the
Company with the Securities and Exchange on this date (the
"Registration Statement").
It is my opinion that if the offering of the Securities is
conducted in the manner described in the Prospectus filed as part
of the Registration Statement (the "Prospectus"), and if the
terms of any series of Securities are as contemplated by the
Prospectus, then the statements contained in the section of the
Prospectus entitled "United States Tax Considerations" accurately
describe certain United States federal income tax consequences of
ownership and disposition of the Securities, except, with respect
to Debt Warrants or Shelf Warrants, which consequences will be
discussed in the applicable Prospectus Supplement to be filed
hereafter.
I do not purport to be expert in, or to express any opinion
concerning, the laws of any jurisdiction other than the federal
laws of the United States of America.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of my name in the
Registration Statement under the caption "Legal Matters". In
giving this consent, I do not admit that I am in the category of
persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ MATTHEW M. MCKENNA
EXHIBIT 12
PEPSICO, INC. AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(in millions except ratio amounts, unaudited)
<TABLE>
<CAPTION>
36 Week Period Ended 52 Week Period Ended
------------------- ---------------------
9/3/94 9/4/93 12/25/93 12/26/92 12/28/91
------- ------ -------- --------- --------
<S> <C> <C> <C> <C> <C>
Earnings:
Income before income
taxes and cumulative
effect of accounting
changes $1,940.9 $1,763.8 $2,422.5 $1,898.8 $1,659.7
Amortization of
capitalized interest 3.4 3.6 5.0 5.0 4.5
Interest expense 433.9 403.5 572.7 586.1 613.7
Amortization of
debt discount 0.2 0.2 0.2 0.3 0.3
Interest portion of net
rent expense (a) 99.6 89.9 134.4 121.4 103.4
-------- -------- ------- -------- --------
Earnings available for
fixed charges $2,478.0 $2,261.0 $3,134.8 $2,611.6 $2,381.6
-------- -------- -------- -------- --------
Fixed Charges:
Interest expense $ 433.9 $ 403.5 $ 572.7 $ 586.1 $ 613.7
Capitalized
interest 4.0 4.2 6.5 6.6 10.0
Amortization of
debt discount 0.2 0.2 0.2 0.3 0.3
Interest portion of net
rent expense (a) 99.6 89.9 134.4 121.4 103.4
------- ------- ------- -------- --------
Total fixed charges $ 537.7 $ 497.8 $ 713.8 $ 714.4 $ 727.4
-------- -------- -------- -------- --------
Ratio of Earnings
to Fixed Charges 4.61 4.54 4.39 3.66 3.27
-------- ------ ------- ------- -------
</TABLE>
(a) One-third of net rent expense is the portion deemed representative of
the interest factor.
<PAGE>
Exhibit 23(a)
Consent of Independent Auditors
We consent to the use of our audit report dated February 1, 1994
on the consolidated financial statements and schedules of
PepsiCo, Inc. and subsidiaries as of December 25, 1993 and
December 26, 1992 and for each of the years in the three year
period ended December 25, 1993 incorporated herein by reference
in the Registration Statement on Form S-3 and in the related
prospectus of PepsiCo, Inc. pertaining to the registration of
$2,500,000,000 in principal amount of debt securities and
warrants for PepsiCo, Inc. and to the reference to our Firm under
the heading "Experts" in the Registration Statement.
Our report refers to PepsiCo's adoption of the provisions of the
Financial Accounting Standards Board's Statements of Financial
Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions" and No. 109,
"Accounting for Income Taxes" in 1992.
/s/ KPMG Peat Marwick LLP
New York, New York
January 6, 1995
</PAGE>
<PAGE>
PepsiCo, Inc.
Purchase, New York
Re: The Registration Statement on Form S-3 and in the related prospectus of
PepsiCo, Inc. pertaining to the registration of $2,500,000,000 in
principal amount of debt securities and warrants for PepsiCo, Inc.
With respect to the subject registration statement, we acknowledge our
awareness of the use therein of our reports dated April 26, 1994, July 19,1994
and October 11, 1994 related to our reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant within the meaning of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG Peat Marwick LLP
New York, New York
January 6, 1995
</PAGE>
Securities Act of 1933
File No. _________
(If application to
determine eligibility of trustee
for delayed offering
pursuant to Section 305 (b) (2))
- ---------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF
1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
-------------------
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
-------------------
PEPSICO, Inc.
(Exact name of obligor as specified in its charter)
North Carolina
(State or other jurisdiction of incorporation or
organization)
13-1584302
(I.R.S. Employer Identification No.)
700 Anderson Hill Road
Purchase, New York
(Address of principal executive offices)
10577
(Zip Code)
----------------------------------------
Debt Securities
(Title of the indenture securities)
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
Item 1. General Information.
Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve
System, Washington, D. C.
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
The Trustee is not the obligor, nor is the Trustee
directly or indirectly controlling,
controlled by, or under common control with the
obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this
statement of eligibility.
*1. -- A copy of the articles of association of the
trustee as now in effect .(See Exhibit T-1
(Item 12) , Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of
The Chase Manhattan Bank (National Association)
and The Chase Bank of New York (National
Association) to commence business and a
copy of approval of merger of said corporations, all of
which documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-
67437.)
*3. -- Copies of authorizations of The Chase
Manhattan Bank (National Association) to exercise
corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1
(Item 12), Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the
trustee. (See Exhibit T-1 (Item 12(a)), Registration
No. 22-26320.)
*5. -- A copy of each indenture referred to in
Item 4, if the obligor is in default. (Not applicable).
*6. -- The consents of United States
institutional trustees required by Section 321(b) of the
Act.
(See Exhibit T-1, (Item 12), Registration No. 22-19019.)
7. -- A copy of the latest report of condition
of the trustee published pursuant to law or the
requirements of its supervising or examining
authority.
___________________
*The Exhibits thus designated are incorporated herein
by reference. Following the description of such Exhibits is
a reference to the copy of the Exhibit heretofore filed with
the Securities and Exchange Commission, to which there have
been no amendments or changes.
-1-
NOTE
Inasmuch as this Form T-1 is filed prior to the
ascertainment by the trustee of all facts on which to base a
responsive answer to Item 2 the answer to said Item is based
on incomplete information.
Item 2 may, however, be considered as correct
unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture
Act of 1939, the trustee, The Chase Manhattan Bank (National
Association), a corporation organized and existing under the
laws of the United States of America, has duly caused this
statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized , all in the City of
New York, and the State of New York, on the 12th day
December, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: /s/ Mary Lewicki
----------------------
MARY LEWICKI
Corporate Trust
-2-
Exhibit 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of
business on June 30, 1994, published in response to call
made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
Charter Number 2370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
Thousands
of Dollars
----------
ASSETS
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin........................................ $ 4,956,205
Interest-bearing balances.................... 6,138,639
Held to maturity securities.................... 926,935
Available-for-sale securities.................. 4,934,082
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold......................... 3,032,000
Securities purchased under agreements to
resell...................................... 0
Loans and lease financing receivable:
Loans and leases, net of unearned
income................................$49,508,041
LESS: Allowance for loan and lease
losses..................................1,087,962
LESS: Allocated transfer risk
reserve.........................................0
Loans and leases, net of unearned income,
allowance, and reserve....................... 48,420,079
Assets held in trading accounts................... 18,856,428
Premises and fixed assets (including capitalized
leases)........................................ 1,653,111
Other real estate owned........................ 822,608
Investments in unconsolidated subsidiaries and
associated companies........................... 57,230
Customers' liability to this bank on acceptances
outstanding..................................... 814,608
Intangible assets............................... 378,800
Other assets.................................... 4,400,477
---------
TOTAL ASSETS.................................... $95,391,202
LIABILITIES
Deposits:
In domestic offices.......................... $30,434,771
Noninterest-bearing.............$11,442,433
Interest-bearing................$18,992,338
-----------
In foreign offices, Edge and Agreement
subsidiaries, and IBFs:........................ 33,399,860
Noninterest-bearing..............$ 2,858,541
Interest-bearing...................30,541,319
-----------
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased....................... 1,134,731
Securities sold under agreements to repurchase. 69,783
Demand notes issued to the U.S. Treasury........ 25,000
Trading liabilities............................. 12,831,327
Other borrowed money:
With original maturity of one year or less.... 2,678,498
With original maturity of more than one year.. 167,944
Mortgage indebtedness and obligations under
capitalized leases.............................. 40,965
Bank's liability on acceptances executed and
outstanding.................................... 825,499
Subordinated notes and debentures.............. 2,360,000
Other liabilities.............................. 4,681,805
----------
TOTAL LIABILITIES 88,650,183
----------
Limited-life preferred stock and related surplus.. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus.... 0
Common stock..................................... 913,113
Surplus.......................................... 4,614,743
Undivided profits and capital reserves........... 1,226,618
Net unrealized holding gains (losses) on
available-for-sale securities................... (24,868)
Cumulative foreign currency translation
adjustments..................................... 11,413
--------
TOTAL EQUITY CAPITAL 6,741,019
---------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL.......................... $95,391,202
-----------
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and
Controller of the above named bank do hereby declare that
this Report of Condition is true and correct to the best of
my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of
this statement of resources and liabilities. We declare that
it has been examined by us, and to the best of our knowledge
and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
