EX-4.5






Exhibit 4.5




BOTTLING GROUP, LLC

(as Obligor)




and




PEPSICO, INC.

(as Guarantor)




and




THE BANK OF NEW YORK MELLON

(as Trustee)




Form of Indenture




Dated as of October     , 2008




SENIOR NOTES




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

	Section 1.01.

	 	Definitions
	 	 	1	 
	Section 1.02.

	 	Officers’ Certificates and Opinions
	 	 	11	 
	Section 1.03.

	 	Form of Documents Delivered to Trustee
	 	 	12	 
	Section 1.04.

	 	Acts of Holders
	 	 	12	 
	Section 1.05.

	 	Notices, Etc., to Trustee, Obligor and Guarantor
	 	 	13	 
	Section 1.06.

	 	Notice to Holders; Waiver
	 	 	14	 
	Section 1.07.

	 	Conflict with Trust Indenture Act
	 	 	14	 
	Section 1.08.

	 	Effect of Headings and Table of Contents
	 	 	14	 
	Section 1.09.

	 	Successors and Assigns
	 	 	14	 
	Section 1.10.

	 	Separability Clause
	 	 	15	 
	Section 1.11.

	 	Benefits of Indenture
	 	 	15	 
	Section 1.12.

	 	Governing Law
	 	 	15	 
	Section 1.13.

	 	Counterparts
	 	 	15	 
	Section 1.14.

	 	Legal Holidays
	 	 	15	 
	 
	 	 	 	 	 	 
	ARTICLE II

	THE NOTES

	 
	 	 	 	 	 	 
	Section 2.01.

	 	Form and Dating
	 	 	15	 
	Section 2.02.

	 	Execution and Authentication
	 	 	19	 
	Section 2.03.

	 	Temporary Notes
	 	 	20	 
	Section 2.04.

	 	Registration, Transfer and Exchange
	 	 	20	 
	Section 2.05.

	 	Mutilated, Destroyed, Lost and Stolen Notes
	 	 	23	 
	Section 2.06.

	 	Payment of Interest; Interest Rights Preserved
	 	 	24	 
	Section 2.07.

	 	Persons Deemed Owners
	 	 	25	 
	Section 2.08.

	 	Cancellation
	 	 	25	 
	Section 2.09.

	 	Computation of Interest
	 	 	26	 
	Section 2.10.

	 	CUSIP Numbers
	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE III

	DISCHARGE OF INDENTURE

	 
	 	 	 	 	 	 
	Section 3.01.

	 	Discharge of Indenture
	 	 	26	 
	Section 3.02.

	 	Defeasance and Discharge of Covenants upon
Deposit of Moneys, U.S. Government Obligations
	 	 	27	 
	Section 3.03.

	 	Application of Trust Money
	 	 	29	 
	Section 3.04.

	 	Paying Agent to Repay Moneys Held
	 	 	29	 
	Section 3.05.

	 	Return of Unclaimed Amounts
	 	 	29	 
	Section 3.06.

	 	Reinstatement
	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	REMEDIES

	Section 4.01.

	 	Events of Default
	 	 	30	 








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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 4.02.

	 	Acceleration of Maturity; Rescission and Annulment
	 	 	32	 
	Section 4.03.

	 	Collection of Indebtedness and Suits for Enforcement
	 	 	33	 
	Section 4.04.

	 	Trustee May File Proofs of Claim
	 	 	34	 
	Section 4.05.

	 	Trustee May Enforce Claims Without Possession of Notes
	 	 	34	 
	Section 4.06.

	 	Application of Money Collected
	 	 	35	 
	Section 4.07.

	 	Limitation on Suits
	 	 	35	 
	Section 4.08.

	 	Unconditional Right of Holders to Receive Payment
of Principal, Premium and Interest
	 	 	36	 
	Section 4.09.

	 	Restoration of Rights and Remedies
	 	 	36	 
	Section 4.10.

	 	Rights and Remedies Cumulative
	 	 	36	 
	Section 4.11.

	 	Delay or Omission Not Waiver
	 	 	36	 
	Section 4.12.

	 	Control by Holders
	 	 	36	 
	Section 4.13.

	 	Waiver of Past Defaults
	 	 	37	 
	Section 4.14.

	 	Undertaking for Costs
	 	 	37	 
	Section 4.15.

	 	Waiver of Stay or Extension Laws
	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE V

	THE TRUSTEE

	 
	 	 	 	 	 	 
	Section 5.01.

	 	Certain Duties and Responsibilities of Trustee
	 	 	38	 
	Section 5.02.

	 	Notice of Defaults
	 	 	39	 
	Section 5.03.

	 	Certain Rights of Trustee
	 	 	39	 
	Section 5.04.

	 	Not Responsible for Recitals or Issuance of Notes
	 	 	40	 
	Section 5.05.

	 	May Hold Notes
	 	 	40	 
	Section 5.06.

	 	Money Held in Trust
	 	 	40	 
	Section 5.07.

	 	Compensation and Reimbursement
	 	 	41	 
	Section 5.08.

	 	Disqualification; Conflicting Interests
	 	 	41	 
	Section 5.09.

	 	Corporate Trustee Required; Eligibility
	 	 	42	 
	Section 5.10.

	 	Resignation and Removal; Appointment of Successor
	 	 	42	 
	Section 5.11.

	 	Acceptance of Appointment by Successor
	 	 	44	 
	Section 5.12.

	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	45	 
	Section 5.13.

	 	Preferential Collection of Claims Against Obligor
	 	 	45	 
	Section 5.14.

	 	Appointment of Authenticating Agent
	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND OBLIGOR

	 
	 	 	 	 	 	 
	Section 6.01.

	 	Obligor to Furnish Trustee Names and Addresses of Holders
	 	 	47	 
	Section 6.02.

	 	Preservation of Information; Communications to Holders
	 	 	47	 
	Section 6.03.

	 	Reports by Trustee
	 	 	47	 
	Section 6.04.

	 	Reports by Obligor and Guarantor
	 	 	48	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	CONSOLIDATION, MERGER OR TRANSFER

	 
	 	 	 	 	 	 
	Section 7.01.

	 	Obligor May Consolidate, Etc., Only on Certain Terms
	 	 	48	 





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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 7.02.

	 	Guarantor May Consolidate, Etc., Only on Certain Terms
	 	 	48	 
	Section 7.03.

	 	Successor Entity Substituted
	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	SUPPLEMENTAL INDENTURES

	 
	 	 	 	 	 	 
	Section 8.01.

	 	Supplemental Indentures Without Consent of Holders
	 	 	49	 
	Section 8.02.

	 	Supplemental Indentures with Consent of Holders
	 	 	51	 
	Section 8.03.

	 	Execution of Supplemental Indentures
	 	 	52	 
	Section 8.04.

	 	Effect of Supplemental Indentures
	 	 	52	 
	Section 8.05.

	 	Conformity with Trust Indenture Act
	 	 	52	 
	Section 8.06.

	 	Documents to Be Given to Trustee
	 	 	52	 
	Section 8.07.

	 	Notation on Notes in Respect of Supplemental Indentures
	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	COVENANTS

	 
	 	 	 	 	 	 
	Section 9.01.

	 	Payment of Principal, Premium and Interest
	 	 	53	 
	Section 9.02.

	 	Maintenance of Office or Agency
	 	 	53	 
	Section 9.03.

	 	Money for Note Payments to be Held in Trust
	 	 	53	 
	Section 9.04.

	 	Certificate to Trustee
	 	 	54	 
	Section 9.05.

	 	Existence
	 	 	55	 
	Section 9.06.

	 	Limitation on Liens
	 	 	55	 
	Section 9.07.

	 	Limitation on Sale-Leaseback Transactions
	 	 	57	 
	 
	 	 	 	 	 	 
	ARTICLE X

	REDEMPTION OF NOTES

	 
	 	 	 	 	 	 
	Section 10.01.

	 	Election to Redeem; Notice to Trustee
	 	 	57	 
	Section 10.02.

	 	Selection by Trustee of the Notes to be Redeemed
	 	 	58	 
	Section 10.03.

	 	Notice of Redemption
	 	 	58	 
	Section 10.04.

	 	Deposit of Redemption Price
	 	 	59	 
	Section 10.05.

	 	Notes Payable on Redemption Date
	 	 	59	 
	Section 10.06.

	 	Notes Redeemed in Part
	 	 	59	 
	Section 10.07.

	 	Optional Redemption
	 	 	59	 
	Section 10.08.

	 	Mandatory Redemption
	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	GUARANTEE

	 
	 	 	 	 	 	 
	Section 11.01.

	 	Guarantee
	 	 	60	 
	Section 11.02.

	 	Execution and Delivery of the Guarantee
	 	 	64	 
	Section 11.03.

	 	Limitation of the Guarantor’s Liability
	 	 	64	 
	Section 11.04.

	 	Subrogation
	 	 	65	 
	 
	 	 	 	 	 	 
	EXHIBIT A:

	 	Guarantee
	 	 	A-1	 





iii




 











 





          THIS INDENTURE, among Bottling Group, LLC, a Delaware limited liability company (the
“Obligor”), having its principal office at One Pepsi Way, Somers, New York 10589, PepsiCo,
Inc., a North Carolina corporation, as guarantor (the “Guarantor”), having its principal
office at 700 Anderson Hill Road, Purchase, NY 10577, and The Bank of New York Mellon, a national
banking association organized and existing under the laws of the United States of America, as
trustee (the “Trustee”), is made and entered into as of this [•] day of October, 2008.




RECITALS OF THE OBLIGOR AND THE GUARANTOR




          WHEREAS, the Obligor has duly authorized the issuance from time to time of its Senior Notes in
one or more series (the “Notes”) up to such principal amount or amounts as may from time to
time be authorized in accordance with the terms of this Indenture and to provide, among other
things, for the authentication, delivery and administration thereof, the Obligor has duly
authorized the execution and delivery of this Indenture;




          WHEREAS, this Indenture provides for the issuance of a Guarantee of the Notes to be endorsed
on the Notes as provided herein;




          WHEREAS, the Guarantor wishes to guarantee the Notes as provided herein;




          WHEREAS, the Guarantee shall become effective on the Guarantee Commencement Date (as
hereinafter defined), except that under certain circumstances described below the Guarantee may not
become effective or may only be a partial guarantee of the principal of and interest and premium,
if any on the Notes; and




          WHEREAS, all things necessary to make this Indenture a valid agreement of the Obligor and the
Guarantor, in accordance with its terms, have been done.




          NOW, THEREFORE:




          In consideration of the premises and the purchases of the Notes by the Holders (as hereinafter
defined) thereof, the Obligor, the Guarantor and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective Holders from time to time of the Notes or any
series thereof as follows:




ARTICLE I




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




          SECTION 1.01. Definitions. For all purposes of this Indenture, and of any indenture
supplemental hereto, except as otherwise expressly provided or unless the context otherwise
requires:




     (1) the terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;



1









 






     (2) all other terms used herein which are defined in the Trust Indenture Act (as
hereinafter defined), either directly or by reference therein, have the meanings assigned to
them therein;




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with U.S. GAAP; and




     (4) all references in this instrument to designated “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of this
instrument as originally executed. The words “herein,” “hereof,” and “hereunder” and other
words of similar import refer to this Indenture as a whole and not to any particular
Article, Section, or other subdivision.



          “Act,” when used with respect to any Holder, has the meaning specified in Section
1.04.




          “Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract, or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.




          “Attributable Debt” for a lease means the aggregate of present values (discounted at a
rate per annum equal to the weighted average interest rate borne by all Outstanding Notes and
compounded semi-annually) of the obligations of the Obligor or any Restricted Subsidiary of the
Obligor for net rental payments during the remaining term of such lease (including any period for
which such lease has been extended or may, at the option of the lessor, be extended). The term
“net rental payments” under any lease of any period shall mean the sum of the rental and other
payments required to be paid in such period by the lessee thereunder, not including, however, any
amounts required to be paid by such lessee on account of maintenance and repairs, reconstruction,
insurance, taxes, assessments, water rates or similar charges required to be paid by such lessee
thereunder or any amounts required to be paid by such lessee thereunder contingent upon the amount
of sales, maintenance and repairs, reconstruction, insurance, taxes, assessments, water rates or
similar charges. Attributable Debt may be reduced by the present value of the rental obligations,
calculated on the same basis, that any sublessee has for all or part of the leased property.




          “Authenticating Agent” means any Person authorized by the Trustee to authenticate
Notes under Section 5.14.




          “Authentication Order” has the meaning specified in Section 2.02(1).




          “Bankruptcy Code” means title 11, U.S. Code, as amended, or any similar state or
federal law for the relief of debtors.




          “Benefitted Party” has the meaning specified in Section 11.01.




2









 








          “Board of Directors” means, with respect to the Guarantor, (a) the board of directors
of the Guarantor or (b) any duly authorized committee of that board.



          “Board Resolution” means, with respect to the Guarantor, a copy of a resolution of the
Board of Directors certified by the Secretary or an Assistant Secretary of the Guarantor to have
been duly adopted by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.



          “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in New York City or Luxembourg are authorized or
required by law, regulation or executive order to be closed.



          “Commission” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such date.



          “Company Request” or “Company Order” means (a) with respect to the Obligor, a
written request or order, respectively, signed in the name of the Obligor by any Officer thereof
and delivered to the Trustee and (b) with respect to the Guarantor, a written request or order,
respectively, signed in the name of the Guarantor by any Officer thereof and delivered to the
Trustee.



          “Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to
be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Notes.



          “Comparable Treasury Price” means, with respect to any Redemption Date for the Notes
of any series, (a) the average of four Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (b) if
the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all
such quotations.



          “Consolidated Net Tangible Assets” means, with respect to any Person, the total amount
of assets of such Person and its Subsidiaries minus (a) all applicable depreciation, amortization,
and other valuation reserves, (b) the amount of assets resulting from write-ups of capital assets
of such Person and its Subsidiaries (except write-ups in connection with accounting for
acquisitions in accordance with U.S. GAAP), (c) all current liabilities of such Person and its
Subsidiaries (excluding any intercompany liabilities) and (d) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set
forth on the latest quarterly or annual consolidated balance sheet of such Person and its
Subsidiaries prepared in accordance with U.S. GAAP.



          “Corporate Trust Office” means the office of the Trustee in the City of New York at
which at any particular time its corporate trust business shall be principally administered, which
office at the date hereof is located at 4 New York Plaza, New York, New York 10004,



3









 







except that with respect to the presentation of Notes for payment or registration of transfer
or exchange and with respect to the location of the Security Register, such term shall mean the
office or the agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted, which office at the date hereof is located at 4 New York Plaza,
15th Floor, New York, New York 10004.



          “Covenant Defeasance” has the meaning specified in Section 3.02.



          “Custodian” means the Person appointed by the Obligor to act as custodian for the
Depositary, which Person shall be the Trustee unless and until a successor Person is appointed by
the Obligor.



          “Debt” means, (a) with respect to the Obligor, any indebtedness of the Obligor for
borrowed money, capitalized lease obligations and purchase money obligations, or any guarantee of
such debt, in any such case which would appear on the consolidated balance sheet of the Obligor as
a liability, and, (b) with respect to the Guarantor, any indebtedness of the Guarantor for borrowed
money.



          “Defaulted Interest” has the meaning specified in Section 2.06.



          “Definitive Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with this Indenture.



          “Depositary” means with respect to the Notes of any series issuable or issued in whole
or in part in global form, the Person designated as Depositary for such series by the Obligor
pursuant to Section 2.01 or 2.04, unless and until a successor Depositary for such series shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter
“Depositary” with respect to the Notes of a series shall mean or include each Person who is then a
Depositary hereunder with respect to such series.



          “Discharged” has the meaning specified in Section 3.02.



          “DTC” has the meaning specified in Section 2.04(2).



          “Entity” means any corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust or unincorporated organization.



          “Event of Default” has the meaning specified in Section 4.01.



          “Exchange Act” means the U.S. Securities Exchange Act of 1934 (or any successor Act),
as amended, and the rules and regulations of the Commission promulgated thereunder.



          “Exempted Debt” means the sum, without duplication, of the following items outstanding
as of the date Exempted Debt is being determined: (a) Debt incurred after the date of this
Indenture and secured by Liens created or assumed or permitted to exist on any Principal Property
(as such term is defined with respect to the Obligor) or on any shares of stock of any Restricted
Subsidiary of the Obligor, other than Debt secured by Liens described in clauses (i)



4









 







through (vii) of Section 9.06(1) and (b) Attributable Debt of the Obligor and its Restricted
Subsidiaries in respect of all sale and lease-back transactions with regard to any Principal
Property (as such term is defined with respect to the Obligor) entered into pursuant to Section
9.07(2).



          “Funded Debt” means all Debt having a maturity of more than one year from the date of
its creation or having a maturity of less than one year but by its terms being renewable or
extendible, at the option of the obligor in respect thereof, beyond one year from its creation.



          “Global Note” means each note in global form issued in accordance with this Indenture
and bearing the Global Note Legend.



          “Global Note Legend” means the legend set forth in Section 2.01, which is required to
be placed on all Global Notes issued pursuant to this Indenture.



          “Guarantee” means the guarantee of the Obligor’s obligations under this Indenture and
the Notes by the Guarantor pursuant to Article XI.



          “Guarantee Commencement Date” means, if the Guarantee becomes effective pursuant to
Article XI hereof, one Business Day prior to the 2009 Notes Payment Date.



          “Guarantor” means PepsiCo, Inc., a North Carolina corporation, unless and until a
successor Entity or assign shall have assumed the obligations of the Guarantor under this Indenture
and the Guarantee and thereafter “Guarantor” shall mean such successor Entity or assign.



          “Holder” and “Holder of Notes” means a Person in whose name a Note is
registered in the Security Register.



          “Indenture” or “this Indenture” means this Indenture, as amended or
supplemented from time to time, including the Exhibits hereto.



          “Independent Investment Banker” means one of the Reference Treasury Dealers appointed
by the Trustee after consultation with the Obligor.



          “Interest Payment Date,” when used with respect to any Note, means the date specified
in such Note on which an installment of interest on such Note is scheduled to be paid.



          “Issue Date” of any Note (or portion thereof) means the earlier of (a) the date of
such Note or (b) the date of any Note (or portion thereof) for which such Note was issued (directly
or indirectly) on registration of transfer, exchange or substitution.



          “Legal Defeasance” has the meaning specified in Section 3.02.



          “Lien” has the meaning specified in Section 9.06(1).



          “Managing Director-Delegatee” means the Managing Director-Delegatee of the Obligor or
the Guarantor.



5









 





          “Managing Directors” means (a) the Managing Directors of the Obligor or the Guarantor
or (b) any duly authorized committee of the Managing Directors of the Obligor or the Guarantor.



          “Managing Directors Resolution” means, with respect to the Obligor or the Guarantor, a
copy of a resolution of the Managing Directors certified by a Managing Director or a Managing
Director-Delegatee of the Obligor or the Guarantor to have been duly adopted by the Managing
Directors and to be in full force and effect on the date of such certification, and delivered to
the Trustee.



          “Maturity,” when used with respect to any Note, means the date on which all or a
portion of the principal amount outstanding under such Note becomes due and payable, whether on the
Maturity Date or by declaration of acceleration, call for redemption, or otherwise.



          “Maturity Date,” when used with respect to any Note or any installment of principal
thereof means the date specified in such Note as the fixed date on which the principal of such Note
or such installment of principal becomes due and payable.



          “Notes” has the meaning specified in the Recitals of the Obligor on the first page of
this Indenture, including any replacement Notes issued therefor in accordance with this Indenture.



          “Obligor” means Bottling Group, LLC, a Delaware limited liability company, unless and
until a successor Entity or assign shall have assumed the obligations of the Obligor under this
Indenture and the Notes and thereafter “Obligor” shall mean such successor Entity or assign.



          “Officer” means, (a) with respect to the Obligor, a Managing Director, a Managing
Director-Delegatee, the principal financial officer or any other officer or officers of the Obligor
designated pursuant to an applicable Managing Directors Resolution or (b) with respect to the
Guarantor, the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the
Executive Vice President, any Vice President, the Treasurer, the Assistant Treasurer or any other
officer or officers of the Guarantor designated pursuant to an applicable Board Resolution.



          “Officers’ Certificate” means, with respect to any Person, a certificate signed on
behalf of such Person by any two Officers of such Person that meets the applicable requirements of
this Indenture.



          “Opinion of Counsel” means, with respect to the Obligor, the Guarantor or the Trustee,
a written opinion of counsel to the Obligor, the Guarantor or the Trustee, as the case may be,
which counsel may be an employee of the Obligor, the Guarantor or the Trustee, as the case may be.



          “Outstanding,” when used with respect to the Notes or any series of Notes means, as of
the date of determination, all Notes or all Notes of such series, as the case may be, theretofore
authenticated and delivered under this Indenture, except:



6









 






     (a) such Notes or such Notes of such series, as the case may be, theretofore cancelled
by the Trustee or delivered to the Trustee for cancellation;




     (b) such Notes or such Notes of such series, as the case may be, or portions thereof,
for whose payment or redemption money in the necessary amount has been theretofore deposited
in trust with the Trustee or with any Paying Agent other than the Obligor, or, if the
Obligor shall act as its own Paying Agent, has been set aside and segregated in trust by the
Obligor; provided, in any case, that if such Notes or such Notes of such series, as the case
may be, are to be redeemed prior to their Maturity Date, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;




     (c) such Notes or such Notes of such series, as the case may be, in exchange for or in
lieu of which other Notes or other Notes of such series, as the case may be, have been
authenticated and delivered pursuant to this Indenture, or which shall have been paid, in
each case, pursuant to the terms of Section 2.05 (except with respect to any such Note or
any such Note of such series, as the case may be, as to which proof satisfactory to the
Trustee is presented that such Note or such Note of such series, as the case may be, is held
by a person in whose hands such Notes or such Notes of such series, as the case may be, is a
legal, valid, and binding obligation of the Obligor); and




     (d) solely to the extent provided in Article III, Notes or Notes of such series, as the
case may be, which are subject to Legal Defeasance or Covenant Defeasance as provided in
Section 3.02. In determining whether the Holders of the requisite principal amount of such
Notes or Notes of such series, as the case may be, Outstanding have given a direction
concerning the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or concerning the exercise of any trust or power conferred upon the Trustee
under this Indenture, or concerning a consent on behalf of the Holders of the Notes or the
Holders of the Notes of such series, as the case may be, to the waiver of any past default
and its consequences, Notes or the Notes of such series, as the case may be, owned by the
Obligor, any other obligor upon the Notes or Notes of such series, as the case may be, or
any Affiliate of the Obligor or such other obligor shall be disregarded and deemed not to be
Outstanding. In determining whether the Trustee shall be protected in relying upon any
request, demand, authorization, direction, notice, consent, or waiver hereunder, only Notes
or Notes of such series, as the case may be, which a Responsible Officer assigned to the
corporate trust department of the Trustee knows to be owned by the Obligor or any other
obligor upon the Notes or the Notes of such series, as the case may be, or any Affiliate of
the Obligor or such other obligor shall be so disregarded. Notes or Notes of such series,
as the case may be, so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right to act as owner with respect to such Notes or Notes of such series, as the case may
be, and that the pledgee is not the Obligor or any other obligor upon the Notes or the Notes
of such series, as the case may be, or any Affiliate of the Obligor or such other obligor.



          “Partial Guarantee Percentage” means a fraction, (a) the numerator of which is (i) the
aggregate principal amount of the Notes Outstanding on the 2009 Notes Payment Date




7









 







minus (ii) the principal of the 2009 Notes that the Guarantor has determined in good
faith that the Guarantor is likely to have to pay on the 2009 Notes on the 2009 Notes Payment Date
under the 2009 Notes Guarantee and that is specified in the Partial Payment Notice and (b) the
denominator of which is the aggregate principal amount of the Notes Outstanding on the 2009 Notes
Payment Date.




          “Partial Payment Notice” has the meaning specified in Section 11.01.



          “Paying Agent” means any Person appointed by the Obligor to distribute amounts payable
by the Obligor on the Notes. The Obligor may act as its own Paying Agent. As of the date of this
Indenture, the Obligor has appointed The Bank of New York Mellon as Paying Agent with respect to
all Notes issuable hereunder.



          “PBG” means The Pepsi Bottling Group, Inc., a Delaware corporation.



          “Person” means any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated organization, or government,
or any agency or political subdivision thereof.



          “Place of Payment” means the place specified pursuant to Section 9.02.



          “Predecessor Notes” of any particular Note means every previous Note evidencing all or
a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.05 in lieu of a lost, destroyed,
mutilated, or stolen Note shall be deemed to evidence the same debt as the lost, destroyed,
mutilated, or stolen Note.



          “Principal Property” means, (a) with respect to the Obligor, any single manufacturing
or processing plant, office building, or warehouse owned or leased by the Obligor or a Subsidiary
of the Obligor, in each case, located in the 50 states of the United States of America, the
District of Columbia or Puerto Rico, other than a plant, warehouse, office building, or portion
thereof which, in the opinion of the Managing Directors evidenced by a Managing Directors
Resolution, is not of material importance to the business conducted by the Obligor and its
Subsidiaries taken as an entirety and, (b) with respect to the Guarantor, any single manufacturing
or processing plant, office building, or warehouse owned or leased by the Guarantor or a Restricted
Subsidiary of the Guarantor, in each case, located in the 50 states of the United States of
America, the District of Columbia or Puerto Rico, other than a plant, warehouse, office building,
or portion thereof which, in the opinion of the Guarantor’s Board of Directors evidenced by a Board
Resolution, is not of material importance to the business conducted by the Guarantor and its
Restricted Subsidiaries as an entirety.



          “Record Date” means any date as of which the Holder of a Note of any series will be
determined for any purpose described herein, such determination to be made as of the close of
business on such date by reference to the Security Register, and in relation to a determination of
a payment of an installment of interest on the Notes of any series, shall have the meaning
specified in such series of Notes.



8









 





          “Redemption Date” when used with respect to any Notes to be redeemed, means the date
fixed for such redemption in any notice of redemption issued pursuant to this Indenture.



          “Redemption Price” when used with respect to any Notes to be redeemed, means the price
specified in Section 10.07.



          “Reference Treasury Dealer” means four primary U.S. Government securities dealers in
New York City (each, a “Primary Treasury Dealer”), either named in the prospectus supplement
relating to a series of Notes or appointed by the Trustee in consultation with the Obligor;
provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the
Obligor shall substitute therefor another Primary Treasury Dealer.



          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.



          “Registrar” means the Person who maintains the Security Register, which Person shall
be the Trustee unless and until a successor Registrar is appointed by the Obligor.



          “Responsible Officer,” when used with respect to the Trustee, means any officer of the
Trustee having direct responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.



          “Restricted Subsidiary” means, (a) with respect to the Obligor or PBG, any current or
future Subsidiary of the Obligor or PBG, as the case may be, (i) substantially all of the property
of which is located, or substantially all of the business of which is carried on, within the 50
states of the United States of America, the District of Columbia or Puerto Rico and which is not a
foreign corporation, and (ii) which owns or leases any Principal Property or, (b) with respect to
the Guarantor, at any time, any Subsidiary of the Guarantor which is at the time not an
Unrestricted Subsidiary.



          “Scheduled Guarantee Commencement Date” means one Business Day prior to the 2009 Notes
Payment Date.



          “Securities Act” means the U.S. Securities Act of 1933 (or any successor Act), as
amended, and the rules and regulations of the Commission promulgated thereunder.



          “Security Register” has the meaning specified in Section 2.04.



          “Special Record Date” for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 2.06.



          “Subsidiary” of any specified Person means any Person at least a majority of whose
outstanding Voting Stock shall at the time be owned, directly or indirectly, by the specified
Person or by one or more of its Subsidiaries, or both.



9









 





          “Treasury Rate” means, with respect to any Redemption Date for the Notes: (i) the
yield, under the heading which represents the average for the immediately preceding week, appearing
in the most recently published statistical release designated
“H.15(519)” or any successor
publication which is published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after the remaining term
of the Notes to be redeemed, yields for the two published maturities most closely corresponding to
the Comparable Treasury Issue shall be calculated, and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis, rounding to the nearest month); or (ii) if
such statistical release (or any successor statistical release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.



          “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as
amended, as in force as of the date hereof; provided that, with respect to every supplemental
indenture executed pursuant to this Indenture, “Trust Indenture Act” or “TIA” shall
mean the Trust Indenture Act of 1939, as then in effect.



          “Trustee” means the Person named as the “Trustee” in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean, or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee”
as used with respect to the Notes of any series shall mean the Trustee with respect to the Notes of
that series.



          “2009
Notes” means the Obligor’s outstanding $1,300,000,000 55/8% Senior Notes due 2009
guaranteed by the Guarantor.



          “2009 Notes Guarantee” means the Guarantor’s unconditional and irrevocable guarantee
of the 2009 Notes.



          “2009 Notes Payment Date” means February 17, 2009 or, if earlier, the date scheduled
for payment of (a) the redemption price (in the event of a redemption in whole) or (b) the
principal of and interest and premium, if any (in the event of acceleration), in each case, on the
2009 Notes.



          “2009 Notes Payment Deposit Date” means two Business Days prior to the 2009 Notes
Payment Date.



          “2009 Notes Trustee” means JPMorgan Chase Bank, in its capacity as the trustee under
the indenture relating to the 2009 Notes, or its successor thereunder.



          “Unrestricted Subsidiary” means, with respect to the Guarantor, any Subsidiary of the
Guarantor (not at the time designated a Restricted Subsidiary of the Guarantor) (a) the major



10









 







part of whose business consists of finance, banking, credit, leasing, insurance, financial
services, or other similar operations, or any combination thereof, (b) substantially all the assets
of which consist of the capital stock of one or more Subsidiaries engaged in the operations
referenced in the preceding clause (a), (c) substantially all of the property of which is located,
or substantially all of the business of which is carried on, outside the 50 states of the United
States of America, the District of Columbia and Puerto Rico or (d) designated as such by the
Guarantor’s Board of Directors. Any Subsidiary of the Guarantor designated as a Restricted
Subsidiary may be designated as an Unrestricted Subsidiary.



          “U.S. GAAP” means accounting principles as are generally accepted in the United States
of America at the date of any computation required or permitted under this Indenture.



          “U.S. Government Obligations” means (a) securities that are direct obligations of the
United States of America, the payment of which is unconditionally guaranteed by the full faith and
credit of the United States of America and (b) securities that are obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed by the full faith and credit of the
United States of America, and also includes depository receipts issued by a bank or trust company
as custodian with respect to any of the securities described in the preceding clauses (a) and (b),
and any payment of interest or principal payable under any of the securities described in the
preceding clauses (a) and (b) that is held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository receipt, or from any
amount received by the custodian in respect of such securities, or from any specific payment of
interest or principal payable under the securities evidenced by such depository receipt.



          “Vice President” means, with respect to any Person, any vice president of that Person,
whether or not designated by a number or a word or words added before or after the title “vice
president.”



          “Voting Stock” means, as applied to any Person, capital stock (or other interests,
including partnership or membership interests) of any class or classes (however designated), the
outstanding shares (or other interests) of which have, by the terms thereof, ordinary voting power
to elect a majority of the members of the board of directors (or other governing body) of such
Person, other than stock (or other interests) having such power only by reason of the happening of
a contingency.



          SECTION 1.02. Officers’ Certificates and Opinions. Every Officers’ Certificate,
Opinion of Counsel and other certificate or opinion to be delivered to the Trustee under this
Indenture with respect to any action to be taken by the Trustee shall include the following:




     (1) a statement that each individual signing such certificate or opinion has read all
covenants and conditions of this Indenture relating to such proposed action, including the
definitions of all applicable capitalized terms;



11









 






     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of each such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with; and




     (4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.



          SECTION 1.03. Form of Documents Delivered to Trustee.





     (1) In any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to the other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.




     (2) Any certificate or opinion of an officer of the Obligor may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, legal
counsel, unless such officer knows that any such certificate, opinion, or representation is
erroneous. Any opinion of counsel for the Obligor may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Obligor, unless such counsel knows that any such certificate, opinion, or
representation is erroneous.




     (3) Where any Person is required to make, give, or execute two or more applications,
requests, consents, certificates, statements, opinions, or other instruments under this
Indenture, such instruments may, but need not, be consolidated and form a single instrument.




     SECTION 1.04. Acts of Holders.




     (1) Any request, demand, authorization, direction, notice, consent, waiver, or other
action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and (if expressly required by the applicable terms of this
Indenture) to the Obligor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of



12









 







this Indenture and (subject to Section 5.01) conclusive in favor of the Trustee and the
Obligor, if made in the manner provided in this Section 1.04.




     (2) The fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness to such execution or by the certificate of any
notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of a corporation or a member of a
partnership, on behalf of such corporation or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.




     (3) The ownership of Notes shall for all purposes be determined by reference to the
Security Register, as such register shall exist as of the applicable Record Date.




     (4) If the Obligor shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Obligor may, at its option, by
Managing Directors Resolution, fix in advance a Record Date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or
other action, but the Obligor shall have no obligation to do so. If such Record Date is
fixed, such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after such Record Date, but only the Holders of record at the
close of business on such Record Date shall be deemed to be Holders for the purpose of
determining whether Holders of the requisite proportion of Notes Outstanding have authorized
or agreed or consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Notes Outstanding shall be computed as of
such Record Date; provided that no such authorization, agreement or consent by the Holders
on such Record Date shall be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than six months after such Record Date.




     (5) Any request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Note shall bind each subsequent Holder of such Note, and each
Holder of any Note issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof, with respect to anything done or suffered to be done by the Trustee or
the Obligor in reliance upon such action, whether or not notation of such action is made
upon such Note.



          SECTION 1.05. Notices, Etc., to Trustee, Obligor and Guarantor. Any request, order,
authorization, direction, consent, waiver or other action to be taken by the Trustee, the Obligor,
the Guarantor or the Holders hereunder (including any Authentication Order), and any notice to be
given to the Trustee, the Obligor or the Guarantor with respect to any action taken or to be taken
by the Trustee, the Obligor, the Guarantor or the Holders hereunder, shall be sufficient if made in
writing and




13









 









     (1) if to be furnished or delivered to or filed with the Trustee by the Obligor, the
Guarantor or any Holder, delivered to the Trustee at its Corporate Trust Office, Attention:
Worldwide Securities Services, or




     (2) if to be furnished or delivered to the Obligor by the Trustee or any Holder, and
except as otherwise provided in Section 4.01(1)(iii), mailed to the Obligor, first-class
postage prepaid, at the following address: c/o The Pepsi Bottling Group, Inc., One Pepsi
Way, Somers, New York 10589, Attention: Treasurer, or at any other address hereafter
furnished in writing by the Obligor to the Trustee, or




     (3) if to be furnished or delivered to the Guarantor by the Trustee or any Holder and
except as otherwise provided in Section 4.01(2)(i), mailed to the Guarantor, first-class
postage prepaid at its principal office (as specified in the first paragraph of this
instrument), Attention: Treasurer, or at any other address hereafter furnished in writing
by the Guarantor to the Trustee.



          SECTION 1.06. Notice to Holders; Waiver. Where this Indenture or any Note provides
for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise
expressly provided herein or in such Note) if in writing and mailed, first-class postage prepaid,
to each Holder affected by such event, at his or her address as it appears in the Security Register
as of the applicable Record Date, if any, not later than the latest date or earlier than the
earliest date prescribed by this Indenture or such Note for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such notice nor any defect in
any notice so mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture or any Note provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver. In case, by reason of the suspension of
regular mail service as a result of a strike, work stoppage or otherwise, it shall be impractical
to mail notice of any event to any Holder when such notice is required to be given pursuant to any
provision of this Indenture or the applicable Note, then any method of notification as shall be
satisfactory to the Trustee and the Obligor shall be deemed to be sufficient for the giving of such
notice.



          SECTION 1.07. Conflict with Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be included in this
Indenture by any of the provisions of the TIA, such required provision shall control.



          SECTION 1.08. Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents hereof are for convenience only and shall not affect the
construction of any provision of this Indenture.



          SECTION 1.09. Successors and Assigns. All covenants and agreements in this Indenture
by the Obligor and the Guarantor shall bind its successors and assigns, whether so expressed or
not.



14









 





          SECTION 1.10. Separability Clause. In case any provision in this Indenture or in the
Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



          SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in any Notes,
express or implied, shall give to any Person, other than the parties hereto, their successors
hereunder, the Authenticating Agent, the Registrar, any Paying Agent, and the Holders of Notes (or
such of them as may be affected thereby), any benefit or any legal or equitable right, remedy or
claim under this Indenture.



          SECTION 1.12. Governing Law. This Indenture shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to rules governing the
conflict of laws.



          SECTION 1.13. Counterparts. This instrument may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original, but all of which
shall together constitute but one and the same instrument.



          SECTION 1.14. Legal Holidays. In any case where any Interest Payment Date or
Redemption Date or Maturity Date shall not be a Business Day, then (notwithstanding any other
provisions of this Indenture or of the Notes) payment of interest or principal (and premium, if
any) need not be made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, the Redemption Date or Maturity
Date, provided that no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Maturity Date, as the case may be.



ARTICLE II




THE NOTES




          SECTION 2.01. Form and Dating.




     (1) General.




     (i) The Notes of each series shall be substantially in such form (not inconsistent with
this Indenture) as shall be established by or pursuant to a Managing Directors Resolution or
in one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be required to
comply with any law, stock exchange rule or DTC rule or usage or with any rules or
regulations pursuant thereto, all as may, consistently herewith, be determined by the
Officers executing such Notes, as evidenced by their execution of the Notes. Any portion of
the text of any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note. Each Note shall be dated the date of its authentication.
The Obligor shall furnish any such legends to the Trustee in writing. Except as otherwise
provided in Section 11.01(2) and in the immediately following proviso, each Note shall have
an executed Guarantee from the Guarantor



15









 







substantially in the form of Exhibit A hereto endorsed thereon; provided,
however, that any Note issued under this Indenture on and after the date which the
Guarantor provides a notice to the Trustee pursuant to Section 11.01(3) that the Guarantee
shall not become effective and the Guarantee Commencement Date shall not occur shall not
have an executed Guarantee from the Guarantor endorsed thereon; and provided,
further, that any such Note, when issued, authenticated and delivered in accordance
with this Indenture, shall be treated as a single class of securities with other Outstanding
Notes of the same series which have the Guarantee endorsed thereon.




     (ii) The Definitive Notes, if any, shall be printed, lithographed or engraved or
produced by any combination of those methods on steel engraved borders or may be produced in
any other manner permitted by the rules of any securities exchange, all as determined by the
Officers executing such Notes, as evidenced by their execution of such Notes.




     (iii) The terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture and the Obligor, the Guarantor and the Trustee, by
their execution and delivery of this Indenture expressly agree to such terms and provisions
and to be bound thereby. Nothing in the preceding sentence shall, however, limit the effect
of the second paragraph of Section 2.02(1). However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling. All Notes of any one series shall be
substantially identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Managing Directors or in any such indenture
supplemental hereto.




     (iv) No Note shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature of
an authorized officer, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered hereunder.




     (v) The aggregate principal amount of Notes which may be authenticated and delivered
under this Indenture is unlimited. The Notes may be issued in one or more series. There
shall be established in or pursuant to a resolution of the Managing Directors of the Obligor
and the Guarantor and set forth in an Officers’ Certificate of the Obligor and the
Guarantor, or established in one or more indentures supplemental hereto, prior to the
issuance of Notes of any series:




     (a) the title of the Notes of the series (which shall distinguish the Notes of
the series from all other Notes);




     (b) any limit upon the aggregate principal amount of the Notes of the series
that may be authenticated and delivered under this Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange



16









 







for, or in lieu of, other Notes of the series pursuant to Section 2.03, 2.04,
2.05, 8.07 or 10.06);




     (c) the date or dates on which the principal of the Notes of the series is
payable;




     (d) the rate or rates at which the Notes of the series shall bear interest, if
any, or the method by which such rate shall be determined, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and the Record Dates, if any, for the determination of Holders to
whom interest is payable;




     (e) the place or places where the principal of and any premium and interest on
the Notes of the series shall be payable;




     (f) if other than the principal amount thereof, the portion of the principal
amount of Notes of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 4.02;




     (g) the issue date;




     (h) the issue price (expressed as a percentage of the aggregate principal amount
of the Notes) at which the Notes will be issued;




     (i) if the Notes of the series are issuable in whole or in part in the form of
Definitive Notes or as one or more Global Notes, and if so, the identity of the
Depositary for such Global Notes if other than DTC;




     (j) any other terms of the series (which terms shall not be inconsistent with
the provisions of this Indenture);




     (k) any Events of Default with respect to the Notes of a particular series if
not set forth herein; and




     (l) any covenants of the Obligor or the Guarantor with respect to the Notes of a
particular series if not set forth herein. Notwithstanding Section 2.01(1)(v)(b) and
unless otherwise expressly provided with respect to a series of Notes, the aggregate
principal amount of a series of Notes may be increased and additional Notes of such
series may be issued up to the maximum aggregate principal amount authorized with
respect to such series as increased; provided that, any such additional Notes
shall have identical terms as the outstanding Notes of such series, other than with
respect to the date of issuance, issue price, first Interest Payment Date, interest
accrual date and amount of interest payable on the first Interest Payment Date
applicable thereto; provided, further, that any such additional Notes
shall be treated as a single class with the outstanding Notes of such series for all
purposes under this Indenture.




     (2) Global Notes.



17









 






     (i) If the Obligor shall establish pursuant to Section 2.01(1) above that the Notes of
a series or a portion thereof are to be issued in the form of one or more Global Notes, then
the Obligor shall execute and the Trustee shall authenticate and make available for delivery
one or more Global Notes that (a) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Notes of such series issued in such
form and not yet cancelled, (b) shall be registered, in the name of the Depositary
designated for such Global Note pursuant to Section 2.04, or in the name of a nominee of
such Depositary, (c) shall be deposited with the Trustee, as Custodian for the Depositary,
and (d) shall bear a legend substantially as follows (“Global Note Legend”):




     THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER.




     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
OBLIGOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.




     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.




     (ii) Each Depositary designated pursuant to Section 2.01 or 2.04 for a Global Note
must, at the time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Exchange Act and any other applicable statute or
regulation, provided that the Depositary is required to be so registered in order to act as
depositary.




     (iii) Any Global Note may be represented by more than one certificate. The aggregate
principal amount of each Global Note may from time to time be increased or decreased by
adjustments made on the records of the Registrar, as provided in this Indenture.



18









 






     (3) Trustee’s Certificate of Authentication.



          The Trustee’s Certificate of Authentication shall be in substantially the following form:




          This is one of the Notes referred to in the within-mentioned Indenture.




	 	 	 	 	 
	 	The Bank of New York Mellon

     as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 



          SECTION 2.02. Execution and Authentication.






     (1) At any time and from time to time after the execution and delivery of this
Indenture, the Obligor may deliver Notes of any series executed on behalf of the Obligor by
any two Officers to the Trustee for authentication, and the Trustee, upon receipt of a
written order of the Obligor and the Guarantor signed by an Officer of the Obligor and the
Guarantor (the “Authentication Order”) shall thereupon in accordance with the
procedures acceptable to the Trustee set forth in the Authentication Order, and subject to
the provisions hereof, authenticate and deliver such Notes to or upon the written order of
the Obligor, without any further action by the Obligor or the Guarantor except as set forth
in this Section 2.02. The signature of any of the Officers on the Notes may be manual or
facsimile. Typographical and other minor errors or defects in any such signature shall not
affect the validity or enforceability of any Note that has been duly authenticated and
delivered by the Trustee. In authenticating such Notes and accepting the additional
responsibilities under this Indenture in relation to such Notes, the Trustee shall receive,
and (subject to Section 5.01) shall be fully protected in relying upon:




     (a) a copy of the Managing Directors Resolution of each of the Obligor and the
Guarantor relating to such series;




     (b) an executed supplemental indenture, if any, and the documentation required to be
delivered pursuant to Section 8.06;




     (c) an Officers’ Certificate of each of the Obligor and the Guarantor setting forth the
form or forms and terms of the Notes of such series pursuant to Section 2.01(1)(v), and
prepared in accordance with Section 1.02;




     (d) an Opinion of Counsel of the Obligor and the Guarantor, prepared in accordance with
Section 1.02, to the effect that




     (i) the form or forms and terms of such Notes have been established by or
pursuant to a Managing Directors Resolution of each of the Obligor and the



19









 







Guarantor or by a supplemental indenture as permitted by Section 2.01 in
conformity with the provisions of this Indenture; and




     (ii) such Notes, when executed and issued by the Obligor, guaranteed by the
Guarantor and authenticated and delivered by the Trustee in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute legal, valid
and binding obligations of the Obligor and Guarantor enforceable against each of
them in accordance with their terms except as any rights thereunder may be limited
by bankruptcy, insolvency and other similar laws affecting the enforceability of
creditors rights’ generally and by general equity principles. The Trustee shall
have the right to decline to authenticate and deliver any Notes under this Section
2.02 if the Trustee, being advised by counsel, determines that such action may not
lawfully be taken by the Obligor or the Guarantor or if the Trustee in good faith by
its board of directors or board of trustees, executive committee, or a trust
committee of directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability. If the Obligor and the
Guarantor shall establish pursuant to Section 2.01(1) that the Notes of a series or
a portion thereof are to be issued in the form of one or more Global Notes, then the
Obligor and the Guarantor shall execute and the Trustee shall authenticate and make
available for delivery one or more Global Notes as provided in Section 2.01(2)(i).




     (2) Notes bearing the manual or facsimile signatures of individuals who were at any
time on or after the date hereof the proper officers of the Obligor and the Guarantor shall
bind each of them, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not hold such
offices at the date of such Notes.




     (3) The Notes shall be in fully registered form, without coupons, in minimum
denominations of $2,000 and integral multiples of $1,000 in excess thereof.



          SECTION 2.03. Temporary Notes. Until certificates representing Notes of a series are
ready for delivery, the Obligor may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate and deliver temporary Notes of such series. Temporary Notes shall be
substantially in the form of certificated Notes but may have variations that the Obligor considers
appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without
unreasonable delay, the Obligor shall prepare and the Trustee shall authenticate Definitive Notes
of a series in exchange for temporary Notes of such series. Holders of temporary Notes shall be
entitled to all of the benefits of this Indenture.




          SECTION 2.04. Registration, Transfer and Exchange.





     (1) Securities Register. The Trustee shall keep a register of the Notes (the
“Security Register”) which shall provide for the registration of such Notes, and for
transfers of such Notes in accordance with information, if any, to be provided to the
Trustee by the Obligor, subject to such reasonable regulations as the Trustee may prescribe.
Such register shall be in written form or in any other form capable of being



20









 







converted into written form within a reasonable time. At all reasonable times the
information contained in such register or registers shall be available for inspection at the
Corporate Trust Office of the Trustee or at such other office or agency to be maintained by
the Obligor pursuant to Section 9.02.




     Upon due presentation for registration of transfer of any Note at the Corporate Trust
Office of the Trustee or at any other office or agency maintained by the Obligor pursuant to
Section 9.02, the Obligor shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of authorized
denominations, of a like aggregate principal amount, series and Maturity Date.




     (2) Transfer of Global Notes. Any other provision of this Section 2.04
notwithstanding, unless and until it is exchanged in whole or in part for Definitive Notes,
a Global Note representing all or a portion of the Notes of a series may not be transferred
except as a whole by the Depositary to a nominee of such Depositary, or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary, or by such Depositary
or any such nominee to a successor Depositary or a nominee of such successor Depositary.




     The Obligor initially appoints The Depository Trust Company (“DTC”) to act as
Depositary with respect to the Global Notes of each series.




     (3) Legends.




     Each Global Note shall bear the legend specified in clause (i) of Section 2.01(2) on
the face thereof.




     (4) Definitive Notes.




     (i) Notwithstanding any other provisions of this Indenture or the Notes, a Global Note
may be exchanged for Notes of the same series registered in the names of any Person
designated by the Depositary in the event that (a) the Depositary has notified the Obligor
that it is unwilling or unable to continue as Depositary for such Global Note or such
Depositary has ceased to be a “clearing agency” registered under the Exchange Act, at a time
when the Depositary is required to be so registered in order to act as depositary, and the
Obligor has not appointed a successor Depositary within 90 days of receiving such notice or
of becoming aware of such cessation, (b) an Event of Default has occurred and is continuing
with respect to the applicable Notes, or (c) the Obligor, in its sole discretion, determines
that the applicable Notes issued in the form of Global Notes shall no longer be represented
by such Global Notes as evidenced by a Company Order delivered to the Trustee. Any Global
Note exchanged pursuant to clause (a) or (c) above shall be so exchanged in whole and not in
part and any Global Note exchanged pursuant to clause (b) above may be exchanged in whole or
from time to time in part as directed by the Depositary. Any Note issued in exchange for a
Global Note of the same series or any portion thereof shall be a Global Note, provided that
any such Note so issued that is registered in the name of a Person other than the Depositary
or a nominee thereof shall not be a Global Note.



21









 






     (ii) If at any time the Depositary for the Notes of any series notifies the Obligor
that it is unwilling or unable to continue as Depositary for such Notes or if the Depositary
has ceased to be a “clearing agency” registered under the Exchange Act at a time when the
Depositary is required to be so registered in order to act as depositary, the Obligor may
within 90 days of receiving such notice or of becoming aware of such cessation appoint a
successor Depositary with respect to such Notes.




     (iii) If, in accordance with this Section 2.04(4), Notes of any series in global form
will no longer be represented by Global Notes, the Obligor will execute, and the Trustee,
upon receipt of an Authentication Order, will authenticate and make available for delivery,
Definitive Notes of such series in an aggregate principal amount equal to the principal
amount of the Global Notes of such series, in exchange for such Global Notes.




     (iv) If a Definitive Note is issued in exchange for any portion of a Global Note after
the close of business at the office or agency where such exchange occurs on any Record Date
for the payment of interest and before the opening of business at such office or agency on
the next succeeding Interest Payment Date, interest shall not be payable on such Interest
Payment Date in respect of such Definitive Notes, but shall be payable on such Interest
Payment Date only to the Person to whom interest in respect of such portion of such Global
Note is payable in accordance with the provisions of this Indenture.




     (v) Definitive Notes issued in exchange for a Global Note pursuant to this Section
2.04(4) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so registered. To permit
registrations of transfers and exchanges, the Obligor shall execute and the Trustee (or an
Authenticating Agent appointed pursuant to this Indenture) shall authenticate and make
available for delivery Definitive Notes at the Registrar’s request, and upon direction of
the Obligor. No service charge shall be made for any registration of transfer or exchange,
but the Obligor or the Trustee may require payment of a sum sufficient to cover any transfer
tax or other governmental charge payable in connection with any registration of transfer or
exchange.




     (vi) When Definitive Notes are presented to the Trustee with a request to register the
transfer of such Definitive Notes or to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized denominations of the same series,
the Trustee shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the Definitive Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Obligor and the Trustee, duly
executed by the Holder thereof or his attorney duly authorized in writing.




     (vii) At such time as all interests in Global Notes of any series have either been
exchanged for Definitive Notes of such series or cancelled, such Global Notes shall be
cancelled by the Trustee in accordance with the standing procedures and instructions
existing between the Depositary and the Custodian. At any time prior to such



22









 







cancellation, if any interest in a Global Note of any series is exchanged for
Definitive Notes of such series or cancelled, the principal amount of such Global Note
shall, in accordance with the standing procedures and instructions existing between the
Depositary and the Custodian, be reduced and an endorsement shall be made on such Global
Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such
reduction.




     (5) Notwithstanding anything in this Indenture to the contrary, (i) all Notes issued
upon any registration of transfer or exchange of Notes shall be the valid obligations of the
Obligor, evidencing the same debt, and entitled to the same benefits under this Indenture,
as the Notes surrendered upon such registration of transfer or exchange, (ii) all transfers
and exchanges of the Notes may be made only in accordance with the procedures set forth in
this Indenture, and (iii) the transfer and exchange of a beneficial interest in a Global
Note may only be effected through the Depositary in accordance with the procedures
promulgated by the Depositary.




     (6) The Obligor shall not be required to (i) issue, register the transfer of, or
exchange any Note during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Notes under Section 10.03 and ending at the
close of business on the date of such mailing or (ii) register the transfer of or exchange
any Note so selected for redemption in whole or in part, except, in the case of any Note to
be redeemed in part, the portion thereof not to be redeemed.




     SECTION 2.05. Mutilated, Destroyed, Lost and Stolen Notes.




     (1) If (i) any mutilated Note is surrendered to the Trustee, or the Obligor and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) there is delivered to the Obligor and the Trustee such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of notice to the
Obligor or the Trustee that such Note has been acquired by a protected purchaser, the
Obligor may in its discretion execute and, upon request of the Obligor, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Note, a new Note of like tenor, series, Maturity Date, and principal amount,
bearing a number not contemporaneously outstanding.




     (2) In case any such mutilated, destroyed, lost or stolen Note has become or is about
to become due and payable, the Obligor in its discretion may, instead of issuing a new Note,
pay such Note.




     (3) Upon the issuance of any new Note under this Section 2.05, the Obligor may require
the payment by the Holder thereof of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.




     (4) Every new Note issued pursuant to this Section 2.05 in lieu of any mutilated,
destroyed, lost or stolen Note shall constitute an original contractual obligation of the
Obligor, whether or not the mutilated, destroyed, lost or stolen Note shall be at any



23









 







time enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.




     (5) The provisions of this Section 2.05 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.




     SECTION 2.06. Payment of Interest; Interest Rights Preserved.




     (1) Interest on any Note which is payable and is punctually paid or duly provided for
on any Interest Payment Date shall, if so provided in such Note, be paid to the Person in
whose name that Note (or one or more Predecessor Notes) is registered at the close of
business on the applicable Record Date, notwithstanding any transfer or exchange of such
Note subsequent to such Record Date and prior to such Interest Payment Date (unless, if so
provided in such Note, such Interest Payment Date is also the Maturity Date, in which case
such interest shall be payable to the Person to whom principal is payable).




     (2) Any interest on any Note which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the registered Holder on the applicable Record Date by
virtue of his having been such Holder; and, except as hereinafter provided, such Defaulted
Interest may be paid by the Obligor, at its election in each case, as provided in clause (i)
or (ii) below:




     (i) The Obligor may elect to make payment of any Defaulted Interest to the Persons in
whose names any such Notes (or their respective Predecessor Notes) are registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Obligor shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each such Note and the date of the
proposed payment, and at the same time the Obligor shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Obligor of such Special Record
Date and, in the name and at the expense of the Obligor, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of each such Note at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names



24









 







such Notes (or their respective Predecessor Notes) are registered on such Special
Record Date and shall no longer be payable pursuant to the following clause (ii).




     (ii) The Obligor may make payment of any Defaulted Interest in any other lawful manner
if, after notice given by the Obligor to the Trustee of the proposed payment pursuant to
this clause (ii), such manner of payment shall be deemed practicable by the Trustee.




     (3) If any installment of interest on any Note called for redemption pursuant to
Article X is due and payable on or prior to the Redemption Date and is not paid or duly
provided for on or prior to the Redemption Date in accordance with the foregoing provisions
of this Section 2.06, such interest shall be payable as part of the Redemption Price of such
Notes.




     (4) Interest on Notes may be paid at the office or agency maintained by the Obligor in
New York City pursuant to Section 9.02 or, at the Obligor’s option, through DTC, Clearstream
Banking, S.A., Luxembourg, or Euroclear System to the Person entitled thereto or by such
other means as may be specified in the form of such Note.




     (5) Subject to the foregoing provisions of this Section 2.06 and the provisions of
Section 2.04, each Note delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.




     SECTION 2.07. Persons Deemed Owners.




     (1) Prior to due presentment of a Note for registration of transfer, the Obligor, the
Guarantor, the Trustee, and any agent of the Obligor, the Guarantor or the Trustee may treat
the Person in whose name any Note is registered on the Security Register as the owner of
such Note for the purpose of receiving payment of principal, premium, if any, and (subject
to Section 2.06) interest, and for all other purposes whatsoever, whether or not such Note
is overdue and neither the Obligor, the Guarantor, the Trustee, nor any agent of the
Obligor, the Guarantor or the Trustee shall be affected by notice to the contrary.




     (2) None of the Obligor, the Guarantor, the Trustee, any Authenticating Agent, any
Paying Agent, the Registrar or any Co-Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests and each of them may act or refrain
from acting without liability on any information relating to such records provided by the
Depositary.



          SECTION 2.08. Cancellation. All Notes surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The
Obligor may at any time deliver to the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Obligor may have acquired in any manner



25









 







whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee.
Acquisition of such Notes by the Obligor shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered to the Trustee for
cancellation. No Note shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section 2.08, except as expressly permitted by this Indenture. The Trustee shall
dispose of all cancelled Notes in accordance with its customary procedures and, upon written
request, deliver a certificate of such disposition to the Obligor.



          SECTION 2.09. Computation of Interest. Interest on the Notes shall be calculated on
the basis of a 360-day year of twelve 30-day months.



          SECTION 2.10. CUSIP Numbers. The Obligor in issuing the Notes may use “CUSIP” and
“ISIN” numbers (if then generally in use), and, if so, the Trustee shall use the CUSIP or ISIN
numbers, as the case may be, in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness or accuracy of the
CUSIP or ISIN number, as the case may be, either as printed on the Notes or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Notes. The Obligor will promptly notify the Trustee in writing of any change in the
CUSIP or ISIN number.



ARTICLE III




DISCHARGE OF INDENTURE




          SECTION 3.01. Discharge of Indenture. This Indenture will be discharged with respect
to the Notes of a series and will cease to be of further effect as to all such Notes (except as to
any surviving rights of transfer or exchange of such Notes expressly provided for herein), and the
Trustee, on demand of and at the expense of the Obligor, shall execute proper instruments
acknowledging the discharge of this Indenture with respect to the Notes of such series, when





     (1) either




     (i) all Notes of such series theretofore authenticated and delivered (except (a)
mutilated, lost, stolen or destroyed Notes which have been replaced or paid, as provided in
Section 2.05, and (b) Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Obligor and thereafter repaid to the Obligor or
discharged from such trust, as provided in Section 3.05) have been delivered to the Trustee
cancelled or for cancellation; or




     (ii) all such Notes of such series not theretofore delivered to the Trustee cancelled
or for cancellation




     (a) have become due and payable, or




     (b) will, in accordance with their Maturity Date, become due and payable within
one year, or



26









 






     (c) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Obligor, and, in any of the cases described in
(a) or (b) above or in this clause (c), the Obligor has deposited or caused to be
deposited with the Trustee, as trust funds in trust for the benefit of the Holders of
such Notes for that purpose, U.S. dollars or non-callable U.S. Government Obligations
or a combination thereof in such amounts sufficient to pay and discharge the entire
indebtedness on the Notes of such series not theretofore delivered to the Trustee
cancelled or for cancellation, for principal of and interest and premium, if any, on
the Notes of such series to the date of such deposit (in the case of Notes of such
series that have become due and payable), or to the Maturity Date or the Redemption
Date, as the case may be;




     (2) the Obligor has paid or caused to be paid all other sums payable by it with respect
to the Notes of such series under this Indenture;




     (3) in the event of a deposit and defeasence under Section 3.01(1)(ii), no Event of
Default or event which with notice or lapse of time would become an Event of Default has
occurred and is continuing with respect to the Notes of such series on the date of such
deposit; and




     (4) the Obligor has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that all conditions precedent to the discharge of this Indenture with
respect to the Notes of such series have been complied with, and in the event of a deposit
and defeasance under Section 3.01(1)(ii), in the case of the Opinion of Counsel, stating:




     (i) either that no requirement to register under the Investment Company Act of 1940, as
amended, will arise as a result of the Obligor’s exercise of its option under this Section
3.01 or that any such registration requirement has been complied with; and




     (ii) such deposit and defeasance will not result in a material breach or violation of,
or constitute a default under, any material agreement or instrument to which the Obligor is
a party. Notwithstanding the discharge of this Indenture with respect to the Notes of such
series, the obligations of the Obligor under Section 3.01(1) and the obligations of the
Obligor to the Trustee under Section 5.07 and to any Authenticating Agent under Section 5.14
shall survive, and the obligations of the Trustee under Sections 3.03 and 3.05 shall
survive.



          SECTION 3.02. Defeasance and Discharge of Covenants upon Deposit of Moneys, U.S.
Government Obligations. At the Obligor’s option, either (a) the Obligor shall be deemed to
have been Discharged (as defined below) from its obligations with respect to the Notes of any
series on the 123rd day after the applicable conditions set forth below have been satisfied
(“Legal Defeasance”) and/or (b) the Obligor and the Guarantor shall cease to be under any
obligation to comply with any term, provision or condition set forth in Sections 7.01, 7.02, 9.06
and 9.07 with respect to the Notes of such series at any time after the applicable conditions set
forth below have been satisfied (“Covenant Defeasance”):




27









 









     (1) The Obligor or the Guarantor shall have deposited or caused to be deposited
irrevocably with the Trustee, as trust funds, in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Notes of such series, an
amount of money, in cash in U.S. dollars sufficient, or in non-callable U.S. Government
Obligations, the principal of and interest on which, when due, will be sufficient, or a
combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the entire indebtedness on the Notes of such series with
respect to principal, premium, if any, and accrued and unpaid interest to the date of such
deposit (in the case of Notes of any series that have become due and payable), or to the
Maturity Date or Redemption Date, as the case may be;




     (2) No Event of Default, or event which with notice or lapse of time would become an
Event of Default with respect to the Notes of such series, shall have occurred and be
continuing on the date of such deposit;




     (3) The Obligor shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel each stating that all conditions precedent to the defeasance and
discharge contemplated by this Section 3.02 have been complied with, and, in the case of the
Opinion of Counsel stating that:




     (i) the deposit and defeasance contemplated by this Section 3.02 will not cause the
Holders of the Notes of such series to recognize income, gain or loss for Federal income tax
purposes as a result of the Obligor’s exercise of its option under this Section 3.02 and
such Holders will be subject to Federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had not been exercised,
which Opinion of Counsel (in the case of a Legal Defeasance) must be based upon a ruling of
the Internal Revenue Service to the same effect or a change in applicable Federal income tax
law or related treasury regulations after the date of this Indenture; and




     (ii) either no requirement to register under the Investment Company Act of 1940, as
amended, will arise as a result of the Obligor’s exercise of its option under this Section
3.02 or any such registration requirement has been complied with; and




     (4) with respect to a Legal Defeasance, 123 days shall have passed during which no
Event of Default under clauses (iv) and (v) of Section 4.01(1) or under clauses (ii) or
(iii) of Section 4.01(2) has occurred.




     If in connection with the exercise by the Obligor of any option under this Section
3.02, any series of Notes is to be redeemed, either notice of such redemption shall have
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee
shall have been made.




     Notwithstanding the exercise by the Obligor of its option under Section 3.02(b) with
respect to Section 7.01, the obligation of any successor Entity to assume the obligations to
the Trustee under Section 5.07 shall not be discharged.



28









 






     “Discharged” means, as to any series of Notes, that the Obligor shall be deemed
to have paid and discharged the entire indebtedness represented by, and obligations under,
the Notes of such series and to have satisfied all the obligations under this Indenture
relating to such series of Notes (and the Trustee, at the expense of the Obligor, shall
execute proper instruments acknowledging the same), except (A) the rights of Holders of
Notes of such series to receive, from the trust fund described in clause (1) above, payment
of the principal of, premium, if any, and the interest, if any, on such series of Notes when
such payments are due; (B) the Obligor’s obligations with respect to such Notes under
Sections 2.04, 2.05, 3.02(1), 3.03, and 9.02 and its obligations under Section 5.07; and (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder.



          SECTION 3.03. Application of Trust Money. All money and U.S. Government Obligations
deposited with the Trustee pursuant to Section 3.01 or Section 3.02 and all proceeds of such U.S.
Government Obligations and the interest thereon shall be held in trust and applied by it, in
accordance with the provisions of this Indenture, to the payment, either directly or through any
Paying Agent (including the Obligor acting as its own Paying Agent), as the Trustee may determine,
to the Persons entitled thereto, of the principal, premium, if any, and interest, for whose payment
such money and U.S. Government Obligations have been deposited with the Trustee; but such money and
U.S. Government Obligations need not be segregated from other funds except to the extent required
by law.



          SECTION 3.04. Paying Agent to Repay Moneys Held. Upon the discharge of this Indenture
or a Legal Defeasance, in each case, with respect to the Notes of a series, all moneys then held by
any Paying Agent under the provisions of this Indenture with respect to such Notes (other than the
Trustee) shall, upon demand of the Obligor, be repaid to it or paid to the Trustee, and thereupon
such Paying Agent shall be released from all further liability with respect to such moneys.



          SECTION 3.05. Return of Unclaimed Amounts. Any amounts deposited with or paid to the
Trustee or any Paying Agent for payment of the principal of, premium, if any, or interest on any
series of Notes or then held by the Obligor, in trust for the payment of the principal of, premium,
if any, or interest on any series of Notes and not applied but remaining unclaimed by the Holders
of such series of Notes for two years after the date upon which the principal of, premium, if any,
or interest on such series of Notes, as the case may be, shall have become due and payable, shall
be repaid to the Obligor by the Trustee on demand or (if then held by the Obligor) shall be
discharged from such Trust; and the Holder of any Notes of such series shall thereafter, as an
unsecured general creditor, look only to the Obligor for any payment which such Holder may be
entitled to collect (until such time as such unclaimed amounts shall escheat, if at all, to any
applicable jurisdiction) and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Obligor as trustee thereof, shall thereupon cease.
Notwithstanding the foregoing, the Trustee or Paying Agent, before being required to make any such
repayment, may at the expense of the Obligor cause to be published once a week for two successive
weeks (in each case on any day of the week) in a newspaper printed in the English language and
customarily published at least once a day at least five days in each calendar week and of general
circulation in the Borough of Manhattan, in the City and State of New York, a notice that said
amounts have not been so applied and that after a date named



29









 







therein any unclaimed balance of said amounts then remaining will be promptly returned to the
Obligor.



          SECTION 3.06. Reinstatement. If the Trustee or any Paying Agent is unable to apply
any money in accordance with Section 3.03 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Obligor’s obligations under this Indenture and the Holders
of Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 3.01
until such time as the Trustee or such Paying Agent is permitted to apply all such money in
accordance with Section 3.03.



ARTICLE IV




REMEDIES




          SECTION 4.01. Events of Default. “Event of Default,” wherever used herein, means with
respect to Notes of any series, any of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):




     (1) on and after the date hereof:




     (i) default in the payment of any principal of or premium, if any, on the Notes of such
series when due (whether at maturity, upon redemption or otherwise);




     (ii) default in the payment of any interest on any Note of such series, when it becomes
due and payable, and continuance of such default for a period of 30 days;




     (iii) default in the performance or breach of any covenant or warranty of the Obligor
under this Indenture in respect of the Notes of such series, and continuance of such default
or breach for a period of 90 days after there has been given, by registered or certified
mail, to the Obligor by the Trustee or to the Obligor and the Trustee by the Holders of at
least a majority in aggregate principal amount of the Outstanding Notes of such series, a
written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder;




     (iv) the entry of an order for relief against the Obligor, PBG or any Restricted
Subsidiary of PBG under the Bankruptcy Code by a court having jurisdiction in the premises
or a decree or order by a court having jurisdiction in the premises adjudging the Obligor,
PBG or any Restricted Subsidiary of PBG as bankrupt or insolvent under any other applicable
Federal or state law, or the entry of a decree or order approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in respect of
the Obligor, PBG or any Restricted Subsidiary of PBG under the Bankruptcy Code or any other
applicable Federal or state law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Obligor, PBG or any Restricted Subsidiary of
PBG or of any substantial part of their respective properties,



30









 







or ordering the winding up or liquidation of their respective affairs, and the
continuance of any such decree or order unstayed and in effect for a period of 90
consecutive days;




     (v) the consent by the Obligor, PBG or any Restricted Subsidiary of PBG to the
institution of bankruptcy or insolvency proceedings against any of them, or the filing by
the Obligor, PBG or any Restricted Subsidiary of PBG of a petition or answer or consent
seeking reorganization or relief under the Bankruptcy Code or any other applicable Federal
or state law, or the consent by the Obligor, PBG or any Restricted Subsidiary of PBG to the
filing of any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Obligor, PBG or any Restricted
Subsidiary of PBG or of any substantial part of their respective properties, or the making
by the Obligor, PBG or any Restricted Subsidiary of PBG of an assignment for the benefit of
creditors, or the admission by the Obligor, PBG or any Restricted Subsidiary of PBG in
writing of the Obligor’s, PBG’s or any Restricted Subsidiary of PBG’s inability to pay debts
generally as they become due, or the taking of corporate action by the Obligor, PBG or any
Restricted Subsidiary of PBG in furtherance of any such action; and




     (vi) the maturity of any Debt of the Obligor, PBG or any Restricted Subsidiary of PBG
having a then outstanding principal amount in excess of $75 million shall have been
accelerated by any holder or holders thereof or any trustee or agent acting on behalf of
such holder or holders, in accordance with the provisions of any contract evidencing,
providing for the creation of or concerning such Debt or failure to pay at the stated
maturity (and the expiration of any grace period) any Debt of the Obligor, PBG or any
Restricted Subsidiary of PBG having a then outstanding principal amount in excess of $75
million; and




     (2) on and after the Guarantee Commencement Date (in the event that the Guarantee
Commencement Date shall occur):




     (a) default in the performance or breach of any covenant or warranty of the Guarantor
under this Indenture, and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Guarantor by the Trustee
or to the Guarantor and the Trustee by the Holders of at least a majority in aggregate
principal amount of the Outstanding Notes, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder;




     (b) the entry of an order for relief against the Guarantor under the Bankruptcy Code by
a court having jurisdiction in the premises or a decree or order by a court having
jurisdiction in the premises adjudging the Guarantor as bankrupt or insolvent under any
other applicable Federal or state law, or the entry of a decree or order approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Guarantor under the Bankruptcy Code or any other applicable Federal or
state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Guarantor or of any substantial part of its property, or



31









 







ordering the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90 consecutive days;




     (c) the consent by the Guarantor to the institution of bankruptcy or insolvency
proceedings against the Guarantor, or the filing by the Guarantor of a petition or answer or
consent seeking reorganization or relief under the Bankruptcy Code or any other applicable
Federal or state law, or the consent by the Guarantor to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Guarantor or of any substantial part of its property, or the making
by the Guarantor of an assignment for the benefit of creditors, or the admission by the
Guarantor in writing of the Guarantor’s inability to pay debts generally as they become due,
or the taking of corporate action by the Guarantor in furtherance of any such action; and




     (d) the Guarantee ceases to be in full force and effect, or the Guarantor denies or
disaffirms its obligations under the Guarantee, in each case, in accordance with Article XI.




     No Event of Default with respect to a single series of Notes issued hereunder (and
under or pursuant to any Supplemental Indenture or Managing Directors Resolution)
necessarily constitutes an Event of Default with respect to any other series of Notes.




     SECTION 4.02. Acceleration of Maturity; Rescission and Annulment.




     (1) If any Event of Default (other than an Event of Default specified in clause (iv) or
(v) of Section 4.01(1)) with respect to the Notes of any series occurs and is continuing,
then either the Trustee or the Holders of a majority in aggregate principal amount of the
Outstanding Notes of such series may declare the principal of all Outstanding Notes of such
series, and the interest, if any, accrued thereon, to be immediately due and payable by
notice in writing to the Obligor (and to the Trustee if given by Holders). If an Event of
Default described in clause (iv) or (v) of Section 4.01(1) occurs, then the principal amount
of all the Notes then outstanding and interest accrued thereon, if any, will become and be
immediately due and payable without any declaration or other act on the part of the Trustee
or the Holders of the Notes, to the full extent permitted by applicable law.




     (2) At any time after such a declaration of acceleration has been made with respect to
the Notes of any series and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article IV provided, the Holders of a
majority in aggregate principal amount of the Outstanding Notes of such series by written
notice to the Obligor and the Trustee, may rescind and annul such declaration or waive past
defaults and its consequences, except with respect to a default in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected thereby, if:




     (i) the Obligor or the Guarantor has paid or deposited with the Trustee a sum
sufficient to pay:



32









 






     (a) all overdue installments of interest, if any, on such series of Notes,




     (b) the principal of (and premium, if any, on) any such series of Notes which
have become due otherwise than by such declaration of acceleration, and interest
thereon at the rate prescribed therefor by the Notes of such series, to the extent
that payment of such interest is lawful,




     (c) interest on overdue installments of interest at the rate prescribed therefor
by the Notes of such series to the extent that payment of such interest is lawful,
and




     (d) the reasonable compensation, expenses, disbursements and advances of the
Trustee and its agents and counsel, and all other amounts due the Trustee under
Section 5.07; and




     (ii) all Events of Default, other than the nonpayment of the principal of the Notes of
such series which have become due solely by such acceleration, have been cured or waived as
provided in Section 4.13.




     (3) No such rescission shall affect any subsequent default or impair any right
consequent thereon.




     SECTION 4.03. Collection of Indebtedness and Suits for Enforcement.




     (1) The Obligor covenants that if:




     (i) default is made in the payment of any installment of interest on any Note of any
series when such interest becomes due and payable, or




     (ii) default is made in the payment of (or premium, if any, on) the principal of any
Note of any series at the Maturity thereof, and




     (iii) any such default continues for any period of grace provided in relation to such
default pursuant to Section 4.01,


then, with respect to such series of Notes, the Obligor will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of the Notes of such series, the whole amount then due and
payable on all Notes of such series for principal (and premium, if any) and interest, together with
interest (to the extent that payment of such interest shall be legally enforceable) upon the
overdue principal (and premium, if any) and upon overdue installments of interest at the rate of
interest prescribed therefor by the Notes of such series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 5.07.





     (2) If the Obligor fails to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial proceeding for
the collection of the sums so due and unpaid, and may prosecute such



33









 







proceeding to judgment or final decree, and may enforce the same against the Obligor or
any other obligor upon such Notes and collect the money adjudged or decreed to be payable in
the manner provided by law out of the property of the Obligor or any other obligor upon such
Notes, wherever situated.




     (3) If an Event of Default occurs and is continuing with respect to any series of
Notes, the Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of such series of Notes by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.




     SECTION 4.04. Trustee May File Proofs of Claim.




     (1) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition, or other judicial proceeding relative
to the Obligor or any obligor upon the Notes or the property of the Obligor or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Obligor for the
payment of overdue principal or interest) shall be entitled and empowered, by intervention
in such proceedings or otherwise,




     (i) to file and prove a claim for the whole amount of principal, premium, if any, and
interest owing and unpaid in respect of the Notes, and to file such other papers or
documents as may be necessary and advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements, and advances
of the Trustee, its agents and counsel, and all other amounts due the Trustee under Section
5.07) and of the Holders allowed in such judicial proceedings, and




     (ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and its agent and counsel, and any other amounts due the Trustee
under Section 5.07.




     (2) Nothing herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.



          SECTION 4.05. Trustee May Enforce Claims Without Possession of Notes. All rights of
action and claims under this Indenture or the Notes of any series may be prosecuted



34









 







and enforced by the Trustee without the possession of any of the Notes of such series or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, be for the ratable benefit of
the Holders of the Notes of such series.



          SECTION 4.06. Application of Money Collected.




     (1) Any money collected by the Trustee from the Obligor pursuant to this Article IV
shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal, premium, if any, or
interest, if any, upon presentation of the Notes of any series and the notation thereon of
the payment, if only partially paid, and upon surrender thereof, if fully paid:




     First: To the payment of all amounts due the Trustee under Section 5.07.



          Second: To the payment of the amounts then due and unpaid upon such series of Notes for
principal, premium, if any, and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind.





     (2) Any money collected by the Trustee from the Guarantor with respect to the Guarantee
pursuant to this Article IV shall only be applied to the payment of the amount then due and
unpaid upon the Notes of any series for principal, premium, if any, and interest, in respect
of which or for the payment of which such money has been collected, ratably, without
preference or priority of any kind, upon presentation of the Notes of such series and the
notation thereon of the payment, if only partially paid, and upon surrender thereof, if
fully paid, at the date or dates fixed by the Trustee.



          SECTION 4.07. Limitation on Suits. No Holder of any Note of any series may institute
any action under this Indenture, unless and until:





     (1) such Holder has given the Trustee written notice of a continuing Event of Default
with respect to the Notes of such series;




     (2) the Holders of a majority in aggregate principal amount of the Outstanding Notes of
such series have requested the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;




     (3) such Holder or Holders has or have offered the Trustee such reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with such request
as the Trustee may require;




     (4) the Trustee has failed to institute any such proceeding for 60 days after its
receipt of such notice, request and offer of indemnity; and




     (5) no inconsistent direction has been given to the Trustee during such 60-day period
by the Holders of a majority in aggregate principal amount of the Outstanding



35









 







Notes of such series; it being understood and intended that no one or more Holders of
Notes of any series shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes of such series, or to obtain or to seek to obtain priority or preference
over any other such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and proportionate benefit of all the Holders of all
Notes of such series.



          SECTION 4.08. Unconditional Right of Holders to Receive Payment of Principal, Premium and
Interest. Notwithstanding any other provision in this Indenture, the Holder of any Note shall
have the right, which is absolute and unconditional, to receive payment of the principal, premium,
if any, and (subject to Section 2.06) interest on such Note on or after the Maturity Date (or, in
the case of redemption, on or after the Redemption Date) and to institute suit for the enforcement
of any such payment on or after such respective date, and such right shall not be impaired or
affected without the consent of such Holder.



          SECTION 4.09. Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, then and in every such case the Obligor, the
Trustee and the Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.



          SECTION 4.10. Rights and Remedies Cumulative. Except as provided in Section 2.05(5),
no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right or remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment
of any other appropriate right or remedy.



          SECTION 4.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of
any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article IV or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.



          SECTION 4.12. Control by Holders. The Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes of any series shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy available to the Trustee or
of exercising any trust or power conferred on the Trustee with respect to the Notes of such series
provided that:




     (1) the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action so directed may not



36









 







lawfully be taken or would conflict with this Indenture or if the Trustee in good faith
shall, by a Responsible Officer, determine that the proceedings so directed would involve it
in personal liability or be unjustly prejudicial to the Holders not taking part in such
direction, and




     (2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



          SECTION 4.13. Waiver of Past Defaults. Subject to Section 4.02, the Holders of not
less than a majority in aggregate principal amount of the Outstanding Notes of any series may, on
behalf of the Holders of all Notes of such series, waive any past default hereunder with respect to
the Notes of such series, except a default not theretofore cured:





     (1) in the payment of principal, premium, if any, or interest on any Notes of such
series, or




     (2) in respect of a covenant or provision in this Indenture which, under Article VIII,
cannot be modified without the consent of the Holder of each Outstanding Note of such
series.



          Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.




          SECTION 4.14. Undertaking for Costs. All parties to this Indenture agree, and each
Holder of any Note by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section 4.14 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the Outstanding Notes of any
series to which the suit relates, or to any suit instituted by any Holder pursuant to Section 4.08.




          SECTION 4.15. Waiver of Stay or Extension Laws. Each of the Obligor and the Guarantor
covenants (to the extent that each may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension
law (other than any bankruptcy law) wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the Obligor and the
Guarantor (to the extent that each may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.




37









 








ARTICLE V




THE TRUSTEE





     SECTION 5.01. Certain Duties and Responsibilities of Trustee.




     (1) Except during the continuance of an Event of Default with respect to a series of
Notes:




     (i) the Trustee undertakes to perform such duties and only such duties with respect to
such series of Notes as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series of Notes shall be read into this
Indenture against the Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture.




     (2) In case an Event of Default with respect to a series of Notes has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture with respect to such series of Notes, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.




     (3) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:




     (i) this Subsection shall not be construed to limit the effect of Section 5.01(1);




     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;




     (iii) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes of any series relating to
the time, method, and place of conducting any proceeding for any remedy available to the
Trustee with respect to such series of Notes, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to such series of Notes; and



38









 






     (iv) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.




     (4) Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 5.01.



          SECTION 5.02. Notice of Defaults. Within 90 days after the occurrence of any default
hereunder with respect to any series of Notes, the Trustee shall transmit by mail to all Holders of
Notes of such series, as their names and addresses appear in the Security Register, notice of such
default hereunder known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the principal of or
interest or premium, if any, on any Note of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors, and/or Responsible Officers of the Trustee determine in good faith
that the withholding of such notice is in the interests of the Holders of the Outstanding Notes of
such series and; provided, further, that, in the case of any default of the character specified in
clause (iii) of Section 4.01(1) or in clause (i) of Section 4.01(2), no such notice to Holders of
Notes of such series shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section 5.02, the term “default” means any event which is, or after notice
or lapse of time or both would become, an Event of Default.




          SECTION 5.03. Certain Rights of Trustee. Except as otherwise provided in Section
5.01:





     (1) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;




     (2) any request or direction of the Obligor described herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Managing Directors
may be sufficiently evidenced by a Managing Directors Resolution;




     (3) any request or direction of the Guarantor described herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;




     (4) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers’ Certificate;



39









 






     (5) the Trustee may consult with counsel of its selection and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;




     (6) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;




     (7) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of
the Obligor, personally or by agent or attorney;




     (8) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and




     (9) the permissive rights of the Trustee enumerated herein shall not be construed as
duties.



          SECTION 5.04. Not Responsible for Recitals or Issuance of Notes. The recitals
contained herein and in the Notes, except the certificates of authentication, shall be taken as the
statements of the Obligor, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the Obligor of the Notes
or the proceeds thereof. The Trustee shall not be charged with notice or knowledge of any Event of
Default under clause (vi) of Section 4.01(1) or clause (iv) of Section 4.01(2) or of the identity
of a Restricted Subsidiary of the Obligor, PBG or the Guarantor unless either (i) a Responsible
Officer of the Trustee assigned to and working in its Corporate Trust Office shall have actual
knowledge thereof or (ii) notice thereof shall have been given to the Trustee in accordance with
Section 1.05 from the Obligor, the Guarantor or any Holder.




          SECTION 5.05. May Hold Notes. The Trustee or any Paying Agent, Registrar, or other
agent of the Obligor or the Guarantor, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to Sections 5.08 and 5.12, may otherwise deal with the
Obligor or the Guarantor with the same rights it would have if it were not Trustee, Paying Agent,
Registrar, or such other agent.




          SECTION 5.06. Money Held in Trust. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The





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Trustee shall be under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Obligor.




          SECTION 5.07. Compensation and Reimbursement. The Obligor covenants and agrees:





     (1) to pay the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a trustee of an
express trust);




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its negligence or
bad faith; and




     (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.



          The Trustee shall have a lien prior to the Notes upon all property and funds held by it
hereunder for any amount owing it or any retiring Trustee pursuant to this Section 5.07, except
with respect to funds held in trust for the benefit of the Holders of particular Notes.




          Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
clause (iv) or (v) of Section 4.01(1) and clause (ii) or (iii) of Section 4.01(2), such expenses
(including the reasonable charges and expenses of its counsel) and compensation for such services
are intended to constitute expenses of administration under any applicable Federal or State
bankruptcy, insolvency, reorganization, or other similar law.




          The provisions of this Section shall survive the termination of this Indenture and the
resignation or removal of the Trustee.




          SECTION 5.08. Disqualification; Conflicting Interests. If the Trustee has or shall
acquire any conflicting interest within the meaning of the Trust Indenture Act, it shall either
eliminate such interest or resign as Trustee, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted
by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Notes of more than one series or by virtue of being a
Trustee under:





     (i) the Indenture, dated as of February 8, 1999, among Pepsi Bottling Holdings, Inc.,
the Guarantor, as guarantor, and the Trustee, as supplemented by the



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Supplemental Indenture, dated as of February 9, 1999, among Pepsi Bottling Holdings,
Inc., the Guarantor, as guarantor, and the Obligor relating to the 2009 Notes,




     (ii) the Indenture, dated as of March 8, 1999, among PBG, the Obligor, as guarantor,
and the Trustee relating to the Senior Notes due 2029 of PBG and the Series B Senior Notes
due 2029 of PBG,




     (iii) the Indenture, dated as of November 15, 2002, among the Obligor, PepsiCo, Inc.,
as guarantor, and the Trustee relating to the Senior Notes due 2012 and the Series B Senior
Notes due 2012 of the Obligor,




     (iv) the Indenture, dated as of June 10, 2003, between the Obligor and the Trustee
relating to the Senior Notes due 2015 of the Obligor and the Series B Senior Notes due 2015
of the Obligor,




     (v) the Indenture, dated as of October 1, 2003, between the Obligor and the Trustee
relating to Senior Notes in one or more series of the Obligor, and




     (vi) the Indenture, dated as of March 30, 2006, between the Obligor and the Trustee
relating to Senior Notes in one or more series of the Obligor.



     SECTION 5.09. Corporate Trustee Required; Eligibility. There shall at all times be a
Trustee hereunder that shall be a corporation organized and doing business under the laws of the
United States of America or of any State or Territory thereof or of the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then for the purposes
of this Section 5.09, the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section 5.09, it shall resign immediately in the manner and with the effect hereinafter specified
in this Article V.



     SECTION 5.10. Resignation and Removal; Appointment of Successor.




     (1) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article V shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 5.11.




     (2) The Trustee may resign at any time with respect to the Notes of one or more series
by giving written notice thereof to the Obligor. If the instrument of acceptance by a
successor Trustee required by Section 5.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes of such series.



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     (3) The Trustee may be removed at any time with respect to the Notes of any series by
Act of the Holders of 66 2/3% in aggregate principal amount of the Outstanding Notes of such
series, delivered to the Trustee and to the Obligor.




     (4) If at any time:




     (i) the Trustee shall fail to comply with Section 5.08 after written request therefor
by the Obligor or by any Holder who has been a bona fide Holder of a Note for at least six
months, or




     (ii) the Trustee shall cease to be eligible under Section 5.09 and shall fail to resign
after written request therefor by the Obligor or by any such Holder, or




     (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the
Obligor by a Managing Directors Resolution may remove the Trustee with respect to all Notes,
or (B) subject to Section 4.14, any Holder who has been a bona fide Holder of a Note for at
least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to all Notes and
the appointment of a successor Trustee or Trustees.




     (5) If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the Notes of one
or more series, the Obligor, by a Managing Directors Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Notes of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Notes of one
or more or all of such series and that at any time there shall be only one Trustee with
respect to the Notes of any particular series) and shall comply with the applicable
requirements of Section 5.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with respect to the
Notes of any series shall be appointed by Act of the Holders of 66 2/3% in aggregate
principal amount of the Outstanding Notes of such series delivered to the Obligor and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of Section 5.11, become the
successor Trustee with respect to the Notes of such series and to that extent supersede the
successor Trustee appointed by the Obligor. If no successor Trustee with respect to the
Notes of any series shall have been so appointed by the Obligor or the Holders and accepted
appointment in the manner required by Section 5.11, any Holder who has been a bona fide
Holder of a Note of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Notes of such series.




     (6) The Obligor shall give notice of each resignation and each removal of the Trustee
with respect to the Notes of any series and each appointment of a successor



43









 






Trustee with respect to the Notes of any series to all Holders of Notes of such series
in the manner provided in Section 1.06. Each notice shall include the name of the successor
Trustee with respect to the Notes of such series and the address of its Corporate Trust
Office.



          SECTION 5.11. Acceptance of Appointment by Successor. In case of the appointment
hereunder of a successor Trustee with respect to all Notes, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Obligor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Obligor or the successor Trustee, such retiring Trustee shall,
upon payment of its reasonable charges and subject to its lien, if any, provided by Section 5.07,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.




          In case of the appointment hereunder of a successor Trustee with respect to the Notes of one
or more (but not all) series, the Obligor, the retiring Trustee and each successor Trustee with
respect to the Notes of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Notes of that or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Notes, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Notes of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to
or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Notes of that or those series to
which the appointment of such successor Trustee relates; but, on request of the Obligor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with respect to the Notes of
that or those series to which the appointment of such successor Trustee relates.




          Upon request of any such successor Trustee, the Obligor shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.





44









 







          No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article V.




          SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be otherwise qualified and eligible under this Article V, without the execution
or filing of any paper or any further act on the part of any of the parties hereto. In case any
Notes shall have been authenticated, but not delivered, by the Trustee then in office, any
successor Trustee by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.




          SECTION 5.13. Preferential Collection of Claims Against Obligor. If and when the
Trustee shall be or shall become a creditor of the Obligor (or of any other obligor upon the
Notes), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Obligor (or against any such other obligor, as the case may be).




          SECTION 5.14. Appointment of Authenticating Agent.





     (1) At any time when any of the Notes remain Outstanding the Trustee, with the approval
of the Obligor, may appoint an Authenticating Agent or Agents with respect to one or more
series of Notes which shall be authorized to act on behalf of the Trustee to authenticate
Notes of such series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 2.05, and Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Obligor and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as an Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and, if other than the Obligor
itself, subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the purposes of this
Section 5.14, the combined capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 5.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 5.14.



45









 






     (2) Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section 5.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.




     (3) An Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and, if other than the Obligor, to the Obligor. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and, if other than the Obligor, to the Obligor. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section 5.14, the
Trustee, with the approval of the Obligor, may appoint a successor Authenticating Agent
which shall be acceptable to the Obligor and shall mail written notice of such appointment
by first-class mail, postage prepaid, to all Holders of Notes of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section
5.14.




     (4) The Obligor agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 5.14.




     (5) If an appointment is made pursuant to this Section 5.14, the Notes may have
endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate
certificate of authentication in the following form:



          This is one of the Notes referred to in the within-mentioned Indenture.




	 	 	 	 	 
	 	The Bank of New York Mellon

     as Trustee

 	 
	 	By:  	 	 
	 	 	As Authenticating Agent 	 
	 	 	 
	 	By:  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 



46









 





	 	 	 	 	 



ARTICLE VI




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND OBLIGOR




          SECTION 6.01. Obligor to Furnish Trustee Names and Addresses of Holders. The Obligor
will furnish or cause to be furnished to the Trustee:






     (1) semi-annually, not more than 15 days after the Record Date for the payment of
interest in respect of each series of Notes, in such form as the Trustee may reasonably
require, a list of the names and addresses of the Holders of such Notes as of such date,




     (2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Obligor of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished,


provided that, in the case of (1) and (2), if the Trustee shall be the Registrar, such list
shall not be required to be furnished.




          SECTION 6.02. Preservation of Information; Communications to Holders.





     (1) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Notes of each series contained in the most recent list
furnished to the Trustee as provided in Section 6.01 and the names and addresses of Holders
of Notes received by the Trustee. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.




     (2) Holders of Notes may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders of Notes with respect to their rights under this Indenture
or under the Notes.




     (3) Every Holder of Notes, by receiving and holding the same, agrees with the Obligor
that the Obligor shall not be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Notes in accordance with Section
6.02(2), regardless of the source from which such information was derived.



          SECTION 6.03. Reports by Trustee.





     (1) Within 60 days after May 15 of each year commencing with the first May 15 following
the date of the initial issuance of Notes under this Indenture, the Trustee shall transmit
by mail to the Holders of Notes as their names and addresses appear in the Security
Register, a brief report dated as of such May 15, to the extent required under Section
313(a) of the Trust Indenture Act.




     (2) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture
Act.



47









 






     (3) A copy of each such report shall, at the time for such transmission to Holders of
Notes, be filed by the Trustee with the Obligor, with each stock exchange upon which any
Notes are listed (if so listed) and also with the Commission. The Obligor agrees to
promptly notify the Trustee when any Notes become listed on any stock exchange and of any
delisting thereof.



          SECTION 6.04. Reports by Obligor and Guarantor.




          The Obligor and the Guarantor shall comply with the provisions of Section 314(a) and 314(c) of
the TIA.




ARTICLE VII




CONSOLIDATION, MERGER OR TRANSFER




          SECTION 7.01. Obligor May Consolidate, Etc., Only on Certain Terms. The Obligor may
consolidate or merge with or into, or transfer or lease all or substantially all of its assets to,
any Entity that is organized and validly existing under the laws of any state of the United States
of America or the District of Columbia, and may permit any such Entity to consolidate with or merge
into the Obligor or transfer or lease all or substantially all of its assets to the Obligor,
provided that:





     (1) the Obligor will be the surviving Entity or, if not, that the successor Entity will
expressly assume by a supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of and premium,
if any, and interest on all the Notes and the performance of every covenant of the Indenture
to be performed or observed by the Obligor;




     (2) immediately after giving effect to such transaction, no Event of Default, and no
default or other event which, after notice or lapse of time, or both, would become an Event
of Default, will have happened and be continuing; and




     (3) the Obligor shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, transfer or lease and any
such assumption involving the Obligor complies with the provisions of this Article VII.



          SECTION 7.02. Guarantor May Consolidate, Etc., Only on Certain Terms. The Guarantor
may consolidate or merge with or into, or transfer or lease all or substantially all of its assets
to, any Entity, provided that:





     (1) the Guarantor will be the surviving Entity or, if not, that the successor Entity
formed by such consolidation or into which the Guarantor is merged or the Entity which
acquires by transfer or lease all or substantially all of the properties and assets of the
Guarantor will be an Entity organized and existing under the laws of any state of the United
States of America or the District of Columbia, and will expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, in form satisfactory



48









 






to the Trustee, all of the obligations of the Guarantor under this Indenture and the
Guarantee;




     (2) immediately after giving effect to such transaction, no Event of Default, and no
default or other event which, after notice or lapse of time, or both, would become an Event
of Default, will have happened and be continuing; and




     (3) the Guarantor shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, transfer or lease and any
such assumption involving the Guarantor complies with the provisions of this Article VII.



     In the event that the Guarantee shall not become effective and the Guarantee Commencement Date
shall not occur in accordance with the provisions of Section 11.01(3), the provisions of this
Section 7.02 shall not be applicable to the Guarantor.



          SECTION 7.03. Successor Entity Substituted. Upon any consolidation or merger, or any
transfer or lease of all or substantially all of the properties and assets of the Obligor, in
accordance with Section 7.01 or Section 7.02, as the case may be, the successor Entity will succeed
to and be substituted for the Obligor or the Guarantor, as the case may be, as Obligor or
Guarantor, as the case may be, on the Notes or on the Guarantee, as the case may be, with the same
effect as if it had been named in this Indenture as the Obligor or as the Guarantor, as the case
may be, and the Obligor or the Guarantor, as the case may be, shall thereupon, except in the case
of a lease, be released from all obligations hereunder and under the Notes and the Guarantee, as
applicable. Such successor to the Obligor may cause to be signed, and may issue either in its own
name or in the name of the Obligor prior to such succession any or all of the Notes issuable
hereunder which theretofore shall not have been signed by the Obligor and delivered to the Trustee;
and, upon the order of such successor Entity instead of the Obligor and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee, pursuant to the terms hereof,
shall authenticate and shall deliver any Notes which previously shall have been signed and
delivered by the Officers of the Obligor to the Trustee for authentication, and any Notes which
such successor to the Obligor thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All of the Notes so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been issued at the date of the execution
hereof.




ARTICLE VIII




SUPPLEMENTAL INDENTURES




          SECTION 8.01. Supplemental Indentures Without Consent of Holders. Without the consent
of the Holders of any Notes, the Obligor, the Guarantor and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of execution thereof), in form satisfactory to the
Trustee, for any of the following purposes:




49









 








     (1) to evidence the succession of another Entity to the Obligor or the Guarantor, or
successive successions, and the assumption by any such successor of the covenants,
agreements and obligations of the Obligor or the Guarantor pursuant to Article VII; or




     (2) to add to the covenants of the Obligor or the Guarantor such further covenants,
restrictions or conditions for the protection of the Holders of the Notes as the Obligor,
the Guarantor and the Trustee shall consider to be for the protection of the Holders of the
Notes (and if such covenants are to be for the benefit of less than all series of Notes,
stating that such covenants are expressly being included solely for the benefit of such
series); or




     (3) to evidence the surrender of any right or power of the Obligor or the Guarantor; or




     (4) to cure any defect or ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or in any supplemental indenture,
or to make any other provisions with respect to matters or questions arising under this
Indenture; or




     (5) to add to this Indenture such provisions as may be expressly permitted by the TIA
as in effect at the date as of which this instrument is executed or any corresponding
provision in any similar federal statute hereafter enacted; or




     (6) to comply with any requirements of the Commission in connection with qualifying, or
maintaining the qualification of, this Indenture under the TIA; or




     (7) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 5.11; or




     (8) to add to the rights of the Holders of the Notes; or




     (9) to provide for the issuance of and establish the form or forms and terms and
conditions of Notes of any series as permitted by this Indenture; or




     (10) to add any additional Events of Default for the benefit of the Holders of all or
any series of Notes (and if such additional Events of Default are to be for the benefit of
less than all series of Notes, stating that such additional Events of Default are expressly
being included solely for the benefit of such series); or




     (11) to conform this Indenture to the section entitled “Description of Debt Securities”
in the prospectus dated October [•], 2008 or any prospectus supplement to such prospectus
relating to the Notes or any corresponding section of such prospectus or prospectus
supplement pursuant to which any additional series of Notes is issued under this Indenture,
except as restricted under the TIA.



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          No supplemental indenture for the purposes identified in clause (2), (3), (4), (8) or (10)
above may be entered into if to do so would adversely affect the interest of the Holders of Notes.




          Any such supplemental indenture authorized by the provisions of this Section 8.01 may be
executed without the consent of the Holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 8.02.




          SECTION 8.02. Supplemental Indentures with Consent of Holders. With the consent of
the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes of
all series affected by such supplemental indenture (voting as one class), the Obligor, when
authorized by a Managing Directors Resolution, the Guarantor, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the Holders of the Notes of each such series under this
Indenture; provided, however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:





     (1) change the Maturity Date or the stated payment date of any payment of premium or
interest payable on such Note, or reduce the principal amount thereof, or any amount of
interest payable thereon, or change the method of computing the amount of interest payable
thereon on any date, or change any Place of Payment where, or the coin or currency in which,
any such Note or any payment of principal, premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after the same
shall become due and payable, whether at Maturity or, in the case of redemption, on or after
the Redemption Date; or




     (2) reduce the percentage in principal amount of the Outstanding Notes of the relevant
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of certain defaults hereunder and their
consequences, provided for in this Indenture; or




     (3) modify any of the provisions of this Section 8.02, Section 4.08 or Section 4.13,
except to increase any such percentage set forth in this Section 8.02 or Section 4.13 or to
provide that certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby, provided, however, that
this clause shall not be deemed to require the consent of any Holder with respect to changes
in the references to the “Trustee” and concomitant changes in this Section, or the deletion
of this proviso, in accordance with the requirements of Section 5.11 and 8.01(7).



          A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Notes, or which modifies the rights of the Holders of Notes of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Notes of any other series.




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          It shall not be necessary for any Act of Holders under this Section 8.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.




          SECTION 8.03. Execution of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article VIII or the
modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 5.01) shall be fully protected in relying upon, in addition to the
documents required by Section 1.02, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. Upon request of the Obligor
and, in the case of Section 8.02, upon filing with the Trustee of evidence of an Act of Holders as
aforementioned, the Trustee and the Guarantor shall join with the Obligor in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, powers,
trusts, duties or immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental indenture.




          SECTION 8.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article VIII, this Indenture shall be and be deemed to be
modified and amended in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and the respective rights, limitation of rights, duties, powers,
trusts and immunities under this Indenture of the Trustee, the Obligor, the Guarantor and every
Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be
determined, exercised and enforced thereunder to the extent provided therein.




          SECTION 8.05. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article VIII shall conform to the requirements of the TIA as then in
effect.




          SECTION 8.06. Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Section 5.01, may receive an Officers’ Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this Article VIII complies
with the applicable provisions of this Indenture.




          SECTION 8.07. Notation on Notes in Respect of Supplemental Indentures. Notes of any
series authenticated and delivered after the execution of any supplemental indenture pursuant to
the provisions of this Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture. If the Obligor or the Trustee shall
so determine, new Notes of any series so modified as to conform, in the opinion of the Trustee and
the Managing Directors, to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Obligor, authenticated by the Trustee and delivered in exchange
for the Notes of such series then Outstanding.




ARTICLE IX




COVENANTS




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          SECTION 9.01. Payment of Principal, Premium and Interest. The Obligor covenants and
agrees for the benefit of each series of Notes that it will duly and punctually pay or cause to be
paid the principal, premium, if any, and interest on such series of Notes on the dates and in the
manner provided in such series of Notes, and will duly comply with all the other terms, agreements
and conditions contained in this Indenture for the benefit of such series of Notes.




          The Obligor shall pay interest (including post-petition interest in any proceeding under any
Federal or state bankruptcy, insolvency, reorganization, or other similar law) on overdue principal
and premium, if any, from time to time on demand at the applicable rate of interest determined from
time to time in the manner provided for in each series of Notes; it shall pay interest (including
post-petition interest in any proceeding under any Federal or State bankruptcy, insolvency,
reorganization, or other similar law) on overdue installments of interest and (without regard to
any applicable grace periods) from time to time on demand at the same rates to the extent lawful.




          SECTION 9.02. Maintenance of Office or Agency. So long as any of the Notes remain
outstanding, the Obligor will maintain an office or agency in the City of New York where Notes may
be presented or surrendered for payment, where Notes may be surrendered for transfer or exchange,
and where notices and demands to or upon the Obligor in respect of the Notes and this Indenture may
be served. The Obligor will give prompt written notice to the Trustee of the location, and of any
change in the location, of such office or agency. If at any time the Obligor shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Obligor hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.




          The Obligor may also from time to time designate one or more other offices or agencies where
one or more series of Notes may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Obligor of its obligation to maintain an office or
agency in the City of New York for such purposes. The Obligor shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.




          SECTION 9.03. Money for Note Payments to be Held in Trust. If the Obligor shall at
any time act as its own Paying Agent, it will, on or before each due date of the principal,
premium, if any, or interest on any series of Notes, segregate and hold in trust for the benefit of
the Holders of such series of Notes a sum sufficient to pay such principal, premium or interest so
becoming due until such sums shall be paid to such Holders of the Notes of such series or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to
act.




          Whenever the Obligor shall have one or more Paying Agents, it will, on or prior to each due
date of the principal, premium, if any, or interest, on any series of Notes, deposit with a Paying
Agent a sum sufficient to pay such principal, premium, or interest so becoming due, such sum to be
held in trust for the benefit of the Holders of the Notes of such series entitled



53









 





to the same and (unless such Paying Agent is the Trustee) the Obligor will promptly notify the
Trustee of its action or failure so to act.




          The Obligor will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section 9.03, that such Paying Agent will:





     (1) hold all sums held by it for the payment of principal, premium, if any, or
interest, on Notes of any series in trust for the benefit of the Holders of the Notes of
such series entitled thereto until such sums shall be paid to such Holders or otherwise
disposed of as herein provided;




     (2) give the Trustee prompt notice of any default by the Obligor (or any other obligor
upon the Notes of such series) in the making of any such payment of principal, premium, if
any, or interest, on such Notes; and




     (3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



          The Obligor may, at any time, for the purpose of obtaining the discharge of this Indenture or
for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Obligor or such Paying Agent or, if for any other purpose, all sums so
held in trust by the Obligor in respect of all series of Notes, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Obligor or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.




          SECTION 9.04. Certificate to Trustee.





     (1) The Obligor will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Obligor ending after the initial issuance of Notes under this Indenture,
an Officers’ Certificate that complies with TIA Section 314(a)(4) stating that in the course
of the performance by the signers of their duties as officers of the Obligor, they would
normally have knowledge of any default by the Obligor in the performance of any of its
covenants or agreements contained herein, stating whether or not they have knowledge of any
such default and, if so, specifying each such default of which the signers have knowledge
and the nature thereof.




     (2) The Guarantor will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Guarantor ending after the initial issuance of Notes under this
Indenture, an Officers’ Certificate that complies with TIA Section 314(a)(4) stating that in
the course of the performance by the signers of their duties as officers of the Guarantor,
they would normally have knowledge of any default by the Guarantor in the performance of any
of its covenants or agreements contained herein, stating whether or not they have knowledge
of any such default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof.



54









 





          SECTION 9.05. Existence. Subject to Article VII, (1) the Obligor will do or cause to
be done all things necessary to preserve and keep in full force and effect its limited liability
company existence and (2) the Guarantor will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.




          SECTION 9.06. Limitation on Liens.





     (1) Limitation on Liens with Respect to the Obligor: So long as any of the
Notes shall be Outstanding, neither the Obligor nor any Restricted Subsidiary of the Obligor
will incur, suffer to exist or guarantee any Debt, secured by a mortgage, pledge or lien (a
“Lien”) on any Principal Property (as such term is defined with respect to the
Obligor) or on any shares of stock of (or other interests in) any Restricted Subsidiary of
the Obligor unless the Obligor or such first mentioned Restricted Subsidiary secures or the
Obligor causes such Restricted Subsidiary to secure the Notes (and any other Debt of the
Obligor or such Restricted Subsidiary, at the option of the Obligor or such Restricted
Subsidiary, as the case may be, not subordinate to the Notes), equally and ratably with (or
prior to) such secured Debt, for so long as such secured Debt shall be so secured. This
restriction will not, however, apply to Debt secured by:




     (i) Liens existing prior to the initial issuance of Notes hereunder;




     (ii) Liens on property of or shares of stock of (or other interests in) any Entity
existing at the time such Entity becomes a Restricted Subsidiary of the Obligor;




     (iii) Liens on property of or shares of stock of (or other interests in) any Entity
existing at the time of acquisition thereof (including acquisition through merger or
consolidation);




     (iv) Liens securing indebtedness incurred to finance all or any part of the purchase
price of property or the cost of construction of such property (or additions, substantial
repairs, alterations or substantial improvements thereto), provided that such Lien and the
indebtedness secured thereby are incurred within 365 days after the later of (a) acquisition
of such property or the completion of construction (or addition, repair, alteration or
improvement) thereon and (b) the commencement of full operation thereof;




     (v) Liens in favor of the Obligor or any of its Restricted Subsidiaries;




     (vi) Liens in favor of, or required by contracts with, governmental entities; or




     (vii) any extension, renewal, or refunding referred to in any of the preceding clauses
(i) through (vi), provided that in the case of a Lien permitted under clause (i), (ii),
(iii), (iv) or (v), the Debt secured is not increased nor the Lien extended to any
additional assets.



          Notwithstanding the foregoing, the Obligor or any of its Restricted Subsidiaries may incur,
suffer to exist or guarantee any Debt secured by a Lien on any Principal Property (as such term is
defined with respect to the Obligor) or on any shares of stock of (or other interests


55









 






           in) any Restricted Subsidiary of the Obligor if, after giving effect thereto, the aggregate
amount of Exempted Debt does not exceed 15% of Consolidated Net Tangible Assets of the Obligor.





     (2) Limitation on Liens with Respect to the Guarantor. On and after the
Guarantee Commencement Date (in the event that the Guarantee Commencement Date shall occur)
and so long as any of the Notes shall be Outstanding, neither the Guarantor nor any
Restricted Subsidiary of the Guarantor will incur, suffer to exist or guarantee any Debt,
secured by a Lien on any Principal Property (as such term is defined with respect to the
Guarantor) or on any shares of stock of (or other interests in) any Restricted Subsidiary of
the Guarantor unless the Guarantor or such first mentioned Restricted Subsidiary secures or
the Guarantor causes such Restricted Subsidiary to secure the Guarantee (and any other Debt
of the Guarantor or such Restricted Subsidiary, at the option of the Guarantor or such
Restricted Subsidiary, as the case may be, not subordinate to the Guarantee), equally and
ratably with (or prior to) such secured Debt, for so long as such secured Debt shall be so
secured. This restriction will not, however, apply to Debt secured by:




     (i) Liens existing prior to the Guarantee Commencement Date;




     (ii) Liens on property of or shares of stock of (of other interests in) any Entity
existing at the time such Entity becomes a Restricted Subsidiary of the Guarantor;




     (iii) Liens on property or shares of stock of (of other interests in) any Entity
existing at the time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or part of the purchase price thereof or
construction or improvements on such property or to secure any Debt incurred prior to, at
the time of, or within 365 days after the later of the acquisition, the completion of
construction, or the commencement of full operation of such property, or within 365 days
after the acquisition of such shares (or other interests) for the purpose of financing all
or any part of the purchase price of such shares (or other interests);




     (iv) Liens in favor of the Guarantor or any of its Restricted Subsidiaries;




     (v) Liens in favor of, or required by contracts with, governmental entities; and




     (vi) any extension, renewal, or refunding referred to in any of the preceding clauses
(i) through (v).



          Notwithstanding the foregoing, the Guarantor or any of its Restricted Subsidiaries may incur,
suffer to exist or guarantee any Debt secured by a Lien on any Principal Property (as such term is
defined with respect to the Guarantor) or on any shares of stock of (or other interests in) any
Restricted Subsidiary of the Guarantor if, after giving effect thereto, the aggregate amount of
such Debt does not exceed 15% of Consolidated Net Tangible Assets of the Guarantor.




          The transfer of a Principal Property by the Guarantor to an Unrestricted Subsidiary of the
Guarantor or the change in designation by the Guarantor of a Subsidiary which



56









 





owns a Principal Property from Restricted Subsidiary to Unrestricted Subsidiary shall not be
restricted.




          SECTION 9.07. Limitation on Sale-Leaseback Transactions.





     (1) The Obligor will not, and will not permit any of its Restricted Subsidiaries to,
sell or transfer, directly or indirectly, except to the Obligor or a Restricted Subsidiary
of the Obligor, any Principal Property (as such term is defined with respect to the Obligor)
as an entirety, or any substantial portion thereof, with the intention of taking back a
lease of all or part of such property, except a lease for a period of three years or less at
the end of which it is intended that the use of such property by the lessee will be
discontinued; provided that, notwithstanding the foregoing, the Obligor or any of its
Restricted Subsidiaries may sell a Principal Property (as such term is defined with respect
to the Obligor) and lease it back for a period longer than three years (i) if the Obligor or
such Restricted Subsidiary would be entitled, pursuant to Section 9.06(1), to create a Lien
on the property to be leased securing Debt in an amount equal to the Attributable Debt with
respect to the sale and lease-back transaction without equally and ratably securing the
Outstanding Notes or (ii) if (A) the Obligor promptly informs the Trustee of such
transactions, (B) the net proceeds of such transactions are at least equal to the fair value
(as determined by a Managing Directors Resolution) of such property and (C) the Obligor
causes an amount equal to the net proceeds of the sale to be applied either (x) to the
retirement (whether by redemption, cancellation after open-market purchases, or otherwise),
within 365 days after receipt of such proceeds, of Funded Debt having an outstanding
principal amount equal to such net proceeds or (y) to the purchase or acquisition (or in the
case of property, the construction) of property or assets used in the business of the
Obligor or any Restricted Subsidiary, within 365 days after receipt of such proceeds.




     (2) Notwithstanding Section 9.07(1), the Obligor or any Restricted Subsidiary of the
Obligor may enter into sale and lease-back transactions in addition to those permitted by
Section 9.07(1), and without any obligation to retire any outstanding Funded Debt or to
purchase property or assets, provided that at the time of entering into such sale and
lease-back transactions and after giving effect thereto, Exempted Debt does not exceed 15%
of Consolidated Net Tangible Assets of the Obligor.



ARTICLE X




REDEMPTION OF NOTES




          SECTION 10.01. Election to Redeem; Notice to Trustee. If the Obligor elects to redeem
any series of Notes pursuant to the optional redemption provisions of Section 10.07 or any other
optional redemption provision provided for with respect to such series of Notes, it shall furnish
to the Trustee, at least 45 days but not more than 60 days before the Redemption Date, an Officers’
Certificate setting forth (1) the Redemption Date, and (2) the CUSIP and/or ISIN numbers of the
series of Notes to be redeemed.




57









 







          SECTION 10.02. Selection by Trustee of the Notes to be Redeemed. If fewer than all
the Notes of any series are to be redeemed, the particular Notes of such series to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding Notes of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate. The portions of the principal of Notes of such series so
selected for partial redemption shall be equal to $2,000, or an integral multiple of $1,000 in
excess thereof, and the principal amount which remains Outstanding shall not be less than $2,000.




          The Trustee shall promptly notify the Obligor in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the principal amount thereof to be
redeemed.




          For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Notes shall relate, in the case of any Note redeemed or to be
redeemed only in part, to the portion of the principal of such Note which has been or is to be
redeemed.




          SECTION 10.03. Notice of Redemption.





     (1) Notice of redemption to the Holders of Notes to be redeemed as a whole or in part
at the option of the Obligor shall be given by first-class mail, postage prepaid, mailed not
fewer than 30 nor more than 60 days prior to the Redemption Date, to each such Holder at
such Holder’s last address appearing in the Security Register.




     (2) All notices of redemption shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price, or if not then ascertainable, the manner of calculating the
Redemption Price;




     (iii) if fewer than all Outstanding Notes of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of
the Notes of such series to be redeemed from the Holder to whom the notice is given and that
on and after the Redemption Date, upon surrender of such Note, a new Note or Notes of such
series in the aggregate principal amount equal to the unredeemed portion thereof will be
issued in accordance with Section 10.06;




     (iv) that on the Redemption Date the Redemption Price will become due and payable upon
each Note of such series called for redemption, and that interest, if any, thereon shall
cease to accrue from and after said date;




     (v) the place where Notes of such series called for redemption are to be surrendered
for payment of the Redemption Price, which shall be the office or agency maintained by the
Obligor pursuant to Section 9.02;




     (vi) the name and address of the Paying Agent;



58









 






     (vii) that the Notes called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price; and




     (viii) the CUSIP and/or ISIN number, and that no representation is made as to the
correctness or accuracy of the CUSIP and/or ISIN number, if any, listed in such notice or
printed on the series of Notes.




     (3) Notice of redemption of Notes shall be given by the Obligor or, at the Obligor’s
request, by the Trustee in the name and at the expense of the Obligor.



          SECTION 10.04. Deposit of Redemption Price. On or prior to 10 a.m., New York City
time, on any Redemption Date, the Obligor shall deposit with the Trustee or with a Paying Agent
(or, if the Obligor is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 9.03) an amount of money sufficient to pay the Redemption Price of all the Notes of such
series which are to be redeemed on that date.




          SECTION 10.05. Notes Payable on Redemption Date.





     (1) Notice of redemption having been given as aforesaid, the Notes so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Obligor shall default in the payment of
the Redemption Price) such Notes shall cease to bear interest. Upon surrender of such Notes
for redemption in accordance with the notice, such Notes shall be paid by the Obligor at the
Redemption Price. Any installment of interest due and payable on or prior to the Redemption
Date shall be payable to the Holders of such Notes registered as such on the relevant Record
Date according to the terms and the provisions of Section 2.06.




     (2) If any Note called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor by the Note.



          SECTION 10.06. Notes Redeemed in Part. Any Note that is to be redeemed only in part
shall be surrendered at the office or agency maintained by the Obligor pursuant to Section 9.02
(with, if the Obligor or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Obligor and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing) and the Obligor shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge and at the expense of
the Obligor, a new Note or Notes of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of
the principal of such Note so surrendered.




          SECTION 10.07. Optional Redemption. The Notes of any series will be redeemable at any
time in whole or from time to time in part at the option of the Obligor, regardless of whether the
Notes of any other series are to be redeemed, at the Redemption Price equal to the greater of:





     (1) 100% of the principal amount of the Notes being redeemed, or



59









 






     (2) as determined by an Independent Investment Banker, the sum of the present values of
the remaining scheduled payments of principal and interest on the Notes being redeemed (not
including any portion of such payments of interest on the Notes accrued to the Redemption
Date) from the Redemption Date to the Maturity Date discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount
rate equal to the Treasury Rate plus the number of basis points, if any, provided for with
respect to such series of Notes being redeemed; plus, for (1) or (2) above, whichever is
applicable, accrued and unpaid interest on the Notes to be redeemed to, but not including,
the Redemption Date. The Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date and notice thereof shall promptly be given by the Obligor to
the Trustee.



          Any redemption pursuant to this Section 10.07 shall be made pursuant to the provisions of
Section 10.01 through 10.06.




          Notwithstanding anything in this Section 10.07 to the contrary, the Obligor may provide
pursuant to Section 2.01(1)(v)(j) for optional redemption provisions with respect to a series of
Notes in addition to, or in substitution of, the provision contained in this Section 10.07 and may
provide with respect to a series of Notes for an optional redemption provision identical to the
provision contained in this Section but providing for different definitions of the terms
“Comparable Treasury Issue,” “Comparable Treasury Price,” “Reference Treasury Dealer,” “Reference
Treasury Dealer Quotations” and “Treasury Rate.”




          SECTION 10.08. Mandatory Redemption. Unless otherwise provided pursuant to Section
2.01(1)(v)(j), the Obligor shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes of any series.




ARTICLE XI




GUARANTEE




          SECTION 11.01. Guarantee.





     (1) Provisions Relating to a Full Guarantee.




     (a) Subject to the provisions of this Article XI, in the event that:




     (A) the Obligor has deposited irrevocably with the 2009 Notes Trustee, prior to the
2009 Notes Payment Deposit Date, sufficient cash in immediately available funds to pay in
full the principal of and interest and premium, if any, that will become due and payable on
the 2009 Notes on the 2009 Notes Payment Date; or




     (B) (x) the Obligor has not deposited irrevocably with the 2009 Notes Trustee, prior to
the 2009 Notes Payment Deposit Date, sufficient cash in immediately available funds to pay
in full the principal of and interest and premium, if any, that will become due and payable
on the 2009 Notes on the 2009 Notes Payment Date and (y) the Guarantor has not delivered to
the Obligor and the Trustee an Officers’ Certificate by 5:00 p.m., New York City time, on
the 2009 Notes Payment Deposit Date, stating that the



60









 






Guarantor has determined in good faith that the Guarantor is likely to have to pay some
or all of the principal amount of the 2009 Notes (and the interest and premium, if any, with
respect thereto) due and payable on the 2009 Notes Payment Date under the 2009 Notes
Guarantee; then,




beginning on the Guarantee Commencement Date, the Guarantor unconditionally and irrevocably
guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, that: (a) the principal of, premium, if any, and
interest on the Notes will be duly and punctually paid in full when due, whether at stated
maturity, by acceleration, redemption or otherwise, together with interest on overdue
principal, and premium, if any, and (to the extent permitted by law) interest on any
interest, if any, on the Notes and all other monetary obligations of the Obligor to the
Holders hereunder or under the Notes will be promptly paid in full, all in accordance with
the terms hereof; and (b) in case of any extension of time of payment or renewal of any of
the Notes or any of such other monetary obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration, redemption or otherwise.




     (b) In the event of the foregoing, on or promptly after the 2009 Notes Payment Deposit
Date, the Guarantor shall notify the Trustee of the Guarantee Commencement Date and of the
Guarantor’s full Guarantee.




     (2) Provisions Relating to a Partial Guarantee.




     (a) Subject to the provisions of this Article XI, in the event that:




     (A) the Obligor has not deposited irrevocably with the 2009 Notes Trustee, prior to the
2009 Notes Payment Deposit Date, sufficient cash in immediately available funds to pay in
full the principal of and interest and premium, if any, that will become due and payable on
the 2009 Notes on the 2009 Notes Payment Date; and




     (B) the Guarantor has delivered to the Obligor and the Trustee an Officers’ Certificate
by 5:00 p.m., New York City time, on the 2009 Notes Payment Deposit Date, stating that the
Guarantor has determined in good faith that the Guarantor is likely to have to pay some but
not all of the principal amount of the 2009 Notes (and the interest and premium, if any,
with respect thereto) due and payable on the 2009 Notes Payment Date under the 2009 Notes
Guarantee (the “Partial Payment Notice”); then,




beginning on the Guarantee Commencement Date, the Guarantor unconditionally and irrevocably
guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, that (x) the Partial Guarantee Percentage of each of
the principal of, premium, if any, and interest on the Notes will be duly and punctually
paid in full when due, whether at stated maturity, by acceleration, redemption or otherwise,
together with interest on the Partial Guarantee Percentage of such overdue principal, and
premium, if any, and (to the extent permitted by law) interest, if any, on the Notes and the
Partial Guarantee Percentage of all other monetary



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obligations of the Obligor to the Holders hereunder or under the Notes, all in accordance
with the terms hereof; and (y) in case of any extension of time of payment or renewal of any
of the Notes or any of such other monetary obligations, the amount set forth in clause (x)
above will be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration, redemption or
otherwise.




     (b) In the event of the foregoing, on or promptly after the 2009 Notes Payment Deposit
Date, the Guarantor shall notify the Trustee as to the Guarantee Commencement Date, of the
Guarantor’s partial Guarantee and of the Partial Guarantee Percentage.




     (c) In the event that (a) the Obligor defaults in the payment of principal of and
interest and premium, if any, on the Outstanding Notes upon the Maturity Date, the
Redemption Date or by acceleration or otherwise, in each case, on and after the Guarantee
Commencement Date (in the event that the Guarantee Commencement Date shall occur), and (b)
the Guarantor makes the payment of the Partial Guarantee Percentage of each of the principal
of and interest and premium, if any, on the Outstanding Notes under the Guarantor’s partial
Guarantee, a replacement Note in the principal amount equal to the principal of the Note
that was not paid or redeemed will be issued in the name of the Holder of the Note upon
cancellation of the original Note, and upon request of the Obligor, the Trustee shall
authenticate and deliver such replacement Note. Any such replacement Note shall not have an
executed Guarantee endorsed thereon and shall accrue interest from the most recent date to
which interest has been paid or duly provided for or, if no interest has been paid, from the
Issue Date. The issuance of such replacement Note shall be deemed to be a replacement of
the cancelled Note and not the incurrence of new or additional indebtedness under this
Indenture.




     (3) Provisions Relating to the Absence of a Guarantee:




     (a) In the event that:




     (A) prior to the Scheduled Guarantee Commencement Date, there occurs an Event of
Default or any default or other event which, with the giving of notice or passage of time,
would constitute an Event of Default under this Indenture or the Notes; or




     (B) (x) the Obligor has not deposited irrevocably with the 2009 Notes Trustee, prior to
the 2009 Notes Payment Deposit Date, sufficient cash in immediately available funds to pay
in full the principal of and interest and premium, if any, that will become due and payable
on the 2009 Notes on the 2009 Notes Payment Date and (y) the Guarantor has delivered to the
Obligor and the Trustee an Officers’ Certificate by 5:00 p.m., New York City time, on the
2009 Notes Payment Deposit Date, stating that the Guarantor has determined in good faith
that the Guarantor is likely to have to pay all of the principal amount of the 2009 Notes
(and the interest and premium, if any, with respect thereto) due and payable on the 2009
Notes Payment Date under the 2009 Notes Guarantee; then



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the Guarantee shall not become effective, the Guarantee Commencement Date shall not occur,
and the Guarantor shall not have any obligations under the Guarantee or the Indenture.




     (b) Promptly upon the occurrence of any event described in clause (a) or (b) of Section
11.03(1), the Guarantor shall notify the Trustee that the Guarantee shall not become
effective and that the Guarantee Commencement Date shall not occur.




     (4) In accordance with the terms of this Article XI and the Guarantee, failing payment
when due of any amount so guaranteed, or failing performance of any other monetary
obligation of the Obligor to the Holders, for whatever reason, the Guarantor will be
obligated to pay, or to perform or to cause the performance of, such amount so guaranteed
immediately. An Event of Default under this Indenture or the Notes shall constitute an
event of default under the Guarantee, and shall entitle the Holders of the Notes to
accelerate the obligations of the Guarantor under the Guarantee in the same manner and to
the same extent as the obligations of the Obligor.




     (5) In accordance with the terms of this Article XI and the Guarantee, the Guarantor
hereby agrees that its obligations under the Guarantee shall be unconditional, irrespective
of the validity, regularity or enforceability of the Notes or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any thereof, the entry of any judgment against the Obligor, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of the Guarantor. The Guarantor hereby waives and relinquishes: (i)
any right to require the Trustee, the Holders or the Obligor (each, a “Benefitted
Party”) to proceed against the Obligor or any other Person or to proceed against or
exhaust any security held by a Benefitted Party at any time or to pursue any other remedy in
any secured party’s power before proceeding against the Guarantor; (ii) any defense that may
arise by reason of the incapacity, lack of authority, death or disability of any other
Person or Persons or the failure of a Benefitted Party to file or enforce a claim against
the estate (in administration, bankruptcy or any other proceeding) of any other Person or
Persons; (iii) demand, protest and notice of any kind (except as expressly required by this
Indenture), including but not limited to notice of any action or non-action on the part of
the Guarantor, the Obligor, any Benefitted Party, any creditor of the Guarantor, the Obligor
or on the part of any other Person whomsoever in connection with any obligations the
performance of which are guaranteed under the Guarantee; (iv) any defense based upon an
election of remedies by a Benefitted Party, including but not limited to an election to
proceed against the Guarantor for reimbursement; (v) any defense based upon any statute or
rule of law which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; and (vi) any defense based
on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code.
The Guarantor hereby covenants that the Guarantee will not be discharged except (a) in the
event the Guarantee Commencement Date shall occur, (x) by payment in full of all principal,
premium, if any, and interest on the Notes and all other monetary obligations to the Holders
to the extent provided for under this Indenture by the Obligor or (y) by payment in full of
all of or the Partial Guarantee Percentage of (as the case may be) the principal, premium,
if any, and



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interest on the Notes and all other monetary obligations to the Holders to the extent
provided for under this Indenture by the Guarantor, (b) before any Scheduled Guarantee
Commencement Date, by the payment in full of all of the principal, premium, if any, and
interest on the Notes and all other monetary obligations to the Holders to the extent
provided for under this Indenture, (c) upon the occurrence of any event described in clause
(i) of Section 11.01(3), (d) upon satisfaction and discharge of this Indenture in accordance
with Section 3.01 or (e) upon the occurrence of Legal Defeasance in accordance with Section
3.02(a). This is a Guarantee of payment and not of collectibility.




     (6) If any Holder or the Trustee is required by any court or otherwise to return to
either the Obligor or the Guarantor, or any trustee or similar official acting in relation
to either the Obligor or the Guarantor, any amount paid by the Obligor or the Guarantor to
the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. The Guarantor agrees that, as between it, on the one
hand, and the Holders of the Notes and the Trustee, on the other hand, (i) the maturity of
the obligations guaranteed under the Guarantee may be accelerated as provided in Article V
for the purposes hereof, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in
the event of any acceleration of such obligations as provided in Article V, such obligations
so guaranteed under the Guarantee (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purpose of the Guarantee.



          SECTION 11.02. Execution and Delivery of the Guarantee.





     (1) To evidence the Guarantee set forth in Section 11.01, the Guarantor agrees that a
notation of the Guarantee substantially in the form included in Exhibit A hereto shall be
endorsed on each Note authenticated and delivered by the Trustee (except as otherwise
provided in Sections 2.01(1) and 11.01(2)(iii)) and executed on behalf of the Guarantor by
one of the Officers of the Guarantor by manual or facsimile signature. The Guarantor agrees
that the Guarantee set forth in this Article XI will remain in full force and effect and
apply to all the Notes, notwithstanding any failure to endorse on each Note a notation of
the Guarantee (except as otherwise provided in Section 11.01(2)(iii)).




     (2) If an Officer of the Guarantor whose manual or facsimile signature is on a
Guarantee no longer holds that office at the time the Trustee authenticates the Note on
which the Guarantee is endorsed, the Guarantee shall be valid nevertheless.




     (3) The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee endorsed on such Note on behalf of
the Guarantor.



          SECTION 11.03. Limitation of the Guarantor’s Liability.




          The Guarantor, and by its acceptance hereof, each Holder, hereby confirms that it is the
intention of both parties that the Guarantee not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the



64









 





Uniform Fraudulent Transfer Act or any similar Federal or State law. To effectuate the
foregoing intention, the Holders and the Guarantor hereby irrevocably agree that the obligations of
the Guarantor under this Article XI shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of the Guarantor, result in the obligations of
the Guarantor under the Guarantee not constituting a fraudulent transfer or conveyance under
federal or state law.




          SECTION 11.04. Subrogation.




     Upon making any payment with respect to any obligation of the Obligor under this Article, the
Indenture or the Notes, the Guarantor will be subrogated to the rights of the payee against the
Obligor with respect to such obligation, provided that the Guarantor may not enforce any right of
subrogation with respect to such payment so long as any amount payable by the Obligor hereunder or
under the Notes remains unpaid.



65









 





          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.




	 	 	 	 	 
	 	BOTTLING GROUP, LLC,

     as Obligor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PEPSICO, INC.,

     as Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE BANK OF NEW YORK MELLON,

     as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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EXHIBIT A




GUARANTEE




          PepsiCo, Inc., a North Carolina corporation (hereinafter referred to as the
“Guarantor”), which term includes any successor or assign under the Indenture, dated as of
October [•], 2008, among Bottling Group, LLC, a Delaware limited liability company or any successor
thereto (the “Obligor”), the Guarantor and The Bank of New York Mellon, as trustee, (the
“Indenture”), hereby irrevocably and unconditionally guarantees to the Holders of the Notes
and the Trustee that: (i) (A) in the event of a full guarantee as described in Section 11.01(1) of
the Indenture, the principal of, premium, if any, and interest on the Notes will be duly and
punctually paid in full when due, whether at stated maturity, by acceleration, redemption or
otherwise, together with interest on overdue principal, and premium, if any, and (to the extent
permitted by law) interest on any interest, if any, on the Notes and all other monetary obligations
of the Obligor to the Holders under the Indenture or the Notes will be promptly paid in full, all
in accordance with the terms hereof or (B) in the event of a partial guarantee as described in
Section 11.01(2) of the Indenture, the Partial Guarantee Percentage of the principal of, premium,
if any, and interest on the Notes will be duly and punctually paid in full when due, whether at
stated maturity, by acceleration, redemption or otherwise, together with interest on the Partial
Guarantee Percentage of such overdue principal, and premium, if any, and (to the extent permitted
by law) interest, if any, on the Notes and the Partial Guarantee Percentage of all other monetary
obligations of the Obligor to the Holders under the Indenture or the Notes, all in accordance with
the terms hereof; and (ii) in case of any extension of time of payment or renewal of any of the
Notes or any of such other monetary obligations, the amount set forth in clause (A) or (B) above,
whichever is applicable, will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration, redemption or
otherwise.




          The obligations of the Guarantor to the Holders and to the Trustee pursuant to this Guarantee
and the Indenture are expressly set forth in Article XI of the Indenture and reference is hereby
made to such Indenture for the precise terms of this Guarantee.




          No stockholder, officer, director or incorporator, as such, past, present or future of the
Guarantor shall have any liability under this Guarantee by reason of his, her or its status as such
stockholder, officer, director or incorporator.




          This is a continuing Guarantee and shall remain in full force and effect from and including
the Guarantee Commencement Date (in the event that the Guarantee Commencement Date shall occur) and
shall, in accordance with the terms of the Guarantee and the Indenture, be binding upon the
Guarantor and its successors and assigns until (a) full and final payment and performance of all
other monetary obligations of the Obligor to the Holders under the Indenture or the Notes or (b)
full and final payment by the Guarantor of the same to the extent specified in clause (i)(A) or
(i)(B) above, and shall inure to the benefit of the successors and assigns of the Trustee and the
Holders, and, in the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges herein conferred upon that party shall automatically



A-1









 





extend to and be vested in such transferee or assignee, all subject to the terms and
conditions hereof. This is a Guarantee of payment and not of collectibility.




          This Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Note upon which this Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized officers.




          IF THE GUARANTEE COMMENCEMENT DATE SHALL NOT OCCUR, THIS GUARANTEE SHALL NOT BECOME EFFECTIVE,
AND THE GUARANTOR SHALL NOT HAVE ANY OBLIGATIONS UNDER THIS GUARANTEE OR THE INDENTURE.




          THE TERMS OF ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.




A-2









 







          Capitalized terms used herein have the same meanings given in the Indenture unless otherwise
indicated.




Dated:




	 	 	 	 	 
	 	PEPSICO, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-3