{"id":41026,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/five-year-credit-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"five-year-credit-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/five-year-credit-agreement.html","title":{"rendered":"Five-Year Credit Agreement"},"content":{"rendered":"
EXECUTION COPY\n<\/p>\n\n\n
<\/p>
  <\/p>\n\n\n\n
U.S. $1,500,000,000\n<\/p>\n\n\n
FIVE-YEAR
\n\nCREDIT AGREEMENT\n\n<\/p>\n\n
Dated as of May 22, 2006\n\n<\/p>\n\n
among\n\n<\/p>\n\n
PEPSICO, INC.,
\nas Borrower,\n\n<\/p>\n\n
THE LENDERS NAMED HEREIN,\n\n<\/p>\n\n
CITIBANK, N.A.,
\nas Administrative Agent,\n\n<\/p>\n\n
JPMORGAN CHASE BANK, N.A.,
\nas Syndication Agent\n\n<\/p>\n\n
CITIGROUP GLOBAL MARKETS INC.
\nand
\nJ.P. MORGAN SECURITIES INC.,
\n\nas Joint Lead Arrangers and Joint Bookrunners\n\n<\/p>\n\n\n\n
FIVE-YEAR CREDIT AGREEMENT<\/b>\n<\/p>\n\n\n
\n<\/p>
Dated as of May 22, 2006<\/b><\/p>\n  
     PEPSICO, INC., a North Carolina corporation (the \"Company<\/u>\"), the banks, financial\ninstitutions and other institutional lenders (the \"Initial Lenders<\/u>\") listed on the\nsignature pages hereof, and CITIBANK, N.A. (\"Citibank<\/u>\"), as administrative agent (in such\ncapacity, the \"Agent<\/u>\") for the Lenders (as hereinafter defined), agree, as of May 22, 2006,\nas follows:\n<\/p>\n\n
PRELIMINARY STATEMENT<\/b>\n<\/p>\n\n
     The Company has requested that the Lenders agree to extend credit to it from time to time in\nan aggregate principal amount of up to $1,500,000,000 for general corporate purposes of the Company\nand its Subsidiaries not otherwise prohibited under the terms of this Agreement. The Lenders have\nindicated their willingness to agree to extend credit to the Company from time to time in such\namount on the terms and conditions of this Agreement.\n<\/p>\n\n
ARTICLE I<\/b>\n<\/p>\n\n\n
DEFINITIONS AND ACCOUNTING TERMS<\/b>\n\n<\/p>\n\n
     Section 1.01 <\/b>Certain Defined Terms<\/b><\/u>.<\/b>\n\n<\/p>\n\n
     As used in this Agreement, the following terms shall have the following meanings (such\nmeanings to be equally applicable to both the singular and plural forms of the terms defined):\n<\/p>\n\n
     \"Administrative Questionnaire<\/u>\" means an Administrative Questionnaire in a form\nsupplied by the Agent.\n<\/p>\n\n
     \"Advance<\/u>\" means a Revolving Credit Advance or a Competitive Bid Advance.\n<\/p>\n\n
     \"Affiliate<\/u>\" means, as to any Person, any other Person that, directly or indirectly,\ncontrols, is controlled by or is under common control with such Person or is a director or officer\nof such Person. For purposes of this definition, the term \"control\" (including the terms\n\n\"controlling\", \"controlled by\" and \"under common control with\") of a Person means the possession,\ndirect or indirect, of the power to direct or cause the direction of the management and policies of\nsuch Person, whether through the ownership of Voting Stock, by contract or otherwise.\n<\/p>\n\n
     \"Agent\u0092s Account<\/u>\" means such account as the Agent shall designate from time to time in\na notice to the Company and the Lenders.\n<\/p>\n\n
     \"Agent\u0092s Address<\/u>\" means the address or addresses on Schedule II attached hereto.\n\n<\/p>\n\n
     \"Applicable Lending Office<\/u>\" means, with respect to each Lender, such Lender\u0092s Domestic\nLending Office in the case of a Base Rate Advance and such Lender\u0092s Eurodollar Lending Office in\nthe case of a Eurodollar Rate Advance and, in the case of a Competitive Bid Advance, the office of\nsuch Lender notified by such Lender to the Agent as its Applicable Lending Office with respect to\nsuch Competitive Bid Advance.\n<\/p>\n\n
     \"Assignment and Assumption<\/u>\" means an assignment and assumption entered into by a\nLender and an Eligible Assignee, and accepted by the Agent, in substantially the form of Exhibit C hereto.\n<\/p>\n\n
     \"Base Rate<\/u>\" means a fluctuating interest rate per annum in effect from time to time,\nwhich rate per annum shall at all times be equal to the higher of:\n<\/p>\n\n\n
     (a) the rate of interest announced publicly by Citibank, from time to time, as\nCitibank\u0092s base rate; and\n<\/p>\n\n\n
     (b) 1<\/sup>\/2 of one percent per annum above the Federal Funds Rate.\n<\/p>\n\n
     \"Base Rate Advance<\/u>\" means a Revolving Credit Advance that bears interest as provided\nin Section 2.07(a).\n\n<\/p>\n\n
     \"Borrower<\/u>\" means, at any time, collectively, the Company (both as a Borrower and as a\nguarantor under Article IX of Advances made to the Borrowing Subsidiaries) and each Borrowing\nSubsidiary.\n<\/p>\n\n
     \"Borrowing<\/u>\" means a Revolving Credit Borrowing or a Competitive Bid Borrowing.\n<\/p>\n\n
     \"Borrowing Subsidiary<\/u>\" means any Subsidiary of the Company, as to which a Designation\nLetter has been delivered to the Agent and as to which a Termination Letter has not been delivered\nto the Agent in accordance with Section 2.17.\n\n<\/p>\n\n
     \"Business Day<\/u>\" means any day other than a Saturday, Sunday or other day on which\ncommercial banks are authorized to close under the laws of, or are in fact closed in, the state of\nthe Agent\u0092s Address or in New York, New York and if such day relates to a Eurodollar Rate Advance,\nit shall also mean a day on which dealings are carried on by and between banks in the London\ninterbank eurodollar market.\n<\/p>\n\n
     \"Cash Collateralize<\/u>\" has the meaning specified in Section 2.18(g).\n<\/p>\n\n
     \"Commitment<\/u>\" means, with respect to any Lender, such Lender\u0092s obligations to make\nRevolving Credit Advances and purchase participations in L\/C Obligations. Such Lender\u0092s Commitment\nshall be the amount set forth opposite such Lender\u0092s name on Schedule I hereto or, if such Lender\nhas entered into any Assignment and Assumption, set forth for such Lender in the Register\nmaintained by the Agent pursuant to Section 8.07(c), as such amount may be reduced pursuant to\nSection 2.05(a) or increased pursuant to Section 2.05(c).\n\n<\/p>\n\n
     \"Competitive Bid Advance<\/u>\" means an advance by a Lender to a Borrower as part of a\nCompetitive Bid Borrowing resulting from the auction bidding procedure described in Section 2.03\nand refers to a Fixed Rate Advance or a LIBO Rate Advance.\n<\/p>\n\n
     \"Competitive Bid Borrowing<\/u>\" means a borrowing consisting of simultaneous Competitive\nBid Advances from each of the Lenders whose offer to make one or more Competitive Bid Advances as\npart of such borrowing has been accepted under the auction bidding procedure described in Section\n2.03.\n<\/p>\n\n
     \"Competitive Bid Note<\/u>\" means a promissory note of a Borrower payable to the order of\nany Lender, in substantially the form of Exhibit A-2 hereto, evidencing the indebtedness of such\nBorrower to such Lender resulting from a Competitive Bid Advance made by such Lender.\n\n<\/p>\n\n
     \"Competitive Bid Reduction<\/u>\" has the meaning specified in Section 2.01.\n<\/p>\n\n
     \"Confidential Information<\/u>\" means information that the Company furnishes to the Agent\nor any\n<\/p>\n\n
2\n<\/p>\n\n\n\n\n\n
Lender in a writing designated as confidential, but does not include any such information that is\nor becomes generally available to the public or that is or becomes rightfully available to the\nAgent or such Lender from a source other than the Company.\n<\/p>\n\n
     \"Consolidated<\/u>\" refers to the consolidation of accounts in accordance with GAAP.\n<\/p>\n\n
     \"Consolidated Net Tangible Assets<\/u>\" means the total assets of the Company and its\nRestricted Subsidiaries (less applicable depreciation, amortization, and other valuation reserves),\nless all current liabilities (excluding intercompany liabilities) and all intangible assets of the\nCompany and its Restricted Subsidiaries, all as set forth on the most recent consolidated balance\nsheet of the Company and its Restricted Subsidiaries, prepared in accordance with GAAP.\n\n<\/p>\n\n
     \"Convert<\/u>\", \"Conversion<\/u>\" and \"Converted<\/u>\" each refers to a conversion of\nRevolving Credit Advances of one Type into Revolving Credit Advances of the other Type pursuant to\nSection 2.08 or 2.09.\n<\/p>\n\n
     \"Debt<\/u>\" of any Person means, without duplication, (a) all indebtedness of such Person\nfor borrowed money, (b) all obligations of such Person for the deferred purchase price of property\nor services, (c) all obligations of such Person evidenced by notes, bonds, debentures or other\nsimilar instruments, (d) all obligations of such Person created or arising under any conditional\nsale or other title retention agreement with respect to property acquired by such Person (even\nthough the rights and remedies of the seller or lender under such agreement in the event of default\nare limited to repossession or sale of such property), (e) all obligations of such Person as lessee\nunder leases that have been or should be, in accordance with GAAP, recorded as capital leases, (f)\nall obligations, contingent or otherwise, of such Person in respect of acceptances, letters of\ncredit or similar extensions of credit, (g) all obligations of such Person in respect of Hedge\nAgreements, (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below\nguaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or\nindirectly by such Person through an agreement (1) to pay or purchase such Debt or to advance or\nsupply funds for the payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or\nlessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor\nto make payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds\nto or in any other manner invest in the debtor (including any agreement to pay for property or\nservices irrespective of whether such property is received or such services are rendered) or (4)\notherwise to assure a creditor against loss, and (i) all Debt referred to in clauses (a) through\n(h) above secured by (or for which the holder of such Debt has an existing right, contingent or\notherwise, to be secured by) any Lien on property (including, without limitation, accounts and\ncontract rights) owned by such Person, even though such Person has not assumed or become liable for\nthe payment of such Debt.\n\n<\/p>\n\n
     \"Default<\/u>\" means any Event of Default or any event that would constitute an Event of\nDefault but for the requirement that notice be given or time elapse or both.\n<\/p>\n\n
     \"Default Rate<\/u>\" means (a) with respect to a Base Rate Advance and any other amount\nowing hereunder (other than a Eurodollar Rate Advance), the Base Rate plus two percent (2%) per\nannum and (b) with respect to all Eurodollar Rate Advances, the rate otherwise applicable to such\nEurodollar Rate Advance plus two percent (2%) per annum.\n<\/p>\n\n
     \"Designation Letter<\/u>\" has the meaning specified in Section 2.17(a).\n\n<\/p>\n\n
     \"Domestic Lending Office<\/u>\" means, with respect to any Lender, the office of such Lender\nspecified as its \"Domestic Lending Office\" in its Administrative Questionnaire or in the Assignment\nand Assumption pursuant to which it became a Lender, or such other office of such Lender as such\nLender\n<\/p>\n\n
3\n<\/p>\n\n\n
may from time to time specify to the Company and the Agent.\n<\/p>\n\n
     \"Effective Date<\/u>\" has the meaning specified in Section 3.01.\n<\/p>\n\n
     \"Eligible Assignee<\/u>\" means (i) a Lender; (ii) an Affiliate of a Lender; (iii) a\ncommercial bank organized under the laws of the United States, or any State thereof, and having\ntotal assets in excess of $15,000,000,000 and a combined capital and surplus of at least\n$1,000,000,000; (iv) a savings and loan association or savings bank organized under the laws of the\nUnited States, or any State thereof, and having total assets in excess of $15,000,000,000 and a\ncombined capital and surplus of at least $1,000,000,000; (v) a commercial bank organized under the\nlaws of any other country that is a member of the Organization for Economic Cooperation and\nDevelopment or has concluded special lending arrangements with the International Monetary Fund\nassociated with its General Arrangements to Borrow or of the Cayman Islands, or a political\nsubdivision of any such country, and having total assets in excess of $15,000,000,000 and a\ncombined capital and surplus of at least $1,000,000,000, so long as such bank is acting through a\nbranch or agency located in the United States or in the country in which it is organized or another\ncountry that is described in this clause (v); (vi) the central bank of any country that is a member\nof the Organization for Economic Cooperation and Development; provided<\/u>, however<\/u>,\nthat each Person described in clauses (ii) through (vi) shall have a short term public debt rating\nof not less than A-1 by Standard & Poor\u0092s Ratings Group or P-1 by Moody\u0092s Investors Service, Inc.\nand shall be approved by the Company, such approval not to be unreasonably withheld or delayed; and\n(vii) any other Person approved by the Company, such approval not to be unreasonably withheld or\ndelayed; provided<\/u>, however<\/u>, that neither the Company nor an Affiliate of the\nCompany shall qualify as an Eligible Assignee.\n\n<\/p>\n\n
     \"Environmental Law<\/u>\" means any federal, state, local or foreign statute, law,\nordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation,\npolicy or guidance relating to the environment, health, safety or Hazardous Materials.\n<\/p>\n\n
     \"ERISA<\/u>\" means the Employee Retirement Income Security Act of 1974, as amended from\ntime to time, and the regulations promulgated and rulings issued thereunder.\n<\/p>\n\n
     \"Eurocurrency Liabilities<\/u>\" has the meaning assigned to that term in Regulation D of\nthe Board of Governors of the Federal Reserve System, as in effect from time to time.\n<\/p>\n\n
     \"Eurodollar Lending Office<\/u>\" means, with respect to any Lender, the office of such\nLender specified as its \"Eurodollar Lending Office\" in its Administrative Questionnaire or in the\nAssignment and Assumption pursuant to which it became a Lender (or, if no such office is specified,\nits Domestic Lending Office), or such other office of such Lender as such Lender may from time to\ntime specify to the Company and the Agent.\n<\/p>\n\n
     \"Eurodollar Rate<\/u>\" means, for any Interest Period for each Eurodollar Rate Advance\nconstituting part of the same Revolving Credit Borrowing, an interest rate per annum appearing on\ndisplay page 3750 of the Telerate Markets (\"Page 3750<\/u>\") (or on any successor or substitute\npage of such Service, or any successor to or substitute for such Service, providing rate quotations\ncomparable to those currently provided on such page of such Service, as determined by the Agent\nfrom time to time for purposes of providing quotations of interest rates applicable to Dollar\ndeposits in the London interbank market) as of 11:00 A.M. (London time) on the date two Business\nDays prior to the first day of such Interest Period as the rate for Dollar deposits having a term\ncomparable to such Interest Period, or in the event such offered rate is not available from Page\n3750, the average (rounded to the nearer whole multiple of 1\/16 of 1% per annum, if such average is\nnot such a multiple) of the rate per annum at which deposits in U.S. dollars are offered by the\nprincipal office of each of the Reference Banks in London, England to prime banks in the London\ninterbank market at 11:00 A.M. (London time) two Business Days before the first day of such\n\n<\/p>\n\n
4\n<\/p>\n\n\n\n\n
Interest Period in an amount substantially equal to such Reference Bank\u0092s Eurodollar Rate Advance\nconstituting part of such Revolving Credit Borrowing to be outstanding during such Interest Period\nand for a period equal to such Interest Period. If the Eurodollar Rate does not appear on Page\n3750 (or any successor page), the Eurodollar Rate for any Interest Period for each Eurodollar Rate\nAdvance constituting part of the same Revolving Credit Borrowing shall be determined by the Agent\non the basis of applicable rates furnished to and received by the Agent from the Reference Banks\ntwo Business Days before the first day of such Interest Period, subject<\/u>, however<\/u>,\nto the provisions of Section 2.08.\n\n<\/p>\n\n
     \"Eurodollar Rate Advance<\/u>\" means a Revolving Credit Advance that bears interest as\nprovided in Section 2.07(b).\n<\/p>\n\n
     \"Events of Default<\/u>\" has the meaning specified in Section 6.01.\n<\/p>\n\n
     \"Existing Credit Agreements<\/u>\" means (a) the $750,000,000 Third Amended and Restated\nFive-Year Credit Agreement dated as of June 7, 2004 (as amended, supplemented or otherwise modified\nfrom time to time) among the Company, the banks, financial institutions and other institutional\nlenders party thereto and Bank of America, N.A., as administrative agent for the Lenders and such\nother lenders, (b) the $750,000,000 Fourth Amended and Restated 364-Day Credit Agreement dated as\nof May 26, 2005 (as amended, supplemented or otherwise modified from time to time) among the\nCompany, the banks, financial institutions and other institutional lenders party thereto and Bank\nof America, N.A., as administrative agent for the Lenders and such other lenders, (c) the\n$300,000,000 Revolving Credit Facility dated as of October 7, 2005 between the Company and Bank of\nAmerica, N.A. and (d) the Amended and Restated $300,000,000 Bilateral Revolving Credit Facility\ndated as of October 7, 2005 between the Company and Citibank, N.A.\n\n<\/p>\n\n
     \"Federal Funds Rate<\/u>\" means, for any period, a fluctuating interest rate per annum\nequal for each day during such period to the weighted average of the rates on overnight Federal\nfunds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as\npublished for such day (or, if such day is not a Business Day, for the next preceding Business Day)\nby the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a\nBusiness Day, the average of the quotations for such day on such transactions received by the Agent\nfrom three Federal funds brokers of recognized standing selected by it.\n<\/p>\n\n
     \"Fixed Rate Advances<\/u>\" has the meaning specified in Section 2.03(a)(i).\n<\/p>\n\n
     \"GAAP<\/u>\" has the meaning specified in Section 1.03.\n\n<\/p>\n\n
     \"Guaranteed Obligations<\/u>\" has the meaning specified in Section 9.01.\n<\/p>\n\n
     \"Hazardous Materials<\/u>\" means petroleum and petroleum products, byproducts or breakdown\nproducts, radioactive materials, asbestos-containing materials, radon gas and any other chemicals,\nmaterials or substances designated, classified or regulated as being \"hazardous\" or \"toxic\", or\nwords of similar import, under any federal, state, local or foreign statute, law, ordinance, rule,\nregulation, code, order, judgment, decree or judicial or agency interpretation, policy or\nguideline.\n<\/p>\n\n
     \"Hedge Agreements<\/u>\" means interest rate swap, cap or collar agreements, interest rate\nfuture or option contracts, currency swap agreements, currency future or option contracts and other\nsimilar agreements.\n<\/p>\n\n
     \"Honor Date<\/u>\" has the meaning set forth in Section 2.18(c)<\/u>.\n<\/p>\n\n
5\n<\/p>\n\n\n
     \"Information Memorandum<\/u>\" means the Confidential Offering Memorandum dated April 2006\nused by the Lead Arrangers in connection with the syndication of the Commitments.\n<\/p>\n\n
     \"Interest Period<\/u>\" means, for each Eurodollar Rate Advance constituting part of the\nsame Revolving Credit Borrowing, the period commencing on the date of such Eurodollar Rate Advance\nor the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending\non the last day of the period selected by the Company pursuant to the provisions below and,\nthereafter, each subsequent period commencing on the last day of the immediately preceding Interest\nPeriod and ending on the last day of the period selected by the Company pursuant to the provisions\nbelow. The duration of each such Interest Period shall be one, two, three, six, or (subject to\navailability, as determined by the Lenders) nine or twelve months, as the Company may, upon notice\nreceived by the Agent not later than 11:00 A.M. (New York City time) on the third Business Day\nprior to the first day of such Interest Period, select; provided<\/u>, however<\/u>, that:\n\n<\/p>\n\n\n
     (i) the Company may not select any Interest Period that ends after the Termination\nDate;\n<\/p>\n\n\n
     (ii) Interest Periods commencing on the same date for Eurodollar Rate Advances\nconstituting part of the same Revolving Credit Borrowing shall be of the same duration;\n<\/p>\n\n\n
     (iii) whenever the last day of any Interest Period would otherwise occur on a day other\nthan a Business Day, the last day of such Interest Period shall be extended to occur on the\nnext succeeding Business Day, provided<\/u>, however<\/u>, that, if such extension\nwould cause the last day of such Interest Period to occur in the next following calendar\nmonth, the last day of such Interest Period shall occur on the next preceding Business Day;\nand\n<\/p>\n\n\n
     (iv) whenever the first day of any Interest Period occurs on a day of an initial\ncalendar month for which there is no numerically corresponding day in the calendar month\nthat succeeds such initial calendar month by the number of months equal to the number of\nmonths in such Interest Period, such Interest Period shall end on the last Business Day of\nsuch succeeding calendar month.\n<\/p>\n\n
     \"Internal Revenue Code<\/u>\" means the Internal Revenue Code of 1986, as amended from time\nto time, and the regulations promulgated and rulings issued thereunder.\n<\/p>\n\n
     \"ISP<\/u>\" means, with respect to any Letter of Credit, the \"International Standby\nPractices 1998\" published by the Institute of International Banking Law & Practice (or such later\nversion thereof as may be in effect at the time of issuance).\n\n<\/p>\n\n
     \"Issuer Documents<\/u>\" means with respect to any Letter of Credit, the Letter of Credit\nApplication, and any other document, agreement and instrument entered into by the L\/C Issuer and\nthe Company (or any Subsidiary) or in favor the L\/C Issuer and relating to any such Letter of\nCredit.\n<\/p>\n\n
     \"L\/C Advance<\/u>\" means, with respect to each Lender, such Lender\u0092s funding of its\nparticipation in any L\/C Borrowing in accordance with its L\/C Participation Percentage.\n<\/p>\n\n
     \"L\/C Borrowing<\/u>\" means an extension of credit resulting from a drawing under any Letter\nof Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit\nBorrowing.\n\n<\/p>\n\n
     \"L\/C Credit Extension<\/u>\" means, with respect to any Letter of Credit, the issuance\nthereof or\n<\/p>\n\n
6\n<\/p>\n\n\n
extension of the expiry date thereof, or the increase of the amount thereof.\n<\/p>\n\n
     \"L\/C Issuer<\/u>\" means Citibank, N.A. in its capacity as issuer of Letters of Credit\nhereunder, or any successor issuer of Letters of Credit hereunder.\n<\/p>\n\n
     \"L\/C Participation Percentage<\/u>\" means, with respect to a Letter of Credit, a fraction\n(expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the\namount of the Commitment of such Lender at such time and the denominator of which is the sum of (a)\nthe aggregate amount of the Commitments of the Lenders at such time plus<\/u> (b) the aggregate\namount of Commitments of Lenders that were terminated by the Company pursuant to Section 2.05(b) or\n2.06(b) but were in effect at the time such Letter of Credit was issued; provided<\/u> that if\nthe Commitment of each Lender to make Advances and the obligation of the L\/C Issuer to make L\/C\nCredit Extensions have been terminated pursuant to Section 6.01, then the L\/C Participation\nPercentage of each Lender shall be determined based on the L\/C Participation Percentage of such\nLender immediately prior to such termination and after giving effect to any subsequent assignments\nmade pursuant to the terms hereof.\n\n<\/p>\n\n
     \"L\/C Obligations<\/u>\" means, as at any date of determination, the aggregate undrawn amount\nof all outstanding Letters of Credit plus<\/u> the aggregate of all Unreimbursed Amounts,\nincluding all L\/C Borrowings. For all purposes of this Agreement, if on any date of determination\na Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason\nof the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be \"outstanding\"\nin the amount so remaining available to be drawn.\n<\/p>\n\n
     \"Lead Arrangers<\/u>\" means each of Citigroup Global Markets Inc. and J.P. Morgan\nSecurities Inc., in its capacity as joint lead arranger and joint bookrunner, and any successors\nthereof.\n\n<\/p>\n\n
     \"Lenders<\/u>\" means the Initial Lenders and each Person that shall become a party hereto\npursuant to Sections 2.05(c), 2.06(b) or 8.07, and, as the context requires, includes the L\/C\nIssuer.\n<\/p>\n\n
     \"Letter of Credit<\/u>\" means any letter of credit issued hereunder. A Letter of Credit\nmay be a commercial letter of credit or a standby letter of credit.\n<\/p>\n\n
     \"Letter of Credit Application<\/u>\" means an application and agreement for the issuance or\namendment of a letter of credit in the form from time to time in use by the L\/C Issuer.\n<\/p>\n\n
     \"Letter of Credit Expiration Date<\/u>\" means the day that is thirty days prior to the\nTermination Date then in effect (or, if such day is not a Business Day, the next preceding Business\nDay).\n<\/p>\n\n
     \"Letter of Credit Fee<\/u>\" has the meaning specified in Section 2.18(i).\n<\/p>\n\n
     \"Letter of Credit Sublimit<\/u>\" means an amount equal to the lesser of (a) the aggregate\namount of the Commitments of the Lenders and (b) $250,000,000.\n<\/p>\n\n
     \"LIBO Rate Advances<\/u>\" has the meaning specified in Section 2.03(a)(i).\n<\/p>\n\n
     \"Lien<\/u>\" means any lien, security interest or other charge or encumbrance of any kind,\nor any other type of preferential arrangement, including, without limitation, the lien or retained\nsecurity title of a conditional vendor.\n<\/p>\n\n
     \"Loan Documents<\/u>\" means, collectively, this Agreement, the Notes, each Designation\nLetter, each Issuer Document and each Termination Letter.\n<\/p>\n\n
7\n<\/p>\n\n\n\n
     \"Material Adverse Change<\/u>\" means any material adverse change in the financial\ncondition, operations or properties of the Company or the Company and its Subsidiaries taken as a\nwhole.\n<\/p>\n\n
     \"Material Adverse Effect<\/u>\" means a material adverse effect on (a) the financial\ncondition, operations or properties of the Company or the Company and its Subsidiaries taken as a\nwhole, (b) the rights and remedies of the Agent or any Lender under this Agreement, any Issuer\nDocument or any Note or (c) the ability of the Company to perform its obligations under this\nAgreement, any Issuer Document or any Note.\n\n<\/p>\n\n
     \"Material Subsidiary<\/u>\" means each Subsidiary of the Company to which is attributed five\npercent or more of the net sales of the Company and its Subsidiaries taken as a whole for the most\nrecently ended fiscal year.\n<\/p>\n\n
     \"New Lender<\/u>\" means, for purposes of Section 2.05(c), an Eligible Assignee (which may\nbe a Lender) selected by the Company with (in the case of a New Lender that is not already a\nLender) prior consultation with the Agent.\n<\/p>\n\n
     \"Note<\/u>\" means a Revolving Credit Note or a Competitive Bid Note.\n\n<\/p>\n\n
     \"Notice of Competitive Bid Borrowing<\/u>\" has the meaning specified in Section 2.03(a).\n<\/p>\n\n
     \"Notice of Revolving Credit Borrowing<\/u>\" has the meaning specified in Section 2.02(a).\n<\/p>\n\n
     \"Person<\/u>\" means an individual, partnership, corporation (including a business trust),\njoint stock company, trust, unincorporated association, joint venture, limited liability company or\nother entity, or a government or any political subdivision or agency thereof.\n\n<\/p>\n\n
     \"Principal Property<\/u>\" means any single manufacturing or processing plant, office\nbuilding, warehouse or portion thereof owned or leased by the Company or a Restricted Subsidiary\nother than a plant, office building, warehouse or portion thereof which, in the reasonable opinion\nof the Company\u0092s Board of Directors, <\/b>is not of material importance to the business conducted by the\nCompany and its Restricted Subsidiaries as an entirety.\n<\/p>\n\n
     \"Reference Banks<\/u>\" means Citibank, N.A., JPMorgan Chase Bank, N.A. and Bank of America,\nN.A. (and any successors thereof).\n<\/p>\n\n
     \"Register<\/u>\" has the meaning specified in Section 8.07(d).\n\n<\/p>\n\n
     \"Required Lenders<\/u>\" means at any time (i) Lenders having more than 50% of the aggregate\namount of the Commitments, and (ii) if the Commitments of the Lenders have been terminated, Lenders\nowed more than 50% of the then aggregate unpaid principal amount of the Borrowings and L\/C\nObligations.\n<\/p>\n\n
     \"Restricted Subsidiary<\/u>\" means at any time any Subsidiary of the Company except a\nSubsidiary which is at the time an Unrestricted Subsidiary.\n<\/p>\n\n
     \"Revolving Credit Advance<\/u>\" means an advance by a Lender to a Borrower as part of a\nRevolving Credit Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance (each of\nwhich shall be a \"Type<\/u>\" of Revolving Credit Advance).\n\n<\/p>\n\n
8\n<\/p>\n\n\n\n
     \"Revolving Credit Borrowing<\/u>\" means a borrowing consisting of simultaneous Revolving\nCredit Advances of the same Type made by each of the Lenders pursuant to Section 2.01.\n<\/p>\n\n
     \"Revolving Credit Note<\/u>\" means a promissory note of a Borrower payable to the order of\nany Lender, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness\nof such Borrower to such Lender resulting from the Revolving Credit Advances made by such Lender.\n<\/p>\n\n
     \"Subsidiary<\/u>\" of any Person means any corporation, partnership, joint venture, limited\nliability company, trust or estate of which (or in which) more than 50% of (a) the issued and\noutstanding Voting Stock of such corporation or limited liability company (irrespective of whether\nat the time capital stock or membership interests of any other class or classes of such corporation\nor limited liability company shall or might have voting power upon the occurrence of any\ncontingency), (b) the interest in the capital or profits of such partnership or joint venture or\n(c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or\ncontrolled by such Person, by such Person and one or more of its other Subsidiaries or by one or\nmore of such Person\u0092s other Subsidiaries.\n<\/p>\n\n
     \"Syndication Agents<\/u>\" means, collectively, Citibank, N.A. and JPMorgan Chase Bank, N.A.\n\n<\/p>\n\n
     \"Termination Date<\/u>\" means May 22, 2011 or, if earlier, the date of termination in whole\nof the Commitments pursuant to Section 2.05(a) or 6.01 or, in the case of any Lender whose\nCommitment is extended pursuant to Section 2.06(b), the date to which such Commitment is extended;\nprovided<\/u> in each case that if any such date is not a Business Day, the relevant Termination\nDate of such Lender shall be the immediately preceding Business Day.\n<\/p>\n\n
     \"Termination Letter<\/u>\" has the meaning specified in Section 2.17(b).\n\n<\/p>\n\n
     \"Type<\/u>\" has the meaning specified in the definition of \"Revolving Credit Advance\".\n<\/p>\n\n
     \"Unreimbursed Amount<\/u>\" has the meaning specified in Section 2.18(c)(i).\n<\/p>\n\n
     \"Unrestricted Subsidiary<\/u>\" means any Subsidiary of the Company (not at the time\ndesignated a Restricted Subsidiary) (i) the major part of whose business consists of finance,\nbanking, credit, leasing, insurance, financial services, or other similar operations, or any\ncontinuation thereof, (ii) substantially all the assets of which consist of the capital stock of\none or more such Subsidiaries, or (iii) designated as such by the Company\u0092s Board of Directors;\n\nprovided<\/u> that if any securities are outstanding under the Indenture dated as of December\n14, 1994 between the Company and JPMorgan Chase Bank, N.A. as successor to The Chase Manhattan Bank\n(National Association), Trustee, such designation will not constitute a violation of the terms of\nsuch indenture. Any Subsidiary designated as a Restricted Subsidiary may be designated as an\nUnrestricted Subsidiary unless such designation will constitute a violation of the terms of the\nIndenture dated as of December 14, 1994 between the Company and JPMorgan Chase Bank, N.A. as\nsuccessor to The Chase Manhattan Bank (National Association), Trustee.\n<\/p>\n\n
     \"Voting Stock<\/u>\" means capital stock issued by a corporation, or equivalent interests in\nany other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to\nvote for the election of directors (or persons performing similar functions) of such Person, even\nif the right so to vote has been suspended by the happening of such a contingency.\n<\/p>\n\n
     Section 1.02 <\/b>Computation of Time Periods<\/b><\/u>.<\/b>\n<\/p>\n\n
     In this Agreement in the computation of periods of time from a specified date to a later\nspecified date, the word \"from\" means \"from and including\" and the words \"to\" and \"until\" each mean\n\"to but excluding\".\n<\/p>\n\n
9\n<\/p>\n\n\n\n
     Section 1.03 <\/b>Accounting Terms.<\/b><\/u>\n<\/p>\n\n
     All accounting terms not specifically defined herein shall be construed in accordance with\ngenerally accepted accounting principles in the United States consistent with those applied in the\npreparation of the financial statements referred to in Section 4.01(e) (\"GAAP<\/u>\").\n\n<\/p>\n\n
     Section 1.04 <\/b>Letter of Credit Amounts<\/b><\/u>.<\/b>\n<\/p>\n\n
     Unless otherwise specified, all references herein to the amount of a Letter of Credit at any\ntime shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect\nto all increases thereof contemplated by such Letter of Credit or the Issuer Documents related\nthereto, whether or not such maximum face amount is in effect at such time.\n<\/p>\n\n
ARTICLE II<\/b>\n<\/p>\n\n\n
AMOUNTS AND TERMS OF THE ADVANCES<\/b>\n\n<\/p>\n\n
     Section 2.01 <\/b>The Revolving Credit Advances<\/b><\/u>.<\/b>\n<\/p>\n\n
     Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make\nRevolving Credit Advances to the Company and any Borrowing Subsidiary from time to time on any\nBusiness Day during the period from the Effective Date until the Termination Date in an aggregate\namount not to exceed at any time outstanding such Lender\u0092s Commitment, provided<\/u> that the\naggregate amount of the Commitments of the Lenders shall be deemed used from time to time to the\nextent of (a) the aggregate amount of the Competitive Bid Advances then outstanding and such deemed\nuse of the aggregate amount of the Commitments shall be allocated among the Lenders ratably\naccording to their respective Commitments (such deemed use of the aggregate amount of the\nCommitments being a \"Competitive Bid Reduction<\/u>\") and (b) the aggregate amount of the L\/C\nObligations then outstanding. Each Revolving Credit Borrowing shall be in an aggregate amount of\n$10,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate\namount equal to the amount by which the aggregate amount of a proposed Competitive Bid Borrowing\nrequested by the Company exceeds the aggregate amount of Competitive Bid Advances offered to be\nmade by the Lenders and accepted by the Company in respect of such Competitive Bid Borrowing, if\nsuch Competitive Bid Borrowing is made on the same date as such Revolving Credit Borrowing) and\nshall consist of Revolving Credit Advances of the same Type made on the same day by the Lenders\nratably according to their respective Commitments. Within the limits of each Lender\u0092s Commitment,\neach Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.10 and reborrow\nunder this Section 2.01.\n\n<\/p>\n\n
     Section 2.02 <\/b>Making the Revolving Credit Advances<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) Each Revolving Credit Borrowing shall be made on notice, given not later than 11:00\nA.M. (New York City time) on the third Business Day prior to the date of the proposed\nRevolving Credit Borrowing in the case of a Revolving Credit Borrowing consisting of\nEurodollar Rate Advances, or the date of the proposed Revolving Credit Borrowing in the case\nof a Revolving Credit Borrowing consisting of Base Rate Advances, by the Company (on its own\nbehalf and on behalf of any Borrowing Subsidiary) to the Agent, which shall give to each\nLender prompt notice thereof by telecopier. Each such notice of a Revolving Credit\nBorrowing (a \"Notice of Revolving Credit Borrowing<\/u>\") shall be by telecopier,\nconfirmed promptly in writing,\n<\/p>\n\n
10\n<\/p>\n\n\n\n\n\n
in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) date\nof such Revolving Credit Borrowing, (ii) Type of Advances constituting such Revolving Credit\nBorrowing, (iii) aggregate amount of such Revolving Credit Borrowing, (iv) in the case of a\nRevolving Credit Borrowing consisting of Eurodollar Rate Advances, initial Interest Period\nfor each such Revolving Credit Advance and (v) name of the relevant Borrower (which shall be\nthe Company or a Borrowing Subsidiary). Each Lender shall, before 12:00 noon (New York City\ntime) on the date of such Revolving Credit Borrowing, make available for the account of its\nApplicable Lending Office to the Agent at the Agent\u0092s Account, in same day funds, such\nLender\u0092s ratable portion of such Revolving Credit Borrowing. After the Agent\u0092s receipt of\nsuch funds and upon fulfillment of the applicable conditions set forth in Article III, the\nAgent will make such same day funds available to the relevant Borrower at such Borrower\u0092s\naccount at the Agent\u0092s address referred to in Section 8.02; provided<\/u>,\n\nhowever<\/u>, that if, on the date of a Revolving Credit Borrowing, there are L\/C\nBorrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the\npayment in full of any such L\/C Borrowings and second<\/u>, shall be made available to\nthe relevant Borrower as provided above.\n<\/p>\n\n\n
     (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Company\nmay not select Eurodollar Rate Advances for any Revolving Credit Borrowing if the aggregate\namount of such Revolving Credit Borrowing is less than $25,000,000 or if the obligation of\nthe Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section\n2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of more\nthan twelve separate Revolving Credit Borrowings.\n<\/p>\n\n\n
     (c) Each Notice of Revolving Credit Borrowing shall be irrevocable and binding on the\nrelevant Borrower. In the case of any Revolving Credit Borrowing that the related Notice of\nRevolving Credit Borrowing specifies is to be comprised of Eurodollar Rate Advances, the\nCompany shall indemnify each Lender against any loss, cost or expense incurred by such\nLender as a result of any failure to fulfill on or before the date specified in such Notice\nof Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable conditions\nset forth in Article III, including, without limitation, any loss, cost or expense incurred\nby reason of the liquidation or reemployment of deposits or other funds acquired by such\nLender to fund the Revolving Credit Advance to be made by such Lender as part of such\nRevolving Credit Borrowing when such Revolving Credit Advance, as a result of such failure,\nis not made on such date.\n\n<\/p>\n\n\n
     (d) Unless the Agent shall have received notice from a Lender prior to the time of any\nRevolving Credit Borrowing that such Lender will not make available to the Agent such\nLender\u0092s ratable portion of such Revolving Credit Borrowing, the Agent may assume that such\nLender has made such portion available to the Agent on the date of such Revolving Credit\nBorrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in\nreliance upon such assumption, make available to the relevant Borrower on such date a\ncorresponding amount. If and to the extent that such Lender shall not have so made such\nratable portion available to the Agent, such Lender and such Borrower severally agree to\nrepay to the Agent forthwith on demand such corresponding amount together with interest\nthereon, for each day from the date such amount is made available to such Borrower until the\ndate such amount is repaid to the Agent, at (i) in the case of a Borrower, the interest rate\napplicable at the time to Revolving Credit Advances constituting such Revolving Credit\nBorrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall\nrepay to the Agent such corresponding amount, such amount so repaid shall constitute such\nLender\u0092s Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes of\nthis Agreement and shall be made available in same day funds to the relevant Borrower\u0092s\naccount at the Agent\u0092s address referred to in Section 8.02.\n<\/p>\n\n
11\n\n<\/p>\n\n\n\n\n
     (e) The failure of any Lender to make the Revolving Credit Advance to be made by it as\npart of any Revolving Credit Borrowing shall not relieve any other Lender of its obligation,\nif any, hereunder to make its Revolving Credit Advance on the date of such Revolving Credit\nBorrowing, but no Lender shall be responsible for the failure of any other Lender to make\nthe Revolving Credit Advance to be made by such other Lender on the date of any Revolving\nCredit Borrowing.\n<\/p>\n\n
     Section 2.03 <\/b>The Competitive Bid Advances<\/b><\/u>.<\/b>\n\n<\/p>\n\n\n
     (a) Each Lender severally agrees that each Borrower may make Competitive Bid Borrowings\nunder this Section 2.03 from time to time on any Business Day during the period from the\ndate hereof until the date occurring 30 days prior to the Termination Date in the manner set\nforth below; provided<\/u> that, following the making of each Competitive Bid Borrowing,\nthe aggregate amount of the Advances and L\/C Obligations then outstanding shall not exceed\nthe aggregate amount of the Commitments of the Lenders (computed without regard to any\nCompetitive Bid Reduction) and provided that if any Lender does not make a Competitive Bid\nAdvance it shall not reduce such Lender\u0092s obligation to make its pro rata share of a\nRevolving Credit Advance.\n<\/p>\n\n\n
     (i) The Company (on its own behalf and on behalf of any Borrowing Subsidiary)\nmay request a Competitive Bid Borrowing under this Section 2.03 by delivering to the\nAgent, by telecopier, confirmed promptly in writing, a notice of a Competitive Bid\nBorrowing (a \"Notice of Competitive Bid Borrowing<\/u>\"), in substantially the\nform of Exhibit B-2 hereto, specifying therein (u) the date of such proposed\nCompetitive Bid Borrowing, (v) the aggregate amount of such proposed Competitive Bid\nBorrowing, (w) the maturity date for repayment of each Competitive Bid Advance to be\nmade as part of such Competitive Bid Borrowing (which maturity date may not be\nearlier than the date occurring 30 days after the date of such Competitive Bid\nBorrowing or later than the Termination Date), (x) the interest payment date or\ndates relating thereto, (y) the name of the Borrower, and (z) any other terms to be\napplicable to such Competitive Bid Borrowing, not later than 10:00 A.M. (New York\nCity time) (A) at least one Business Day prior to the date of the proposed\nCompetitive Bid Borrowing, if the Company shall specify in the Notice of Competitive\nBid Borrowing that the rates of interest to be offered by the Lenders shall be fixed\nrates per annum (the Advances constituting any such Competitive Bid Borrowing being\nreferred to herein as \"Fixed Rate Advances<\/u>\") and (B) at least four Business\nDays prior to the date of the proposed Competitive Bid Borrowing, if the Company\nshall instead specify in the Notice of Competitive Bid Borrowing the basis to be\nused by the Lenders in determining the rates of interest to be offered by them (the\nAdvances constituting such Competitive Bid Borrowing being referred to herein as\n\n\"LIBO Rate Advances<\/u>\"). The Agent shall in turn promptly notify each Lender\nof each request for a Competitive Bid Borrowing received by it from the Company by\nsending such Lender a copy of the related Notice of Competitive Bid Borrowing.\n<\/p>\n\n\n
     (ii) Each Lender may, if, in its sole discretion, it elects to do so,\nirrevocably offer to make one or more Competitive Bid Advances to the relevant\nBorrower as part of such proposed Competitive Bid Borrowing at a rate or rates of\ninterest specified by such Lender in its sole discretion, by notifying the Agent\n(which shall give prompt notice thereof to the Company), before 10:00 A.M. (New York\nCity time) on the date of such proposed Competitive Bid Borrowing, in the case of a\nCompetitive Bid Borrowing\n<\/p>\n\n
12\n<\/p>\n\n\n\n\n\n
consisting of Fixed Rate Advances and three Business Days before the date of such\nproposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing\nconsisting of LIBO Rate Advances, of the minimum amount and maximum amount of each\nCompetitive Bid Advance which such Lender would be willing to make as part of such\nproposed Competitive Bid Borrowing (which amounts may, subject to the proviso to the\nfirst sentence of this Section 2.03(a), exceed such Lender\u0092s Commitment, if any),\nthe rate or rates of interest therefor and such Lender\u0092s Applicable Lending Office\nwith respect to such Competitive Bid Advance; provided<\/u> that if the Agent in\nits capacity as a Lender shall, in its sole discretion, elect to make any such\noffer, it shall notify the Company of such offer before 9:00 A.M. (New York City\ntime) on the date on which notice of such election is to be given to the Agent by\nthe other Lenders. If any Lender shall elect not to make such an offer, such Lender\nshall so notify the Agent, before 10:00 A.M. (New York City time) on the date on\nwhich notice of such election is to be given to the Agent by the other Lenders, and\nsuch Lender shall not be obligated to, and shall not, make any Competitive Bid\nAdvance as part of such Competitive Bid Borrowing; provided<\/u> that the failure\nby any Lender to give such notice shall not cause such Lender to be obligated to\nmake any Competitive Bid Advance as part of such proposed Competitive Bid Borrowing.\n<\/p>\n\n
     (iii) The Company shall, in turn, before 11:00 A.M. (New York City time) on the\ndate of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid\nBorrowing consisting of Fixed Rate Advances and before 1:00 P.M. (New York City\ntime) three Business Days before the date of such proposed Competitive Bid\nBorrowing, in the case of a Competitive Bid Borrowing consisting of LIBO Rate\nAdvances, either:\n<\/p>\n\n\n
     (x) cancel such Competitive Bid Borrowing by giving the Agent notice to\nthat effect, or\n<\/p>\n\n\n
     (y) accept one or more of the offers made by any Lender or Lenders\npursuant to paragraph (ii) above, by giving notice to the Agent of the\namount of each Competitive Bid Advance (which amount shall be equal to or\ngreater than the minimum amount, and equal to or less than the maximum\namount, notified to the Company by the Agent on behalf of such Lender for\nsuch Competitive Bid Advance pursuant to paragraph (ii) above) to be made by\neach Lender as part of such Competitive Bid Borrowing, and reject any\nremaining offers made by Lenders pursuant to paragraph (ii) above by giving\nthe Agent notice to that effect. If the Company accepts any offers made by\nLenders pursuant to paragraph (ii) above, such offers shall be accepted in\nthe order of the lowest to highest interest rates or, if two or more Lenders\noffer to make Competitive Bid Advances at the same interest rate, such\noffers, if any, shall be accepted in proportion to the amount offered by\neach such Lender at such interest rate.\n<\/p>\n\n
     (iv) If the Company notifies the Agent that such Competitive Bid Borrowing is\ncancelled pursuant to paragraph (iii)(x) above, the Agent shall give prompt notice\nthereof to the Lenders and such Competitive Bid Borrowing shall not be made.\n<\/p>\n\n\n
     (v) If the Company accepts one or more of the offers made by any Lender or\nLenders pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly\nnotify (A) each Lender that has made an offer as described in paragraph (ii) above,\nof the date and aggregate amount of such Competitive Bid Borrowing and whether or\nnot any offer or offers made by such Lender pursuant to paragraph (ii) above have\nbeen accepted by the\n<\/p>\n\n
13\n<\/p>\n\n\n\n\n\n
Company, (B) each Lender that is to make a Competitive Bid Advance as part of such\nCompetitive Bid Borrowing, of the amount of each Competitive Bid Advance to be made\nby such Lender as part of such Competitive Bid Borrowing, and (C) each Lender that\nis to make a Competitive Bid Advance as part of such Competitive Bid Borrowing, upon\nreceipt, that the Agent has received forms of documents appearing to fulfill the\napplicable conditions set forth in Article III. Each Lender that is to make a\nCompetitive Bid Advance as part of such Competitive Bid Borrowing shall, before\n12:00 noon (New York City time) on the date of such Competitive Bid Borrowing\nspecified in the notice received from the Agent pursuant to clause (A) of the\npreceding sentence or any later time when such Lender shall have received notice\nfrom the Agent pursuant to clause (C) of the preceding sentence, make available for\nthe account of its Applicable Lending Office to the Agent at the Agent\u0092s Account, in\nsame day funds, such Lender\u0092s portion of such Competitive Bid Borrowing. Upon\nfulfillment of the applicable conditions set forth in Article III and after receipt\nby the Agent of such funds, the Agent will make such same day funds available to the\nrelevant Borrower at such Borrower\u0092s account at the Agent\u0092s address referred to in\nSection 8.02. Promptly after each Competitive Bid Borrowing the Agent will notify\neach Lender of the amount of the Competitive Bid Borrowing, the consequent\nCompetitive Bid Reduction and the dates upon which such Competitive Bid Reduction\ncommenced and will terminate.\n\n<\/p>\n\n\n
     (b) Each Competitive Bid Borrowing shall be in an aggregate amount of $10,000,000 or an\nintegral multiple of $1,000,000 in excess thereof and, following the making of each\nCompetitive Bid Borrowing, the Company shall be in compliance with the limitation set forth\nin the proviso to the first sentence of subsection (a) above.\n<\/p>\n\n\n
     (c) Within the limits and on the conditions set forth in this Section 2.03, each\nBorrower may from time to time borrow under this Section 2.03, repay or prepay pursuant to\nsubsection (d) below, and reborrow under this Section 2.03, provided<\/u> that a\nCompetitive Bid Borrowing shall not be made within three Business Days of the date of any\nother Competitive Bid Borrowing.\n<\/p>\n\n\n
     (d) Each Borrower shall repay to the Agent for the account of each Lender that has made\na Competitive Bid Advance to such Borrower, on the maturity date of such Competitive Bid\nAdvance (such maturity date being that specified by the Company for repayment of such\nCompetitive Bid Advance in the related Notice of Competitive Bid Borrowing delivered\npursuant to subsection (a)(i) above and provided in the Competitive Bid Note evidencing such\nCompetitive Bid Advance), the then unpaid principal amount of such Competitive Bid Advance.\nNo Borrower shall have any right to prepay any principal amount of any Competitive Bid\nAdvance unless, and then only on the terms, specified by the Company for such Competitive\nBid Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to\nsubsection (a)(i) above and set forth in the Competitive Bid Note evidencing such\nCompetitive Bid Advance.\n<\/p>\n\n\n
     (e) Each Borrower shall pay interest on the unpaid principal amount of each Competitive\nBid Advance to such Borrower from the date of such Competitive Bid Advance to the date the\nprincipal amount of such Competitive Bid Advance is repaid in full, at the rate of interest\nfor such Competitive Bid Advance specified by the Lender making such Competitive Bid Advance\nin its notice with respect thereto delivered pursuant to subsection (a)(ii) above, payable\non the interest payment date or dates specified by such Borrower for such Competitive Bid\nAdvance in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection\n(a)(i) above, as provided in the Competitive Bid Note evidencing such Competitive Bid\nAdvance.\n<\/p>\n\n
14\n<\/p>\n\n\n\n\n
     (f) The indebtedness of each Borrower resulting from each Competitive Bid Advance made\nto such Borrower as part of a Competitive Bid Borrowing shall be evidenced by a separate\nCompetitive Bid Note of such Borrower payable to the order of the Lender making such\nCompetitive Bid Advance.\n<\/p>\n\n
     Section 2.04 <\/b>Fees<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) Facility Fee<\/u>. The Company agrees to pay to the Agent for the account of\neach Lender a facility fee on the aggregate amount of such Lender\u0092s Commitment irrespective\nof usage from the Effective Date in the case of each Initial Lender and from the effective\ndate specified in the Assignment and Assumption pursuant to which it became a Lender in the\ncase of each other Lender until the Termination Date (on a daily basis) at a rate per annum\nequal to 0.04%, payable in arrears quarterly on the last day of each June, September,\nDecember and March, commencing June 30, 2006, and on the Termination Date.\n\n<\/p>\n\n\n
     (b) Agent\u0092s Fees<\/u>. The Company shall pay to the Agent for its own account such\nfees as may from time to time be agreed between the Company and the Agent.\n<\/p>\n\n
     Section 2.05 <\/b>Termination, Reduction or Increase of Commitments<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) The Company shall have the right, upon at least three Business Days\u0092 notice to the\nAgent, to terminate in whole or reduce ratably in part the unused portions of the respective\nCommitments of the Lenders; provided<\/u> that each partial reduction shall be in the\naggregate amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof and\nprovided further<\/u> that the aggregate amount of the Commitments of the Lenders shall\nnot be reduced to an amount that is less than the aggregate principal amount of the Advances\nand L\/C Obligations then outstanding.\n<\/p>\n\n\n
     (b) If any Lender shall make a demand under Section 2.11 or 2.14, the Company shall\nhave the right, upon at least ten Business Days\u0092 notice, to terminate in full the Commitment\nof such Lender or to demand that such Lender assign to one or more Persons all of its rights\nand obligations under this Agreement in accordance with Section 8.07. If the Company shall\nelect to terminate in full the Commitment of any Lender pursuant to this Section 2.05(b),\nthe Company shall (i) pay to such Lender, on the effective date of such Commitment\ntermination, an amount equal to the aggregate outstanding principal amount of the Advances\nowing to such Lender, together with accrued interest thereon to the date of payment of such\nprincipal amount and all other amounts payable to such Lender under this Agreement and (ii)\nCash Collateralize such Lender\u0092s L\/C Participation Percentage, whereupon such Lender shall\ncease to be a party hereto.\n\n<\/p>\n\n\n
     (c) (i) Not more than once in any calendar year, the Company may propose to increase\nthe aggregate amount of the Commitments by an aggregate amount of $25,000,000 or an integral\nmultiple of $1,000,000 in excess thereof (a \"Proposed Aggregate Commitment\nIncrease<\/u>\") in the manner set forth below, provided that:\n<\/p>\n\n\n
     (1) no Default shall have occurred and be continuing either as of the\nIncrease Notice Date (as hereinafter defined) or as of the related Increase\nDate (as hereinafter defined); and\n<\/p>\n\n\n
     (2) after giving effect to any such increase, the aggregate amount of\nthe Commitments shall not exceed $2,000,000,000.\n<\/p>\n\n
15\n<\/p>\n\n\n\n\n
     (ii) The Company may request an increase in the aggregate amount of the\nCommitments by delivering to the Agent a notice (an \"Increase Notice<\/u>\"; the\ndate of delivery thereof to the Agent being the \"Increase Notice Date<\/u>\")\nspecifying (1) the Proposed Aggregate Commitment Increase, (2) the proposed date\n(the \"Increase Date<\/u>\") on which the Commitments would be so increased (which\nIncrease Date may not be fewer than 30 nor more than 60 days after the Increase\nNotice Date) and (3) the New Lenders, if any, to whom the Company desires to offer\nthe opportunity to commit to all or a portion of the Proposed Aggregate Commitment\nIncrease. The Agent shall in turn promptly notify each Lender of the Company\u0092s\nrequest by sending each Lender a copy of such notice.\n\n<\/p>\n\n\n
     (iii) Not later than the date five days after the Increase Notice Date, the\nAgent shall notify each New Lender, if any, identified in the related Increase\nNotice of the opportunity to commit to all or any portion of the Proposed Aggregate\nCommitment Increase. Each such New Lender may irrevocably commit to all or a\nportion of the Proposed Aggregate Commitment Increase (such New Lender\u0092s\n\"Proposed New Commitment<\/u>\") by notifying the Agent (which shall give prompt\nnotice thereof to the Company) before 11:00 A.M. (New York City time) on the date\nthat is 10 days after the Increase Notice Date; provided<\/u> that:\n<\/p>\n\n\n
     (1) the Proposed New Commitment of each New Lender shall be in an\namount not less than $25,000,000; and\n<\/p>\n\n\n
     (2) each New Lender that submits a Proposed New Commitment shall enter\ninto an agreement in form and substance satisfactory to the Company and the\nAgent pursuant to which such New Lender shall undertake a Commitment (and,\nif any such New Lender is already a Lender, its Commitment shall be in\naddition to such Lender\u0092s Commitment hereunder on such date), and shall pay\nto the Agent a processing and recordation fee of $5,000.\n<\/p>\n\n\n
     (iv) If the aggregate Proposed New Commitments of all of the New Lenders shall\nbe less than the Proposed Aggregate Commitment Increase, then (unless the Company\notherwise requests) the Agent shall, on or prior to the date that is 15 days after\nthe Increase Notice Date, notify each Lender of the opportunity to so commit to all\nor any portion of the Proposed Aggregate Commitment Increase not committed to by New\nLenders pursuant to Section 2.05(c) (iii). Each Lender may, if, in its sole\ndiscretion, it elects to do so, irrevocably offer to commit to all or a portion of\nsuch remainder (such Lender\u0092s \"Proposed Increased Commitment<\/u>\") by notifying\nthe Agent (which shall give prompt notice thereof to the Company) not later than\n11:00 A.M. (New York City time) on the date five days before the Increase Date.\n<\/p>\n\n
     (v) If the aggregate amount of Proposed New Commitments and Proposed Increased\nCommitments (such aggregate amount, the \"Total Committed Increase<\/u>\") equals\nor exceeds $25,000,000, then, subject to the conditions set forth in Section\n2.05(c)(i):\n<\/p>\n\n\n
     (1) effective on and as of the Increase Date, the aggregate amount of\nthe Commitments shall be increased by the Total Committed Increase\n(provided <\/u>that the aggregate amount of the Commitments shall in no\nevent be increased pursuant to this Section 2.05(c) to more than\n$2,000,000,000) and shall be allocated among the New Lenders and the Lenders\nas provided in Section 2.05(c)(vi); and\n<\/p>\n\n\n
16\n<\/p>\n\n\n\n\n
     (2) on the Increase Date, if any Revolving Credit Advances are\nthen outstanding, the Company shall borrow Revolving Credit Advances from\nall or certain of the Lenders and\/or (subject to compliance by the Company\nwith Section 8.04(c)) prepay Revolving Credit Advances of all or certain of\nthe Lenders such that, after giving effect thereto, the Revolving Credit\nAdvances (including, without limitation, the Types and Interest Periods\nthereof) shall be held by the Lenders (including for such purposes New\nLenders) ratably in accordance with their respective Commitments.\n<\/p>\n\n\n
If the Total Committed Increase is less than $25,000,000, then the aggregate amount of the\nCommitments shall not be changed pursuant to this Section 2.05(c).\n\n<\/p>\n\n\n
     (vi) The Total Committed Increase shall be allocated among New Lenders having\nProposed New Commitments and Lenders having Proposed Increased Commitments as\nfollows:\n<\/p>\n\n\n
     (1) If the Total Committed Increase shall be at least $25,000,000 and\nless than or equal to the Proposed Aggregate Commitment Increase, then (x)\nthe initial Commitment of each New Lender shall be such New Lender\u0092s\nProposed New Commitment and (y) the Commitment of each Lender shall be\nincreased by such Lender\u0092s Proposed Increased Commitment.\n<\/p>\n\n\n
     (2) If the Total Committed Increase shall be greater than the Proposed\nAggregate Commitment Increase, then the Total Committed Increase shall be\nallocated:\n<\/p>\n\n\n
     (x) first<\/u> to New Lenders (to the extent of their\nrespective Proposed New Commitments) in such a manner as the Company\nshall agree; and\n<\/p>\n\n\n
     (y) then<\/u> to Lenders on a pro rata basis based on the\nratio of each Lender\u0092s Proposed Increased Commitment (if any) to the\naggregate amount of the Proposed Increased Commitments of all of the\nLenders.\n<\/p>\n\n\n
     (vii) No increase in the Commitments contemplated hereby shall become effective\nuntil the Agent shall have received (x) Revolving Credit Notes payable to each New\nLender and each other Lender whose Commitment is being increased, and (y) evidence\nsatisfactory to the Agent (including an update of the opinion of counsel provided\npursuant to Section 3.01(g)(iv)) that such increases in the Commitments, and\nborrowings thereunder, have been duly authorized by all necessary corporate and\nother action on the part of the Company.\n<\/p>\n\n\n
     Section 2.06 <\/b>Repayment of Revolving Credit Advances: Extension of Termination Date<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) The Company shall repay to the Agent for the ratable account of the Lenders on the\nTermination Date the aggregate principal amount of the Revolving Credit Advances then\noutstanding, and all accrued but unpaid interest, fees and all other amounts due hereunder.\n<\/p>\n\n\n
     (b) The Company may, by written notice to the Agent (which shall promptly notify the\nLenders) not more than 90 nor less than 60 days prior to each anniversary of the date hereof\n<\/p>\n\n
17\n<\/p>\n\n\n\n\n
(such anniversary date following such notice, the \"Extension Date<\/u>\"), request that\nthe Termination Date then in effect (the \"Existing Termination Date<\/u>\") be extended\nfor a period of one year. Such request shall be irrevocable and binding upon the Company.\nThe Agent shall promptly notify each Lender of such request. If a Lender agrees, acting in\nits sole discretion, to so extend its Commitment (an \"Extending Lender<\/u>\"), it will\nnotify the Agent, in writing, of its decision to do so not more than 30 nor less than 20\ndays before the Extension Date; it being understood that failure to give such notice shall\nbe deemed a decision not to extend. If any Lender fails to accept the Company\u0092s request for\nextension of the Termination Date (a \"Declining Lender\"), the Company shall have the right,\nprior to the Extension Date, to require any Declining Lender to assign in full its rights\nand obligations under this Agreement to an Eligible Assignee (including any Extending\nLender) designated by the Company that agrees to accept all of such rights and obligations\nand agrees to such extension (a \"Replacement Lender<\/u>\"), provided that (i) such\nassignment is otherwise in compliance with Section 8.07, (ii) such Declining Lender receives\npayment in full of the principal amount of all Advances owing to such Declining Lender,\ntogether with accrued interest thereon to the date of such payment of principal and all\nother amounts payable to such Declining Lender under this Agreement and (iii) any such\nassignment shall be effective on the Extension Date. If (i) there are no Declining Lenders\nor all of the Declining Lenders are replaced by Replacement Lenders as set forth above and\n(ii) no Default shall have occurred and be continuing immediately prior to the Extension\nDate, the Termination Date shall be extended by one year (except that, if the date on which\nthe Termination Date is to be extended is not a Business Day, such Termination Date as so\nextended shall be the next preceding Business Day), and the Agent shall promptly notify the\nCompany of such extension. If there are any Declining Lenders that are not replaced in\naccordance with the terms above, the Company may (i) withdraw its request for an extension\nand the Existing Termination Date will remain in effect or (ii) provided that no Default\nshall have occurred and be continuing immediately prior to the Extension Date, on the\nExtension Date (x) pay any such Declining Lenders in full for all principal, interest and\nother amounts owing to such Declining Lender under this Agreement, reduce the aggregate\nCommitments of the Lenders by the amount of the Commitment of such Declining Lenders and (y)\nCash Collateralize such Lender\u0092s L\/C Participation Percentage, whereupon such Lender shall\ncease to be a party hereto, and extend the Termination Date for one year at the reduced\naggregate Commitment amount.\n\n<\/p>\n\n\n
     Section 2.07 <\/b>Interest on Revolving Credit Advances<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     Each Borrower shall pay interest on the unpaid principal amount of each Revolving Credit\nAdvance made to such Borrower owing to each Lender from the date of such Revolving Credit Advance\nuntil such principal amount shall be paid in full, at the following rates per annum:\n<\/p>\n\n\n
     (a) Base Rate Advances.<\/u> During such periods as such Revolving Credit Advance\nis a Base Rate Advance, a rate per annum equal at all times to the Base Rate in effect from\ntime to time, payable in arrears quarterly on the last day of each March, June, September\nand December during such periods and on the date such Base Rate Advance shall be Converted\nor paid in full.\n\n<\/p>\n\n\n
     (b) Eurodollar Rate Advances<\/u>. During such periods as such Revolving Credit\nAdvance is a Eurodollar Rate Advance, a rate per annum equal at all times during each\nInterest Period for such Revolving Credit Advance to the sum of (x) the Eurodollar Rate for\nsuch Interest Period for such Revolving Credit Advance plus<\/u> (y) 0.135%, payable in\narrears on the last day of such Interest Period and, if such Interest Period has a duration\nof more than three months, on each day that occurs during such Interest Period every three\nmonths from the first day of such Interest Period and on the date such Eurodollar Rate\nAdvance shall be Converted or paid in full.\n<\/p>\n\n
18\n<\/p>\n\n\n\n\n
     (c) Default Rate<\/u>. Upon the occurrence and during the continuance of an Event\nof Default pursuant to Section 6.01(a), the principal of and, to the extent permitted by\nlaw, interest on the Advances and any other amounts owing hereunder or under the other Loan\nDocuments (including without limitation fees and expenses) shall bear interest, payable on\ndemand, at the Default Rate.\n<\/p>\n\n\n
     Section 2.08 <\/b>Interest Rate Determination<\/b><\/u>.<\/b>\n\n<\/p>\n\n\n
     (a) If the Eurodollar Rate does not appear on Page 3750 (or any successor page), each\nReference Bank agrees to furnish to the Agent timely information for the purpose of\ndetermining each Eurodollar Rate. If the Eurodollar Rate does not appear on Page 3750 (or\nany successor page), and if any one or more of the Reference Banks shall not furnish such\ntimely information to the Agent for the purpose of determining any such interest rate, the\nAgent shall determine such interest rate on the basis of timely information furnished by the\nremaining Reference Banks. The Agent shall give prompt notice to the Company and the\nLenders of the applicable interest rate determined by the Agent for purposes of Section\n2.07, and the rate, if any, furnished by each Reference Bank for the purpose of determining\nthe interest rate under Section 2.07(b).\n<\/p>\n\n\n
     (b) If, due to a major disruption in the interbank funding market with respect to any\nEurodollar Rate Advances, the Required Lenders notify the Agent that the Eurodollar Rate for\nany Interest Period for such Advances will not adequately reflect the cost to such Required\nLenders of making, funding or maintaining their respective Eurodollar Rate Advances for such\nInterest Period, the Agent shall forthwith so notify the Borrower and the Lenders, whereupon\n(i) each Eurodollar Rate Advance will automatically, on the last day of the then existing\nInterest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the\nLenders to make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances\nshall be suspended until the Agent shall notify the Company and the Lenders that the\ncircumstances causing such suspension no longer exist.\n<\/p>\n\n\n
     (c) If the Company shall fail to select the duration of any Interest Period for any\nEurodollar Rate Advances in accordance with the provisions contained in the definition of\n\"Interest Period\" in Section 1.01, the Agent will forthwith so notify the Company and the\nLenders and the Company will be deemed to have selected an Interest Period of one month.\n<\/p>\n\n\n
     (d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate\nAdvances constituting any Borrowing shall be reduced, by payment or prepayment or otherwise,\nto less than $10,000,000, such Advances shall automatically Convert into Base Rate Advances.\n<\/p>\n\n\n
     (e) Upon the occurrence and during the continuance of any Event of Default, (i) each\nEurodollar Rate Advance will automatically, on the last day of the then existing Interest\nPeriod therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to\nmake, or to Convert Advances into, Eurodollar Rate Advances shall be suspended.\n<\/p>\n\n\n
     (f) If the Eurodollar Rate does not appear on Page 3750 (or any successor page) and\nfewer than two Reference Banks furnish timely information to the Agent for determining the\nEurodollar Rate for any Eurodollar Rate Advances,\n<\/p>\n\n\n
     (i) the Agent shall forthwith notify the Company and the Lenders that the\ninterest rate cannot be determined for such Eurodollar Rate Advances,\n<\/p>\n\n
19\n<\/p>\n\n\n\n\n
     (ii) each such Advance will automatically, on the last day of the then existing\nInterest Period therefor, Convert into a Base Rate Advance (or if such Advance is\nthen a Base Rate Advance, will continue as a Base Rate Advance), and\n<\/p>\n\n\n
     (iii) the obligation of the Lenders to make, or to Convert Revolving Credit\nAdvances into, Eurodollar Rate Advances shall be suspended until the Agent shall\nnotify the Company and the Lenders that the circumstances causing such suspension no\nlonger exist.\n<\/p>\n\n\n
     Section 2.09 <\/b>Optional Conversion of Revolving Credit Advances<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     The Company may on any Business Day, upon notice given to the Agent not later than 11:00 A.M.\n(New York City time) on the third Business Day prior to the date of the proposed Conversion and\nsubject to the provisions of Sections 2.08 and 2.12, Convert all Revolving Credit Advances of one\nType constituting the same Borrowing into Revolving Credit Advances of the other Type;\nprovided<\/u>, however,<\/u> that any Conversion of Eurodollar Rate Advances into Base Rate\nAdvances shall be made only on the last day of an Interest Period for such Eurodollar Rate\nAdvances, any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount\nnot less than the minimum amount specified in Section 2.02(b) and no Conversion of any Revolving\nCredit Advances shall result in more separate Revolving Credit Borrowings than permitted under\nSection 2.02(b). Each such notice of a Conversion shall, within the restrictions specified above,\nspecify (i) the date of such Conversion, (ii) the Revolving Credit Advances to be Converted, and\n(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial Interest\nPeriod for each such Advance. Each notice of Conversion shall be irrevocable and binding on the\nCompany.\n<\/p>\n\n
     Section 2.10 <\/b>Optional Prepayments of Revolving Credit Advances<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     The Company may, upon at least one Business Day\u0092s notice, in the case of Base Rate Advances,\nand three Business Days\u0092 notice, in the case of Eurodollar Rate Advances, to the Agent stating the\nproposed date and aggregate principal amount of the prepayment, and if such notice is given the\nCompany shall, prepay the outstanding principal amount of the Revolving Credit Advances\nconstituting part of the same Revolving Credit Borrowing in whole or ratably in part, together with\naccrued interest to the date of such prepayment on the principal amount prepaid; provided<\/u>,\nhowever<\/u>, that (x) each partial prepayment shall be in an aggregate principal amount of\n$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event of any\nsuch prepayment of a Eurodollar Rate Advance, the Company shall be obligated to reimburse the\nLenders in respect thereof pursuant to Section 8.04(c).\n\n<\/p>\n\n\n
     Section 2.11 <\/b>Increased Costs<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) If, due to either (i) the introduction of or any change in any law or regulation or\nin the interpretation or administration of any law or regulation by any governmental\nauthority charged with the interpretation or administration thereof or (ii) the compliance\nwith any guideline or request from any central bank or other governmental authority that\nwould be complied with generally by similarly situated banks acting reasonably (whether or\nnot having the force of law), there shall be any increase in the cost to any Lender of\nagreeing to make or making, funding or maintaining Eurodollar Rate Advances or LIBO Rate\nAdvances or (as the case may be) issuing or participating in Letters of Credit, in either\ncase by an amount deemed by such Lender to be material, then the Company shall from time to\ntime, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent\nfor the account of such Lender additional amounts sufficient to compensate such Lender for\nsuch increased cost. A certificate as to the amount of\n<\/p>\n\n
20\n<\/p>\n\n\n\n\n
such increased cost, submitted to\nthe Company and the Agent by such Lender, shall be conclusive and binding for all purposes,\nabsent manifest error. Notwithstanding the foregoing, no Lender shall be entitled to\nrequest compensation under this paragraph with respect to any Competitive Bid Advance if the\nchange giving rise to such request was applicable to such Lender at the time of submission\nof such Lender\u0092s offer to make such Competitive Bid Advance.\n<\/p>\n\n\n
     (b) If, due to either (i) the introduction of or any change in or interpretation of any\nlaw or regulation or (ii) compliance with any guideline or request from any central bank or\nother governmental or regulatory authority which becomes effective after the date hereof,\nthere shall be any increase in the amount of capital required or expected to be maintained\nby any Lender or any corporation controlling such Lender and that the amount of such capital\nis increased by or based upon the existence of such Lender\u0092s Advances or commitment to lend\nor (as the case may be) issue or participate in Letters of Credit hereunder and other\ncommitments of this type by an amount deemed by such Lender to be material, then, upon\ndemand by such Lender (with a copy of such demand to the Agent), the Company shall pay to\nthe Agent for the account of such Lender, from time to time as specified by such Lender,\nadditional amounts sufficient to compensate such Lender or such corporation in the light of\nsuch circumstances, to the extent that such Lender reasonably determines such increase in\ncapital to be allocable to the existence of such Lender\u0092s Advances or commitment to lend or\n(as the case may be) issue or participate in Letters of Credit hereunder. A certificate as\nto such amounts submitted to the Company and the Agent by such Lender shall be conclusive\nand binding for all purposes as to the calculations therein, absent manifest error. Such\ncertificate shall be in reasonable detail and shall certify that the claim for additional\namounts referred to therein is generally consistent with such Lender\u0092s treatment of\nsimilarly situated customers of such Lender whose transactions with such Lender are\nsimilarly affected by the change in circumstances giving rise to such payment, but such\nLender shall not be required to disclose any confidential or proprietary information\ntherein.\n\n<\/p>\n\n\n
     Section 2.12 <\/b>Illegality<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     Notwithstanding any other provision of this Agreement, if any Lender shall notify the Agent\n(and provide to the Company an opinion of counsel to the effect) that the introduction of or any\nchange in or in the interpretation of any law or regulation makes it unlawful, or any central bank\nor other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar\nLending Office to perform its obligations hereunder to make Eurodollar Rate Advances or LIBO Rate\nAdvances or to fund or maintain Eurodollar Rate Advances or LIBO Rate Advances hereunder, (i) each\nEurodollar Rate Advance or LIBO Rate Advance made by such Lender, as the case may be, will\nautomatically, upon such demand, Convert into a Base Rate Advance or an Advance that bears interest\nat the rate set forth in Section 2.07(a), as the case may be, and (ii) the obligation of such\nLender to make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances shall be\nsuspended until such Lender shall notify the Company and the Agent that the circumstances causing\nsuch suspension no longer exist.\n<\/p>\n\n
     Section 2.13 <\/b>Payments and Computations<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) Each Borrower shall make each payment hereunder and under the Notes not later than\n11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Agent at the\nAgent\u0092s Account in same day funds without deduction, off-set or counterclaim. The Agent\nwill promptly thereafter cause to be distributed like funds relating to the payment of\nprincipal, interest, facility fees or letter of credit fees ratably (other than amounts\npayable pursuant to Section 2.02(c), 2.03, 2.05(b), 2.06(b), 2.11, 2.14, 2.18(j) or 8.04(c))\nto the Lenders for the account of their respective Applicable Lending Offices, and like\nfunds relating to the payment of any other amount payable to any Lender to such Lender for\nthe account of its Applicable Lending Office, in\n<\/p>\n\n
21\n<\/p>\n\n\n\n\n
each case to be applied in accordance with\nthe terms of this Agreement. Upon its acceptance of an Assignment and Assumption and\nrecording of the information contained therein in the Register pursuant to Section 8.07(d),\nfrom and after the effective date specified in such Assignment and Assumption, the Agent\nshall make all payments hereunder and under the Notes in respect of the interest assigned\nthereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption\nshall make all appropriate adjustments in such payments for periods prior to such effective\ndate directly between themselves.\n<\/p>\n\n\n
     (b) All computations of interest based on the Base Rate and of facility fees shall be\nmade by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all\ncomputations of interest based on the Eurodollar Rate or the Federal Funds Rate shall be\nmade by the Agent on the basis of a year of 360 days, in each case for the actual number of\ndays (including the first day but excluding the last day) occurring in the period for which\nsuch interest or fees are payable. Each determination by the Agent of an interest rate\nhereunder shall be conclusive and binding for all purposes, absent manifest error.\n<\/p>\n\n\n
     (c) Whenever any payment hereunder or under the Notes shall be stated to be due on a\nday other than a Business Day, such payment shall be made on the next succeeding Business\nDay, and such extension of time shall in such case be included in the computation of payment\nof interest or fees, as the case may be; provided<\/u>, however<\/u>, that, if such\nextension would cause payment of interest on or principal of Eurodollar Rate Advances or\nLIBO Rate Advances to be made in the next following calendar month, such payment shall be\nmade on the next preceding Business Day.\n<\/p>\n\n\n
     (d) Unless the Agent shall have received notice from the Company prior to the date on\nwhich any payment is due to the Lenders hereunder that a Borrower will not make such payment\nin full, the Agent may assume that such Borrower has made such payment in full to the Agent\non such date and the Agent may, in reliance upon such assumption, cause to be distributed to\neach Lender on such due date an amount equal to the amount then due such Lender. If and to\nthe extent such Borrower shall not have so made such payment in full to the Agent, each\nLender shall repay to the Agent forthwith on demand such amount distributed to such Lender\ntogether with interest thereon, for each day from the date such amount is distributed to\nsuch Lender until the date such Lender repays such amount to the Agent, at the Federal Funds\nRate.\n<\/p>\n\n\n
     Section 2.14 <\/b>Taxes<\/b><\/u>.\n\n<\/p>\n\n\n
     (a) Each Lender is exempt from any withholding imposed under the laws of the United\nStates in respect of any fees, interest or other payments to which it is entitled pursuant\nto this Agreement or the Notes (the \"Income<\/u>\") because (i) the Lender is organized\nunder the laws of the United States; (ii) the Income is effectively connected with the\nconduct of a trade or business within the United States within the meaning of Section 871 of\nthe Internal Revenue Code; or (iii) the Income is eligible for an exemption by reason of a\ntax treaty. The Agent is exempt from any withholding tax imposed under the laws of the\nUnited States in respect of the Income because the Agent is organized under the laws of the\nUnited States.\n<\/p>\n\n\n
     (b) Each Lender organized under the laws of a jurisdiction outside the United States\n(each, a \"Foreign Lender<\/u>\") shall, on or prior to the date of its execution and\ndelivery of this Agreement in the case of each Initial Lender, and on the date of the\nAssignment and Assumption pursuant to which it became a Lender in the case of each other\nForeign Lender and from time to time thereafter if requested in writing by the Company or\nthe Agent, provide the Agent and the relevant Borrower with Internal Revenue Service Form\nW-8BEN or W-8ECI, as appropriate, or\n\n<\/p>\n\n
22\n<\/p>\n\n\n\n\n
any successor or other form prescribed by the Internal\nRevenue Service, certifying that such Foreign Lender is exempt or entitled to a reduced rate\nof United States withholding tax on any Income that is the subject of such forms. If the\nform provided by a Foreign Lender at the time such Foreign Lender first becomes a party to\nthis Agreement indicates a United States interest withholding tax rate in excess of zero, or\nin excess of the rate applicable to the Foreign Lender assignor on the date of the\nAssignment and Assumption pursuant to which it became a Foreign Lender, in the case of each\nother Foreign Lender, withholding tax at such rate shall be considered excluded from Taxes\nas defined in Section 2.14(c).\n<\/p>\n\n\n
     (c) Based on Section 2.14(a) and (b), any and all payments by any Borrower hereunder or\nunder the Notes shall be made free and clear of and without deduction for any present United\nStates federal income withholding taxes imposed on a Foreign Lender under the Internal\nRevenue Code (such withholding taxes being hereinafter referred to as \"Taxes<\/u>\").\n<\/p>\n\n\n
     (d) If, as a result of the enactment, promulgation, execution or ratification of, or\nany change in or amendment to, any United States law or any tax treaty (or in the\napplication or official interpretation of any law or any tax treaty) that occurs on or after\nthe date a Foreign Lender first becomes a party to this Agreement (a \"Change in\nLaw<\/u>\"), a Foreign Lender cannot comply with Section 2.14(b) or, if despite such\ncompliance, any Borrower shall be required to deduct any Taxes from or in respect of any\nIncome, then: (i) the sum payable to such Foreign Lender shall be increased as may be\nnecessary so that after making all required deductions for such Taxes (including deductions\napplicable to additional sums payable under this Section 2.14) such Foreign Lender receives\nan amount equal to the sum it would have received had no such deductions been made, (ii)\nsuch Borrower shall make such deductions and (iii) such Borrower shall pay the full amount\ndeducted to the relevant taxation authority or other authority in accordance with applicable\nlaw. Notwithstanding the foregoing, each Borrower shall be entitled to pay any Taxes in any\nlawful manner so as to reduce any deductions and such Foreign Lender shall to the extent it\nis reasonably able provide any documentation or file any forms as may be required by the\nInternal Revenue Service or any other foreign governmental agency. In addition, if any\nForeign Lender or the Agent (in lieu of such Foreign Lender), as the case may be, is\nrequired to pay directly any Taxes as a result of a Change in Law because a Borrower cannot\nor does not legally or timely do so, the Company shall indemnify such Foreign Lender or\nAgent for payment of such Taxes, without duplication of, or increase in, the amount of Taxes\notherwise due to the Foreign Lender.\n<\/p>\n\n
     (e) In addition, the Company agrees to pay any present or future stamp or documentary\ntaxes or any other excise or property taxes, charges or similar levies (excluding any income\nor franchise taxes, business taxes or capital taxes of any nature) that arise from the\nexecution, delivery or registration of, or otherwise with respect to, this Agreement or the\nNotes (hereinafter referred to as \"Other Taxes<\/u>\"). If a Lender is required to pay\ndirectly Other Taxes because a Borrower cannot or does not legally or timely do so, the\nCompany shall indemnify such Lender for such payment of Other Taxes. Notwithstanding\nanything to the contrary in this paragraph (e), each Lender shall upon the written request\nof and at the expense of the Company use reasonable efforts to change the jurisdiction of\nits Applicable Lending Office if the making of such change would avoid the need for, or\nreduce the amount of, any such Other Taxes that may thereafter accrue and would not, in the\nreasonable judgment of such Lender, cause imposition on such Lender of any material legal or\nregulatory burdens.\n<\/p>\n\n\n
     (f) Within 30 days after the date of any payment of Taxes or foreign withholding taxes,\nthe Company shall furnish to the Agent, at its address referred to in Section 8.02, the\noriginal or a certified copy of a receipt evidencing payment thereof. Prior to making any\npayment\n<\/p>\n\n
23\n<\/p>\n\n\n\n\n
hereunder or under the Notes by or on behalf of any Borrower through an account or\nbranch outside the United States or on behalf of any Borrower by a payor that is not a\n\nUnited States person (a \"Foreign Payment<\/u>\"), such Borrower shall determine that no\nforeign withholding taxes are payable in respect thereof, and at its expense, shall furnish,\nor shall cause such payor to furnish, to the Agent, at such address, a certificate from each\nappropriate taxing authority, or an opinion of counsel acceptable to the Agent, in either\ncase stating that such Foreign Payment is exempt from or not subject to foreign withholding\ntaxes. Each Lender shall cooperate with each Borrower\u0092s efforts described in this\nsubsection by providing to the extent reasonably within its means any forms requested by\nsuch Borrower substantiating an exemption from foreign withholding taxes required by any\ngovernmental agency. For purposes of this subsection (f), the terms \"United States\" and\n\"United States person\" shall have the meaning specified in Section 7701 of the Internal\nRevenue Code. If, as a result of the enactment, promulgation, execution or ratification of,\nor any change in or amendment to, any applicable foreign law or any tax treaty (or in the\napplication or official interpretation of any law or any tax treaty) that occurs on or after\nthe date a tax opinion is rendered pursuant to the terms of this subsection, and which\nrenders such tax opinion incorrect as to the absence of any foreign withholding tax (the\n\n\"Foreign Change in Law<\/u>\"), any Borrower shall be required to deduct any foreign\nwithholding taxes from or in respect of any Income, then: (i) the sum payable to the\napplicable Lender shall be increased as may be necessary so that after making all required\ndeductions for foreign withholding taxes (including deductions applicable to additional sums\npayable under this Section 2.14) such Lender receives an amount equal to the sum it would\nhave received had no such deductions been made, (ii) such Borrower shall make such\ndeductions and (iii) such Borrower shall pay the full amount deducted to the relevant\ntaxation authority or other authority in accordance with applicable law. Notwithstanding\nthe foregoing, each Borrower shall be entitled to pay any foreign withholding taxes in any\nlawful manner so as to reduce any deductions and such Lender shall to the extent it is\nreasonably able provide any documentation or file any forms as may be required by the\nInternal Revenue Service or any other foreign governmental agency. In addition, if any\nLender is required to pay directly any foreign withholding tax in respect of any Foreign\nPayments made pursuant to the Note held by such Lender or this Agreement because a Borrower\ncannot or does not legally or timely do so, the Company shall indemnify such Lender for\npayment of such tax.\n<\/p>\n\n\n
     (g) For any period with respect to which a Lender has failed to comply with the\nrequirements of subsection (b) or (f) relating to certain forms intended to reduce\nwithholding taxes (other than if such failure is due to a Change in Law or a Foreign Change\nin Law), such Lender shall not be entitled to indemnification under subsection (d) or (f).\n<\/p>\n\n\n
     (h) Upon a Change in Law or the imposition of any foreign withholding tax in respect of\nForeign Payments, a Lender shall, upon the written request of and at the expense of the\nCompany, use reasonable efforts to change the jurisdiction of its Applicable Lending Office\nif the making of such a change would avoid the need for, or reduce the amount of, any such\ntaxes that may thereafter accrue and would not, in the reasonable judgment of such Lender,\ncause the imposition on such Lender of any material legal or regulatory burdens.\n<\/p>\n\n\n
     (i) Without prejudice to the survival of any other agreement of any Borrower hereunder,\nthe agreements and obligations of the Company contained in this Section 2.14 shall survive\nthe payment in full of principal and interest hereunder and under the Notes until the\napplicable statute of limitations relating to the payment of any Taxes under Section 2.14(d)\nhas expired.\n<\/p>\n\n\n
     (j) Any request by any Lender for payment of any amount under this Section 2.14 shall\nbe accompanied by a certification that such Lender\u0092s claim for said amount is generally\n<\/p>\n\n
24\n<\/p>\n\n\n\n\n
consistent with such Lender\u0092s treatment of similarly situated customers of such Lender whose\ntransactions with such Lender are similarly affected by the change in circumstances giving\nrise to such payment, but such Lender shall not be required to disclose any confidential or\nproprietary information therein.\n<\/p>\n\n\n
     Section 2.15 <\/b>Sharing of Payments, Etc<\/b><\/u>.<\/b>\n\n<\/p>\n\n\n
     If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise\nof any right of set-off, or otherwise) on account of the Revolving Credit Advances owing to it\n(other than pursuant to Section 2.05(b), 2.06(b), 2.11, 2.14 or 8.04(c)) or the participations in\nL\/C Obligations held by it in excess of its ratable share thereof, such Lender shall forthwith\npurchase from the other Lenders such participations in the Revolving Credit Advances owing to them\nand\/or such subparticipations in the participations in L\/C Obligations held by them, as the case\nmay be, as shall be necessary to cause such purchasing Lender to share the excess payment ratably\nwith each of them; provided<\/u>, however<\/u>, that if all or any portion of such excess\npayment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall\nbe rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent\nof such recovery together with an amount equal to such Lender\u0092s ratable share (according to the\nproportion of (i) the amount of such Lender\u0092s required repayment to (ii) the total amount so\nrecovered from the purchasing Lender) of any interest or other amount paid or payable by the\npurchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any\nLender so purchasing a participation or subparticipation from another Lender pursuant to this\nSection 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment\n(including the right of set-off) with respect to such participation as fully as if such Lender were\nthe direct creditor of such Borrower in the amount of such participation or subparticipation. This\nSection 2.15 shall continue to apply after any conversion of the Revolving Credit Advances pursuant\nto Section 2.06(b).\n\n<\/p>\n\n\n
     Section 2.16 <\/b>Use of Proceeds<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     The proceeds of the Advances and the Letters of Credit shall be available (and the Company\nagrees that such proceeds shall be used) to repay outstanding commercial paper issued by the\nCompany and its subsidiaries and for general corporate purposes of the Company and its\nSubsidiaries, including working capital, capital investments and acquisitions.\n<\/p>\n\n\n
     Section 2.17 <\/b>Borrowings by Borrowing Subsidiaries<\/b><\/u>.<\/b>\n\n<\/p>\n\n\n
     (a) The Company may, at any time or from time to time upon not less than 10 Business\nDays\u0092 notice in the case of any Subsidiary so designated after the Effective Date,\ndesignate one or more Subsidiaries as Borrowers hereunder by furnishing to the Agent a\nletter (a \"Designation Letter<\/u>\") in duplicate, in substantially the form of Exhibit\nD, duly completed and executed by the Company and such Subsidiary. The Agent shall promptly\nnotify each Lender of the Company\u0092s notice of such pending designation by the Company and\nthe identity of the respective Subsidiary. Following the giving of any notice pursuant to\nthis Section 2.17(a), if the designation of such Designated Subsidiary obligates the Agent\nor any Lender to comply with \"know your customer\" or similar identification procedures in\ncircumstances where the necessary information is not already available to it, the Company\nshall, promptly upon the request of the Agent or any Lender, supply such documentation and\nother evidence as is reasonably requested by the Agent or any Lender in order for the Agent\nor such Lender to carry out and be satisfied it has complied with the results of all\nnecessary \"know your customer\" or other similar checks under all applicable laws and\nregulations. Upon any such designation of a Subsidiary, such Subsidiary shall be a\nBorrowing Subsidiary and a Borrower entitled to borrow Revolving Credit Advances and\nCompetitive Bid Advances on and subject to the terms and conditions of this\n<\/p>\n\n
25\n<\/p>\n\n\n\n\n
Agreement.\n<\/p>\n\n\n
If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not\norganized under the laws of the United States or any State thereof, any Lender may,\nwith notice to the Agent and the Company, fulfill its Commitment by causing an\nAffiliate of such Lender to act as the Lender in respect of such Designated Subsidiary (and\nsuch Lender shall, to the extent of Advances made to and participations in Letters of Credit\nissued for the account of such Designated Subsidiary, be deemed for all purposes hereof to\nhave pro tanto <\/i>assigned such Advances and participations to such Affiliate in compliance\nwith the provisions of Section 8.07.\n\n<\/p>\n\n\n
As soon as practicable after receiving notice from the Company or the Agent of the Company\u0092s\nintent to designate a Subsidiary as a Designated Borrower, and in any event no later than\nfive Business Days after the delivery of such notice, for a Designated Subsidiary that is\norganized under the laws of a jurisdiction other than of the United States or a political\nsubdivision thereof, any Lender that may not legally lend to, establish credit for the\naccount of and\/or do any business whatsoever with such Designated Subsidiary directly or\nthrough an Affiliate of such Lender as provided in the immediately preceding paragraph (a\n\"Protesting Lender\") shall so notify the Company and the Agent in writing. With respect to\neach Protesting Lender, the Company shall, effective on or before the date that such\nDesignated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent\nand such Protesting Lender that the Commitments of such Protesting Lender shall be\nterminated; provided<\/u> that such Protesting Lender shall have received payment of an\namount equal to the outstanding principal of its Advances and\/or Letter of Credit\nreimbursement obligations, accrued interest thereon, accrued fees and all other amounts\npayable to it hereunder, from the assignee (to the extent of such outstanding principal and\naccrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case\nof all other amounts), or (B) cancel its request to designate such Subsidiary as a\n\"Designated Subsidiary\" hereunder.\n<\/p>\n\n
     (b) If all principal of and interest on all Advances made to any Borrowing Subsidiary\nhave been paid in full, the Company may terminate the status of such Borrowing Subsidiary as\na Borrower hereunder by furnishing to the Agent a letter (a \"Termination Letter<\/u>\") in\nsubstantially the form of Exhibit E, duly completed and executed by the Company. Any\nTermination Letter furnished hereunder shall be effective upon receipt by the Agent, which\nshall promptly notify the Lenders, whereupon the Lenders shall, upon payment in full of all\namounts owing by such Borrower hereunder, promptly deliver to the Company (through the\nAgent) the Notes, if any, of such former Borrower. Notwithstanding the foregoing, the\ndelivery of a Termination Letter with respect to any Borrower shall not terminate (i) any\nobligation of such Borrower that remains unpaid at the time of such delivery (including\nwithout limitation any obligation arising thereafter in respect of such Borrower under\nSection 2.11 or 2.14) or (ii) the obligations of the Company under Article IX with respect\nto any such unpaid obligations; provided that if the status of such Borrowing Subsidiary has\nbeen terminated as aforesaid because the Company has sold or transferred its interest in\nsuch Subsidiary, and the Company so certifies to the Agent at the time of the delivery of\nsuch Termination Letter, and subject to payment of said principal and interest, (i) such\nSubsidiary shall automatically, upon the effectiveness of the delivery, of such Termination\nLetter and certification, cease to have any obligation under this Agreement or the Notes and\n(ii) the Company shall automatically be deemed to have unconditionally assumed, as primary\nobligor, and hereby agrees to pay and perform, all of such obligations.\n<\/p>\n\n
26\n<\/p>\n\n\n\n\n
          Section 2.18 <\/b>Letters of Credit<\/b><\/u>.<\/b>\n<\/p>\n\n\n
          (a) The Letter of Credit Commitment.\n\n<\/p>\n\n\n
     (i) Subject to the terms and conditions set forth herein, (A) the L\/C Issuer\nagrees, in reliance upon the agreements of the other Lenders set forth in this\nSection 2.18, (1) from time to time on any Business Day during the period from the\nEffective Date to the Letter of Credit Expiration Date, to issue Letters of Credit\nfor the account of the Company or any of its Subsidiaries, and to amend or extend\nLetters of Credit previously issued by it, in accordance with subsection (b) below,\nand (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally\nagree to participate in Letters of Credit issued for the account of the Company or\nits Subsidiaries and any drawings thereunder; provided<\/u> that after giving\neffect to any L\/C Credit Extension with respect to any Letter of Credit, (x) the sum\nof (1) the aggregate principal amount of the Advances outstanding plus (2) all\noutstanding L\/C Obligations shall not exceed the aggregate amount of the Commitments\nof the Lenders, (y) the aggregate principal amount of the Revolving Credit Advances\nof any Lender, plus<\/u> such Lender\u0092s L\/C Participation Percentage of the\noutstanding L\/C Obligations shall not exceed such Lender\u0092s Commitment or (z) the\noutstanding L\/C Obligations shall not exceed the Letter of Credit Sublimit. Each\nrequest by the Company for the issuance or amendment of a Letter of Credit shall be\ndeemed to be a representation by the Company that the L\/C Credit Extension so\nrequested complies with the conditions set forth in the proviso to the preceding\nsentence. Within the foregoing limits, and subject to the terms and conditions\nhereof, the Company\u0092s ability to obtain Letters of Credit shall be fully revolving,\nand accordingly the Company may, during the foregoing period, obtain Letters of\nCredit to replace Letters of Credit that have expired or that have been drawn upon\nand reimbursed.\n\n<\/p>\n\n\n
     (ii) The L\/C Issuer shall not issue any Letter of Credit if:\n<\/p>\n\n\n
     (A) subject to Section 2.18(b)(iii), the expiry date of such requested\nLetter of Credit would occur more than twelve months after the date of\nissuance or last extension, unless the Required Lenders have approved such\nexpiry date; or\n<\/p>\n\n\n
     (B) the expiry date of such requested Letter of Credit would occur\nafter the Letter of Credit Expiration Date, unless all the Lenders have\napproved such expiry date.\n<\/p>\n\n\n
     (iii) The L\/C Issuer shall not be under any obligation to issue any Letter of\nCredit if:\n\n<\/p>\n\n\n
     (A) any order, judgment or decree of any governmental authority or\narbitrator shall by its terms purport to enjoin or restrain the L\/C Issuer\nfrom issuing such Letter of Credit, or any laws, rules regulations and\norders applicable to the L\/C Issuer or any request or directive (whether or\nnot having the force of law) from any governmental authority with\njurisdiction over the L\/C Issuer shall prohibit, or request that the L\/C\nIssuer refrain from, the issuance of letters of credit generally or such\nLetter of Credit in particular or shall impose upon the L\/C Issuer with\nrespect to such Letter of Credit any restriction, reserve or capital\nrequirement (for which the L\/C Issuer is not otherwise compensated\nhereunder) not in effect on the date of this Agreement, or shall impose upon\nthe L\/C Issuer any unreimbursed loss, cost or expense which was not\napplicable on the date of\n<\/p>\n\n
27\n<\/p>\n\n\n\n\n
this Agreement and which the L\/C Issuer in good\nfaith deems material to it;\n\n<\/p>\n\n\n
     (B) the issuance of such Letter of Credit would violate any laws, rules\nregulations and orders or one or more policies of the L\/C Issuer;\n<\/p>\n\n\n
     (C) except as otherwise agreed by the Agent and the L\/C Issuer, such\nLetter of Credit is in an initial face amount less than $100,000, in the\ncase of a commercial Letter of Credit, or $100,000, in the case of a standby\nLetter of Credit;\n<\/p>\n\n\n
     (D) such Letter of Credit is to be denominated in a currency other than\nU.S. dollars;\n<\/p>\n\n\n
     (E) such Letter of Credit contains any provisions for automatic\nreinstatement of the stated amount after any drawing thereunder; or\n<\/p>\n\n\n
     (F) a default of any Lender\u0092s obligations to fund under Section 2.18(c)\nexists or any Lender has otherwise failed to comply with any of its funding\nobligations hereunder, unless the L\/C Issuer has entered into satisfactory\narrangements with the Borrower or such Lender to eliminate the L\/C Issuer\u0092s\nrisk with respect to such Lender.\n<\/p>\n\n\n
     (iv) The L\/C Issuer shall not amend any Letter of Credit if the L\/C Issuer\nwould not be permitted at such time to issue such Letter of Credit in its amended\nform under the terms hereof.\n<\/p>\n\n\n
     (v) The L\/C Issuer shall be under no obligation to amend any Letter of Credit\nif (A) the L\/C Issuer would have no obligation at such time to issue such Letter of\nCredit in its amended form under the terms hereof, or (B) the beneficiary of such\nLetter of Credit does not accept the proposed amendment to such Letter of Credit.\n<\/p>\n\n\n
     (b) Procedures for Issuance and Amendment of Letters of Credit.<\/u>\n<\/p>\n\n\n
     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon\nthe request of the Company delivered to the L\/C Issuer (with a copy to the Agent) in\nthe form of a Letter of Credit Application, appropriately completed and signed by\nthe Company. Such Letter of Credit Application must be received by the L\/C Issuer\nand the Agent not later than 11:00 a.m. at least five (5) Business Days (or such\nlater date and time as the Agent and the L\/C Issuer may agree in a particular\ninstance in their sole discretion) prior to the proposed issuance date or date of\namendment, as the case may be. In the case of a request for an initial issuance of\na Letter of Credit, such Letter of Credit Application shall specify in form and\ndetail satisfactory to the L\/C Issuer: (A) the proposed issuance date of the\nrequested Letter of Credit (which shall be a Business Day); (B) the amount thereof;\n(C) the expiry date thereof; (D) the name and address of the beneficiary thereof;\n(E) the documents to be presented by such beneficiary in case of any drawing\nthereunder; (F) the full text of any certificate to be presented by such beneficiary\nin case of any drawing thereunder; and (G) such other matters as the L\/C Issuer may\nrequire. In the case of a request for an amendment of any outstanding Letter of\nCredit, such Letter of Credit Application shall specify in form and detail\nsatisfactory to the L\/C Issuer (A) the Letter of Credit to be amended; (B) the\nproposed date of amendment thereof (which shall be a Business Day); (C) the nature\nof the proposed amendment; and\n\n<\/p>\n\n
28\n<\/p>\n\n\n\n\n
(D) such other matters as the L\/C Issuer may require.\nAdditionally, the Company shall furnish to the L\/C Issuer and the Agent such other\ndocuments and information pertaining to such requested Letter of Credit issuance or\namendment, including any Issuer Documents, as the L\/C Issuer or the Agent may\nrequire.\n<\/p>\n\n\n
     (ii) Promptly after receipt of any Letter of Credit Application, the L\/C Issuer\nwill confirm with the Agent (by telephone or in writing) that the Agent has received\na copy of such Letter of Credit Application from the Company and, if not, the L\/C\nIssuer will provide the Agent with a copy thereof. Unless the L\/C Issuer has\nreceived written notice from any Lender, the Agent or the Company, at least one\nBusiness Day prior to the requested date of issuance or amendment of the applicable\nLetter of Credit, that one or more applicable conditions contained in Article\nIII<\/u> shall not be satisfied, then, subject to the terms and conditions hereof,\nthe L\/C Issuer shall, on the requested date, issue a Letter of Credit for the\naccount of the Company or the applicable Subsidiary or enter into the applicable\namendment, as the case may be, in each case in accordance with the L\/C Issuer\u0092s\nusual and customary business practices. Immediately upon the issuance of each\nLetter of Credit, each Lender shall be deemed to, and hereby irrevocably and\nunconditionally agrees to, purchase from the L\/C Issuer a risk participation in such\nLetter of Credit in an amount equal to the product of such Lender\u0092s L\/C\nParticipation Percentage times<\/u> the amount of such Letter of Credit. Each\nLender acknowledges and agrees that its participation in each Letter of Credit will\nbe automatically adjusted to reflect such Lender\u0092s L\/C Participation Percentage at\neach time such Lender\u0092s Revolving Credit Commitment is amended pursuant to a\nCommitment Increase in accordance with Section 2.05(c), an assignment in accordance\nwith Section 8.07 or otherwise pursuant to this Agreement.\n<\/p>\n\n\n
     (iii) Promptly after its delivery of any Letter of Credit or any amendment to a\nLetter of Credit to an advising bank with respect thereto or to the beneficiary\nthereof, the L\/C Issuer will also deliver to the Company and the Agent a true and\ncomplete copy of such Letter of Credit or amendment.\n<\/p>\n\n\n
     (c) Drawings and Reimbursements; Funding of Participations<\/u>.\n<\/p>\n\n\n
     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of\ndrawing under such Letter of Credit, the L\/C Issuer shall notify the Company and the\nAgent thereof. Not later than 2:00 p.m. on the date of any payment by the L\/C\nIssuer under a Letter of Credit (each such date, an \"Honor Date<\/u>\") (provided\nthat the L\/C Issuer notifies the Company of the related drawing prior to 12:00 noon\non such Honor Date), the Company shall reimburse the L\/C Issuer through the Agent in\nan amount equal to the amount of such drawing; if such notice is received by the\nCompany after 12:00 noon on the Honor Date, the Company shall make such\nreimbursement to the L\/C Issuer on or before 11:00 a.m. on the next succeeding\nBusiness Day after the Honor Date together with interest on such amount accrued from\nthe Honor Date at the Base Rate. If the Company fails to so reimburse the L\/C\nIssuer by such time, the Agent shall promptly notify each Lender of the Honor Date,\nthe amount of the unreimbursed drawing (the \"Unreimbursed Amount<\/u>\"), and the\namount of such Lender\u0092s L\/C Participation Percentage thereof. In such event, the\nCompany shall be deemed to have requested a Revolving Credit Borrowing of Base Rate\nAdvances to be disbursed on the Honor Date in an amount equal to the Unreimbursed\nAmount, without regard to the minimum and multiples specified in Section 2.01 for\nthe principal amount of Revolving Credit Borrowings, but subject to the amount of\nthe unutilized portion of the aggregate amount\n\n<\/p>\n\n
29\n<\/p>\n\n\n\n\n
of the Commitments of all the\nLenders and the conditions set forth in Section 3.02 (other than the delivery of a\nNotice of Revolving Credit Borrowing). Any notice given by the L\/C Issuer or the\nAgent pursuant to this Section 2.18(c)(i) may be given by telephone if immediately\nconfirmed in writing; provided<\/u> that the lack of such an immediate\nconfirmation shall not affect the conclusiveness or binding effect of such notice.\n\n<\/p>\n\n\n
     (ii) Each Lender (including the Lender acting as L\/C Issuer) shall upon any\nnotice pursuant to Section 2.18(c)(i) make funds available to the Agent for the\naccount of the L\/C Issuer at the Agent\u0092s Account in an amount equal to its L\/C\nParticipation Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the\nBusiness Day specified in such notice by the Agent, whereupon, subject to the\nprovisions of Section 2.18(c)(iii), each Lender that so makes funds available shall\nbe deemed to have made a Base Rate Advance to the Company in such amount. The Agent\nshall remit the funds so received to the L\/C Issuer.\n<\/p>\n\n\n
     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a\nRevolving Credit Borrowing of Base Rate Advances because the conditions set forth in\nSection 3.02<\/u> cannot be satisfied or for any other reason, the Borrower shall\nbe deemed to have incurred from the L\/C Issuer an L\/C Borrowing in the amount of the\nUnreimbursed Amount that is not so refinanced, which L\/C Borrowing shall be due and\npayable on demand (together with interest) and shall bear interest at the Base Rate.\nIn such event, each Lender\u0092s payment to the Agent for the account of the L\/C Issuer\npursuant to Section 2.18(c)(ii) shall be deemed payment in respect of its\nparticipation in such L\/C Borrowing and shall constitute an L\/C Advance from such\nLender in satisfaction of its participation obligation under this Section 2.18.\n\n<\/p>\n\n\n
     (iv) Until each Lender funds its Revolving Credit Advance or L\/C Advance\npursuant to this Section 2.18(c) to reimburse the L\/C Issuer for any amount drawn\nunder any Letter of Credit, interest in respect of such Lender\u0092s L\/C Participation\nPercentage of such amount shall be solely for the account of the L\/C Issuer.\n<\/p>\n\n\n
     (v) Each Lender\u0092s obligation to make Revolving Credit Advances or L\/C Advances\nto reimburse the L\/C Issuer for amounts drawn under Letters of Credit, as\ncontemplated by this Section 2.18(c), shall be absolute and unconditional and shall\nnot be affected by any circumstance, including (A) any set-off, counterclaim,\nrecoupment, defense or other right which such Lender may have against the L\/C\nIssuer, the Company or any other Person for any reason whatsoever; (B) the\noccurrence or continuance of a Default, or (C) any other occurrence, event or\ncondition, whether or not similar to any of the foregoing; provided<\/u>,\n\nhowever<\/u>, that each Lender\u0092s obligation to make Revolving Credit Advances\npursuant to this Section 2.18(c) is subject to the conditions set forth in Section\n3.02 (other than delivery by the Company of a Notice of Revolving Credit Borrowing).\nNo such making of an L\/C Advance shall relieve or otherwise impair the obligation\nof the Company to reimburse the L\/C Issuer for the amount of any payment made by the\nL\/C Issuer under any Letter of Credit, together with interest as provided herein.\n<\/p>\n\n\n
     (vi) If any Lender fails to make available to the Agent for the account of the\nL\/C Issuer any amount required to be paid by such Lender pursuant to the foregoing\nprovisions of this Section 2.18(c) by the time specified in Section 2.18(c)(ii), the\nL\/C Issuer shall be entitled to recover from such Lender (acting through the Agent),\non demand, such amount with interest thereon for the period from the date such\npayment is\n<\/p>\n\n
30\n<\/p>\n\n\n\n
required to the date on which such payment is immediately available to\nthe L\/C Issuer at a rate per annum equal to the Federal Funds Rate from time to time\nin effect. A certificate of the L\/C Issuer submitted to any Lender (through the\nAgent) with respect to any amounts owing under this clause (vi) shall be conclusive\nabsent manifest error.\n<\/p>\n\n\n
     (d) Repayment of Participations<\/u>.\n<\/p>\n\n\n
     (i) At any time after the L\/C Issuer has made a payment under any Letter of\nCredit and has received from any Lender such Lender\u0092s L\/C Advance in respect of such\npayment in accordance with Section 2.18(c), if the Agent receives for the account of\nthe L\/C Issuer any payment in respect of the related Unreimbursed Amount or interest\nthereon (whether directly from the Company or otherwise, including proceeds of cash\ncollateral applied thereto by the Agent), the Agent will distribute to such Lender\nits L\/C Participation Percentage thereof (appropriately adjusted, in the case of\ninterest payments, to reflect the period of time during which such Lender\u0092s L\/C\nAdvance was outstanding) in the same funds as those received by the Agent.\n\n<\/p>\n\n\n
     (ii) If any payment received by the Agent for the account of the L\/C Issuer\npursuant to Section 2.18(c)(i) is subsequently invalidated, declared to be\nfraudulent or preferential, set aside or required (including pursuant to any\nsettlement entered into by the Agent or such Lender in its discretion) to be repaid\nto a trustee, receiver or any other party, in connection with any proceeding under\nany law relating to bankruptcy, insolvency or reorganization or relief of debtors or\notherwise (including pursuant to any settlement entered into by the L\/C Issuer in\nits discretion), each Lender shall pay to the Agent for the account of the L\/C\nIssuer its L\/C Participation Percentage thereof on demand of the Agent, plus\ninterest thereon from the date of such demand to the date such amount is returned by\nsuch Lender, at a rate per annum equal to the Federal Funds Rate from time to time\nin effect.\n<\/p>\n\n\n
     (e) Obligations Absolute<\/u>. The obligation of the Company to reimburse the L\/C\nIssuer for each drawing under each Letter of Credit and to repay each L\/C Borrowing shall be\nabsolute, unconditional and irrevocable, and shall be paid strictly in accordance with the\nterms of this Agreement under all circumstances, including the following:\n<\/p>\n\n\n
     (i) any lack of validity or enforceability of such Letter of Credit, this\nAgreement or any other Loan Documents;\n<\/p>\n\n
     (ii) the existence of any claim, counterclaim, set-off, defense or other right\nthat the Company or any Subsidiary may have at any time against any beneficiary or\nany transferee of such Letter of Credit (or any Person for whom any such beneficiary\nor any such transferee may be acting), the L\/C Issuer or any other Person, whether\nin connection with this Agreement, the transactions contemplated hereby or by such\nLetter of Credit or any agreement or instrument relating thereto, or any unrelated\ntransaction;\n<\/p>\n\n\n
     (iii) any draft, demand, certificate or other document presented by the\nbeneficiary under such Letter of Credit proving to be forged, fraudulent or\ninsufficient in any respect or any statement therein being untrue or inaccurate in\nany respect; or any loss or delay in the transmission or otherwise of any document\nrequired in order to make a drawing under such Letter of Credit;\n<\/p>\n\n\n
     (iv) any payment by the L\/C Issuer under such Letter of Credit against\n<\/p>\n\n
31\n<\/p>\n\n\n\n\n
presentation of a draft or certificate that does not strictly comply with the terms\nof such Letter of Credit; or any payment made by the L\/C Issuer under such Letter of\nCredit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession,\nassignee for the benefit of creditors, liquidator, receiver or other representative\nof or successor to any beneficiary or any transferee of such Letter of Credit,\nincluding any arising in connection with any proceeding under any law relating to\nbankruptcy, insolvency or reorganization or relief of debtors; or\n<\/p>\n\n\n
     (v) any other circumstance or happening whatsoever, whether or not similar to\nany of the foregoing, including any other circumstance that might otherwise\nconstitute a defense available to, or a discharge of, the Company or any Subsidiary.\n<\/p>\n\n\n
     The Company shall promptly examine a copy of each Letter of Credit and each amendment\nthereto that is delivered to it and, in the event of any claim of noncompliance with the\nCompany\u0092s instructions or other irregularity, the Company will immediately notify the L\/C\nIssuer. The Company shall be conclusively deemed to have waived any such claim against the\nL\/C Issuer and its correspondents unless such notice is given as aforesaid.\n\n<\/p>\n\n\n
     (f) Role of L\/C Issuer<\/u>. Each Lender and the Company agree that, in paying any\ndrawing under a Letter of Credit, the L\/C Issuer shall not have any responsibility to obtain\nany document (other than any sight draft, certificates and documents expressly required by\n\nsuch Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such\ndocument or the authority of the Person executing or delivering any such document. None of\nthe L\/C Issuer, the Agent or any of the respective correspondents, participants or assignees\nof the L\/C Issuer shall be liable to any Lender for (i) any action taken or omitted in\nconnection herewith at the request or with the approval of the Lenders or the Required\nLenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence\nor willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability\nof any document or instrument related to any Letter of Credit or Letter of Credit\nApplication. The Company hereby assumes all risks of the acts or omissions of any\nbeneficiary or transferee with respect to its use of any Letter of Credit; provided<\/u>,\nhowever<\/u>, that this assumption is not intended to, and shall not, preclude the\nCompany\u0092s pursuing such rights and remedies as it may have against the beneficiary or\ntransferee at law or under any other agreement. None of the L\/C Issuer, the Agent or any of\nthe respective correspondents, participants or assignees of the L\/C Issuer, shall be liable\nor responsible for any of the matters described in clauses (i) through (v) of Section\n2.18(e); provided<\/u>, however<\/u>, that anything in such clauses to the contrary\nnotwithstanding, the Company may have a claim against the L\/C Issuer, and the L\/C Issuer may\nbe liable to the Company, to the extent, but only to the extent, of any direct, as opposed\nto consequential or exemplary, damages suffered by the Company which the Company proves were\ncaused by the L\/C Issuer\u0092s willful misconduct or gross negligence or the L\/C Issuer\u0092s\nwillful failure to pay under any Letter of Credit after the presentation to it by the\nbeneficiary of a sight draft and certificate(s) strictly complying with the terms and\nconditions of a Letter of Credit unless the L\/C Issuer is prevented or prohibited from so\npaying as a result of any order or directive of any court or other governmental authority.\nIn furtherance and not in limitation of the foregoing, the L\/C Issuer may accept documents\nthat appear on their face to be in order, without responsibility for further investigation,\nregardless of any notice or information to the contrary, and the L\/C Issuer shall not be\nresponsible for the validity or sufficiency of any instrument transferring or assigning or\npurporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or\nproceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any\nreason.\n\n<\/p>\n\n\n
     (g) Cash Collateral<\/u>. Upon the request of the Agent, (i) if the L\/C Issuer has\nhonored\n<\/p>\n\n
32\n<\/p>\n\n\n\n\n
any full or partial drawing request under any Letter of Credit and such drawing has\nresulted in an L\/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any\nLetter of Credit for any reason remains outstanding and partially or wholly undrawn, the\nCompany shall immediately Cash Collateralize the then outstanding amount of all L\/C\nObligations (determined as of the date of such L\/C Borrowing or the Letter of Credit\nExpiration Date, as the case may be). Sections 2.05, 2.06(b) and 6.01 set forth certain\nadditional requirements to deliver Cash Collateral hereunder. For purposes of this Section\n2.18, Section 2.05, Section 2.06(b) and Section 6.01, \"Cash Collateralize<\/u>\" means to\npledge and deposit with or deliver to the Agent, for the benefit of the L\/C Issuer and the\nLenders, as collateral for the L\/C Obligations, cash or deposit account balances pursuant to\ndocumentation in form and substance satisfactory to the Agent and the L\/C Issuer (which\ndocuments are hereby consented to by the Lenders). Derivatives of such term have\ncorresponding meanings. The Company hereby grants to the Agent, for the benefit of the L\/C\nIssuer and the Lenders, a security interest in all such cash, deposit accounts and all\nbalances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in\nblocked, non-interest bearing deposit accounts with the Agent.\n<\/p>\n\n\n
     (h) Applicability of ISP98 and UCP<\/u>. Unless otherwise expressly agreed by the\nL\/C Issuer and the Company when a Letter of Credit is issued, (i) the rules of the ISP shall\napply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and\nPractice for Documentary Credits, as most recently published by the International Chamber of\nCommerce at the time of issuance shall apply to each commercial Letter of Credit.\n\n<\/p>\n\n\n
     (i) Letter of Credit Fees<\/u>. The Company shall pay to the Agent for the account\nof each Lender in accordance with its L\/C Participation Percentage a Letter of Credit fee\n(the \"Letter of Credit Fee<\/u>\") for each Letter of Credit equal to 0.135% times<\/u>\nthe daily maximum amount available to be drawn under such Letter of Credit (whether or not\nsuch maximum amount is then in effect under such Letter of Credit). Letter of Credit Fees\nshall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first\nBusiness Day after the end of each March, June, September and December, commencing with the\nfirst such date to occur after the issuance of such Letter of Credit, on the Letter of\nCredit Expiration Date and thereafter on demand. Notwithstanding anything to the contrary\ncontained herein, upon the request of the Required Lenders, while any Event of Default\nexists, all Letter of Credit Fees shall accrue at the Default Rate.\n<\/p>\n\n\n
     (j) Fronting Fee and Documentary and Processing Charges Payable to L\/C Issuer<\/u>.\nThe Company shall pay directly to the L\/C Issuer, for its own account, (i) a one-time\nfronting fee with respect to each commercial Letter of Credit in an amount equal to 0.115%\nper annum times the amount of such commercial Letter of Credit, due and payable at the time\nof issuance and (ii) a fronting fee with respect to each standby Letter of Credit in an\namount equal to 0.115% per annum on the daily maximum amount available to be drawn\nthereunder (whether or not such maximum amount is then in effect under such Letter of\nCredit), due and payable quarterly in arrears on the first Business Day after the end of\neach March, June, September and December, commencing with the first such date to occur after\nthe issuance of such standby Letter of Credit, on the Letter of Credit Expiration Date and\nthereafter on demand. In addition, the Company shall pay directly to the L\/C Issuer for its\nown account the customary issuance, presentation, amendment and other processing fees, and\nother standard costs and charges, of the L\/C Issuer relating to letters of credit as from\ntime to time in effect. Such customary fees and standard costs and charges are due and\npayable on demand and are nonrefundable.\n\n<\/p>\n\n\n
     (k) Conflict with Issuer Documents<\/u>. In the event of any conflict between the\nterms hereof and the terms of any Issuer Document, the terms hereof shall control.\n<\/p>\n\n
33\n<\/p>\n\n\n\n
     (l) Letters of Credit Issued for Subsidiaries<\/u>. Notwithstanding that a Letter\nof Credit issued or outstanding hereunder is in support of any obligations of, or is for the\naccount of, a Subsidiary, the Company shall be obligated to reimburse the L\/C Issuer\nhereunder for any and all drawings under such Letter of Credit. The Company hereby\nacknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures\nto the benefit of the Company, and that the Company\u0092s business derives substantial benefits\nfrom the businesses of such Subsidiaries.\n<\/p>\n\n
ARTICLE III<\/b>\n<\/p>\n\n
CONDITIONS TO EFFECTIVENESS AND LENDING<\/b>\n<\/p>\n\n\n\n
     Section 3.01 <\/b>Conditions Precedent to Effectiveness of Sections 2.01, 2.03 and 2.18<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     Sections 2.01, 2.03 and 2.18 of this Agreement shall become effective on and as of the first\ndate (the \"Effective Date<\/u>\") on which the following conditions precedent have been\nsatisfied:\n<\/p>\n\n\n
     (a) As of the Effective Date, there shall have occurred no Material Adverse Change\nsince December 31, 2005 that has not been publicly disclosed.\n\n<\/p>\n\n\n
     (b) As of the Effective Date, there shall exist no action, suit, investigation,\nlitigation or proceeding affecting the Company or any of its Subsidiaries pending or, to the\nknowledge of the Company\u0092s executive officers, threatened before any court, governmental\nagency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect\nor (ii) could reasonably be likely to affect the legality, validity or enforceability of\nthis Agreement or any Note or the consummation of the transactions contemplated hereby.\n<\/p>\n\n\n
     (c) As of the Effective Date, nothing shall have come to the attention of the Lenders\nduring the course of their due diligence investigation to lead them to believe that the\nInformation Memorandum was or has become misleading, incorrect or incomplete in any material\nrespect.\n<\/p>\n\n\n
     (d) As of the Effective Date, all governmental and third party consents and approvals\nnecessary in connection with the transactions contemplated hereby shall have been obtained\n(without the imposition of any conditions that are not acceptable to the Lenders) and shall\nremain in effect.\n<\/p>\n\n
     (e) As of the Effective Date, the Company shall have paid all accrued fees and expenses\nof the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the\naccrued fees and expenses of counsel to the Agent).\n<\/p>\n\n\n
     (f) On the Effective Date, the following statements shall be true and the Agent shall\nhave received for the account of each Lender a certificate signed by a duly authorized\nofficer of the Company, dated the Effective Date, stating that:\n<\/p>\n\n\n
     (i) The representations and warranties contained in Section 4.01 are correct on\nand as of the Effective Date, and\n<\/p>\n\n\n
     (ii) No event has occurred and is continuing that constitutes a Default.\n<\/p>\n\n\n
     (g) The Agent shall have received on or before the Effective Date the following,\n<\/p>\n\n
34\n<\/p>\n\n\n\n\n
each\ndated such date, in form and substance satisfactory to the Agent and (except for the\nRevolving Credit Notes) in sufficient copies for each Lender:\n<\/p>\n\n\n
     (i) The Revolving Credit Notes payable to the order of each Lender.\n<\/p>\n\n\n
     (ii) Certified copies of the resolutions of the Board of Directors of the\nCompany approving this Agreement and the Notes, and of all documents evidencing\nother necessary corporate action and governmental approvals, if any, with respect to\nthis Agreement and the Notes, including, without limitation, copies of the articles\nof incorporation and bylaws of the Company.\n<\/p>\n\n\n
     (iii) A certificate of the Secretary or an Assistant Secretary of the Company\ncertifying the names and true signatures of the officers of the Company authorized\nto sign this Agreement and the Notes and the other documents to be delivered\nhereunder.\n<\/p>\n\n\n
     (iv) A favorable opinion of Thomas H. Tamoney, Jr., Vice President and\nAssociate General Counsel of the Company, in form and substance reasonably\nsatisfactory to the Agent and the Lenders.\n<\/p>\n\n
     (v) A copy of the Indenture dated as of December 14, 1994 between the Company\nand JPMorgan Chase Bank, N.A. as successor to The Chase Manhattan Bank (National\nAssociation), Trustee (and all amendments thereto).\n<\/p>\n\n\n
     (h) The Agent shall have received evidence of (i) the termination of the commitments to\nmake extensions of credit to the Company and the Borrowing Subsidiaries by the lenders party\nto each of the Existing Credit Agreements and (ii) payment in full of all amounts owing\nunder each of the Existing Credit Agreements.\n<\/p>\n\n\n
     Section 3.02 <\/b>Conditions Precedent to Each Revolving Credit Borrowing and Each Letter of\nCredit Extension<\/b><\/u>.<\/b>\n\n<\/p>\n\n\n
     The obligation of each Lender to make a Revolving Credit Advance on the occasion of each\nRevolving Credit Borrowing and the obligations of the L\/C Issuer to make any Letter of Credit\nExtension shall be subject to the conditions precedent that the Effective Date shall have occurred\nand on the date of such Revolving Credit Borrowing or such Letter of Credit Extension:\n<\/p>\n\n\n
     (a) the following statements shall be true (and each of the giving of the applicable\nNotice of Revolving Credit Borrowing and the acceptance by any Borrower of the proceeds of\nsuch Revolving Credit Borrowing and each submission of a Letter of Credit Application shall\nconstitute a representation and warranty by the Company and such Borrower that on the date\nof such Borrowing or Letter of Credit Extension, as the case may be, such statements are\ntrue):\n<\/p>\n\n\n
     (i) The representations and warranties contained in Section 4.01 (except the\nrepresentations set forth in the last sentence of subsection (e) thereof and in\nsubsection (f) thereof (other than clause (ii) thereof)) are correct on and as of\nthe date of such Revolving Credit Borrowing or Letter of Credit Extension, as the\ncase may be, before and after giving effect to such Revolving Credit Borrowing or\nLetter of Credit Extension, as the case may be, and to the application of the\nproceeds therefrom, as though made on and as of such date, and\n\n<\/p>\n\n\n
     (ii) No event has occurred and is continuing, or would result from such\n<\/p>\n\n
35\n<\/p>\n\n\n\n\n
Revolving Credit Borrowing or Letter of Credit Extension, as the case may be, or\nfrom the application of the proceeds therefrom, that constitutes a Default; and\n\n<\/p>\n\n\n
     (b) the Agent shall have received the Notice of Revolving Credit Borrowing and\/or the\nL\/C Issuer shall have received the Letter of Credit Application, as the case may be, and\nsuch other approvals, opinions or documents as any Lender through the Agent may reasonably\nrequest, and, in the case of the first Borrowing by a Borrowing Subsidiary, the Agent shall\nhave received such Revolving Credit Notes, corporate documents, resolutions and legal\nopinions relating to such Borrowing Subsidiary as the Agent may reasonably require.\n<\/p>\n\n\n
     Section 3.03 <\/b>Conditions Precedent to Each Competitive Bid Borrowing<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     The obligation of each Lender that is to make a Competitive Bid Advance on the occasion of a\nCompetitive Bid Borrowing to make such Competitive Bid Advance as part of such Competitive Bid\nBorrowing is subject to the conditions precedent that (i) the Agent shall have received the written\nconfirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on or before the date\nof such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the Agent shall\nhave received a Competitive Bid Note payable to the order of such Lender for each of the one or\nmore Competitive Bid Advances to be made by such Lender as part of such Competitive Bid Borrowing,\nin a principal amount equal to the principal amount of the Competitive Bid Advance to be evidenced\nthereby and otherwise on such terms as were agreed to for such Competitive Bid Advance in\naccordance with Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the following\nstatements shall be true (and each of the giving of the applicable Notice of Competitive Bid\nBorrowing and the acceptance by any Borrower of the proceeds of such Competitive Bid Borrowing\nshall constitute a representation and warranty by the Company and such Borrower that on the date of\nsuch Competitive Bid Borrowing such statements are true):\n\n<\/p>\n\n\n
     (a) The representations and warranties contained in Section 4.01 (except the\nrepresentations set forth in the last sentence of subsection (e) thereof and in subsection\n(f) thereof (other than clause (ii) thereof)) are correct on and as of the date of such\nCompetitive Bid Borrowing, before and after giving effect to such Competitive Bid Borrowing\nand to the application of the proceeds therefrom, as though made on and as of such date,\n<\/p>\n\n\n
     (b) No event has occurred and is continuing, or would result from such Competitive Bid\nBorrowing or from the application of the proceeds therefrom, that constitutes a Default, and\n<\/p>\n\n\n
     (c) No event has occurred and no circumstance exists as a result of which the\ninformation concerning the Company that has been provided to the Agent and each Lender by\nthe Company in connection herewith would include an untrue statement of a material fact or\nomit to state any material fact or any fact necessary to make the statements contained\ntherein, in the light of the circumstances under which they were made, not misleading.\n<\/p>\n\n\n
     Section 3.04 <\/b>Determinations Under Section 3.01<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     For purposes of determining compliance with the conditions specified in Section 3.01, each\nLender shall be deemed to have consented to, approved or accepted or to be satisfied with each\ndocument or other matter required thereunder to be consented to or approved by or acceptable or\nsatisfactory to the Lenders unless an officer of the Agent responsible for the transactions\ncontemplated by this Agreement shall have received notice from such Lender prior to the proposed\nEffective Date, as notified by the Company to the Lenders, specifying its objection thereto. The\nAgent shall promptly notify the Lenders of the occurrence of the Effective Date.\n<\/p>\n\n
36\n<\/p>\n\n\n\n
ARTICLE IV<\/b>\n<\/p>\n\n
REPRESENTATIONS AND WARRANTIES<\/b>\n<\/p>\n\n\n\n
     Section 4.01 <\/b>Representations and Warranties of the Company<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     The Company represents and warrants as follows:\n<\/p>\n\n\n
     (a) The Company is a corporation duly organized, validly existing and in good standing\nunder the laws of the State of North Carolina.\n\n<\/p>\n\n\n
     (b) The execution, delivery and performance by the Company of this Agreement and the\nNotes, and the consummation of the transactions contemplated hereby, are within the\nCompany\u0092s corporate powers, have been duly authorized by all necessary corporate action, and\ndo not contravene (i) the Company\u0092s charter or by-laws or (ii) any law or any contractual\nrestriction binding on or materially affecting the Company.\n<\/p>\n\n\n
     (c) No authorization or approval or other action by, and no notice to or filing with,\nany governmental authority or regulatory body or any other third party is required for the\ndue execution, delivery and performance by the Company of this Agreement or the Notes.\n<\/p>\n\n\n
     (d) This Agreement has been, and each of the Notes when delivered hereunder will have\nbeen, duly executed and delivered by the Company. This Agreement is, and each of the Notes\nwhen delivered hereunder will be, the legal, valid and binding obligation of the Company\nenforceable against the Company in accordance with their respective terms.\n<\/p>\n\n\n
     (e) The Consolidated balance sheet of the Company and its Subsidiaries as at December\n31, 2005, and the related Consolidated statements of income and cash flows and common\nshareholders\u0092 equity of the Company and its Subsidiaries for the fiscal year then ended,\naccompanied by an opinion of KPMG LLP, independent registered public accounting firm,\npresent fairly, in all material respects, the Consolidated financial condition of the\nCompany and its Subsidiaries as at such date and the Consolidated results of the operations\nof the Company and its Subsidiaries for the year ended on such date, all in accordance with\nUnited States generally accepted accounting principles consistently applied. Since December\n31, 2005, there has been no Material Adverse Change.\n<\/p>\n\n\n
     (f) There is no pending or threatened action, suit, investigation, litigation or\nproceeding affecting the Company before any court, governmental agency or arbitrator that\n(i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be\nlikely to affect the legality, validity or enforceability of this Agreement or any Note or\nthe consummation of the transactions contemplated hereby.\n<\/p>\n\n\n
     (g) No proceeds of any Advance or Letter of Credit will be used to acquire any equity\nsecurity of a class that is registered pursuant to Section 12 of the Securities Exchange Act\nof 1934, other than equity securities issued by the Company.\n<\/p>\n\n\n
     (h) The Company is not engaged in the business of extending credit for the purpose of\npurchasing or carrying margin stock (within the meaning of Regulation U issued by the Board\nof Governors of the Federal Reserve System), and no proceeds of any Advance or Letter of\nCredit\n<\/p>\n\n
37\n<\/p>\n\n\n\n\n
will be used to purchase or carry any margin stock or to extend credit to others for\nthe purpose of purchasing or carrying any margin stock.\n\n<\/p>\n\n\n
     (i) Following application of the proceeds of each Advance and each Letter of Credit,\nnot more than 25 percent of the value of the assets (either of any Borrower only or of the\nCompany and its Subsidiaries on a consolidated basis) subject to the provisions of Section\n5.02(a) or (b) or subject to any restriction contained in any agreement or instrument\nbetween the Company and any Lender or any Affiliate of any Lender relating to Debt and\nwithin the scope of Section 6.01(d) will be margin stock.\n<\/p>\n\n\n
     (j) Neither the Company nor any of its Subsidiaries is an \"investment company\", a\ncompany \"controlled by\", or \"promoter\" or \"principal underwriter\" for, an \"investment\ncompany\", as such terms are defined in the Investment Company Act of 1940, as amended.\nNeither the making of any Advances nor the application of the proceeds or repayment thereof\nby any Borrower will violate any provision of such Act or any rule, regulation or order of\nthe Securities and Exchange Commission thereunder.\n\n<\/p>\n\n
ARTICLE V<\/b>\n<\/p>\n\n
COVENANTS OF THE COMPANY<\/b>\n<\/p>\n\n\n\n
     Section 5.01 <\/b>Affirmative Covenants<\/b><\/u>.<\/b>\n\n<\/p>\n\n\n
     So long as any Advance shall remain unpaid, any Letter of Credit shall remain outstanding or\nany Lender shall have any Commitment hereunder, the Company will:\n<\/p>\n\n\n
     (a) Compliance with Laws, Etc<\/u>. Comply, and cause each of its Subsidiaries to\ncomply, in all material respects, with all applicable laws, rules, regulations and orders,\nsuch compliance to include, without limitation, compliance with ERISA and Environmental\nLaws, except where failure so to comply would not, and would not be reasonably likely to,\nhave a Material Adverse Effect.\n<\/p>\n\n\n
     (b) Payment of Taxes, Etc<\/u>. Pay and discharge, and cause each of its\nSubsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,\nassessments and governmental charges or levies imposed upon it or upon its property and (ii)\nall lawful claims that, if unpaid, might by law become a Lien upon its property;\n\nprovided<\/u>, however<\/u>, that neither the Company nor any of its Subsidiaries\nshall be required to pay or discharge any such tax, assessment, charge or claim that is\nbeing contested in good faith and by proper proceedings and as to which appropriate reserves\nare being maintained, unless and until any Lien resulting therefrom attaches to its property\nand becomes enforceable against its other creditors and such Lien would be reasonably likely\nto have a Material Adverse Effect.\n<\/p>\n\n\n
     (c) Preservation of Corporate Existence, Etc<\/u>. Preserve and maintain, and cause\neach of its Material Subsidiaries to preserve and maintain, its corporate existence, rights\n(charter and statutory) and franchises; provided<\/u>, however<\/u>, that the Company\nand its Material Subsidiaries may consummate any merger or consolidation permitted under\nSection 5.02(b) and provided<\/u> further<\/u> that neither the Company nor any of its\nMaterial Subsidiaries shall be required to preserve any right or franchise if the Board of\nDirectors of the Company or such Subsidiary shall determine that the preservation thereof is\nno longer desirable in the conduct of the business of the Company or such Subsidiary, as the\ncase may be, and that the loss thereof is not disadvantageous in any\n\n<\/p>\n\n
38\n<\/p>\n\n\n\n\n
material respect to the\nCompany, such Subsidiary or the Lenders.\n<\/p>\n\n\n
     (d) Reporting Requirements<\/u>. Furnish to the Agent:\n\n<\/p>\n\n\n
     (i) as soon as available and in any event within 45 days after the end of each\nof the first three quarters of each fiscal year of the Company, the Consolidated\nbalance sheet of the Company and its Subsidiaries as of the end of such quarter and\nConsolidated statements of income and cash flows of the Company and its Subsidiaries\nfor the period commencing at the end of the previous fiscal year and ending with the\nend of such quarter, duly certified (subject to year-end audit adjustments) by the\nchief financial officer of the Company as having been prepared in accordance with\nGAAP, it being agreed that delivery of the Company\u0092s Quarterly Report on Form 10-Q\nwill satisfy this requirement;\n<\/p>\n\n\n
     (ii) as soon as available and in any event within 90 days after the end of each\nfiscal year of the Company, a copy of the annual audit report for such year for the\nCompany and its Subsidiaries, containing the Consolidated balance sheet of the\nCompany and its Subsidiaries as of the end of such fiscal year and Consolidated\nstatements of income and cash flows of the Company and its Subsidiaries for such\nfiscal year, in each case accompanied by an opinion acceptable to the Required\nLenders by KPMG LLP or other independent public accountants acceptable to the\nRequired Lenders, it being agreed that delivery, of the Company\u0092s Annual Report on\nForm 10-K will satisfy this requirement;\n<\/p>\n\n\n
     (iii) as soon as possible and in any event within five days after the\noccurrence of each Default continuing on the date of such statement, a statement of\nthe chief financial officer of the Company setting forth details of such Default and\nthe action that the Company has taken and proposes to take with respect thereto; and\n<\/p>\n\n\n
     (iv) promptly after the sending or filing thereof copies of all annual reports\nand proxy solicitations that the Company sends to any of its security holders, and\ncopies of all reports on Form 8-K that the Company or any Subsidiary files with the\nSecurities and Exchange Commission.\n<\/p>\n\n\n
Reports and financial statements required to be delivered by the Company pursuant to clauses\n(i), (ii) and (iv) of this subsection (d) shall be deemed to have been delivered on the date\non which the Company posts such reports, or reports containing such financial statements, on\nits website on the Internet at www.pepsico.com, at www.sec.gov or at such other website\nidentified by the Company in a notice to the Agent and that is accessible by the Lenders\nwithout charge; provided<\/u> that the Company shall deliver paper copies of such\ninformation to any Lender promptly upon request of such Lender through the Agent.\n<\/p>\n\n\n
     Section 5.02 <\/b>Negative Covenants<\/b><\/u>.<\/b>\n\n<\/p>\n\n\n
     So long as any Advance shall remain unpaid, any Letter of Credit shall remain outstanding or\n\nany Lender shall have any Commitment hereunder, the Company will not:\n<\/p>\n\n\n
     (a) Secured Debt<\/u>. Create or suffer to exist, or permit any of its Restricted\nSubsidiaries to create or suffer to exist, any Debt secured by a Lien on (i) any Principal\nProperty, (ii) any shares of stock of a Restricted Subsidiary or (iii) any Debt of any\nRestricted Subsidiary\n<\/p>\n\n
39\n<\/p>\n\n\n\n\n
unless the Company or such Restricted Subsidiary secures or causes\nsuch Restricted Subsidiary to secure the Advances and all other amounts payable under this\nAgreement and the Notes equally and ratably with such secured Debt, so long as such secured\nDebt shall be so secured, unless after giving effect thereto the aggregate amount of all\nsuch Debt so secured does not exceed 10% of Consolidated Net Tangible Assets at such time,\nprovided<\/u> that the foregoing restriction does not apply to Debt secured by:\n<\/p>\n\n\n
     (i) Liens existing prior to the date hereof;\n<\/p>\n\n\n
     (ii) Liens on property of, or on shares of stock of or Debt of, any corporation\nexisting at the time such corporation becomes a Restricted Subsidiary;\n<\/p>\n\n\n
     (iii) Liens in favor of the Company or any Restricted Subsidiary;\n<\/p>\n\n\n
     (iv) Liens in favor of any governmental bodies to secure progress or advance\npayments;\n<\/p>\n\n\n
     (v) Liens on property, shares of stock or Debt existing at the time of\nacquisition thereof (including acquisition through merger or consolidation) or to\nsecure the payment of all or any part of the purchase price thereof or construction\nthereon or to secure any Debt incurred prior to, at the time of, or within 120 days\nafter the later of the acquisition, the completion of construction, or the\ncommencement of full operation of such property or within 120 days after the\nacquisition of such shares or Debt for the purpose of financing all or any part of\nthe purchase price thereof or construction thereon; and\n\n<\/p>\n\n\n
     (vi) any extension, renewal or refunding referred to in the foregoing clauses\n(i) to (v), inclusive.\n<\/p>\n\n\n
     (b) Mergers, Etc<\/u>. (i) Merge or consolidate with or into, or permit any of\nits Subsidiaries to merge or consolidate with or into, any corporation, (ii) sell, lease,\ntransfer or otherwise dispose of all or any substantial part of its assets (except in the\nordinary course of business), whether now owned or hereafter acquired, (iii) acquire all or\nsubstantially all the a<\/b>ssets and assume all or substantially all the liabilities of any\nPerson, or permit any of its Subsidiaries to do so, or (iv) acquire any shares of the stock\nof any Person other than a Subsidiary of the Company, or permit any of its Subsidiaries to\ndo so, unless the Company or one of its Subsidiaries would be the acquiring or surviving\nparty in such transaction and no Default shall have occurred and be continuing at the time\nof such proposed transaction or would result therefrom. Notwithstanding the foregoing, the\nCompany may at any time sell or otherwise dispose of all the stock of any of its\nSubsidiaries (or substantially all the assets of any of its Subsidiaries) if the board of\ndirectors of the Company shall have determined that the retention of such stock or assets is\nno longer in the best interests of the Company and that such sale or disposition will not\nmaterially adversely affect the Consolidated financial condition of the Company and its\nSubsidiaries taken as a whole.\n\n<\/p>\n\n
40\n<\/p>\n\n\n\n
ARTICLE VI<\/b>\n<\/p>\n\n
EVENTS OF DEFAULT<\/b>\n\n<\/p>\n\n\n\n
     Section 6.01 <\/b>Events of Default<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     If any of the following events (\"Events of Default<\/u>\") shall occur and be continuing:\n<\/p>\n\n
     (a) Any Borrower shall fail to pay any principal of, or interest on, any Advance or any\nL\/C Obligation or to make any other payment under this Agreement or any Note, in each case\nwithin five days after the same becomes due and payable; or\n<\/p>\n\n\n
     (b) Any representation or warranty made by the Company herein or by any Borrower (or\nany of its officers) in connection with this Agreement (including without limitation by any\nBorrowing Subsidiary pursuant to any Designation Letter) shall prove to have been incorrect\nin any material respect when made; or\n<\/p>\n\n\n
     (c) (i) The Company shall fail to perform or observe any term, covenant or agreement\ncontained in Sections 5.01(d) or 5.02, or (ii) the Company shall fail to perform or observe\nany other term, covenant or agreement contained in this Agreement on its part to be\nperformed or observed if such failure shall remain unremedied for 30 days after written\nnotice thereof shall have been given to the Company by the Agent or any Lender; or\n<\/p>\n\n\n
     (d) The Company or any of its Subsidiaries shall fail to pay any principal of or\npremium or interest on any Debt that is outstanding in a principal or notional amount of at\nleast $100,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the\nCompany or such Subsidiary (as the case may be), when the same becomes due and payable\n(whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and\nsuch failure shall continue after the applicable grace period, if any, specified in the\nagreement or instrument relating to such Debt; or any other event shall occur or condition\nshall exist under any agreement or instrument relating to any such Debt and shall continue\nafter the applicable grace period, if any, specified in such agreement or instrument, if the\neffect of such event or condition is to accelerate the maturity of such Debt; or any such\nDebt shall be declared to be due and payable, or required to be prepaid or redeemed (other\nthan by a regularly scheduled required prepayment or redemption), purchased or defeased, or\nan offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in\neach case prior to the stated maturity thereof; or\n<\/p>\n\n\n
     (e) The Company or any of its Subsidiaries shall generally not pay its debts as\nsuch debts become due, or shall admit in writing its inability to pay its debts generally,\nor shall make a general assignment for the benefit of creditors; or any proceeding shall be\ninstituted by or against the Company or any of its Subsidiaries seeking to adjudicate it a\nbankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,\nadjustment, protection, relief, or composition of it or its debts under any law relating to\nbankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an\norder for relief or the appointment of a receiver, trustee, custodian or other similar\nofficial for it or for any substantial part of its property and, in the case of any such\nproceeding instituted against it (but not instituted by it), either such proceeding shall\nremain undismissed or unstayed for a period of 30 days, or any of the actions sought in such\nproceeding (including, without limitation, the entry of an order for relief against, or the\nappointment of a receiver, trustee, custodian or other similar official for, it or for any\nsubstantial part of its property) shall occur; or the Company or any of its Subsidiaries\nshall take any corporate action to authorize any of the actions set forth above in this\nsubsection (e); or\n<\/p>\n\n\n
41\n<\/p>\n\n\n\n
     (f) Any judgment or order for the payment of money in excess of $100,000,000 shall be\nrendered against the Company or any of its Material Subsidiaries and either (i) enforcement\nproceedings shall have been commenced by any creditor upon such judgment or order or (ii)\nthere shall be any period of 10 consecutive days during which a stay of enforcement of such\njudgment or order, by reason of a pending appeal or otherwise, shall not be in effect;\nprovided<\/u>, however<\/u>, that any such judgment or order shall not be an Event of\nDefault under this Section 6.01(f) if and for so long as (i) the amount of such judgment or\norder is covered by a valid and binding policy of insurance between the defendant and the\ninsurer covering payment thereof and (ii) such insurer, which shall be rated at least \"A\" by\nA.M. Best Company, has been notified of, and has not disputed the claim made for payment of,\nthe amount of such judgment or order; or\n\n<\/p>\n\n\n
     (g) Any event, action or condition with respect to an employee benefit plan of the\nCompany subject to Title IV of ERISA results in any penalty or action pursuant to ERISA that\nhas a material adverse effect on the business or financial condition of the Company and its\nSubsidiaries, taken as a whole;\n<\/p>\n
then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the\nRequired Lenders, by notice to the Company, declare the obligation of each Lender to make Advances\nand any obligation of the L\/C Issuer to make L\/C Credit Extensions to be terminated, whereupon the\nsame shall forthwith terminate, (ii) shall at the request, or may with the consent, of the Required\nLenders, by notice to the Company declare the Notes, all interest thereon and all other amounts\npayable under this Agreement to be forthwith due and payable, whereupon the Notes, all such\ninterest and all such amounts shall become and be forthwith due and payable, without presentment,\ndemand, protest or further notice of any kind, all of which are hereby expressly waived by the\nCompany and (iii) shall at the request, or may with the consent, of the Required Lenders, require\nthat the Company Cash Collateralize the L\/C Obligations; provided<\/u>, however<\/u>, that in\nthe event of an actual or deemed entry of an order for relief with respect to the Company or any\nBorrowing Subsidiary under the Federal Bankruptcy Code, (A) the obligation of each Lender to make\nAdvances and any obligation of the L\/C Issuer to make L\/C Credit Extensions shall automatically be\nterminated, (B) the Notes, all such interest and all such amounts shall automatically become and be\ndue and payable, without presentment, protest or any notice of any kind, all of which are hereby\nexpressly waived by the Company and (C) the obligation of the Company to Cash Collateralize the L\/C\nObligations as aforesaid shall automatically become effective without further act of the Agent or\nany Lender.\n\n<\/p>\n\n\n
ARTICLE VII<\/b>\n<\/p>\n\n\n
THE AGENT<\/b>\n\n<\/p>\n\n
     Section 7.01 <\/b>Authorization and Action.<\/b><\/u>\n\n<\/p>\n\n\n
     (a) Each Lender hereby appoints and authorizes the Agent to take such action as agent\non its behalf and to exercise such powers and discretion under this Agreement as are\ndelegated to the Agent by the terms hereof, together with such powers and discretion as are\nreasonably incidental thereto. As to any matters not expressly provided for by this\nAgreement (including, without limitation, enforcement or collection of the Notes), the Agent\nshall not be required to exercise any discretion or take any action, but shall be required\nto act or to refrain from acting (and shall be fully protected in so acting or refraining\nfrom acting) upon the instructions of the Required Lenders, and such instructions shall be\nbinding upon all Lenders and all holders of Notes; provided<\/u>, however<\/u>, that\nthe Agent shall not be required to take any action\n<\/p>\n\n
42\n<\/p>\n\n\n\n\n
that exposes the Agent to personal liability or that is contrary to this Agreement or\napplicable law. The Agent agrees to give to each Lender prompt notice of each notice given\nto it by the Company pursuant to the terms of this Agreement.\n<\/p>\n\n\n
     (b) The L\/C Issuer shall act on behalf of the Lenders with respect to any Letters of\nCredit issued by it and the documents associated therewith, and the L\/C Issuer shall have\nall of the benefits and immunities (i) provided to the Agent in this Article VII<\/u>\nwith respect to any acts taken or omissions suffered by the L\/C Issuer in connection with\nLetters of Credit issued by it or proposed to be issued by it and the applications and\nagreements for letters of credit pertaining to such Letters of Credit as fully as if the\nterm \"Agent\" as used in this Article VII<\/u> included the L\/C Issuer with respect to\nsuch acts or omissions, and (ii) as additionally provided herein with respect to the L\/C\nIssuer.\n\n<\/p>\n\n
     Section 7.02 <\/b>Agent\u0092s Reliance, Etc<\/b><\/u>.<\/b>\n<\/p>\n\n
     Neither the Agent nor any of its directors, officers, agents or employees shall be liable for\nany action taken or omitted to be taken by it or them under or in connection with this Agreement,\nexcept for its or their own gross negligence or willful misconduct. Without limitation of the\ngenerality of the foregoing, the Agent: (i) may treat the payee of any Note as the holder thereof\nuntil the Agent receives and accepts an Assignment and Assumption entered into by the Lender that\nis the payee of such Note, as assignor, and an Eligible Assignee, as assignee, as provided in\nSection 8.07; (ii) may consult with legal counsel (including counsel for the Company or any\nSubsidiary Borrower), independent public accountants and other experts selected by it and shall not\nbe liable for any action taken or omitted to be taken in good faith by it in accordance with the\nadvice of such counsel, accountants or experts; (iii) makes no warranty or representation to any\nLender and shall not be responsible to any Lender for any statements, warranties or representations\n(whether written or oral) made in or in connection with this Agreement; (iv) shall not have any\nduty to ascertain or to inquire as to the performance or observance of any of the terms, covenants\nor conditions of this Agreement on the part of any Borrower or to inspect the property (including\nthe books and records) of any Borrower; (v) shall not be responsible to any Lender for the due\nexecution, legality, validity, enforceability, genuineness, sufficiency or value of, or the\nperfection or priority of any lien or security interest created or purported to be created under or\nin connection with, this Agreement or any other instrument or document furnished pursuant hereto;\nand (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice,\nconsent, certificate or other instrument or writing (which may be by telecopier) believed by it to\nbe genuine and signed or sent by the proper party or parties.\n\n<\/p>\n\n
     Section 7.03 <\/b>Citibank and Affiliates<\/b><\/u>.<\/b>\n<\/p>\n\n
     With respect to its Commitment, the Advances made by it, the Letters of Credit issued by it\nand the Note issued to it, Citibank shall have the same rights and powers under this Agreement as\nany other Lender and may exercise the same as though it were not the Agent; and the term \"Lender\"\nor \"Lenders\" shall, unless otherwise expressly indicated, include Citibank in its individual\ncapacity. Citibank and its Affiliates may accept deposits from, lend money to, act as trustee\nunder indentures of, accept investment banking engagements from and generally engage in any kind of\nbusiness with, the Company, any of its Subsidiaries and any Person who may do business with or own\nsecurities of the Company or any such Subsidiary, all as if Citibank were not the Agent and without\nany duty to account therefor to the Lenders. The Agent shall have no duty to disclose information\nobtained or received by it or any of its Affiliates relating to the Company or its Subsidiaries to\nthe extent such information was obtained or received in any capacity other than as Agent.\n\n<\/p>\n\n
43\n<\/p>\n\n\n\n
     Section 7.04 <\/b>Lender Credit Decision<\/b><\/u>.<\/b>\n<\/p>\n\n
     Each Lender acknowledges that it has, independently and without reliance upon the Agent or any\nother Lender and based on the financial statements referred to in Section 4.01 and such other\ndocuments and information as it has deemed appropriate, made its own credit analysis and decision\nto enter into this Agreement. Each Lender also acknowledges that it will, independently and\nwithout reliance upon the Agent or any other Lender and based on such documents and information as\nit shall deem appropriate at the time, continue to make its own credit decisions in taking or not\ntaking action under this Agreement.\n<\/p>\n\n
     Section 7.05 <\/b>Indemnification<\/b><\/u>.<\/b>\n<\/p>\n\n
     The Lenders agree to indemnify the Agent (to the extent not reimbursed by the Company),\nratably according to the respective principal amounts of the Revolving Credit Notes then held by\neach of them (or if no Revolving Credit Notes are at the time outstanding or if any Revolving\nCredit Notes are held by Persons that are not Lenders, ratably according to the respective amounts\nof their Commitments), from and against any and all liabilities, obligations, losses, damages,\npenalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature\nwhatsoever that may be imposed on, incurred by, or asserted against the Agent in any way relating\nto or arising out of this Agreement or any action taken or omitted by the Agent under this\nAgreement; provided<\/u> that no Lender shall be liable for any portion of such liabilities,\nobligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or\ndisbursements resulting from the Agent\u0092s gross negligence or willful misconduct. Without\nlimitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its\nratable share of any out-of-pocket expenses (including counsel fees) incurred by the Agent in\nconnection with the preparation, execution, delivery, administration, modification, amendment or\nenforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in\nrespect of rights or responsibilities under, this Agreement, to the extent that the Agent is not\nreimbursed for such expenses by the Company.\n\n<\/p>\n\n
     Section 7.06 <\/b>Successor Agent<\/b><\/u>.<\/b>\n<\/p>\n\n
     The Agent may resign at any time by giving written notice thereof to the Lenders and the\nCompany and may be removed at any time with or without cause by the Required Lenders. Upon any\nsuch resignation or removal, the Required Lenders shall have the right to appoint a successor Agent\napproved by the Company, which approval shall not be unreasonably withheld or delayed. If no\nsuccessor Agent shall have been so appointed by the Required Lenders, and shall have accepted such\nappointment, within 30 days after the retiring Agent\u0092s giving of notice of resignation or the\nRequired Lenders\u0092 removal of the retiring Agent, then the retiring Agent may, on behalf of the\nLenders, appoint a successor Agent, which shall be a commercial bank organized under the laws of\nthe United States of America or of any State thereof and having a combined capital and surplus of\nat least $50,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor\nAgent, such successor Agent shall thereupon succeed to and become vested with all the rights,\npowers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be\ndischarged from its duties and obligations under this Agreement, but shall not be discharged from\nany duties or obligations under this Agreement prior to its retirement as Agent. After any\nretiring Agent\u0092s resignation or removal hereunder as Agent, the provisions of this Article VII\nshall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent\nunder this Agreement.\n\n<\/p>\n\n
     Section 7.07 <\/b>Syndication Agents and Lead Arrangers<\/b><\/u>.<\/b>\n<\/p>\n\n
     Without prejudice to the obligations of the Agent hereunder, the Syndication Agents and Lead\nArrangers, in their capacities as such, have no duties, obligations or responsibilities under this\nAgreement.\n<\/p>\n\n
44\n<\/p>\n\n\n\n
ARTICLE VIII<\/b>\n<\/p>\n\n\n
MISCELLANEOUS<\/b>\n\n<\/p>\n\n
     Section 8.01 <\/b>Amendments, Etc<\/b><\/u>.<\/b>\n\n<\/p>\n\n
     No amendment or waiver of any provision of this Agreement or the Revolving Credit Notes, nor\nconsent to any departure by any Borrower therefrom, shall in any event be effective unless the same\nshall be in writing and signed by the Company and the Required Lenders, and then such waiver or\nconsent shall be effective only in the specific instance and for the specific purpose for which\ngiven; provided<\/u>, however<\/u>, that no amendment, waiver or consent shall, unless in\nwriting and signed by all the Lenders affected thereby, do any of the following: (a) waive any of\nthe conditions specified in Section 3.01, (b) increase the Commitment of a Lender or subject a\nLender to any additional obligations, (c) reduce the principal of, or interest on, the Revolving\nCredit Notes or any fees or other amounts payable hereunder, (d) postpone any date fixed for any\npayment of principal of, or interest on, the Revolving Credit Notes or any fees or other amounts\npayable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid\nprincipal amount of the Revolving Credit Notes, or the number of Lenders, that shall be required\nfor the Lenders or any of them to take any action hereunder, (f) release the guarantee as set forth\nin Section 9.01, or (g) amend this Section 8.01; and provided<\/u> further<\/u> that (i) no\namendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the\nLenders required above to take such action, affect the rights or duties of the Agent under this\nAgreement or any Note and (ii) no amendment, waiver or consent shall, unless in writing and signed\nby the L\/C Issuer in addition to the Lenders required above to take such action, affect the rights\nor duties of the L\/C Issuer under this Agreement or any Letter of Credit Application relating to\nany Letter of Credit issued or to be issued by it.\n\n<\/p>\n\n
     Section 8.02 <\/b>Notices, Etc<\/b><\/u>.<\/b>\n<\/p>\n\n
     All notices and other communications provided for hereunder shall be either (x) in writing\n(including telecopier communication) and mailed, telecopied, or delivered or (y) as and to the\nextent set forth in Section 9.02(b) and in the proviso to this Section 8.02(a), if to any Borrower,\nto the Company at its address at 700 Anderson Hill Road, Purchase, New York 10577, Attention:\nAssistant Treasurer, Telecopier No. (914) 253-3303, with a copy to Secretary, Telecopier No. (914)\n253-3123; if to any Initial Lender, at its Domestic Lending Office set forth in its Administrative\nQuestionnaire; if to any other Lender, at its Domestic Lending Office specified in the Assignment\nand Assumption pursuant to which it became a Lender; and if to the Agent, at the Agent Address; or,\nas to the Company or the Agent, at such other address as shall be designated by such party in a\nwritten notice to the other parties and, as to each other party, at such other address as shall be\ndesignated by such party in a written notice to the Company and the Agent, provided<\/u> that\nmaterials required to be delivered pursuant to Section 5.01(d)(i), (ii) or (iv) shall be delivered\nto the Agent as specified in Section 8.02(b) or as otherwise specified to the Company by the Agent.\nAll such notices and communications shall, when mailed, telecopied be effective when deposited in\nthe mails or telecopied, respectively, except that notices and communications to the Agent pursuant\nto Article II, III or VII shall not be effective until received by the Agent. The Company and the\nAgent may agree to accept notice and other communications by electronic means pursuant to\nprocedures approved by both parties.\n\n<\/p>\n\n
     (b) So long as Citibank or any of its Affiliates is the Agent, materials required to be\ndelivered pursuant to Section 5.01(d)(i), (ii) and (iv) shall be delivered to the Agent in an\nelectronic medium in a format acceptable to the Agent and the Lenders by e-mail at\noploanswebadmin@citigroup.com. The Company agrees that the Agent may make such materials, as well\nas any other written information,\n<\/p>\n\n
45\n<\/p>\n\n\n\n
documents, instruments and other material relating to the Company, any of its Subsidiaries or\nany other materials or matters relating to this Agreement, the Notes or any of the transactions\ncontemplated hereby (collectively, the \"Communications<\/u>\") available to the Lenders by\nposting such notices on Intralinks or a substantially similar electronic system (the\n\"Platform<\/u>\"). The Company acknowledges that (i) the distribution of material through an\nelectronic medium is not necessarily secure and that there are confidentiality and other risks\nassociated with such distribution, (ii) the Platform is provided \"as is\" and \"as available\" and\n(iii) neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness\nof the Communications or the Platform and each expressly disclaims liability for errors or\nomissions in the Communications or the Platform. No warranty of any kind, express, implied or\nstatutory, including, without limitation, any warranty of merchantability, fitness for a particular\npurpose, non-infringement of third party rights or freedom from viruses or other code defects, is\nmade by the Agent or any of its Affiliates in connection with the Platform.\n<\/p>\n\n\n
     (c) Each Lender agrees that notice to it (as provided in the next sentence) (a\n\"Notice<\/u>\") specifying that any Communications have been posted to the Platform shall\nconstitute effective delivery of such information, documents or other materials to such Lender for\npurposes of this Agreement; provided<\/u> that if requested by any Lender the Agent shall\ndeliver a copy of the Communications to such Lender by email or telecopier. Each Lender agrees (i)\nto notify the Agent in writing of such Lender\u0092s e-mail address to which a Notice may be sent by\nelectronic transmission (including by electronic communication) on or before the date such Lender\nbecomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on\n\nrecord an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such\ne-mail address.\n<\/p>\n\n
     Section 8.03 <\/b>No Waiver; Remedies<\/b><\/u>.<\/b>\n<\/p>\n\n
     No failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any\nright hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any\nsingle or partial exercise of any such right preclude any other or further exercise thereof or the\nexercise of any other right. The remedies herein provided are cumulative and not exclusive of any\nremedies provided by law.\n<\/p>\n\n
     Section 8.04 <\/b>Costs and Expenses<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) The Company agrees to pay on demand all reasonable costs and expenses of the Agent\nand the Lenders, if any (including, without limitation, reasonable counsel fees and\nexpenses), in connection with the enforcement (whether through negotiations, legal\nproceedings or otherwise) of this Agreement, the Notes and the other documents to be\ndelivered hereunder, including, without limitation, reasonable fees and expenses of counsel\nfor the Agent and each Lender in connection with the enforcement of rights under this\nSection 8.04(a).\n<\/p>\n\n\n
     (b) The Company agrees to indemnify and hold harmless the Agent and each Lender and\neach of their Affiliates and their officers, directors, employees, agents and advisors\n(each, an \"Indemnified Party<\/u>\") from and against any and all claims, damages, losses,\nliabilities and expenses (including, without limitation, reasonable fees and expenses of\ncounsel) that may be incurred by or asserted or awarded against any Indemnified Party, in\neach case arising out of or in connection with or by reason of, or in connection with the\npreparation for a defense of, any investigation, litigation or proceeding arising out of,\nrelated to or in connection with the Notes, this Agreement, any of the transactions\ncontemplated herein or the actual or proposed use of the proceeds of the Advances, whether\nor not such investigation, litigation or proceeding is brought by any Borrower, its\ndirectors, shareholders or creditors or an Indemnified Party or any other Person or any\nIndemnified Party is otherwise a party thereto and whether or not the transactions\n<\/p>\n\n
46\n<\/p>\n\n\n\n\n
contemplated hereby are consummated, except to the extent such claim, damage, loss,\nliability or expense is found in a final, non-appealable judgment by a court of competent\njurisdiction to have resulted from such Indemnified Party\u0092s gross negligence or willful\nmisconduct. No Indemnified Party shall be liable for any damages arising from the use by\nothers of any information or other materials obtained through IntraLinks or other similar\ninformation transmission systems in connection with this Agreement. No party hereto shall\nhave any liability to any other party hereto for any indirect, punitive or consequential\ndamages relating to this Agreement or any other Loan Document or arising out of its\nactivities in connection herewith or therewith.\n\n<\/p>\n\n\n
     (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance or\nLIBO Rate Advance is made by any Borrower to or for the account of a Lender other than on\nthe last day of the Interest Period for such Advance, as a result of a payment or Conversion\npursuant to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Notes\npursuant to Section 6.01 or for any other reason, the Company shall, upon demand by such\nLender (with a copy of such demand to the Agent), pay to the Agent for the account of such\nLender any amounts required to compensate such Lender for any additional losses, costs or\nexpenses that it may reasonably incur as a result of such payment or Conversion, including,\nwithout limitation, any loss, cost or expense incurred by reason of the liquidation or\nreemployment of deposits or other funds acquired by any Lender to fund or maintain such\nAdvance.\n<\/p>\n\n\n
     (d) Without prejudice to the survival of any other agreement of any Borrower hereunder,\nthe agreements and obligations of the Company contained in Sections 2.11, 2.14 and 8.04\nshall survive the payment in full of principal, interest and all other amounts payable\nhereunder and under the Notes.\n<\/p>\n\n
     Section 8.05 <\/b>Right of Set-off<\/b><\/u>.<\/b>\n\n<\/p>\n\n
     Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making\nof the request or the granting of the consent specified by Section 6.01 to authorize the Agent to\ndeclare the Notes due and payable pursuant to the provisions of Section 6.01, each Lender and each\nof its Affiliates is hereby authorized at any time and from time to time, to the fullest extent\npermitted by law, to set off and apply any and all deposits (general or special, time or demand,\nprovisional or final) at any time held and other indebtedness at any time owing by such Lender or\nsuch Affiliate to or for the credit or the account of any Borrower against any and all of the\nobligations of such Borrower now or hereafter existing under this Agreement and the Note held by\nsuch Lender, whether or not such Lender shall have made any demand under this Agreement or such\nNote and although such obligations may be unmatured. Each Lender agrees promptly to notify the\nCompany after any such set-off and application, provided<\/u> that the failure to give such\nnotice shall not affect the validity of such set-off and application. The rights of each Lender\nand its Affiliates under this Section are in addition to other rights and remedies (including,\nwithout limitation, other rights of set-off) that such Lender and its Affiliates may have.\n<\/p>\n\n
     Section 8.06 <\/b>Binding Effect<\/b><\/u>.<\/b>\n\n<\/p>\n\n
     This Agreement shall become effective (other than Sections 2.01, 2.03 and 2.18, which shall\nonly become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when\nit shall have been executed by the Company and the Agent and when the Agent shall have been\nnotified by each Initial Lender that such Initial Lender has executed it and thereafter shall be\nbinding upon and inure to the benefit of the Company, each Subsidiary Borrower (if any), the Agent\nand each Lender and their respective successors and assigns, except that no Borrower shall have the\nright to assign its rights hereunder or any interest herein without the prior written consent of\nthe Lenders.\n<\/p>\n\n
47\n<\/p>\n\n\n\n
     Section 8.07 <\/b>Assignments and Participations<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) Each Lender may, upon ten days\u0092 notice to the Agent and with the consent of the\nCompany and, if demanded by the Company (following a demand by such Lender pursuant to\nSection 2.11 or Section 2.14 or pursuant to Section 2.06(b)) upon at least 20 Business Days\u0092\nnotice to such Lender and the Agent, will assign to one or more Persons all or a portion of\nits rights and obligations under this Agreement (including, without limitation, all or a\nportion of its Commitment, the Revolving Credit Advances and L\/C Obligations owing to it and\nthe Revolving Credit Note or Notes held by it); provided<\/u>, however<\/u>, that (i)\neach such assignment shall be of a constant, and not a varying, percentage of all rights and\nobligations under this Agreement (other than any right to make Competitive Bid Advances,\nCompetitive Bid Advances owing to it or Competitive Bid Notes), (ii) except in the case of\nan assignment to a Person that, immediately prior to such assignment, was a Lender or an\nassignment of all of a Lender\u0092s rights and obligations under this Agreement, the amount of\nthe Commitment of the assigning Lender being assigned pursuant to each such assignment\n(determined as of the date of the Assignment and Assumption with respect to such assignment)\nshall in no event be less than $10,000,000, (iii) each such assignment shall be to an\nEligible Assignee, (iv) each such assignment made as a result of a demand by the Company\npursuant to this Section 8.07(a) shall be arranged by the Company after consultation with\nthe Agent and shall be either an assignment of all of the rights and obligations of the\nassigning Lender under this Agreement or an assignment of a portion of such rights and\nobligations made concurrently with another such assignment or other such assignments that\ntogether cover all of the rights and obligations of the assigning Lender under this\nAgreement, (v) no Lender shall be obligated to make any such assignment as a result of a\ndemand by the Company pursuant to this Section 8.07(a) unless and until such Lender shall\nhave received one or more payments from either the Company or one or more Eligible Assignees\nin an aggregate amount at least equal to the aggregate outstanding principal amount of the\nAdvances owing to such Lender, together with accrued interest thereon to the date of payment\nof such principal amount and all other amounts payable to such Lender under this Agreement,\nincluding with respect to L\/C Obligations and (vi) the parties to each such assignment shall\nexecute and deliver to the Agent, for its acceptance and recording in the Register (as\ndefined in clause (d) below), an Assignment and Assumption, together with any Revolving\nCredit Note subject to such assignment and a processing and recordation fee of $3,500. Upon\nsuch execution, delivery, acceptance and recording, from and after the effective date\nspecified in each Assignment and Assumption, (x) the assignee thereunder shall be a party\nhereto and, to the extent that rights and obligations hereunder have been assigned to it\npursuant to such Assignment and Assumption, have the rights and obligations of a Lender\nhereunder and (y) the Lender assignor thereunder shall, to the extent that rights and\nobligations hereunder have been assigned by it pursuant to such Assignment and Assumption,\nrelinquish its rights and be released from its obligations under this Agreement (and, in the\ncase of an Assignment and Assumption covering all or the remaining portion of an assigning\nLender\u0092s rights and obligations under this Agreement, such Lender shall cease to be a party\nhereto); provided<\/u> that an assigning Lender\u0092s rights to indemnification and\nreimbursement pursuant to Section 8.04 shall survive assignment hereunder.\n\n<\/p>\n\n\n
     Notwithstanding anything to the contrary contained herein, any Lender (a \"Granting\nLender<\/u>\") may grant to a special purpose vehicle (an \"SPV<\/u>\") of such Granting\nLender, identified as such in writing from time to time by the Granting Lender to the Agent\nand the Company, the option to provide to the Borrowers all or any part of any Advance that\nsuch Granting Lender would otherwise be obligated to make to the Borrowers pursuant to\nSection 2.01, provided<\/u> that (i) nothing herein shall constitute a commitment by any\nSPV to make any Advance, (ii) if an SPV elects not to exercise such option or otherwise\nfails to provide all or any part of such Advance, the Granting Lender shall be obligated to\nmake such Advance pursuant to the terms hereof and\n<\/p>\n\n
48\n\n<\/p>\n\n\n\n\n
(iii) the Borrowers may bring any proceeding against either the Granting Lender or the SPV\nin order to enforce any rights of the Borrowers hereunder. The making of an Advance by an\nSPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as\nif, such Advance were made by the Granting Lender. Each party hereto hereby agrees that no\nSPV shall be liable for any payment under this Agreement for which a Lender would otherwise\nbe liable, for so long as, and to the extent, the related Granting Lender makes such\npayment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement\nshall survive the termination of this Agreement) that, prior to the date that is one year\nand one day after the payment in full of all outstanding commercial paper or other senior\nindebtedness of any SPV, it will not institute against, or join any other person in\ninstituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or\nliquidation proceedings or similar proceedings under the laws of the United States or any\nState thereof arising out of any claim against such SPV under this Agreement. In addition,\nnotwithstanding anything to the contrary contained in this Section, any SPV may with notice\nto, but without the prior written consent of, the Company or the Agent and without paying\nany processing fee therefor, assign all or a portion of its interests in any Advances to its\nGranting Lender or to any financial institutions (consented to by the Company and the Agent)\nproviding liquidity and\/or credit support (if any) with respect to commercial paper issued\nby such SPV to fund such Advances and such SPV may disclose, on a confidential basis,\nconfidential information with respect to the Company and its Subsidiaries to any rating\nagency, commercial paper dealer or provider of a surety, guarantee or credit liquidity\nenhancement to such SPV. This paragraph may not be amended without the consent of any SPV\nat the time holding Advances under this Agreement.\n<\/p>\n\n\n
     (b) By executing and delivering an Assignment and Assumption, the Lender assignor\nthereunder and the assignee thereunder confirm to and agree with each other and the other\nparties hereto as follows: (i) other than as provided in such Assignment and Assumption,\nsuch assigning Lender makes no representation or warranty and assumes no responsibility with\nrespect to any statements, warranties or representations made in or in connection with this\nAgreement or the execution, legality, validity, enforceability, genuineness, sufficiency or\nvalue of, or the perfection or priority of any lien or security interest created or\npurported to be created under or in connection with, this Agreement or any other instrument\nor document furnished pursuant hereto; (ii) such assigning Lender makes no representation or\nwarranty and assumes no responsibility with respect to the financial condition of any\nBorrower or the performance or observance by any Borrower of any of its obligations under\nthis Agreement or any other instrument or document furnished pursuant hereto; (iii) such\nassignee confirms that it has received a copy of this Agreement, together with copies of the\nfinancial statements referred to in Section 4.01 and such other documents and information as\nit has deemed appropriate to make its own credit analysis and decision to enter into such\nAssignment and Assumption; (iv) such assignee will, independently and without reliance upon\nthe Agent, such assigning Lender or any other Lender and based on such documents and\ninformation as it shall deem appropriate at the time, continue to make its own credit\ndecisions in taking or not taking action under this Agreement; (v) such assignee confirms\nthat it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to\ntake such action as agent on its behalf and to exercise such powers and discretion under\nthis Agreement as are delegated to the Agent by the terms hereof, together with such powers\nand discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it\nwill perform in accordance with their terms all of the obligations that by the terms of this\nAgreement are required to be performed by it as a Lender.\n\n<\/p>\n\n\n
     (c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender\nand an assignee representing that it is an Eligible Assignee, together with any Revolving\nCredit Note or Notes subject to such assignment, the Agent shall, if such Assignment and\n<\/p>\n\n
49\n<\/p>\n\n\n\n\n
Assumption has been completed and is in substantially the form of Exhibit C hereto, (i)\naccept such Assignment and Assumption, (ii) record the information contained therein in the\nRegister and (iii) give prompt notice thereof to the Company. Within five Business Days\nafter receipt by the Company of such notice, the relevant Borrower, at its own expense,\nshall execute and deliver to the Agent in exchange for the surrendered Revolving Credit Note\na new Revolving Credit Note to the order of such Eligible Assignee in an amount equal to the\nCommitment assumed by it pursuant to such Assignment and Assumption and, if the assigning\nLender has retained a Commitment hereunder, a new Revolving Credit Note to the order of the\nassigning Lender in an amount equal to the Commitment retained by it hereunder. Such new\nRevolving Credit Note or Notes shall be in an aggregate principal amount equal to the\naggregate principal amount of such surrendered Revolving Credit Note or Notes, shall be\ndated the effective date of such Assignment and Assumption and shall otherwise be in\nsubstantially the form of Exhibit A-1 hereto.\n\n<\/p>\n\n\n
     (d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each\nAssignment and Assumption delivered to and accepted by it and a register for the recordation\nof the names and addresses of the Lenders and, with respect to Lenders, the Commitment of,\nand principal amount of the Advances owing to, each Lender from time to time (the\n\"Register\"). The entries in the Register shall be conclusive and binding for all purposes,\nabsent manifest error, and each Borrower, the Agent and the Lenders may treat each Person\nwhose name is recorded in the Register as a Lender hereunder for all purposes of this\nAgreement. The Register shall be available for inspection by the Company or any Lender at\nany reasonable time and from time to time upon reasonable prior notice.\n<\/p>\n\n\n
     (e) Each Lender may, upon notice to the Agent and the Company, sell participations to\none or more banks or other entities in or to all or a portion of its rights and obligations\nunder this Agreement (including, without limitation, all or a portion of its Commitment, the\nAdvances owing to it and the Note or Notes held by it); provided<\/u>, however<\/u>,\nthat (i) such Lender\u0092s obligations under this Agreement (including, without limitation, its\nCommitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely\nresponsible to the other parties hereto for the performance of such obligations, (iii) such\nLender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the\nBorrowers, the Agent and the other Lenders shall continue to deal solely and directly with\nsuch Lender in connection with such Lender\u0092s rights and obligations under this Agreement and\n(v) no participant under any such participation shall have any right to approve any\namendment or waiver of any provision of this Agreement or any Note, or any consent to any\ndeparture by any Borrower therefrom, except to the extent that such amendment, waiver or\nconsent would reduce the principal of, or interest on, the Notes or any fees or other\namounts payable hereunder, in each case to the extent subject to such participation,\npostpone any date fixed for any payment of principal of, or interest on, the Notes or any\nfees or other amounts payable hereunder, in each case to the extent subject to such\nparticipation or release the Borrower from its obligations hereunder, including, without\nlimitation, its obligations under Article IX.\n\n<\/p>\n\n\n
     (f) Any Lender may, in connection with any assignment or participation or proposed\nassignment or participation pursuant to this Section 8.07, disclose to the assignee or\nparticipant or proposed assignee or participant any information relating to any Borrower\nfurnished to such Lender by or on behalf of any Borrower; provided that, prior to any such\ndisclosure, the assignee or participant or proposed assignee or participant shall agree to\npreserve the confidentiality of any Confidential Information relating to the Borrowers\nreceived by it from such Lender.\n<\/p>\n\n\n
     (g) Notwithstanding any other provision set forth in this Agreement, any Lender may at\nany time create a security interest in all or any portion of its rights under this Agreement\n<\/p>\n\n
50\n<\/p>\n\n\n\n\n
(including, without limitation, the Advances owing to it and the Note or Notes held by it)\nin favor of any Federal Reserve Bank in accordance with Regulation A of the Board of\nGovernors of the Federal Reserve System.\n<\/p>\n\n
     Section 8.08 <\/b>Confidentiality<\/b><\/u>.<\/b>\n<\/p>\n\n
     Neither the Agent nor any Lender shall disclose any Confidential Information to any Person\nwithout the consent of the Company, other than (a) to the Agent\u0092s or such Lender\u0092s Affiliates and\ntheir officers, directors, employees, agents and advisors and to actual or prospective assignees\nand participants, and then only on a confidential basis, (b) as required by any law, rule or\nregulation or judicial process, (c) to any rating agency when required by it, provided that, prior\nto any such disclosure, such rating agency shall undertake to preserve the confidentiality of any\nConfidential Information relating to the Borrowers received by it from such Lender, (d) as\nrequested or required by any state, federal or foreign authority or examiner regulating banks or\nbanking, (e) in connection with the exercise of any remedies hereunder or any suit, action or\nproceeding relating to this Agreement or the enforcement of rights hereunder and (f) to the extent\nsuch Confidential Information (i) becomes publicly available other than as a result of a breach of\nthis Section or (ii) becomes available to the Agent or any Lender on a nonconfidential basis from a\nsource other than the Company.\n\n<\/p>\n\n
     In addition, the Agent may disclose to any agency or organization that assigns standard\nidentification numbers to loan facilities such basic information describing the facilities provided\nhereunder as is necessary to assign unique identifiers (and, if requested, supply a copy of this\nAgreement), it being understood that the Person to whom such disclosure is made will be informed of\nthe confidential nature of such information and instructed to make available to the public only\nsuch information as such person normally makes available in the course of its business of assigning\nidentification numbers.\n<\/p>\n\n
     Section 8.09 <\/b>Governing Law<\/b><\/u>.<\/b>\n<\/p>\n\n
     This Agreement and the Notes shall be governed by, and construed in accordance with, the laws\nof the State of New York.\n<\/p>\n\n
     Section 8.10 <\/b>Execution in Counterparts<\/b><\/u>.<\/b>\n\n<\/p>\n\n
     This Agreement may be executed in any number of counterparts and by different parties hereto\nin separate counterparts, each of which when so executed shall be deemed to be an original and all\nof which taken together shall constitute one and the same agreement. Delivery of an executed\ncounterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a\nmanually executed counterpart of this Agreement.\n<\/p>\n\n
     Section 8.11 <\/b>Jurisdiction, Etc<\/b><\/u>.<\/b>\n<\/p>\n\n\n
     (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for\nitself and its property, to the nonexclusive jurisdiction of any New York State court or\nfederal court of the United States of America sitting in New York City, and any appellate\ncourt from any thereof, in any action or proceeding arising out of or relating to this\nAgreement or the Notes, or for recognition or enforcement of any judgment, and each of the\nparties hereto hereby irrevocably and unconditionally agrees that all claims in respect of\nany such action or proceeding may be heard and determined in any such New York State court\nor, to the extent permitted by law, in such federal court. Each of the parties hereto\nagrees that a final judgment in any such action or proceeding shall be conclusive and may be\nenforced in other jurisdictions by suit on the judgment or in any other manner provided by\nlaw. Nothing in this Agreement shall affect any right that any\n<\/p>\n\n
51\n\n<\/p>\n\n\n\n\n
party may otherwise have to bring any action or proceeding relating to this Agreement or the\nNotes in the courts of any jurisdiction.\n<\/p>\n\n\n
     (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest\nextent it may legally and effectively do so, any objection that it may now or hereafter have\nto the laying of venue of any suit, action or proceeding arising out of or relating to this\nAgreement or the Notes in any New York State or federal court. Each of the parties hereto\nhereby irrevocably waives, to the fullest extent permitted by law, the defense of an\ninconvenient forum to the maintenance of such action or proceeding in any such court.\n<\/p>\n\n
     Section 8.12 <\/b>WAIVER OF JURY TRIAL<\/b><\/u>.<\/b>\n<\/p>\n\n
     EACH BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY\nIN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING\nOUT OF OR RELATING TO THIS AGREEMENT OR THE NOTES OR THE ACTIONS OF THE AGENT OR ANY LENDER IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.\n<\/p>\n\n
     Section 8.13 <\/b>USA PATRIOT Act Notice<\/b><\/u>.<\/b>\n<\/p>\n\n
     Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies\nthe Company that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56\n(signed into law October 26, 2001)) (the \"Act\"), it is required to obtain, verify and record\ninformation that identifies the Company, which information includes the name and address of the\nCompany and other information that will allow such Lender or the Agent, as applicable, to identify\nthe Company in accordance with the Act.\n<\/p>\n\n
ARTICLE IX<\/b>\n<\/p>\n\n\n
GUARANTEE<\/b>\n\n<\/p>\n\n
     Section 9.01 <\/b>Guarantee<\/b><\/u>.<\/b>\n<\/p>\n\n
     The Company hereby unconditionally guarantees to each Lender and the Agent and their\nrespective successors and assigns the prompt payment in full when due (whether at stated maturity,\nby acceleration, by optional prepayment or otherwise) of the principal of and interest on the\nAdvances to and the Notes of (to the extent of the principal of and interest on Advances made to)\neach Borrowing Subsidiary and all other amounts whatsoever from time to time now or hereafter owing\nto the Lenders or the Agent or any of them by any Borrowing Subsidiary under this Agreement\npursuant to its Designation Letter, in each case strictly in accordance with the terms thereof\n(such obligations being herein collectively called the \"Guaranteed Obligations<\/u>\"). The\nCompany hereby further agrees that if any Borrowing Subsidiary shall fail to pay in full when due\n(whether at stated maturity, by acceleration, by mandatory prepayment or otherwise) any of the\nGuaranteed Obligations, the Company will promptly pay the same, without any demand or notice\nwhatsoever, and that in the case of any extension of time of payment or renewal of any of the\nGuaranteed Obligations, the same will be promptly paid in full when due (whether at extended\nmaturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.\n<\/p>\n\n
     Section 9.02 <\/b>Obligations Unconditional<\/b><\/u>.<\/b>\n\n<\/p>\n\n\n
     (a) The obligations of the Company under this Article IX, and the obligations (if\n<\/p>\n\n
52\n<\/p>\n\n\n\n\n
any) of the Company assumed pursuant to Section 2.17(b), are unconditional irrespective of\n(i) the value, genuineness, legality, validity, regularity or enforceability of any of the\nGuaranteed Obligations, (ii) any modification, amendment or variation in or addition to the\nterms of any of the Guaranteed Obligations or any covenants in respect thereof or any\nsecurity therefor, (iii) any extension of time for performance or waiver of performance of\nany covenant of any Borrowing Subsidiary or any failure or omission to enforce any right\nwith regard to any of the Guaranteed Obligations, (iv) any exchange, surrender, release of\nany other guaranty of or security for any of the Guaranteed Obligations, or (v) any other\ncircumstance whatsoever which may or might constitute a legal or equitable discharge or\ndefense of a surety or guarantor, it being the intent hereof that the obligations of the\nCompany under this Article IX shall be absolute and unconditional under any and all\ncircumstances.\n<\/p>\n\n\n
     (b) The Company hereby expressly waives diligence, presentment, demand, protest and all\nnotices whatsoever with regard to any of the Guaranteed Obligations and said obligations\nassumed under Section 2.17(b) and any requirement that the Agent or any Lender exhaust any\nright, power or remedy or proceed against any Borrowing Subsidiary or any other Person\nhereunder or under the Designation Letter of such Borrowing Subsidiary or under any Note of\nsuch Borrowing Subsidiary or any other guarantor of or any security for any of the\nGuaranteed Obligations. The obligations of the Company under this Article IX constitute a\nguarantee of payment and not of collection.\n<\/p>\n\n
     Section 9.03 <\/b>Reinstatement<\/b><\/u>.<\/b>\n\n<\/p>\n\n
     The guarantee in this Article IX shall be automatically reinstated if and to the extent that\nfor any reason any payment by or on behalf of any Borrowing Subsidiary in respect of the Guaranteed\nObligations is rescinded or must be otherwise restored by any holder(s) of any of the Guaranteed\nObligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.\n<\/p>\n\n
     Section 9.04 <\/b>Subrogation<\/b><\/u>.<\/b>\n<\/p>\n\n
     Until the termination of the Commitments and the payment in full of the principal of and\ninterest on the Advances and all other amounts payable to the Agent or any Lender hereunder, the\nCompany hereby irrevocably waives all rights of subrogation or contribution, whether arising by\noperation of law (including, without limitation, any such right arising under the Federal\nBankruptcy Code) or otherwise, by reason of any payment by it pursuant to the provisions of this\nArticle IX.\n\n<\/p>\n\n
     Section 9.05 <\/b>Remedies<\/b><\/u>.<\/b>\n<\/p>\n\n
     The Company agrees that, as between the Company on the one hand and the Lenders and the Agent\non the other hand, the obligations of any Borrowing Subsidiary guaranteed under this Agreement may\nbe declared to be forthwith due and payable, or may be deemed automatically to have been\naccelerated, as provided in Article VI, for purposes of Section 9.01 hereof notwithstanding any\nstay, injunction or other prohibition (whether in a bankruptcy proceeding affecting such Borrowing\nSubsidiary or otherwise) preventing such declaration as against such Borrowing Subsidiary and that,\nin the event of such declaration or automatic acceleration such obligations (whether or not due and\npayable by such Borrowing Subsidiary) shall forthwith become due and payable by the Company for\npurposes of said Section 9.01.\n<\/p>\n\n
     Section 9.06 <\/b>Continuing Guarantee<\/b><\/u>.<\/b>\n\n<\/p>\n\n
     The guarantee in this Article IX is a continuing guarantee and shall apply to all Guaranteed\n<\/p>\n\n
53\n<\/p>\n\n\n
Obligations whenever arising.\n<\/p>\n\n
[Remainder of Page Intentionally Left Blank]\n\n<\/p>\n\n
54\n<\/p>\n\n\n\n
          IN\nWITNESS WHEREOF, the parties hereto have caused this Agreement to be\nexecuted by their respective officers thereunto duly authorized, as of the date first above written.\n<\/p>\n\n\n
PEPSICO, INC.\n<\/p>
By:  \/s\/  Lionel L. Nowell III\n<\/p>
Name: Lionel L. Nowell III\n<\/p>
Title: Senior Vice President and Treasurer\n<\/p>
By:  \/s\/  J. Darrell Thomas\n<\/p>
Name: J. Darrell Thomas\n<\/p>
Title: Vice President and Assistant Treasurer\n\n<\/p>
CITIBANK, N.A.\n<\/p>
as Agent, L\/C Issuer and as an Initial Lender\n<\/p>
By: \/s\/  Carolyn A. Kee\n<\/p>
Name:  Carolyn A. Kee\n<\/p>
Title: Vice President \n\n<\/p>
JPMORGAN CHASE BANK, N.A.\n<\/p>
By: \/s\/ Thomas T. Hou\n<\/p>
Name: Thomas T. Hou\n<\/p>
Title: Vice President \n\n<\/p>
HSBC BANK USA, NATIONAL ASSOCIATION\n<\/p>
By: \/s\/ Thomas A. Foley\n<\/p>
Name:  Thomas A. Foley\n<\/p>
Title: Senior Vice President \n\n<\/p>
MERRILL LYNCH BANK USA\n<\/p>
By: \/s\/ Frank Stepan\n<\/p>
Name: Frank Stepan\n<\/p>
Title: Vice President\n\n<\/p>
MORGAN STANLEY BANK\n<\/p>
By:  \/s\/ Daniel Twenge\n<\/p>
Name: Daniel Twenge\n<\/p>
Title:  Vice President\n\n<\/p>
UBS LOAN FINANCE LLC\n<\/p>
By: \/s\/ Richard L. Tavrow\n<\/p>
Name: Richard L. Tavrow\n<\/p>
Title:  Director\n<\/p>
By:  \/s\/ Irja R. Otsa\n<\/p>
Name:  Irja R. Otsa\n<\/p>
Title: Associate Director\n\n<\/p>
BANCO BILBAO VIZCAYA ARGENTARIA S.A.\n<\/p>
By: \/s\/ Jay Levit\n<\/p>
Name:  Jay Levit\n<\/p>
Title:  Vice President\n<\/p>
By: \/s\/ Erich Michel\n<\/p>
Name:  Erich Michel\n<\/p>
Title:  Vice President\n\n<\/p>
BANK OF AMERICA, N.A.\n<\/p>
By: \/s\/ David L. Catherall\n<\/p>
Name: David L. Catherall\n<\/p>
Title: Vice President\n<\/p>
THE BANK OF NEW YORK\n<\/p>
By: \/s\/ Joanna S. Bellocq\n<\/p>
Name: Joanna S. Bellocq\n<\/p>
Title: Vice President\n<\/p>
Schedule I
\nCommitments\n<\/p>\n\n
Lender <\/b>Commitment<\/b><\/p>\n
Citibank, N.A. $300,000,000\n<\/p>
JPMorgan Chase Bank $300,000,000\n<\/p>
HSBC Bank USA, National Association $150,000,000\n<\/p>
Merrill Lynch Bank USA $150,000,000\n<\/p>
Morgan Stanley Bank $150,000,000\n<\/p>
UBS Loan Finance LLC $150,000,000\n<\/p>
Banco Bilbao Vizcaya Argentaria S.A. $100,000,000\n<\/p>
Bank of America, N.A. $100,000,000\n<\/p>
The Bank of New York $100,000,000\n<\/p>
Total: $1,500,000,000\n\n<\/p>
\n\n<\/p>\n\n\n\n\n
Schedule II
\nAgent\u0092s Address\n<\/p>\n\n\n
Exhibit A-1 to
\nCredit Agreement\n<\/p>\n\n\n
FORM OF REVOLVING CREDIT PROMISSORY NOTE\n<\/p>\n\n\n
Dated: May __, 2006\n<\/p>\n\n\n
     FOR VALUE RECEIVED, the undersigned, PEPSICO, INC., a North Carolina corporation (the\n\"Borrower<\/u>\"), HEREBY PROMISES TO PAY to the order of                     <\/u>                    <\/u> (the\n\"Lender<\/u>\") for the account of its Applicable Lending Office on the Termination Date (each as\ndefined in the Credit Agreement referred to below) the principal amount of the Revolving Credit\nAdvances made by the Lender to the Borrower pursuant to the Five-Year Credit Agreement dated as of\nMay 22, 2006 among the Borrower, the Lender and certain other lenders parties thereto, and\nCitibank, N.A., as Agent for the Lender and such other lenders (as amended or modified from time to\ntime, the \"Credit Agreement<\/u>\"; the terms defined therein being used herein as therein\ndefined) outstanding on the Termination Date.\n\n<\/p>\n\n
     The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit\nAdvance from the date of such Revolving Credit Advance until such principal amount is paid in full,\nat such interest rates, and payable at such times, as are specified in the Credit Agreement.\n<\/p>\n\n
     Both principal and interest are payable in lawful money of the United States of America to\nCitibank, N.A., as Agent, at the Agent\u0092s Account, in same day funds for the account of the Lender.\nEach Revolving Credit Advance owing to the Lender by the Borrower pursuant to the Credit Agreement,\nand all payments made on account of principal thereof, shall be recorded by the Lender and, prior\nto any transfer hereof, endorsed on the grid attached hereto which is part of this Promissory Note.\nEach such endorsement shall constitute prima<\/u> facie<\/u> evidence of the accuracy of the\ninformation so endorsed.\n<\/p>\n\n
     This Promissory Note is one of the Revolving Credit Notes referred to in, and is entitled to\nthe benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for\nthe making of Revolving Credit Advances by the Lender to the Borrower from time to time in an\naggregate amount not to exceed at any time outstanding the U.S. dollar amount first above\nmentioned, the indebtedness of the Borrower resulting from each such Revolving Credit Advance being\nevidenced by this Promissory Note, and (ii) contains provisions for acceleration of the maturity\nhereof upon the happening of certain stated events and also for prepayments on account of principal\nhereof prior to the maturity hereof upon the terms and conditions therein specified.\n\n<\/p>\n\n
     The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to\nexercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall\noperate as a waiver of such rights.\n<\/p>\n\n
\n<\/p>\n\n\n\n
     This Promissory Note shall be governed by, and construed in accordance with the laws of the\nState of New York.\n<\/p>\n
\n\n<\/p>
PEPSICO, INC.<\/b>\n<\/p>
 By:\n<\/p>
Name:\n<\/p>
Title:\n    \n<\/p>
2\n<\/p>\n\n\n\n
ADVANCES AND PAYMENTS OF PRINCIPAL\n<\/p>\n\n
\n<\/p><\/pre>\n\n\n\n\n\n\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\nAmount of<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\nAmount of<\/p>\n<\/td>\n <\/td>\nPrincipal Paid\n<\/td>\n <\/td>\nUnpaid Principal\n<\/td>\n <\/td>\nNotation<\/td>\n<\/tr>\n
\n
Date\n <\/p>\n<\/td>\n
Advance\n<\/td>\n <\/td>\nOr Prepaid\n<\/td>\n <\/td>\nBalance<\/p>\n<\/td>\n <\/td>\nMade By<\/td>\n<\/tr>\n
\n<\/td>\n\n<\/td>\n <\/td>\n\n<\/td>\n <\/td>\n\n<\/td>\n <\/td>\n <\/td>\n<\/tr>\n<\/table>\n
\n
Exhibit A-2 to
\nCredit Agreement\n<\/p>\n
FORM OF COMPETITIVE BID PROMISSORY NOTE\n<\/p>\n
\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
U.S.$                     <\/u>                    <\/u>\n<\/td>\n <\/td>\nDated: May ___, 2006<\/td>\n<\/tr>\n<\/table>\n
     FOR VALUE RECEIVED, the undersigned, PEPSICO, INC., a North Carolina corporation (the<\/p>\n
“Borrower<\/u>“), HEREBY PROMISES TO PAY to the order of                     <\/u>                    <\/u> (the
\n“Lender<\/u>“) for the account of its Applicable Lending Office (as defined in the Five-Year
\nCredit Agreement dated as of May 22, 2006 among the Borrower, the Lender and certain other lenders
\nparties thereto, and Citibank, N.A., as Agent for the Lender and such other lenders (as amended or
\nmodified from time to time, the “Credit Agreement<\/u>“; the terms defined therein being used
\nherein as therein defined)), on ,                     <\/u> the principal amount of U.S.$                     <\/u>.\n<\/p>\n
     The Borrower promises to pay interest on the unpaid principal amount hereof from the date
\nhereof until such principal amount is paid in full, at the interest rate and payable on the
\ninterest payment date or dates provided below:\n<\/p>\n
     Interest Rate:                     <\/u>% per annum (calculated on the basis of a year of                     <\/u>days for the
\nactual number of days elapsed).\n<\/p>\n
     Both principal and interest are payable in lawful money of the United States of America to
\nCitibank, N.A., for the account of the Lender at the office of Citibank, N.A., at the Agent\u0092s
\nAccount in same day funds.\n<\/p>\n
     This Promissory Note is one of the Competitive Bid Notes referred to in, and is entitled to
\nthe benefits of, the Credit Agreement. The Credit Agreement, among other things, contains
\nprovisions for acceleration of the maturity hereof upon the happening of certain stated events.\n<\/p>\n
     The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to
\nexercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall
\noperate as a waiver of such rights.\n<\/p>\n
     This Promissory Note shall be governed by, and construed in accordance with, the laws of the
\nState of New York.\n<\/p>\n
PEPSICO, INC.<\/b>\n<\/p>\n
 By:\n<\/p>\n
Name:\n<\/p>\n
Title:<\/p>\n
\n
Exhibit B-1 to
\nCredit Agreement\n<\/p>\n
FORM OF NOTICE OF REVOLVING CREDIT BORROWING\n<\/p>\n
Citibank, N.A., as Agent
\nfor the Lenders parties
\nto the Credit Agreement<\/p>\n
referred to below<\/p>\n
\n\n\n\n\n\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/p>\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n[Date]<\/td>\n<\/tr>\n
\n<\/p>\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n<\/table>\n
     Attention:                     <\/u>                    <\/u>\n<\/p>\n
Ladies and Gentlemen:<\/p>\n
     The undersigned, PepsiCo, Inc. (the “Company<\/u>“), refers to the Five-Year Credit
\nAgreement, dated as of May 22, 2006 (as amended or modified from time to time, the “Credit
\nAgreement<\/u>“; the terms defined therein being used herein as therein defined), among the
\nundersigned, certain Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, and
\nhereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
\nundersigned hereby requests a Revolving Credit Borrowing under the Credit Agreement, and in that
\nconnection sets forth below the information relating to such Revolving Credit Borrowing (the
\n“Proposed Revolving Credit Borrowing<\/u>“) as required by Section 2.02(a) of the Credit
\nAgreement:\n<\/p>\n
     (i) The Business Day of the Proposed Revolving Credit Borrowing is                     <\/u>,                     <\/u>.<\/p>\n
     (ii) The Type of Advances constituting the Proposed Revolving Credit Borrowing is [Base Rate
\nAdvances] [Eurodollar Rate Advances].\n<\/p>\n
     (iii) The aggregate amount of the Proposed Revolving Credit Borrowing is $                     <\/u>.\n<\/p>\n
     (iv) The identity of the Borrower for the Proposed Revolving Credit Borrowing is                     <\/u>                    <\/u>,
\na                     <\/u>                    <\/u> corporation.<\/p>\n
     [(v) The initial Interest Period for each Eurodollar Rate Advance made as part of the Proposed
\nRevolving Credit Borrowing is                     <\/u> month[s].]\n<\/p>\n
     The undersigned hereby certifies that the following statements are true on the date hereof,
\nand will be true on the date of the Proposed Revolving Credit Borrowing:\n<\/p>\n
     (a) the representations and warranties contained in Section 4.01 of the Credit Agreement
\n(except the representations set forth in the last sentence of subsection (e) thereof and in
\nsubsection (f) thereof (other than clause (ii) thereof)) are correct, before and after giving
\neffect<\/p>\n
\n
to the Proposed Revolving Credit Borrowing and to the application of the proceeds therefrom,
\nas though made on and as of such date;\n<\/p>\n
     (b) no event has occurred and is continuing, or would result from such Proposed Revolving
\nCredit Borrowing or from the application of the proceeds therefrom, that constitutes a Default; and\n<\/p>\n
     (c) the aggregate amount of the Proposed Revolving Credit Borrowing and all other Borrowings
\nto be made on the same day under the Credit Agreement is within the aggregate amount of the unused
\nCommitments of the Lenders.\n<\/p>\n
PEPSICO, INC.<\/b>\n<\/p>\n
 By:\n<\/p>\n
Name:\n<\/p>\n
Title:\n<\/p>\n
\n
Exhibit B-2 to
\nCredit Agreement\n<\/p>\n
FORM OF NOTICE OF COMPETITIVE BID BORROWING\n<\/p>\n
Citibank, N.A., as Agent<\/p>\n
for the Lenders parties
\nto the Credit Agreement
\nreferred to below<\/p>\n
\n\n\n\n\n\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/p>\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\nMay ___, 2006<\/td>\n<\/tr>\n
\n<\/p>\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n<\/table>\n
     Attention:                     <\/u>                    <\/u>\n<\/p>\n
Ladies and Gentlemen:<\/p>\n
     The undersigned, PepsiCo, Inc. (the “Company<\/u>“), refers to the Five-Year Credit
\nAgreement, dated as of May 22, 2006 (as amended or modified from time to time, the “Credit
\nAgreement<\/u>“; the terms defined therein being used herein as therein defined), among the
\nundersigned, certain Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, and
\nhereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
\nundersigned hereby requests a Competitive Bid Borrowing under the Credit Agreement, and in that
\nconnection sets forth the terms on which such Competitive Bid Borrowing (the “Proposed
\nCompetitive Bid Borrowing<\/u>“) is requested to be made:\n<\/p>\n
\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n(A)\n<\/td>\n <\/td>\nDate of Competitive<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\nBid Borrowing<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n(B)<\/p>\n<\/td>\n <\/td>\nAmount of Competitive<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\nBid Borrowing<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n(C)\n<\/td>\n <\/td>\nMaturity Date<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n(D)\n<\/td>\n <\/td>\nInterest Rate Basis<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n(E)\n<\/td>\n <\/td>\nInterest Payment Date(s)<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n(F)\n<\/td>\n <\/td>\nIdentity of Borrower<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n(G)<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n(H)<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n<\/table>\n
     The undersigned hereby certifies that the following statements are true on the date hereof,
\nand will be true on the date of the Proposed Competitive Bid Borrowing:\n<\/p>\n
     (a) the representations and warranties contained in Section 4.01 (except the
\nrepresentations set forth in the last sentence of subsection (e) thereof and in subsection
\n(f) thereof (other than clause (ii) thereof)) are correct, before and after giving effect to
\nthe Proposed Competitive Bid Borrowing and to the application of the proceeds therefrom, as
\nthough made on and as of such date;<\/p>\n
1\n<\/p>\n
     (b) no event has occurred and is continuing, or would result from the Proposed
\nCompetitive Bid Borrowing or from the application of the proceeds therefrom that constitutes
\na Default;\n<\/p>\n
     (c) no event has occurred and no circumstance exists as a result of which the
\ninformation concerning the undersigned that has been provided to the Agent and each Lender
\nby the undersigned in connection with the Credit Agreement would include an untrue statement
\nof a material fact or omit to state any material fact or any fact necessary to make the
\nstatements contained therein, in the light of the circumstances under which they were made,
\nnot misleading; and<\/p>\n
     (d) the aggregate amount of the Proposed Competitive Bid Borrowing and all other
\nBorrowings to be made on the same day under the Credit Agreement is within the aggregate
\namount of the unused Commitments of the Lenders.\n<\/p>\n
\n
PEPSICO, INC.<\/b>\n<\/p>\n
 By:\n<\/p>\n
Name:\n<\/p>\n
Title:<\/p>\n
2\n<\/p>\n<\/p>\n
 <\/h5>\n<\/p>\n
Exhibit C to
\nCredit Agreement\n<\/p>\n
FORM OF ASSIGNMENT AND ASSUMPTION<\/b>\n<\/p>\n
     This Assignment and Assumption (this “Assignment and Assumption<\/u>“) is dated as of the
\nEffective Date set forth below and is entered into by and between [Insert name of Assignor<\/i>] (the
\n“Assignor<\/u>“) and [Insert name of Assignee<\/i>] (the “Assignee<\/u>“). Capitalized terms used
\nbut not defined herein shall have the meanings given to them in the Credit Agreement identified
\nbelow (the “Credit Agreement<\/u>“), receipt of a copy of which is hereby acknowledged by the
\nAssignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
\nto and incorporated herein by reference and made a part of this Assignment and Assumption as if set
\nforth herein in full.<\/p>\n
     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
\nAssignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
\nand in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
\nEffective Date inserted by the Agent as contemplated below (i) all of the Assignor\u0092s rights and
\nobligations as a Lender under the Credit Agreement and any other documents or instruments delivered
\npursuant thereto to the extent related to the amount and percentage interest identified below of
\nall of such outstanding rights and obligations of the Assignor under the respective facilities
\nidentified below (including, without limitation, Letters of Credit and guarantees included in such
\nfacilities) and (ii) to the extent permitted to be assigned under applicable law, all claims,
\nsuits, causes of action and any other right of the Assignor (in its capacity as a Lender) against
\nany Person, whether known or unknown, arising under or in connection with the Credit Agreement, any
\nother documents or instruments delivered pursuant thereto or the loan transactions governed thereby
\nor in any way based on or related to any of the foregoing, including, but not limited to, contract
\nclaims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
\nrelated to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
\nand obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein
\ncollectively as, the “Assigned Interest<\/u>“). Such sale and assignment is without recourse to
\nthe Assignor and, except as expressly provided in this Assignment and Assumption, without
\nrepresentation or warranty by the Assignor.\n<\/p>\n
1. Assignor:\n<\/p>\n
2. Assignee:  [and is an Affiliate\/Approved Fund of [identify Lender<\/i>]\n<\/p>\n
3. Company:      PepsiCo, Inc.\n<\/p>\n
4. Agent: Citibank, N.A., as the administrative agent under the Credit Agreement.\n<\/p>\n
5. Credit Agreement: Five-Year Credit Agreement, dated as of May 22, 2006, among PepsiCo, Inc.
\n(the “Company”), the Lenders party thereto and Citibank, N.A., as Agent.\n<\/p>\n
6. Assigned Interest:\n<\/p>\n
\n\n\n\n\n\n\n\n\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\nAggregate<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\nAmount of<\/td>\n <\/td>\nAmount of<\/td>\n <\/td>\nPercentage<\/td>\n<\/tr>\n
 <\/td>\n <\/td>\nCommitment\/<\/td>\n <\/td>\nCommitment\/<\/td>\n <\/td>\nAssigned of<\/td>\n<\/tr>\n
 <\/td>\n <\/td>\nAdvances<\/td>\n <\/td>\nAdvances<\/td>\n <\/td>\nCommitment\/<\/td>\n<\/tr>\n
Facility Assigned<\/td>\n <\/td>\nfor all Lenders*<\/td>\n <\/td>\nAssigned*<\/td>\n <\/td>\nAdvances1<\/sup><\/td>\n<\/tr>\n
\n
Revolving Credit\n<\/p>\n<\/td>\n
 <\/td>\n$                     <\/u>\n<\/td>\n <\/td>\n$                     <\/u>\n<\/td>\n <\/td>\n                     <\/u>%<\/td>\n<\/tr>\n<\/table>\n
[7.      Trade Date:                     <\/u>                    <\/u>]2<\/sup><\/p>\n
Effective Date:                     <\/u>                    <\/u>, 20___[TO BE INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE
\nDATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]<\/p>\n
The terms set forth in this Assignment and Assumption are hereby agreed to:\n<\/p>\n
ASSIGNOR<\/u>\n<\/p>\n
[NAME OF ASSIGNOR]\n<\/p>\n
By:\n<\/p>\n
Title:<\/p>\n
ASSIGNEE<\/u>\n<\/p>\n
[NAME OF ASSIGNEE]\n<\/p>\n
By:\n<\/p>\n
Title:\n<\/p>\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
*<\/td>\n <\/td>\nAmount to be adjusted to take into account any payments
\nor prepayments made between the Trade Date and the Effective Date.<\/td>\n<\/tr>\n
 <\/td>\n<\/tr>\n
1<\/sup><\/td>\n <\/td>\nSet forth, to at least 9 decimals, as a percentage of
\nthe Commitment\/Loans of all Lenders thereunder.<\/td>\n<\/tr>\n
 <\/td>\n<\/tr>\n
2<\/sup><\/td>\n <\/td>\nTo be completed if the Assignor and the
\nAssignee intend that the minimum assignment amount is to be determined as of
\nthe Trade Date.<\/td>\n<\/tr>\n<\/table>\n
\n
\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Consented to and Accepted:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
CITIBANK, N.A., as Administrative Agent<\/td>\n <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
\n
By: <\/p>\n<\/td>\n
 <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\nTitle:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
[Consented to:]<\/td>\n <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
[PEPSICO, INC.]<\/td>\n <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
\n
By: <\/p>\n<\/td>\n
 <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\nTitle:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
[BANK OF AMERICA, N.A., as L\/C Issuer]<\/td>\n <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
\n
By:<\/p>\n<\/td>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\nTitle:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n<\/table>\n
\n
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION<\/i><\/b><\/p>\n
STANDARD TERMS AND CONDITIONS FOR
\nASSIGNMENT AND ASSUMPTION<\/p>\n
1. Representations and Warranties<\/u>.\n<\/p>\n
     1.1. Assignor<\/u>. The Assignor (a) represents and warrants that (i) it is the legal and
\nbeneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
\nlien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
\nall action necessary, to execute and deliver this Assignment and Assumption and to consummate the
\ntransactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
\nstatements, warranties or representations made in or in connection with the Credit Agreement or any
\nother Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
\nsufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
\ncondition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in
\nrespect of any Loan Document or (iv) the performance or observance by the Company, any of its
\nSubsidiaries or Affiliates or any other Person of any of their respective obligations under any
\nLoan Document.<\/p>\n
     1.2. Assignee<\/u>. The Assignee (a) represents and warrants that (i) it has full power
\nand authority, and has taken all action necessary, to execute and deliver this Assignment and
\nAssumption and to consummate the transactions contemplated hereby and to become a Lender under the
\nCredit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
\n(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
\nafter the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
\nthereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
\nthereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
\nrecent financial statements delivered pursuant to Section 5.01(d) thereof, as applicable, and such
\nother documents and information as it has deemed appropriate to make its own credit analysis and
\ndecision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the
\nbasis of which it has made such analysis and decision independently and without reliance on the
\nAgent or any other Lender, and (v) if it is a Lender that is not a “United States person” within
\nthe meaning of Section 7701(a)(30) of the Internal Revenue Code (a “Foreign Lender\u0092), attached
\nhereto is any documentation required to be delivered by it pursuant to the terms of the Credit
\nAgreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will,
\nindependently and without reliance on the Agent, the Assignor or any other Lender, and based on
\nsuch documents and information as it shall deem appropriate at the time, continue to make its own
\ncredit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform
\nin accordance with their terms all of the obligations which by the terms of the Loan Documents are
\nrequired to be performed by it as a Lender.<\/p>\n
     2. Payments<\/u>. From and after the Effective Date, the Agent shall make all payments in
\nrespect of the Assigned Interest (including payments of principal, interest, fees and other
\namounts) to the Assignee whether such amounts have accrued prior to or on or after the Effective
\nDate. The Assignor and the Assignee shall make all appropriate adjustments in\n<\/p>\n
\n
payments by the Agent for periods prior to the Effective Date or with respect to the making of
\nthis assignment directly between themselves.\n<\/p>\n
     3. General Provisions<\/u>. This Assignment and Assumption shall be binding upon, and
\ninure to the benefit of, the parties hereto and their respective successors and assigns. This
\nAssignment and Assumption may be executed in any number of counterparts, which together shall
\nconstitute one instrument. Delivery of an executed counterpart of a signature page of this
\nAssignment and Assumption by telecopy shall be effective as delivery of a manually executed
\ncounterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
\nby, and construed in accordance with, the laws of the State of New York.\n<\/p>\n
\n
Exhibit D to
\nCredit Agreement\n<\/p>\n
FORM OF DESIGNATION LETTER\n<\/p>\n
May __, 2006\n<\/p>\n
To
\nCitibank, N.A.,
      as
\nAgent<\/p>\n
Attention:<\/p>\n
Ladies and Gentlemen:<\/p>\n
     We make reference to the Five-Year Credit Agreement (as amended or modified from time to time,
\nthe “Credit Agreement<\/u>“; the terms defined therein being used herein as therein defined)
\ndated as of May 22, 2006 among PepsiCo, Inc., (the “Company<\/u>“), Citibank, N.A., as Agent
\n(the “Agent<\/u>“), and the banks party thereto (the “Initial Lenders<\/u>“).<\/p>\n
     The Company hereby designates [                    <\/u>                    <\/u>] (the “Borrowing Subsidiary<\/u>“), a
\nSubsidiary of the Company and a corporation duly incorporated under the laws of [                    <\/u>                    <\/u>],
\nas a Borrower in accordance with Section 2.17 of the Credit Agreement until such designation is
\nterminated in accordance with said Section 2.17.\n<\/p>\n
     The Borrowing Subsidiary hereby accepts the above designation and hereby expressly and
\nunconditionally accepts the obligations of a Borrower under the Credit Agreement, adheres to the
\nCredit Agreement and agrees and confirms that, upon your execution and return to the Company of the
\nenclosed copy of this letter, such Borrowing Subsidiary shall be a Borrower for purposes of the
\nCredit Agreement and agrees to be bound by and perform and comply with the terms and provisions of
\nthe Credit Agreement applicable to it as if it had originally executed the Credit Agreement as a
\nBorrower. The Borrowing Subsidiary hereby authorizes and empowers the Company to act as its
\nrepresentative and attorney-in-fact for the purposes of signing documents and giving and receiving
\nnotices (including notices of Borrowing under the Credit Agreement) and other communications in
\nconnection with the Credit Agreement and the transactions contemplated thereby and for the purposes
\nof modifying or amending any provision of the Credit Agreement and further agrees that the Agent
\nand each Lender may conclusively rely on the foregoing authorization.\n<\/p>\n
     The Company hereby represents and warrants to the Agent and each Lender that, before and after
\ngiving effect to this Designation Letter, (i) the representations and warranties set forth in
\nSection 4.01 of the Credit Agreement (except the representations set forth in the last sentence of
\nsubsection (e) thereof and in subsection (f) thereof (other than clause (ii) thereof)) are true and
\ncorrect on the Effective Date as if made on and as of the date hereof and (ii) no Default has
\noccurred and is continuing. The Borrowing Subsidiary represents and warrants that each of the
\nrepresentations and warranties set forth in Section 4.01(a) (as if the reference therein to North<\/p>\n
\n
Carolina were a reference to its jurisdiction of organization), (b), (c) and (d) of the Credit
\nAgreement are true as if each reference therein to the Company were a reference to the Borrowing
\nSubsidiary and as if each reference therein to the Loan Documents were a reference to this
\nDesignation Letter and the Note executed by the Borrowing Subsidiary in connection herewith.\n<\/p>\n
     The Borrowing Subsidiary hereby aware that this Designation Letter, the Credit Agreement and
\nthe Notes shall be governed by, and construed in accordance with, the laws of the State of New
\nYork. The Borrowing Subsidiary hereby submits to the nonexclusive jurisdiction of the United
\nStates District Court for the Southern District of New York and of any New York state court sitting
\nin New York City for the purposes of all legal proceedings arising out of or relating to this
\nDesignation Letter, the Credit Agreement or the transactions contemplated thereby. The Borrowing
\nSubsidiary irrevocably waives, to the fullest extent permitted by law, any objection which it may
\nnow or hereafter have to the laying of the venue of any such proceeding brought in such a court and
\nany claim that any such proceeding brought in such a court has been brought in an inconvenient
\nforum. The Borrowing Subsidiary further agrees that service of process in any such action or
\nproceeding brought in New York may be made upon it by service upon the Borrower at the “Address for
\nNotices” specified below its name on the signature pages to the Credit Agreement.\n<\/p>\n
     Without limiting the foregoing, the Borrowing Subsidiary joins in the submission, agreements,
\nwaivers and consents in Section 8.11 and 8.12 of the Credit Agreement.\n<\/p>\n
\n\n\n\n\n\n\n\n\n\n\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\nPEPSICO, INC.<\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
\n<\/td>\n <\/td>\nBy<\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\nTitle:<\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n
 <\/td>\n <\/td>\n[NAME OF BORROWING SUBSIDIARY]<\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
\n<\/td>\n <\/td>\nBy<\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n <\/td>\n <\/td>\nTitle:<\/td>\n<\/tr>\n<\/table>\n
\n\n\n\n\n\n\n\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
ACCEPTED<\/td>\n <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n
CITIBANK, N.A.,
\n    as Agent<\/td>\n		 <\/td>\n <\/td>\n<\/tr>\n\n<\/td>\n <\/td>\n <\/td>\n <\/td>\n
\n
By<\/p>\n<\/td>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\n\n<\/td>\n <\/td>\n <\/td>\n<\/tr>\n
\n<\/td>\nTitle:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n<\/table>\n
\n
Exhibit E to
\nCredit Agreement\n<\/p>\n
FORM OF TERMINATION LETTER\n<\/p>\n
To Citibank, N.A.,
 as
\nAgent<\/p>\n
Attention:<\/p>\n
Ladies and Gentlemen:<\/p>\n
     We make reference to the Five-Year Credit Agreement (as amended or modified from time to time,
\nthe “Credit Agreement<\/u>“; the terms defined therein being used herein as therein defined)
\ndated as of May 22, 2006 by and among PepsiCo, Inc. (the “Company<\/u>“), Citibank, N.A., as
\nAgent, and the banks party thereto.\n<\/p>\n
     The Company hereby terminates the status as a Borrowing Subsidiary of [                    <\/u>                    <\/u>], a
\ncorporation incorporated under the laws of [                    <\/u>                    <\/u>]<\/u>, in accordance with Section
\n2.17 of the Credit Agreement, effective as of the date of receipt of this notice by the Agent. The
\nundersigned hereby represents and warrants that all principal of and interest on any Advance of the
\nabove-referenced Borrowing Subsidiary and all other amounts payable by such Borrowing Subsidiary
\npursuant to the Credit Agreement have been paid in full on or prior to the date hereof.
\nNotwithstanding the foregoing, this Termination Letter shall not affect any obligation which by the
\nterms of the Credit Agreement survives termination thereof.<\/p>\n
\n
PEPSICO, INC.<\/b>\n<\/p>\n
 By:\n<\/p>\n
Name:\n<\/p>\n
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