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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): May 24, 2024
PepsiCo, Inc.
(Exact name of registrant as specified in
its charter)
North Carolina |
1-1183 |
13-1584302 |
(State or other jurisdiction of
incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
|
700 Anderson Hill Road, Purchase, New York |
10577 |
|
(Address of principal executive offices) |
(Zip
Code) |
Registrant’s telephone number, including
area code: (914) 253-2000
N/A
(Former name or former address, if changed
since last report)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section
12(b) of the Securities Exchange Act of 1934:
Title of each class |
|
Trading Symbol |
|
Name of each exchange on which registered |
Common Stock, par value 1-2/3 cents per share |
|
PEP |
|
The Nasdaq Stock Market LLC |
2.625% Senior Notes due 2026 |
|
PEP26 |
|
The Nasdaq Stock Market LLC |
0.750% Senior Notes due 2027 |
|
PEP27 |
|
The Nasdaq Stock Market LLC |
0.875% Senior Notes due 2028 |
|
PEP28 |
|
The Nasdaq Stock Market LLC |
0.500% Senior Notes due 2028 |
|
PEP28A |
|
The Nasdaq Stock Market LLC |
3.200% Senior Notes due 2029 |
|
PEP29 |
|
The Nasdaq Stock Market LLC |
1.125% Senior Notes due 2031 |
|
PEP31 |
|
The Nasdaq Stock Market LLC |
0.400% Senior Notes due 2032 |
|
PEP32 |
|
The Nasdaq Stock Market LLC |
0.750% Senior Notes due 2033 |
|
PEP33 |
|
The Nasdaq Stock Market LLC |
3.550% Senior Notes due 2034 |
|
PEP34 |
|
The Nasdaq Stock Market LLC |
0.875% Senior Notes due 2039 |
|
PEP39 |
|
The Nasdaq Stock Market LLC |
1.050% Senior Notes due 2050 |
|
PEP50 |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company |
¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. |
¨ |
Effective
May 24, 2024, PepsiCo, Inc. (“PepsiCo”) terminated the $4,200,000,000 364 day unsecured revolving credit
agreement, dated as of May 26, 2023, among PepsiCo, as borrower, the lenders party thereto, and Citibank, N.A., as administrative
agent (the “2023 364 Day Credit Agreement”). There were no outstanding borrowings under the 2023 364 Day Credit Agreement
at the time of its termination.
On
May 24, 2024, PepsiCo entered into a new $5,000,000,000 364 day unsecured revolving credit agreement (the “2024 364 Day
Credit Agreement”) among PepsiCo, as borrower, the lenders party thereto, and Citibank, N.A., as administrative agent. The 2024
364 Day Credit Agreement enables PepsiCo and its borrowing subsidiaries to borrow up to $5,000,000,000 in U.S. Dollars and/or Euros, subject
to customary terms and conditions, and expires on May 23, 2025. PepsiCo may also, upon the agreement of either the then existing
lenders or of additional banks not currently party to the 2024 364 Day Credit Agreement, increase the commitments under the 2024 364 Day
Credit Agreement to up to an aggregate amount of $5,750,000,000 in U.S. Dollars and/or Euros. PepsiCo may request renewal of the 2024
364 Day Credit Agreement for an additional 364 day period or convert any amounts outstanding into a term loan for a period of up to one
year, which term loan would mature no later than the anniversary of the then effective termination date. Subject to certain conditions
stated in the 2024 364 Day Credit Agreement, PepsiCo and its borrowing subsidiaries may borrow, prepay and reborrow amounts under the
2024 364 Day Credit Agreement at any time during the term of the 2024 364 Day Credit Agreement. Funds borrowed under the 2024 364 Day
Credit Agreement may be used for general corporate purposes of PepsiCo and its subsidiaries. The 2024 364 Day Credit Agreement contains
customary representations and warranties and events of default. In the ordinary course of their respective businesses, the lenders under
the 2024 364 Day Credit Agreement and their affiliates have engaged, and may in the future engage, in commercial banking and/or investment
banking transactions with PepsiCo and its affiliates.
Effective
May 24, 2024, PepsiCo terminated the $4,200,000,000 five year unsecured revolving credit agreement, dated as of May 26, 2023,
among PepsiCo, as borrower, the lenders party thereto, and Citibank, N.A., as administrative agent (the “2023 Five Year Credit
Agreement”). There were no outstanding borrowings under the 2023 Five Year Credit Agreement at the time of its termination.
On
May 24, 2024, PepsiCo entered into a new $5,000,000,000 five year unsecured revolving credit agreement (the “2024 Five Year
Credit Agreement”) among PepsiCo, as borrower, the lenders party thereto, and Citibank, N.A., as administrative agent. The 2024
Five Year Credit Agreement enables PepsiCo and its borrowing subsidiaries to borrow up to $5,000,000,000 in U.S. Dollars and/or Euros,
including a $750,000,000 swing line subfacility for Euro-denominated borrowings permitted to be borrowed on a same day basis, subject
to customary terms and conditions, and expires on May 24, 2029. PepsiCo may also, upon the agreement of either the then existing
lenders or of additional banks not currently party to the 2024 Five Year Credit Agreement, increase the commitments under the 2024 Five
Year Credit Agreement to up to an aggregate amount of $5,750,000,000 in U.S. Dollars and/or Euros. PepsiCo may, up to two times during
the term of the 2024 Five Year Credit Agreement, request extension of the 2024 Five Year Credit Agreement for an additional one year period.
Subject to certain conditions stated in the 2024 Five Year Credit Agreement, PepsiCo and its borrowing subsidiaries may borrow, prepay
and reborrow amounts under the 2024 Five Year Credit Agreement at any time during the term of the 2024 Five Year Credit Agreement. Funds
borrowed under the 2024 Five Year Credit Agreement may be used for general corporate purposes of PepsiCo and its subsidiaries. The 2024
Five Year Credit Agreement contains customary representations and warranties and events of default. In the ordinary course of their respective
businesses, the lenders under the 2024 Five Year Credit Agreement and their affiliates have engaged, and may in the future engage, in
commercial banking and/or investment banking transactions with PepsiCo and its affiliates.
The
foregoing descriptions of the 2024 364 Day Credit Agreement and 2024 Five Year Credit Agreement do not purport to be complete and are
qualified in their entirety by reference to the full text of the 2024 364 Day Credit Agreement and the 2024 Five Year Credit Agreement,
as applicable, which are filed as Exhibits 99.1 and 99.2 to this Current Report on Form 8-K and incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
99.1 |
364
Day Credit Agreement, dated as of May 24, 2024, among PepsiCo, as borrower, the lenders named therein, and Citibank, N.A., as
administrative agent. |
|
|
99.2 |
Five
Year Credit Agreement, dated as of May 24, 2024, among PepsiCo, as borrower, the lenders named therein, and Citibank, N.A.,
as administrative agent. |
|
|
104 |
The
cover page from this Current Report on Form 8-K, formatted in Inline XBRL. |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: May 24, 2024 |
PepsiCo, Inc. |
|
|
|
By: |
/s/ Cynthia A. Nastanski |
|
|
Name: |
Cynthia A. Nastanski |
|
|
Title: |
Senior Vice President, Corporate Law and Deputy Corporate Secretary |
Exhibit 99.1
EXECUTION VERSION
U.S. $5,000,000,000
364-DAY
CREDIT AGREEMENT
Dated as of May 24,
2024
among
PEPSICO, INC.,
as Borrower,
THE LENDERS NAMED
HEREIN,
CITIBANK, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK,
N.A.
and
BANK OF AMERICA, N.A.,
as Syndication Agent,
CITIBANK, N.A.,
JPMORGAN CHASE BANK, N.A.
and
BOFA SECURITIES, INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
|
|
|
|
|
Page |
|
|
|
|
|
|
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS |
|
1 |
|
Section
1.01 |
|
Certain Defined Terms |
|
1 |
|
Section
1.02 |
|
Computation of Time Periods |
|
13 |
|
Section
1.03 |
|
Accounting Terms |
|
13 |
|
Section
1.04 |
|
Divisions |
|
14 |
|
Section
1.05 |
|
Rates |
|
14 |
|
|
|
|
|
|
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES |
|
14 |
|
Section
2.01 |
|
The Advances |
|
14 |
|
Section
2.02 |
|
Making the Advances |
|
14 |
|
Section
2.03 |
|
[Reserved] |
|
16 |
|
Section
2.04 |
|
Fees |
|
16 |
|
Section
2.05 |
|
Termination, Reduction
or Increase of Commitments |
|
16 |
|
Section
2.06 |
|
Repayment of Advances;
Extension of Termination Date |
|
19 |
|
Section
2.07 |
|
Interest on Advances |
|
20 |
|
Section
2.08 |
|
Interest Rate Determination |
|
20 |
|
Section
2.09 |
|
Optional Conversion or
Continuation of Advances |
|
21 |
|
Section
2.10 |
|
Prepayments of Advances |
|
22 |
|
Section
2.11 |
|
Increased Costs |
|
23 |
|
Section
2.12 |
|
Illegality |
|
23 |
|
Section
2.13 |
|
Payments and Computations;
Evidence of Advances |
|
24 |
|
Section
2.14 |
|
Taxes |
|
25 |
|
Section
2.15 |
|
Sharing of Payments, Etc. |
|
28 |
|
Section
2.16 |
|
Use of Proceeds |
|
29 |
|
Section
2.17 |
|
Borrowings by Borrowing
Subsidiaries |
|
29 |
|
Section
2.18 |
|
Benchmark Replacement Setting |
|
30 |
|
Section
2.19 |
|
Defaulting Lenders |
|
34 |
|
|
|
|
|
|
ARTICLE III CONDITIONS TO EFFECTIVENESS
AND LENDING |
|
35 |
|
Section
3.01 |
|
Conditions Precedent to
Effectiveness |
|
35 |
|
Section
3.02 |
|
Conditions Precedent to
Each Borrowing |
|
37 |
|
Section
3.03 |
|
Conditions Precedent to
Term Loan Conversion Date |
|
37 |
|
Section
3.04 |
|
Determinations Under Section
3.01 |
|
37 |
|
|
|
|
|
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES |
|
38 |
|
Section 4.01 |
|
Representations
and Warranties of the Company |
|
38 |
|
|
|
|
|
|
ARTICLE V COVENANTS OF THE COMPANY |
|
39 |
|
Section
5.01 |
|
Affirmative Covenants |
|
39 |
|
Section
5.02 |
|
Negative Covenants |
|
40 |
|
|
|
|
|
|
ARTICLE VI EVENTS OF DEFAULT |
|
42 |
|
Section 6.01 |
|
Events
of Default |
|
42 |
ARTICLE VII THE AGENT |
|
43 |
|
Section
7.01 |
|
Appointment and Authority |
|
43 |
|
Section
7.02 |
|
Rights as a Lender |
|
44 |
|
Section
7.03 |
|
Exculpatory Provisions |
|
44 |
|
Section
7.04 |
|
Reliance by Agent |
|
45 |
|
Section
7.05 |
|
Indemnification |
|
45 |
|
Section
7.06 |
|
Delegation of Duties |
|
45 |
|
Section
7.07 |
|
Resignation of Agent |
|
46 |
|
Section
7.08 |
|
Non-Reliance on Agent and
Other Lenders |
|
46 |
|
Section
7.09 |
|
Syndication Agent and Lead
Arrangers |
|
47 |
|
Section
7.10 |
|
Certain ERISA Matters |
|
47 |
|
Section
7.11 |
|
Erroneous Payments |
|
48 |
ARTICLE
VIII MISCELLANEOUS |
|
50 |
|
Section
8.01 |
|
Amendments, Etc. |
|
50 |
|
Section
8.02 |
|
Notices, Etc. |
|
51 |
|
Section
8.03 |
|
No Waiver; Remedies |
|
51 |
|
Section
8.04 |
|
Costs and Expenses |
|
52 |
|
Section
8.05 |
|
Right of Set-off |
|
53 |
|
Section
8.06 |
|
Binding Effect |
|
53 |
|
Section
8.07 |
|
Assignments and Participations |
|
53 |
|
Section
8.08 |
|
Confidentiality |
|
56 |
|
Section
8.09 |
|
Governing Law |
|
57 |
|
Section
8.10 |
|
Execution in Counterparts |
|
57 |
|
Section
8.11 |
|
Jurisdiction, Etc. |
|
57 |
|
Section
8.12 |
|
WAIVER OF JURY TRIAL |
|
58 |
|
Section
8.13 |
|
USA PATRIOT Act Notice |
|
58 |
|
Section
8.14 |
|
No Fiduciary Duties |
|
58 |
|
Section
8.15 |
|
Acknowledgement and Consent
to Bail-In of Affected Financial Institutions |
|
59 |
|
Section 8.16 |
|
Judgment |
|
60 |
|
|
|
|
|
|
ARTICLE IX GUARANTEE |
|
61 |
|
Section
9.01 |
|
Guarantee |
|
61 |
|
Section
9.02 |
|
Obligations Unconditional |
|
61 |
|
Section
9.03 |
|
Reinstatement |
|
62 |
|
Section
9.04 |
|
Subrogation |
|
62 |
|
Section
9.05 |
|
Remedies |
|
62 |
|
Section
9.06 |
|
Continuing Guarantee |
|
62 |
Schedules
Schedule I Agent’s Address
Exhibits
Exhibit A Form of Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Assignment and Assumption
Exhibit D Form of Designation Letter
Exhibit E Form of Termination Letter
364-DAY CREDIT
AGREEMENT
Dated as of May 24,
2024
PEPSICO, INC.,
a North Carolina corporation (the “Company”), the banks, financial institutions and other institutional lenders (the
“Initial Lenders”) listed on the signature pages hereof, and Citibank, N.A., as administrative agent (in such
capacity, the “Agent”) for the Lenders (as hereinafter defined), agree, as of May 24, 2024, as follows:
PRELIMINARY STATEMENT
The
Company has requested that the Lenders agree to extend credit to it and the Borrowing Subsidiaries from time to time in an aggregate
principal amount of up to $5,000,000,000 for general corporate purposes of the Company and its Subsidiaries, including but not limited
to working capital, capital investments and acquisitions. The Lenders have indicated their willingness to agree to extend credit
to the Company and the Borrowing Subsidiaries from time to time in such amount on the terms and conditions set forth in this Agreement.
ARTICLE I
DEFINITIONS AND
ACCOUNTING TERMS
Section 1.01 Certain
Defined Terms.
As
used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
“Act”
has the meaning specified in Section 8.13.
“Adjusted
Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus
(b) 0.10%; provided that if Adjusted Term SOFR as so determined shall ever be less than the zero, then Adjusted Term SOFR shall
be deemed to be zero.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by the Agent.
“Advance”
means an advance by a Lender to a Borrower as part of a Borrowing and refers to a Base Rate Advance, a Eurocurrency Rate Advance or a
Term SOFR Advance (each of which shall be a “Type” of Advance).
“Affected
Financial Institution” has the meaning specified in Section 8.15.
“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms
“controlling”, “controlled by” and “under common control with”) of a Person means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the
ownership of Voting Stock, by contract or otherwise.
“Agent”
has the meaning specified in the preamble.
“Agent’s
Account” means such account, in respect of Advances denominated in Dollars or in respect of Advances denominated in Euros,
as the Agent shall designate from time to time in a notice to the Company and the Lenders.
“Agent’s
Address” means the address or addresses on Schedule I attached hereto.
“Anti-Corruption
Laws” means the United States Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act, as amended.
“Applicable
Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate
Advance or a Term SOFR Advance and such Lender’s Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, and accepted by the Agent,
in substantially the form of Exhibit C hereto.
“Available
Currency” has the meaning specified in Section 2.18.
“Available
Tenor” has the meaning specified in Section 2.18.
“Bail-In
Action” has the meaning specified in Section 8.15.
“Bail-In
Legislation” has the meaning specified in Section 8.15.
“Base
Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal
to the highest of:
(a) the
rate of interest in effect for such day as publicly announced from time to time by Citibank, N.A. in the United States as its “base
rate”, and notified to the Company at its request (it being understood and agreed that such base rate is a rate set by Citibank,
N.A. based on various factors and is used as a reference point for pricing some loans);
(b) the
Federal Funds Rate plus 0.50%; and
(c) Adjusted
Term SOFR for a one-month tenor in effect on such day plus 1.00%.
“Base
Rate Advance” means an Advance denominated in Dollars that bears interest as provided in Section 2.07(a).
“Benchmark”
has the meaning specified in Section 2.18.
“Benchmark
Replacement” has the meaning specified in Section 2.18.
“Benchmark
Replacement Adjustment” has the meaning specified in Section 2.18.
“Benchmark
Replacement Date” has the meaning specified in Section 2.18.
“Benchmark
Transition Event” has the meaning specified in Section 2.18.
“Benchmark
Unavailability Period” has the meaning specified in Section 2.18.
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230.
“Borrower”
means the Company (both as a Borrower and as a guarantor under Article IX of Advances made to the Borrowing Subsidiaries) and each
Borrowing Subsidiary.
“Borrowing”
means a borrowing consisting of simultaneous Advances of the same currency and the same Type made by each of the Lenders pursuant to
Section 2.01.
“Borrowing
Minimum” means, in respect of Advances denominated in Dollars, $10,000,000 and, in respect of Advances denominated in Euros,
€10,000,000.
“Borrowing
Multiple” means, in respect of Advances denominated in Dollars, $1,000,000 and, in respect of Advances denominated in Euros,
€1,000,000.
“Borrowing
Subsidiary” means any Subsidiary of the Company, as to which a Designation Letter has been delivered to the Agent and as to
which a Termination Letter has not been delivered to the Agent in accordance with Section 2.17.
“Business
Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws
of, or are in fact closed in, the state of the Agent’s Address or in New York, New York and if such day relates to a Eurocurrency
Rate Advance, it shall also mean a day on which T2 is open.
“Change
in Law” has the meaning specified in Section 2.14(d).
“Commitment”
means, with respect to any Lender, such Lender’s obligations to make Advances. Such Lender’s Commitment shall be the Dollar
amount set forth opposite such Lender’s name on Schedule I to the Letter Agreement or, if such Lender has entered into any Assignment
and Assumption, set forth for such Lender in the Register maintained by the Agent pursuant to Section 8.07(c), as such amount may
be reduced pursuant to Section 2.05(a) or increased pursuant to Section 2.05(c).
“Communications”
has the meaning specified in Section 8.02(b).
“Company”
has the meaning specified in the preamble.
“Confidential
Information” means information that the Company furnishes to the Agent or any Lender, but does not include any such information
(x) that is or becomes generally available to the public other than by the Agent or any Lender in violation of this Agreement or
(y) that is or becomes rightfully available to the Agent or such Lender from a source other than the Company which the Agent or
such Lender had no reason to believe had any confidentiality or fiduciary obligation to the Company with respect to such information.
“Conforming
Changes” means, with respect to either the use or administration of an initial Benchmark or the use, administration, adoption
or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition
of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business
Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest,
timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage
provisions, the formula for calculating any successor rates identified pursuant to the definition of “Benchmark Replacement”,
the formula, methodology or convention for applying the successor Floor to the successor Benchmark Replacement and other technical, administrative
or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement
and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides
that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice
for the administration of such Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably
necessary in connection with the administration of this Agreement).
“Consolidated”
refers to the consolidation of accounts in accordance with GAAP.
“Consolidated
Net Tangible Assets” means the total assets of the Company and its Restricted Subsidiaries (less applicable depreciation, amortization,
and other valuation reserves), less all current liabilities (excluding intercompany liabilities) and all intangible assets of the Company
and its Restricted Subsidiaries, all as set forth on the most recent consolidated balance sheet of the Company and its Restricted Subsidiaries,
prepared in accordance with GAAP.
“Convert”,
“Conversion” and “Converted” each refers to a conversion of Advances of one Type into Advances
of the other Type pursuant to Section 2.08, 2.09 or 2.18.
“Daily
Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established
by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining
“Daily Simple SOFR” for syndicated business loans; provided that if the Agent decides that any such convention is not administratively
feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
“Debt”
of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services, (c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such property), (e) for purposes only of Article VI, all obligations
of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as finance leases, (f) all
obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g) above
or clause (i) below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose
of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds to or
in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property
is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to
in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt.
“Declining
Lender” has the meaning specified in Section 2.06(b).
“Default”
means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time
elapse or both.
“Default
Rate” means (a) with respect to a Base Rate Advance and any other amount owing hereunder (other than a Term SOFR Advance
or a Eurocurrency Rate Advance), the Base Rate plus two percent (2%) per annum, and (b) with respect to all Term SOFR Advances or
Eurocurrency Rate Advances, the rate otherwise applicable to such Term SOFR Advance or Eurocurrency Rate Advance plus two percent (2%)
per annum.
“Defaulting
Lender” means, subject to Section 2.19(b), any Lender that (a) has failed to (i) fund all or any portion of
its Advances within two Business Days of the date such Advances were required to be funded hereunder unless such Lender notifies the
Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing)
has not been satisfied, or (ii) pay to the Agent or any other Lender any other amount required to be paid by it hereunder within
two Business Days of the date when due, (b) has notified the Company or the Agent in writing that it does not intend to comply with
its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to
such Lender’s obligation to fund an Advance hereunder and states that such position is based on such Lender’s determination
that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified
in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the
Agent or the Company, to confirm in writing to the Agent and the Company that it will comply with its prospective funding obligations
hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such
written confirmation by the Agent and the Company), (d) has defaulted on its funding obligations under other loan agreements or
credit agreements generally, or (e) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding
under the Bankruptcy Code of the United States of America, or any other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United
States or other applicable jurisdictions from time to time in effect, or a Bail-In Action, or (ii) other than pursuant to an Undisclosed
Administration, had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors
or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation
or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting
Lender under this clause (ii) solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct
or indirect parent company thereof by a governmental authority so long as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment
on its assets or permit such Lender (or such governmental authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Agent that a Lender is a Defaulting Lender under clauses (a) through (e) above
shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b))
upon delivery of written notice of such determination to the Company and each Lender.
“Designation
Letter” has the meaning specified in Section 2.17(a).
“Dollars”
and the “$” sign each means lawful currency of the United States of America.
“Domestic
Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office”
in its Administrative Questionnaire or in the Assignment and Assumption pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify in writing to the Company and the Agent.
“EEA
Financial Institution” has the meaning specified in Section 8.15.
“EEA
Member Country” has the meaning specified in Section 8.15.
“EEA
Resolution Authority” has the meaning specified in Section 8.15.
“Effective
Date” has the meaning specified in Section 3.01.
“Eligible
Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; (iii) a commercial bank organized under the laws
of the United States, or any State thereof, and having total assets in excess of $15,000,000,000 and a combined capital and surplus of
at least $1,000,000,000; (iv) a savings and loan association or savings bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $15,000,000,000 and a combined capital and surplus of at least $1,000,000,000; (v) a
commercial bank organized under the laws of any other country that is a member of the Organization for Economic Cooperation and Development
or has concluded special lending arrangements with the International Monetary Fund associated with its General Arrangements to Borrow
or of the Cayman Islands, or a political subdivision of any such country, and having total assets in excess of $15,000,000,000 and a
combined capital and surplus of at least $1,000,000,000, so long as such bank is acting through a branch or agency located in the United
States or in the country in which it is organized or another country that is described in this clause (v); (vi) the central bank
of any country that is a member of the Organization for Economic Cooperation and Development; provided, however, that each
Person described in clauses (ii) through (vi) shall have a short term public debt rating of not less than A-1 by S&P Global
Ratings (or any successor thereto) or P-1 by Moody’s Investors Service, Inc. (or any successor thereto) and shall be approved
by the Company, such approval not to be unreasonably withheld or delayed; and (vii) any other Person approved by the Company, such
approval not to be unreasonably withheld or delayed; provided, however, that (x) neither the Company nor an Affiliate
of the Company, (y) no individual (or a holding company, investment vehicle or trust for, or owned and operated for the primary
benefit of, an individual) and (z) no Defaulting Lender shall qualify as an Eligible Assignee.
“Environmental
Law” means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to the environment, health, safety or Hazardous Materials.
“Equivalent”
in Dollars of Euros on any date means the equivalent in Dollars of Euros determined by using the quoted spot rate at which the Agent’s
principal office in London offers to exchange Dollars for Euros in London at approximately 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required pursuant to the terms of this Agreement, and the “Equivalent”
in Euros of Dollars means the equivalent in Euros of Dollars determined by using the quoted spot rate at which the Agent’s principal
office in London offers to exchange Euros for Dollars in London at approximately 4:00 P.M. (London time) (unless otherwise indicated
by the terms of this Agreement) on such date as is required pursuant to the terms of this Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
“Erroneous
Payment” has the meaning specified in Section 7.11(a).
“Erroneous
Payment Deficiency Assignment” has the meaning specified in Section 7.11(d).
“Erroneous
Payment Return Deficiency” has the meaning specified in Section 7.11(d).
“Erroneous
Payment Subrogation Rights” has the meaning specified in Section 7.11(d).
“EU
Bail-In Legislation Schedule” has the meaning specified in Section 8.15.
“EURIBO
Rate” means, for any Interest Period, the euro interbank offered rate administered by the European Money Markets Institute
(or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation
or republication by the administrator) on the applicable Bloomberg screen (or any successor to or substitute for Bloomberg, providing
rate quotations comparable to those currently provided by Bloomberg, as mutually agreed by the Company and the Agent from time to time
for purposes of providing quotations of interest rates for the offering of deposits in Euro) as of 11:00 A.M. (London time) on the
date two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided
that, if the EURIBO Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Euro”
and “€”shall mean the single currency unit of the member States of the European Union that adopt or have adopted
the Euro as their lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Eurocurrency
Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Eurocurrency Lending Office”
in its Administrative Questionnaire or in the Assignment and Assumption pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify in writing
to the Company and the Agent.
“Eurocurrency
Rate Advance” means an Advance denominated in Euros that bears interest as provided in Section 2.07(c).
“Events
of Default” has the meaning specified in Section 6.01.
“Excluded
Taxes” means (i) taxes imposed on, or measured by, the recipient’s net income (however measured), including branch
profits taxes and franchise taxes imposed in lieu of net income taxes, (ii) non-U.S. withholding taxes imposed solely as a result
of activities or place of incorporation or formation of the applicable Lender or the Agent in such non-U.S. jurisdiction and (iii) taxes
imposed on any “withholdable payment” payable to such recipient as a result of the failure of such recipient to satisfy the
applicable requirements as set forth in FATCA.
“Existing
Credit Agreements” means (a) the Five Year Credit Agreement dated as of May 26, 2023 (as amended, supplemented or
otherwise modified from time to time) among the Company, the banks, financial institutions and other institutional lenders party thereto
and Citibank, N.A., as administrative agent for the Lenders and such other lenders and (b) the 364-Day Credit Agreement dated as
of May 26, 2023 (as amended, supplemented or otherwise modified from time to time) among the Company, the banks, financial institutions
and other institutional lenders party thereto and Citibank, N.A., as administrative agent for the Lenders and such other lenders.
“Existing
Termination Date” has the meaning specified in Section 2.06(b).
“Extending
Lender” has the meaning specified in Section 2.06(b).
“Extension
Date” has the meaning specified in Section 2.06(b).
“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations
thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreement
entered into in connection with the implementation of such Sections of the Internal Revenue Code and any fiscal or regulatory legislation,
rules or practices adopted pursuant to such intergovernmental agreement.
“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by it; provided that, if the Federal Funds Rate shall be
less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Floor”
has the meaning specified in Section 2.18.
“Foreign
Lender” has the meaning specified in Section 2.14(b).
“GAAP”
has the meaning specified in Section 1.03.
“Granting
Lender” has the meaning specified in Section 8.07(a).
“Guaranteed
Obligations” has the meaning specified in Section 9.01.
“Hazardous
Materials” means petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing
materials, radon gas and any other chemicals, materials or substances designated, classified or regulated as being “hazardous”
or “toxic”, or words of similar import, under any federal, state, local or foreign statute, law, ordinance, rule, regulation,
code, order, judgment, decree or judicial or agency interpretation, policy or guideline.
“Hedge
Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
“Income”
has the meaning specified in Section 2.14(a).
“Increase
Date” has the meaning specified in Section 2.05(c)(ii).
“Increase
Notice” has the meaning specified in Section 2.05(c)(ii).
“Increase
Notice Date” has the meaning specified in Section 2.05(c)(ii).
“Indemnified
Party” has the meaning specified in Section 8.04(b).
“Initial
Lenders” has the meaning specified in the preamble.
“Interest
Period” means, for each Term SOFR Advance or Eurocurrency Rate Advance constituting part of the same Borrowing, the period
commencing on the date of such Term SOFR Advance or Eurocurrency Rate Advance or the date of the Conversion of any Base Rate Advance
into such Term SOFR Advance and ending on the last day of the period selected by the Company pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period
selected by the Company pursuant to the provisions below. The duration of each such Interest Period shall be one, three or six months,
as the Company may, upon notice received by the Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided, however, that:
(a) the
Company may not select any Interest Period that ends after the Termination Date or, if the Advances have been converted to a term loan
pursuant to Section 2.06(a) prior to such selection, that ends after the Maturity Date;
(b) Interest
Periods commencing on the same date for Term SOFR Advances or Eurocurrency Rate Advances constituting part of the same Borrowing shall
be of the same duration;
(c) whenever
the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided, however, that, if such extension of any Interest Period
would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(d) whenever
the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day
in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
“Lead
Arrangers” means each of Citibank, N.A., JPMorgan Chase Bank, N.A. and BofA Securities, Inc. in its capacity as a joint
lead arranger and a joint bookrunner.
“Lenders”
means the Initial Lenders and each Person that shall become a party hereto pursuant to Sections 2.05(c), 2.06(b) or 8.07.
“Letter
Agreement” means that certain side letter dated the Effective Date among the parties to this Agreement.
“Lien”
means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including,
without limitation, the lien or retained security title of a conditional vendor.
“Loan
Documents” means, collectively, this Agreement, the Notes, the Letter Agreement, each Designation Letter and each Termination
Letter.
“Material
Adverse Change” means any material adverse change in the financial condition, operations or properties of the Company and its
Subsidiaries taken as a whole.
“Material
Adverse Effect” means a material adverse effect on (a) the financial condition, operations or properties of the Company
and its Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or any Note or
(c) the ability of the Company to perform its obligations under this Agreement or any Note.
“Material
Subsidiary” means each Subsidiary of the Company that is a “significant subsidiary” as defined in Regulation S-X
of the Securities Act of 1933.
“Maturity
Date” means the earlier of (a) the date selected by the Company in any notice of Term Loan Election, but not later than
the first anniversary of the Termination Date and (b) the date of termination in whole of the aggregate Commitments pursuant to
Section 6.01.
“New
Lender” means, for purposes of Section 2.05(c), an Eligible Assignee (which may be a Lender) selected by the Company with
(in the case of a New Lender that is not already a Lender) prior consultation with the Agent.
“Non-Consenting
Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all
affected Lenders in accordance with the terms of Section 8.01 and (ii) has been approved by the Required Lenders.
“Non-Defaulting
Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Note”
means a promissory note of a Borrower payable to the order of any Lender, in substantially the form of Exhibit A hereto, evidencing
the aggregate indebtedness of such Borrower to such Lender resulting from the Advances made by such Lender.
“Notice”
has the meaning specified in Section 8.02(c).
“Notice
of Borrowing” has the meaning specified in Section 2.02(a).
“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Other
Taxes” has the meaning specified in Section 2.14(e).
“Participant
Register” has the meaning specified in Section 8.07(e).
“Payment
Recipient” has the meaning specified in Section 7.11(a).
“Person”
means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.
“Platform”
has the meaning specified in Section 8.02(b).
“Principal
Property” means any single manufacturing or processing plant, office building, warehouse or portion thereof owned or leased
by the Company or a Restricted Subsidiary other than a plant, office building, warehouse or portion thereof which, in the reasonable
opinion of the Company’s Board of Directors, is not of material importance to the business conducted by the Company and
its Restricted Subsidiaries as an entirety.
“Proposed
Aggregate Commitment Increase” has the meaning specified in Section 2.05(c)(i).
“Proposed
Increased Commitment” has the meaning specified in Section 2.05(c)(iv).
“Proposed
New Commitment” has the meaning specified in Section 2.05(c)(iii).
“Protesting
Lender” has the meaning specified in Section 2.17(a).
“Register”
has the meaning specified in Section 8.07(d).
“Related
Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees,
agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Relevant
Governmental Body” has the meaning specified in Section 2.18.
“Removal
Effective Date” has the meaning specified in Section 7.07(b).
“Replacement
Lender” has the meaning specified in Section 2.06(b).
“Required
Lenders” means at any time (i) Lenders having more than 50% of the aggregate amount of the Commitments, and (ii) if
the Commitments of the Lenders have been terminated, Lenders owed more than 50% of the then aggregate unpaid principal amount of the
Borrowings. The unused Commitment of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Resignation
Effective Date” has the meaning specified in Section 7.07(a).
“Resolution
Authority” has the meaning specified in Section 8.15.
“Restricted
Subsidiary” means at any time any Subsidiary of the Company except a Subsidiary which is at the time an Unrestricted Subsidiary.
“Sanctioned
Country” means a country, territory or region that is the subject of comprehensive territorial sanctions administered by OFAC.
“SDN
List” means the Specially Designated Nationals and Blocked Persons list maintained by OFAC.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR
Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing
rate).
“SPV”
has the meaning specified in Section 8.07(a).
“Subsidiary”
of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding Voting Stock of such corporation or limited liability company (irrespective of whether
at the time capital stock or membership interests of any other class or classes of such corporation or limited liability company shall
or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership
or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.
“Syndication
Agent” means each of JPMorgan Chase Bank, N.A. and Bank of America, N.A., in its capacity as a syndication agent.
“T2”
means the real time gross settlement system operated by the Eurosystem, or any successor system.
“Term
Loan Conversion Date” means, if the Term Loan Election has been made, the Termination Date on which all Advances outstanding
on such date are converted into a term loan pursuant to Section 2.06(a).
“Term
Loan Election” has the meaning specified in Section 2.06(a).
“Term
SOFR” means,
(a) for
any calculation with respect to a Term SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period
on the day (such day, the “Periodic Term SOFR Determination Day”) that is two U.S. Government Securities Business
Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however,
that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable
tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference
Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator
on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by
the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three U.S. Government
Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for
any calculation with respect to a Base Rate Advance on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such
day, the “ABR Term SOFR Determination Day”) that is two U.S. Government Securities Business Days prior to such day,
as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time)
on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR
Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be
the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities
Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first
preceding U.S. Government Securities Business Day is not more than three U.S. Government Securities Business Days prior to such ABR SOFR
Determination Day.
“Term
SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference
Rate selected by the Agent in its reasonable discretion).
“Term
SOFR Advance” means an Advance denominated in Dollars that bears interest as provided in Section 2.07(b).
“Term
SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination
Date” means May 23, 2025 or, in the case of any Lender whose Commitment is extended pursuant to Section 2.06(b),
the date to which such Commitment is extended or, if earlier, the date of termination in whole of the Commitments pursuant to Section 2.05(a) or
6.01; provided in each case that if any such date is not a Business Day, the relevant Termination Date of such Lender shall be
the immediately preceding Business Day.
“Termination
Letter” has the meaning specified in Section 2.17(b).
“Total
Committed Increase” has the meaning specified in Section 2.05(c)(v).
“Type”
has the meaning specified in the definition of “Advance”.
“UK
Financial Institution” has the meaning specified in Section 8.15.
“UK
Resolution Authority” has the meaning specified in Section 8.15.
“Unadjusted
Benchmark Replacement” has the meaning specified in Section 2.18.
“Undisclosed
Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator
under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law
requires that such appointment not be disclosed.
“United
States Person” has the meaning specified in Section 7701 of the Internal Revenue Code.
“Unrestricted
Subsidiary” means any Subsidiary of the Company (not at the time designated a Restricted Subsidiary) (i) the major part
of whose business consists of finance, banking, credit, leasing, insurance, financial services, or other similar operations, or any continuation
thereof, (ii) substantially all the assets of which consist of the capital stock of one or more such Subsidiaries or (iii) designated
as such by the Company’s Board of Directors.
“U.S.
Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which
the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the
entire day for purposes of trading in United States government securities.
“Voting
Stock” means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a contingency.
“Write-Down
and Conversion Powers” has the meaning specified in Section 8.15.
Section 1.02 Computation
of Time Periods.
In
this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means
“from and including” and the words “to” and “until” each mean “to but excluding”.
Section 1.03 Accounting
Terms.
All
accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the
United States consistent with those applied in the preparation of the financial statements referred to in Section 4.01(e) (“GAAP”).
Section 1.04 Divisions.
For
all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event
under a different jurisdiction’s laws), if any asset, right, obligation or liability of any Person becomes the asset, right, obligation
or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person.
Section 1.05 Rates.
The
Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation
of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted
Term SOFR, Term SOFR, the EURIBO Rate or any other Benchmark, or any component definition thereof or rates referred to in the definition
thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition
or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), will be similar to,
or produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate,
Adjusted Term SOFR, Term SOFR, the EURIBO Rate, such Benchmark or any other Benchmark prior to its discontinuance or unavailability,
or (b) the effect, implementation or composition of any Conforming Changes. The Agent and its affiliates or other related entities
may engage in transactions that affect the calculation of Base Rate or a Benchmark, any alternative, successor or replacement rate (including
any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Agent may select
information sources or services in its reasonable discretion to ascertain Base Rate, any Benchmark, any component definition thereof
or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to
any Borrower, any Lender or any other person or entity for damages of any kind, including direct
or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise
and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information
source or service.
ARTICLE II
AMOUNTS AND TERMS
OF THE ADVANCES
Section 2.01 The
Advances.
Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to make Advances in Dollars and/or Euros to the Company and
any Borrowing Subsidiary from time to time on any Business Day during the period from the Effective Date until the Termination Date in
an aggregate amount (based in respect of any Advances to be denominated in Euros by reference to the Equivalent thereof in Dollars determined
on the date of delivery of the applicable Notice of Borrowing) not to exceed at any time outstanding such Lender’s Commitment.
Each Borrowing shall be in an aggregate amount of the Borrowing Minimum or an integral multiple of the Borrowing Multiple in excess thereof
and shall consist of Advances of the same Type and in the same currency made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender’s Commitment, each Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.10 and reborrow under this Section 2.01.
Section 2.02 Making
the Advances.
(a) Each
Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City time) on the third U.S. Government
Securities Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Term SOFR Advances, (y) 4:00
P.M. (London time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurocurrency Rate Advances or (z) 11:00 A.M. (New York City time) on the date of the proposed Borrowing in the case of
a Borrowing consisting of Base Rate Advances, by the Company (on its own behalf and on behalf of any Borrowing Subsidiary) to the Agent,
which shall give to each Lender prompt notice thereof by telecopier or email. Each such notice of a Borrowing (a “Notice of
Borrowing”) shall be by e-mail, confirmed promptly in writing, in substantially the form of Exhibit B hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Type of Advances constituting such Borrowing, (iii) aggregate amount
of such Borrowing, (iv) in the case of a Borrowing consisting of Term SOFR Advances or Eurocurrency Rate Advances, the currency
and initial Interest Period for each such Advance and (v) name of the relevant Borrower (which shall be the Company or a Borrowing
Subsidiary). Each Lender shall, before 1:00 P.M. (New York City time) on the date of such Borrowing, make available for the account
of its Applicable Lending Office to the Agent at the applicable Agent’s Account, in same day funds, such Lender’s ratable
portion of such Borrowing. After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth
in Article III, the Agent will make such same day funds available to the relevant Borrower at such Borrower’s account at the
Agent’s address referred to in Section 8.02.
(b) Anything
in subsection (a) above to the contrary notwithstanding, (i) the Company may not select Term SOFR Advances or Eurocurrency
Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less than the Borrowing Minimum or if the obligation of
the Lenders to make Term SOFR Advances or Eurocurrency Rate Advances, as applicable, shall then be suspended pursuant to Section 2.08
or 2.12 and (ii) the Term SOFR Advances and Eurocurrency Rate Advances may not be outstanding as part of more than twelve separate
Borrowings.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the relevant Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Term SOFR Advances or Eurocurrency Rate Advances, the Company shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a result of any failure by the applicable Borrower to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not
made on such date.
(d) Unless
the Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the
Agent such Lender’s ratable portion of such Borrowing, the Agent may assume that such Lender has made such portion available to
the Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance
upon such assumption, make available to the relevant Borrower on such date a corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of a Borrower, the interest rate applicable
at the time to Advances comprising such Borrowing and (ii) in the case of such Lender, (A) the Federal Funds Rate in the case
of Advances denominated in Dollars or (B) the cost of funds incurred by the Agent in respect of such amount in the case of Advances
denominated in Euros. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such
Lender’s Advance as part of such Borrowing for purposes of this Agreement and shall be made available in same day funds to the
relevant Borrower’s account at the Agent’s address referred to in Section 8.02.
(e) The
failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Section 2.03 [Reserved].
Section 2.04 Fees.
(a) Commitment
Fee. The Company agrees to pay to the Agent for the account of each Lender a commitment fee on the aggregate amount of such Lender’s
unused portion of the Commitment from the Effective Date in the case of each Initial Lender and from the effective date specified in
the Assignment and Assumption pursuant to which it became a Lender in the case of each other Lender until the Termination Date (on a
daily basis) at a rate per annum equal to 0.025%, payable in arrears quarterly on the last day of each June, September, December and
March, commencing June 30, 2024, and on the Termination Date.
(b) Agent’s
Fees. The Company shall pay to the Agent for its own account such fees as may from time to time be agreed between the Company and
the Agent.
Section 2.05 Termination,
Reduction or Increase of Commitments.
(a) The
Company shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the Lenders; provided that each partial reduction shall be in the aggregate
amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof and provided, further that the aggregate
amount of the Commitments of the Lenders shall not be reduced to an amount that is less than the aggregate principal amount of the Advances
then outstanding.
(b) If
any Lender (i) shall make a demand under Section 2.11 or 2.14 or (ii) is a Defaulting Lender or Non-Consenting Lender,
the Company shall have the right, upon at least three Business Days’ notice, to terminate in full the Commitment of such Lender
or to demand that such Lender assign to one or more Persons all of its rights and obligations under this Agreement in accordance with
Section 8.07. If the Company shall elect to terminate in full the Commitment of any Lender pursuant to this Section 2.05(b),
the Company shall pay to such Lender, on the effective date of such Lender’s Commitment termination, an amount equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this Agreement, whereupon such Lender shall cease to be a party hereto.
(c) (i)
From time to time, the Company may propose to increase the aggregate amount of the Commitments by an aggregate amount of $25,000,000
or an integral multiple of $1,000,000 in excess thereof (a “Proposed Aggregate Commitment Increase”) in the manner
set forth below, provided that:
(1) no
Default shall have occurred and be continuing either as of the applicable Increase Notice Date (as hereinafter defined) or as of the
related Increase Date (as hereinafter defined); and
(2) after
giving effect to any such increase, the aggregate amount of the Commitments shall not exceed $5,750,000,000.
(ii) From
time to time the Company may request an increase in the aggregate amount of the Commitments by delivering to the Agent a notice (an “Increase
Notice”; the date of delivery thereof to the Agent being the “Increase Notice Date”) specifying (1) the
Proposed Aggregate Commitment Increase, (2) the proposed date (the “Increase Date”) on which the Commitments
would be so increased (which Increase Date may not be fewer than 30 days after the Increase Notice Date) and (3) the New Lenders,
if any, to whom the Company desires to offer the opportunity to commit to all or a portion of the Proposed Aggregate Commitment Increase.
The Agent shall in turn promptly notify each Lender of the Company’s request by sending each Lender a copy of such notice.
(iii) Not
later than the date five days after the Increase Notice Date, the Agent shall notify each New Lender, if any, identified in the related
Increase Notice of the opportunity to commit to all or any portion of the Proposed Aggregate Commitment Increase. Each such New Lender
may irrevocably commit to all or a portion of the Proposed Aggregate Commitment Increase (such New Lender’s “Proposed
New Commitment”) by notifying the Agent (which shall give prompt notice thereof to the Company) before 11:00 A.M. (New
York City time) on the date that is 10 days after the Increase Notice Date; provided that:
(1) the
Proposed New Commitment of each New Lender shall be in an amount not less than $25,000,000; and
(2) each
New Lender that submits a Proposed New Commitment shall enter into an agreement in form and substance satisfactory to the Company and
the Agent pursuant to which such New Lender shall undertake a Commitment (and, if any such New Lender is already a Lender, its Commitment
shall be in addition to such Lender’s Commitment hereunder on such date), and shall pay to the Agent a processing and recordation
fee of $3,500 unless waived by the Agent in its sole discretion.
(iv) If,
and only if, the aggregate Proposed New Commitments of all of the New Lenders shall be less than the Proposed Aggregate Commitment Increase,
then (unless the Company otherwise requests) the Agent shall, on or prior to the date that is 15 days after the Increase Notice Date,
notify each Lender of the opportunity to so commit to all or any portion of the Proposed Aggregate Commitment Increase not committed
to by New Lenders pursuant to Section 2.05(c)(iii). Each Lender may, if, in its sole discretion, it elects to do so, irrevocably
offer to commit to all or a portion of such remainder (such Lender’s “Proposed Increased Commitment”) by notifying
the Agent (which shall give prompt notice thereof to the Company) not later than 11:00 A.M. (New York City time) on the date
five days before the Increase Date.
(v) (1) If
the aggregate amount of Proposed New Commitments and Proposed Increased Commitments (such aggregate amount, the “Total Committed
Increase”) equals or exceeds $25,000,000, then, subject to the conditions set forth in Section 2.05(c)(i):
(A) effective
on and as of the Increase Date, the aggregate amount of the Commitments shall be increased by the Total Committed Increase (provided
that the aggregate amount of the Commitments shall in no event be increased pursuant to this Section 2.05(c) to more than
$5,750,000,000) and shall be allocated among the New Lenders and the Lenders as provided in Section 2.05(c)(vi); and
(B) on
the Increase Date, if any Advances are then outstanding, the Company shall borrow Advances from all or certain of the Lenders and/or
(subject to compliance by the Company with Section 8.04(c)) prepay Advances of all or certain of the Lenders such that, after giving
effect thereto, the Advances (including, without limitation, the Types and Interest Periods thereof) shall be held by the Lenders (including
for such purposes New Lenders) ratably in accordance with their respective Commitments.
(2) If
the Total Committed Increase is less than $25,000,000, then the aggregate amount of the Commitments shall not be changed pursuant to
this Section 2.05(c).
(vi) The
Total Committed Increase shall be allocated among New Lenders having Proposed New Commitments and Lenders having Proposed Increased Commitments,
if any, as follows:
(1) If
the Total Committed Increase shall be at least $25,000,000 and less than or equal to the Proposed Aggregate Commitment Increase, then
(x) the initial Commitment of each New Lender shall be such New Lender’s Proposed New Commitment and (y) the Commitment
of each Lender shall be increased by such Lender’s Proposed Increased Commitment, if any.
(2) If
the Total Committed Increase shall be greater than the Proposed Aggregate Commitment Increase, then the Total Committed Increase shall
be allocated:
(x) first
to New Lenders (to the extent of their respective Proposed New Commitments) in such a manner as the Company shall agree; and
(y) then
to Lenders on a pro rata basis based on the ratio of each Lender’s Proposed Increased Commitment (if any) to the aggregate
amount of the Proposed Increased Commitments of all of the Lenders.
(vii) No
increase in the Commitments contemplated hereby shall become effective until the Agent shall have received (x) Notes payable to
each New Lender and each other Lender whose Commitment is being increased to the extent such New Lender or Lender has requested such
a Note pursuant to Section 2.13(e), and (y) evidence satisfactory to the Agent (including an update of the opinion of counsel
provided pursuant to Section 3.01(f)(iv)) that such increases in the Commitments, and borrowings thereunder, have been duly authorized
by all necessary corporate and other action on the part of the Company.
Section 2.06 Repayment
of Advances; Extension of Termination Date.
(a) (i) Subject
to the next succeeding sentence, each Borrower shall repay to the Agent for the ratable account of the Lenders on the Termination Date
the aggregate principal amount of the Advances made to such Borrower then outstanding, and all accrued but unpaid interest in connection
therewith and (ii) the Company shall pay to the Agent for the ratable account of the Lenders on the Termination Date all fees and
all other amounts due hereunder. The Company may, upon notice to the Agent not later than the Termination Date, elect (the “Term
Loan Election”) to convert all of the Advances outstanding on the Termination Date in effect at such time into a term loan
which the Company shall repay in full ratably to the Lenders on the Maturity Date; provided that the Term Loan Election may not
be exercised unless the conditions set forth in Section 3.03 are satisfied on the date of notice of the Term Loan Election and on
the Term Loan Conversion Date. All Advances converted into a term loan pursuant to this Section 2.06(a) shall continue to constitute
Advances except that the Borrowers may not reborrow pursuant to Section 2.01 after all or any portion of such Advances have been
prepaid pursuant to Section 2.10.
(b) The
Company may, by written notice to the Agent (which shall promptly notify the Lenders) not more than 60 nor less than 30 days prior to
each Termination Date (the Termination Date following such notice, the “Extension Date”), request that the Termination
Date then in effect (the “Existing Termination Date”) be extended for a period of 364 days; provided, however,
that the Company shall not have made the Term Loan Election for Advances outstanding on such Termination Date prior to such time. The
Agent shall promptly notify each Lender of such request. If a Lender agrees, acting in its sole discretion, to so extend its Commitment
(each such Lender, an “Extending Lender”), it will notify the Agent, in writing, of its decision to do so not more
than 30 nor less than 20 days before the Extension Date; it being understood that failure to give such notice shall be deemed a decision
not to extend. If any Lender fails to accept the Company’s request for extension of the Termination Date (each such Lender, a “Declining
Lender”), the Company shall have the right, prior to the Extension Date, to require any Declining Lender to assign in full
its rights and obligations under this Agreement to an Eligible Assignee (including any Extending Lender) designated by the Company that
agrees to accept all of such rights and obligations and agrees to such extension (a “Replacement Lender”), provided
that (i) such assignment is otherwise in compliance with Section 8.07, (ii) such Declining Lender receives payment in
full of the principal amount of all Advances owing to such Declining Lender, together with accrued interest thereon to the date of such
payment of principal and all other amounts payable to such Declining Lender under this Agreement and (iii) any such assignment shall
be effective on the Extension Date. If (A) there are no Declining Lenders or all of the Declining Lenders are replaced by Replacement
Lenders as set forth above and (B) no Default shall have occurred and be continuing immediately prior to the Extension Date, the
Termination Date shall be extended by 364 days (except that, if the date on which the Termination Date is to be extended is not a Business
Day, such Termination Date as so extended shall be the next preceding Business Day), and the Agent shall promptly notify the Company
of such extension. If there are any Declining Lenders that are not replaced in accordance with the terms above, the Company may (1) withdraw
its request for an extension and the Existing Termination Date will remain in effect or (2) provided that no Default shall have
occurred and be continuing immediately prior to the Extension Date, on the Extension Date pay any such Declining Lenders in full for
all principal, interest and other amounts owing to such Declining Lender under this Agreement, reduce the aggregate Commitments of the
Lenders by the amount of the Commitment of such Declining Lenders, and extend the Termination Date for 364 days at the reduced aggregate
Commitment amount.
Section 2.07 Interest
on Advances.
Each
Borrower shall pay interest on the unpaid principal amount of each Advance made to such Borrower owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the following rates per annum:
(a) Base
Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable in arrears quarterly on the last Business Day of each March, June, September and December during
such periods and on the date such Base Rate Advance shall be Converted or paid in full.
(b) Term
SOFR Advances. During such periods as such Advance is a Term SOFR Advance, a rate per annum equal
at all times during each Interest Period for such Advance to the sum of (x) Adjusted Term SOFR for such Interest Period for such
Advance plus (y) 0.625%, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration
of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest
Period and on the date such Term SOFR Advance shall be Converted or paid in full.
(c) Eurocurrency
Rate Advances. During such periods as such Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (x) the EURIBO Rate for such Interest Period for such Advance plus (y) 0.625%,
payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurocurrency
Rate Advance shall be Converted or paid in full.
(d) Default
Rate. Upon the occurrence and during the continuance of an Event of Default pursuant to Section 6.01(a), the principal of and,
to the extent permitted by law, interest on the Advances and any other amounts owing hereunder or under the other Loan Documents (including
without limitation fees and expenses) shall bear interest, payable on demand, at the Default Rate.
Section 2.08 Interest
Rate Determination.
(a) The
Agent shall give prompt notice to the Company and the Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07.
(b) If,
due to a major disruption in the interbank funding market with respect to any Term SOFR Advances or Eurocurrency Rate Advances, the Required
Lenders notify the Agent that the Adjusted Term SOFR or the EURIBO Rate, as applicable, for any Interest Period for such Advances will
not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Term SOFR Advances or Eurocurrency
Rate Advances for such Interest Period, the Agent shall forthwith so notify the Borrowers and the Lenders, whereupon (i) each Term
SOFR Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, (ii) each
Eurocurrency Rate Advance shall be exchanged into an Equivalent amount of Dollars and Converted into a Base Rate Advance and (iii) the
obligation of the Lenders to make, or to Convert Advances into, Term SOFR Advances or Eurocurrency Rate Advances shall be suspended until
the Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist.
(c) If
the Company shall fail to select the duration of any Interest Period for any Term SOFR Advances or Eurocurrency Rate Advances in accordance
with the provisions contained in the definition of “Interest Period” in Section 1.01, the Agent will forthwith so notify
the Company and the Lenders and the Company will be deemed to have selected an Interest Period of one month.
(d) On
the date on which the aggregate unpaid principal amount of Term SOFR Advances or Eurocurrency Rate Advances constituting any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than the Borrowing Minimum, such Advances shall automatically (i) if
such Advances are Term SOFR Advances, Convert into Base Rate Advances and (ii) if such Advances are Eurocurrency Rate Advances,
be exchanged for an Equivalent amount of Dollars and Converted into Base Rate Advances.
(e) If
an Event of Default has occurred and is continuing and the Agent, at the request of the Required Lenders, so notifies the Company, then,
so long as an Event of Default is continuing, (i) each Term SOFR Advance and each Eurocurrency Rate Advance shall automatically
(A) if such Advance is a Term SOFR Advance, Convert into a Base Rate Advance and (B) if such Advance is a Eurocurrency Rate
Advance, be exchanged for an Equivalent amount of Dollars and Converted into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Term SOFR Advances or Eurocurrency Rate Advances shall be suspended.
(f) If
Term SOFR cannot be determined in accordance with the definition thereof, or if the EURIBO Rate does not appear Bloomberg, Thompson Reuters
or on another nationally recognized service selected by the Agent,
(i) the
Agent shall forthwith notify the Company and the Lenders that the interest rate cannot be determined for the applicable Advances,
(ii) each
such affected Advance will automatically, on the last day of the then existing Interest Period therefor (A) if such Advance is a
Term SOFR Advance, Convert into a Base Rate Advance and (B) if such Advance is a Eurocurrency Rate Advance, be prepaid by the applicable
Borrower or be automatically exchanged for an Equivalent amount of Dollars and be Converted into a Base Rate Advance (or if such Advance
is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the
obligation of the Lenders to make, or Convert Advances into, Term SOFR Advances or Eurocurrency Rate Advances, as applicable, shall be
suspended until the Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist.
Section 2.09 Optional
Conversion or Continuation of Advances.
The
Company may on any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third U.S.
Government Securities Business Day prior to the date of the proposed Conversion or continuation, and subject to the provisions of Sections
2.08, 2.12 and 2.18, Convert all or any part of the Advances denominated in Dollars of one Type constituting the same Borrowing into
Advances denominated in Dollars of the other Type or continue all or any part of the Advance of one Type constituting the same Borrowing
or Advances of the same Type and in the same currency; provided, however, that any Conversion of Term SOFR Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for such Term SOFR Advances, any Conversion of Base Rate
Advances into Term SOFR Advances shall be in an amount not less than the Borrowing Minimum and no Conversion of any Advances shall result
in more separate Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion or continuation shall, within
the restrictions specified above, specify (i) the date of such Conversion or continuation, (ii) the Dollar denominated Advances
to be Converted or continued, and (iii) if such Conversion is into Term SOFR Advances, the duration of the initial Interest Period
for each such Advance. Each notice of Conversion or continuation shall be irrevocable and binding on the Company.
Section 2.10 Prepayments
of Advances.
(a) Optional.
The Company may, upon at least one Business Day’s notice, in the case of Base Rate Advances, three U.S. Government Securities Business
Days’ notice, in the case of Term SOFR Advances, and three Business Days’ notice, in the case of Eurocurrency Rate Advances,
to the Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Company shall,
prepay the outstanding principal amount of the Advances constituting part of the same Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of the Borrowing Minimum or a Borrowing Multiple in excess thereof and (y) in
the event of any such prepayment of a Term SOFR Advance or a Eurocurrency Rate Advance, the Company shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
(b) Mandatory.
(i) If, on any date, the Agent notifies the Company in accordance with clause (iii) below that, as of the most recent interest
payment date, the sum of (A) the aggregate principal amount of all Advances denominated in Dollars then outstanding plus (B) the
Equivalent in Dollars (determined on the third Business Day prior to such interest payment date) of the aggregate principal amount of
all Advances denominated in Euros then outstanding exceeds 105% of the aggregate Commitments on such date, the Borrowers shall, as soon
as practicable and in any event within five Business Days after receipt of such notice, prepay the outstanding principal amount of any
Advances in an aggregate amount sufficient to reduce such sum to an amount not to exceed 100% of the aggregate Commitments on such date
(subject to the proviso to this sentence set forth below), together with any interest accrued to the date of such prepayment on the aggregate
principal amount of Advances prepaid; provided that if the aggregate principal amount of Base Rate Advances outstanding at the
time of such required prepayment is less than the amount of such required prepayment, the portion of such required prepayment in excess
of the aggregate principal amount of Base Rate Advances then outstanding shall be deferred until the last day of the next maturing Interest
Period of the outstanding Term SOFR Advances or Eurocurrency Rate Advances, in an aggregate amount equal to the excess of such required
prepayment. The Agent shall give prompt notice of any prepayment required under this Section 2.10(b) to the Company in accordance
with clause (iii) below and the Lenders.
(ii) Each
prepayment made pursuant to this Section 2.10(b) shall be made together with any interest accrued to the date of such prepayment
on the principal amounts prepaid and, in the case of any prepayment of a Term SOFR Advance or a Eurocurrency Rate Advance on a date other
than the last day of an Interest Period, any additional amounts which the applicable Borrower shall be obligated to reimburse to the
Lenders in respect thereof pursuant to Section 8.04(c).
(iii) The
Agent shall calculate on the date of each Notice of Borrowing and on each interest payment date the sum of (A) the aggregate principal
amount of all Advances denominated in Dollars plus (B) the Equivalent in Dollars (determined on the third Business Day prior to
the date such calculation is required under this clause (iii)) of the aggregate principal amount of all Eurocurrency Rate Advances and
shall give prompt notice (and in any event no later than thirty days) of any prepayment required in connection with an interest payment
date under this Section 2.10(b) to the Company and the Lenders.
Section 2.11 Increased
Costs.
(a) If,
due to either (i) the introduction of or any change in any law or regulation or in the interpretation or administration of any law
or regulation by any governmental authority charged with the interpretation or administration thereof or (ii) the compliance with
any guideline or request from any central bank or other governmental authority that would be complied with generally by similarly situated
banks acting reasonably (whether or not having the force of law and for the avoidance of doubt, including any changes resulting from
requests, rules, guidelines or directives concerning capital adequacy or liquidity issued after the date hereof in connection with the
Dodd-Frank Wall Street Reform and Consumer Protection Act or promulgated after the date hereof by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,
in each case pursuant to Basel III), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Term SOFR Advances or Eurocurrency Rate Advances (except any reserve requirement contemplated by Section 2.11(b) other
than as set forth below) by an amount deemed by such Lender to be material, then the Company shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient
to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Company and
the Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If,
due to either (i) the introduction of or any change in or interpretation of any law or regulation or (ii) compliance with any
guideline or request from any central bank or other governmental or regulatory authority which becomes effective after the date hereof
(for the avoidance of doubt, including any changes resulting from requests, rules, guidelines or directives concerning capital adequacy
or liquidity issued after the date hereof in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act or promulgated
after the date hereof by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, there shall be any increase in
the amount of capital or liquidity required or expected to be maintained by any Lender or any corporation controlling such Lender and
that the amount of such capital or liquidity is increased by or based upon the existence of such Lender’s Advances or commitment
to lend and other commitments of this type by an amount deemed by such Lender to be material, then, upon demand by such Lender (with
a copy of such demand to the Agent), the Company shall pay to the Agent for the account of such Lender, from time to time as specified
by such Lender, additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital or liquidity to be allocable to the existence of such Lender’s
Advances or commitment to lend hereunder. A certificate as to such amounts submitted to the Company and the Agent by such Lender shall
be conclusive and binding for all purposes as to the calculations therein, absent manifest error. Such certificate shall be in reasonable
detail and shall certify that the claim for additional amounts referred to therein is generally consistent with such Lender’s treatment
of similarly situated customers of such Lender whose transactions with such Lender are similarly affected by the change in circumstances
giving rise to such payment, but such Lender shall not be required to disclose any confidential or proprietary information therein.
Section 2.12 Illegality.
Notwithstanding
any other provision of this Agreement, if any Lender shall notify the Agent (and provide to the Company an opinion of counsel to the
effect) that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Term SOFR Advances or Eurocurrency Rate Advances or to fund or maintain Term SOFR Advances or Eurocurrency Rate Advances
hereunder, (a) each Term SOFR Advance or each Eurocurrency Rate Advance, as applicable, made by such Lender will automatically,
upon such demand, (i) if such Advance is a Term SOFR Advance, be Converted into a Base Rate Advance and (ii) if such Advance
is a Eurocurrency Rate Advance, be exchanged into an Equivalent amount of Dollars and be Converted into a Base Rate Advance and (b) the
obligation of the Lenders to make Term SOFR Advances or Eurocurrency Rate Advances, as applicable, or to Convert Advances into Term SOFR
Advances shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension
no longer exist.
Section 2.13 Payments
and Computations; Evidence of Advances.
(a) The
Borrowers shall make each payment hereunder and under the Notes, except with respect to principal or, interest on, and other amounts
relating to, Advances denominated in Euros, not later than 11:00 A.M. (New York City time) on the day when due in Dollars to the
Agent at the applicable Agent’s Account in same day funds without deduction, off-set or counterclaim except as provided in Section 2.14.
The Borrowers shall make each payment hereunder and under the Notes with respect to principal of, interest on, and other amounts relating
to, Advances denominated in Euros, not later than 11:00 A.M. (New York City time) on the day when due in Euros to the Agent
at the applicable Agent’s Account in same day funds without deduction, off-set or counterclaim except as provided in Section 2.14.
The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal, interest, commitment fees
ratably (other than amounts payable pursuant to Section 2.02(c), 2.05(b), 2.06(b), 2.11, 2.14 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.
Upon its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Assumption, the Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption
shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) All
computations of interest based on the Base Rate (determined pursuant to clause (a) of the definition thereof) and of commitment
fees shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based
on Adjusted Term SOFR, the EURIBO Rate or the Federal Funds Rate shall be made by the Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest
or fees are payable. Each determination by the Agent of an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever
any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest
or fees, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal
of Term SOFR Advances or Eurocurrency Rate Advances to be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless
the Agent shall have received notice from the Company prior to the date on which any payment is due to the Lenders hereunder that a Borrower
will not make such payment in full, the Agent may assume that such Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent such Borrower shall not have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at (i) the Federal Funds Rate
in the case of Advances denominated in Dollars or (ii) the cost of funds incurred by the Agent in respect of such amount in the
case of Advances denominated in Euros.
(e) The
Advances made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Agent in the
ordinary course of business. The accounts or records maintained by the Agent and each Lender shall be conclusive absent manifest error
of the amount of the Advances made by the Lenders to a Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of a Borrower hereunder to pay any amount owing with respect
to the Advances. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records
of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Agent, each Borrower shall execute and deliver to such Lender (through the Agent) a Note which
shall evidence such Lender's Advances in addition to such accounts or records. Each Lender may attach schedules to its Note or Notes
and endorse thereon the date, Type (if applicable), amount and maturity of its Advances and payments with respect thereto.
(f) To
the extent that the Agent receives funds for application to the amounts owing by any Borrower under or in respect of this Agreement or
any Note in currencies other than the currency or currencies required to enable the Agent to distribute funds to the Lenders in accordance
with the terms of this Section 2.13, the Agent shall be entitled to convert or exchange such funds into Dollars or into Euros or
from Dollars to Euros or from Euros to Dollars, as the case may be, to the extent necessary to enable the Agent to distribute such funds
in accordance with the terms of this Section 2.13; provided that each Borrower and each of the Lenders hereby agree that
the Agent shall not be liable or responsible for any loss, cost or expense suffered by such Borrower or such Lender as a result of any
conversion or exchange of currencies affected pursuant to this Section 2.13(f) or as a result of the failure of the Agent to
effect any such conversion or exchange; and provided further that such Borrower agrees to indemnify the Agent and
each Lender, and hold the Agent and each Lender harmless, for any and all losses, costs and expenses incurred by the Agent or any Lender
for any conversion or exchange of currencies (or the failure to convert or exchange any currencies) in accordance with this Section 2.13(f).
(g) In
connection with the use or administration of any Benchmark, the Agent will have the right to make Conforming Changes from time to time
and, notwithstanding anything to the contrary herein, any amendments implementing such Conforming Changes will become effective without
any further action or consent of any other party to this Agreement. The Agent will promptly notify the Company and the Lenders of the
effectiveness of any Conforming Changes in connection with the use or administration of any Benchmark.
Section 2.14 Taxes.
(a) Each
Lender is exempt from any withholding tax imposed under the laws of the United States in respect of any fees, interest or other payments
to which it is entitled pursuant to this Agreement or the Notes (the “Income”) because (i) the Lender is a United
States Person; (ii) the Income is effectively connected with the conduct of a trade or business within the United States within
the meaning of Section 871 of the Internal Revenue Code; or (iii) the Income is eligible for an exemption by reason of a tax
treaty. The Agent is exempt from any withholding tax imposed under the laws of the United States in respect of the Income because the
Agent is a United States Person.
(b) Each
Lender that is a United States Person shall, on or prior to the date it becomes a party hereto and from time to time thereafter if requested
in writing by the Company or the Agent, provide the Agent and the relevant Borrower with a properly completed and duly executed Internal
Revenue Service Form W-9, or any successor or other form provided by the Internal Revenue Service. Each Lender that is not a United
States Person (each, a “Foreign Lender”) shall, on or prior to the date it becomes a party hereto and from time to
time thereafter if requested in writing by the Company or the Agent, provide the Agent and the relevant Borrower with a properly completed
and duly executed Internal Revenue Service Form W-8BEN, W-8BEN-E, W-8ECI or W-8IMY (accompanied by Internal Revenue Service Forms
W-8BEN, W-8BEN-E, W-8ECI, W-9 or other certification documents from each beneficial owner, as appropriate), as appropriate, or any successor
or other form prescribed by the Internal Revenue Service, certifying that such Foreign Lender is exempt from or entitled to a reduced
rate of United States withholding tax on any Income that is the subject of such forms. If the relevant Borrower determines, based on
the form provided by a Foreign Lender (or the failure to provide such a form) at the time such Foreign Lender first becomes a party to
this Agreement that a United States withholding tax rate in excess of zero applies to payments made by such Borrower to the Foreign Lender
under this Agreement, such Borrower shall be permitted to deduct amounts from payments to such Foreign Lender to the extent required
to pay withholding tax at such rate, and such amounts shall be considered excluded from Taxes as defined in Section 2.14(c); provided,
however, that, if on the date of the Assignment and Assumption pursuant to which a Foreign Lender becomes a Foreign Lender,
pursuant to the Assignment and Assumption provisions of Article VIII, the Foreign Lender assignor was entitled to payments under
Section 2.14(c) in respect of United States withholding tax paid at such date, then, to such extent, the term Taxes shall include
(in addition to Taxes that are imposed pursuant to a Change in Law (defined below) after the date of Assignment and Assumption) United
States withholding tax, if any, applicable with respect to the Foreign Lender assignee on such date. For the avoidance of doubt, the
obligations of any Borrower under Section 2.14 of this Agreement shall not be increased as the result of any assignment pursuant
to Article VIII of this Agreement with respect to United States withholding tax; provided, however, that the foregoing
shall not limit the obligation of any Borrower in respect of Taxes imposed as the result of any Change in Law after the date of the relevant
Assignment and Assumption.
(c) Except
as set forth in Section 2.14(b) or as required by applicable law, any and all payments by any Borrower hereunder or under the
Notes shall be made free and clear of and without deduction for any withholding taxes imposed on a Lender (such withholding taxes being
hereinafter referred to as “Taxes”, which, for the avoidance of doubt, shall exclude any Excluded Taxes). If any Borrower
is required to deduct any Taxes from or in respect of any Income, then: (i) the sum payable to such Lender shall be increased as
may be necessary so that after making all required deductions for such Taxes (including deductions applicable to additional sums payable
under this Section 2.14) such Lender receives an amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. Within 30 days after the date of any payment of Taxes by the Company
pursuant to clause (iii) of the preceding sentence, the Company shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. Notwithstanding the foregoing, each Borrower shall be entitled
to pay any Taxes in any lawful manner so as to reduce any deductions and such Lender shall to the extent it is reasonably able provide
any documentation or file any forms as may be required by the Internal Revenue Service or any other governmental agency. In addition,
if any Lender or the Agent (in lieu of such Lender), as the case may be, is required to pay directly any Taxes because a Borrower cannot
or does not legally or timely do so, the Company shall indemnify such Lender or Agent for payment of such Taxes, without duplication
of, or increase in, the amount in respect of Taxes otherwise due to the Lender.
(d) Notwithstanding
the foregoing, the sum payable to a Lender shall not be increased, and no indemnification payments shall be made, pursuant to Section 2.14(c) with
respect to any United States federal withholding taxes any Borrower is required to deduct from or in respect of any Income, except to
the extent that (i) such Borrower is required to deduct such taxes as a result of the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any United States law or any tax treaty (or in the application or official interpretation of any
law or any tax treaty) that occurs after the date a Lender first becomes a party to this Agreement (a “Change in Law”)
or (ii) such taxes are “Taxes” solely as a result of the application of the proviso to the penultimate sentence of Section 2.14(b).
(e) In
addition, the Company agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (excluding any income or franchise taxes, business taxes or capital taxes of any nature) that arise from the execution
or delivery, or otherwise with respect to, this Agreement or the Notes (hereinafter referred to as “Other Taxes”).
If a Lender is required to pay directly Other Taxes because a Borrower cannot or does not legally or timely do so, the Company shall
indemnify such Lender for such payment of Other Taxes. Notwithstanding anything to the contrary in this Section 2.14, each Lender
shall upon the written request of and at the expense of the Company use reasonable efforts to change the jurisdiction of its Applicable
Lending Office if the making of such change would avoid the need for, or reduce the amount of, any such Other Taxes that may thereafter
accrue and would not, in the reasonable judgment of such Lender, cause imposition on such Lender of any material legal or regulatory
burdens.
(f) To
the extent any Lender is entitled to any exemption or reduction of foreign withholding taxes, each Lender shall cooperate with each Borrower
by providing to the extent reasonably within its means any forms requested by such Borrower substantiating such reduction or exemption
from such foreign withholding taxes required by any governmental agency.
(g) For
any period with respect to which a Lender has failed to comply with the requirements of subsection (b) or (f) relating to certain
forms intended to reduce withholding taxes (other than if such failure is due to a Change in Law that makes compliance with subsection
(b) or (f) unduly burdensome in the reasonable judgment of such Lender), such Lender shall not be entitled to indemnification
under this Section 2.14.
(h) Upon
a Change in Law or the imposition of any Taxes, a Lender shall, upon the written request of and at the expense of the Company, use reasonable
efforts to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce
the amount of, any such Taxes that may thereafter accrue and would not, in the reasonable judgment of such Lender, cause the imposition
on such Lender of any material legal or regulatory burdens.
(i) Any
request by any Lender for payment of any amount under this Section 2.14 shall be accompanied by a certification that such Lender’s
claim for said amount is generally consistent with such Lender’s treatment of similarly situated customers of such Lender whose
transactions with such Lender are similarly affected by the change in circumstances giving rise to such payment, but such Lender shall
not be required to disclose any confidential or proprietary information therein.
(j) If
any Lender shall become aware, including by means of a request by the Company, that it is entitled to receive a refund (including, for
all purposes of this subsection (j), any refund in the form of a credit from the jurisdiction imposing such Taxes or Other Taxes) in
respect of Taxes or Other Taxes as to which it has been indemnified by a Borrower pursuant to this Section 2.14, or with respect
to which a Borrower has paid additional amounts pursuant to this Section 2.14, it shall promptly notify such Borrower of the availability
of such refund and shall, within 30 days after receipt of a request by the Company (whether as a result of notification that it has made
to a Borrower or otherwise) to seek such refund, make a claim for such refund at such Borrower’s expense. No Lender shall seek
a refund without such approval by a Borrower. If a Lender receives a refund in respect of any Taxes or Other Taxes as to which it has
been indemnified by a Borrower pursuant to this Section 2.14, or with respect to which a Borrower has paid additional amounts pursuant
to this Section 2.14, it shall promptly notify such Borrower of such refund and shall within 30 days from the date of receipt of
such refund pay over the amount of such refund to such Borrower to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 2.14 with respect to the Taxes or Other Taxes giving rise to such refund plus any interest paid
or credited with respect to such refund, net of all out-of-pocket expenses and net of any loss or gain realized in the conversion of
such funds from one to another currency incurred by the Agent of such Lender; provided that the applicable Borrower, upon the
request of the Agent or such Lender, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges
imposed with respect to such Taxes or Other Taxes by the relevant governmental agency) to the Agent or such Lender in the event the Agent
or such Lender is required to repay such refund to such governmental agency. This subsection shall not be construed to require the Agent
or any Lender to make available its tax returns (or any other information relating to its taxes that it reasonably deems confidential)
to any Borrower or any other Person.
(k) If
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Internal Revenue Code, as applicable), such Lender shall deliver to the Company and the Agent at the time or times prescribed by
law and at such time or times reasonably requested by the Company or the Agent such documentation prescribed by applicable law (including
as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested
by the Company or the Agent as may be necessary for the Borrowers and the Agent to comply with their obligations under FATCA and to determine
that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this subsection (k), “FATCA” shall include any amendments made to FATCA after
the date of this Agreement.
(l) Notwithstanding
anything to the contrary in this Agreement, the provisions of this Section 2.14 shall be the only provisions requiring the Company
or any of its Subsidiaries to bear the cost of (or arising from) any taxes otherwise borne by any Lender. For purposes of the preceding
sentence, “taxes” includes any tax, governmental fee or other like assessment or charge of any kind whatsoever (including,
but not limited to, withholding on amounts paid to or by the Company or its Subsidiaries), together with any interest, penalty, addition
to tax or additional amount imposed with respect thereto.
Section 2.15 Sharing
of Payments, Etc.
If
any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account
of the Advances owing to it (other than pursuant to Section 2.05(b), 2.06(b), 2.11, 2.14, 8.04(c) or 8.07) in excess of its
ratable share thereof, such Lender shall forthwith purchase from the other Lenders such participations in the Advances owing to them
as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with
an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the
amount of such participation.
Section 2.16 Use
of Proceeds.
The
proceeds of the Advances shall be available (and the Company agrees that such proceeds shall be used) for general corporate purposes
of the Company and its Subsidiaries, including but not limited to working capital, capital investments and acquisitions. No Borrower
shall knowingly use the proceeds of any Advance to fund any activities or business (a) of or with any individual or entity that
is included on the SDN List or (b) in, or with the government of, any Sanctioned Country, except in the case of (a) or (b) to
the extent licensed by OFAC or otherwise permissible under U.S. law.
Section 2.17 Borrowings
by Borrowing Subsidiaries.
(a) The
Company may, at any time or from time to time upon not less than 10 Business Days’ notice in the case of any Subsidiary so designated
after the Effective Date, designate one or more Subsidiaries as Borrowers hereunder by furnishing to the Agent a letter (a “Designation
Letter”) in duplicate, in substantially the form of Exhibit D, duly completed and executed by the Company and such Subsidiary.
The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity
of the Subsidiary. Following the giving of any notice pursuant to this Section 2.17(a), if the designation of such Subsidiary obligates
the Agent or any Lender to comply with “know your customer” or similar identification procedures (including without limitation
the Beneficial Ownership Regulation) in circumstances where the necessary information is not already available to it, the Company shall,
promptly upon the request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the
Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary
“know your customer” or other similar checks under all applicable laws and regulations. Upon any such designation of a Subsidiary,
such Subsidiary shall be a Borrowing Subsidiary and a Borrower entitled to borrow Advances on and subject to the terms and conditions
of this Agreement.
If the
Company shall designate as a Borrowing Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State
thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or a branch of such
Lender to act as the Lender in respect of such Borrowing Subsidiary.
As
soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a
Borrowing Subsidiary, and in any event no later than five Business Days after the delivery of such
notice, if such Borrowing Subsidiary is organized under the laws of a jurisdiction other than of the United States or a political subdivision
thereof, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Borrowing
Subsidiary directly or through an Affiliate or a branch of such Lender as provided in the immediately preceding paragraph (a “Protesting
Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective
on or before the date that such Borrowing Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such
Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall
have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, from the assignee Lender (to the extent of such outstanding principal and accrued interest and
fees) or the Company or the relevant Borrowing Subsidiary (in the case of all other amounts), or (B) cancel its request to designate
such Subsidiary as a “Borrowing Subsidiary” hereunder.
(b) If
all principal of and interest on all Advances made to any Borrowing Subsidiary have been paid in full, the Company may terminate the
status of such Borrowing Subsidiary as a Borrower hereunder by furnishing to the Agent a letter (a “Termination Letter”)
in substantially the form of Exhibit E, duly completed and executed by the Company. Any Termination Letter furnished hereunder shall
be effective upon receipt by the Agent, which shall promptly notify the Lenders, whereupon the Lenders shall, upon payment in full of
all amounts owing by such Borrower hereunder, promptly deliver to the Company (through the Agent) the Notes, if any, of such former Borrower.
Notwithstanding the foregoing, the delivery of a Termination Letter with respect to any Borrower shall not terminate (i) any obligation
of such Borrower that remains unpaid at the time of such delivery (including without limitation any obligation arising thereafter in
respect of such Borrower under Section 2.11 or 2.14) or (ii) the obligations of the Company under Article IX with respect
to any such unpaid obligations; provided that if the status of such Borrowing Subsidiary has been terminated as aforesaid because the
Company has sold or transferred its interest in such Subsidiary, and the Company so certifies to the Agent at the time of the delivery
of such Termination Letter, and subject to payment of said principal and interest, (A) such Subsidiary shall automatically, upon
the effectiveness of the delivery of such Termination Letter and certification, cease to have any obligation under this Agreement or
the Notes and (B) the Company shall automatically be deemed to have unconditionally assumed, as primary obligor, and hereby agrees
to pay and perform, all of such obligations.
Section 2.18 Benchmark
Replacement Setting.
(a) Benchmark
Replacement. Notwithstanding anything to the contrary
herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior
to any setting of any Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition
of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for
all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any
amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and the definition of “Adjusted
Term SOFR” shall be deemed modified to delete clause (b) for any calculation of Term SOFR and (y) if a Benchmark Replacement
is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement
Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any
Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth Business Day after the date notice of such Benchmark Replacement
is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other
Loan Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders
comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly
basis.
(b) Benchmark
Replacement Conforming Changes. In connection with
the implementation of a Benchmark Replacement, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding
anything to the contrary herein, any amendments implementing such Conforming Changes will become effective without any further action
or consent of any other party to this Agreement.
(c) Notices;
Standards for Decisions and Determinations. The
Agent will promptly notify the Company and the Lenders of (i) any Benchmark Replacement Date and the related Benchmark Replacement,
(ii) the effectiveness of any Conforming Changes, (iii) the removal or reinstatement of any tenor of a Benchmark pursuant to
clause (d) below and (iv) the commencement or conclusion of any Benchmark Unavailability Period. For the avoidance of doubt,
any notice required to be delivered by the Agent as set forth in this Section 2.18 may be provided, at the option of the Agent (in
its sole discretion), in one or more notices and may be delivered together with, or as part of any amendment which implements any Benchmark
Replacement or Conforming Changes. Any determination, decision or election that may be made by the Agent or, if applicable, any Lender
(or group of Lenders) pursuant to this Section 2.18, including any determination with respect to a tenor, rate or adjustment or
of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any
selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from
any other party to this Agreement, except, in each case, as expressly required pursuant to this Section 2.18.
(d) Unavailability
of Tenor of Benchmark. Notwithstanding anything
to the contrary herein, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current
Benchmark is a term rate (including the Term SOFR Reference Rate or the EURIBO Rate) and either (A) any tenor for such Benchmark
is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its
reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or
publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Agent may modify
the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative
tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen
or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement
that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition
of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e) Benchmark
Unavailability Period. Upon the Company’s receipt of notice of the commencement of a Benchmark
Unavailability Period with respect to a given Benchmark, (i) the Borrowers may revoke any pending request for a Term SOFR Borrowing
of, conversion to or continuation of Term SOFR Advances, or a Borrowing of, or continuation of, Eurocurrency Rate Advances, in each case,
to be made, converted or continued during any Benchmark Unavailability Period denominated in the applicable Available Currency and, failing
that, (A) in the case of any request for any affected Term SOFR Borrowing, if applicable, the applicable Borrower will be deemed
to have converted any such request into a request for a Base Rate Borrowing or conversion to Base Rate Advances in the amount specified
therein and (B) in the case of any request for any affected Eurocurrency Rate Borrowing, then such request shall be ineffective
and (ii)(A) any outstanding affected Term SOFR Advances, if applicable, will be deemed to have been converted into Base Rate Advances
at the end of the applicable Interest Period and (B) any outstanding affected Eurocurrency Rate Advances, at the applicable Borrower’s
election, shall either (I) be converted into Base Rate Advances denominated in Dollars (in an amount equal to the Dollar Equivalent
thereof) at the end of the applicable Interest Period or (II) be prepaid in full at the end of the applicable Interest Period; provided that,
with respect to any Eurocurrency Rate Advance, if no election is made by the applicable Borrower by the earlier of (x) the date
that is three Business Days after receipt by such Borrower of such notice and (y) the last day of the current Interest Period for
the applicable Eurocurrency Rate Advance, such Borrower shall be deemed to have elected clause (I) above. Upon any such prepayment
or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional
amounts required pursuant to Section 8.04(c). During a Benchmark Unavailability Period with respect to any Benchmark or at any time
that a tenor for any then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark
that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any
determination of the Base Rate.
(f) Certain
Defined Terms. As used in this Section 2.18:
“Available
Currency” means Dollars or Euros.
“Available
Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, for an Available
Currency, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining
the length of an interest period pursuant to this Agreement, as of such date and not including, for the avoidance of doubt, any tenor
for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (d) of this Section 2.18.
“Benchmark”
means, initially, the Relevant Rate; provided that if a Benchmark Transition Event, and its related Benchmark Replacement Date have occurred
with respect to such Relevant Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement
to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (a) of this Section 2.18.
“Benchmark
Replacement” means, with respect to any Benchmark Transition Event for any then-current Benchmark the
first alternative set forth in the order below that can be determined by the Agent for the applicable Benchmark Replacement Date; provided,
that in the case of Advances denominated in Euros, the “Benchmark Replacement” shall mean the alternative set forth in clause
(b) below:
(a) with
respect to Term SOFR Advances, Daily Simple SOFR plus 0.10%; or
(b) the
sum of: (1) the alternate benchmark rate that has been selected by the Agent and the Company
as the replacement for the then-current Benchmark giving due consideration to (i) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing
market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in
the applicable Available Currency at such time and (2) the related Benchmark Replacement Adjustment;
provided that,
if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor
for the purposes of this Agreement.
“Benchmark
Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement,
the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or
zero) that has been selected by the Agent and the Company giving due consideration to (a) any selection or recommendation of a spread
adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable
Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for
determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark
with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Available Currency
at such time.
“Benchmark
Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark for any Available
Currency:
(1) in
the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date
of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark
(or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such
Benchmark (or such component thereof); or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or
the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined
by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark
(or such component thereof) continues to be provided on such date.
For the avoidance
of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with
respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available
Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark
Transition Event” means, with respect to the then-current Benchmark for any Available Currency, the occurrence of one or more
of the following events with respect to such Benchmark:
(1) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Relevant Governmental Body, an insolvency official with jurisdiction over the administrator
for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component)
or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component),
which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of
such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication,
there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
or
(3) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no
longer representative.
For the avoidance
of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement
or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the
published component used in the calculation thereof).
“Benchmark
Unavailability Period” means, with respect to any then-current Benchmark for any Available Currency, the period (if any) (x) beginning
at the time that a Benchmark Replacement Date with respect to such Benchmark has occurred if, at such time, no Benchmark Replacement
has replaced the then-current Benchmark for all purposes hereunder in accordance with this Section 2.18 and (y) ending at the
time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder in accordance with this Section 2.18.
“Floor”
means a rate of interest equal to 0.00%.
“Relevant
Governmental Body” means (i) with respect to a Benchmark or Benchmark Replacement in respect of any Benchmark applicable
to Dollars, the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed
or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto,
and (ii) with respect to a Benchmark Replacement for any Benchmark applicable to a currency other than Dollars, (a) the central
bank for the applicable currency or any central bank or other supervisor which is responsible for supervising (1) such Benchmark
or Benchmark Replacement for such currency or (2) the administrator of such Benchmark or Benchmark Replacement for such currency
or (b) any working group or committee officially endorsed or convened by: (1) the central bank for such currency, (2) any
central bank or other supervisor that is responsible for supervising either (x) such Benchmark or Benchmark Replacement for such
currency or (y) the administrator of such Benchmark or Benchmark Replacement for such currency, or (3) the Financial Stability
Board, or a committee officially endorsed or convened by the Financial Stability Board, or any successor thereto.
“Relevant
Rate” means, with respect to (a) any Term SOFR Advance, the Term SOFR Reference Rate and (b) any Eurocurrency Rate
Advance, the EURIBO Rate.
“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
Section 2.19 Defaulting
Lenders.
(a) Defaulting
Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender,
then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definition of Required Lenders.
(ii) Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Agent hereunder for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) or received by the Agent from
a Defaulting Lender pursuant to Section 8.05 shall be applied at such time or times as may be determined by the Agent as follows:
first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, as the Company may
request (so long as no Default exists), to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its
portion thereof as required by this Agreement, as determined by the Agent; third, if so determined by the Agent and the Company,
to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations
with respect to Advances under this Agreement; fourth, so long as no Default exists, to the payment of any amounts owing to the
Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Lender as a
result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender
or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances
were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely
to pay the Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances owed to,
such Defaulting Lender until such time as all Advances are held by the Lenders pro rata in accordance with the Commitments. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
pursuant to this Section 2.19 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents
hereto.
(iii) Commitment
Fees. No Defaulting Lender shall be entitled to receive any commitment fee for any period during which that Lender is a Defaulting
Lender (and the Company shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting
Lender).
(b) Defaulting
Lender Cure. If the Company and the Agent agree in writing that a Lender is no longer a Defaulting Lender, the Agent will so notify
the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that
Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions
as the Agent may determine to be necessary to cause the Advances to be held pro rata by the Lenders in accordance with the Commitments,
whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect
to fees accrued or payments made by or on behalf of the Company while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
ARTICLE III
CONDITIONS TO
EFFECTIVENESS AND LENDING
Section 3.01 Conditions
Precedent to Effectiveness.
This
Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions
precedent have been satisfied:
(a) As
of the Effective Date, there shall have occurred no Material Adverse Change since December 30, 2023 that has not been publicly disclosed.
(b) As
of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company or any of its
Subsidiaries pending or, to the knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could
be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could
reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(c) As
of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated
hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall
remain in effect.
(d) As
of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the
Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On
the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The
representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No
event has occurred and is continuing that constitutes a Default.
(f) The
Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to
the Agent:
(i) To
the extent requested by a Lender at least three Business Days prior to the Effective Date, Notes payable to the order of each Lender.
(ii) Certified
copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing
other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without
limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) A
certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the
Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable
opinions of one or more counsel to the Company, in form and substance reasonably satisfactory to the Agent and the Lenders.
(v) An
executed copy of this Agreement from each party hereto.
(vi) If
reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested
in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT
Act, in each case at least five days prior to the Effective Date.
(vii) At
least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial
Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The
Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the
Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing
under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives
the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Section 3.02 Conditions
Precedent to Each Borrowing.
The
obligation of each Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing:
(a) the
following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by any Borrower of
the proceeds of such Borrowing shall constitute a representation and warranty by the Company and such Borrower that on the date of such
Borrowing such statements are true):
(i) The
representations and warranties contained in Section 4.01 (except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii) thereof)) are correct on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as
of such date, and
(ii) No
event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes
a Default; and
(b) the
Agent shall have received the Notice of Borrowing and, in the case of the first Borrowing by a Borrowing Subsidiary, the Agent shall
have received such Notes as have been requested pursuant to Section 2.13(e), corporate documents, resolutions and legal opinions
relating to such Borrowing Subsidiary as the Agent may reasonably require.
Section 3.03 Conditions
Precedent to Term Loan Conversion Date.
The
Term Loan Election shall be subject to the conditions precedent that on the date of the Term Loan Election and on the Term Loan Conversion
Date:
(a) the
following statement shall be true (and the giving of notice of the Term Loan Election shall constitute a representation and warranty
by the Company that on the date of the Term Loan Election and on the Term Loan Conversion Date, respectively such statement is true):
No event has occurred and is continuing, or would result from the Term Loan Election, that constitutes a Default; and
(b) the
Agent shall have received for the ratable account of the Lenders a fee equal to 0.50% of the aggregate principal amount of the Advances
outstanding on the Term Loan Conversion Date.
Section 3.04 Determinations
Under Section 3.01.
For
purposes of determining compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to the Lenders unless an officer of the Agent responsible for the transactions contemplated by this Agreement
shall have received written notice from such Lender prior to the proposed Effective Date, as notified by the Company to the Lenders,
specifying its objection thereto. The Agent shall promptly notify the Lenders and the Company of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES
Section 4.01 Representations
and Warranties of the Company.
The Company
represents and warrants as follows:
(a) The
Company is a corporation duly organized and validly existing under the laws of the State of North Carolina.
(b) The
execution, delivery and performance by the Company of this Agreement and the Notes, if any, and the consummation of the transactions
contemplated hereby, are within the Company’s corporate powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) the Company’s articles of incorporation or by-laws or (ii) in any material respect, any law or
any material contractual restriction binding on or affecting the Company.
(c) No
authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other
third party is required, other than those that have been obtained prior to the date hereof and remain in effect, for the due execution,
delivery and performance by the Company of this Agreement or the Notes.
(d) This
Agreement has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by the Company. This Agreement
is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with their respective terms.
(e) The
Consolidated balance sheet of the Company and its Subsidiaries as at December 30, 2023, and the related Consolidated statements
of income, comprehensive income, cash flows and equity of the Company and its Subsidiaries for the fiscal year then ended, accompanied
by an opinion of KPMG LLP, independent registered public accounting firm, present fairly, in all material respects, the Consolidated
financial condition of the Company and its Subsidiaries as at such date and the Consolidated results of the operations of the Company
and its Subsidiaries for the year ended on such date, all in accordance with United States generally accepted accounting principles consistently
applied. Since December 30, 2023, there has been no Material Adverse Change that has not been publicly disclosed prior to the date
hereof.
(f) There
is no pending or, to the Company’s knowledge, threatened, action, suit, investigation, litigation or proceeding affecting the Company
before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect that has
not been publicly disclosed prior to the date hereof or (ii) would reasonably be likely to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) The
Company is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase
or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of the
margin rules.
(h) Neither
the Company nor any of its Borrowing Subsidiaries is or is required to be registered as an “investment company” as such term
is defined in the Investment Company Act of 1940, as amended.
(i) No
Borrower is included on the SDN List or is located or organized in a Sanctioned Country.
(j) As
of the Effective Date, the information included in the Beneficial Ownership Certification in relation to the Company is true and correct
in all respects.
ARTICLE V
COVENANTS OF
THE COMPANY
Section 5.01 Affirmative
Covenants.
So
long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Company will:
(a) Compliance
with Laws, Etc. Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation, compliance with ERISA, Environmental Laws and Anti-Corruption
Laws, except where failure so to comply would not, and would not be reasonably likely to, have a Material Adverse Effect, and maintain
in effect and enforce policies and procedures reasonably designed to ensure compliance with such laws, rules regulations and orders
in all material respects.
(b) Payment
of Taxes, Etc. Except where failure to do so would not, and would not be reasonably likely to, have a Material Adverse Effect, pay
and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property. Notwithstanding the preceding sentence, neither the Company nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings
and as to which appropriate reserves are being maintained, unless and until any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors and such contested payment would be reasonably likely to have a Material Adverse Effect.
(c) Preservation
of Corporate Existence, Etc. (i) Preserve and maintain its corporate existence; provided, however, that the Company
may consummate any merger or consolidation permitted under Section 5.02(b); and (ii) preserve and maintain, and cause each
of its Material Subsidiaries to preserve and maintain, its rights (charter and statutory) and franchises; provided, however,
that neither the Company nor any of its Material Subsidiaries shall be required to preserve any right or franchise if the Board of Directors
(or other relevant governing body) of the Company or such Material Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or such Material Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to the Company, such Material Subsidiary or the Lenders.
(d) Reporting
Requirements. Furnish to the Agent:
(i) within
5 days after the Company is required to file the same with the Securities and Exchange Commission, the Consolidated balance sheet of
the Company and its Subsidiaries as of the end of each of the first three fiscal quarters of each fiscal year of the Company and Consolidated
statements of income and cash flows of the Company and its Subsidiaries for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer of the
Company as having been prepared in accordance with GAAP, it being agreed that filing of the Company’s Quarterly Report on Form 10-Q
on sec.gov will satisfy this requirement;
(ii) within
15 days after the Company is required to file the same with the Securities and Exchange Commission, a copy of the annual report for such
year for the Company and its Consolidated Subsidiaries, containing the Consolidated balance sheet of the Company and its Subsidiaries
as of the end of such fiscal year and Consolidated statements of income and cash flows of the Company and its Subsidiaries for such fiscal
year, in each case accompanied by an opinion by KPMG LLP or other independent public accountants, it being agreed that filing of the
Company’s Annual Report on Form 10-K on sec.gov will satisfy this requirement;
(iii) as
soon as possible and in any event within five days after the occurrence of each Default continuing on the date of such statement, a statement
of the chief financial officer of the Company setting forth details of such Default and the action that the Company has taken and proposes
to take with respect thereto;
(iv) promptly
after the sending or filing thereof, copies of all annual reports and proxy solicitations that the Company sends to any of its security
holders, and copies of all reports on Form 8-K that the Company or any Subsidiary files with the Securities and Exchange Commission;
and
(v) promptly
following any request therefor, information and documentation reasonably requested by the Agent or any Lender for purposes of compliance
with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws.
Reports
and financial statements required to be delivered by the Company pursuant to this subsection (d) shall be deemed to have been delivered
on the date on which the Company posts such reports, or reports containing such financial statements, on its website on the Internet
at www.pepsico.com, at www.sec.gov or at such other website identified by the Company in a notice to the Agent and that is accessible
by the Lenders without charge.
Section 5.02 Negative
Covenants.
So
long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Company will not:
(a) Secured
Debt. Create or suffer to exist, or permit any of its Restricted Subsidiaries to create or suffer to exist, any Debt secured by a
Lien on (i) any Principal Property, (ii) any shares of stock of a Restricted Subsidiary or (iii) any Debt of any Restricted
Subsidiary unless the Company or such Restricted Subsidiary secures or causes such Restricted Subsidiary to secure the Advances and all
other amounts payable under this Agreement and the Notes equally and ratably with such secured Debt, so long as such secured Debt shall
be so secured, unless after giving effect thereto the aggregate amount of all such Debt so secured does not exceed 15% of Consolidated
Net Tangible Assets at such time, provided that the foregoing restriction does not apply to Debt secured by:
(i) Liens
existing prior to the date hereof;
(ii) Liens
on property of, or on shares of stock of or Debt of, any corporation existing at the time such corporation becomes a Restricted Subsidiary;
(iii) Liens
in favor of the Company or any Restricted Subsidiary;
(iv) Liens
in favor of any governmental bodies to secure progress or advance payments;
(v) Liens
on property, shares of stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation)
or to secure the payment of all or any part of the purchase price thereof or construction thereon or to secure any Debt incurred prior
to, at the time of, or within 120 days after the later of the acquisition, the completion of construction, or the commencement of
full operation of such property or within 120 days after the acquisition of such shares or Debt for the purpose of financing all
or any part of the purchase price thereof or construction thereon; and
(vi) any
extension, renewal or refunding referred to in the foregoing clauses (i) to (v), inclusive.
Notwithstanding
the foregoing, neither the Company nor any Restricted Subsidiary shall be required to secure the Advances or any other amount payable
under this Agreement with more than 65% of the capital stock (as measured by vote or value) of, or any of the assets of, any “controlled
foreign corporation,” within the meaning of Section 957(a) of the Internal Revenue Code unless other Debt of the Company
or any Restricted Subsidiary is so secured.
(b) Mergers,
Etc. Consolidate or merge with or into any other corporation, or convey or transfer all or substantially all of its properties and
assets to, any Person unless:
(i) either
(A) the Company shall be the continuing corporation or (B) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer all or substantially all of the properties and assets of the Company
shall be a corporation that (1) has obtained a rating on its long-term indebtedness of A- or higher from S&P Global Ratings
(or any successor thereto) and A3 or higher from Moody’s Investors Service, Inc. (or any successor thereto), (2) is organized
and existing under the laws of the United States of America or any State thereof or the District of Columbia and (3) shall expressly
assume the Company’s obligations under this Agreement pursuant to documentation in form and substance reasonably satisfactory to
the Agent; and
(ii) immediately
prior to and after giving effect to such transaction, no Default shall have occurred and be continuing.
The
requirement of Section 5.02(b)(i)(A) will not apply to any merger or consolidation of the Company with or into an Affiliate
solely for the purpose of reincorporating the Company in a jurisdiction referred to in Section 5.02(b)(i)(B)(2). In any case in
which the Company is merged or consolidated in accordance with this Section 5.02(b), the Company shall provide to each Lender such
information as such Lender may reasonably request to satisfy “know your customer” and similar requirements.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events
of Default.
If
any of the following events (“Events of Default”) shall occur and be continuing:
(a) Any
Borrower shall fail to pay any principal of, or interest on, any Advance or to make any other payment under this Agreement or any Note,
in each case within five Business Days after the same becomes due and payable; or
(b) Any
representation or warranty made by the Company herein or by any Borrower in connection with this Agreement (including without limitation
by any Borrowing Subsidiary pursuant to any Designation Letter) shall prove to have been incorrect in any material respect when made;
or
(c) (i)
The Company shall fail to perform or observe any term, covenant or agreement contained in Sections 5.01(d) or 5.02, or (ii) the
Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed
or observed if such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Company by
the Agent or any Lender; or
(d) The
Company or any of its Material Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $500,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Company
or such Material Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required
to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The
Company or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted
by or against the Company or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 30
days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur;
or the Company or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth above in
this subsection (e); or
(f) Any
judgment or order for the payment of money in excess of $500,000,000 shall be rendered against the Company or any of its Material Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of
Default under this Section 6.01(f) if and for so long as (i) the amount of such judgment or order is covered by a valid
and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, which shall
be rated at least “A” by A.M. Best Company (or any successor thereto), has been notified of, and has not disputed the
claim made for payment of, the amount of such judgment or order; or
(g) Any
event, action or condition with respect to an employee benefit plan of the Company subject to Title IV of ERISA results in any penalty
or action pursuant to ERISA that has a Material Adverse Effect;
then, and in any
such event, the Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Company, declare
the obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice to the Company declare the Advances, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Company; provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Company under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances, all such interest and all such amounts shall automatically become and be due and
payable, without presentment, protest or any notice of any kind, all of which are hereby expressly waived by the Company.
ARTICLE VII
THE AGENT
Section 7.01 Appointment
and Authority.
Each
of the Lenders hereby irrevocably appoints Citibank, N.A. to act on its behalf as the Agent hereunder and under the other Loan Documents
and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. Except as expressly provided herein, the provisions
of this Article are solely for the benefit of the Agent and the Lenders, and the Borrowers shall not have rights as a third-party
beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other
Loan Documents (or any other similar term) with reference to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and
is intended to create or reflect only an administrative relationship between contracting parties. The Agent agrees to give to each Lender
prompt notice of each notice given to it by the Company pursuant to the terms of this Agreement.
Section 7.02 Rights
as a Lender.
The
Person serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving as the Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory
capacity for, and generally engage in any kind of business with, the Company or any Subsidiary or other Affiliate thereof as if such
Person were not the Agent hereunder and without any duty to account therefor to the Lenders.
Section 7.03 Exculpatory
Provisions.
(a) The
Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties
hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Agent:
(i) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that
the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to liability
or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation
of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting
Lender in violation of any debtor relief law; and
(iii) shall
not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person
serving as the Agent or any of its Affiliates in any capacity.
(b) The
Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith shall be necessary,
under the circumstances as provided in Sections 8.01 and 6.01), or (ii) in the absence of its own gross negligence, bad faith or
willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Agent shall be deemed
not to have knowledge of any Default unless and until notice describing such Default is given to the Agent in writing by the Company
or a Lender.
(c) The
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Agent.
Section 7.04 Reliance
by Agent.
The
Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Agent also
may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not
incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of an Advance that by its
terms must be fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is satisfactory to such Lender unless
the Agent shall have received notice to the contrary from such Lender prior to the making of such Advance. The Agent may consult with
legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable
for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Section 7.05 Indemnification.
The
Lenders agree to indemnify the Agent (to the extent not reimbursed by the Company), ratably according to the respective outstanding principal
amounts of the Advances then made by each of them (or if no Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Agent under this Agreement; provided that
no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent’s gross negligence, willful misconduct or material breach of this Agreement
in bad faith. Without limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not reimbursed for such expenses by the
Company.
Section 7.06 Delegation
of Duties.
The
Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Agent and approved by the Company. The Agent and any such sub-agent may perform any and all
of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent. The Agent shall not be responsible for the
negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non
appealable judgment that the Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
Section 7.07 Resignation
of Agent.
(a) The
Agent may at any time give notice of its resignation to the Lenders and the Company. Upon receipt of any such notice of resignation,
the Required Lenders shall have the right to appoint a successor approved by the Company, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation
(or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring
Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent meeting the qualifications set forth above.
Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation
Effective Date.
(b) If
the Person serving as Agent is a Defaulting Lender pursuant to clause (e) of the definition thereof, the Required Lenders may, to
the extent permitted by applicable law, by notice in writing to the Company and such Person remove such Person as Agent and appoint a
successor approved by the Company. If no such successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”),
then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With
effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications
and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time,
if any, as the Required Lenders appoint a successor Agent as provided for above. Upon the acceptance of a successor’s appointment
as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
or removed Agent, and the retiring or removed Agent shall be discharged from all of its duties and obligations hereunder or under the
other Loan Documents. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Company and such successor. After the retiring or removed Agent’s resignation or removal hereunder
and under the other Loan Documents, the provisions of this Article (and, as to the Agent, Section 8.04) shall continue in effect
for the benefit of such retiring or removed Agent, its sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring or removed Agent was acting as Agent.
Section 7.08 Non-Reliance
on Agent and Other Lenders.
Each
Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender or any of their Related Parties
and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or
any document furnished hereunder or thereunder.
Section 7.09 Syndication
Agent and Lead Arrangers.
Without
prejudice to the obligations of the Agent hereunder, the Syndication Agent and Lead Arrangers, in their capacities as such, have no duties,
obligations or responsibilities under this Agreement.
Section 7.10 Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent
and each Lead Arranger, and not, for the avoidance of doubt, to or for the benefit of any Borrower, that at least one of the following
is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments
or this Agreement,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Advances, the Commitments and this Agreement,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Advances, the Commitments and this Agreement, (C) the entrance into, participation in, administration
of and performance of the Advances, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of
Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of
PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the
Advances, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or
(2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately
preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto,
to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party
hereto, for the benefit of, the Agent and each Lead Arranger, and not, for the avoidance of doubt, to or for the benefit of any Borrower,
that none of the Agent or any Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender
involved in such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments and
this Agreement (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document
or any documents related hereto or thereto).
As
used in this Section:
“Benefit
Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA,
(b) a “plan” as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose
assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal
Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time
to time.
Section 7.11 Erroneous
Payments.
(a) If
the Agent notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other recipient, a “Payment
Recipient”) that the Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately
succeeding clause (b)) that any funds received by such Payment Recipient from the Agent or any of its Affiliates were erroneously transmitted
to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment
Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution
or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment
(or a portion thereof), such Erroneous Payment shall at all times remain the property of the Agent and shall be segregated by the Payment
Recipient and held in trust for the benefit of the Agent, and such Lender shall (or, with respect to any Payment Recipient who received
such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter, return
to the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in
the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or
portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Agent in same day funds at the greater
of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation
from time to time in effect. A notice of the Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest
error.
(b) Without
limiting the immediately preceding clause (a), each Lender, or any Person who has received funds on behalf of a Lender, hereby further
agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest,
fees, distribution or otherwise) from the Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different
date from, that specified in a notice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates) with respect to
such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment
sent by the Agent (or any of its Affiliates), or (z) that such Lender, or such other recipient, otherwise becomes aware was transmitted,
or received, in error or by mistake (in whole or in part) in each case:
(i) (A) in
the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation
from the Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with
respect to such payment, prepayment or repayment; and
(ii) such
Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within
one Business Day of its knowledge of such error) notify the Agent of its receipt of such payment, prepayment or repayment, the details
thereof (in reasonable detail) and that it is so notifying the Agent pursuant to this Section 7.11(b).
(c) Each
Lender hereby authorizes the Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document,
or otherwise payable or distributable by the Agent to such Lender from any source, against any amount due to the Agent under immediately
preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent for any reason, after demand therefor by the Agent
in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or
from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount,
an “Erroneous Payment Return Deficiency”), upon the Agent’s notice to such Lender at any time, (i) such
Lender shall be deemed to have assigned its Advances (but not its Commitments) in an amount equal to the Erroneous Payment Return Deficiency
(or such lesser amount as the Agent may specify) (such assignment of such Advances (but not Commitments), the “Erroneous Payment
Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent in such
instance), and is hereby (together with the Company) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable,
an agreement incorporating an Assignment and Assumption by reference pursuant to an approved electronic platform as to which the Agent
and such parties are participants) to the Agent, as the assignee Lender, with respect to such Erroneous Payment Deficiency Assignment,
and such Lender shall deliver any Notes evidencing such Advances to the Borrowers or the Agent, (ii) the Agent as the assignee Lender
shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Agent as the assignee
Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease
to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations
under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender
and (iv) the Agent may reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency
Assignment. The Agent may sell any Advances acquired pursuant to an Erroneous Payment Deficiency Assignment in accordance with Section 8.07
hereof (pursuant to which the prior written consent of the Company is required for any such sale (which consent shall not be unreasonably
withheld or delayed)), and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable
Lender shall be reduced by the net proceeds of the sale of such Advance (or portion thereof), and the Agent shall retain all other rights,
remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance
of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available
in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Agent has sold
an Advance (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent
may be equitably subrogated, the Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under
the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
(e) The
parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any obligations owed by any
Borrower, except, in each case, to the extent such Erroneous Payment is, or any portion of such Erroneous Payment is, and solely with
respect to the amount of such Erroneous Payment that is, comprised of funds received by the Agent from any Borrower for the purpose of
making a payment, prepayment, repayment, discharge or satisfaction in respect of the obligations under any Loan Document. For the avoidance
of doubt, clause (d) above and this clause (e) shall not be interpreted to increase (or accelerate the due date for), or have
the effect of increasing (or accelerating the due date for), the obligations of any Borrower relative to the amount (and/or timing for
payment) of the obligations of any Borrower that would have been payable had the Erroneous Payment not been made by the Agent.
(f) To
the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives,
and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim
by the Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge
for value” or any similar doctrine.
(g) Each
party’s obligations, agreements and waivers under this Section 7.11 shall survive the resignation or replacement of the Agent,
any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction
or discharge of all obligations of any Borrower (or any portion thereof) under any Loan Document.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement or the Notes, nor consent to any departure by any Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the Company and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, unless in writing and signed by all the Lenders affected thereby, do any of the following:
(a) waive any of the conditions specified in Section 3.01, (b) increase or extend the Commitment of a Lender or subject
a Lender to any additional obligations, (c) reduce the principal of, or rate of interest on, the Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (f) release the guarantee
as set forth in Section 9.01, (g) modify Section 2.15 or any other provision of this Agreement that relates to the pro
rata treatment of the Lenders hereunder or (h) amend this Section 8.01; and provided, further that no amendment, waiver
or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement or any Note.
If
the Agent and the Company acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision
of this Agreement or any other Loan Document, then the Agent and the Company shall be permitted to amend, modify or supplement such provision
to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any
further action or consent of any other party to this Agreement if the same is not objected to in writing by the Required Lenders to the
Agent within five Business Days following receipt of notice thereof.
Section 8.02 Notices,
Etc.
(a) All
notices and other communications provided for hereunder shall be either (x) in writing (including e-mail or telecopier communication)
and mailed, e-mailed, telecopied or delivered or (y) as and to the extent set forth in Section 8.02(b) and in the proviso
to this Section 8.02(a), if to any Borrower, to the Company at its address at 700 Anderson Hill Road, Purchase, New York 10577,
Attention: Assistant Treasurer, E-Mail: PEPTreasuryCapitalMarkets@pepsico.com, with a copy to General
Counsel, Telecopier No. (914) 253-3808; if to any Initial Lender, at its Domestic Lending Office set forth in its Administrative
Questionnaire; if to any other Lender, at its Domestic Lending Office specified in the Assignment and Assumption pursuant to which it
became a Lender; and if to the Agent, at the Agent’s Address; or, as to the Company or the Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated
by such party in a written notice to the Company and the Agent, provided that materials required to be delivered pursuant to Section 5.01(d) shall
be delivered to the Agent as specified in the last sentence of Section 5.01(d). All such notices and communications mailed or sent
by hand or overnight courier service shall be deemed to have been given when received; notices and communications sent by e-mail or telecopier
shall be deemed to have been given when sent (except that, if not received during normal business hours for the recipient, shall be deemed
to have been received at the opening of business on the next business day for the recipient). The Company and the Agent may agree to
accept notice and other communications by electronic means pursuant to procedures approved by both parties.
(b) The
Company agrees that the Agent may make any written information, documents, instruments and other written materials that have been provided
to the Agent pursuant to the terms hereof (collectively, the “Communications”) available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system (the “Platform”). The Company acknowledges
that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality
and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available”
and (iii) neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the
Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement
of third party rights or freedom from viruses or other code defects, is made by the Agent or any of its Affiliates in connection with
the Platform.
(c) Each
Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) received by it during its normal business
hours specifying that any Communications have been posted to the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that if requested by any Lender the Agent shall deliver
a copy of the Communications to such Lender by e-mail or telecopier. Each Lender agrees (i) to notify the Agent in writing of such
Lender’s e-mail address to which a Notice may be sent by electronic transmission (including by electronic communication) on or
before the date such Lender becomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on record
an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address.
Section 8.03 No
Waiver; Remedies.
No
failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 8.04 Costs
and Expenses.
(a) The
Company agrees to pay on demand all reasonable costs and expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 8.04(a).
(b) The
Company agrees to indemnify and hold harmless the Agent and each Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with or by reason of, or in connection with the preparation
for a defense of, any investigation, litigation or proceeding arising out of, related to or in connection with the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances, whether or not such investigation,
litigation or proceeding is brought by any Borrower, its directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated, except
to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party’s gross negligence, willful misconduct or material breach of this Agreement in bad
faith.
None
of the Agent, any Lender or any of their Affiliates or their officers, directors, employees, agents and advisors (each, a “Lender-Related
Party”) shall be liable for any damages arising from the use by others of any information or other materials obtained through
IntraLinks or other similar information transmission systems in connection with this Agreement. No party hereto or any other Lender Related
Party shall have any liability to any other party hereto for any indirect, punitive or consequential damages relating to this Agreement
or any other Loan Document or arising out of its activities in connection herewith or therewith; provided that the foregoing shall not
affect any such damages incurred or paid by an Indemnified Party to a third party.
(c) If
any payment of principal of, or Conversion of, any Term SOFR Advance or any Eurocurrency Rate Advance is made by any Borrower to or for
the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant
to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Advances pursuant to Section 6.01 or for
any other reason, or if any Term SOFR Advance or Eurocurrency Rate Advance is assigned on any day other than the last day of an Interest
Period therefor as a result of a request by Company pursuant to Section 2.05 or 8.07, the Company shall, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without
prejudice to the survival of any other agreement of any Borrower hereunder, the agreements and obligations of the Company contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and
under the Notes and the termination of this Agreement.
Section 8.05 Right
of Set-off.
Upon
(i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of
the consent specified by Section 6.01 to authorize the Agent to declare the Advances due and payable pursuant to the provisions
of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of any Borrower against
any and all of the obligations of such Borrower now or hereafter existing under this Agreement and the Note held by such Lender, whether
or not such Lender shall have made any demand under this Agreement or such Note and although such obligations may be unmatured, provided
that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid
over immediately to the Agent for further application in accordance with the provisions of Section 2.19 and, pending such payment,
shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders,
and (y) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the obligations owing
to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the Company after any
such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender and its Affiliates may have.
Section 8.06 Binding
Effect.
This
Agreement shall become effective on the Effective Date and thereafter shall be binding upon and inure to the benefit of the Company,
each Borrowing Subsidiary (if any), the Agent and each Lender and their respective successors and assigns, except that other than in
accordance with Section 5.02(b), the Company shall not assign its rights and obligations hereunder or any interest herein without
the prior written consent of all of the Lenders.
Section 8.07 Assignments
and Participations.
(a) Each
Lender may, upon ten days’ notice to the Agent and with the prior consent of the Company (which consent shall not be unreasonably
withheld or delayed) and, if demanded by the Company pursuant to Section 2.05 (b) or 2.06(b), upon at least 20 Business Days’
notice to such Lender and the Agent, will assign to one or more Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations
under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender
or an affiliate of a Lender, or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption
with respect to such assignment) shall in no event be less than $10,000,000, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the Company pursuant to this Section 8.07(a) shall
be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another
such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement,
(v) no Lender shall be obligated to make any such assignment as a result of a demand by the Company pursuant to this Section 8.07(a) unless
and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the
parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register (as defined
in clause (d) below), an Assignment and Assumption, together with any Note requested pursuant to Section 2.13(e) subject
to such assignment and a processing and recordation fee of $3,500, unless waived by the Agent in its sole discretion, and (vii) the
Eligible Assignee shall complete, execute and deliver to the Borrowers and Agent the appropriate tax form pursuant to Section 2.14.
Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption
and upon compliance with clause (vii) of the previous sentence, (x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto); provided that an assigning Lender’s
rights to indemnification and reimbursement pursuant to Section 8.04 and its rights and obligations under Sections 2.11 and 2.14
shall survive assignment hereunder.
Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose vehicle
(an “SPV”) of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the
Agent and the Company, the option to provide to the Borrowers all or any part of any Advance that such Granting Lender would otherwise
be obligated to make to the Borrowers pursuant to Section 2.01, provided that (i) nothing herein shall constitute a
commitment by any SPV to make any Advance, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or
any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) the
Borrowers may bring any proceeding against either the Granting Lender or the SPV in order to enforce any rights of the Borrowers hereunder.
The making of an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such
Advance were made by the Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement
for which a Lender would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV,
it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof arising out of
any claim against such SPV under this Agreement. In addition, notwithstanding anything to the contrary contained in this Section, any
SPV may with notice to, but without the prior written consent of, the Company or the Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Advances to its Granting Lender or to any financial institutions (consented to by the
Company and the Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund
such Advances and such SPV may disclose, on a confidential basis, confidential information with respect to the Company and its Subsidiaries
to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV. This paragraph
may not be amended without the consent of any SPV at the time holding Advances under this Agreement.
(b) By
executing and delivering an Assignment and Assumption, the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Assumption, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower
of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such
Assignment and Assumption; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or
any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Upon
its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been completed and
is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the Company. The relevant Borrower, at its own expense,
shall if so requested pursuant to Section 2.13(e) execute and deliver to the Agent in exchange for the surrendered Note a new
Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption
and, if the assigning Lender has retained a Commitment hereunder, a new Note to the order of the assigning Lender in an amount equal
to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Assumption and shall otherwise be
in substantially the form of Exhibit A hereto.
(d) The
Agent acting solely for this purpose as a nonfiduciary agent of the relevant Borrower shall maintain at its address referred to in Section 8.02
if such address is within the United States and, if not, at one of its offices located within the United States a copy of each Assignment
and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and, with
respect to Lenders, the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any Lender, as to its Commitment, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Each
Lender may, with the prior consent of the Company (which consent shall not be unreasonably withheld or delayed), upon notice to the Agent,
sell participations to one or more banks or other entities (other than the Company or any Affiliate of the Company) in or to all or a
portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this
Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any
such Note for all purposes of this Agreement, (iv) the Borrowers, the Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note,
or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation,
postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation or release the Company from its obligations hereunder, including, without limitation,
its obligations under Article IX. Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary
agent of the relevant Borrower, maintain a register at one of its offices located within the United States on which it enters the name
and address of each participant and the Commitment of, and principal amount of the Advances owing to, each participant from time to time
(the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of
the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s
interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such
disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of
the United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding, absent manifest error,
and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all
purposes of this Agreement.
(f) Any
Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07,
disclose to the assignee or participant or proposed assignee or participant any information relating to any Borrower furnished to such
Lender by or on behalf of any Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee
or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrowers received by it from
such Lender.
(g) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights
under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it), in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any other central bank having
jurisdiction over such Lender.
Section 8.08 Confidentiality.
Neither
the Agent nor any Lender shall disclose any Confidential Information to any Person without the consent of the Company, other than (a) to
the Agent’s or such Lender’s Affiliates and their officers, directors, employees, agents and advisors and to actual or prospective
assignees and participants, and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial
process, (c) to any rating agency when required by it, provided that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to the Borrowers received by it from such Lender, (d) as
requested or required by any state, federal or foreign authority or examiner regulating banks or banking or any regulatory authority
(including any self-regulatory authority), (e) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder, and (f) disclosures of information pertaining to
this Agreement of the sort routinely provided by arrangers to data service providers, including league table providers, that serve the
lending industry; provided that such disclosure is limited to information identifying the Company, the type, amount and maturity
of the credit facility established hereby and the roles and titles of the Lead Arrangers, Agent and Syndication Agent named on the cover
hereof (and excluding any confidential information relating to the business of the Company).
In
addition, the Agent may disclose to any agency or organization that assigns standard identification numbers to loan facilities such basic
information describing the facilities provided hereunder as is necessary to assign unique identifiers (and, if requested, supply a copy
of this Agreement), it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of
such information and instructed to make available to the public only such information as such person normally makes available in the
course of its business of assigning identification numbers.
Section 8.09 Governing
Law.
This
Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise)
based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly
set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law
of the State of New York.
Section 8.10 Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by e-mail or telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of
like import herein or in any other Loan Document shall be deemed to include electronic signatures, the electronic matching of assignment
terms and contract formations on electronic platforms approved by the Agent and digital copies of a signatory's manual signature, deliveries
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
Section 8.11 Jurisdiction,
Etc.
(a) Each
of the parties hereto hereby irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of
any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Agent, any Lender or any
Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or
thereto, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court
of the Southern District of New York sitting in New York County, and any appellate court from any thereof,
and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all
claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest
extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action,
litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or in any other Loan Document shall affect any right that any party hereto may otherwise have
to bring any action or proceeding to enforce a judgment relating to this Agreement or any other Loan Document against any other party
hereto or its properties in the courts of any jurisdiction.
(b) Each
of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each
party hereto irrevocably consents to service of process in the manner provided for notices in Section 8.02. Nothing in this Agreement
will affect the right of any party hereto to serve process in any other manner permitted by applicable law.
Section 8.12 WAIVER
OF JURY TRIAL.
EACH
BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE ACTIONS OF THE AGENT
OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
Section 8.13 USA
PATRIOT Act Notice.
Each
Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Company that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain,
verify and record information that identifies the Company, which information includes the name and address of the Company and other information
that will allow such Lender or the Agent, as applicable, to identify the Company in accordance with the Act.
Section 8.14 No
Fiduciary Duties.
The
Company acknowledges that the Agent, the Lenders and their respective Affiliates may have economic interest that conflict with those
of the Company and its Subsidiaries. The Company agrees that in connection with all aspects of the transactions contemplated hereby and
any communications in connection therewith, the Company and its Affiliates, on the one hand, and the Agent, the Lenders and their respective
Affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty
on the part of the Agent, the Lenders or their respective Affiliates and no such duty will be deemed to have arisen in connection with
any such transactions or communications.
Section 8.15 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding
anything to the contrary in this Agreement, any Note or in any other agreement, arrangement or understanding among any such parties with
respect to the subject matter hereof, each party hereto acknowledges that any liability of any Affected Financial Institution arising
under this Agreement, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement; or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
In
the event a Lender has been notified by a Resolution Authority that it has or may be subject to a Bail-In Action, it shall immediately
notify the Agent who shall in turn promptly notify the Company.
As
used in this Agreement, the following terms shall have the following meanings:
“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any
liability of an Affected Financial Institution.
“Bail-In
Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of
the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such
EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United
Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable
in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their
affiliates (other than through liquidation, administration or other insolvency proceedings).
“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which
is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent
of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member
Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated
supervision with its parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA
Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
Person), as in effect from time to time.
“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK
Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to
time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook
(as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions
and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the
resolution of any UK Financial Institution.
“Write-Down
and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of
such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers
of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In
Legislation that are related to or ancillary to any of those powers.
Section 8.16 Judgment.
(a)
If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency,
the parties hereto agree, to the fullest extent permitted under applicable law, that the rate of exchange used shall be that at which
in accordance with normal banking procedures the Agent could purchase Dollars with such other currency at Citibank’s principal
office in London at 11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.
(b) If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Euros into Dollars, the parties
agree to the fullest extent permitted under applicable law, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Agent could purchase Euros with Dollars at Citibank’s principal office in London at 11:00 A.M. (London
time) on the Business Day preceding that on which final judgment is given.
(c) The
obligation of each Borrower in respect of any sum due from it in any currency (the “Primary Currency”) to any Lender
or the Agent hereunder shall, notwithstanding any judgment in any other currency (the “Judgment Currency”), be discharged
only to the extent that on the Business Day following receipt by such Lender or the Agent (as the case may be), of any sum adjudged to
be so due in the Judgment Currency, such Lender or the Agent (as the case may be) may in accordance with normal banking procedures purchase
the applicable Primary Currency with the Judgment Currency; if the amount of the applicable Primary Currency so purchased is less than
such sum originally due to such Lender or the Agent (as the case may be) in the applicable Primary Currency, such Borrower agrees, as
a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Agent (as the case may be) against such
loss, and if the amount of the applicable Primary Currency so purchased exceeds such sum due to any Lender or the Agent (as the case
may be) in the applicable Primary Currency, such Lender or the Agent (as the case may be) agrees to remit such excess to such Borrower.
ARTICLE IX
GUARANTEE
Section 9.01 Guarantee.
The
Company hereby unconditionally and irrevocably guarantees to each Lender and the Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by acceleration, by optional prepayment or otherwise) of the principal of
and interest on the Advances to and the Notes of (to the extent of the principal of and interest on Advances made to) each Borrowing
Subsidiary and all other amounts whatsoever from time to time now or hereafter owing to the Lenders or the Agent or any of them by any
Borrowing Subsidiary under this Agreement pursuant to such Borrowing Subsidiary’s Designation Letter, in each case strictly in
accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”).
The Company hereby further agrees that if any Borrowing Subsidiary shall fail to pay in full when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise) any of the Guaranteed Obligations, the Company will promptly pay the same, without
any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
Section 9.02 Obligations
Unconditional.
(a) The
obligations of the Company under this Article IX, and the obligations (if any) of the Company assumed pursuant to Section 2.17(b),
are unconditional irrespective of (i) the value, genuineness, legality, validity, regularity or enforceability of any of the Guaranteed
Obligations, (ii) any modification, amendment or variation in or addition to the terms of any of the Guaranteed Obligations or any
covenants in respect thereof or any security therefor, (iii) any extension of time for performance or waiver of performance of any
covenant of any Borrowing Subsidiary or any failure or omission to enforce any right with regard to any of the Guaranteed Obligations,
(iv) any exchange, surrender, release of any other guaranty of or security for any of the Guaranteed Obligations, or (v) any
other circumstance whatsoever which may or might constitute a legal or equitable discharge or defense of a surety or guarantor, it being
the intent hereof that the obligations of the Company under this Article IX shall be absolute and unconditional under any and all
circumstances.
(b) The
Company hereby expressly waives diligence, presentment, demand, protest and all notices whatsoever with regard to any of the Guaranteed
Obligations and said obligations assumed under Section 2.17(b) and any requirement that the Agent or any Lender exhaust any
right, power or remedy or proceed against any Borrowing Subsidiary or any other Person hereunder or under the Designation Letter of such
Borrowing Subsidiary or under any Note of such Borrowing Subsidiary or any other guarantor of or any security for any of the Guaranteed
Obligations. The obligations of the Company under this Article IX constitute a guarantee of payment and not of collection.
Section 9.03 Reinstatement.
The
guarantee in this Article IX shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf
of any Borrowing Subsidiary in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder(s) of
any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
Section 9.04 Subrogation.
Until
the termination of the Commitments and the payment in full of the principal of and interest on the Advances and all other amounts payable
to the Agent or any Lender hereunder, the Company hereby irrevocably waives all rights of subrogation or contribution, whether arising
by operation of law (including, without limitation, any such right arising under the Federal Bankruptcy Code) or otherwise, by reason
of any payment by it pursuant to the provisions of this Article IX.
Section 9.05 Remedies.
The
Company agrees that, as between the Company on the one hand and the Lenders and the Agent on the other hand, the obligations of any Borrowing
Subsidiary guaranteed under this Agreement may be declared to be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in Article VI, for purposes of Section 9.01 hereof notwithstanding any stay, injunction or other prohibition
(whether in a bankruptcy proceeding affecting such Borrowing Subsidiary or otherwise) preventing such declaration as against such Borrowing
Subsidiary and that, in the event of such declaration or automatic acceleration such obligations (whether or not due and payable by such
Borrowing Subsidiary) shall forthwith become due and payable by the Company for purposes of said Section 9.01.
Section 9.06 Continuing
Guarantee.
The
guarantee in this Article IX is a continuing guarantee and shall apply to all Guaranteed Obligations whenever arising.
[Remainder of Page Intentionally
Left Blank]
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Credit Agreement to be duly executed and delivered as of
the date first above written.
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PEPSICO, INC. |
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By: |
/s/
Ada Cheng |
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Name: |
Ada Cheng |
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Title: |
Senior Vice President, Finance & Treasurer |
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By: |
/s/ Jay Laramie |
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Name: |
Jay Laramie |
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Title: |
Vice President & Assistant Treasurer |
PepsiCo 364-Day Credit Agreement Signature
Page
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CITIBANK, N.A. as Agent |
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By: |
/s/
Michael Vondriska |
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Name: |
Michael Vondriska |
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Title: |
Vice President |
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Initial Lenders |
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CITIBANK, N.A. |
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By: |
/s/ Michael
Vondriska |
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Name: |
Michael Vondriska |
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Title: |
Vice President |
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BANK OF AMERICA, N.A. |
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By: |
/s/ Ryan Van
Stedum |
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Name: |
Ryan Van Stedum |
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Title: |
Vice President |
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JPMORGAN CHASE BANK, N.A. |
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By: |
/s/ Gregory
Martin |
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Name: |
Gregory Martin |
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Title: |
Executive Director |
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BNP PARIBAS |
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By: |
/s/ David Foster |
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Name: |
David Foster |
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Title: |
Director |
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By: |
/s/ Claudia
Zarate |
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Name: |
Claudia Zarate |
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Title: |
Managing Director |
PepsiCo 364-Day Credit Agreement Signature
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DEUTSCHE BANK AG NEW YORK BRANCH |
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By: |
/s/
Ming K. Chu |
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Name: |
Ming K. Chu |
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Title: |
Director |
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By: |
/s/ Alison Lugo |
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Name: |
Alison Lugo |
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Title: |
Vice President |
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GOLDMAN SACHS BANK USA |
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By: |
/s/ Dan Starr |
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Name: |
Dan Starr |
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Title: |
Authorized Signatory |
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THE HONGKONG AND SHANGHAI BANKING CORPORATION
LIMITED |
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By: |
/s/ Mun Loong
Choy |
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Name: |
Mun Loong Choy |
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Title: |
Managing Director, Head of Multinational Greater China |
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MIZUHO BANK, LTD. |
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By: |
/s/ Tracy Rahn |
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Name: |
Tracy Rahn |
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Title: |
Managing Director |
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MORGAN STANLEY BANK, N.A. |
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By: |
/s/ Michael
King |
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Name: |
Michael King |
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Title: |
Authorized Signatory |
PepsiCo 364-Day Credit Agreement Signature
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BANCO BILBAO VIZCAYA ARGENTARIA, S.A. |
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NEW YORK BRANCH |
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By: |
/s/
Cara Younger |
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Name: |
Cara Younger |
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Title: |
Managing Director |
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By: |
/s/ Armen Semizian |
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Name: |
Armen Semizian |
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Title: |
Managing Director |
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BARCLAYS BANK PLC |
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By: |
/s/ Ritam Bhalla |
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Name: |
Ritam Bhalla |
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Title: |
Director |
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ING BANK N.V., DUBLIN BRANCH |
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By: |
/s/ Cormac Langford |
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Name: |
Cormac Langford |
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Title: |
Managing Director |
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By: |
/s/ Sean Hassett |
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Name: |
Sean Hassett |
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Title: |
Director |
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SOCIETE GENERALE |
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By: |
/s/ Shelley
Yu |
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Name: |
Shelley Yu |
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Title: |
Director |
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THE TORONTO-DOMINION BANK, NEW YORK BRANCH |
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By: |
/s/ Victoria
Roberts |
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Name: |
Victoria Roberts |
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Title: |
Authorized Signatory |
PepsiCo 364-Day Credit Agreement Signature
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AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED |
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By: |
/s/
Robert Grillo |
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Name: |
Robert Grillo |
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Title: |
Executive Director |
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BANK OF CHINA, NEW YORK BRANCH |
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By: |
/s/ Raymond
Qiao |
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Name: |
Raymond Qiao |
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Title: |
Executive Vice President |
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PNC BANK, NATIONAL ASSOCIATION |
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By: |
/s/ Cheryl L.
Sekelsky |
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Name: |
Sheryl L. Sekelsky |
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Title: |
Senior Vice President |
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ROYAL BANK OF CANADA |
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By: |
/s/ Scott Robinson |
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Name: |
Scott Robinson |
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Title: |
Vice President – CCG Finance |
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STANDARD CHARTERED BANK |
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By: |
/s/ Kristopher
Tracy |
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Name: |
Kristopher Tracy |
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Title: |
Director Financing Solutions |
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THE NORTHERN TRUST COMPANY |
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By: |
/s/ Eric Siebert |
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Name: |
Eric Siebert |
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Title: |
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PepsiCo 364-Day Credit Agreement Signature
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THE STANDARD BANK OF SOUTH AFRICA LIMITED, ISLE
OF MAN BRANCH |
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By: |
/s/
Darren Weymouth |
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Name: |
Darren Weymouth |
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Title: |
Executive |
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U.S. BANK NATIONAL ASSOCIATION |
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By: |
/s/ Peter Hale |
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Name: |
Peter Hale |
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Title: |
Vice President |
PepsiCo
364-Day Credit Agreement Signature Page
Schedule I
Agent’s Address
Citibank Delaware
One Penns Way
OPS II, Floor 2
New Castle, DE 19720
Attn: Lending Agency
Phone: (302) 894-6010
Borrower inquiries only: usagencyservicing@citi.com
Borrower notifications: usagencyservicing@citi.com
Disclosure Team Mail (Financial Reporting): oploanswebadmin@citi.com
Investor Relations Team (investor inquiries only): global.loans.support@citi.com
Exhibit A to
Credit Agreement
FORM OF NOTE
U.S.$__________
Dated: __________, 20__
FOR VALUE RECEIVED, the undersigned,
PEPSICO, INC., a North Carolina corporation (the “Borrower”), HEREBY PROMISES TO PAY to the order of _____________________
(the “Lender”) for the account of its Applicable Lending Office on the later of the Termination Date and the Maturity
Date (each as defined in the Credit Agreement referred to below) the principal amount of the Advances made by the Lender to the Borrower
pursuant to the 364-Day Credit Agreement dated as of May 24, 2024 among the Borrower, the Lender and certain other lenders parties
thereto, and Citibank, N.A., as Agent for the Lender and such other lenders (as amended or modified from time to time, the “Credit
Agreement”; the terms defined therein being used herein as therein defined) outstanding on the later of the Termination Date
and the Maturity Date.
The Borrower promises to
pay interest on the unpaid principal amount of each Advance from the date of such Advance until such principal amount is paid in full,
at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest
in respect of each Advance (i) denominated in Dollars are payable in lawful money of the United States of America and (ii) denominated
in Euros are payable in such currency, in each case to Citibank, N.A., as Agent, at the Agent’s Account, in same day funds for
the account of the Lender. Each Advance owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note. Each such endorsement shall constitute prima facie evidence of the accuracy of the information
so endorsed.
This Promissory Note is one
of the Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides
for the making of Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at any time outstanding
the U.S. dollar amount first above mentioned, the indebtedness of the Borrower resulting from each such Advance being evidenced by this
Promissory Note, (ii) contains provisions for determining the Equivalent in Dollars for Advances denominated in Euros and (iii) contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
The Borrower hereby waives
presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall
be governed by, and construed in accordance with, the laws of the State of New York.
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PEPSICO, INC. |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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ADVANCES AND PAYMENTS OF PRINCIPAL
Date |
Amount and
Currency of
Advance |
Amount of
Principal Paid
Or Prepaid |
Unpaid Principal
Balance |
Notation
Made By |
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Exhibit B to
Credit Agreement
FORM OF NOTICE OF BORROWING
Citibank, N.A., as Agent
for the Lenders party
to the Credit Agreement
referred to below
_________________________
_________________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, PepsiCo, Inc.
(the “Company”), refers to the 364-Day Credit Agreement, dated as of May 24, 2024 (as amended or modified from
time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of
the Credit Agreement:
(i) The
Business Day of the Proposed Borrowing is ______, ____.
(ii) The
Type of Advances constituting the Proposed Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances] [Term SOFR Advances].
(iii) The
aggregate amount of the Proposed Borrowing is [$][€]________.
(iv) The
identity of the Borrower for the Proposed Borrowing is ______________, a ______________ corporation.
[(v) The
initial Interest Period for each [Eurocurrency Rate Advance] [Term SOFR Advance] made as part of the Proposed Borrowing is ____ month[s].]
The location and number to
which proceeds of the requested Borrowing are to be disbursed are: Bank: [●], Account No.: [●], ABA No.: [●].
The undersigned hereby certifies
that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(a) the
representations and warranties contained in Section 4.01 of the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f) thereof (other than clause (ii) thereof)) are
correct, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date;
(b) no
event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default; and
(c) the
aggregate amount of the Proposed Borrowing and all other Borrowings to be made on the same day under the Credit Agreement is within the
aggregate amount of the unused Commitments of the Lenders.
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Very truly yours, |
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PEPSICO, INC. |
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By: |
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Name: |
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Title: |
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By: |
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Title: |
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Exhibit C to
Credit Agreement
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption
(this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).
Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption
as if set forth herein in full.
For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted
by the Agent as contemplated below (i) all of the Assignor’s rights and obligations as a Lender under the Credit Agreement
and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related
to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. | Assignor: |
______________________________ |
2. | Assignee: |
______________________________ [and is an Affiliate of [identify Lender]] |
4. | Agent: |
Citibank, N.A., as the administrative agent under the Credit Agreement. |
5. | Credit Agreement: |
364-Day
Credit Agreement, dated as of May 24, 2024, among PepsiCo, Inc. (the “Company”), the Lenders party thereto
and Citibank, N.A., as Agent. |
Aggregate Amount
of Commitment/ Advances for
all Lenders* | | |
Amount
of Commitment/ Advances Assigned* | | |
Percentage Assigned
of Commitment/ Advances1 | |
$ | | | |
$ | | | |
| | % |
[7. | Trade Date: |
__________________]2 |
Effective Date: __________________, 20__ [TO BE INSERTED BY AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
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ASSIGNOR |
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[NAME OF ASSIGNOR] |
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By: |
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Title: |
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ASSIGNEE |
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[NAME OF ASSIGNEE] |
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By: |
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Title: |
*Amount to be adjusted to take into account any payments or prepayments
made between the Trade Date and the Effective Date.
1
Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Lenders thereunder.
2
To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
Consented to and Accepted: |
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CITIBANK, N.A., as |
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Administrative Agent |
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By: |
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Title: |
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Consented to: |
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PEPSICO, INC. |
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By: |
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Title: |
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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations
and Warranties.
1.1. Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and
has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries
or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company,
any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee.
The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents
as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered or deemed
delivered pursuant to Section 5.01(d) thereof, as applicable, and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Lender, and (v) if
it is a Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue
Code (a “Foreign Lender”), attached hereto is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance
on the Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments.
From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the Agent for periods prior to the Effective Date or with respect
to the making of this assignment directly between themselves.
3. General
Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by,
and construed in accordance with, the laws of the State of New York.
Exhibit D to
Credit Agreement
FORM OF DESIGNATION LETTER
__________, 20__
To Citibank, N.A.,
as Agent
Attention:
Ladies and Gentlemen:
We make reference to the
364-Day Credit Agreement (as amended or modified from time to time, the “Credit Agreement”; the terms defined therein
being used herein as therein defined) dated as of May 24, 2024 among PepsiCo, Inc., (the “Company”), Citibank,
N.A., as Agent (the “Agent”), and the banks party thereto (the “Lenders”).
The Company hereby designates
[_______________] (the “Borrowing Subsidiary”), a Subsidiary of the Company and a corporation duly incorporated under
the laws of [_______________], as a Borrower in accordance with Section 2.17 of the Credit Agreement until such designation is terminated
in accordance with said Section 2.17.
The Borrowing Subsidiary
hereby accepts the above designation and hereby expressly and unconditionally accepts the obligations of a Borrower under the Credit
Agreement, adheres to the Credit Agreement and agrees and confirms that, upon your execution and return to the Company of the enclosed
copy of this letter, such Borrowing Subsidiary shall be a Borrower for purposes of the Credit Agreement and agrees to be bound by and
perform and comply with the terms and provisions of the Credit Agreement applicable to it as if it had originally executed the Credit
Agreement as a Borrower. The Borrowing Subsidiary hereby authorizes and empowers the Company to act as its representative and attorney-in-fact
for the purposes of signing documents and giving and receiving notices (including notices of Borrowing under the Credit Agreement) and
other communications in connection with the Credit Agreement and the transactions contemplated thereby and for the purposes of modifying
or amending any provision of the Credit Agreement and further agrees that the Agent and each Lender may conclusively rely on the foregoing
authorization. The Borrowing Subsidiary hereby represents and warrants to the Agent and each Lender that, as of the date hereof, the
information included in the Beneficial Ownership Certification in relation to the Borrowing Subsidiary is true and correct in all respects.
The Company hereby represents
and warrants to the Agent and each Lender that, before and after giving effect to this Designation Letter, (i) the representations
and warranties set forth in Section 4.01 of the Credit Agreement (except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii) thereof)) are true and correct on the Effective Date
as if made on and as of the date hereof and (ii) no Default has occurred and is continuing. The Borrowing Subsidiary represents
and warrants that each of the representations and warranties set forth in Section 4.01(a) (as if the reference therein to North
Carolina were a reference to its jurisdiction of organization), (b), (c) and (d) of the Credit Agreement are true as if each
reference therein to the Company were a reference to the Borrowing Subsidiary and as if each reference therein to the Loan Documents
were a reference to this Designation Letter and the Note, if any, executed by the Borrowing Subsidiary in connection herewith.
The Borrowing Subsidiary
is hereby aware that this Designation Letter, the Credit Agreement and the Notes, if any, shall be governed by, and construed in accordance
with, the laws of the State of New York. The Borrowing Subsidiary hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York state court sitting in New York City for the purposes of all
legal proceedings arising out of or relating to this Designation Letter, the Credit Agreement or the transactions contemplated thereby.
The Borrowing Subsidiary irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have
to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. The Borrowing Subsidiary further agrees that service of process in any such action or proceeding
brought in New York may be made upon it by service upon the Borrower at the “Address for Notices” specified below its name
on the signature page to this Designation Letter.
Without limiting the foregoing,
the Borrowing Subsidiary joins in the submission, agreements, waivers and consents in Section 8.11 and 8.12 of the Credit Agreement.
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PEPSICO, INC. |
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By |
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Name: |
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Title: |
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By |
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Name: |
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Title: |
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[NAME OF BORROWING SUBSIDIARY] |
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By |
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Name: |
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Title: |
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Address for Notices: |
ACCEPTED |
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CITIBANK, N.A., |
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as Agent |
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By |
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Title: |
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Exhibit E to
Credit Agreement
FORM OF TERMINATION LETTER
To Citibank, N.A.,
as Agent
Attention:
Ladies and Gentlemen:
We make reference to the
364-Day Credit Agreement (as amended or modified from time to time, the “Credit Agreement”; the terms defined therein
being used herein as therein defined) dated as of May 24, 2024 by and among PepsiCo, Inc. (the “Company”),
Citibank, N.A., as Agent, and the banks party thereto.
The Company hereby terminates
the status as a Borrowing Subsidiary of [______________], a corporation incorporated under the laws of [_______________], in accordance
with Section 2.17 of the Credit Agreement, effective as of the date of receipt of this notice by the Agent. The undersigned hereby
represents and warrants that all principal of and interest on any Advance of the above-referenced Borrowing Subsidiary and all other
amounts payable by such Borrowing Subsidiary pursuant to the Credit Agreement have been paid in full on or prior to the date hereof.
Notwithstanding the foregoing, this Termination Letter shall not affect any obligation which by the terms of the Credit Agreement survives
termination thereof.
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PEPSICO, INC. |
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By: |
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Name: |
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Title: |
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Exhibit 99.2
EXECUTION VERSION
U.S. $5,000,000,000
FIVE YEAR
CREDIT AGREEMENT
Dated as of May 24, 2024
among
PEPSICO, INC.,
as Borrower,
THE LENDERS NAMED HEREIN,
CITIBANK, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK, N.A.
and
BANK OF AMERICA, N.A.,
as Syndication Agent,
CITIBANK, N.A.,
JPMORGAN CHASE BANK, N.A.
and
BOFA SECURITIES, INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS |
1 |
Section 1.01 |
Certain Defined Terms |
1 |
Section 1.02 |
Computation of Time Periods |
15 |
Section 1.03 |
Accounting Terms |
15 |
Section 1.04 |
Divisions |
15 |
Section 1.05 |
Rates |
15 |
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ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES |
16 |
Section 2.01 |
The Revolving Credit Advances |
16 |
Section 2.02 |
Making the Revolving Credit Advances |
16 |
Section 2.03 |
[Reserved] |
17 |
Section 2.04 |
Fees |
17 |
Section 2.05 |
Termination, Reduction or Increase of Commitments |
18 |
Section 2.06 |
Repayment of Advances; Extension of Termination Date |
20 |
Section 2.07 |
Interest on Advances |
21 |
Section 2.08 |
Interest Rate Determination |
22 |
Section 2.09 |
Optional Conversion or Continuation of Revolving Credit Advances |
23 |
Section 2.10 |
Prepayments of Revolving Credit Advances |
24 |
Section 2.11 |
Increased Costs |
25 |
Section 2.12 |
Illegality |
26 |
Section 2.13 |
Payments and Computations; Evidence of Advances |
26 |
Section 2.14 |
Taxes |
28 |
Section 2.15 |
Sharing of Payments, Etc. |
30 |
Section 2.16 |
Use of Proceeds |
31 |
Section 2.17 |
Borrowings by Borrowing Subsidiaries |
31 |
Section 2.18 |
Benchmark Replacement Setting |
32 |
Section 2.19 |
Defaulting Lenders |
36 |
Section 2.20. |
The Swing Line Advances |
38 |
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ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING |
40 |
Section 3.01 |
Conditions Precedent to Effectiveness |
40 |
Section 3.02 |
Conditions Precedent to Each Borrowing |
41 |
Section 3.03 |
Determinations Under Section 3.01 |
42 |
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ARTICLE IV REPRESENTATIONS AND WARRANTIES |
42 |
Section 4.01 |
Representations and Warranties of the Company |
42 |
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ARTICLE V COVENANTS OF THE COMPANY |
43 |
Section 5.01 |
Affirmative Covenants |
43 |
Section 5.02 |
Negative Covenants |
45 |
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ARTICLE VI EVENTS OF DEFAULT |
46 |
Section 6.01 |
Events of Default |
46 |
ARTICLE VII THE AGENT |
48 |
Section 7.01 |
Appointment and Authority |
48 |
Section 7.02 |
Rights as a Lender |
48 |
Section 7.03 |
Exculpatory Provisions |
48 |
Section 7.04 |
Reliance by Agent |
49 |
Section 7.05 |
Indemnification |
49 |
Section 7.06 |
Delegation of Duties |
50 |
Section 7.07 |
Resignation of Agent |
50 |
Section 7.08 |
Non-Reliance on Agent and Other Lenders |
51 |
Section 7.09 |
Syndication Agent and Lead Arrangers |
51 |
Section 7.10 |
Certain ERISA Matters |
51 |
Section 7.11 |
Erroneous Payments |
52 |
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ARTICLE VIII MISCELLANEOUS |
55 |
Section 8.01 |
Amendments, Etc. |
55 |
Section 8.02 |
Notices, Etc. |
55 |
Section 8.03 |
No Waiver; Remedies |
56 |
Section 8.04 |
Costs and Expenses |
56 |
Section 8.05 |
Right of Set-off |
57 |
Section 8.06 |
Binding Effect |
58 |
Section 8.07 |
Assignments and Participations |
58 |
Section 8.08 |
Confidentiality |
61 |
Section 8.09 |
Governing Law |
62 |
Section 8.10 |
Execution in Counterparts |
62 |
Section 8.11 |
Jurisdiction, Etc. |
62 |
Section 8.12 |
WAIVER OF JURY TRIAL |
63 |
Section 8.13 |
USA PATRIOT Act Notice |
63 |
Section 8.14 |
No Fiduciary Duties |
63 |
Section 8.15 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
63 |
Section 8.16 |
Judgment |
65 |
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ARTICLE IX GUARANTEE |
66 |
Section 9.01 |
Guarantee |
66 |
Section 9.02 |
Obligations Unconditional |
66 |
Section 9.03 |
Reinstatement |
66 |
Section 9.04 |
Subrogation |
67 |
Section 9.05 |
Remedies |
67 |
Section 9.06 |
Continuing Guarantee |
67 |
Schedules |
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Schedule I |
Agent’s Address and Sub-Agent’s Address |
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Exhibits |
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Exhibit A |
Form of Revolving Credit Note |
Exhibit B |
Form of Notice of Borrowing |
Exhibit C |
Form of Assignment and Assumption |
Exhibit D |
Form of Designation Letter |
Exhibit E |
Form of Termination Letter |
FIVE YEAR CREDIT AGREEMENT
Dated as of May 24, 2024
PEPSICO, INC., a North
Carolina corporation (the “Company”), the banks, financial institutions and other institutional lenders (the “Initial
Lenders”) listed on the signature pages hereof, and Citibank, N.A., as administrative agent (in such capacity, the “Agent”)
for the Lenders (as hereinafter defined), agree, as of May 24, 2024, as follows:
PRELIMINARY STATEMENT
The Company has requested
that the Lenders agree to extend credit to it and the Borrowing Subsidiaries from time to time in an aggregate principal amount of up
to $5,000,000,000 for general corporate purposes of the Company and its Subsidiaries, including but not limited to working capital, capital
investments and acquisitions. The Lenders have indicated their willingness to agree to extend credit to the Company and the Borrowing
Subsidiaries from time to time in such amount on the terms and conditions set forth in this Agreement.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain
Defined Terms.
As used in this Agreement,
the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
“Act”
has the meaning specified in Section 8.13.
“Adjusted Term SOFR”
means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) 0.10%; provided
that if Adjusted Term SOFR as so determined shall ever be less than the zero, then Adjusted Term SOFR shall be deemed to be zero.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by the Agent.
“Advance”
means a Revolving Credit Advance or any Swing Line Advance made by a Swing Line Lender.
“Affected Financial
Institution” has the meaning specified in Section 8.15.
“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms
“controlling”, “controlled by” and “under common control with”) of a Person means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the
ownership of Voting Stock, by contract or otherwise.
“Agent”
has the meaning specified in the preamble.
“Agent’s Account”
means such account, in respect of Advances denominated in Dollars or in respect of Advances denominated in Euros, as the Agent shall
designate from time to time in a notice to the Company and the Lenders.
“Agent’s Address”
means the address or addresses of the Agent on Schedule I attached hereto.
“Anti-Corruption
Laws” means the United States Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act, as amended.
“Applicable Lending
Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance
or a Term SOFR Advance and such Lender’s Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance or a Swing Line
Advance.
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, and accepted by the Agent,
in substantially the form of Exhibit C hereto.
“Available Currency”
has the meaning specified in Section 2.18.
“Available Tenor”
has the meaning specified in Section 2.18.
“Bail-In Action”
has the meaning specified in Section 8.15.
“Bail-In Legislation”
has the meaning specified in Section 8.15.
“Base Rate”
means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the
rate of interest in effect for such day as publicly announced from time to time by Citibank, N.A. in the United States as its “base
rate”, and notified to the Company at its request (it being understood and agreed that such base rate is a rate set by Citibank,
N.A. based on various factors and is used as a reference point for pricing some loans);
(b) the
Federal Funds Rate plus 0.50%; and
(c) Adjusted
Term SOFR for a one-month tenor in effect on such day plus 1.00%.
“Base Rate Advance”
means a Revolving Credit Advance denominated in Dollars that bears interest as provided in Section 2.07(a)(i).
“Benchmark”
has the meaning specified in Section 2.18.
“Benchmark Replacement”
has the meaning specified in Section 2.18.
“Benchmark Replacement
Adjustment” has the meaning specified in Section 2.18.
“Benchmark Replacement
Date” has the meaning specified in Section 2.18.
“Benchmark Transition
Event” has the meaning specified in Section 2.18.
“Benchmark Unavailability
Period” has the meaning specified in Section 2.18.
“Beneficial Ownership
Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership
Regulation” means 31 C.F.R. § 1010.230.
“Borrower”
means the Company (both as a Borrower and as a guarantor under Article IX of Advances made to the Borrowing Subsidiaries) and each
Borrowing Subsidiary.
“Borrowing”
means a Revolving Credit Borrowing or a Swing Line Borrowing.
“Borrowing Minimum”
means, in respect of Revolving Credit Advances denominated in Dollars, $10,000,000 and, in respect of Revolving Credit Advances denominated
in Euros, €10,000,000.
“Borrowing Multiple”
means, in respect of Revolving Credit Advances denominated in Dollars, $1,000,000 and, in respect of Revolving Credit Advances denominated
in Euros, €1,000,000.
“Borrowing Subsidiary”
means any Subsidiary of the Company, as to which a Designation Letter has been delivered to the Agent and as to which a Termination Letter
has not been delivered to the Agent in accordance with Section 2.17.
“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are
in fact closed in, the state of the Agent’s Address or in New York, New York and if such day relates to a Eurocurrency Rate Advance,
it shall also mean a day on which T2 is open; provided that, in the case of any Borrowing of a Swing Line Advance, a Business
Day shall be a day on which dealings are carried on in the London interbank market and on which the TARGET System is open.
“Change in Law”
has the meaning specified in Section 2.14(d).
“Commitments”
means the Revolving Credit Commitments and the Swing Line Commitments.
“Communications”
has the meaning specified in Section 8.02(b).
“Company”
has the meaning specified in the preamble.
“Confidential Information”
means information that the Company furnishes to the Agent or any Lender, but does not include any such information (x) that is or
becomes generally available to the public other than by the Agent or any Lender in violation of this Agreement or (y) that is or
becomes rightfully available to the Agent or such Lender from a source other than the Company which the Agent or such Lender had no reason
to believe had any confidentiality or fiduciary obligation to the Company with respect to such information.
“Conforming Changes”
means, with respect to either the use or administration of an initial Benchmark or the use, administration, adoption or implementation
of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base
Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the
definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing
requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, the
formula for calculating any successor rates identified pursuant to the definition of “Benchmark Replacement”, the formula,
methodology or convention for applying the successor Floor to the successor Benchmark Replacement and other technical, administrative
or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement
and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides
that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice
for the administration of such Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably
necessary in connection with the administration of this Agreement).
“Consolidated”
refers to the consolidation of accounts in accordance with GAAP.
“Consolidated Net
Tangible Assets” means the total assets of the Company and its Restricted Subsidiaries (less applicable depreciation, amortization,
and other valuation reserves), less all current liabilities (excluding intercompany liabilities) and all intangible assets of the Company
and its Restricted Subsidiaries, all as set forth on the most recent consolidated balance sheet of the Company and its Restricted Subsidiaries,
prepared in accordance with GAAP.
“Convert”,
“Conversion” and “Converted” each refers to a conversion of Revolving Credit Advances of one Type
into Revolving Credit Advances of the other Type pursuant to Section 2.08, 2.09 or 2.18.
“Daily Simple SOFR”
means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Agent in accordance
with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR”
for syndicated business loans; provided that if the Agent decides that any such convention is not administratively feasible for the Agent,
then the Agent may establish another convention in its reasonable discretion.
“Debt”
of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services, (c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such property), (e) for purposes only of Article VI, all obligations
of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as finance leases, (f) all
obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g) above
or clause (i) below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose
of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds to or
in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property
is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to
in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt.
“Declining Lender”
has the meaning specified in Section 2.06(b).
“Default”
means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time
elapse or both.
“Default Rate”
means (a) with respect to a Base Rate Advance and any other amount owing hereunder (other than a Term SOFR Advance, a Eurocurrency
Rate Advance or a Swing Line Advance), the Base Rate plus two percent (2%) per annum, (b) with respect to all Term SOFR Advances
or Eurocurrency Rate Advances, the rate otherwise applicable to such Term SOFR Advance or Eurocurrency Rate Advance plus two percent
(2%) per annum and (c) with respect to all Swing Line Advances, the rate otherwise applicable to such Swing Line Advance plus two
percent (2%) per annum.
“Defaulting Lender”
means, subject to Section 2.19(b), any Lender that (a) has failed to (i) fund all or any portion of its Advances within
two Business Days of the date such Advances were required to be funded hereunder unless such Lender notifies the Agent and the Company
in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each
of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied,
(ii) fund any portion of its participations in Swing Line Advances within two Business Days of the date when due or (iii) pay
to the Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due,
(b) has notified the Company or the Agent in writing that it does not intend to comply with its funding obligations hereunder, or
has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund
an Advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding
(which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement)
cannot be satisfied), (c) has failed, within three Business Days after written request by the Agent or the Company, to confirm in
writing to the Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent
and the Company), (d) has defaulted on its funding obligations under other loan agreements or credit agreements generally, or (e) has,
or has a direct or indirect parent company that has, (i) become the subject of a proceeding under the Bankruptcy Code of the United
States of America, or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdictions from time
to time in effect, or a Bail-In Action, or (ii) other than pursuant to an Undisclosed Administration, had appointed for it a receiver,
custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or
liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority
acting in such a capacity; provided that a Lender shall not be a Defaulting Lender under this clause (ii) solely by virtue
of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a governmental
authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such governmental
authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Agent
that a Lender is a Defaulting Lender under clauses (a) through (e) above shall be conclusive and binding absent manifest error,
and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b)) upon delivery of written notice of such determination
to the Company and each Lender.
“Designation Letter”
has the meaning specified in Section 2.17(a).
“Dollars”
and the “$” sign each means lawful currency of the United States of America.
“Domestic Lending
Office” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office”
in its Administrative Questionnaire or in the Assignment and Assumption pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify in writing to the Company and the Agent.
“EEA Financial Institution”
has the meaning specified in Section 8.15.
“EEA Member Country”
has the meaning specified in Section 8.15.
“EEA Resolution
Authority” has the meaning specified in Section 8.15.
“Effective Date”
has the meaning specified in Section 3.01.
“Eligible Assignee”
means (i) a Lender; (ii) an Affiliate of a Lender; (iii) a commercial bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of $15,000,000,000 and a combined capital and surplus of at least $1,000,000,000;
(iv) a savings and loan association or savings bank organized under the laws of the United States, or any State thereof, and having
total assets in excess of $15,000,000,000 and a combined capital and surplus of at least $1,000,000,000; (v) a commercial bank organized
under the laws of any other country that is a member of the Organization for Economic Cooperation and Development or has concluded special
lending arrangements with the International Monetary Fund associated with its General Arrangements to Borrow or of the Cayman Islands,
or a political subdivision of any such country, and having total assets in excess of $15,000,000,000 and a combined capital and surplus
of at least $1,000,000,000, so long as such bank is acting through a branch or agency located in the United States or in the country
in which it is organized or another country that is described in this clause (v); (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; provided, however, that each Person described in clauses
(ii) through (vi) shall have a short term public debt rating of not less than A-1 by S&P Global Ratings (or any successor
thereto) or P-1 by Moody’s Investors Service, Inc. (or any successor thereto) and shall be approved by the Company, such approval
not to be unreasonably withheld or delayed; and (vii) any other Person approved by the Company, such approval not to be unreasonably
withheld or delayed; provided, however, that (x) neither the Company nor an Affiliate of the Company, (y) no
individual (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, an individual) and
(z) no Defaulting Lender shall qualify as an Eligible Assignee.
“Environmental Law”
means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to the environment, health, safety or Hazardous Materials.
“Equivalent”
in Dollars of Euros on any date means the equivalent in Dollars of Euros determined by using the quoted spot rate at which the Agent’s
principal office in London offers to exchange Dollars for Euros in London at approximately 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required pursuant to the terms of this Agreement, and the “Equivalent”
in Euros of Dollars means the equivalent in Euros of Dollars determined by using the quoted spot rate at which the Agent’s principal
office in London offers to exchange Euros for Dollars in London at approximately 4:00 P.M. (London time) (unless otherwise indicated
by the terms of this Agreement) on such date as is required pursuant to the terms of this Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
“Erroneous Payment”
has the meaning specified in Section 7.11(a).
“Erroneous Payment
Deficiency Assignment” has the meaning specified in Section 7.11(d).
“Erroneous Payment
Return Deficiency” has the meaning specified in Section 7.11(d).
“Erroneous Payment
Subrogation Rights” has the meaning specified in Section 7.11(d).
“€STR”
has the meaning specified in the definition of “Overnight Rate”.
“EU Bail-In Legislation
Schedule” has the meaning specified in Section 8.15.
“EURIBO Rate”
means, for any Interest Period, the euro interbank offered rate administered by the European Money Markets Institute (or any other person
which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication
by the administrator) on the applicable Bloomberg screen (or any successor to or substitute for Bloomberg, providing rate quotations
comparable to those currently provided by Bloomberg, as mutually agreed by the Company and the Agent from time to time for purposes of
providing quotations of interest rates for the offering of deposits in Euro) as of 11:00 A.M. (London time) on the date two Business
Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided that, if the EURIBO
Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Euro”
and “€”shall mean the single currency unit of the member States of the European Union that adopt or have adopted
the Euro as their lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Eurocurrency Lending
Office” means, with respect to any Lender, the office of such Lender specified as its “Eurocurrency Lending Office”
in its Administrative Questionnaire or in the Assignment and Assumption pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify in writing
to the Company and the Agent.
“Eurocurrency Rate
Advance” means a Revolving Credit Advance denominated in Euros that bears interest as provided in Section 2.07(a)(iii).
“Events of Default”
has the meaning specified in Section 6.01.
“Excluded Taxes”
means (i) taxes imposed on, or measured by, the recipient’s net income (however measured), including branch profits taxes
and franchise taxes imposed in lieu of net income taxes, (ii) non-U.S. withholding taxes imposed solely as a result of activities
or place of incorporation or formation of the applicable Lender or the Agent in such non-U.S. jurisdiction and (iii) taxes imposed
on any “withholdable payment” payable to such recipient as a result of the failure of such recipient to satisfy the applicable
requirements as set forth in FATCA.
“Existing Credit
Agreements” means (a) the Five Year Credit Agreement dated as of May 26, 2023 (as amended, supplemented or otherwise
modified from time to time) among the Company, the banks, financial institutions and other institutional lenders party thereto and Citibank,
N.A., as administrative agent for the Lenders and such other lenders and (b) the 364-Day Credit Agreement dated as of May 26,
2023 (as amended, supplemented or otherwise modified from time to time) among the Company, the banks, financial institutions and other
institutional lenders party thereto and Citibank, N.A., as administrative agent for the Lenders and such other lenders.
“Existing Termination
Date” has the meaning specified in Section 2.06(b).
“Extending Lender”
has the meaning specified in Section 2.06(b).
“Extension Date”
has the meaning specified in Section 2.06(b).
“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations
thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreement
entered into in connection with the implementation of such Sections of the Internal Revenue Code and any fiscal or regulatory legislation,
rules or practices adopted pursuant to such intergovernmental agreement.
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it; provided that, if the Federal Funds Rate shall be less than zero, such rate
shall be deemed zero for purposes of this Agreement.
“Floor”
has the meaning specified in Section 2.18.
“Foreign Lender”
has the meaning specified in Section 2.14(b).
“GAAP”
has the meaning specified in Section 1.03.
“Granting Lender”
has the meaning specified in Section 8.07(a).
“Guaranteed Obligations”
has the meaning specified in Section 9.01.
“Hazardous Materials”
means petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, radon
gas and any other chemicals, materials or substances designated, classified or regulated as being “hazardous” or “toxic”,
or words of similar import, under any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guideline.
“Hedge Agreements”
means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future
or option contracts and other similar agreements.
“Income”
has the meaning specified in Section 2.14(a).
“Increase Date”
has the meaning specified in Section 2.05(c)(ii).
“Increase Notice”
has the meaning specified in Section 2.05(c)(ii).
“Increase Notice
Date” has the meaning specified in Section 2.05(c)(ii).
“Indemnified Party”
has the meaning specified in Section 8.04(b).
“Initial Lenders”
has the meaning specified in the preamble.
“Interest Period”
means, for each Term SOFR Advance or Eurocurrency Rate Advance constituting part of the same Revolving Credit Borrowing, the period commencing
on the date of such Term SOFR Advance or Eurocurrency Rate Advance or the date of the Conversion of any Base Rate Advance into such Term
SOFR Advance and ending on the last day of the period selected by the Company pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected
by the Company pursuant to the provisions below. The duration of each such Interest Period shall be one, three or six months, as the
Company may, upon notice received by the Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period, select; provided, however, that:
(a) the
Company may not select any Interest Period that ends after the latest Termination Date then in effect;
(b) Interest
Periods commencing on the same date for Term SOFR Advances or Eurocurrency Rate Advances constituting part of the same Revolving Credit
Borrowing shall be of the same duration;
(c) whenever
the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided, however, that, if such extension of any Interest Period
would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(d) whenever
the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day
in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
“Lead Arrangers”
means each of Citibank, N.A., JPMorgan Chase Bank, N.A. and BofA Securities, Inc. in its capacity as a joint lead arranger and a
joint bookrunner.
“Lenders”
means the Initial Lenders, the Swing Line Lenders and each Person that shall become a party hereto pursuant to Sections 2.05(c),
2.06(b) or 8.07.
“Letter Agreement”
means that certain side letter dated the Effective Date among the parties to this Agreement.
“Lien”
means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including,
without limitation, the lien or retained security title of a conditional vendor.
“Loan Documents”
means, collectively, this Agreement, the Notes, the Letter Agreement, each Designation Letter and each Termination Letter.
“Material Adverse
Change” means any material adverse change in the financial condition, operations or properties of the Company and its Subsidiaries
taken as a whole.
“Material Adverse
Effect” means a material adverse effect on (a) the financial condition, operations or properties of the Company and its
Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or any Note or (c) the
ability of the Company to perform its obligations under this Agreement or any Note.
“Material Subsidiary”
means each Subsidiary of the Company that is a “significant subsidiary” as defined in Regulation S-X of the Securities Act
of 1933.
“New Lender”
means, for purposes of Section 2.05(c), an Eligible Assignee (which may be a Lender) selected by the Company with (in the case of
a New Lender that is not already a Lender) prior consultation with the Agent.
“Non-Consenting
Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all
affected Lenders in accordance with the terms of Section 8.01 and (ii) has been approved by the Required Lenders.
“Non-Defaulting
Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Note”
means a Revolving Credit Note.
“Notice”
has the meaning specified in Section 8.02(c).
“Notice of Borrowing”
has the meaning specified in Section 2.02(a).
“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Other Taxes”
has the meaning specified in Section 2.14(e).
“Overnight Rate”
means, for each Swing Line Advance, the rate per annum determined as of the date such Swing Line Advance is made equal to the Euro Short
Term Rate (“€STR”) as administered by the European Central Bank (or any other person which takes over the administration
of that rate, the “€STR Administrator”) displayed on the European Central Bank’s website, currently at
http://www.ecb.europa.eu, or any successor source for €STR identified as such by the €STR Administrator from time to time on
the Business Day preceding the date of determination; provided, that if the Overnight Rate is less than zero, such rate shall
be deemed to be zero for purposes of this Agreement. If by 5:00 pm (local time for the €STR Administrator) on the second Business
Day immediately following any day (the “€STR Determination Date”) in respect of such €STR Determination
Date has not been published on the €STR Administrator’s Website and a Benchmark Replacement Date with respect to €STR
has not occurred, then €STR for such €STR Determination Date will be €STR as published in respect of the first preceding
Business Day for which €STR was published on the €STR Administrator’s Website; provided that €STR determined
pursuant to this sentence shall be utilized for purposes of calculation of €STR for no more than three consecutive days.
“Participant Register”
has the meaning specified in Section 8.07(e).
“Payment Recipient”
has the meaning specified in Section 7.11(a).
“Person”
means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.
“Platform”
has the meaning specified in Section 8.02(b).
“Principal Property”
means any single manufacturing or processing plant, office building, warehouse or portion thereof owned or leased by the Company or a
Restricted Subsidiary other than a plant, office building, warehouse or portion thereof which, in the reasonable opinion of the Company’s
Board of Directors, is not of material importance to the business conducted by the Company and its Restricted Subsidiaries as
an entirety.
“Proposed Aggregate
Commitment Increase” has the meaning specified in Section 2.05(c)(i).
“Proposed Increased
Commitment” has the meaning specified in Section 2.05(c)(iv).
“Proposed New Commitment”
has the meaning specified in Section 2.05(c)(iii).
“Protesting Lender”
has the meaning specified in Section 2.17(a).
“Register”
has the meaning specified in Section 8.07(d).
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Relevant Governmental
Body” has the meaning specified in Section 2.18.
“Removal Effective
Date” has the meaning specified in Section 7.07(b).
“Replacement Lender”
has the meaning specified in Section 2.06(b).
“Required Lenders”
means at any time (i) Lenders having more than 50% of the aggregate amount of the Revolving Credit Commitments, and (ii) if
the Revolving Credit Commitments of the Lenders have been terminated, Lenders owed more than 50% of the then aggregate unpaid principal
amount of the Borrowings (with the aggregate amount of each Lender’s risk participation and funded participation in Swing Line
Advances being deemed “owing” to such Lender for purposes of this definition). The Unused Revolving Credit Commitment of
any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Resignation Effective
Date” has the meaning specified in Section 7.07(a).
“Resolution Authority”
has the meaning specified in Section 8.15.
“Restricted Subsidiary”
means at any time any Subsidiary of the Company except a Subsidiary which is at the time an Unrestricted Subsidiary.
“Revolving Credit
Advance” means an advance by a Lender to a Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate Advance,
a Term SOFR Advance or Eurocurrency Rate Advance (each of which shall be a “Type” of Revolving Credit Advance).
“Revolving Credit
Borrowing” means a borrowing consisting of simultaneous Revolving Credit Advances of the same currency and the same Type made
by each of the Lenders pursuant to Section 2.01 and, with respect to Term SOFR Advances or Eurocurrency Rate Advances, having the
same Interest Period.
“Revolving Credit
Commitment” means, with respect to any Lender, such Lender’s obligations to make Revolving Credit Advances. Such Lender’s
Revolving Credit Commitment shall be the Dollar amount set forth opposite such Lender’s name on Schedule I to the Letter Agreement
and identified as its “Revolving Credit Commitment” or, if such Lender has entered into any Assignment and Assumption, the
amount set forth as the “Revolving Credit Commitment” for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(c), as such amount may be reduced pursuant to Section 2.05(a) or increased pursuant to Section 2.05(c).
“Revolving Credit
Note” means a promissory note of a Borrower payable to the order of any Lender, in substantially the form of Exhibit A
hereto, evidencing the aggregate indebtedness of such Borrower to such Lender resulting from the Revolving Credit Advances made by such
Lender.
“Sanctioned Country”
means a country, territory or region that is the subject of comprehensive territorial sanctions administered by OFAC.
“SDN List”
means the Specially Designated Nationals and Blocked Persons list maintained by OFAC.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SPV”
has the meaning specified in Section 8.07(a).
“Sub-Agent”
means Citibank Europe plc, UK Branch.
“Sub-Agent’s
Address” means the address or addresses of the Sub-Agent on Schedule I attached hereto.
“Subsidiary”
of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding Voting Stock of such corporation or limited liability company (irrespective of whether
at the time capital stock or membership interests of any other class or classes of such corporation or limited liability company shall
or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership
or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.
“Swing Line Advance”
means an advance made by any Swing Line Lender pursuant to Section 2.20(a).
“Swing Line Borrowing”
means a Borrowing consisting of simultaneous Swing Line Advances made by each of the Swing Line Lenders pursuant to Section 2.20.
“Swing Line Commitment”
means, with respect to each Swing Line Lender, its obligation to make Swing Line Advances in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule I to the Letter Agreement and identified
as its “Swing Line Commitment” or, if such Lender has entered into any Assignment and Assumption, the amount set forth as
the “Swing Line Commitment” for such Lender in the Register maintained by the Agent pursuant to Section 8.07(c), as
such amount may be reduced pursuant to Section 2.05(a).
“Swing Line Lenders”
means, collectively, Citibank, N.A., JPMorgan Chase Bank, N.A., Bank of America, N.A., each Person that shall become a Swing Line Lender
pursuant to Section 7.07 or Section 8.07 and, as to any Swing Line Lender, the term “Swing Line Lender” includes
any of its Affiliates designated as such by such Swing Line Lender.
“Swing Line Sublimit”
means an amount equal to the Euro Equivalent of $750,000,000.
“Syndication Agent”
means each of JPMorgan Chase Bank, N.A. and Bank of America, N.A., in its capacity as a syndication agent.
“T2” means
the real time gross settlement system operated by the Eurosystem, or any successor system.
“Term SOFR”
means,
(a) for
any calculation with respect to a Term SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period
on the day (such day, the “Periodic Term SOFR Determination Day”) that is two U.S. Government Securities Business
Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however,
that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable
tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference
Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator
on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by
the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three U.S. Government
Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for
any calculation with respect to a Base Rate Advance on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such
day, the “ABR Term SOFR Determination Day”) that is two U.S. Government Securities Business Days prior to such day,
as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time)
on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR
Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be
the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities
Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first
preceding U.S. Government Securities Business Day is not more than three U.S. Government Securities Business Days prior to such ABR SOFR
Determination Day.
“Term SOFR Administrator”
means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the
Agent in its reasonable discretion).
“Term SOFR Advance”
means a Revolving Credit Advance denominated in Dollars that bears interest as provided in Section 2.07(a)(ii).
“Term SOFR Reference
Rate” means the forward-looking term rate based on SOFR.
“Termination Date”
means the earlier of (a) May 24, 2029, subject to the extension thereof pursuant to Section 2.06(b) and (b) the
date of termination in whole of the Commitments pursuant to Section 2.05(a) or 6.01; provided, however, that,
in connection with any extension requested pursuant to Section 2.06(b), if there are any Declining Lenders that are not replaced
as provided in Section 2.06(b), the Termination Date of any such Declining Lenders shall be the Termination Date in effect immediately
prior to the applicable Extension Date for all purposes of this Agreement; provided, further in each case that if any such
date is not a Business Day, the relevant Termination Date of such Lender shall be the immediately preceding Business Day.
“Termination Letter”
has the meaning specified in Section 2.17(b).
“Total Committed
Increase” has the meaning specified in Section 2.05(c)(v).
“Type”
has the meaning specified in the definition of “Revolving Credit Advance”.
“UK Financial Institution”
has the meaning specified in Section 8.15.
“UK Resolution Authority”
has the meaning specified in Section 8.15.
“Unadjusted Benchmark
Replacement” has the meaning specified in Section 2.18.
“Undisclosed Administration”
means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law
in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment
not be disclosed.
“United States Person”
has the meaning specified in Section 7701 of the Internal Revenue Code.
“Unrestricted Subsidiary”
means any Subsidiary of the Company (not at the time designated a Restricted Subsidiary) (i) the major part of whose business consists
of finance, banking, credit, leasing, insurance, financial services, or other similar operations, or any continuation thereof, (ii) substantially
all the assets of which consist of the capital stock of one or more such Subsidiaries or (iii) designated as such by the Company’s
Board of Directors.
“Unused Revolving
Credit Commitment” means, with respect to each Lender at any time, (a) the amount of such Lender’s Revolving Credit
Commitment at such time minus (b) the sum of (i) the aggregate principal amount of all Revolving Credit Advances (based in
respect of any Advances denominated in Euros on the Equivalent in Dollars at such time) made by such Lender (in its capacity as a Lender)
and outstanding at such time, plus (ii) such Lender’s ratable portion of the aggregate principal amount of all Swing Line
Advances outstanding at such time (based in respect of any Swing Line Advances denominated in Euros on the Equivalent in Dollars at such
time); provided, further, that each Lender’s Revolving Credit Commitment shall be deemed used from time to time to
the extent of the Swing Line Advances made by it or its affiliate that is a Swing Line Lender.
“U.S. Government
Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities
Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities.
“Voting Stock”
means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even
if the right so to vote has been suspended by the happening of such a contingency.
“Write-Down and
Conversion Powers” has the meaning specified in Section 8.15.
Section 1.02 Computation
of Time Periods.
In this Agreement in the
computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”
and the words “to” and “until” each mean “to but excluding”.
Section 1.03 Accounting
Terms.
All accounting terms not
specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States consistent
with those applied in the preparation of the financial statements referred to in Section 4.01(e) (“GAAP”).
Section 1.04 Divisions.
For all purposes under the
Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s
laws), if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person,
then it shall be deemed to have been transferred from the original Person to the subsequent Person.
Section 1.05 Rates.
The Agent does not warrant
or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of,
submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR,
the EURIBO Rate, €STR or any other Benchmark, or any component definition thereof or rates referred to in the definition thereof,
or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or
characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), will be similar to, or
produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate,
Adjusted Term SOFR, Term SOFR, the EURIBO Rate, €STR, such Benchmark or any other Benchmark prior to its discontinuance or unavailability,
or (b) the effect, implementation or composition of any Conforming Changes. The Agent and its affiliates or other related entities
may engage in transactions that affect the calculation of Base Rate or a Benchmark, any alternative, successor or replacement rate (including
any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Agent may select
information sources or services in its reasonable discretion to ascertain Base Rate, any Benchmark, any component definition thereof
or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to
any Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental
or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any
error or calculation of any such rate (or component thereof) provided by any such information source or service.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The
Revolving Credit Advances.
Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Revolving Credit Advances in Dollars and/or Euros to the Company and any Borrowing
Subsidiary from time to time on any Business Day during the period from the Effective Date until the Termination Date in an aggregate
amount (based in respect of any Revolving Credit Advances to be denominated in Euros by reference to the Equivalent thereof in Dollars
determined on the date of delivery of the applicable Notice of Borrowing) not to exceed at any time outstanding such Lender’s Unused
Revolving Credit Commitment. Each Revolving Credit Borrowing shall be in an aggregate amount of the Borrowing Minimum or an integral
multiple of the Borrowing Multiple in excess thereof and shall consist of Revolving Credit Advances of the same Type and in the same
currency made on the same day by the Lenders ratably according to their respective Revolving Credit Commitments. Within the limits of
each Lender’s Revolving Credit Commitment, each Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.10
and reborrow under this Section 2.01.
Section 2.02 Making
the Revolving Credit Advances.
(a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City time) on the third
U.S. Government Securities Business Day prior to the date of the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Term SOFR Advances, (y) 4:00 P.M. (London time) on the third Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Eurocurrency Rate Advances or (z) 11:00 A.M. (New York City time)
on the date of the proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base Rate Advances,
by the Company (on its own behalf and on behalf of any Borrowing Subsidiary) to the Agent, which shall give to each Lender prompt notice
thereof by telecopier or email. Each such notice of a Revolving Credit Borrowing (a “Notice of Borrowing”) shall be
by e-mail, confirmed promptly in writing, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date
of such Revolving Credit Borrowing, (ii) Type of Advances constituting such Revolving Credit Borrowing, (iii) aggregate amount
of such Revolving Credit Borrowing, (iv) in the case of a Revolving Credit Borrowing consisting of Term SOFR Advances or Eurocurrency
Rate Advances, the currency and initial Interest Period for each such Revolving Credit Advance and (v) name of the relevant Borrower
(which shall be the Company or a Borrowing Subsidiary). Each Lender shall, before 1:00 P.M. (New York City time) on the date of
such Revolving Credit Borrowing, make available for the account of its Applicable Lending Office to the Agent at the applicable Agent’s
Account, in same day funds, such Lender’s ratable portion of such Revolving Credit Borrowing. After the Agent’s receipt of
such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such same day funds available
to the relevant Borrower at such Borrower’s account at the Agent’s address referred to in Section 8.02; provided,
however, that, if such Borrowing is denominated in Euro, the Agent shall first make a portion of such funds equal to the aggregate
principal amount of Swing Line Advances made to such Borrower by the Swing Line Lenders and by any other Lender and outstanding on the
date of such Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and as of such date, available to the Swing Line
Lenders and the other Lenders for repayment of such Swing Line Advances.
(b) Anything
in subsection (a) above to the contrary notwithstanding, (i) the Company may not select Term SOFR Advances or Eurocurrency
Rate Advances for any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit Borrowing is less than the Borrowing
Minimum or if the obligation of the Lenders to make Term SOFR Advances or Eurocurrency Rate Advances, as applicable, shall then be suspended
pursuant to Section 2.08 or 2.12 and (ii) the Term SOFR Advances and Eurocurrency Rate Advances may not be outstanding as part
of more than twelve separate Revolving Credit Borrowings.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the relevant Borrower. In the case of any Revolving Credit Borrowing that the
related Notice of Borrowing specifies is to be comprised of Term SOFR Advances or Eurocurrency Rate Advances, the Company shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a result of any failure by the applicable Borrower to fulfill
on or before the date specified in such Notice of Borrowing for such Revolving Credit Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund the Revolving Credit Advance to be made by such Lender as part of such Revolving Credit
Borrowing when such Revolving Credit Advance, as a result of such failure, is not made on such date.
(d) Unless
the Agent shall have received notice from a Lender prior to the time of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender’s ratable portion of such Revolving Credit Borrowing, the Agent may assume that such Lender
has made such portion available to the Agent on the date of such Revolving Credit Borrowing in accordance with subsection (a) of
this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such
Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the
case of a Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case of such
Lender, (A) the Federal Funds Rate in the case of Advances denominated in Dollars or (B) the cost of funds incurred by the
Agent in respect of such amount in the case of Advances denominated in Euros. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender’s Revolving Credit Advance as part of such Revolving Credit Borrowing
for purposes of this Agreement and shall be made available in same day funds to the relevant Borrower’s account at the Agent’s
address referred to in Section 8.02.
(e) The
failure of any Lender to make the Revolving Credit Advance to be made by it as part of any Revolving Credit Borrowing shall not relieve
any other Lender of its obligation, if any, hereunder to make its Revolving Credit Advance on the date of such Revolving Credit Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make the Revolving Credit Advance to be made by such other
Lender on the date of any Revolving Credit Borrowing.
Section 2.03 [Reserved].
Section 2.04 Fees.
(a) Commitment
Fee. The Company agrees to pay to the Agent for the account of each Lender a commitment fee on the amount of such Lender’s
Revolving Credit Commitment minus the aggregate principal amount of Revolving Credit Advances made by the Lender (in its capacity as
a Lender) and outstanding from time to time, from the Effective Date in the case of each Initial Lender and from the effective date specified
in the Assignment and Assumption pursuant to which it became a Lender in the case of each other Lender until the Termination Date applicable
to such Lender (on a daily basis) at a rate per annum equal to 0.045%, payable in arrears quarterly on the last day of each June, September,
December and March, commencing June 30, 2024, and, as to any Lender, on the Termination Date applicable to such Lender.
(b) Agent’s
Fees. The Company shall pay to the Agent for its own account such fees as may from time to time be agreed between the Company and
the Agent.
Section 2.05 Termination,
Reduction or Increase of Commitments.
(a) (i)
The Company shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole or reduce ratably
in part the Unused Revolving Credit Commitments of the Lenders; provided that (A) each partial reduction shall be in the
aggregate amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof and provided, further that the aggregate
amount of the Revolving Credit Commitments of the Lenders shall not be reduced to an amount that is less than the aggregate principal
amount of the Advances then outstanding and (B) if, after giving effect to any reduction of the Unused Revolving Credit Commitments,
the aggregate Swing Line Commitments exceeds the amount of the aggregate Revolving Credit Commitments at such time, the aggregate Swing
Line Commitments shall be automatically reduced by the amount of such excess. (ii) The Company shall have the right, upon at least
three Business Days’ notice to the Agent and each Swing Line Lender, to terminate in whole or permanently reduce in part the Swing
Line Commitments of the Swing Line Lenders ratably; provided that each partial reduction shall be in the aggregate amount of $25,000,000
or an integral multiple of $1,000,000 in excess thereof.
(b) If
any Lender (i) shall make a demand under Section 2.11 or 2.14 or (ii) is a Defaulting Lender or Non-Consenting Lender,
the Company shall have the right, upon at least three Business Days’ notice, to terminate in full the Commitment(s) of such
Lender or to demand that such Lender assign to one or more Persons all of its rights and obligations under this Agreement in accordance
with Section 8.07. If the Company shall elect to terminate in full the Commitment(s) of any Lender pursuant to this Section 2.05(b),
the Company shall pay to such Lender, on the effective date of such Lender’s Commitment termination, an amount equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this Agreement, whereupon such Lender shall cease to be a party hereto.
(c) (i)
From time to time, the Company may propose to increase the aggregate amount of the Revolving Credit Commitments by an aggregate amount
of $25,000,000 or an integral multiple of $1,000,000 in excess thereof (a “Proposed Aggregate Commitment Increase”)
in the manner set forth below, provided that:
(1) no
Default shall have occurred and be continuing either as of the applicable Increase Notice Date (as hereinafter defined) or as of the
related Increase Date (as hereinafter defined); and
(2) after
giving effect to any such increase, the aggregate amount of the Revolving Credit Commitments shall not exceed $5,750,000,000.
(ii) From
time to time the Company may request an increase in the aggregate amount of the Revolving Credit Commitments by delivering to the Agent
a notice (an “Increase Notice”; the date of delivery thereof to the Agent being the “Increase Notice Date”)
specifying (1) the Proposed Aggregate Commitment Increase, (2) the proposed date (the “Increase Date”) on
which the Revolving Credit Commitments would be so increased (which Increase Date may not be fewer than 30 days after the Increase Notice
Date) and (3) the New Lenders, if any, to whom the Company desires to offer the opportunity to commit to all or a portion of the
Proposed Aggregate Commitment Increase. The Agent shall in turn promptly notify each Lender of the Company’s request by sending
each Lender a copy of such notice.
(iii) Not
later than the date five days after the Increase Notice Date, the Agent shall notify each New Lender, if any, identified in the related
Increase Notice of the opportunity to commit to all or any portion of the Proposed Aggregate Commitment Increase. Each such New Lender
may irrevocably commit to all or a portion of the Proposed Aggregate Commitment Increase (such New Lender’s “Proposed
New Commitment”) by notifying the Agent (which shall give prompt notice thereof to the Company) before 11:00 A.M. (New
York City time) on the date that is 10 days after the Increase Notice Date; provided that:
(1) the
Proposed New Commitment of each New Lender shall be in an amount not less than $25,000,000; and
(2) each
New Lender that submits a Proposed New Commitment shall enter into an agreement in form and substance satisfactory to the Company and
the Agent pursuant to which such New Lender shall undertake a Revolving Credit Commitment (and, if any such New Lender is already a Lender,
its Revolving Credit Commitment shall be in addition to such Lender’s Revolving Credit Commitment hereunder on such date), and
shall pay to the Agent a processing and recordation fee of $3,500, unless waived by the Agent in its sole discretion.
(iv) If,
and only if, the aggregate Proposed New Commitments of all of the New Lenders shall be less than the Proposed Aggregate Commitment Increase,
then (unless the Company otherwise requests) the Agent shall, on or prior to the date that is 15 days after the Increase Notice Date,
notify each Lender of the opportunity to so commit to all or any portion of the Proposed Aggregate Commitment Increase not committed
to by New Lenders pursuant to Section 2.05(c)(iii). Each Lender may, if, in its sole discretion, it elects to do so, irrevocably
offer to commit to all or a portion of such remainder (such Lender’s “Proposed Increased Commitment”) by notifying
the Agent (which shall give prompt notice thereof to the Company) not later than 11:00 A.M. (New York City time) on the date
five days before the Increase Date.
(v) (1) If
the aggregate amount of Proposed New Commitments and Proposed Increased Commitments (such aggregate amount, the “Total Committed
Increase”) equals or exceeds $25,000,000, then, subject to the conditions set forth in Section 2.05(c)(i):
(A) effective
on and as of the Increase Date, the aggregate amount of the Revolving Credit Commitments shall be increased by the Total Committed Increase
(provided that the aggregate amount of the Revolving Credit Commitments shall in no event be increased pursuant to this Section 2.05(c) to
more than $5,750,000,000) and shall be allocated among the New Lenders and the Lenders as provided in Section 2.05(c)(vi); and
(B) on
the Increase Date, if any Revolving Credit Advances are then outstanding, the Company shall borrow Revolving Credit Advances from all
or certain of the Lenders and/or (subject to compliance by the Company with Section 8.04(c)) prepay Revolving Credit Advances of
all or certain of the Lenders such that, after giving effect thereto, the Revolving Credit Advances (including, without limitation, the
Types and Interest Periods thereof) shall be held by the Lenders (including for such purposes New Lenders) ratably in accordance with
their respective Revolving Credit Commitments. If any Swing Line Advances are outstanding on any Increase Date, participations in such
Swing Line Advances shall be deemed to be reallocated on such date according to the respective Revolving Credit Commitments of the Lenders
after giving effect to such Total Committed Increase.
(2) If
the Total Committed Increase is less than $25,000,000, then the aggregate amount of the Revolving Credit Commitments shall not be changed
pursuant to this Section 2.05(c).
(vi) The
Total Committed Increase shall be allocated among New Lenders having Proposed New Commitments and Lenders having Proposed Increased Commitments,
if any, as follows:
(1) If
the Total Committed Increase shall be at least $25,000,000 and less than or equal to the Proposed Aggregate Commitment Increase, then
(x) the initial Commitment of each New Lender shall be such New Lender’s Proposed New Commitment and (y) the Revolving
Credit Commitment of each Lender shall be increased by such Lender’s Proposed Increased Commitment, if any.
(2) If
the Total Committed Increase shall be greater than the Proposed Aggregate Commitment Increase, then the Total Committed Increase shall
be allocated:
(x) first
to New Lenders (to the extent of their respective Proposed New Commitments) in such a manner as the Company shall agree; and
(y) then
to Lenders on a pro rata basis based on the ratio of each Lender’s Proposed Increased Commitment (if any) to the aggregate
amount of the Proposed Increased Commitments of all of the Lenders.
(vii) No
increase in the Revolving Credit Commitments contemplated hereby shall become effective until the Agent shall have received (x) Revolving
Credit Notes payable to each New Lender and each other Lender whose Revolving Credit Commitment is being increased to the extent such
New Lender or Lender has requested such a Revolving Credit Note pursuant to Section 2.13(e), and (y) evidence satisfactory
to the Agent (including an update of the opinion of counsel provided pursuant to Section 3.01(f)(iv)) that such increases in the
Revolving Credit Commitments, and borrowings thereunder, have been duly authorized by all necessary corporate and other action on the
part of the Company.
Section 2.06 Repayment
of Advances; Extension of Termination Date.
(a) (i)
Each Borrower shall repay to the Agent for the ratable account of each Lender on the Termination Date applicable to such Lender the aggregate
principal amount of the Revolving Credit Advances made to such Borrower by such Lender then outstanding, and all accrued but unpaid interest
in connection therewith and all fees and all other amounts due hereunder. (ii) Each Borrower shall repay to the Agent, for the
ratable account of each Swing Line Lender and each Lender that has funded its participation in a Swing Line Advance, the aggregate outstanding
principal amount of such Swing Line Advance made to such Borrower and owing to such Lender on the earlier of (i) the Termination
Date applicable to such Lender and (ii) seven days after such Swing Line Advance is made.
(b) The
Company may, by written notice to the Agent (which shall promptly notify the Lenders) not more than 60 nor less than 30 days prior to
each anniversary of the date hereof (such anniversary date following such notice under this Section 2.06(b), the “Extension
Date”), request that the Termination Date then in effect (the “Existing Termination Date”) be extended for
a period of one year; provided that the Company shall not exercise such option more than twice. If a Lender agrees, acting in
its sole discretion, to so extend its Commitment(s) under this Section 2.06(b) (each such Lender, an “Extending
Lender”), it will notify the Agent, in writing, of its decision to do so not more than 30 nor less than 20 days before the
Extension Date; it being understood that failure to give such notice shall be deemed a decision not to extend. If any Lender fails to
accept the Company’s request for extension of the Termination Date under this Section 2.06(b) (each such Lender, a “Declining
Lender”), the Company shall have the right to require any Declining Lender to assign in full its rights and obligations under
this Agreement to an Eligible Assignee (including any Extending Lender) designated by the Company that agrees to accept all of such rights
and obligations and agrees to such extension (a “Replacement Lender”), provided that (i) such assignment
is otherwise in compliance with Section 8.07, (ii) such Declining Lender receives payment in full of the principal amount of
all Advances owing to such Declining Lender, together with accrued interest thereon to the date of such payment of principal and all
other amounts payable to such Declining Lender under this Agreement and (iii) any such assignment shall be effective on the Extension
Date. If no Default shall have occurred and be continuing immediately prior to the Extension Date, (i) the Termination Date for
such Extending Lenders and Replacement Lenders shall be extended by one year, and the Agent shall promptly notify the Company of such
extension (except that, if the date on which the Termination Date is to be extended is not a Business Day, such Termination Date as so
extended shall be the next preceding Business Day), (ii) the Termination Date for any Declining Lenders not replaced shall be the
Existing Termination Date and (iii) all Advances and other amounts payable hereunder to such Declining Lenders shall become due
and payable on the Existing Termination Date, the total Revolving Credit Commitments of the Lenders hereunder shall be reduced by the
Revolving Credit Commitment of such Declining Lenders so terminated on the Existing Termination Date and, if any Declining Lender is
a Swing Line Lender, the total Swing Line Commitments of the Swing Line Lenders hereunder shall be reduced by the Swing Line Commitment
of such Declining Lenders so terminated on the Existing Termination Date.
Section 2.07 Interest
on Advances.
(a) Revolving
Credit Advances. Each Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Advance made to such Borrower
owing to each Lender from the date of such Revolving Credit Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base
Rate Advances. During such periods as such Revolving Credit Advance is a Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time, payable in arrears quarterly on the last Business Day of each March, June, September and
December during such periods and on the date such Base Rate Advance shall be Converted or paid in full.
(ii) Term
SOFR Advances. During such periods as such Revolving Credit Advance is a Term SOFR Advance, a rate per annum equal at all times during
each Interest Period for such Revolving Credit Advance to the sum of (x) Adjusted Term SOFR for such Interest Period for such Revolving
Credit Advance plus (y) 0.625%, payable in arrears on the last day of such Interest Period and, if such Interest Period has
a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such
Interest Period and on the date such Term SOFR Advance shall be Converted or paid in full.
(iii) Eurocurrency
Rate Advances. During such periods as such Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per annum equal at all
times during each Interest Period for such Revolving Credit Advance to the sum of (x) the EURIBO Rate for such Interest Period for
such Revolving Credit Advance plus (y) 0.625%, payable in arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Swing
Line Advances. Each Borrower shall pay interest on the unpaid principal amount of each Swing Line Advance made to such Borrower from
the date of such Swing Line Advance until such principal amount shall be paid in full at a rate per annum equal at all times to the sum
of (x) the Overnight Rate in effect from time to time plus (y) 0.625%, payable in arrears on the date such Swing Line
Advance shall be, or shall be required to be, paid in full. For the period from the date of such Swing Line Borrowing and ending on the
date the Lenders fund their participations in such Swing Line Advance in accordance with Section 2.20(d), such interest shall be
for the sole account of the Swing Line Lenders.
(c) Default
Rate. Upon the occurrence and during the continuance of an Event of Default pursuant to Section 6.01(a), the principal of and,
to the extent permitted by law, interest on the Advances and any other amounts owing hereunder or under the other Loan Documents (including
without limitation fees and expenses) shall bear interest, payable on demand, at the Default Rate.
Section 2.08 Interest
Rate Determination.
(a) The
Agent shall give prompt notice to the Company and the Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07.
(b) If,
due to a major disruption in the interbank funding market with respect to any Term SOFR Advances or Eurocurrency Rate Advances, the Required
Lenders notify the Agent that the Adjusted Term SOFR or the EURIBO Rate, as applicable, for any Interest Period for such Advances will
not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Term SOFR Advances or Eurocurrency
Rate Advances for such Interest Period, the Agent shall forthwith so notify the Borrowers and the Lenders, whereupon (i) each Term
SOFR Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, (ii) each
Eurocurrency Rate Advance shall be exchanged into an Equivalent amount of Dollars and Converted into a Base Rate Advance and (iii) the
obligation of the Lenders to make, or to Convert Revolving Credit Advances into, Term SOFR Advances or Eurocurrency Rate Advances shall
be suspended until the Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist.
(c) If
the Company shall fail to select the duration of any Interest Period for any Term SOFR Advances or Eurocurrency Rate Advances in accordance
with the provisions contained in the definition of “Interest Period” in Section 1.01, the Agent will forthwith so notify
the Company and the Lenders and the Company will be deemed to have selected an Interest Period of one month.
(d) On
the date on which the aggregate unpaid principal amount of Term SOFR Advances or Eurocurrency Rate Advances constituting any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than the Borrowing Minimum, such Advances shall automatically (i) if
such Advances are Term SOFR Advances, Convert into Base Rate Advances and (ii) if such Advances are Eurocurrency Rate Advances,
be exchanged for an Equivalent amount of Dollars and Converted into Base Rate Advances.
(e) If
an Event of Default has occurred and is continuing and the Agent, at the request of the Required Lenders, so notifies the Company, then,
so long as an Event of Default is continuing, (i) each Term SOFR Advance and each Eurocurrency Rate Advance shall automatically
(A) if such Advance is a Term SOFR Advance, Convert into a Base Rate Advance and (B) if such Advance is a Eurocurrency Rate
Advance, be exchanged for an Equivalent amount of Dollars and Converted into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Term SOFR Advances or Eurocurrency Rate Advances shall be suspended.
(f) If
(x) Term SOFR cannot be determined in accordance with the definition thereof, (y) the EURIBO Rate does not appear Bloomberg,
Thompson Reuters or on another nationally recognized service selected by the Agent or the Sub-Agent, or (z) the Overnight Rate cannot
be determined in accordance with the definition thereof,
(i) the
Agent shall forthwith notify the Company and the Lenders that the interest rate cannot be determined for the applicable Advances,
(ii) each
such affected Advance will automatically, on the last day of the then existing Interest Period therefor (A) if such Advance is a
Term SOFR Advance, Convert into a Base Rate Advance and (B) if such Advance is a Eurocurrency Rate Advance, be prepaid by the applicable
Borrower or be automatically exchanged for an Equivalent amount of Dollars and be Converted into a Base Rate Advance (or if such Advance
is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the
obligation of the Lenders to make, or Convert Revolving Credit Advances into, Term SOFR Advances, Eurocurrency Rate Advances or Swing
Line Advances, as applicable, shall be suspended until the Agent shall notify the Company and the Lenders that the circumstances causing
such suspension no longer exist.
Section 2.09 Optional
Conversion or Continuation of Revolving Credit Advances.
The Company may on any Business
Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third U.S. Government Securities Business
Day prior to the date of the proposed Conversion or continuation, and subject to the provisions of Sections 2.08, 2.12 and 2.18, Convert
all or any part of the Revolving Credit Advances denominated in Dollars of one Type constituting the same Borrowing into Revolving Credit
Advances denominated in Dollars of another Type or continue all or any part of the Advance of one Type constituting the same Borrowing
or Advances of the same Type and in the same currency; provided, however, that any Conversion of Term SOFR Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for such Term SOFR Advances, any Conversion of Base Rate
Advances into Term SOFR Advances shall be in an amount not less than the Borrowing Minimum and no Conversion of any Revolving Credit
Advances shall result in more separate Revolving Credit Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion
or continuation shall, within the restrictions specified above, specify (i) the date of such Conversion or continuation, (ii) the
Dollar denominated Revolving Credit Advances to be Converted or continued, and (iii) if such Conversion is into Term SOFR Advances,
the duration of the initial Interest Period for each such Advance. Each notice of Conversion or continuation shall be irrevocable and
binding on the Company.
Section 2.10 Prepayments
of Revolving Credit Advances.
(a) Optional.
The Company may, (x) upon at least three U.S. Government Securities Business Days’ notice, in the case of Term SOFR Advances
and three Business Days’ notice, in the case of Eurocurrency Rate Advances, to the Agent and (y) one Business Day’s
notice in the case of any Revolving Credit Borrowing comprised of Base Rate Advances to (i) the Agent or (ii) the Sub-Agent
in the case of any Swing Line Advances, in each case stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Company shall, prepay the outstanding principal amount of the Revolving Credit Advances constituting part
of the same Revolving Credit Borrowing or such Swing Line Advances comprising the same Swing Line Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of the Borrowing Minimum or a Borrowing Multiple in excess
thereof in the case of Revolving Credit Advances and in an aggregate principal amount of €10,000,000 in the case of Swing Line Advances
and (y) in the event of any such prepayment of a Term SOFR Advance or a Eurocurrency Rate Advance, the Company shall be obligated
to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
(b) Mandatory.
(i) If, on any date, the Agent notifies the Company in accordance with clause (iii) below that, as of the most recent interest
payment date, the sum of (A) the aggregate principal amount of all Advances denominated in Dollars then outstanding plus (B) the
Equivalent in Dollars (determined on the third Business Day prior to such interest payment date) of the aggregate principal amount of
all Advances denominated in Euros then outstanding exceeds 105% of the aggregate Revolving Credit Commitments on such date, the Borrowers
shall, as soon as practicable and in any event within five Business Days after receipt of such notice, prepay the outstanding principal
amount of any Advances in an aggregate amount sufficient to reduce such sum to an amount not to exceed 100% of the aggregate Revolving
Credit Commitments on such date (subject to the proviso to this sentence set forth below), together with any interest accrued to the
date of such prepayment on the aggregate principal amount of Advances prepaid; provided that if the aggregate principal amount
of Base Rate Advances outstanding at the time of such required prepayment is less than the amount of such required prepayment, the portion
of such required prepayment in excess of the aggregate principal amount of Base Rate Advances then outstanding shall be deferred until
the last day of the next maturing Interest Period of the outstanding Term SOFR Advances or Eurocurrency Rate Advances, in an aggregate
amount equal to the excess of such required prepayment. The Agent shall give prompt notice of any prepayment required under this Section 2.10(b) to
the Company in accordance with clause (iii) below and the Lenders.
(ii) Each
prepayment made pursuant to this Section 2.10(b) shall be made together with any interest accrued to the date of such prepayment
on the principal amounts prepaid and, in the case of any prepayment of a Term SOFR Advance or a Eurocurrency Rate Advance on a date other
than the last day of an Interest Period, any additional amounts which the applicable Borrower shall be obligated to reimburse to the
Lenders in respect thereof pursuant to Section 8.04(c).
(iii) The
Agent shall calculate on the date of each Notice of Borrowing and on each interest payment date the sum of (A) the aggregate principal
amount of all Advances denominated in Dollars plus (B) the Equivalent in Dollars (determined on the third Business Day prior to
the date such calculation is required under this clause (iii)) of the aggregate principal amount of all Eurocurrency Rate Advances and
shall give prompt notice (and in any event no later than thirty days) of any prepayment required in connection with an interest payment
date under this Section 2.10(b) to the Company and the Lenders.
Section 2.11 Increased
Costs.
(a) If,
due to either (i) the introduction of or any change in any law or regulation or in the interpretation or administration of any law
or regulation by any governmental authority charged with the interpretation or administration thereof or (ii) the compliance with
any guideline or request from any central bank or other governmental authority that would be complied with generally by similarly situated
banks acting reasonably (whether or not having the force of law and for the avoidance of doubt, including any changes resulting from
requests, rules, guidelines or directives concerning capital adequacy or liquidity issued after the date hereof in connection with the
Dodd-Frank Wall Street Reform and Consumer Protection Act or promulgated after the date hereof by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,
in each case pursuant to Basel III), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Term SOFR Advances or Eurocurrency Rate Advances (except any reserve requirement contemplated by Section 2.11(b) other
than as set forth below) by an amount deemed by such Lender to be material, then the Company shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient
to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Company and
the Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If,
due to either (i) the introduction of or any change in or interpretation of any law or regulation or (ii) compliance with any
guideline or request from any central bank or other governmental or regulatory authority which becomes effective after the date hereof
(for the avoidance of doubt, including any changes resulting from requests, rules, guidelines or directives concerning capital adequacy
or liquidity issued after the date hereof in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act or promulgated
after the date hereof by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, there shall be any increase in
the amount of capital or liquidity required or expected to be maintained by any Lender or any corporation controlling such Lender and
that the amount of such capital or liquidity is increased by or based upon the existence of such Lender’s Advances or commitment
to lend and other commitments of this type by an amount deemed by such Lender to be material, then, upon demand by such Lender (with
a copy of such demand to the Agent), the Company shall pay to the Agent for the account of such Lender, from time to time as specified
by such Lender, additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital or liquidity to be allocable to the existence of such Lender’s
Advances or commitment to lend hereunder. A certificate as to such amounts submitted to the Company and the Agent by such Lender shall
be conclusive and binding for all purposes as to the calculations therein, absent manifest error. Such certificate shall be in reasonable
detail and shall certify that the claim for additional amounts referred to therein is generally consistent with such Lender’s treatment
of similarly situated customers of such Lender whose transactions with such Lender are similarly affected by the change in circumstances
giving rise to such payment, but such Lender shall not be required to disclose any confidential or proprietary information therein.
Section 2.12 Illegality.
Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent (and provide to the Company an opinion of counsel to the effect) that
the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for such Lender or its Eurocurrency Lending Office to perform its obligations hereunder
to make Term SOFR Advances or Eurocurrency Rate Advances or to fund or maintain Term SOFR Advances or Eurocurrency Rate Advances hereunder,
(a) each Term SOFR Advance or each Eurocurrency Rate Advance, as applicable, made by such Lender will automatically, upon such demand,
(i) if such Advance is a Term SOFR Advance, be Converted into a Base Rate Advance and (ii) if such Advance is a Eurocurrency
Rate Advance, be exchanged into an Equivalent amount of Dollars and be Converted into a Base Rate Advance and (b) the obligation
of the Lenders to make Term SOFR Advances or Eurocurrency Rate Advances, as applicable, or to Convert Advances into Term SOFR Advances
shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer
exist.
Section 2.13 Payments
and Computations; Evidence of Advances.
(a) The
Borrowers shall make each payment hereunder and under the Notes, except with respect to principal or, interest on, and other amounts
relating to, Advances denominated in Euros, not later than 11:00 A.M. (New York City time) on the day when due in Dollars to the
Agent at the applicable Agent’s Account in same day funds without deduction, off-set or counterclaim except as provided in Section 2.14.
The Borrowers shall make each payment hereunder and under the Notes with respect to principal of, interest on, and other amounts relating
to, Advances denominated in Euros, not later than 11:00 A.M. (New York City time) on the day when due in Euros to the Agent
at the applicable Agent’s Account in same day funds without deduction, off-set or counterclaim except as provided in Section 2.14.
The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal, interest, commitment fees
ratably (other than amounts payable pursuant to Section 2.02(c), 2.05(b), 2.06(b), 2.11, 2.14 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.
Upon its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Assumption, the Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption
shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) All
computations of interest based on the Base Rate (determined pursuant to clause (a) of the definition thereof) and of commitment
fees shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based
on Adjusted Term SOFR, the EURIBO Rate, the Overnight Rate or the Federal Funds Rate shall be made by the Agent or the Sub-Agent, as
the case may be, on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or fees are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever
any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest
or fees, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal
of Term SOFR Advances or Eurocurrency Rate Advances to be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless
the Agent shall have received notice from the Company prior to the date on which any payment is due to the Lenders hereunder that a Borrower
will not make such payment in full, the Agent may assume that such Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent such Borrower shall not have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at (i) the Federal Funds Rate
in the case of Advances denominated in Dollars or (ii) the cost of funds incurred by the Agent in respect of such amount in the
case of Advances denominated in Euros.
(e) The
Advances made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Agent in the
ordinary course of business. The accounts or records maintained by the Agent and each Lender shall be conclusive absent manifest error
of the amount of the Advances made by the Lenders to a Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of a Borrower hereunder to pay any amount owing with respect
to the Advances. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records
of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Agent, each Borrower shall execute and deliver to such Lender (through the Agent) a Revolving
Credit Note which shall evidence such Lender's Advances in addition to such accounts or records. Each Lender may attach schedules to
its Note or Notes and endorse thereon the date, Type (if applicable), amount and maturity of its Advances and payments with respect thereto.
(f) To
the extent that the Agent receives funds for application to the amounts owing by any Borrower under or in respect of this Agreement or
any Note in currencies other than the currency or currencies required to enable the Agent to distribute funds to the Lenders in accordance
with the terms of this Section 2.13, the Agent shall be entitled to convert or exchange such funds into Dollars or into Euros or
from Dollars to Euros or from Euros to Dollars, as the case may be, to the extent necessary to enable the Agent to distribute such funds
in accordance with the terms of this Section 2.13; provided that each Borrower and each of the Lenders hereby agree that
the Agent shall not be liable or responsible for any loss, cost or expense suffered by such Borrower or such Lender as a result of any
conversion or exchange of currencies affected pursuant to this Section 2.13(f) or as a result of the failure of the Agent to
effect any such conversion or exchange; and provided further that such Borrower agrees to indemnify the Agent and
each Lender, and hold the Agent and each Lender harmless, for any and all losses, costs and expenses incurred by the Agent or any Lender
for any conversion or exchange of currencies (or the failure to convert or exchange any currencies) in accordance with this Section 2.13(f).
(g) In
connection with the use or administration of any Benchmark, the Agent will have the right to make Conforming Changes from time to time
and, notwithstanding anything to the contrary herein, any amendments implementing such Conforming Changes will become effective without
any further action or consent of any other party to this Agreement. The Agent will promptly notify the Company and the Lenders of the
effectiveness of any Conforming Changes in connection with the use or administration of any Benchmark.
Section 2.14 Taxes.
(a) Each
Lender is exempt from any withholding tax imposed under the laws of the United States in respect of any fees, interest or other payments
to which it is entitled pursuant to this Agreement or the Notes (the “Income”) because (i) the Lender is a United
States Person; (ii) the Income is effectively connected with the conduct of a trade or business within the United States within
the meaning of Section 871 of the Internal Revenue Code; or (iii) the Income is eligible for an exemption by reason of a tax
treaty. The Agent is exempt from any withholding tax imposed under the laws of the United States in respect of the Income because the
Agent is a United States Person.
(b) Each
Lender that is a United States Person shall, on or prior to the date it becomes a party hereto and from time to time thereafter if requested
in writing by the Company or the Agent, provide the Agent and the relevant Borrower with a properly completed and duly executed Internal
Revenue Service Form W-9, or any successor or other form provided by the Internal Revenue Service. Each Lender that is not a United
States Person (each, a “Foreign Lender”) shall, on or prior to the date it becomes a party hereto and from time to
time thereafter if requested in writing by the Company or the Agent, provide the Agent and the relevant Borrower with a properly completed
and duly executed Internal Revenue Service Form W-8BEN, W-8BEN-E, W-8ECI or W-8IMY (accompanied by Internal Revenue Service Forms
W-8BEN, W-8BEN-E, W-8ECI, W-9 or other certification documents from each beneficial owner, as appropriate), as appropriate, or any successor
or other form prescribed by the Internal Revenue Service, certifying that such Foreign Lender is exempt from or entitled to a reduced
rate of United States withholding tax on any Income that is the subject of such forms. If the relevant Borrower determines, based on
the form provided by a Foreign Lender (or the failure to provide such a form) at the time such Foreign Lender first becomes a party to
this Agreement that a United States withholding tax rate in excess of zero applies to payments made by such Borrower to the Foreign Lender
under this Agreement, such Borrower shall be permitted to deduct amounts from payments to such Foreign Lender to the extent required
to pay withholding tax at such rate, and such amounts shall be considered excluded from Taxes as defined in Section 2.14(c); provided,
however, that, if on the date of the Assignment and Assumption pursuant to which a Foreign Lender becomes a Foreign Lender,
pursuant to the Assignment and Assumption provisions of Article VIII, the Foreign Lender assignor was entitled to payments under
Section 2.14(c) in respect of United States withholding tax paid at such date, then, to such extent, the term Taxes shall include
(in addition to Taxes that are imposed pursuant to a Change in Law (defined below) after the date of Assignment and Assumption) United
States withholding tax, if any, applicable with respect to the Foreign Lender assignee on such date. For the avoidance of doubt, the
obligations of any Borrower under Section 2.14 of this Agreement shall not be increased as the result of any assignment pursuant
to Article VIII of this Agreement with respect to United States withholding tax; provided, however, that the foregoing
shall not limit the obligation of any Borrower in respect of Taxes imposed as the result of any Change in Law after the date of the relevant
Assignment and Assumption.
(c) Except
as set forth in Section 2.14(b) or as required by applicable law, any and all payments by any Borrower hereunder or under the
Notes shall be made free and clear of and without deduction for any withholding taxes imposed on a Lender (such withholding taxes being
hereinafter referred to as “Taxes”, which, for the avoidance of doubt, shall exclude any Excluded Taxes). If any Borrower
is required to deduct any Taxes from or in respect of any Income, then: (i) the sum payable to such Lender shall be increased as
may be necessary so that after making all required deductions for such Taxes (including deductions applicable to additional sums payable
under this Section 2.14) such Lender receives an amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. Within 30 days after the date of any payment of Taxes by the Company
pursuant to clause (iii) of the preceding sentence, the Company shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. Notwithstanding the foregoing, each Borrower shall be entitled
to pay any Taxes in any lawful manner so as to reduce any deductions and such Lender shall to the extent it is reasonably able provide
any documentation or file any forms as may be required by the Internal Revenue Service or any other governmental agency. In addition,
if any Lender or the Agent (in lieu of such Lender), as the case may be, is required to pay directly any Taxes because a Borrower cannot
or does not legally or timely do so, the Company shall indemnify such Lender or Agent for payment of such Taxes, without duplication
of, or increase in, the amount in respect of Taxes otherwise due to the Lender.
(d) Notwithstanding
the foregoing, the sum payable to a Lender shall not be increased, and no indemnification payments shall be made, pursuant to Section 2.14(c) with
respect to any United States federal withholding taxes any Borrower is required to deduct from or in respect of any Income, except to
the extent that (i) such Borrower is required to deduct such taxes as a result of the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any United States law or any tax treaty (or in the application or official interpretation of any
law or any tax treaty) that occurs after the date a Lender first becomes a party to this Agreement (a “Change in Law”)
or (ii) such taxes are “Taxes” solely as a result of the application of the proviso to the penultimate sentence of Section 2.14(b).
(e) In
addition, the Company agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (excluding any income or franchise taxes, business taxes or capital taxes of any nature) that arise from the execution
or delivery, or otherwise with respect to, this Agreement or the Notes (hereinafter referred to as “Other Taxes”).
If a Lender is required to pay directly Other Taxes because a Borrower cannot or does not legally or timely do so, the Company shall
indemnify such Lender for such payment of Other Taxes. Notwithstanding anything to the contrary in this Section 2.14, each Lender
shall upon the written request of and at the expense of the Company use reasonable efforts to change the jurisdiction of its Applicable
Lending Office if the making of such change would avoid the need for, or reduce the amount of, any such Other Taxes that may thereafter
accrue and would not, in the reasonable judgment of such Lender, cause imposition on such Lender of any material legal or regulatory
burdens.
(f) To
the extent any Lender is entitled to any exemption or reduction of foreign withholding taxes, each Lender shall cooperate with each Borrower
by providing to the extent reasonably within its means any forms requested by such Borrower substantiating such reduction or exemption
from such foreign withholding taxes required by any governmental agency.
(g) For
any period with respect to which a Lender has failed to comply with the requirements of subsection (b) or (f) relating to certain
forms intended to reduce withholding taxes (other than if such failure is due to a Change in Law that makes compliance with subsection
(b) or (f) unduly burdensome in the reasonable judgment of such Lender), such Lender shall not be entitled to indemnification
under this Section 2.14.
(h) Upon
a Change in Law or the imposition of any Taxes, a Lender shall, upon the written request of and at the expense of the Company, use reasonable
efforts to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce
the amount of, any such Taxes that may thereafter accrue and would not, in the reasonable judgment of such Lender, cause the imposition
on such Lender of any material legal or regulatory burdens.
(i) Any
request by any Lender for payment of any amount under this Section 2.14 shall be accompanied by a certification that such Lender’s
claim for said amount is generally consistent with such Lender’s treatment of similarly situated customers of such Lender whose
transactions with such Lender are similarly affected by the change in circumstances giving rise to such payment, but such Lender shall
not be required to disclose any confidential or proprietary information therein.
(j) If
any Lender shall become aware, including by means of a request by the Company, that it is entitled to receive a refund (including, for
all purposes of this subsection (j), any refund in the form of a credit from the jurisdiction imposing such Taxes or Other Taxes) in
respect of Taxes or Other Taxes as to which it has been indemnified by a Borrower pursuant to this Section 2.14, or with respect
to which a Borrower has paid additional amounts pursuant to this Section 2.14, it shall promptly notify such Borrower of the availability
of such refund and shall, within 30 days after receipt of a request by the Company (whether as a result of notification that it has made
to a Borrower or otherwise) to seek such refund, make a claim for such refund at such Borrower’s expense. No Lender shall seek
a refund without such approval by a Borrower. If a Lender receives a refund in respect of any Taxes or Other Taxes as to which it has
been indemnified by a Borrower pursuant to this Section 2.14, or with respect to which a Borrower has paid additional amounts pursuant
to this Section 2.14, it shall promptly notify such Borrower of such refund and shall within 30 days from the date of receipt of
such refund pay over the amount of such refund to such Borrower to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 2.14 with respect to the Taxes or Other Taxes giving rise to such refund plus any interest paid
or credited with respect to such refund, net of all out-of-pocket expenses and net of any loss or gain realized in the conversion of
such funds from one to another currency incurred by the Agent of such Lender; provided that the applicable Borrower, upon the
request of the Agent or such Lender, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges
imposed with respect to such Taxes or Other Taxes by the relevant governmental agency) to the Agent or such Lender in the event the Agent
or such Lender is required to repay such refund to such governmental agency. This subsection shall not be construed to require the Agent
or any Lender to make available its tax returns (or any other information relating to its taxes that it reasonably deems confidential)
to any Borrower or any other Person.
(k) If
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Internal Revenue Code, as applicable), such Lender shall deliver to the Company and the Agent at the time or times prescribed by
law and at such time or times reasonably requested by the Company or the Agent such documentation prescribed by applicable law (including
as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested
by the Company or the Agent as may be necessary for the Borrowers and the Agent to comply with their obligations under FATCA and to determine
that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this subsection (k), “FATCA” shall include any amendments made to FATCA after
the date of this Agreement.
(l) Notwithstanding
anything to the contrary in this Agreement, the provisions of this Section 2.14 shall be the only provisions requiring the Company
or any of its Subsidiaries to bear the cost of (or arising from) any taxes otherwise borne by any Lender. For purposes of the preceding
sentence, “taxes” includes any tax, governmental fee or other like assessment or charge of any kind whatsoever (including,
but not limited to, withholding on amounts paid to or by the Company or its Subsidiaries), together with any interest, penalty, addition
to tax or additional amount imposed with respect thereto.
Section 2.15 Sharing
of Payments, Etc.
If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Revolving
Credit Advances owing to it (other than pursuant to Section 2.05(b), 2.06(b), 2.11, 2.14, 8.04(c) or 8.07), or the participations
in Swing Line Advances held by it, in excess of its ratable share thereof, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances and subparticipations in the Swing Line Advances owing to them as shall be necessary
to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded
and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal
to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation or subparticipation
from another Lender pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation or subparticipation as fully as if such Lender were the direct creditor
of such Borrower in the amount of such participation or subparticipation.
Section 2.16 Use
of Proceeds.
The proceeds of the Advances
shall be available (and the Company agrees that such proceeds shall be used) for general corporate purposes of the Company and its Subsidiaries,
including but not limited to working capital, capital investments and acquisitions. No Borrower shall knowingly use the proceeds of any
Advance to fund any activities or business (a) of or with any individual or entity that is included on the SDN List or (b) in,
or with the government of, any Sanctioned Country, except in the case of (a) or (b) to the extent licensed by OFAC or otherwise
permissible under U.S. law.
Section 2.17 Borrowings
by Borrowing Subsidiaries.
(a) The
Company may, at any time or from time to time upon not less than 10 Business Days’ notice in the case of any Subsidiary so designated
after the Effective Date, designate one or more Subsidiaries as Borrowers hereunder by furnishing to the Agent a letter (a “Designation
Letter”) in duplicate, in substantially the form of Exhibit D, duly completed and executed by the Company and such Subsidiary.
The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity
of the Subsidiary. Following the giving of any notice pursuant to this Section 2.17(a), if the designation of such Subsidiary obligates
the Agent or any Lender to comply with “know your customer” or similar identification procedures (including without limitation
the Beneficial Ownership Regulation) in circumstances where the necessary information is not already available to it, the Company shall,
promptly upon the request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the
Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary
“know your customer” or other similar checks under all applicable laws and regulations. Upon any such designation of a Subsidiary,
such Subsidiary shall be a Borrowing Subsidiary and a Borrower entitled to borrow Revolving Credit Advances on and subject to the terms
and conditions of this Agreement.
If the Company shall designate as a
Borrowing Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may,
with notice to the Agent and the Company, fulfill its Commitment(s) by causing an Affiliate or a branch of such Lender to act as
the Lender in respect of such Borrowing Subsidiary.
As soon as practicable after receiving
notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Borrowing Subsidiary, and in any event
no later than five Business Days after the delivery of such notice, if such Borrowing Subsidiary is organized under the laws of a jurisdiction
other than of the United States or a political subdivision thereof, any Lender that may not legally lend to, establish credit for the
account of and/or do any business whatsoever with such Borrowing Subsidiary directly or through an Affiliate or a branch of such Lender
as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent
in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Borrowing Subsidiary
shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting
Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding
principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee Lender
(to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Borrowing Subsidiary (in the
case of all other amounts), or (B) cancel its request to designate such Subsidiary as a “Borrowing Subsidiary” hereunder.
(b) If
all principal of and interest on all Advances made to any Borrowing Subsidiary have been paid in full, the Company may terminate the
status of such Borrowing Subsidiary as a Borrower hereunder by furnishing to the Agent a letter (a “Termination Letter”)
in substantially the form of Exhibit E, duly completed and executed by the Company. Any Termination Letter furnished hereunder shall
be effective upon receipt by the Agent, which shall promptly notify the Lenders, whereupon the Lenders shall, upon payment in full of
all amounts owing by such Borrower hereunder, promptly deliver to the Company (through the Agent) the Notes, if any, of such former Borrower.
Notwithstanding the foregoing, the delivery of a Termination Letter with respect to any Borrower shall not terminate (i) any obligation
of such Borrower that remains unpaid at the time of such delivery (including without limitation any obligation arising thereafter in
respect of such Borrower under Section 2.11 or 2.14) or (ii) the obligations of the Company under Article IX with respect
to any such unpaid obligations; provided that if the status of such Borrowing Subsidiary has been terminated as aforesaid because the
Company has sold or transferred its interest in such Subsidiary, and the Company so certifies to the Agent at the time of the delivery
of such Termination Letter, and subject to payment of said principal and interest, (A) such Subsidiary shall automatically, upon
the effectiveness of the delivery of such Termination Letter and certification, cease to have any obligation under this Agreement or
the Notes and (B) the Company shall automatically be deemed to have unconditionally assumed, as primary obligor, and hereby agrees
to pay and perform, all of such obligations.
Section 2.18 Benchmark
Replacement Setting.
(a) Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its
related Benchmark Replacement Date have occurred prior to any setting of any Benchmark, then (x) if a Benchmark Replacement is determined
in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such
Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark
setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement
or any other Loan Document and the definition of “Adjusted Term SOFR” shall be deemed modified to delete clause (b) for
any calculation of Term SOFR and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition
of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for
all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time)
on the fifth Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or
further action or consent of any other party to, this Agreement or any other Loan Document so long as the Agent has not received, by
such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement
is Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(b) Benchmark
Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Agent will have the right to
make Conforming Changes from time to time and, notwithstanding anything to the contrary herein, any amendments implementing such Conforming
Changes will become effective without any further action or consent of any other party to this Agreement.
(c) Notices;
Standards for Decisions and Determinations. The Agent will promptly notify the Company and the Lenders of (i) any Benchmark
Replacement Date and the related Benchmark Replacement, (ii) the effectiveness of any Conforming Changes, (iii) the removal
or reinstatement of any tenor of a Benchmark pursuant to clause (d) below and (iv) the commencement or conclusion of any Benchmark
Unavailability Period. For the avoidance of doubt, any notice required to be delivered by the Agent as set forth in this Section 2.18
may be provided, at the option of the Agent (in its sole discretion), in one or more notices and may be delivered together with, or as
part of any amendment which implements any Benchmark Replacement or Conforming Changes. Any determination, decision or election that
may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.18, including any determination
with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision
to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its
or their sole discretion and without consent from any other party to this Agreement, except, in each case, as expressly required pursuant
to this Section 2.18.
(d) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein, at any time (including in connection with the implementation
of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate or the EURIBO
Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such
rate from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator
of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will
be no longer representative, then the Agent may modify the definition of “Interest Period” for any Benchmark settings at
or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause
(i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement)
or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including
a Benchmark Replacement), then the Agent may modify the definition of “Interest Period” for all Benchmark settings at or
after such time to reinstate such previously removed tenor.
(e) Benchmark
Unavailability Period. Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect
to a given Benchmark, (i) the Borrowers may revoke any pending request for a Term SOFR Borrowing of, conversion to or continuation
of Term SOFR Advances, or a Borrowing of, or continuation of, Eurocurrency Rate Advances, in each case, to be made, converted or continued
during any Benchmark Unavailability Period denominated in the applicable Available Currency and, failing that, (A) in the case of
any request for any affected Term SOFR Borrowing, if applicable, the applicable Borrower will be deemed to have converted any such request
into a request for a Base Rate Borrowing or conversion to Base Rate Advances in the amount specified therein and (B) in the case
of any request for any affected Eurocurrency Rate Borrowing or Swing Line Borrowing, then such request shall be ineffective and (ii)(A) any
outstanding affected Term SOFR Advances, if applicable, will be deemed to have been converted into Base Rate Advances at the end of the
applicable Interest Period and (B) any outstanding affected Eurocurrency Rate Advances, at the applicable Borrower’s election,
shall either (I) be converted into Base Rate Advances denominated in Dollars (in an amount equal to the Dollar Equivalent thereof)
at the end of the applicable Interest Period or (II) be prepaid in full at the end of the applicable Interest Period; provided that,
with respect to any Eurocurrency Rate Advance, if no election is made by the applicable Borrower by the earlier of (x) the date
that is three Business Days after receipt by such Borrower of such notice and (y) the last day of the current Interest Period for
the applicable Eurocurrency Rate Advance, such Borrower shall be deemed to have elected clause (I) above. Upon any such prepayment
or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional
amounts required pursuant to Section 8.04(c). During a Benchmark Unavailability Period with respect to any Benchmark or at any time
that a tenor for any then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark
that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any
determination of the Base Rate.
(f) Certain
Defined Terms. As used in this Section 2.18:
“Available Currency”
means Dollars or Euros.
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, as applicable, for an Available Currency, (x) if
such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length
of an interest period pursuant to this Agreement, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark
that is then-removed from the definition of “Interest Period” pursuant to clause (d) of this Section 2.18.
“Benchmark”
means, initially, the Relevant Rate; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date
have occurred with respect to such Relevant Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (a) of this
Section 2.18.
“Benchmark Replacement”
means, with respect to any Benchmark Transition Event for any then-current Benchmark the first alternative set forth in the order below
that can be determined by the Agent for the applicable Benchmark Replacement Date; provided, that in the case of Advances denominated
in Euros, the “Benchmark Replacement” shall mean the alternative set forth in clause (b) below:
(a) with
respect to Term SOFR Advances, Daily Simple SOFR plus 0.10%; or
(b) the
sum of: (1) the alternate benchmark rate that has been selected by the Agent and the Company as the replacement for the then-current
Benchmark giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining
such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark
rate as a replacement for such Benchmark for syndicated credit facilities denominated in the applicable Available Currency at such time
and (2) the related Benchmark Replacement Adjustment;
provided that, if
such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for
the purposes of this Agreement.
“Benchmark Replacement
Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement,
the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or
zero) that has been selected by the Agent and the Company giving due consideration to (a) any selection or recommendation of a spread
adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable
Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for
determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark
with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Available Currency
at such time.
“Benchmark Replacement
Date” means the earliest to occur of the following events with respect to the then-current Benchmark for any Available Currency:
(1) in
the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date
of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark
(or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such
Benchmark (or such component thereof); or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or
the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined
by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark
(or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark
Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon
the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark
(or the published component used in the calculation thereof).
“Benchmark Transition
Event” means, with respect to the then-current Benchmark for any Available Currency, the occurrence of one or more of the following
events with respect to such Benchmark:
(1) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is
no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Relevant Governmental Body, an insolvency official with jurisdiction over the administrator
for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component)
or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component),
which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of
such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication,
there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
or
(3) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no
longer representative.
For the avoidance of doubt, a “Benchmark
Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information
set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in
the calculation thereof).
“Benchmark Unavailability
Period” means, with respect to any then-current Benchmark for any Available Currency, the period (if any) (x) beginning
at the time that a Benchmark Replacement Date with respect to such Benchmark has occurred if, at such time, no Benchmark Replacement
has replaced the then-current Benchmark for all purposes hereunder in accordance with this Section 2.18 and (y) ending at the
time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder in accordance with this Section 2.18.
“Floor”
means a rate of interest equal to 0.00%.
“Relevant Governmental
Body” means (i) with respect to a Benchmark or Benchmark Replacement in respect of any Benchmark applicable to Dollars,
the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened
by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto, and (ii) with
respect to a Benchmark Replacement for any Benchmark applicable to a currency other than Dollars, (a) the central bank for the applicable
currency or any central bank or other supervisor which is responsible for supervising (1) such Benchmark or Benchmark Replacement
for such currency or (2) the administrator of such Benchmark or Benchmark Replacement for such currency or (b) any working
group or committee officially endorsed or convened by: (1) the central bank for such currency, (2) any central bank or other
supervisor that is responsible for supervising either (x) such Benchmark or Benchmark Replacement for such currency or (y) the
administrator of such Benchmark or Benchmark Replacement for such currency, or (3) the Financial Stability Board, or a committee
officially endorsed or convened by the Financial Stability Board, or any successor thereto.
“Relevant Rate”
means, with respect to (a) any Term SOFR Advance, the Term SOFR Reference Rate, (b) any Eurocurrency Rate Advance, the EURIBO
Rate and (c) any Swing Line Advance, €STR.
“Unadjusted Benchmark
Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
Section 2.19 Defaulting
Lenders.
(a) Defaulting
Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender,
then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definition of Required Lenders.
(ii) Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Agent hereunder for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) or received by the Agent from
a Defaulting Lender pursuant to Section 8.05 shall be applied at such time or times as may be determined by the Agent as follows:
first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, as the Company may
request (so long as no Default exists), to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its
portion thereof as required by this Agreement, as determined by the Agent; third, if so determined by the Agent and the Company,
to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations
with respect to Advances under this Agreement; fourth, so long as no Default exists, to the payment of any amounts owing to the
Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Lender as a
result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender
or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances
were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely
to pay the Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances owed to,
such Defaulting Lender until such time as all Revolving Credit Advances are held by the Lenders pro rata in accordance with the Revolving
Credit Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender pursuant to this Section 2.19 shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.
(iii) Commitment
Fees. No Defaulting Lender shall be entitled to receive any commitment fee for any period during which that Lender is a Defaulting
Lender (and the Company shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting
Lender).
(iv) All
or any part of such Defaulting Lender’s participation in Swing Line Advances shall be reallocated among the Non-Defaulting Lenders
in accordance with their respective ratable portion thereof (calculated on the Revolving Credit Commitments but without regard to such
Defaulting Lender’s Revolving Credit Commitment) but only to the extent that such reallocation does not cause such Non-Defaulting
Lender’s aggregate principal amount of outstanding Revolving Credit Advances plus such Non-Defaulting Lender’s participation
in Swing Line Advances to exceed such Non-Defaulting Lender’s Revolving Credit Commitment. Subject to Section 8.15, no reallocation
hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender
having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased
exposure following such reallocation.
(b) If
the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice
to any right or remedy available to it hereunder or under applicable law, prepay all outstanding Swing Line Advances.
(c) Defaulting
Lender Cure. If the Company, the Agent and each Swing Line Lender agree in writing that a Lender is no longer a Defaulting Lender,
the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Credit Advances
of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Revolving Credit Advances to
be held pro rata by the Lenders in accordance with the Revolving Credit Commitments, whereupon such Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf
of the Company while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Section 2.20. The
Swing Line Advances
(a) Subject
to the terms and conditions set forth herein, each Swing Line Lender severally agrees to make a portion of the credit otherwise available
from time to time to the Borrowers by making swing line advances (“Swing Line Advances”) on any Business Day during
the period from the Effective Date until the Termination Date applicable to such Swing Line Lender to the Borrower requesting such extension
of credit under subsection (b) of this Section 2.20. Such Swing Line Advances shall be denominated in Euros and, in the aggregate,
shall not exceed (x) at any time outstanding (i) for each Swing Line Lender (1) such Swing Line Lender’s Swing Line
Commitment then in effect and (2) when aggregated to such Swing Line Lender’s outstanding Revolving Credit Advances and such
Swing Line Lender’s unfunded participations in Swing Line Advances made by any other Swing Line Lender, such Swing Line Lender’s
Revolving Credit Commitment then in effect and (ii) for all Swing Line Advances, the amount of the Swing Line Sublimit or (y) at
the time of such Swing Line Advance, the aggregate Unused Revolving Credit Commitments of the Lenders. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.20, prepay Swing Line Advances under
Section 2.10 or repay Swing Line Advances under Section 2.06(a), and reborrow under this Section 2.20. Immediately upon
the making of a Swing Line Advance, each Lender shall be deemed to have purchased, and hereby irrevocably and unconditionally agrees
to purchase, from the applicable Swing Line Lender a risk participation in such Swing Line Advance in an amount equal to such Lender’s
ratable share of such Swing Line Advance.
(b) Each
Swing Line Advance shall be made on notice to the Sub-Agent, given not later than 9:30 A.M. (London time) on the Business Day on
which the proposed Swing Line Advance is to be made. Such notice requirement shall be satisfied by the delivery of a Notice of Borrowing
for such Swing Line Advance by e-mail and such notice shall specify therein (A) the requested date of such Swing Line Advance (which
shall be a Business Day), (B) the requested aggregate amount of Swing Line Advances being requested by such Borrower and (C) the
requested account to which the proceeds of the requested Swing Line Advance are to be transferred. The Sub-Agent will promptly advise
the Swing Line Lenders of any such notice received from a Borrower. Each Swing Line Lender shall make its ratable portion of the requested
Swing Line Advance (such ratable portion to be calculated based upon such Swing Line Lender’s Swing Line Commitment to the total
Swing Line Commitments of all of the Swing Line Lenders) available for the account of its Applicable Lending Office to the Sub-Agent
at the account designated by the Sub-Agent, in same day funds, before 1:00 P.M. (London time) on the date a Borrower has requested
such Swing Line Advance. After the Sub-Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth
in Article III, the Sub-Agent will make such funds available to such Borrower by transferring the amount thereof to the account
designated by such Borrower for such purpose on the date specified in such Notice of Borrowing.
(c) The
failure of any Swing Line Lender to make the Swing Line Advance to be made by it as part of any Swing Line Borrowing shall not relieve
any other Swing Line Lender of its obligation, if any, hereunder to make its Swing Line Advance on the date of such Swing Line Borrowing,
but no Swing Line Lender shall be responsible for the failure of any other Swing Line Lender to make the Swing Line Advance to be made
by such other Lender on the date of any Swing Line Borrowing.
(d) Upon
written demand by a Swing Line Lender, with a copy of such demand to the Agent, each other Lender will purchase from such Swing Line
Lender, and such Swing Line Lender shall sell and assign to each such other Lender, such other Lender’s ratable portion of such
outstanding Swing Line Advance, by making available for the account of its Applicable Lending Office to the Agent for the account of
such Swing Line Lender, by deposit to the Agent’s Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Swing Line Advance to be purchased by such Lender. Each Borrower hereby agrees to each such sale and assignment.
Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice from the Agent, to purchase its ratable
portion of an outstanding Swing Line Advance on the third Business Day after the date demand therefor. Each Lender acknowledges and agrees
that its obligation to acquire by assignment Swing Line Advances pursuant to this paragraph is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Upon any such
assignment by any Swing Line Lender to any other Lender of a portion of a Swing Line Advance, such Swing Line Lender represents and warrants
to such other Lender that such Swing Line Lender is the legal and beneficial owner of such interest being assigned by it, but makes no
other representation or warranty and assumes no responsibility with respect to such Swing Line Advance, this Agreement, the Notes or
the Borrowers. If and to the extent that any Lender shall not have so made the amount of such Swing Line Advance available to the Agent,
such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date such
Lender is required to have made such amount available to the Agent until the date such amount is paid to the Agent, at the higher of
the Overnight Rate and the cost of funds incurred by the Agent in respect of such amount, plus any administrative, processing or similar
fees customarily charged by the Agent in connection with the foregoing. If such Lender shall pay to the Agent such amount for the account
of such Swing Line Lender on any Business Day, such amount so paid in respect of principal shall constitute a Swing Line Advance made
by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Swing Line Advance made
by such Swing Line Lender shall be reduced by such amount on such Business Day.
(e) At
any time after any Lender has funded a risk participation in a Swing Line Advance, if any Swing Line Lender receives any payment on account
of such Swing Line Advance, such Swing Line Lender will promptly distribute to such Lender its ratable share thereof in the same funds
as those received by such Swing Line Lender.
(f) Unless
the Sub-Agent shall have received notice from a Swing Line Lender prior to the time of any Swing Line Borrowing that such Swing Line
Lender will not make available to the Sub-Agent such Swing Line Lender’s ratable share of such Swing Line Borrowing, the Sub-Agent
may assume that such Swing Line Lender has made such portion available to the Sub-Agent on the date of such Swing Line Borrowing in accordance
with subsection (a) of this Section 2.20 and the Sub-Agent may, in reliance upon such assumption, make available to the Borrower
requesting such Swing Line Borrowing on such date, a corresponding amount. If and to the extent that such Swing Line Lender shall not
have so made such ratable portion available to the Sub-Agent, such Swing Line Lender and such Borrower severally agree to repay to the
Sub-Agent forthwith on demand such corresponding amount, together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the Sub-Agent at (i) in the case of such Borrower, the interest
rate applicable at the time to Swing Line Advances and (ii) in the case of such Swing Line Lender, the Overnight Rate. If such Swing
Line Lender shall repay to the Sub-Agent such corresponding amount, such amount so repaid shall constitute such Swing Line Lender’s
Swing Line Advance as part of such Swing Line Borrowing for purposes of this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01 Conditions
Precedent to Effectiveness.
This Agreement shall become
effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been
satisfied:
(a) As
of the Effective Date, there shall have occurred no Material Adverse Change since December 30, 2023 that has not been publicly disclosed.
(b) As
of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company or any of its
Subsidiaries pending or, to the knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could
be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could
reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(c) As
of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated
hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall
remain in effect.
(d) As
of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the
Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On
the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The
representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No
event has occurred and is continuing that constitutes a Default.
(f) The
Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to
the Agent:
(i) To
the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes payable to the order
of each Lender.
(ii) Certified
copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing
other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without
limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) A
certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the
Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable
opinions of one or more counsel to the Company, in form and substance reasonably satisfactory to the Agent and the Lenders.
(v) An
executed copy of this Agreement from each party hereto.
(vi) If
reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested
in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT
Act, in each case at least five days prior to the Effective Date.
(vii) At
least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial
Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The
Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the
Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing
under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives
the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Section 3.02 Conditions
Precedent to Each Borrowing.
The obligation of each Lender
to make any Advance on the occasion of each Borrowing (other than a Swing Line Advance in which a participation is funded by a Lender
pursuant to Section 2.20(c)) shall be subject to the conditions precedent that the Effective Date shall have occurred and on the
date of such Borrowing:
(a) the
following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by any Borrower of
the proceeds of such Borrowing shall constitute a representation and warranty by the Company and such Borrower that on the date of such
Borrowing such statements are true):
(i) The
representations and warranties contained in Section 4.01 (except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii) thereof)) are correct on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as
of such date, and
(ii) No
event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes
a Default; and
(b) the
Agent shall have received the Notice of Borrowing and, in the case of the first Borrowing by a Borrowing Subsidiary, the Agent shall
have received such Revolving Credit Notes as have been requested pursuant to Section 2.13(e), corporate documents, resolutions and
legal opinions relating to such Borrowing Subsidiary as the Agent may reasonably require.
Section 3.03 Determinations
Under Section 3.01.
For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have consented to, approved or accepted
or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory
to the Lenders unless an officer of the Agent responsible for the transactions contemplated by this Agreement shall have received written
notice from such Lender prior to the proposed Effective Date, as notified by the Company to the Lenders, specifying its objection thereto.
The Agent shall promptly notify the Lenders and the Company of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations
and Warranties of the Company.
The Company represents and warrants
as follows:
(a) The
Company is a corporation duly organized and validly existing under the laws of the State of North Carolina.
(b) The
execution, delivery and performance by the Company of this Agreement and the Notes, if any, and the consummation of the transactions
contemplated hereby, are within the Company’s corporate powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) the Company’s articles of incorporation or by-laws or (ii) in any material respect, any law or
any material contractual restriction binding on or affecting the Company.
(c) No
authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other
third party is required, other than those that have been obtained prior to the date hereof and remain in effect, for the due execution,
delivery and performance by the Company of this Agreement or the Notes.
(d) This
Agreement has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by the Company. This Agreement
is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with their respective terms.
(e) The
Consolidated balance sheet of the Company and its Subsidiaries as at December 30, 2023, and the related Consolidated statements
of income, comprehensive income, cash flows and equity of the Company and its Subsidiaries for the fiscal year then ended, accompanied
by an opinion of KPMG LLP, independent registered public accounting firm, present fairly, in all material respects, the Consolidated
financial condition of the Company and its Subsidiaries as at such date and the Consolidated results of the operations of the Company
and its Subsidiaries for the year ended on such date, all in accordance with United States generally accepted accounting principles consistently
applied. Since December 30, 2023, there has been no Material Adverse Change that has not been publicly disclosed prior to the date
hereof.
(f) There
is no pending or, to the Company’s knowledge, threatened, action, suit, investigation, litigation or proceeding affecting the Company
before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect that has
not been publicly disclosed prior to the date hereof or (ii) would reasonably be likely to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) The
Company is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase
or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of the
margin rules.
(h) Neither
the Company nor any of its Borrowing Subsidiaries is or is required to be registered as an “investment company” as such term
is defined in the Investment Company Act of 1940, as amended.
(i) No
Borrower is included on the SDN List or is located or organized in a Sanctioned Country.
(j) As of
the Effective Date, the information included in the Beneficial Ownership Certification in relation to the Company is true and correct
in all respects.
ARTICLE V
COVENANTS OF THE COMPANY
Section 5.01 Affirmative
Covenants.
So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company will:
(a) Compliance
with Laws, Etc. Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation, compliance with ERISA, Environmental Laws and Anti-Corruption
Laws, except where failure so to comply would not, and would not be reasonably likely to, have a Material Adverse Effect, and maintain
in effect and enforce policies and procedures reasonably designed to ensure compliance with such laws, rules regulations and orders
in all material respects.
(b) Payment
of Taxes, Etc. Except where failure to do so would not, and would not be reasonably likely to, have a Material Adverse Effect, pay
and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property. Notwithstanding the preceding sentence, neither the Company nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings
and as to which appropriate reserves are being maintained, unless and until any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors and such contested payment would be reasonably likely to have a Material Adverse Effect.
(c) Preservation
of Corporate Existence, Etc. (i) Preserve and maintain its corporate existence; provided, however, that the Company
may consummate any merger or consolidation permitted under Section 5.02(b); and (ii) preserve and maintain, and cause each
of its Material Subsidiaries to preserve and maintain, its rights (charter and statutory) and franchises; provided, however,
that neither the Company nor any of its Material Subsidiaries shall be required to preserve any right or franchise if the Board of Directors
(or other relevant governing body) of the Company or such Material Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or such Material Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to the Company, such Material Subsidiary or the Lenders.
(d) Reporting
Requirements. Furnish to the Agent:
(i) within
5 days after the Company is required to file the same with the Securities and Exchange Commission, the Consolidated balance sheet of
the Company and its Subsidiaries as of the end of each of the first three fiscal quarters of each fiscal year of the Company and Consolidated
statements of income and cash flows of the Company and its Subsidiaries for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer of the
Company as having been prepared in accordance with GAAP, it being agreed that filing of the Company’s Quarterly Report on Form 10-Q
on sec.gov will satisfy this requirement;
(ii) within
15 days after the Company is required to file the same with the Securities and Exchange Commission, a copy of the annual report for such
year for the Company and its Consolidated Subsidiaries, containing the Consolidated balance sheet of the Company and its Subsidiaries
as of the end of such fiscal year and Consolidated statements of income and cash flows of the Company and its Subsidiaries for such fiscal
year, in each case accompanied by an opinion by KPMG LLP or other independent public accountants, it being agreed that filing of the
Company’s Annual Report on Form 10-K on sec.gov will satisfy this requirement;
(iii) as
soon as possible and in any event within five days after the occurrence of each Default continuing on the date of such statement, a statement
of the chief financial officer of the Company setting forth details of such Default and the action that the Company has taken and proposes
to take with respect thereto;
(iv) promptly
after the sending or filing thereof, copies of all annual reports and proxy solicitations that the Company sends to any of its security
holders, and copies of all reports on Form 8-K that the Company or any Subsidiary files with the Securities and Exchange Commission;
and
(v) promptly
following any request therefor, information and documentation reasonably requested by the Agent or any Lender for purposes of compliance
with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws.
Reports and financial statements required
to be delivered by the Company pursuant to this subsection (d) shall be deemed to have been delivered on the date on which the Company
posts such reports, or reports containing such financial statements, on its website on the Internet at www.pepsico.com, at www.sec.gov
or at such other website identified by the Company in a notice to the Agent and that is accessible by the Lenders without charge.
Section 5.02 Negative
Covenants.
So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company will not:
(a) Secured
Debt. Create or suffer to exist, or permit any of its Restricted Subsidiaries to create or suffer to exist, any Debt secured by a
Lien on (i) any Principal Property, (ii) any shares of stock of a Restricted Subsidiary or (iii) any Debt of any Restricted
Subsidiary unless the Company or such Restricted Subsidiary secures or causes such Restricted Subsidiary to secure the Advances and all
other amounts payable under this Agreement and the Notes equally and ratably with such secured Debt, so long as such secured Debt shall
be so secured, unless after giving effect thereto the aggregate amount of all such Debt so secured does not exceed 15% of Consolidated
Net Tangible Assets at such time, provided that the foregoing restriction does not apply to Debt secured by:
(i) Liens
existing prior to the date hereof;
(ii) Liens
on property of, or on shares of stock of or Debt of, any corporation existing at the time such corporation becomes a Restricted Subsidiary;
(iii) Liens
in favor of the Company or any Restricted Subsidiary;
(iv) Liens
in favor of any governmental bodies to secure progress or advance payments;
(v) Liens
on property, shares of stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation)
or to secure the payment of all or any part of the purchase price thereof or construction thereon or to secure any Debt incurred prior
to, at the time of, or within 120 days after the later of the acquisition, the completion of construction, or the commencement of
full operation of such property or within 120 days after the acquisition of such shares or Debt for the purpose of financing all
or any part of the purchase price thereof or construction thereon; and
(vi) any
extension, renewal or refunding referred to in the foregoing clauses (i) to (v), inclusive.
Notwithstanding the foregoing, neither
the Company nor any Restricted Subsidiary shall be required to secure the Advances or any other amount payable under this Agreement with
more than 65% of the capital stock (as measured by vote or value) of, or any of the assets of, any “controlled foreign corporation,”
within the meaning of Section 957(a) of the Internal Revenue Code unless other Debt of the Company or any Restricted Subsidiary
is so secured.
(b) Mergers,
Etc. Consolidate or merge with or into any other corporation, or convey or transfer all or substantially all of its properties and
assets to, any Person unless:
(i) either
(A) the Company shall be the continuing corporation or (B) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer all or substantially all of the properties and assets of the Company
shall be a corporation that (1) has obtained a rating on its long-term indebtedness of A- or higher from S&P Global Ratings
(or any successor thereto) and A3 or higher from Moody’s Investors Service, Inc. (or any successor thereto), (2) is organized
and existing under the laws of the United States of America or any State thereof or the District of Columbia and (3) shall expressly
assume the Company’s obligations under this Agreement pursuant to documentation in form and substance reasonably satisfactory to
the Agent; and
(ii) immediately
prior to and after giving effect to such transaction, no Default shall have occurred and be continuing.
The requirement of Section 5.02(b)(i)(A) will
not apply to any merger or consolidation of the Company with or into an Affiliate solely for the purpose of reincorporating the Company
in a jurisdiction referred to in Section 5.02(b)(i)(B)(2). In any case in which the Company is merged or consolidated in accordance
with this Section 5.02(b), the Company shall provide to each Lender such information as such Lender may reasonably request to satisfy
“know your customer” and similar requirements.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events
of Default.
If any of the following events
(“Events of Default”) shall occur and be continuing:
(a) Any
Borrower shall fail to pay any principal of, or interest on, any Advance or to make any other payment under this Agreement or any Note,
in each case within five Business Days after the same becomes due and payable; or
(b) Any
representation or warranty made by the Company herein or by any Borrower in connection with this Agreement (including without limitation
by any Borrowing Subsidiary pursuant to any Designation Letter) shall prove to have been incorrect in any material respect when made;
or
(c) (i)
The Company shall fail to perform or observe any term, covenant or agreement contained in Sections 5.01(d) or 5.02, or (ii) the
Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed
or observed if such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Company by
the Agent or any Lender; or
(d) The
Company or any of its Material Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $500,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Company
or such Material Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required
to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The
Company or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted
by or against the Company or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 30
days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur;
or the Company or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth above in
this subsection (e); or
(f) Any
judgment or order for the payment of money in excess of $500,000,000 shall be rendered against the Company or any of its Material Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of
Default under this Section 6.01(f) if and for so long as (i) the amount of such judgment or order is covered by a valid
and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, which shall
be rated at least “A” by A.M. Best Company (or any successor thereto), has been notified of, and has not disputed the
claim made for payment of, the amount of such judgment or order; or
(g) Any
event, action or condition with respect to an employee benefit plan of the Company subject to Title IV of ERISA results in any penalty
or action pursuant to ERISA that has a Material Adverse Effect;
then, and in any such event, the Agent (i) shall
at the request, or may with the consent, of the Required Lenders, by notice to the Company, declare the obligation of each Lender to
make Advances to be terminated, whereupon the same shall forthwith terminate and (ii) shall at the request, or may with the consent,
of the Required Lenders, by notice to the Company declare the Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the
Company; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Company
under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, protest or any
notice of any kind, all of which are hereby expressly waived by the Company.
ARTICLE VII
THE AGENT
Section 7.01 Appointment
and Authority.
Each of the Lenders hereby
irrevocably appoints Citibank, N.A. to act on its behalf as the Agent hereunder and under the other Loan Documents and authorizes the
Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. Except as expressly provided herein, the provisions of this Article are
solely for the benefit of the Agent and the Lenders, and the Borrowers shall not have rights as a third-party beneficiary of any of such
provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other
similar term) with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect
only an administrative relationship between contracting parties. The Agent agrees to give to each Lender prompt notice of each notice
given to it by the Company pursuant to the terms of this Agreement.
Section 7.02 Rights
as a Lender.
The Person serving as the
Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though
it were not the Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless
the context otherwise requires, include the Person serving as the Agent hereunder in its individual capacity. Such Person and its Affiliates
may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally
engage in any kind of business with, the Company or any Subsidiary or other Affiliate thereof as if such Person were not the Agent hereunder
and without any duty to account therefor to the Lenders.
Section 7.03 Exculpatory
Provisions.
(a) The Agent shall
not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder
shall be administrative in nature. Without limiting the generality of the foregoing, the Agent:
(i) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided
that the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent
to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be
in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property
of a Defaulting Lender in violation of any debtor relief law; and
(iii) shall
not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person
serving as the Agent or any of its Affiliates in any capacity.
(b) The
Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith shall be necessary,
under the circumstances as provided in Sections 8.01 and 6.01), or (ii) in the absence of its own gross negligence, bad faith or
willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Agent shall be deemed
not to have knowledge of any Default unless and until notice describing such Default is given to the Agent in writing by the Company
or a Lender.
(c) The
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Agent.
Section 7.04 Reliance
by Agent.
The Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document
or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to
be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making of an Advance that by its terms must be fulfilled to the
satisfaction of a Lender, the Agent may presume that such condition is satisfactory to such Lender unless the Agent shall have received
notice to the contrary from such Lender prior to the making of such Advance. The Agent may consult with legal counsel (who may be counsel
for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken
by it in accordance with the advice of any such counsel, accountants or experts.
Section 7.05 Indemnification.
The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Company), ratably according to the respective outstanding principal amounts of the Revolving
Credit Advances then made by each of them (or if no Revolving Credit Advances are at the time outstanding, ratably according to the respective
amounts of their Revolving Credit Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Agent under this Agreement;
provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent’s gross negligence, willful misconduct or material
breach of this Agreement in bad faith. Without limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not reimbursed for
such expenses by the Company.
Section 7.06 Delegation
of Duties.
The Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Agent and approved by the Company. The Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to
any such sub-agent and to the Related Parties of the Agent and any such sub-agent. The Agent shall not be responsible for the negligence
or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable
judgment that the Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Sub-Agent has been
designated under this Agreement to carry out only those duties as are specified herein. The Sub-Agent shall be subject to each of the
obligations in this Agreement to be performed by the Sub-Agent, and each of the Borrowers and the Lenders agrees that the Sub-Agent shall
be entitled to exercise each of the rights and shall be entitled to each of the benefits of the Agent under this Agreement as such rights
and benefits relate to the performance of its obligations hereunder.
Section 7.07 Resignation
of Agent.
(a) The Agent may at any
time give notice of its resignation to the Lenders and the Company. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right to appoint a successor approved by the Company, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation (or such earlier day
as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may (but shall
not be obligated to), on behalf of the Lenders, appoint a successor Agent meeting the qualifications set forth above. Whether or not
a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) If
the Person serving as Agent is a Defaulting Lender pursuant to clause (e) of the definition thereof, the Required Lenders may, to
the extent permitted by applicable law, by notice in writing to the Company and such Person remove such Person as Agent and appoint a
successor approved by the Company. If no such successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”),
then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With effect from
the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations
provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time, if any, as the
Required Lenders appoint a successor Agent as provided for above. Upon the acceptance of a successor’s appointment as Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed
Agent, and the retiring or removed Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Company and such successor. After the retiring or removed Agent’s resignation or removal hereunder and under
the other Loan Documents, the provisions of this Article (and, as to the Agent, Section 8.04) shall continue in effect for
the benefit of such retiring or removed Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring or removed Agent was acting as Agent.
(d) Any
resignation pursuant to this Section by a Person acting as Agent shall, unless such Person shall notify the Borrowers and the Lenders
otherwise, also act to relieve such Person and its Affiliates of any obligation to advance Swing Line Advances where such advance is
to occur on or after the effective date of such resignation. Upon the acceptance of a successor’s appointment as Agent hereunder,
(i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swing
Line Lender, (ii) the retiring Swing Line Lender shall be discharged from all of its duties and obligations hereunder or under the
other Loan Documents, (iii) the successor Swing Line Lender shall enter into an Assignment and Assumption and acquire from the retiring
Swing Line Lender each outstanding Swing Line Advance of such retiring Swing Line Lender for a purchase price equal to par plus accrued
interest.
Section 7.08 Non-Reliance
on Agent and Other Lenders.
Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Section 7.09 Syndication
Agent and Lead Arrangers.
Without prejudice to the
obligations of the Agent and the Sub-Agent hereunder, the Syndication Agent and Lead Arrangers, in their capacities as such, have no
duties, obligations or responsibilities under this Agreement.
Section 7.10 Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent
and each Lead Arranger, and not, for the avoidance of doubt, to or for the benefit of any Borrower, that at least one of the following
is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments
or this Agreement,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Advances, the Commitments and this Agreement,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Advances, the Commitments and this Agreement, (C) the entrance into, participation in, administration
of and performance of the Advances, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of
Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of
PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the
Advances, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or
(2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately
preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto,
to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party
hereto, for the benefit of, the Agent and each Lead Arranger, and not, for the avoidance of doubt, to or for the benefit of any Borrower,
that none of the Agent or any Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender
involved in such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments and
this Agreement (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document
or any documents related hereto or thereto).
As used in this Section:
“Benefit Plan”
means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan”
as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes
of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets
of any such “employee benefit plan” or “plan”.
“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time
to time.
Section 7.11 Erroneous
Payments.
(a) If
the Agent notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other recipient, a “Payment
Recipient”) that the Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately
succeeding clause (b)) that any funds received by such Payment Recipient from the Agent or any of its Affiliates were erroneously transmitted
to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment
Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution
or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment
(or a portion thereof), such Erroneous Payment shall at all times remain the property of the Agent and shall be segregated by the Payment
Recipient and held in trust for the benefit of the Agent, and such Lender shall (or, with respect to any Payment Recipient who received
such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter, return
to the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in
the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or
portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Agent in same day funds at the greater
of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation
from time to time in effect. A notice of the Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest
error.
(b) Without
limiting the immediately preceding clause (a), each Lender, or any Person who has received funds on behalf of a Lender, hereby further
agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest,
fees, distribution or otherwise) from the Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different
date from, that specified in a notice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates) with respect to
such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment
sent by the Agent (or any of its Affiliates), or (z) that such Lender, or such other recipient, otherwise becomes aware was transmitted,
or received, in error or by mistake (in whole or in part) in each case:
(i) (A) in
the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation
from the Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with
respect to such payment, prepayment or repayment; and
(ii) such
Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within
one Business Day of its knowledge of such error) notify the Agent of its receipt of such payment, prepayment or repayment, the details
thereof (in reasonable detail) and that it is so notifying the Agent pursuant to this Section 7.11(b).
(c) Each
Lender hereby authorizes the Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document,
or otherwise payable or distributable by the Agent to such Lender from any source, against any amount due to the Agent under immediately
preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent for any reason, after demand therefor by the Agent
in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or
from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount,
an “Erroneous Payment Return Deficiency”), upon the Agent’s notice to such Lender at any time, (i) such
Lender shall be deemed to have assigned its Advances (but not its Commitments) in an amount equal to the Erroneous Payment Return Deficiency
(or such lesser amount as the Agent may specify) (such assignment of such Advances (but not Commitments), the “Erroneous Payment
Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent in such
instance), and is hereby (together with the Company) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable,
an agreement incorporating an Assignment and Assumption by reference pursuant to an approved electronic platform as to which the Agent
and such parties are participants) to the Agent, as the assignee Lender, with respect to such Erroneous Payment Deficiency Assignment,
and such Lender shall deliver any Notes evidencing such Advances to the Borrowers or the Agent, (ii) the Agent as the assignee Lender
shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Agent as the assignee
Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease
to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations
under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender
and (iv) the Agent may reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency
Assignment. The Agent may sell any Advances acquired pursuant to an Erroneous Payment Deficiency Assignment in accordance with Section 8.07
hereof (pursuant to which the prior written consent of the Company is required for any such sale (which consent shall not be unreasonably
withheld or delayed)), and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable
Lender shall be reduced by the net proceeds of the sale of such Advance (or portion thereof), and the Agent shall retain all other rights,
remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance
of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available
in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Agent has sold
an Advance (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent
may be equitably subrogated, the Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under
the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
(e) The
parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any obligations owed by any
Borrower, except, in each case, to the extent such Erroneous Payment is, or any portion of such Erroneous Payment is, and solely with
respect to the amount of such Erroneous Payment that is, comprised of funds received by the Agent from any Borrower for the purpose of
making a payment, prepayment, repayment, discharge or satisfaction in respect of the obligations under any Loan Document. For the avoidance
of doubt, clause (d) above and this clause (e) shall not be interpreted to increase (or accelerate the due date for), or have
the effect of increasing (or accelerating the due date for), the obligations of any Borrower relative to the amount (and/or timing for
payment) of the obligations of any Borrower that would have been payable had the Erroneous Payment not been made by the Agent.
(f) To
the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives,
and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim
by the Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge
for value” or any similar doctrine
(g) Each
party’s obligations, agreements and waivers under this Section 7.11 shall survive the resignation or replacement of the Agent,
any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction
or discharge of all obligations of any Borrower (or any portion thereof) under any Loan Document.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Amendments,
Etc.
No amendment or waiver of
any provision of this Agreement or the Revolving Credit Notes, nor consent to any departure by any Borrower therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Company and the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and signed by all the Lenders affected thereby, do any of the following: (a) waive
any of the conditions specified in Section 3.01, (b) increase or extend the Commitment(s) of a Lender or subject a Lender
to any additional obligations, (c) reduce the principal of, or rate of interest on, the Revolving Credit Advances or any fees or
other amounts payable hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder, (e) change the percentage of the Revolving Credit Commitments or of the aggregate
unpaid principal amount of the Revolving Credit Notes, or the number of Lenders, that shall be required for the Lenders or any of them
to take any action hereunder, (f) release the guarantee as set forth in Section 9.01, (g) modify Section 2.15 or
any other provision of this Agreement that relates to the pro rata treatment of the Lenders hereunder or (h) amend this Section 8.01;
provided, further that (x) no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to
the Lenders required above to take such action, affect the rights or duties of the Agent under this Agreement or any Note and (y) no
amendment, waiver or consent shall, unless in writing and signed by a Swing Line Lender in addition to the Lenders required above to
take such action, affect the rights or duties of such Swing Line Lenders under this Agreement or any Note; and provided further that
this Agreement may be amended to adjust the borrowing mechanics related to Swing Line Advances with only the written consent of the Company,
the Agent, the Sub-Agent, and the Swing Line Lenders if the obligations of the other Lenders are not adversely affected thereby.
If the Agent and the Company
acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or
any other Loan Document, then the Agent and the Company shall be permitted to amend, modify or supplement such provision to cure such
ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action
or consent of any other party to this Agreement if the same is not objected to in writing by the Required Lenders to the Agent within
five Business Days following receipt of notice thereof.
Section 8.02 Notices,
Etc.
(a) All
notices and other communications provided for hereunder shall be either (x) in writing (including e-mail or telecopier communication)
and mailed, e-mailed, telecopied or delivered or (y) as and to the extent set forth in Section 8.02(b) and in the proviso
to this Section 8.02(a), if to any Borrower, to the Company at its address at 700 Anderson Hill Road, Purchase, New York 10577,
Attention: Assistant Treasurer, E-Mail: PEPTreasuryCapitalMarkets@pepsico.com, with a copy to General
Counsel, Telecopier No. (914) 253-3808; if to any Initial Lender, at its Domestic Lending Office set forth in its Administrative
Questionnaire; if to any other Lender, at its Domestic Lending Office specified in the Assignment and Assumption pursuant to which it
became a Lender; if to the Agent, at the Agent’s Address; and if to the Sub-Agent, at the Sub-Agent’s Address; or, as to
the Company, the Agent or the Sub-Agent, at such other address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Company and
the Agent, provided that materials required to be delivered pursuant to Section 5.01(d) shall be delivered to the Agent
as specified in the last sentence of Section 5.01(d). All such notices and communications mailed or sent by hand or overnight courier
service shall be deemed to have been given when received; notices and communications sent by e-mail or telecopier shall be deemed to
have been given when sent (except that, if not received during normal business hours for the recipient, shall be deemed to have been
received at the opening of business on the next business day for the recipient). The Company and the Agent may agree to accept notice
and other communications by electronic means pursuant to procedures approved by both parties.
(b) The
Company agrees that the Agent may make any written information, documents, instruments and other written materials that have been provided
to the Agent pursuant to the terms hereof (collectively, the “Communications”) available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system (the “Platform”). The Company acknowledges
that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and
other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform
and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express,
implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement
of third party rights or freedom from viruses or other code defects, is made by the Agent or any of its Affiliates in connection with
the Platform.
(c) Each
Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) received by it during its normal business
hours specifying that any Communications have been posted to the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that if requested by any Lender the Agent shall deliver
a copy of the Communications to such Lender by e-mail or telecopier. Each Lender agrees (i) to notify the Agent in writing of such
Lender’s e-mail address to which a Notice may be sent by electronic transmission (including by electronic communication) on or before
the date such Lender becomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address.
Section 8.03 No
Waiver; Remedies.
No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as
a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 8.04 Costs
and Expenses.
(a) The
Company agrees to pay on demand all reasonable costs and expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 8.04(a).
(b) The
Company agrees to indemnify and hold harmless the Agent and each Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in connection with or by reason of, or in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, related to or in connection with the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances, whether or not such investigation,
litigation or proceeding is brought by any Borrower, its directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated, except
to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party’s gross negligence, willful misconduct or material breach of this Agreement in bad
faith.
None of the Agent,
any Lender or any of their Affiliates or their officers, directors, employees, agents and advisors (each, a “Lender-Related Party”)
shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other
similar information transmission systems in connection with this Agreement. No party hereto or any other Lender Related Party shall have
any liability to any other party hereto for any indirect, punitive or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith; provided that the foregoing shall not affect any such damages
incurred or paid by an Indemnified Party to a third party.
(c) If
any payment of principal of, or Conversion of, any Term SOFR Advance or any Eurocurrency Rate Advance is made by any Borrower to or for
the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant
to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Advances pursuant to Section 6.01 or for any
other reason, or if any Term SOFR Advance or Eurocurrency Rate Advance is assigned on any day other than the last day of an Interest Period
therefor as a result of a request by Company pursuant to Section 2.05 or 8.07, the Company shall, upon demand by such Lender (with
a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation,
any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund
or maintain such Advance.
(d) Without
prejudice to the survival of any other agreement of any Borrower hereunder, the agreements and obligations of the Company contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and
under the Notes and the termination of this Agreement.
Section 8.05 Right
of Set-off.
Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Agent to declare the Advances due and payable pursuant to the provisions of Section 6.01, each
Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness
at any time owing by such Lender or such Affiliate to or for the credit or the account of any Borrower against any and all of the obligations
of such Borrower now or hereafter existing under this Agreement and the Note held by such Lender, whether or not such Lender shall have
made any demand under this Agreement or such Note and although such obligations may be unmatured, provided that in the event that
any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Agent
for further application in accordance with the provisions of Section 2.19 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Agent a statement describing in reasonable detail the obligations owing to such Defaulting Lender
as to which it exercised such right of setoff. Each Lender agrees promptly to notify the Company after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each
Lender and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights
of set-off) that such Lender and its Affiliates may have.
Section 8.06 Binding
Effect.
This Agreement shall become
effective on the Effective Date and thereafter shall be binding upon and inure to the benefit of the Company, each Borrowing Subsidiary
(if any), the Agent and each Lender and their respective successors and assigns, except that other than in accordance with Section 5.02(b),
the Company shall not assign its rights and obligations hereunder or any interest herein without the prior written consent of all of the
Lenders.
Section 8.07 Assignments
and Participations.
(a) Each
Lender may, upon ten days’ notice to the Agent (and in the case of an assignment of any Swing Line Commitment, the Sub-Agent) and
with the prior consent of each Swing Line Lender (in the case of any assignment of any Revolving Credit Commitment) and the Company (which
consents shall not be unreasonably withheld or delayed) and, if demanded by the Company pursuant to Section 2.05 (b) or 2.06(b),
upon at least 20 Business Days’ notice to such Lender and the Agent, will assign to one or more Persons all or a portion of its
rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitment, the Revolving
Credit Advances owing to it and the Revolving Credit Note or Notes held by it or, in the case of a Swing Line Lender, all or a portion
of its Swing Line Commitment and the Swing Line Advances owing to it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case
of an assignment to a Person that, immediately prior to such assignment, was a Lender or an affiliate of a Lender, or an assignment of
all of a Lender’s rights and obligations under this Agreement, the amount of the Revolving Credit Commitment or Swing Line Commitment
(as applicable) of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and
Assumption with respect to such assignment) shall in no event be less than $10,000,000, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a demand by the Company pursuant to this Section 8.07(a) shall
be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another
such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement,
(v) no Lender shall be obligated to make any such assignment as a result of a demand by the Company pursuant to this Section 8.07(a) unless
and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the
parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register (as defined in
clause (d) below), an Assignment and Assumption, together with any Revolving Credit Note requested pursuant to Section 2.13(e) subject
to such assignment and a processing and recordation fee of $3,500 unless waived by the Agent in its sole discretion, and (vii) the
Eligible Assignee shall complete, execute and deliver to the Borrowers and Agent the appropriate tax form pursuant to Section 2.14.
Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption
and upon compliance with clause (vii) of the previous sentence, (x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto); provided that an assigning Lender’s
rights to indemnification and reimbursement pursuant to Section 8.04 and its rights and obligations under Sections 2.11 and 2.14
shall survive assignment hereunder.
Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose vehicle
(an “SPV”) of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Agent
and the Company, the option to provide to the Borrowers all or any part of any Advance that such Granting Lender would otherwise be obligated
to make to the Borrowers pursuant to Section 2.01, provided that (i) nothing herein shall constitute a commitment by
any SPV to make any Advance, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such
Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) the Borrowers may bring
any proceeding against either the Granting Lender or the SPV in order to enforce any rights of the Borrowers hereunder. The making of
an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made
by the Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement for which a Lender
would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one
year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or any State thereof arising out of any claim against such SPV
under this Agreement. In addition, notwithstanding anything to the contrary contained in this Section, any SPV may with notice to, but
without the prior written consent of, the Company or the Agent and without paying any processing fee therefor, assign all or a portion
of its interests in any Advances to its Granting Lender or to any financial institutions (consented to by the Company and the Agent) providing
liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund such Advances and such SPV may disclose,
on a confidential basis, confidential information with respect to the Company and its Subsidiaries to any rating agency, commercial paper
dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV. This paragraph may not be amended without the consent
of any SPV at the time holding Advances under this Agreement.
(b) By
executing and delivering an Assignment and Assumption, the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Assumption, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of,
or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement
or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of
any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment
and Assumption; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required
to be performed by it as a Lender.
(c) Upon
its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record
the information contained therein in the Register and (iii) give prompt notice thereof to the Company. The relevant Borrower, at
its own expense, shall if so requested pursuant to Section 2.13(e) execute and deliver to the Agent in exchange for the surrendered
Revolving Credit Note a new Revolving Credit Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Assumption and, if the assigning Lender has retained a Commitment hereunder, a new Revolving Credit
Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Credit Note
or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Credit Note or
Notes, shall be dated the effective date of such Assignment and Assumption and shall otherwise be in substantially the form of Exhibit A
hereto.
(d) The
Agent acting solely for this purpose as a nonfiduciary agent of the relevant Borrower shall maintain at its address referred to in Section 8.02
if such address is within the United States and, if not, at one of its offices located within the United States a copy of each Assignment
and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and, with
respect to Lenders, the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any Lender, as to its Commitment, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Each
Lender may, with the prior consent of the Company (which consent shall not be unreasonably withheld or delayed), upon notice to the Agent,
sell participations to one or more banks or other entities (other than the Company or any Affiliate of the Company) in or to all or a
portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances
owing to it (including such Lender’s participations in Swing Line Advances) and the Note or Notes held by it); provided,
however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers,
the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment
or waiver of any provision of this Agreement or any Note, or any consent to any departure by any Borrower therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation or release the Company
from its obligations hereunder, including, without limitation, its obligations under Article IX. Each Lender that sells a participation
shall, acting solely for this purpose as a nonfiduciary agent of the relevant Borrower, maintain a register at one of its offices located
within the United States on which it enters the name and address of each participant and the Commitment of, and principal amount of the
Advances owing to, each participant from time to time (the “Participant Register”); provided that no Lender
shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant
or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under
any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or
other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive and binding, absent manifest error, and such Lender shall treat each Person whose name is recorded
in the Participant Register as the owner of such participation for all purposes of this Agreement.
(f) Any
Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07,
disclose to the assignee or participant or proposed assignee or participant any information relating to any Borrower furnished to such
Lender by or on behalf of any Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee
or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrowers received by it from
such Lender.
(g) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights
under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it), in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any other central bank having
jurisdiction over such Lender.
Section 8.08 Confidentiality.
Neither the Agent nor any
Lender shall disclose any Confidential Information to any Person without the consent of the Company, other than (a) to the Agent’s
or such Lender’s Affiliates and their officers, directors, employees, agents and advisors and to actual or prospective assignees
and participants, and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial process,
(c) to any rating agency when required by it, provided that, prior to any such disclosure, such rating agency shall undertake to
preserve the confidentiality of any Confidential Information relating to the Borrowers received by it from such Lender, (d) as requested
or required by any state, federal or foreign authority or examiner regulating banks or banking or any regulatory authority (including
any self-regulatory authority), (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or the enforcement of rights hereunder, and (f) disclosures of information pertaining to this Agreement of the
sort routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry; provided
that such disclosure is limited to information identifying the Company, the type, amount and maturity of the credit facility established
hereby and the roles and titles of the Lead Arrangers, Agent and Syndication Agent named on the cover hereof (and excluding any confidential
information relating to the business of the Company).
In addition, the Agent may
disclose to any agency or organization that assigns standard identification numbers to loan facilities such basic information describing
the facilities provided hereunder as is necessary to assign unique identifiers (and, if requested, supply a copy of this Agreement),
it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such information and
instructed to make available to the public only such information as such person normally makes available in the course of its business
of assigning identification numbers.
Section 8.09 Governing
Law.
This Agreement and the other
Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising
out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein)
and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of
New York.
Section 8.10 Execution
in Counterparts.
This Agreement may be executed
in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of
a signature page to this Agreement by e-mail or telecopier shall be effective as delivery of a manually executed counterpart of this
Agreement. The words “execution,” “signed,” “signature,” and words of like import herein or in any
other Loan Document shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations
on electronic platforms approved by the Agent and digital copies of a signatory's manual signature, deliveries or the keeping of records
in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature to the
extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the
New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 8.11 Jurisdiction,
Etc.
(a) Each
of the parties hereto hereby irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of
any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Agent, any Lender or any Related
Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto,
in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the
Southern District of New York sitting in New York County, and any appellate court from any thereof,
and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in
respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent
permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement or in any other Loan Document shall affect any right that any party hereto may otherwise have to bring
any action or proceeding to enforce a judgment relating to this Agreement or any other Loan Document against any other party hereto or
its properties in the courts of any jurisdiction.
(b) Each
of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each
party hereto irrevocably consents to service of process in the manner provided for notices in Section 8.02. Nothing in this Agreement
will affect the right of any party hereto to serve process in any other manner permitted by applicable law
Section 8.12 WAIVER
OF JURY TRIAL.
EACH BORROWER, THE AGENT AND
THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE ACTIONS OF THE AGENT OR ANY LENDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
Section 8.13 USA
PATRIOT Act Notice.
Each Lender and the Agent
(for itself and not on behalf of any Lender) hereby notifies the Company that pursuant to the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Company, which information includes the name and address of the Company and other information that will allow such
Lender or the Agent, as applicable, to identify the Company in accordance with the Act.
Section 8.14 No
Fiduciary Duties.
The Company acknowledges that
the Agent, the Lenders and their respective Affiliates may have economic interest that conflict with those of the Company and its Subsidiaries.
The Company agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith,
the Company and its Affiliates, on the one hand, and the Agent, the Lenders and their respective Affiliates, on the other hand, will have
a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Agent, the Lenders or
their respective Affiliates and no such duty will be deemed to have arisen in connection with any such transactions or communications.
Section 8.15 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to
the contrary in this Agreement, any Note or in any other agreement, arrangement or understanding among any such parties with respect to
the subject matter hereof, each party hereto acknowledges that any liability of any Affected Financial Institution arising under this
Agreement, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution
Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement; or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
In the event a Lender has
been notified by a Resolution Authority that it has or may be subject to a Bail-In Action, it shall immediately notify the Agent who shall
in turn promptly notify the Company.
As used in this Agreement,
the following terms shall have the following meanings:
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time
to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom
relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than
through liquidation, administration or other insolvency proceedings).
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of
an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in
effect from time to time.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority”
means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Write-Down and Conversion
Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers
are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution
Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or
any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations
of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related
to or ancillary to any of those powers.
Section 8.16 Judgment.
(a) If for the purposes
of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto
agree, to the fullest extent permitted under applicable law, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Agent could purchase Dollars with such other currency at Citibank’s principal office in London at
11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.
(b) If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Euros into Dollars, the parties
agree to the fullest extent permitted under applicable law, that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase Euros with Dollars at Citibank’s principal office in London at 11:00 A.M. (London
time) on the Business Day preceding that on which final judgment is given.
(c) The
obligation of each Borrower in respect of any sum due from it in any currency (the “Primary Currency”) to any Lender
or the Agent hereunder shall, notwithstanding any judgment in any other currency (the “Judgment Currency”), be discharged
only to the extent that on the Business Day following receipt by such Lender or the Agent (as the case may be), of any sum adjudged to
be so due in the Judgment Currency, such Lender or the Agent (as the case may be) may in accordance with normal banking procedures purchase
the applicable Primary Currency with the Judgment Currency; if the amount of the applicable Primary Currency so purchased is less than
such sum originally due to such Lender or the Agent (as the case may be) in the applicable Primary Currency, such Borrower agrees, as
a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Agent (as the case may be) against such loss,
and if the amount of the applicable Primary Currency so purchased exceeds such sum due to any Lender or the Agent (as the case may be)
in the applicable Primary Currency, such Lender or the Agent (as the case may be) agrees to remit such excess to such Borrower.
ARTICLE IX
GUARANTEE
Section 9.01 Guarantee.
The Company hereby unconditionally
and irrevocably guarantees to each Lender and the Agent and their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration, by optional prepayment or otherwise) of the principal of and interest on the Advances to
and the Notes of (to the extent of the principal of and interest on Advances made to) each Borrowing Subsidiary and all other amounts
whatsoever from time to time now or hereafter owing to the Lenders or the Agent or any of them by any Borrowing Subsidiary under this
Agreement pursuant to such Borrowing Subsidiary’s Designation Letter, in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the “Guaranteed Obligations”). The Company hereby further agrees
that if any Borrowing Subsidiary shall fail to pay in full when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise) any of the Guaranteed Obligations, the Company will promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
Section 9.02 Obligations
Unconditional.
(a) The
obligations of the Company under this Article IX, and the obligations (if any) of the Company assumed pursuant to Section 2.17(b),
are unconditional irrespective of (i) the value, genuineness, legality, validity, regularity or enforceability of any of the Guaranteed
Obligations, (ii) any modification, amendment or variation in or addition to the terms of any of the Guaranteed Obligations or any
covenants in respect thereof or any security therefor, (iii) any extension of time for performance or waiver of performance of any
covenant of any Borrowing Subsidiary or any failure or omission to enforce any right with regard to any of the Guaranteed Obligations,
(iv) any exchange, surrender, release of any other guaranty of or security for any of the Guaranteed Obligations, or (v) any
other circumstance whatsoever which may or might constitute a legal or equitable discharge or defense of a surety or guarantor, it being
the intent hereof that the obligations of the Company under this Article IX shall be absolute and unconditional under any and all
circumstances.
(b) The
Company hereby expressly waives diligence, presentment, demand, protest and all notices whatsoever with regard to any of the Guaranteed
Obligations and said obligations assumed under Section 2.17(b) and any requirement that the Agent or any Lender exhaust any
right, power or remedy or proceed against any Borrowing Subsidiary or any other Person hereunder or under the Designation Letter of such
Borrowing Subsidiary or under any Note of such Borrowing Subsidiary or any other guarantor of or any security for any of the Guaranteed
Obligations. The obligations of the Company under this Article IX constitute a guarantee of payment and not of collection.
Section 9.03 Reinstatement.
The guarantee in this Article IX
shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Borrowing Subsidiary in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder(s) of any of the Guaranteed Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
Section 9.04 Subrogation.
Until the termination of the
Commitments and the payment in full of the principal of and interest on the Advances and all other amounts payable to the Agent or any
Lender hereunder, the Company hereby irrevocably waives all rights of subrogation or contribution, whether arising by operation of law
(including, without limitation, any such right arising under the Federal Bankruptcy Code) or otherwise, by reason of any payment by it
pursuant to the provisions of this Article IX.
Section 9.05 Remedies.
The Company agrees that, as
between the Company on the one hand and the Lenders and the Agent on the other hand, the obligations of any Borrowing Subsidiary guaranteed
under this Agreement may be declared to be forthwith due and payable, or may be deemed automatically to have been accelerated, as provided
in Article VI, for purposes of Section 9.01 hereof notwithstanding any stay, injunction or other prohibition (whether in a bankruptcy
proceeding affecting such Borrowing Subsidiary or otherwise) preventing such declaration as against such Borrowing Subsidiary and that,
in the event of such declaration or automatic acceleration such obligations (whether or not due and payable by such Borrowing Subsidiary)
shall forthwith become due and payable by the Company for purposes of said Section 9.01.
Section 9.06 Continuing
Guarantee.
The guarantee in this Article IX
is a continuing guarantee and shall apply to all Guaranteed Obligations whenever arising.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has
caused a counterpart of this Credit Agreement to be duly executed and delivered as of the date first above written.
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PEPSICO, INC. |
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By: |
/s/ Ada Cheng |
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Name: |
Ada Cheng |
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Title: |
Senior Vice President, Finance & Treasurer |
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By: |
/s/ Jay Laramie |
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Name: |
Jay Laramie |
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Title: |
Vice President & Assistant Treasurer |
PepsiCo 5-Year Credit Agreement Signature Page
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CITIBANK, N.A. |
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as Agent |
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By: |
/s/ Michael Vondriska |
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Name: |
Michael Vondriska |
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Title: |
Vice President |
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CITIBANK EUROPE PLC, UK BRANCH, |
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as Sub-Agent |
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By: |
/s/ Henrik S. Slotsaa |
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Name: |
Henrik S. Slotsaa |
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Title: |
Vice President |
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Initial Lenders |
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CITIBANK, N.A. |
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By: |
/s/ Michael Vondriska |
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Name: |
Michael Vondriska |
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Title: |
Vice President |
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BANK OF AMERICA, N.A. |
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By: |
/s/ Ryan Van Stedum |
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Name: |
Ryan Van Stedum |
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Title: |
Vice President |
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JPMORGAN CHASE BANK, N.A. |
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By: |
/s/ Gregory Martin |
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Name: |
Gregory Martin |
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Title: |
Executive Director |
PepsiCo 5-Year Credit Agreement Signature Page
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BNP PARIBAS |
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By: |
/s/ David Foster |
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Name: |
David Foster |
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Title: |
Director |
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By: |
/s/ Claudia Zarate |
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Name: |
Claudia Zarate |
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Title: |
Managing Director |
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DEUTSCHE BANK AG NEW YORK BRANCH |
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By: |
/s/ Ming K. Chu |
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Name: |
Ming K. Chu |
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Title: |
Director |
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By: |
/s/ Alison Lugo |
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Name: |
Alison Lugo |
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Title: |
Vice President |
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GOLDMAN SACHS BANK USA |
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By: |
/s/ Dan Starr |
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Name: |
Dan Starr |
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Title: |
Authorized Signatory |
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HSBC BANK USA, NATIONAL ASSOCIATION |
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By: |
/s/ Jack Kelly |
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Name: |
Jack Kelly |
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Title: |
Senior Vice President #23204 |
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MIZUHO BANK, LTD. |
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By: |
/s/ Tracy Rahn |
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Name: |
Tracy Rahn |
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Title: |
Managing Director |
PepsiCo 5-Year Credit Agreement Signature Page
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MORGAN STANLEY BANK, N.A. |
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By: |
/s/ Michael King |
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Name: |
Michael King |
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Title: |
Authorized Signatory |
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BANCO BILBAO VIZCAYA ARGENTARIA, S.A. |
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NEW YORK BRANCH |
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By: |
/s/ Cara Younger |
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Name: |
Cara Younger |
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Title: |
Managing Director |
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By: |
/s/ Armen Semizian |
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Name: |
Armen Semizian |
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Title: |
Managing Director |
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BARCLAYS BANK PLC |
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By: |
/s/ Ritam Bhalla |
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Name: |
Ritam Bhalla |
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Title: |
Director |
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ING BANK N.V., DUBLIN BRANCH |
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By: |
/s/ Cormac Langford |
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Name: |
Cormac Langford |
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Title: |
Managing Director |
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By: |
/s/ Sean Hassett |
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Name: |
Sean Hassett |
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Title: |
Director |
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SOCIETE GENERALE |
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By: |
/s/ Shelley Yu |
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Name: |
Shelley Yu |
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Title: |
Director |
PepsiCo 5-Year Credit Agreement Signature Page
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THE TORONTO-DOMINION BANK, NEW YORK |
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BRANCH |
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By: |
/s/ Victoria Roberts |
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Name: |
Victoria Roberts |
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Title: |
Authorized Signatory |
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AUSTRALIA AND NEW ZEALAND BANKING GROUP |
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LIMITED |
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By: |
/s/ Robert Grillo |
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Name: |
Robert Grillo |
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Title: |
Executive Director |
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BANK OF CHINA, NEW YORK BRANCH |
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By: |
/s/ Raymond Qiao |
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Name: |
Raymond Qiao |
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Title: |
Executive Vice
President |
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PNC BANK, NATIONAL ASSOCIATION |
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By: |
/s/ Cheryl L. Sekelsky |
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Name: |
Cheryl L. Sekelsky |
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Title: |
Senior Vice President |
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ROYAL BANK OF CANADA |
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By: |
/s/ Scott Robinson |
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Name: |
Scott Robinson |
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Title: |
Vice President – CCG Finance |
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STANDARD CHARTERED BANK |
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By: |
/s/ Kristopher Tracy |
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Name: |
Kristopher Tracy |
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Title: |
Director, Financing Solutions |
PepsiCo 5-Year Credit Agreement Signature Page
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THE NORTHERN TRUST COMPANY |
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By: |
/s/ Eric Siebert |
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Name: |
Eric Siebert |
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Title: |
SVP |
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THE STANDARD BANK OF SOUTH AFRICA |
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LIMITED, ISLE OF MAN BRANCH |
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By: |
/s/ Darren Weymouth |
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Name: |
Darren Weymouth |
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Title: |
Executive |
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U.S. BANK NATIONAL ASSOCIATION |
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By: |
/s/ Peter Hale |
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Name: |
Peter Hale |
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Title: |
Vice President |
PepsiCo 5-Year Credit Agreement Signature Page
Schedule I
Agent’s Address
Citibank Delaware
One Penns Way
OPS II, Floor 2
New Castle, DE 19720
Attn: Lending Agency
Phone: (302) 894-6010
Borrower inquiries only: usagencyservicing@citi.com
Borrower notifications: usagencyservicing@citi.com
Disclosure Team Mail (Financial Reporting): oploanswebadmin@citi.com
Investor Relations Team (investor inquiries only): global.loans.support@citi.com
Sub-Agent’s Address
For EUR swingline borrowing requests only:
Citibank Europe plc, UK Branch
EMEA Loans Agency
Citigroup Centre
33 Canada Square Canary Wharf
London E14 5LB United Kingdom
Email: loans.ats@citi.com
Cc: loansagency.dealonboarding@citi.com
Exhibit A to
Credit Agreement
FORM OF REVOLVING CREDIT NOTE
U.S.$__________
Dated: __________, 20__
FOR VALUE RECEIVED, the undersigned,
PEPSICO, INC., a North Carolina corporation (the “Borrower”), HEREBY PROMISES TO PAY to the order of _____________________
(the “Lender”) for the account of its Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal amount of the Revolving Credit Advances made by the Lender to the Borrower pursuant to the
Five-Year Credit Agreement dated as of May 24, 2024 among the Borrower, the Lender and certain other lenders parties thereto, and
Citibank, N.A., as Agent for the Lender and such other lenders (as amended or modified from time to time, the “Credit Agreement”;
the terms defined therein being used herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay
interest on the unpaid principal amount of each Revolving Credit Advance from the date of such Revolving Credit Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest
in respect of each Advance (i) denominated in Dollars are payable in lawful money of the United States of America and (ii) denominated
in Euros are payable in such currency, in each case to Citibank, N.A., as Agent, at the Agent’s Account, in same day funds for the
account of the Lender. Each Revolving Credit Advance owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached
hereto which is part of this Promissory Note. Each such endorsement shall constitute prima facie evidence of the accuracy of the
information so endorsed.
This Promissory Note is one
of the Revolving Credit Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other
things, (i) provides for the making of Revolving Credit Advances by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such Revolving Credit Advance being evidenced by this Promissory Note, (ii) contains provisions for determining the Equivalent
in Dollars for Advances denominated in Euros and (iii) contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
The Borrower hereby waives
presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part
of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall
be governed by, and construed in accordance with, the laws of the State of New York.
|
PEPSICO, INC. |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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ADVANCES AND PAYMENTS OF PRINCIPAL
Date |
Amount and
Currency of
Advance |
Amount of
Principal Paid
Or Prepaid |
Unpaid Principal
Balance |
Notation
Made By |
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Exhibit B to
Credit Agreement
FORM OF NOTICE OF BORROWING
[Citibank, N.A., as Agent
for the Lenders party
to the Credit Agreement
referred to below
_________________________
_________________________
Attention: _______________]
[Citibank Europe plc, UK Branch, as Sub-Agent
for the Swing Line Lenders party
to the Credit Agreement
referred to below
_________________________
_________________________
Attention: _______________]
[Date]
Ladies and Gentlemen:
The undersigned, PepsiCo, Inc.
(the “Company”), refers to the Five-Year Credit Agreement, dated as of May 24, 2024 (as amended or modified from
time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to [Section 2.02][Section 2.20]
of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth
below the information relating to such Revolving Credit Borrowing (the “Proposed Borrowing”) as required by [Section 2.02(a)][Section 2.20(b)]
of the Credit Agreement:
(i) The
Business Day of the Proposed Borrowing is ______, ____.
(ii) The
Type of Advances constituting the Proposed Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances] [Term SOFR Advances] [Swing
Line Advances].
(iii) The
aggregate amount of the Proposed Borrowing is [$][€]________.
(iv) The
identity of the Borrower for the Proposed Borrowing is ______________, a ______________ corporation.
[(v) The
initial Interest Period for each [Eurocurrency Rate Advance] [Term SOFR Advance] made as part of the Proposed Borrowing is ____ month[s].]
The location and number to
which proceeds of the requested Borrowing are to be disbursed are: Bank: [●], Account No.: [●], ABA No.: [●].
The undersigned hereby certifies
that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(a) the
representations and warranties contained in Section 4.01 of the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f) thereof (other than clause (ii) thereof)) are
correct, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date;
(b) no
event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default; and
(c) the
aggregate amount of the Proposed Borrowing and all other Borrowings to be made on the same day under the Credit Agreement is within the
Unused Revolving Credit Commitments of the Lenders.
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Very truly yours, |
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PEPSICO, INC. |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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Exhibit C to
Credit Agreement
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption
(this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).
Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption
as if set forth herein in full.
For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted
by the Agent as contemplated below (i) all of the Assignor’s rights and obligations as a Lender under the Credit Agreement
and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related
to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations
sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned Interest”).
Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by the Assignor.
| 1. | Assignor: |
______________________________ |
2. | Assignee: |
______________________________ [and is an Affiliate of [identify Lender]] |
3. |
Company: |
PepsiCo, Inc. |
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4. |
Agent: |
Citibank, N.A., as the administrative
agent under the Credit Agreement. |
5. | Credit Agreement: |
Five-Year Credit Agreement, dated as of May 24, 2024, among PepsiCo, Inc.
(the “Company”), the Lenders party thereto and Citibank, N.A., as Agent. |
6. Assigned
Interest:
Facility Assigned |
Aggregate
Amount of
Commitment/
Advances
for
all Lenders* |
Amount of
Commitment/
Advances
Assigned* |
Percentage
Assigned of
Commitment/
Advances1 |
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Revolving Credit |
$________________ |
$________________ |
______________% |
[7. Trade
Date: __________________]2
Effective Date: __________________, 20__ [TO BE INSERTED BY AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
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ASSIGNOR |
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[NAME OF ASSIGNOR] |
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By: |
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Title: |
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ASSIGNEE |
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[NAME OF ASSIGNEE] |
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By: |
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Title: |
*Amount
to be adjusted to take into account any payments or prepayments made between the Trade Date and the Effective Date.
1
Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Lenders thereunder.
2
To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
Consented to and Accepted: |
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CITIBANK, N.A., as |
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Administrative Agent |
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By: |
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Title: |
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Consented to: |
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PEPSICO, INC. |
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By: |
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Title: |
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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations
and Warranties.
1.1. Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and
has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries
or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company,
any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee.
The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents
as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered or deemed
delivered pursuant to Section 5.01(d) thereof, as applicable, and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Lender, and (v) if
it is a Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue
Code (a “Foreign Lender”), attached hereto is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance
on the Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments.
From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the Agent for periods prior to the Effective Date or with respect
to the making of this assignment directly between themselves.
3. General
Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by,
and construed in accordance with, the laws of the State of New York.
Exhibit D to
Credit Agreement
FORM OF DESIGNATION LETTER
__________, 20__
To Citibank, N.A.,
as Agent
Attention:
Ladies and Gentlemen:
We make reference to the Five-Year
Credit Agreement (as amended or modified from time to time, the “Credit Agreement”; the terms defined therein being
used herein as therein defined) dated as of May 24, 2024 among PepsiCo, Inc., (the “Company”), Citibank,
N.A., as Agent (the “Agent”), and the banks party thereto (the “Lenders”).
The Company hereby designates
[_______________] (the “Borrowing Subsidiary”), a Subsidiary of the Company and a corporation duly incorporated under
the laws of [_______________], as a Borrower in accordance with Section 2.17 of the Credit Agreement until such designation is terminated
in accordance with said Section 2.17.
The Borrowing Subsidiary hereby
accepts the above designation and hereby expressly and unconditionally accepts the obligations of a Borrower under the Credit Agreement,
adheres to the Credit Agreement and agrees and confirms that, upon your execution and return to the Company of the enclosed copy of this
letter, such Borrowing Subsidiary shall be a Borrower for purposes of the Credit Agreement and agrees to be bound by and perform and comply
with the terms and provisions of the Credit Agreement applicable to it as if it had originally executed the Credit Agreement as a Borrower.
The Borrowing Subsidiary hereby authorizes and empowers the Company to act as its representative and attorney-in-fact for the purposes
of signing documents and giving and receiving notices (including notices of Borrowing under the Credit Agreement) and other communications
in connection with the Credit Agreement and the transactions contemplated thereby and for the purposes of modifying or amending any provision
of the Credit Agreement and further agrees that the Agent and each Lender may conclusively rely on the foregoing authorization. The Borrowing
Subsidiary hereby represents and warrants to the Agent and each Lender that, as of the date hereof, the information included in the Beneficial
Ownership Certification in relation to the Borrowing Subsidiary is true and correct in all respects.
The Company hereby represents
and warrants to the Agent and each Lender that, before and after giving effect to this Designation Letter, (i) the representations
and warranties set forth in Section 4.01 of the Credit Agreement (except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii) thereof)) are true and correct on the Effective Date
as if made on and as of the date hereof and (ii) no Default has occurred and is continuing. The Borrowing Subsidiary represents and
warrants that each of the representations and warranties set forth in Section 4.01(a) (as if the reference therein to North
Carolina were a reference to its jurisdiction of organization), (b), (c) and (d) of the Credit Agreement are true as if each
reference therein to the Company were a reference to the Borrowing Subsidiary and as if each reference therein to the Loan Documents were
a reference to this Designation Letter and the Note, if any, executed by the Borrowing Subsidiary in connection herewith.
The Borrowing Subsidiary is
hereby aware that this Designation Letter, the Credit Agreement and the Notes, if any, shall be governed by, and construed in accordance
with, the laws of the State of New York. The Borrowing Subsidiary hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York state court sitting in New York City for the purposes of all
legal proceedings arising out of or relating to this Designation Letter, the Credit Agreement or the transactions contemplated thereby.
The Borrowing Subsidiary irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have
to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. The Borrowing Subsidiary further agrees that service of process in any such action or proceeding
brought in New York may be made upon it by service upon the Borrower at the “Address for Notices” specified below its name
on the signature page to this Designation Letter.
Without limiting the foregoing,
the Borrowing Subsidiary joins in the submission, agreements, waivers and consents in Section 8.11 and 8.12 of the Credit Agreement.
|
PEPSICO, INC. |
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By |
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Name: |
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Title: |
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By |
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Name: |
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Title: |
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[NAME OF BORROWING SUBSIDIARY] |
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By |
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Name: |
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Title: |
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Address for Notices: |
ACCEPTED |
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CITIBANK, N.A., |
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as Agent |
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By |
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Title: |
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Exhibit E to
Credit Agreement
FORM OF TERMINATION LETTER
To Citibank, N.A.,
as Agent
Attention:
Ladies and Gentlemen:
We make reference to the Five-Year
Credit Agreement (as amended or modified from time to time, the “Credit Agreement”; the terms defined therein being
used herein as therein defined) dated as of May 24, 2024 by and among PepsiCo, Inc. (the “Company”), Citibank,
N.A., as Agent, and the banks party thereto.
The Company hereby terminates
the status as a Borrowing Subsidiary of [______________], a corporation incorporated under the laws of [_______________], in accordance
with Section 2.17 of the Credit Agreement, effective as of the date of receipt of this notice by the Agent. The undersigned hereby
represents and warrants that all principal of and interest on any Advance of the above-referenced Borrowing Subsidiary and all other amounts
payable by such Borrowing Subsidiary pursuant to the Credit Agreement have been paid in full on or prior to the date hereof. Notwithstanding
the foregoing, this Termination Letter shall not affect any obligation which by the terms of the Credit Agreement survives termination
thereof.
|
PEPSICO, INC. |
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By: |
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Name: |
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Title: |
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v3.24.1.1.u2
Cover
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May 24, 2024 |
Document Information [Line Items] |
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Document Type |
8-K
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Amendment Flag |
false
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Document Period End Date |
May 24, 2024
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Entity File Number |
1-1183
|
Entity Registrant Name |
PepsiCo, Inc.
|
Entity Central Index Key |
0000077476
|
Entity Tax Identification Number |
13-1584302
|
Entity Incorporation, State or Country Code |
NC
|
Entity Address, Address Line One |
700 Anderson Hill Road
|
Entity Address, City or Town |
Purchase
|
Entity Address, State or Province |
NY
|
Entity Address, Postal Zip Code |
10577
|
City Area Code |
914
|
Local Phone Number |
253-2000
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
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Entity Emerging Growth Company |
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|
Common stock, par value 1-2/3 cents per share |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
Common Stock, par value 1-2/3 cents per share
|
Trading Symbol |
PEP
|
Security Exchange Name |
NASDAQ
|
Two Point Six Two Five Percent Notes Due 2026 |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
2.625% Senior Notes due 2026
|
Trading Symbol |
PEP26
|
Security Exchange Name |
NASDAQ
|
Zero Point Seven Five Percent Notes Due 2027 |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
0.750% Senior Notes due 2027
|
Trading Symbol |
PEP27
|
Security Exchange Name |
NASDAQ
|
Zero Point Eight Seven Five Percent Notes Due 2028 |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
0.875% Senior Notes due 2028
|
Trading Symbol |
PEP28
|
Security Exchange Name |
NASDAQ
|
Zero Point Five Percent Notes Due 2028 [Member] |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
0.500% Senior Notes due 2028
|
Trading Symbol |
PEP28A
|
Security Exchange Name |
NASDAQ
|
Three Point Two Percent Notes Due 2029 [Member] |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
3.200% Senior Notes due 2029
|
Trading Symbol |
PEP29
|
Security Exchange Name |
NASDAQ
|
One Point One Two Five Percent Notes Due 2031 |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
1.125% Senior Notes due 2031
|
Trading Symbol |
PEP31
|
Security Exchange Name |
NASDAQ
|
Zero Point Four Percent Notes Due 2032 |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
0.400% Senior Notes due 2032
|
Trading Symbol |
PEP32
|
Security Exchange Name |
NASDAQ
|
Zero Point Seven Five Percent Notes Due 2033 |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
0.750% Senior Notes due 2033
|
Trading Symbol |
PEP33
|
Security Exchange Name |
NASDAQ
|
Three Point Five Five Percent Notes Due 2034 [Member] |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
3.550% Senior Notes due 2034
|
Trading Symbol |
PEP34
|
Security Exchange Name |
NASDAQ
|
Zero Point Eight Seven Five Notes Due 2039 |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
0.875% Senior Notes due 2039
|
Trading Symbol |
PEP39
|
Security Exchange Name |
NASDAQ
|
One Point Zero Five Percent Notes Due 2050 |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
1.050% Senior Notes due 2050
|
Trading Symbol |
PEP50
|
Security Exchange Name |
NASDAQ
|
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