apply if the Terms Agreement specifies that such obligations and agreements will
not apply.
8.
SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS.
THE
RESPECTIVE INDEMNITIES, AGREEMENTS, REPRESENTATIONS, WARRANTIES AND OTHER
STATEMENTS OF THE COMPANY OR ITS OFFICERS AND OF THE SEVERAL UNDERWRITERS SET
FORTH IN OR MADE PURSUANT TO THIS AGREEMENT OR IN THE TERMS AGREEMENT WILL
REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF ANY INVESTIGATION, OR STATEMENT
AS TO THE RESULTS THEREOF, MADE BY OR ON BEHALF OF ANY UNDERWRITER, THE COMPANY
OR ANY OF THEIR RESPECTIVE REPRESENTATIVES, OFFICERS OR DIRECTORS OR ANY
CONTROLLING PERSON AND WILL SURVIVE DELIVERY OF AND PAYMENT FOR THE SECURITIES.
IF THE TERMS AGREEMENT IS TERMINATED PURSUANT TO SECTION 7 OR IF FOR ANY REASON
THE PURCHASE OF THE SECURITIES BY THE UNDERWRITERS UNDER THE TERMS AGREEMENT IS
NOT CONSUMMATED, THE COMPANY SHALL REMAIN RESPONSIBLE FOR THE EXPENSES TO BE
PAID OR REIMBURSED BY IT PURSUANT TO SECTION 4 AND THE RESPECTIVE OBLIGATIONS OF
THE COMPANY AND THE UNDERWRITERS PURSUANT TO SECTION 6 SHALL REMAIN IN EFFECT.
IF THE PURCHASE OF THE SECURITIES BY THE UNDERWRITERS IS NOT CONSUMMATED FOR ANY
REASON OTHER THAN SOLELY BECAUSE OF THE TERMINATION OF THIS AGREEMENT PURSUANT
TO SECTION 7 OR THE OCCURRENCE OF ANY EVENT SPECIFIED IN CLAUSE (III) (OTHER
THAN WITH RESPECT TO THE COMPANY'S SECURITIES), (IV) OR (V) OF SECTION 5(B), THE
COMPANY WILL REIMBURSE THE UNDERWRITERS FOR ALL OUT-OF-POCKET EXPENSES
(INCLUDING FEES AND DISBURSEMENTS OF COUNSEL) REASONABLY INCURRED BY THEM IN
CONNECTION WITH THE OFFERING OF THE SECURITIES.
14
9.
NOTICES.
ALL COMMUNICATIONS HEREUNDER WILL BE IN WRITING AND, IF
SENT TO THE UNDERWRITERS, WILL BE MAILED, DELIVERED OR TELEGRAPHED AND CONFIRMED
TO THEM AT THEIR ADDRESSES FURNISHED TO THE COMPANY IN WRITING FOR THE PURPOSE
OF COMMUNICATIONS HEREUNDER OR, IF SENT TO THE COMPANY, WILL BE MAILED,
DELIVERED OR TELEGRAPHED AND CONFIRMED TO IT AT PEPSIAMERICAS, INC., 4000 DAIN
RAUSCHER PLAZA, 60 SOUTH SIXTH STREET, MINNEAPOLIS, MINNESOTA 55402, ATTENTION:
SECRETARY.
10.
SUCCESSORS.
THIS AGREEMENT WILL INURE TO THE BENEFIT OF AND BE
BINDING UPON THE COMPANY AND SUCH UNDERWRITERS AS ARE IDENTIFIED IN TERMS
AGREEMENTS AND THEIR RESPECTIVE SUCCESSORS AND THE OFFICERS AND DIRECTORS AND
CONTROLLING PERSONS REFERRED TO IN SECTION 6, AND NO OTHER PERSON WILL HAVE ANY
RIGHT OR OBLIGATION HEREUNDER.
11.
APPLICABLE LAW.
THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
15
* * * *
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
PEPSIAMERICAS, INC.
By:
G. Michael Durkin, Jr.
Name: G. Michael Durkin, Jr.
Title:
Executive Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED, as of
the date first above written:
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
J.P. MORGAN SECURITIES INC.
WACHOVIA CAPITAL MARKETS, LLC
BNP PARIBAS SECURITIES CORP.
WELLS FARGO SECURITIES, LLC
LOOP CAPITAL MARKETS, LLC
By:
BANC OF AMERICA